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EXHIBIT 10.16
AGREEMENT WITH RESPECT TO FRANCHISE
FEES AND REIMBURSABLE FEES
This Agreement entered by and between the City of Taylorville, an
Illinois Municipal Corporation (the "City") and Enstar Income
Program II - 2 L.P. and Enstar Communications Corporation, collectively
referred to as ("Enstar") as of the lst day of June, 1995.
Section 1: Recital.
WHEREAS, the City and Enstar have agreed on the terms and conditions
of a Franchise Agreement whereby the City of Taylorville grants a franchise to
Enstar for the operation of a cable television business within the corporate
limits of the City of Taylorville; and,
WHEREAS, the City and Enstar have agreed to certain financial
arrangements in connection with the granting of said Franchise to Enstar; and,
WHEREAS, the City and Enstar have agreed that such arrangements should
be expressed in an agreement separate and apart from the Franchise Agreement;
and,
WHEREAS, Enstar and the City agree that the City has incurred fees and
expenses in the consideration of the granting of an additional Franchise to
Winsome Cable Corporation ("Winsome"); and,
WHEREAS, the parties hereto acknowledge that Winsome and Enstar have
entered into identical agreements entitled "Fee Reimbursement Agreement"
whereby Winsome and Enstar agree to reimburse the City for fees incurred out of
the ordinary course of the conduct of the City's affairs in the consideration,
negotiation, granting and other activities relating to a cable television
franchise within the corporate limits of the City of Taylorville; and,
WHEREAS, the parties acknowledge that Winsome has not been granted a
Franchise to conduct, instruct, own, maintain, and operate a cable television
system within the corporate limits of the City of Taylorville for reasons
unrelated to the granting of the Franchise to Enstar; and,
WHEREAS, the parties have agreed to a method of reimbursement of all
fees incurred by the City as a result of all activities pertaining to the
consideration of granting of cable television franchises to Winsome and Enstar;
and,
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WHEREAS, the City has agreed to take certain actions in connection
with the Fee Reimbursement Agreement of Winsome to permit Enstar to recover
fees reimbursed to the City pursuant to this Agreement for which Enstar is not
liable; and,
WHEREAS, the City and Enstar have agreed on the payment of certain
franchise fees to the City for the period commencing on January 1, 1995 through
and including the last day of the calendar month immediately proceeding the
execution of this Agreement by the parties.
Section 2: Agreement to Reimburse Fee. On or before July 30, 1995,
Enstar hereby agrees to reimburse the City the sum of $31,500.00 for legal fees
incurred and paid or to be paid to special counsel for the City for all
activities in connection with the consideration, negotiation, drafting, and
adoption of any and all proceedings pertaining to statutory activities required
prior to the granting of an additional franchise, the granting of a Franchise
to winsome and the granting of a Franchise to Enstar and any and all other
activities undertaken in connection therewith. Said reimbursement by Enstar
shall constitute full, final and complete consideration and discharge of all of
its obligations pursuant to a Fee Reimbursement Agreement previously entered
into BY Enstar. Enstar shall not be permitted to hereafter charge its
customers any increased fee or fees which relates to assumption of or an
attempt to collect all or any portion of said amount paid to the City pursuant
to this Section 2.
Section 3: Assignment of Agreement by Winsome. In consideration for
the reimbursement of fees by Enstar for those sums incurred and paid or to be
paid by the City for any and all activities pertaining to the granting of an
additional cable television franchise to Winsome, the City hereby agrees to
assign all of its right, title and interest, duties, obligations and privileges
in a certain Fee Reimbursement Agreement entered into by and between the City
and Winsome to Enstar to have and to hold without recourse to the City with
respect to any matter 6r thing except as otherwise provided herein. Such
assignment shall specify the amount due by Winsome to the City per said Fee
Reimbursement Agreement.
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Section 4: The City hereby agrees to execute an assignment of the
Contract to permit Enstar to obtain collection from Winsome of those sums
determined by said special counsel to be a liability of winsome pursuant to the
Fee Reimbursement Agreement. Notwithstanding the foregoing sentence, the
obligation of elected and appointed officers, employees or agents of the City
shall not include participation, as a party, in any lawsuit or other legal
action commenced, filed, initiated or other-wise brought against winsome for
the collection of such fees; provided however, the City officials, if
necessary, will provide reasonable documents and will reasonably cooperate with
Enstar in their efforts to collect such fees.
