Transfers, Delegations and Assignments of Ownership.

15.121. 

Consent Required.

A. 

Except as provided for in Section 617(e) of the Cable Act (47 CFR 537), and in Subsection B hereof, no Cable System or integral portion or element of such system, or any other real or integral property, which is a part of said system, shall be sold, transferred, mortgaged, pledged, leased, sublet, sold and leased back, or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable, or any right or interest therein, pass through transfer, assignment or delegation, to any party other than to an affiliate without the prior written consent of the City expressed by a resolution of the Common Council and then only under such conditions as the Common Council may establish. Such consent shall not be withheld by the City without showing of cause. In the absence of extraordinary circumstances, the City shall not approve transfer, delegation or assignment of ownership of the Cable System or any Video Communications System prior to substantial completion of construction or reconstruction of the proposed system.

B. 

In the event that Grantee seeks to mortgage, hypothecate, pledge, grant a security interest in or otherwise encumber the Cable System or any Video Communications System or any portion thereof for collateral to secure any indebtedness, this Ordinance shall not be deemed to permit the Grantee to grant any such interest in the Franchise to any lender or lenders holding the Cable System or any Video Communications System as debt collateral. The Grantee shall be permitted to mortgage, hypothecate, grant a security interest in, or otherwise encumber any other assets constituting all or part of the Cable System or any Video Communications System, upon the terms and conditions set forth hereinafter. Any instrument granting such an interest shall provide that prior to any foreclosure contemplated by said lender or lenders on any Cable System or any Video Communications System mortgage or security interest, the lender or lenders shall give no less than thirty (30) days prior notice to the Franchising Authority in advance of any action of foreclosure. Said instruments shall also acknowledge the right of the City to acquire the assets of the system, pursuant to this Ordinance. Upon foreclosure, the lender or lenders shall notify the Franchising Authority of the firm, firms, persons, parties, partnerships or corporations that will operate the Cable System or any Video Communications System, on behalf of the lender or lenders, and said firm, firms, persons, parties, partnerships or corporations shall be automatically granted an interim Franchise, not to exceed one hundred eighty (180) days in length, to operate the Cable System or any Video Communications System. Said interim Franchise shall not be renewable or extendable.

15.122. 

Standards for Review. No such sale, transfer, delegation or assignment shall be approved, unless the proposed buyer, transferee, delegee or assignee is found by the Franchising Authority to possess the legal, financial, and technical capacities and experience reasonably deemed necessary by the Franchising Authority in order to hold a Franchise.

15.123. 

Notice of Sale, Transfer, Delegation, or Assignment by Grantee. In the event of a proposed sale, transfer, delegation or assignment of ownership of more than five percent (5%) of the ownership of the Cable System or any Video Communications System to a Person or group of Persons, as defined herein, none of whom owned or controlled five percent (5%) or more of such right of control, singularly or collectively, on the effective date of this Ordinance, Grantee shall, prior to such proposed sale, transfer, delegation or assignment, file with the City Clerk FCC Form 394 or its successor form. Franchising Authority and Grantee shall have one hundred twenty (120) calendar days from the date of the filing of the FCC 394 form to review said FCC 394 form, unless Grantee and Franchising Authority agree to an extension of time.

15.124. 

Period of Review. Upon notification by the Grantee of a proposed sale, transfer, delegation or assignment of ownership of the Cable System or any Video Communications System, the Franchising Authority shall have one hundred twenty (120) days from the date of receipt of such notice to act upon any request for approval of such sale, transfer, delegation or assignment, that contains or is accompanied by such information as is required by the Franchising Authority, in accordance with this Ordinance, and as required by the FCC, in accordance with its regulations. If the Franchising Authority fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted, unless the requesting party and the Franchising Authority agree to an extension of time. Such additional time for review shall be allowed, upon agreement of a specific extension period by the Franchising Authority and the Grantee. In the event that there is a finding or pending proceeding against the Grantee pertaining to a Franchise violation, such finding or proceeding must be concluded prior to review of said request.

15.125. 

Payment Required. No such approval of any agreement to sell, transfer, delegate or assign shall be granted by the Franchising Authority, unless all moneys accruing to the City, as of the date of sale, transfer, delegation or assignment, whether by way of fees, penalties, damages, or otherwise, have first been paid in full, or is guaranteed to be paid, out of the consideration received by the buyer, transferor, delegator or assignor for such transaction.

15.126. 

