UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[x] Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended
DECEMBER 31, 2004
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from __________ to __________
Commission File Number: 0-16784
American Cable TV Investors 5, Ltd.
Exact name of registrant as specified in charter
Colorado 84-1048934
- ---------------------- -----------------------
State of organization I.R.S. employer I.D. #
c/o Comcast Corporation
1500 Market Street, Philadelphia, PA 19102-2148
- --------------------------------------------------------------------------------
Address of principal executive office
(215) 665-1700
- --------------------------------------------------------------------------------
Registrant's telephone number
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
200,005 Limited Partnership Units Sold to Investors at $500 per Unit
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No __
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendments to
this Form 10-K. [X]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12-b2 of the Exchange Act).
Yes __ No X
AMERICAN CABLE TV INVESTORS 5, LTD.
2004 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
PART I
Item 1 Business...............................................................................................1
Item 2 Properties.............................................................................................2
Item 3 Legal Proceedings......................................................................................2
Item 4 Submission of Matters to a Vote of Security Holders....................................................3
PART II
Item 5 Market for the Registrant's Common Equity and Related Stockholder Matters..............................3
Item 6 Selected Financial Data................................................................................4
Item 7 Management's Discussion and Analysis of Financial Condition and Results of Operations..................5
Item 8 Financial Statements and Supplementary Data............................................................6
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure..................15
Item 9A Controls and Procedures...............................................................................15
PART III
Item 10 Directors and Executive Officers of the Registrant....................................................15
Item 11 Executive Compensation................................................................................16
Item 12 Security Ownership of Certain Beneficial Owners and Management........................................16
Item 13 Certain Relationships and Related Transactions........................................................16
Item 14 Principal Accounting Fees and Services................................................................16
PART IV
Item 15 Exhibits, Financial Statement Schedules, and Reports on Form 8-K......................................17
SIGNATURES ......................................................................................................19
This Annual Report on Form 10-K is for the year ended December 31, 2004.
This Annual Report modifies and supersedes documents filed prior to the filing
of this Annual Report. The Securities and Exchange Commission (the "SEC") allows
us to "incorporate by reference" information that we file with them, which means
that we can disclose important information to limited partners by referring them
directly to those documents. Information incorporated by reference is considered
to be part of this Annual Report. In addition, information that we file with the
SEC in the future will automatically update and supersede information contained
in this Annual Report. Certain information contained in this Annual Report
contains "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. All statements, other than statements
of historical facts, included in this Annual Report that address activities,
events or developments that we or the General Partner expects, believes or
anticipates will or may occur in the future are forward-looking statements.
These forward-looking statements are based upon certain assumptions and are
subject to risks and uncertainties. Actual events or results may differ from
those discussed in the forward-looking statements as a result of various
factors.
PART I
ITEM 1 BUSINESS
GENERAL DEVELOPMENT OF BUSINESS
American Cable TV Investors 5, Ltd. ("ACT 5" or the "Partnership") is a
Colorado limited partnership that was formed in December of 1986 for the purpose
of acquiring, developing and operating cable television systems. The
Partnership's general partner is IR-TCI Partners V, L.P. ("IR-TCI" or the
"General Partner"), a Colorado limited partnership. The general partner of
IR-TCI is TCI Ventures Five, Inc. ("TCIV 5"), a subsidiary of TCI Cablevision
Associates, Inc. ("Cablevision"). Cablevision is an indirect subsidiary of
Comcast Cable Holdings, LLC (formerly AT&T Broadband, LLC) ("Comcast Cable
Holdings"), and is the managing agent of the Partnership. Comcast Cable Holdings
is an indirect subsidiary of Comcast Corporation ("Comcast").
In its public offering that was conducted from May of 1987 to February of
1989, the Partnership sold 200,005 limited partnership units at a price of $500
per unit ("Unit").
On December 7, 1999, the Partnership consummated the sale of its remaining
cable television system serving subscribers located in and around Riverside,
California (the "Riverside System") to Century Exchange LLC ("Century"), a
subsidiary of Adelphia Communications Corporation, for an adjusted sales price
of $33,399,000 (the "Riverside Sale"). The Riverside Sale was approved by the
Limited Partners at a special meeting that occurred on December 11, 1998. In
connection with the Riverside Sale, Century and the Partnership waived the
condition to closing that all required consents be obtained prior to closing the
Riverside Sale, as such condition related to the transfer to Century of the
franchise agreement between the Partnership and the City of Moreno Valley. The
franchise agreement authorizes the Partnership to provide cable television
service to subscribers located in and around Moreno Valley, California (the
"Moreno Franchise Agreement"). Accordingly, all of the Riverside System's cable
television assets other than the Moreno Franchise Agreement were transferred to
Century on December 7, 1999. In connection with the Riverside Sale, the
Partnership entered into a management agreement with Century pursuant to which
Century would be entitled to all net cash flows generated by the portion of the
Riverside System that was subject to the Moreno Franchise Agreement until such
time as the City of Moreno Valley approved the transfer of the Moreno Franchise
Agreement from the Partnership to Century. On February 13, 2001, the City of
Moreno Valley passed a resolution indicating that the Partnership, by entering
into the management agreement, in effect, transferred the franchise without city
approval, thereby causing a material default under the franchise agreement. On
December 18, 2001, the City of Moreno Valley approved the transfer of the Moreno
Valley Franchise Agreement to Century. The settlement and transfer required a
payment of $500,000 from Century to the City of Moreno Valley and releases the
Partnership from any liability.
On December 7, 1999, Comcast Cable Holdings and Century contributed cable
television systems to a joint venture (the "Joint Venture") that combined
multiple cable television systems in Southern California. The Riverside System
was among those systems that was contributed to the Joint Venture by Century.
