EXHIBIT 10.3
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is made and entered into as
of the 30th day of September, 1998, by and among Falcon Communications, L.P.
("NewFalcon"), Enstar Communications Corporation ("Enstar") and Enstar Cable
Corporation ("Enstar Cable"). ENSTAR and Enstar Cable are collectively referred
to as the "Enstar Group".
A. NewFalcon is in the business of operating cable television systems
and is a party to various agreements with third parties with respect to cable
television programming, billing and other products and services.
B. Enstar manages various cable television systems (the "Systems")
owned and operated by certain partnerships of which Enstar is the general
partner (the "Affiliated Partnerships").
C. The Enstar Group previously had contracted with Falcon Holding
Group, Inc. ("FHGI") for the provision of certain services to the Enstar Group
pursuant to a Services Agreement dated as of October 1, 1988 (the "1988 Services
Agreement").
D. With the consent of the Enstar Group, FHGI previously assigned the
1988 Services Agreement and its rights and obligations thereunder to Falcon
Holding Group, L.P. ("FHGLP") on March 29, 1993.
E. Pursuant to a Contribution and Purchase Agreement dated as of
December 30, 1997, as amended (the "Contribution Agreement") among FHGLP,
NewFalcon, FHGI, TCI Falcon Holdings LLC ("TCI"), Belo Ventures, Inc. and the
other Persons signatory thereto, FHGLP on the date hereof assigned the 1988
Services Agreement to NewFalcon with the consent of the Enstar Group.
F. Following the assignment of the 1988 Services Agreement, NewFalcon
and the Enstar Group terminated the 1988 Services Agreement, and NewFalcon
desires to make available to the Enstar Group and to the Affiliated
Partnerships, certain third parties' services and products as agreed to by
NewFalcon and the Enstar Group, including without limitation, programming
services and cable billing services.
NOW, THEREFORE, it is agreed as follows:
1. Programming Services. Where the same would not violate any
franchise, license, contract, law or regulation applicable to the System or to
NewFalcon, NewFalcon hereby agrees to make available to the Enstar Group such
programming services which are utilized by the Enstar Group or any Affiliated
Partnership and for which NewFalcon has entered into or enters into a master
contract with such programming suppliers. The Enstar Group shall pay to
NewFalcon for each programming service utilized by the Enstar Group an amount
per subscriber
per month equal to such amount that the Enstar Group would be required to pay as
if they contracted directly with such programming supplier and the number of
subscribers covered by such contract was equal to the number of subscribers to
cable systems which are owned directly or managed by the Enstar Group. The
amount of any such programming charges shall be determined in good faith by
NewFalcon. The Enstar Group shall pay to NewFalcon such amounts per subscriber
per month on a monthly basis unless otherwise agreed to by the parties.
2. Billing Services. Where the same would not violate any
franchise, license, contract, law or regulation applicable to the Systems or to
NewFalcon, NewFalcon will make available to the Enstar Group third party billing
services for its cable system operations and the Enstar Group shall pay to
NewFalcon a monthly amount for such services utilized by the Enstar Group equal
to the amount they would have paid for such billing services if they had
contracted for such billing services directly with a third party and the only
cable systems covered by such contract were the systems owned or managed by the
Enstar Group.
3. Other Services. Where the same would not violate any
franchise, license, contract, law or regulation applicable to the Systems or to
NewFalcon, NewFalcon will make available such other third party services to the
Enstar Group, as from time to time agreed to by the parties, and the Enstar
Group shall pay NewFalcon an amount for such services identical to the amount
that the Enstar Group would have paid for such services as if they had directly
contracted with a third party.
4. Term. The term of this Agreement shall commence upon the
date first above written immediately following the assignment by NewFalcon of
substantially all of its assets to Falcon Cable Communications, LLC pursuant to
the Contribution Agreement, and shall continue until the earlier of: (1) the
dissolution of the Affiliated Partnerships; (2) the sale of all of the Systems
owned or managed by Enstar; (3) termination pursuant to Paragraph 5; (4) the
liquidation of NewFalcon in accordance with the provisions of its partnership
agreement; (5) the mutual agreement of the parties hereto; or (6) the delivery
of 180 days written notice by the Enstar Group to NewFalcon or NewFalcon to the
Enstar Group.
5. Events of Default. Each of the following events shall
constitute a default by NewFalcon under this Agreement and shall entitle Enstar
to terminate this Agreement upon written notice to NewFalcon, without any
further obligation or liability to NewFalcon (other than unpaid compensation and
expenses).
