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EXHIBIT 10.1
ENSTAR COMMUNICATIONS CORPORATION
12444 Powerscourt Drive - Suite 100
St. Louis, Missouri 63131
September 29, 2000
VIA ELECTRONIC MAIL
Multimedia Acquisition Corp.
1059 East 10th Street
Hazleton, Pennsylvania 18201-3421
Attention: Terrence J. Herron, Vice President
Re: Enstar Communications Corporation
Ladies and Gentlemen:
Reference is hereby made to that certain Asset Purchase Agreement by
and among Multimedia Acquisition Corp. ("Buyer"), and Enstar Income Program
1984-1, L.P., Enstar Income Program IV-3, L.P., Enstar Income/Growth Program
Six-A, L.P., Enstar VII, Enstar VIII and Enstar X, Ltd. (collectively,
"Sellers," and each individually, a "Seller"), dated as of June 21, 2000 (the
"Purchase Agreement"). Capitalized terms used and not otherwise defined herein
shall have the meanings given to them in the Purchase Agreement.
For and in consideration of the mutual covenants set forth in the
Purchase Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Buyer and Sellers agree as
follows:
1. The Purchase Agreement is hereby deemed amended and
supplemented as follows:
(a) (i) In the event that Sellers enter into the Settlement
Agreement (as defined herein), whether before or after
the Closing, Buyer expressly agrees that it shall be
bound by the terms of, and shall fully perform the
obligations set forth in, Sections 8.1 through 8.3 of the
Settlement Agreement, insofar as such terms and
obligations relate to the Systems acquired by Buyer under
the Purchase Agreement. The Purchase Price payable to
each Seller shall be reduced, pursuant to Section 3.3(b)
of the Purchase Agreement or thereafter, by the amount of
(A) $20.00 for each claim made under the Settlement
Agreement with respect to any of such Seller's Systems by
a claimant that is a then-current customer of any such
Systems, and (B) $9.95 for each claim made under the
Settlement Agreement with respect to any of such Seller's
Systems by a claimant that is a former customer of any
such Systems; each of which claims shall have been made
in accordance with the terms of the Settlement Agreement
and shall be evidenced by documentation demonstrating, to
Sellers' reasonable satisfaction, Buyer's satisfaction of
such
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claim. Buyer agrees to indemnify and hold harmless Sellers and
their Affiliates from and against any and all claims, costs and
expenses based on or arising out of Buyer's failure to fully comply
with and perform the obligations set forth in Sections 8.1 through
8.3 of the Settlement Agreement insofar as related to the Systems
acquired by Buyer under the Purchase Agreement; provided that Buyer
shall have no obligation to indemnify Seller with respect to any
claim by any former customer under Section 8.1.2 of the Settlement
Agreement that shall be paid by Seller or any Affiliate (or any
third party hired by Charter to administer the distribution of
benefits) directly to such former customer. It is expressly agreed
and understood that Buyer is not assuming and shall not be bound by
any term or provision of the Settlement Agreement other than as
expressly set forth herein.
(ii) For purposes hereof, the "Settlement Agreement" means the
Global Class Action Settlement Agreement (and any other settlement
agreement, as the case may be) pursuant to the class action lawsuit
titled Unfried, et al. v. Charter Communications Holding Company,
LLC, et al., Civil Action No. 99-L-48, Third Judicial Circuit,
Madison County, Illinois, and related litigation, substantially in
the form of the draft Global Class Action Settlement Agreement with
respect to such lawsuit dated July 28, 2000.
(b) From the date hereof through the date that is one (1) year
following the Closing, without Buyer's consent, neither Sellers,
Charter nor any of Charter's subsidiaries will solicit the
employment of persons who were employees of the Systems as of the
date of the Purchase Agreement or who become employees of the
Systems prior to Closing, other than (i) any such employee who does
not accept Buyer's offer of employment; and (ii) any Transferred
Employee whose employment is terminated by Buyer following the
Closing.
2. Section 4.12 of the Purchase Agreement is hereby deemed amended by
adding the following phrase following the words "Section 4.8(b)": "and
except as set forth in Schedule 4.12," and Schedule 4.12, which is
attached hereto, is hereby deemed incorporated into the Purchase
Agreement and made a Schedule thereto for all purposes.
3. Except as expressly set forth herein, the Purchase Agreement shall
remain in full force and effect.
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Please indicate your acceptance of the foregoing terms by signing this
letter in the space provided below and returning it to the undersigned.
Very truly yours,
ENSTAR INCOME PROGRAM 1984-1, L.P.
ENSTAR INCOME PROGRAM IV-3, L.P.
ENSTAR INCOME/GROWTH PROGRAM SIX-A, L.P.
ENSTAR VII
ENSTAR VIII
ENSTAR X, LTD.
By: Enstar Communications Corporation,
General Partner
By: /s/ Ralph G. Kelly
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Ralph G. Kelly
Senior Vice President - Treasurer
ACCEPTED AND AGREED TO:
MULTIMEDIA ACQUISITIONS CORP.
By: /s/ Terrence J. Herron
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Name: Terrence J. Herron
Title: Vice President
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Schedule 4.12
Litigation - All Sellers
Sellers are defendants in a class action lawsuit titled Unfried, et al. v.
Charter Communications Holding Company, LLC, et al., Civil Action No. 99-L-48,
in the Third Judicial Circuit, Madison County, Illinois, involving customer late
fees assessed by Sellers. Sellers anticipate that the case will be settled
pursuant to a "Global Class Action Settlement Agreement," currently being
negotiated, by which each Seller and its respective successors and assigns would
be bound.