Comcast Cable Holdings, through certain of its subsidiaries, owns a 100%
ownership interest in IR-TCI.
As a result of the Riverside Sale, the Partnership is no longer actively
engaged in the cable television business. A final determination of the
Partnership's liabilities and any liquidating distributions cannot be made in
connection with the Partnership's dissolution until the contingencies described
in Note 5 to the accompanying financial statements are resolved. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
FINANCIAL INFORMATION ABOUT INDUSTRY SEGMENTS
Not applicable.
NARRATIVE DESCRIPTION OF BUSINESS
Not meaningful.
FINANCIAL INFORMATION ABOUT FOREIGN AND DOMESTIC OPERATIONS AND EXPORT SALES
Not applicable.
1
ITEM 2 PROPERTIES
Not meaningful.
ITEM 3 LEGAL PROCEEDINGS
City Partnership Co. on behalf of itself and all others similarly situated
and derivatively on behalf of American Cable TV Investors 5, Ltd. ("ACT 5"), a
Colorado limited partnership, plaintiff v. IR-TCI Partners V, L.P., TCI Ventures
Five, Inc., Tele-Communications, Inc., Lehman Brothers, Inc. and Jack Langer,
Defendants, and American Cable TV Investors 5, Ltd., a Colorado limited
partnership, nominal defendants: On November 2, 1999 this action was filed in
the United States District Court for the District of Colorado, Civil Action No.
99-N-2122. The Partnership was served in this action on December 6, 1999. This
purported class action and derivative action asserts claims against the
defendants for violations of Sections 14(a) and 20(a) of the Securities Exchange
Act of 1934 and breach of fiduciary duty in connection with the sale of the
Riverside System to Century Exchange LLC. Also, named as a defendant is Lehman
Brothers, Inc. ("Lehman") which provided to ACT 5 a fairness opinion relative to
the Riverside Sale. On February 10, 2000, the Defendants filed motions to
dismiss Plaintiff's complaint. On September 29, 2000, the Court dismissed the
Plaintiff's complaint for failing to plead the Federal Securities Act claim
properly. On October 13, 2000, the Plaintiff served an amended complaint to the
Defendants and on November 13, 2000, Defendants filed motions to dismiss the
amended complaint. On May 18, 2001, the Court denied the Defendant's motion to
dismiss the complaint.
Section 21 of the Partnership Agreement provides that the General Partner
and its affiliates, subject to certain conditions set forth in more detail in
the Partnership Agreement, are entitled to be indemnified for any liability or
loss incurred by them by reason of any act performed or omitted to be performed
by them in connection with the business of ACT 5, provided that the General
Partner determines, in good faith, that such course of conduct was in the best
interests of ACT 5 and did not constitute proven fraud, negligence, breach of
fiduciary duty or misconduct. The engagement agreement between ACT 5 and Lehman
provides that, subject to certain conditions set forth in more detail in the
engagement agreement, Lehman is entitled to be indemnified for any liability or
loss, and to be reimbursed by ACT 5 for legal expenses incurred as a result of
its rendering of services in connection with the fairness opinion. The General
Partner and its affiliates and Lehman each have submitted a demand for
indemnification. Consequently, legal fees of $945,000, $130,000 and $1,131,000
for the years ended December 31, 2004, 2003 and 2002, respectively, incurred by
the defendants with respect to the above lawsuit have been reflected in "General
and Administrative Expenses" in the accompanying statements of operations.
In March 2004, plaintiff agreed in principle to a settlement of all claims
against all defendants (other than Lehman) for $3,750,000, plus the defendants'
waiver of their claims against ACT 5 for reimbursement of their legal expenses.
Through the settlement date, the three TCI Defendants incurred approximately
$1.4 million in attorneys' fees and other costs. As a result of the settlement,
the amounts incurred by the settling defendants have been treated as a capital
contribution as of May 19, 2004, decreasing amounts due to affiliates.
Under the settlement agreement, plaintiff could continue to pursue its
claims against Lehman, which would continue to receive reimbursement of its
legal fees and costs from ACT 5. Plaintiff would be limited in collecting on any
judgment against Lehman to an amount of not more than: (a) $3,750,000, plus (b)
the total amount previously or hereafter paid to Lehman by ACT 5 as
reimbursement for Lehman's legal fees and costs. Further, plaintiff could not
collect on any judgment against Lehman unless the Court specifically determined
that, as to the amount to be collected: (a) Lehman's liability resulted directly
from Lehman's gross negligence, bad faith and/or willful misconduct, or (b)
Lehman otherwise is not entitled to indemnification or reimbursement under its
engagement agreement with ACT 5 or under applicable law.
On May 19, 2004, the Court entered an order approving the proposed
settlement.
On June 28, 2004, the Court awarded plaintiff's counsel $1,012,500 in
attorneys' fees, in addition to its earlier award of $271,603 in costs, which
amounts reduced the $3,750,000 settlement sum to be paid by the settling
defendants, thereby diminishing the recovery by certain Limited Partners.
Plaintiff thereafter continued to pursue its separate claims against
Lehman. Under the settlement agreement as approved by the Court, as well as
Lehman's engagement agreement with ACT 5, ACT 5 continued to be responsible to
reimburse Lehman for its legal fees and costs incurred in the defense of the
litigation. From the inception of the lawsuit through December 31, 2004, ACT 5
has incurred legal fees related to Lehman totaling approximately $1.3 million.
The trial of plaintiff's claims against Lehman was held in September 2004.
On October 27, 2004 the Court issued its judgment in favor of Lehman and
dismissed
2
plaintiff's claims against Lehman. The Court also ordered that plaintiff pay
Lehman its court costs in an amount to be later determined by the Court.
