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EXHIBIT 2.2
ENSTAR COMMUNICATIONS CORPORATION
September 10, 2001
Charter Communications Entertainment I, LLC
Interlink Communications Partners, LLC
Rifkin Acquisition Partners, LLC
12444 Powerscourt Drive - Suite 100
St. Louis, Missouri 63131
Re: Asset Purchase Agreement by and among Enstar Income Program
II-1, L.P., Enstar Income Program II-2, L.P., Enstar Income
Program IV-3, L.P., Enstar Income/Growth Program Six-A, L.P.,
Enstar Cable of Macoupin County and Enstar IV/PBD Systems
Venture, as Sellers, and Charter Communications Entertainment
I, LLC, Interlink Communications Partners, LLC and Rifkin
Acquisition Partners, LLC, as Buyer, dated as of August 29,
2001
Ladies and Gentlemen:
Reference is hereby made to that certain Asset Purchase Agreement by
and among Enstar Income Program II-1, L.P., Enstar Income Program II-2, L.P.,
Enstar Income Program IV-3, L.P., Enstar Income/Growth Program Six-A, L.P.,
Enstar Cable of Macoupin County and Enstar IV/PBD Systems Venture, as Sellers
(collectively, "Sellers"), and Charter Communications Entertainment I, LLC,
Interlink Communications Partners, LLC and Rifkin Acquisition Partners, LLC, as
Buyer (collectively, "Buyers"), dated as of August 29, 2001 (the "Purchase
Agreement"). Capitalized terms used and not otherwise defined in this letter
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, Sellers and Buyers agree that
the Purchase Agreement is hereby amended and supplemented as follows:
1. Clause (ii) of Section 3.3(a)(ii)(D) is hereby amended to
read: "(ii) $2,258 (such product, the "Franchise Purchase
Price")."
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2. Clause (i) of Section 6.9 is hereby amended by inserting the
term "SEC" between the word "the" and the parenthetical phrase
"(if applicable)" appearing therein.
3. The last sentences of Sections 9.3 and 9.4 are each hereby
amended by replacing "Sections 7.6(d), (f), (g) and (h)" with
"Sections 7.6(d), (e), (f) and (g)."
4. Section 10 is hereby amended by adding thereto the following
new Section 10.4:
"10.4 Survival of Representations and Warranties. None of the
representations and warranties of the parties contained in
this Agreement shall survive the Closing, other than the
representations and warranties of Sellers set forth in the
first three sentences of Section 4.2 and the representations
and warranties of Buyers set forth in the first two sentences
of Section 5.2
5. Clause (ii) of Section 11.1(e) is hereby amended to read:
"(ii) as of any date prior to the date of termination of the
Voting Period of any Limited Partnership or General Partner,
the Limited Partners holding fifty percent (50%) or more of
the interests of such Limited Partnership or General Partner,
as the case may be, shall have affirmatively disapproved the
transactions contemplated by this Agreement or approved any
Acquisition Proposal;"
6. The following subsection (f) is hereby added to Section 11.1:
"(f) By Sellers or Enstar, at any time prior to the Closing,
if any Seller or Enstar receives a proposal for an Acquisition
Proposal (i) that Enstar determines in its good faith judgment
is more favorable to the Limited Partners than is this
Agreement, and (ii) as a result of which Enstar determines in
good faith, based upon the advice of its counsel, that it is
obligated by its fiduciary obligations under applicable law to
terminate this Agreement."
7. Section 11.2(a) is hereby amended to read, in its entirety, as
follows:
"(a) Each Seller shall pay to the applicable Buyer a Breakup
Fee (as defined herein), in accordance with the terms of this
Section 11.2, in the event that either (i) this Agreement is
terminated pursuant to Section 11.1(f), or (ii) (A) this
Agreement is terminated by Buyers pursuant to Section 11.1(e),
and (B) as of the date of such termination, any Limited
Partnership's or General Partner's Limited Partners shall have
given their consent to an Acquisition Proposal submitted by a
third party; and, in the case of termination pursuant to
either clause (i) or (ii) hereof, Buyers shall have performed
and complied in all material respects with all covenants and
agreements required to be performed or complied with by them
under this Agreement during the period prior to the first to
occur of (x) the termination of this Agreement pursuant to
Section 11.1(f), (y) the date on which any Limited
Partnership's or General Partner's Limited Partners shall have
either disapproved the transactions contemplated by this
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Agreement or given their consent to an Acquisition Proposal
submitted by a third party, or (z) the first-occurring date of
termination of the Voting Period of any Limited Partnership or
General Partner during which the Limited Partner Consents for
such Limited Partnership or General Partner shall not have
been obtained. Sellers shall pay the Breakup Fee to Buyers by
wire transfer of immediately available funds or by certified
check (in accordance with Buyers' written instructions) within
five (5) business days following the date of termination
pursuant to Section 11.1(e) or (f). For purposes hereof, the
"Breakup Fee" with respect to any Seller means a pro rata
portion of the aggregate amount of $1,500,000, which shall be
determined by allocating the amount of $1,500,000 among
Sellers based on the allocation of the aggregate Purchase
Price among Sellers.
8. Schedule 1.1 is hereby amended by deleting the column bearing
the heading "Indemnity Fund."
9. It is hereby agreed that (i) where the Purchase Agreement
contains capitalized terms that are not defined therein
(including without limitation the terms "Business Day,"
"Franchise," "Franchise Area" and "Interest"), any such term
shall have the same meaning as if used with initial lowercase
letters, unless otherwise dictated by the context; (ii) where
the context so requires, the term "Buyer" or "Seller" shall
refer to the plural of such term; (iii) references to "Buyer"
or "Seller" are intended to refer to the applicable Buyer or
Seller, as required by the context; and (iv) "General
Partnership" means each of the Sellers that is identified in
the preamble hereto as a general partnership.
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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 COMMUNICATIONS CORPORATION
By:
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Ralph G. Kelly
Senior Vice President - Treasurer
As general partner of and on behalf of:
Enstar Income Program II-1, L.P.,
Enstar Income Program II-2, L.P.,
Enstar Income Program IV-3, L.P., itself and as general partner of Enstar IV/PBD
Systems Venture,
Enstar Income/Growth Program Six-A, L.P.,
Enstar Income Program IV-1, L.P., general partner of Enstar Cable of Macoupin
County and Enstar IV/PBD Systems Venture and
Enstar Income Program IV-1, L.P., general partner of Enstar Cable of Macoupin
County and Enstar IV/PBD Systems Venture
ACCEPTED AND AGREED TO:
Charter Communications Entertainment I, LLC
By:
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Name:
Title:
Interlink Communications Partners, LLC Rifkin Acquisition Partners, LLC
By: By:
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Name: Name:
Title: Title:
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cc: Kent D. Kalkwarf
Marcy A. Lifton, Esq.
Mike Talamantes
Randy Wells