Information Required. Upon the filing of FCC Form 394 or its successor or within 15 days of the Commencement of an intent to sell, transfer, delegate, or assign the Cable System or Video Communications System, the proposed buyer, transferee, delegee or assignee of the Cable System shall file with the City Clerk the following information for the Common Council to review:

[Ord. 6400, (amend S. 15.126(C)(D)(J)(L)(M)), 10/6/1998]

A. 

Listing of proposed buyer, transferee, delegatee or assignee, and the names of principals, investors and shareholders with an interest of more than five percent (5%) in the entity which seeks to obtain the Franchise.

B. 

A description of ownership qualifications.

C. 

A description of the Cable System or any Video Communications System operation experience.

D. 

A description of qualifications regarding character of the Person or group of Persons seeking control of the Cable System or any Video Communications System through this request.

E. 

Corporate or business formation documents.

F. 

Financing documents, including a bank commitment letter or, if proposed buyer, transferee, delegee or assignee is a limited partnership, then copies of proposed prospectus agreement or offering circular, including a completed S-1 Form, or its successor form, as required by the U.S. Securities and Exchange Commission.

G. 

Historical financial statements, including balance sheets and Profit and Loss Statements, for three (3) prior years.

H. 

Pro Forma financial statements, including growth and revenue projections, income statements, sources and uses of funds, anticipated capital expenditures, depreciation schedules and justifications, charges for proposed services, new-build commitments, rebuild commitments, service penetration rates, cash flow analyses and balance sheets.

I. 

Itemizations of Franchise modifications being requested or which will be expected for the life of the Franchise and a statement that no other Franchise modifications are currently requested.

J. 

A statement indicating technical capacity, legal qualifications and financial capability under all applicable local and state laws to own and operate a cable television system or any Video Communications System.

K. 

A time frame and basis for such time frame proposed to conclude sale, transfer, delegation or assignment and any proposed refinancing or restructuring of debt.

L. 

No such sale, transfer, delegation or assignment shall be approved, unless the proposed buyer, transferee, delegee or assignee shall have agreed in writing to comply with all of the provisions of the West Allis Cable Ordinance [this Subchapter], as amended, as well as the applicable Franchise Agreement.

M. 

Any additional information pertaining to the proposed transaction, as may be reasonably required by the City.

N. 

No such sale, transfer, delegation or assignment shall be approved, unless the proposed buyer, transferee, delegee or assignee shall have agreed in writing to comply with all of the provisions of the West Allis Cable Ordinance (this Subchapter), as amended, as well as the applicable Franchise Agreement.

O. 

Any additional information pertaining to the proposed transaction, as may be reasonably required by the City.

15.127. 

Acceptance of Transition. Upon approval of any sale, transfer, delegation or assignment of the Franchise, Grantee shall notify the City, by certified United States Mail, of its acceptance of the terms and conditions of the Franchise Ordinance and Franchise Agreement.

15.128. 

Reservation of Rights of City.

A. 

The City reserves the right, during the review process, as stated in Section 15.123, to request modifications to the Franchise Agreement that the City deems necessary to address the cable-related needs and interests of the community.

B. 

The City reserves the right to negotiate any term and condition of the Franchise before any final decision to approve the sale, transfer, delegation or assignment of the Franchise from the Grantee to another Person or group of Persons is approved by the City, in accordance with Section 15.124 of this Ordinance.

15.129. 

Exceptions to this Section. This section shall not apply to any sale, transfer, delegation or assignment to one or more purchasers, transferees, delegees or assignees, who are controlled by, controlling or under common control with the seller, transferor, delegator or assignor. This section shall not apply to those proposed sales, transfers, delegations or assignments of ownership of a Cable System, which are specifically excepted by the provisions of Section 617 of the Communications Act of 1934, as now or hereinafter amended, or its successor provision.

15.1210. 

Rights Not Waived. The consent of the City to any sale, transfer, lease, trust, mortgage or other instrument of hypothecation shall not constitute a waiver or release of any rights of the City under this Ordinance and the Franchise.

15.1211. 

Rejection of Buyer, Transferee, Delegee, or Assignee. In the event that the Franchising Authority rejects the application for transfer of the Franchise Agreement to a proposed buyer, transferee, delegee or assignee, the Grantee may sell, transfer, delegate or assign its rights under the Franchise Agreement, notwithstanding said rejection, except that the Grantee shall remain obligated to perform, cause the performance of or guarantee the performance of all obligations of the buyer, transferee, delegee or assignee so identified.

Ord. 6400, amend, 10/6/1998