On November 24, 2004, Plaintiff filed a notice of appeal of the judgment in
favor of Lehman to the Court. On December 16, 2004, Plaintiff and Lehman filed a
stipulated withdrawal of the appeal after Lehman and ACT 5 agreed not to pursue
a claim against the Plaintiff for costs awarded to Lehman in the judgment. Also
on December 16, 2004, the Court granted the motion and dismissed Plaintiff's
appeal.
Under the above described settlement agreement and Lehman's engagement
agreement with ACT 5, ACT 5 has incurred obligations to reimburse Lehman for its
trial related attorneys' fees. While there may be additional obligations
incurred for work accomplished in the litigation by Lehman's counsel, such
amounts are not expected to be significant as the case has been dismissed and
there is no further appeal.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5 MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
In its public offering that was conducted from May 1987 to February 1989,
the Partnership sold 200,005 Units to the public at a price of $500 per Unit. At
December 31, 2004, there were approximately 11,217 Unit holders.
Although the Units are freely transferable, no public trading market for
the Units exists. To the extent that an informal or secondary market exists, the
Limited Partners may only be able to sell Units at a substantial discount from
the Units' proportionate share of the estimated market value of the underlying
net assets of the Partnership.
3
ITEM 6 SELECTED FINANCIAL DATA
Selected financial data related to the Partnership's financial condition
and results of operations for the five years ended December 31, 2004 are
summarized as follows (such information should be read in conjunction with the
Partnership's financial statements included in Item 8 in this Form 10-K):
Summary Balance Sheet Data:
December 31,
------------------------------------------------------------------
2004 2003 2002 2001 2000
------------- ---------- ----------- ----------- -----------
Amounts in thousands
Cash and cash equivalents.......................... $9,300 $9,184 $9,792 $9,481 $9,240
Total assets....................................... 9,794 9,678 10,286 9,975 9,795
Partners' equity................................... 7,897 7,466 7,721 9,080 9,295
Units outstanding.................................. 200 200 200 200 200
Summary Statement of Operations Data:
Years Ended December 31,
------------------------------------------------------------------
2004 2003 2002 2001 2000
------------- ---------- ----------- ----------- -----------
Amounts in thousands, except per Unit amounts
Net earnings (loss)................................ $(967) $(255) $(1,359) $(215) $1,000
Net earnings (loss) per limited partnership unit... (4.79) (1.26) (6.73) (1.06) 4.95
Distributions per limited partnership unit......... 203
4
ITEM 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Overview
The Partnership has sold all of its cable television assets. As a result,
the Partnership is no longer actively engaged in the cable television business.
A final determination of the Partnership's liabilities and any liquidating
distributions cannot be made in connection with the Partnership's dissolution
until the contingencies described in Note 5 to the accompanying financial
statements are resolved. See "Liquidity and Capital Resources."
Results of Operations
Pending the resolution of the contingencies described in Note 5 to the
accompanying financial statements, the Partnership will seek to make a final
determination of its liabilities so that liquidating distributions can be made
in connection with its dissolution. Accordingly, the Partnership's results of
operations for the years ended December 31, 2004 and 2003 are primarily
comprised of general and administrative ("G&A") expenses and interest income.
The Partnership's G&A expenses are primarily comprised of costs associated with
the administration of the Partnership. The Partnership's G&A expenses increased
$724,000 during the year ended December 31, 2004, as compared to the
corresponding prior year period. Such increase is primarily due to an increase
in legal activity and related fees for the 2004 trial.
Interest income relates to interest earned on the Partnership's cash and
cash equivalents. Interest income increased $12,000 and decreased $63,000 during
the years ended December 31, 2004 and 2003, respectively, as compared to the
corresponding prior year periods. Such increase in 2004 and decrease in 2003 is
due to an improvement and decline, respectively, in interest rates during each
year.
Liquidity and Capital Resources
At December 31, 2004, the Partnership held cash and cash equivalents of
$9,300,000. The Partnership anticipates that it will make liquidating
distributions in connection with its dissolution as soon as possible following
the final determination and satisfaction of the Partnership's liabilities. See
Note 5 to the accompanying financial statements.
Pursuant to the asset purchase agreement for the sale of the Southern
Tennessee System, $494,000 of the sales price for the Southern Tennessee System
was placed in escrow (the "Southern Tennessee Escrow") and was subject to
indemnifiable claims for up to one year following consummation of the sale of
the Southern Tennessee System. Prior to its release, Rifkin Acquisition
Partners, L.L.L.P. ("Rifkin"), the buyer of the Southern Tennessee System, filed
a claim against the Southern Tennessee Escrow. Rifkin's claim related to a class
action lawsuit filed by a customer challenging late fee charges with respect to
the Southern Tennessee System. On September 14, 1999, Rifkin sold the Southern
Tennessee System to an affiliate of Charter Communications, Inc. ("Charter"). In
connection with such sale, Charter was assigned the rights to the
indemnification claim. The above described class action lawsuit has been settled
and dismissed. The amount of the Southern Tennessee Escrow due to Charter as a
result of the terms of the settlement agreement has not yet been determined.
Upon determination of amounts due Charter, the remaining funds in the Southern
Tennessee Escrow will be released to ACT 5. Accrued interest of approximately
$121,000 has not yet been recognized by ACT 5 pending final resolution of the
claims against the escrow account.
Section 21 of the Partnership Agreement provides that the General Partner
and its affiliates, subject to certain conditions set forth in more detail in
the Partnership Agreement, are entitled to be indemnified for any liability or
loss incurred by them by reason of any act performed or omitted to be performed
by them in connection with the business of ACT 5, provided that the General
Partner determines, in good faith, that such course of conduct was in the best
interests of ACT 5 and did not constitute proven fraud, negligence, breach of
fiduciary duty or misconduct. In this regard, it is anticipated that legal fees
incurred by the defendants with respect to the contingencies described in Note 5
will be paid by ACT 5. As of December 31, 2004, the partnership has recognized
an amount payable to the General Partner of approximately $840,000 to cover out
of pocket costs incurred to defend this lawsuit.
