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Exhibit 2.14(e)(2)
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "AMENDMENT") is
made and entered into as of this 30th day of June, 2001, between Charter
Communications, Inc., a Delaware corporation ("CHARTER PARENT"), Interlink
Communications Partners, LLC, a Delaware limited liability company
("INTERLINK"), Charter Communications, LLC, a Delaware limited liability company
("CHARTER LLC") and Falcon Cable Media, a California Limited Partnership
("FCM"), on the one hand, and TCI Cable Partners of St. Louis, L.P. a Colorado
limited partnership ("TCI ST. LOUIS") and TCI Cablevision of Missouri, Inc. a
Missouri corporation ("TCI MISSOURI"), on the other.
RECITALS
A. Charter Parent, Interlink, Charter LLC, FCM, TCI St. Louis and TCI
Missouri entered into an Asset Purchase Agreement ("AGREEMENT") as of the 26th
day of February, 2001.
B. Pursuant to the Agreement, Interlink, Charter LLC and FCM had
proposed to sell to TCI St. Louis and TCI Missouri certain cable systems located
in Miami Beach, Florida, South Miami, Florida and Sebastian, Florida.
C. The parties to this Amendment wish to amend the Agreement, as more
fully set forth herein, to provide, among other things, that the Miami Beach and
South Miami systems shall not be transferred pursuant to the Agreement and that
the only systems to be transferred pursuant to the Agreement shall be the
Sebastian systems.
AGREEMENTS
In consideration of the above recitals and the mutual
agreements stated in this Amendment, the parties agree as follows:
1. Defined Terms. Capitalized terms used herein, but not
otherwise modified or defined herein, shall have the meanings
ascribed to such terms in the Agreement.
2. Parties to the Agreement. The Agreement is hereby amended to
provide that the sole parties to the Agreement shall be
Charter Parent, FCM and TCI Missouri. Charter LLC, Interlink
and TCI St. Louis are hereby released from all
representations, warranties, covenants, liabilities and
obligations pursuant to the Agreement. The term "SELLER" in
the Agreement shall mean only FCM. The term "BUYER" in the
Agreement shall mean only TCI Missouri.
3. Schedules. The Schedules to the Agreement are hereby amended
and restated in their entirety as set forth in the Schedules
attached to this Amendment.
4. Purchase Price. The "PURCHASE PRICE" in Section 3.1 of the
Agreement shall be "$27,042,000" (rather than "$249,000,000").
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5. Section 3.2.6. Section 3.2.6 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"3.2.6. The Purchase Price will be decreased by the dollar amount equal
to the product of (i) the Subscriber Shortfall multiplied by (ii)
$3,000. For purposes of this Agreement, the "SUBSCRIBER SHORTFALL"
equals the number, if any, by which the aggregate of the Equivalent
Basic Subscribers for the Systems, as of the Closing Time is less than
8,924."
6. Section 3.3.1. Section 3.3.1 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"3.3.1. Not later than a date Seller reasonably believes is at least
five Business Days prior to the Closing, Seller will deliver to Buyer a
report (the "Preliminary Adjustments Report"), showing in detail the
good faith preliminary determination of the adjustments referred to in
Section 3.2, which have been calculated as of the Closing Time (or as
of any other date and time agreed by the parties) and appropriate
documents substantiating the adjustments proposed in the Preliminary
Adjustments Report. Buyer will have three Business Days following
receipt of the Preliminary Adjustments Report to review such Report and
supporting information and to notify Seller of any disagreements of
Buyer with Seller's estimates. If Buyer provides a notice of
disagreement (the "Disagreement Notice") with Seller's estimates of the
adjustments referred to in Section 3.2 within such three Business Day
period, Buyer and Seller will negotiate in good faith to resolve any
such dispute and to reach an agreement prior to the Closing Date on
such estimated adjustments as of the Closing Time. The basis for
determining the Purchase Price to be paid at the Closing will be (a)
the estimate so agreed upon by Buyer and Seller, (b) if the parties do
not reach such an agreement on the estimated amount of the adjustments
set forth in the Preliminary Adjustments Report prior to the Closing
Date or if Buyer fails to provide a notice of disagreement with
Seller's estimates of such adjustments within the requisite time
provided, the estimates of such adjustments set forth in the
Preliminary Adjustments Report."
7. HSR Matters. As a result of the amendments to the Agreement
contemplated herein, including the reduction of the assets to
be transferred and the corresponding reduction of the purchase
price, the parties agree that no filing pursuant to the HSR
Act is required at this time with respect the transactions
contemplated by the Agreement, as amended. The parties agree
to withdraw the filings the parties made under the HSR Act on
May 8, 2001 (as supplemented on May 11, 2001) with respect to
the transactions contemplated by the Agreement prior to this
Amendment.
8. Section 6.11. The parties agree that there is no need to
update the amended and restated Schedules attached to this
Amendment and therefore Section 6.11 is hereby deleted from
the Agreement.
9. Section 7.2.5. The phrase "53,040 (fifty-three thousand and
forty) in Section 7.2.5 of the Agreement is hereby deleted and
replaced with "7,662 (seven thousand six hundred sixty-two)":
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10. Section 10.5. Section 10.5 of the Agreement is hereby amended
and restated in its entirety to read as follows:
"10.5. Limitations on Indemnification - Seller. Seller and Charter
Parent will not be liable, in the aggregate, for indemnification
arising under Section 10.2(a) for any Losses of or to Buyer or any
other person entitled to indemnification from Seller or Charter Parent
unless the amount of such Losses for which Seller and Charter Parent
would, but for the provisions of this Section 10.5, be liable exceeds,
on an aggregate basis, $136,000 (one hundred thirty six thousand) (the
"THRESHOLD AMOUNT") provided that in determining whether the Threshold
Amount has been exceeded, there will not be included any Losses arising
from any single claim that is less than $10,000. If the Threshold
Amount is exceeded, Seller and Charter Parent will be liable, jointly
and severally, for the full amount of all Losses (including any single
claims for Losses of less than $10,000), which amount will be due and
payable within 15 days after the later of (a) the date Seller receives
a statement therefor and (b) the date an Action with respect to such
Losses is settled or decided in accordance with Section 10.4. Neither
Seller nor Charter Parent will be liable for punitive damages assessed
for Buyer's conduct. The maximum aggregate amount that Seller and its
Affiliates (including Charter Parent) will be required to pay for
indemnification arising under Section 10.2(a) of this Agreement is
$2,700,000 (two million, seven hundred thousand dollars).