(a) The failure by NewFalcon to perform any material duty or
obligation imposed under this Agreement, should such failure continue for thirty
(30) days after written notice thereof to NewFalcon from Enstar;
(b) NewFalcon commences a voluntary case under the Federal
Bankruptcy Code, or consents to (or fails to controvert in a timely manner) the
commencement of an involuntary case against NewFalcon.
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(c) NewFalcon institutes proceedings for rehabilitation,
readjustment or composition (or for any related or similar purpose) under any
law (other than the Federal Bankruptcy Code) relating to financially distressed
debtors, their creditors or property, or consents to (or fails to controvert in
a timely manner) the institution of any such proceedings against NewFalcon;
(d) NewFalcon is unable or admits in writing its inability to
pay its debts generally as they come due, or makes an assignment for the benefit
of creditors or enters into any arrangement for the adjustment or composition of
debts or claims;
(e) A court or government having jurisdiction in the premises
enters a decree or order (i) for the appointment of a receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of NewFalcon or of
any substantial part of the property of NewFalcon, or for the winding-up or
liquidation of the affairs of NewFalcon, and such decree or orders remain in
force undischarged and unstayed for a period of thirty (30) days, or (ii) for
the sequestration or attachment of any substantial part of the property of
NewFalcon, without its unconditional return to the possession of NewFalcon, or
its unconditional release from such sequestration or attachment, within thirty
(30) days thereafter;
(f) A court having jurisdiction in the premises enters an
order for relief in an involuntary case commenced against NewFalcon under the
Federal Bankruptcy Code, and such order remains in force undischarged and
unstayed for a period of thirty (30) days;
(g) A court or government having jurisdiction in the premises
enters a decree or order approving or acknowledging as properly filed or
commenced against NewFalcon a petition or proceedings for liquidation,
rehabilitation, readjustment or composition (or for any related or similar
purpose) under any law (other than the Federal Bankruptcy Code) relating to
financially distressed debtors, their creditors or property, and any such decree
or order remains in force undischarged and unstayed for a period of thirty (30)
days; or
(h) NewFalcon takes any action for the purpose or with the
effect of authorizing, acknowledging or confirming the taking or existence of
any action or condition specified in paragraph (b), (c) or (d).
6. Prohibition of Assignment. This Agreement may not be
voluntarily assigned by any party hereto without the prior written consent of
the other party, except that NewFalcon can enter into agreements with affiliates
pursuant to which such affiliates will provide certain of the services to be
provided by NewFalcon hereunder. No assignment, and no such agreement with any
affiliate, however, shall relieve NewFalcon of any of its obligations or
liabilities under this Agreement. NewFalcon shall advise the Enstar Group of any
assignment of its rights and obligations under this Agreement, or any agreement
with any affiliate as aforesaid within five business days thereof.
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7. Successors and Assigns. Subject to Paragraph 6, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal representatives, successors and assigns.
8. Other Agreements. Notwithstanding any other provision of
this Agreement, this Agreement shall not modify or affect the obligations of the
Enstar Group pursuant to any partnership agreement or management agreement or
the limitations imposed upon amounts or rates that may be charged by any of them
to a partnership, under a partnership agreement or management agreement.
9. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the provision of such services to
the Enstar Group and the Affiliate Partnerships and supersedes all prior
agreements among the parties hereto and FHGI and FHGLP with respect to the
subject matter hereof, including the 1988 Services Agreement. This Agreement may
not be modified or amended except by a writing signed by the parties hereto.
10. Governing Law. This Agreement shall be governed,
construed, and enforced in accordance with the laws of the State of California.
11. Time. Time shall be of the essence with respect to this
Agreement.
12. Notice. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement (a) shall be in
writing, (b) may be sent by telecopy (with automatic machine confirmation),
delivered by personal delivery, or sent by commercial delivery service or
certified mail, return receipt requested, (c) shall be deemed to have been given
on the date of actual receipt, which may be conclusively evidenced by the date
set forth in the records of any commercial delivery service or on the return
receipt, and (d) shall be addressed to the recipient at the address specified
below, with respect to any party, to any other address that such party may from
time to time designate in a writing delivered in accordance with this Section
12.
If to the Enstar Group:
Enstar Communications Corporation
00000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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If to NewFalcon:
Falcon Communications, L. P.
00000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Services Agreement
as of the date first above written.
FALCON COMMUNICATIONS, L.P., a California
limited partnership
By: Falcon Holding Group, L.P., its
managing General Partner
By: Falcon Holding Group, Inc., its sole
General Partner
By: /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx
Executive Vice President
ENSTAR COMMUNICATIONS CORPORATION,
a Georgia corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Executive Vice President
ENSTAR CABLE CORPORATION,
a Georgia corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx
Executive Vice President
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