The claim against the Southern Tennessee Escrow and the above described
lawsuit have had and will continue to have the effect of delaying any final
liquidating distributions of the Partnership.
At December 31, 2004, the Partnership had approximately $440,000 of
unclaimed distribution checks payable to certain Limited Partners which were
written on a bank account that has been closed. Such checks will either be
reissued to such Limited Partners or released to the respective state of such
Limited Partners' last known residence upon dissolution of the Partnership.
5
ITEM 8 FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Partners of
American Cable TV Investors 5, Ltd.
We have audited the accompanying balance sheet of American Cable TV Investors 5,
Ltd. (a Colorado Limited Partnership) (the "Partnership") as of December 31,
2004 and 2003, and the related statements of operations, partners' equity and
cash flows for each of the three years in the period ended December 31, 2004.
These financial statements are the responsibility of the Partnership's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. The Partnership is not required to
have, nor were we engaged to perform, an audit of its internal control over
financial reporting. Our audit included consideration of internal control over
financial reporting as a basis for designing audit procedures that are
appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Partnership's internal control over
financial reporting. Accordingly, we express no such opinion. An audit also
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements present fairly, in all material
respects, the financial position of the Partnership as of December 31, 2004 and
2003, and the results of its operations and its cash flows for each of the three
years in the period ended December 31, 2004, in conformity with accounting
principles generally accepted in the United States of America.
As described in Note 3, the Partnership is no longer actively engaged in the
cable television business. A final determination of the Partnership's
liabilities and any liquidating distribution cannot be made in connection with
the Partnership's dissolution until the contingencies described in Note 5 are
resolved.
Philadelphia, Pennsylvania
March 23, 2005
6
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
BALANCE SHEET
December 31, December 31,
2004 2003
------------------- -----------------
(Amounts in thousands)
Assets
Cash and cash equivalents............................................ $9,300 $9,184
Funds held in escrow................................................. 494 494
------------------- -----------------
$9,794 $9,678
=================== =================
Liabilities and Partners' equity
Unclaimed limited partner distribution checks........................ $440 $440
Amounts due to related parties....................................... 1,457 1,772
------------------- -----------------
Total liabilities........................................... 1,897 2,212
------------------- -----------------
Contingencies (Note 5)
Partners' equity (deficit):
General partner................................................. (1,839) (3,227)
Limited partners................................................ 9,736 10,693
------------------- -----------------
Total partners' equity...................................... 7,897 7,466
------------------- -----------------
$9,794 $9,678
=================== =================
See accompanying notes to financial statements.
7
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
STATEMENT OF OPERATIONS
Year Ended December 31,
2004 2003 2002
-------------- --------------- --------------
(Amounts in thousands, except unit amounts)
General and administrative expenses................................... $(1,084) $(360) $(1,527)
Interest income....................................................... 117 105 168
-------------- --------------- --------------
Net loss......................................................... $(967) $(255) $(1,359)
============== =============== ==============
Allocation of Net Loss:
General Partner................................................. (10) (3) (13)
============== =============== ==============
Limited Partners................................................ (957) (252) (1,346)
============== =============== ==============
Net loss per limited partnership unit ("Unit")........................ $(4.79) $(1.26) $(6.73)
============== =============== ==============
Limited partnership units outstanding................................. 200,005 200,005 200,005
============== =============== ==============
See accompanying notes to financial statements.
8
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
STATEMENT OF CASH FLOWS
Year Ended December 31,
2004 2003 2002
-------------- -------------- --------------
(amounts in thousands)
Cash flows from operating activities:
Net loss........................................................... $(967) $(255) $(1,359)
Adjustments to reconcile net loss to net cash (used in)
provided by operating activities:
Changes in operating assets and liabilities:
Net change in unclaimed limited partner distribution
checks and amounts due to related parties............. 1,083 (353) 1,670
-------------- -------------- --------------
Net cash (used in) provided by operating activities....... 116 (608) 311
Cash and cash equivalents:
Beginning of period....................................... 9,184 9,792 9,481
-------------- -------------- --------------
End of period............................................. $9,300 $9,184 $9,792
============== ============== ==============
See accompanying notes to financial statements.
9
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
STATEMENT OF PARTNERS' EQUITY
General Limited
Partner Partners Total
-------------- -------------- --------------
(amounts in thousands)
Balance at January 1, 2002........................................... ($3,211) $12,291 $9,080
Net loss........................................................ (13) (1,346) (1,359)
-------------- -------------- --------------
Balance at December 31, 2002......................................... (3,224) 10,945 7,721
Net loss........................................................ (3) (252) (255)
-------------- -------------- --------------
Balance at December 31, 2003......................................... ($3,227) $10,693 $7,466
Net loss........................................................ (10) (957) (967)
Capital contribution from the General Partner................... 1,398 - 1,398
-------------- -------------- --------------
Balance at December 31, 2004......................................... ($1,839) $9,736 $7,897
============== ============== ==============
See accompanying notes to financial statements.
10
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002
1. ORGANIZATION
American Cable TV Investors 5, Ltd. ("ACT 5" or the "Partnership") is a
Colorado limited partnership that was formed in December of 1986 for the
purpose of acquiring, developing, and operating cable television systems.
The partnership currently has no operations and is expected to be dissolved
when the remaining litigation against it is concluded (See Note 5).