Notwithstanding the preceding, neither the minimum nor maximum limits
specified in this Section 10.5 will apply to: (i) the obligation to pay
post-Closing adjustments pursuant to Section 3.3; (ii) Seller's breach
of its representations and warranties that it has title to, and the
absence of Encumbrances (other than Permitted Encumbrances) on, the
Assets owned by Seller; or (iii) any indemnification claims pursuant to
Section 10.2(b) or 10.2(c), irrespective of whether such claims also
constitute claims under Section 10.2(a))."
11. Section 10.6. Section 10.6 of the Agreement is hereby amended
and restated in its entirety to read as follows:
"10.6. Limitations on Indemnification - Buyer. Buyer will not be liable
for indemnification arising under Section 10.3(a) for any Losses of or
to Seller or any other person entitled to indemnification from Buyer
unless the amount of such Losses for which Buyer would, but for the
provisions of this Section 10.6, be liable exceeds, on an aggregate
basis, the Threshold Amount, provided that in determining whether the
Threshold Amount has been exceeded, there will not be included any
Losses arising from any single claim that is less than $10,000 in the
aggregate. If the Threshold Amount is exceeded, Seller will be liable
for the full amount of all Losses (including any single claims for
Losses of less than $10,000), which amount will be due and payable
within 15 days after the later of (a) the date Buyer receives a
statement therefor and (b) the date an Action with respect to such
Losses is settled or decided in accordance with section 10.4. Buyer
will not be liable for punitive damages assessed for Seller's conduct.
The maximum aggregate amount that Buyer and its Affiliates will be
required to pay for
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indemnification arising under Section 10.3(a) of this Agreement in
respect of all claims by all indemnified parties is $2,700,000 (two
million, seven hundred thousand dollars). Notwithstanding the
preceding, neither the minimum nor maximum limits specified in this
Section 10.6 will apply to: (i) the obligation to pay the Purchase
Price, as adjusted; (ii) the obligation to pay post-Closing adjustments
pursuant to Section 3.3; (iii) Buyer's obligation to assume and perform
the Assumed Obligations and Liabilities; or (iv) any indemnification
claims pursuant to Section 10.3(b), 10.3(c) or 10.3(d), irrespective of
whether such claims also constitute claims under Section 10.3(a))."
12. Vehicle Title Certificates. Seller shall obtain and deliver to
Buyer promptly after closing the vehicle title certificates
and, if required, bills of sale, for the following vehicles
described in Exhibit A attached to this Amendment. In
addition, Seller will execute and deliver to Buyer, for no
additional consideration and at no additional cost to Buyer,
such certificates, bills of sale, or other documents as may be
reasonably necessary to give full effect to transfer of
vehicles required by the Agreement.
13. Copyright Filings. Seller hereby agrees to file, at its
expense, all Copyright Statements of Account with respect to
the Systems for the 2001/1 filing period as and when due under
applicable law.
14. Relationship to the Agreement. This Amendment supersedes any
inconsistent provisions contained in the Agreement. Except as
amended hereby, the Agreement remains in full force and
effect.
15. Opinions; Exhibits. The parties shall amend the Exhibits to
the Agreement as appropriate to reflect this Amendment.
16. Choice of Law. This Amendment and the rights of the parties
under it will be governed by and construed in all respects in
accordance with the laws of the state of Delaware, without
regard to the conflicts of laws rules of Delaware.
17. Counterparts. This Amendment may be executed in counterparts,
each of which will be deemed an original. This Amendment will
become binding when one or more counterparts, individually or
taken together, bear the signatures of all parties to this
Amendment. Delivery of an executed signature page of this
Amendment by facsimile transmission will constitute effective
and binding execution and delivery of this Amendment.
[SIGNATURE PAGE FOLLOWS]
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The parties have executed this Amendment as of the day and year first
above written.
CHARTER COMMUNICATIONS, INC.
By: /s/ Marcy Lifton
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Name: Marcy Lifton
Title: Vice President
INTERLINK COMMUNICATIONS PARTNERS, LLC
By: /s/ Marcy Lifton
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Name: Marcy Lifton
Title: Vice President
CHARTER COMMUNICATIONS, LLC
By: /s/ Marcy Lifton
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Name: Marcy Lifton
Title: Vice President
FALCON CABLE MEDIA, a California limited
partnership
By: Charter Communications VII, LLC,
as general partner
By: /s/ Marcy Lifton
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Name: Marcy Lifton
Title: Vice President
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TCI CABLEVISION OF MISSOURI, INC.
TCI CABLE PARTNERS OF ST. LOUIS, L.P.
By: Heritage Cablevision of
Massachusetts, Inc.
Its: General Partner
Each By: /s/ Alfredo Di Blasio
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Name: Alfredo Di Blasio
Title: Vice President
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EXHIBIT A
VEHICLE CERTIFICATES OF TITLE
1FTCR10U9MUD71814
1FTCR10U7MUD71815
2FTPF17L9YCA02580
2FTPF17L3YCA02686
1GDJR34K2KJ509877