Section 5: The City and Enstar acknowledge that from and including
January 1, 1995 through and including the last calendar day of the month
immediately preceding the date of execution of this contract by the parties,
Enstar has billed and collected franchise fees, as defined in the Cable
Ordinance of the City and the Franchise Agreement between the parties at a rate
equal to 3% of the gross revenues from the operation of the cable television
system in the City of Taylorville. As an additional inducement and additional
consideration to the City to enter into this Agreement and the Franchise
Agreement, Enstar hereby agrees to pay on or before July 31, 1995 an additional
sum equal to an additional 2% of the gross revenues during such period to the
City of Taylorville as franchise fees.
Section 6: Notwithstanding any other provision of the Cable Ordinance
or the Franchise Agreement, from and after July 1, 1995, Enstar shall
calculate, collect and pay over to the City of Taylorville franchise fees in
accordance with the Cable Television ordinance of the City and the Franchise
Agreement between the parties. Notwithstanding the Agreements set forth in
this section and the preceding section, nothing herein shall be deemed to be an
amendment or revision, by implication or otherwise, of the Cable Television
Ordinance of the City of Taylorville or the Franchise Agreement.
Section 7: Collection of Franchise Fees. Notwithstanding any other
provision of the Cable Television Ordinance or the Franchise Agreement, the
franchise fees provided for herein shall be collectable by Enstar for payment
to the City and remaining uncollected in any reasonable manner which Enstar, in
its sole discretion, deems fit.
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Section 8: Execution of Additional Documents. The City and Enstar
agree to execute any and all additional documents which may be necessary for
consummation of any and all of the transactions contemplated herein.
Section 9: Governing Law. This Agreement, and the transactions
contemplated herein, shall be deemed to be subject to and to be interpreted in
accordance with the laws of the State of Illinois specifically including, but
not limited to, all law of any kind, nature or character pertaining to the
rights and powers of a Non-Home Rule Unit of Government of the State of
Illinois.
Section 10: Miscellaneous.
A. This Agreement shall be construed and interpreted as a
contract made and entered into under the laws of the State of Illinois.
B. This Agreement shall be binding upon and shall inure to the
benefit of each of the parties hereto and their respective successors and
permitted assigns. Neither party shall be entitled to assign or transfer its
rights or delegate its duties under this Agreement, except as provided for
herein.
C. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by telephone facsimile, or three business days
after having been mailed by certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Enstar: Howard Gan
Falcon Cable TV
10900 Wilshire Boulevard, 15th Floor
Los Angeles, California 90024
(310) 824-9990
If to City: Mayor Adams or Successor
City of Taylorville
115 North Main Street
Taylorville, Illinois 62568
(217) 824-2101
or to such other address of which notice is given in the manner indicated
above.
D. Except as expressly set forth herein, each party shall bear
its own expenses (including without limitation, attorneys' fees and accounting
expenses) in connection with the
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transactions contemplated by this Agreement. In the event that the City is
required to undertake any collection action against Enstar for sums due and
payable pursuant to this Agreement, the City shall be entitled to reimbursement
of all reasonable fees and expenses incurred in connection therewith, including
reasonable attorneys' fees.
E. The Agreement and the other documents identified herein with
respect to the transactions contemplated hereby represent the complete
agreement of the parties hereto and shall supersede all previous and
contemporaneous negotiations, correspondence, commitments, agreements and
understandings of the parties with respect to the transactions contemplated
hereby.
F. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
G. Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
H. All representations, warranties, covenants, agreements and
indemnity obligations of Enstar and City contained herein or in any document,
statement, certificate or other instrument referred to herein or delivered at
the Closing in connection with the transactions contemplated hereby shall
survive the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
I. No amendment, waiver or modification of this Agreement shall
be effective unless it shall be in writing and signed by the party or parties
against which such amendment or waiver is to be enforced.
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J. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, but all of which together shall-
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures
as of the date hereinabove first written.
Enstar Income Program II - 2
L.P. By Enstar Communications
Corporation, its Authorized
Agent and Enstar Communications
Corporation ("Enstar")
______________________________________
By: Its Authorized Officer
______________________________________
City of Taylorville, an Illinois
Non-Home Rule Unit of Government
By: Dick Adams, Its Mayor
ATTEST:
_______________________________________
City Clerk
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