The Partnership's general partner is IR-TCI Partners V, L.P. ("IR-TCI" or
the "General Partner"), a Colorado limited partnership. The general partner
of IR-TCI is TCI Ventures Five, Inc. ("TCIV 5"), a subsidiary of TCI
Cablevision Associates, Inc. ("Cablevision"). Cablevision is an indirect
subsidiary of Comcast Cable Holdings, LLC ("Comcast Cable Holdings"), and
is the managing agent of the partnership. Comcast Cable Holdings is an
indirect subsidiary of Comcast Corporation ("Comcast").
As further described in Note 3, the Partnership has sold all of its cable
television assets.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Allocation of Net Earnings and Net Losses
Net earnings and net losses are allocated 99% to ACT 5's limited partners
("Limited Partners") and 1% to the General Partner and distributions of
Cash from Operations, Sales or Refinancings (all as defined in the
Partnership's limited partnership agreement) are distributed 99% to the
Limited Partners and 1% to the General Partner until cumulative
distributions to the Limited Partners equal the Limited Partners' aggregate
contributions ("Payback"), plus 6% per annum. After the Limited Partners
have received distributions equal to Payback plus 6% per annum, the
allocations of net earnings, net losses and credits, and distributions of
Cash from Operations, Sales or Refinancings shall be 25% to the General
Partner and 75% to the Limited Partners. Although ACT 5's distributions of
proceeds from the sales of its cable television systems allowed Limited
Partners to achieve Payback, distributions did not allow Limited Partners
to achieve a 6% return on their aggregate contributions; therefore, amounts
will continue to be allocated 99% to the Limited Partners and 1% to the
General Partner.
Cash and Cash Equivalents
Cash and cash equivalents consist of investments which are readily
convertible into cash and have maturities of three months or less at the
time of acquisition.
At December 31, 2004 and 2003, $8,925,000 and $8,810,000 of the
Partnership's cash and cash equivalents were invested in money market
funds, respectively. The Partnership is exposed to credit loss in the event
of non-performance by the other parties to such financial instruments.
However, the Partnership does not anticipate non-performance by the other
parties.
Net Earnings (Loss) Per Unit
Net earnings (loss) per Unit is calculated by dividing net earnings (loss)
attributable to the Limited Partners by the number of Units outstanding
during the period. The number of Units outstanding for each of the years in
the three-year period ended December 31, 2004 was 200,005.
11
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002 (Continued)
Income Taxes
No provision has been made for income tax expense or benefit in the
accompanying financial statements as the earnings or losses of the
Partnership are reported in the respective income tax returns of the
partners.
Estimates
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities at the date of the financial statements
and the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
3. ASSET SALES
On December 7, 1999, the Partnership consummated the sale of its remaining
cable television system serving subscribers located in and around
Riverside, California (the "Riverside System") to Century Exchange LLC
("Century"), a subsidiary of Adelphia Communications Corporation, for an
adjusted sale price of $33,399,000 (the "Riverside Sale"). The Riverside
Sale was approved by the Limited Partners at a special meeting that
occurred on December 11, 1998. In accordance with the terms of the asset
purchase agreement relating to the Riverside Sale, $1,500,000 of the sales
price was placed in escrow for 180 days in order to satisfy any
indemnifiable claims which could be made by Century. On June 5, 2000, the
funds held in escrow were released to ACT 5. ACT 5 received interest of
$39,000 in conjunction with the release of the funds held in escrow. In
connection with the Riverside Sale, Century and the Partnership waived the
condition to closing that all required consents be obtained prior to
closing the Riverside Sale, as such condition related to the transfer to
Century of the franchise agreement between the Partnership and the City of
Moreno Valley. The franchise agreement authorizes the Partnership to
provide cable television service to subscribers located in and around
Moreno Valley, California (the "Moreno Franchise Agreement"). Accordingly,
all of the Riverside System's cable television assets other than the Moreno
Franchise Agreement were transferred to Century on December 7, 1999. In
connection with the Riverside Sale, the Partnership entered into a
management agreement with Century pursuant to which Century would be
entitled to all net cash flows generated by the portion of the Riverside
System that was subject to the Moreno Franchise Agreement until such time
as the City of Moreno Valley approved the transfer of the Moreno Franchise
Agreement from the Partnership to Century. On February 13, 2001, the City
of Moreno Valley passed a resolution indicating that the Partnership, by
entering into the management agreement, in effect, transferred the
franchise without city approval, thereby causing a material default under
the franchise agreement. On December 18, 2001, the City of Moreno Valley
approved the transfer of the Moreno Valley Franchise Agreement to Century.
The settlement and transfer required a payment of $500,000 from Century and
releases the Partnership from any liability.
As a result of the Riverside Sale, the Partnership is no longer actively
engaged in the cable television business. A final determination of the
Partnership's liabilities and any liquidating distributions cannot be made
in connection with the Partnership's dissolution until the contingencies
described in Note 5 are resolved.
4. TRANSACTIONS WITH RELATED PARTIES
The Partnership has a management agreement with an affiliate of Comcast
Cable Holdings whereby this affiliate is responsible for performing all
services necessary for the management of the Partnership. The Partnership
is charged a management fee related to these services. During the years
ended December 31, 2004, 2003 and 2002, general and administrative expenses
in the Partnership's statement of operations includes $36,000, $36,000 and
$36,000, respectively, related to this agreement.
Amounts due to related parties, which represent non-interest-bearing
payables to Comcast Cable Holdings and its affiliates, consist of the net
effect of cash advances and certain intercompany expense charges.
5. CONTINGENCIES
On November 2, 1999, a limited partner of ACT 5 filed suit in United States
District Court for the District of Colorado against the General Partner
(and certain affiliates of the General Partner) of ACT 5. The lawsuit
alleges that the defendants violated disclosure requirements under the
Securities Exchange Act of 1934 in connection with
12
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002 (Continued)
soliciting limited partner approval of the sale of the Partnership's cable
television system located in and around Riverside, California and that
certain defendants breached their fiduciary duty in connection with the
Riverside Sale. Also named as a defendant is Lehman Brothers Inc.
("Lehman"), which provided to ACT 5 a fairness opinion relative to the
Riverside Sale.
Section 21 of the Partnership Agreement provides that the General Partner
and its affiliates, subject to certain conditions set forth in more detail
in the Partnership Agreement, are entitled to be indemnified for any
liability or loss incurred by them by reason of any act performed or
omitted to be performed by them in connection with the business of ACT 5,
provided that the General Partner determines, in good faith, that such
course of conduct was in the best interests of ACT 5 and did not constitute
proven fraud, negligence, breach of fiduciary duty or misconduct. The
engagement agreement between ACT 5 and Lehman provides that, subject to
certain conditions set forth in more detail in the engagement agreement,
Lehman is entitled to be indemnified for any liability or loss, and to be
reimbursed by ACT 5 for legal fees and costs incurred as a result of its
rendering of services in connection with the fairness opinion. The General
Partner and its affiliates and Lehman each submitted a demand for
indemnification. Consequently, legal fees and costs incurred by the
defendants with respect to the above lawsuit have been reflected in general
and administrative expenses in the accompanying statements of operations in
the period that such legal fees were incurred by the defendants. For the
years ended December 31, 2004, 2003 and 2002, legal fees and costs related
to the above lawsuit of $945,000, $130,000 and $1,131,000, respectively,
have been so included in general and administrative expenses.
In March 2004, plaintiff agreed in principle to a settlement of all claims
against all defendants (other than Lehman) for $3,750,000, plus the
defendants' waiver of their claims against ACT 5 for reimbursement of their
legal expenses. Through the settlement date, the three TCI Defendants
incurred approximately $1.4 million in attorneys' fees and other costs. As
a result of the settlement, the amounts incurred by the settling defendants
have been treated as a capital contribution as of May 19, 2004, decreasing
amounts due to affiliates. This transaction is considered a non-cash
financing activity in the accompanying statement of cash flows as of
December 31, 2004.
Under the settlement agreement, plaintiff could continue to pursue its
claims against Lehman, which would continue to receive reimbursement of its
legal fees and costs from ACT 5. Plaintiff would be limited in collecting
on any judgment against Lehman to an amount of not more than: (a)
$3,750,000, plus (b) the total amount previously or hereafter paid to
Lehman by ACT 5 as reimbursement for Lehman's legal fees and costs.
Further, plaintiff could not collect on any judgment against Lehman unless
the Court specifically determined that, as to the amount to be collected:
(a) Lehman's liability resulted directly from Lehman's gross negligence,
bad faith and/or willful misconduct, or (b) Lehman otherwise is not
entitled to indemnification or reimbursement under its engagement agreement
with ACT 5 or under applicable law.
On May 19, 2004, the Court entered an order approving the proposed
settlement.
On June 28, 2004, the Court awarded plaintiff's counsel $1,012,500 in
attorneys' fees, in addition to its earlier award of $271,603 in costs,
which amounts reduced the $3,750,000 settlement sum to be paid by the
settling defendants, thereby diminishing the recovery by [certain] Limited
Partners.
Plaintiff thereafter continued to pursue its separate claims against
Lehman. Under the settlement agreement as approved by the Court, as well as
Lehman's engagement agreement with ACT 5, ACT 5 continued to be responsible
to reimburse Lehman for its legal fees and costs incurred in the defense of
the litigation. From the inception of the lawsuit through December 31,
2004, ACT 5 has incurred legal fees related to Lehman totaling
approximately $1.3 million.
The trial of plaintiff's claims against Lehman was held in September 2004.
On October 27, 2004 the Court issued its judgment in favor of Lehman and
dismissed plaintiff's claims against Lehman. The Court also ordered that
plaintiff pay Lehman its court costs in an amount to be later determined by
the Court.
13
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002 (Concluded)
On November 24, 2004, Plaintiff filed a notice of appeal of the judgment in
favor of Lehman to the Court. On December 16, 2004, Plaintiff and Lehman
filed a stipulated withdrawal of the appeal after Lehman and ACT 5 agreed
not to pursue a claim against the Plaintiff for costs awarded to Lehman in
the judgment. Also on December 16, 2004, the Court granted the motion and
dismissed Plaintiff's appeal.
Under the above described settlement agreement and Lehman's engagement
agreement with ACT 5, ACT 5 has incurred obligations to reimburse Lehman
for its trial related attorneys' fees. While there may be additional
obligations incurred for work accomplished in the litigation by Lehman's
counsel, the case has been dismissed and there is no further appeal.
On April 1, 1997, the Partnership sold its cable television system located
in and around Shelbyville and Manchester, Tennessee (the "Southern
Tennessee System") to Rifkin Acquisition Partners, L.L.L.P. ("Rifkin").
Pursuant to the asset purchase agreement, $494,000 of the sales price was
placed in escrow (the "Southern Tennessee Escrow") and was subject to
indemnifiable claims by Rifkin through March 31, 1998. Prior to March 31,
1998, Rifkin filed a claim against the Southern Tennessee Escrow relating
to a class action lawsuit filed by a customer challenging late fee charges
with respect to the Southern Tennessee System. On September 14, 1999,
Rifkin sold the Southern Tennessee System to an affiliate of Charter
Communications, Inc. ("Charter"). In connection with such sale, Charter was
assigned the rights of the indemnification claim. The class action lawsuit
has been settled and dismissed. The amount of the Southern Tennessee Escrow
due Charter as a result of terms of the settlement agreement has not yet
been determined. Upon determination of amounts due Charter, the remaining
funds in the Southern Tennessee Escrow will be released to ACT 5. Accrued
interest of $121,000 has not yet been recognized by ACT 5 pending final
resolution of the claims against the escrow account.
The claim in the litigation against Lehman and the claim against the
Southern Tennessee Escrow have had and will continue to have the effect of
delaying any final liquidating distributions of the Partnership.
6. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
First Second Third Fourth Total
Quarter Quarter Quarter Quarter Year
--------- --------- --------- --------- ---------
(Net loss in thousands)
2004
Net (loss) income.......................................... $(54) $(375) $(158) $(380) $(967)
Net (loss) income per limited partnership unit............. (.27) (1.86) (.78) (1.88) (4.79)
Limited partnership units outstanding...................... 200,005 200,005 200,005 200,005 200,005
2003
Net loss................................................... $(28) $(88) $(56) $(83) $(255)
Net loss per limited partnership unit...................... (.14) (.44) (.28) (.40) (1.26)
Limited partnership units outstanding...................... 200,005 200,005 200,005 200,005 200,005
14
ITEM 9 CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 9A CONTROLS AND PROCEDURES
Our chief executive officer and our co-chief financial officers, after
evaluating the effectiveness of our disclosure controls and procedures (as
defined in the Securities Exchange Act of 1934 Rules 13a-15(e) or
15d-15(e)) as of the end of the period covered by this report, have
concluded, based on the evaluation of these controls and procedures
required by paragraph (b) of Exchange Act Rules 13a-15 or 15d-15, that our
disclosure controls and procedures were effective.
Changes in internal control over financial reporting. There were no changes
in our internal control over financial reporting identified in connection
with the evaluation required by paragraph (d) of Exchange Act Rules 13a-15
or 15d-15 that occurred during our last fiscal quarter that have materially
affected, or is reasonably likely to materially affect, our internal
control over financial reporting.
PART III
ITEM 10 DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
As the Partnership has no directors or officers of its own, all of the
Partnership's major decisions are made by IR-TCI whose general partner is TCIV
5.
The Partnership has entered into a management agreement with an affiliate
of Comcast Cable Holdings, pursuant to which this affiliate is responsible for
managing the day-to-day operations of the Partnership.
As of December 31, 2004, the following executive officers and directors of
TCIV 5 operate IR-TCI:
Name Position
Brian L. Roberts............................ Brian L. Roberts was named Chairman of the General Partner's
Board of Directors in November 2002. Mr. Roberts has served as
the President and as a Director of Comcast for more than five
years. As of December 31, 2003, Mr. Roberts has sole voting
power over approximately 33 1/3% of the combined voting power of
Comcast Corporation's two classes of voting common stock. Mr.
Roberts is the Chief Executive Officer of the General Partner
and of Comcast. He is also a Director of the Bank of New York.
He is 45 years old.
Lawrence S. Smith(1)........................ Lawrence S. Smith was named Executive Vice President and a
director of the General Partner in November 2002. Mr. Smith has
served as an Executive Vice President of Comcast for more than
five years. Mr. Smith is the Co-Chief Financial Officer of the
General Partner and of Comcast. He is 57 years old.
John R. Alchin.............................. John R. Alchin was named Executive Vice President and Treasurer
of the General Partner in November 2002. Mr. Alchin was named an
Executive Vice President of Comcast in January 2000. Prior to
that time, he served as a Senior Vice President and Treasurer of
Comcast for more than five years. Mr. Alchin is the Co-Chief
Financial Officer of the General Partner and of Comcast. He is
56 years old.
David L. Cohen(1)........................... David L. Cohen joined Comcast in July 2002 as Executive Vice
President. Prior to that time, he was Partner in, and Chairman
of, the law firm of Ballard Spahr Andrews & Ingersoll, LLP for
more than
15
five years. Mr. Cohen is a director of the General Partner.
He is 49 years old.
Arthur R. Block(1).......................... Arthur R. Block was named a director of the General Partner's
Board of Directors in November 2002. Mr. Block has served as a
Senior Vice President and General Counsel for Comcast since
January 2000. Prior to January 2000, Mr. Block served as Vice
President and Senior Deputy General Counsel of Comcast for more
than five years. Mr. Block also was named Secretary of Comcast
Corporation in November 2002. He is 50 years old.
Lawrence J. Salva........................... Lawrence J. Salva was named Controller of Comcast in November
2002. Mr. Salva joined Comcast in January 2000 as Senior Vice
President and Chief Accounting Officer. Prior to that time, Mr.
Salva was a national accounting consulting partner in the public
accounting firm of PricewaterhouseCoopers for more than five
years. Mr. Salva is a Senior Vice President and Principal
Accounting Officer of the General Partner. He is 48 years old.
(1) Directors of TCIV 5 serve until their successors are appointed and
qualified.
ITEM 11 EXECUTIVE COMPENSATION
The Partnership pays no direct compensation to the individuals named above,
but instead pays for their services through management and other fees paid to an
affiliate of Comcast Cable Holdings. See "Certain Relationships and Related
Transactions" below.
ITEM 12 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
No General or Limited Partner of the Partnership owns more than 5% of the
Units.
ITEM 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Under a management agreement with an affiliate of Comcast Cable Holdings,
this affiliate is reimbursed for direct out-of-pocket and indirect expenses
allocable to the Partnership, and for certain personnel employed on a full- or
part-time basis to perform accounting, marketing, technical, or other services.
Such reimbursements aggregated $36,000 in 2004.
At December 31, 2004, the Partnership owed $1,457,000 to Comcast
Corporation and its affiliates. Such amounts are non-interest-bearing and
consist of the net effect of cash advances and certain intercompany expense
allocations.
ITEM 14 PRINCIPAL ACCOUNTING FEES AND SERVICES
Audit Fees
The aggregate fees billed by Deloitte & Touche LLP for professional
services rendered for the audit of our annual financial statements for the
fiscal years ended December 31, 2004 and 2003 and for the reviews of the
financial statements included in our Quarterly Reports on Form 10-Q for 2004 and
2003 totaled $20,000 and $20,000, respectively.
Audit-Related and All Other Fees
There were no other audit-related fees or other services rendered by our
principal accountant during the fiscal years ended December 31, 2004 and 2003.
16
The Partnership itself has no Board of Directors or Audit Committee. The
Audit Committee of the sole indirect shareholder of the General Partner, Comcast
Corporation, pre-approves all audit and non-audit services provided by its
independent auditors prior to the engagement of the independent auditors with
respect to such services including the audit fees of the Partnership.
PART IV
ITEM 15 EXHIBITS, FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES AND
REPORTS ON FORM 8-K
(a) Financial Statements
Included in Part II of this Report:
Page
Report of Independent Registered Public Accounting Firm...........................6
Balance Sheets, December 31, 2004 and 2003........................................7
Statements of Operations, Years ended December 31, 2004,
2003 and 2002...................................................................8
Statements of Cash Flows, Years ended December 31, 2004,
2003 and 2002...................................................................9
Statements of Partners' Equity, Years ended December 31,
2004, 2003 and 2002............................................................10
Notes to Financial Statements, December 31, 2004, 2003 and
2002...........................................................................11
(b) (i) Financial Statement Schedules
All schedules are omitted as they are not required or are not
applicable.
(c) Reports on Form 8K:
None.
(d) Exhibits
The following exhibits are incorporated by reference herein (according
to the number assigned to them in Item 601 of Regulation S-K), as noted:
3 Articles of Incorporation and Bylaws:
Limited Partnership Agreement, incorporated by reference to
Exhibit A to Prospectus filed pursuant to Rule 424(b) as part
of Registration Statement 33-12064.
Limited Partnership Agreement of General Partner, incorporated
by reference to the Partnership's Annual Report on Form 10-K
for the year ended December 31, 1987 (Commission File Number
0-16784).
10 Material Contracts:
Management Agreement between Cablevision and the Partnership,
incorporated by reference to the Partnership's Annual Report
on Form 10-K for the year ended December 31, 1987 (Commission
File Number 0-16784).
Acquisition and Disposition Services Agreement between
Cablevision and the Partnership, incorporated by reference to
the Partnership's Annual Report on Form 10-K for the year
ended December 31, 1987 (Commission File Number 0-16784).
17
Consulting Agreement, re: the Partnership between Cablevision
and Presidio, incorporated by reference to the Partnership's
Annual Report on Form 10-K for the year ended December 31,
1987 (Commission File Number 0-16784).
Asset Purchase Agreement by and between American Cable TV
Investors 5, Ltd. and Gans Multimedia Partnership dated as of
November 27, 1996, incorporated by reference to the
Partnership's Current Report on Form 8-K filed February 11,
1997.
Asset Purchase Agreement by and between American Cable TV
Investors 5, Ltd. and Rifkin Acquisition Partners, L.L.L.P.
dated as of November 29, 1996, incorporated by reference to
the Partnership's Current Report on Form 8-K filed February
11, 1997.
Asset Purchase Agreement by and between American Cable TV
Investors 5, Ltd. and Mediacom LLC dated as of December 24,
1996, incorporated by reference to the Partnership's Current
Report on Form 8-K filed February 11, 1997.
Asset Purchase Agreement by and between American Cable TV
Investors 5, Ltd. and Century Communications Corp. dated as of
August 12, 1998, incorporated by reference to the
Partnership's Current Report on Form 8-K filed August 27,
1998.
First Amendment, dated as of November 11, 1998, to Asset
Purchase Agreement dated as of August 12, 1998, by and among
American Cable TV Investors 5, Ltd. and Century Communications
Corp., incorporated by reference to the Partnership's Annual
Report on Form 10-K for the year ended December 31, 1998
(Commission File Number 0-16784).
Waiver and Indemnification Agreement by and between American
Cable TV Investors 5, Ltd. and Adelphia Communications
Corporation dated December 7, 1999.
18
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN CABLE TV INVESTORS 5, LTD.
(A Colorado Limited Partnership)
BY: IR-TCI PARTNERS V, L.P.,
-------------------------------------
Its General Partner
BY: TCI VENTURES FIVE, INC.
-------------------------------------
A General Partner
By: /s/ Brian L. Roberts
-------------------------------------
Brian L. Roberts
Dated: March 31, 2005 Chairman
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
By: /s/ Brian L. Roberts
------------------------------------
Brian L. Roberts
Chairman
TCI Ventures Five, Inc.
Dated: March 31, 2005 (Principal Executive Officer)
By: /s/ Lawrence S. Smith
------------------------------------
Lawrence S. Smith
Executive Vice President; Director
TCI Ventures Five, Inc.
Dated: March 31, 2005 (Co-Principal Financial Officer)
By: /s/ John R. Alchin
------------------------------------
John R. Alchin
Executive Vice President; Treasurer
TCI Ventures Five, Inc.
Dated: March 31, 2005 (Co-Principal Financial Officer)
By: /s/ David L. Cohen
------------------------------------
David L. Cohen
Executive Vice President; Director
Dated: March 31, 2005 TCI Ventures Five, Inc.
By: /s/ Arthur R. Block
------------------------------------
Arthur R. Block
Senior Vice President; Secretary;
Director
Dated: March 31, 2005 TCI Ventures Five, Inc.
By: /s/ Lawrence J. Salva
------------------------------------
Lawrence J. Salva
Senior Vice President
TCI Ventures Five, Inc.
Dated: March 31, 2005 (Principal Accounting Officer)
19