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Exhibit 2.14(g)(2)
FIRST AMENDMENT TO
AGREEMENT REGARDING CLOSING MATTERS
This First Amendment to Agreement Regarding Closing Matters
("Amendment") is entered into among Charter Communications, Inc., on behalf of
the Charter Entities, and AT&T Broadband, LLC, on behalf of the AT&T Entities,
as of June 30, 2001.
RECITALS
The parties have previously entered into an Agreement
Regarding Closing Matters (the "Agreement") as of February 26, 2001. The parties
are entering into this Amendment in order to amend certain provisions of the
Agreement.
AGREEMENT
For valuable consideration, the parties agree as follows:
1. Definitions. Capitalized terms used but not defined in this Amendment will
have the meanings ascribed to them in the Agreement.
2. Amendment of Sections 5 - 11 of Agreement. Sections 5 through 11 of the
Agreement are hereby deleted and replaced in their entirety by the
following provisions:
"5. Timing of Transactions.
(a) The closing under each of the Acquisition Agreements will
occur June 30, 2001. Except as provided in Section 6 below, the parties
will make all payments required to be made at closing under each
Acquisition Agreement to the Escrow Agent described in the Escrow
Agreement attached to this Amendment as Exhibit 1.
(b) The closing of the transactions contemplated by the
Florida Agreement (the "Florida Closing") and the St. Louis Closing
will occur simultaneously, on June 30, 2001.
6. Qualified Intermediary.
(a) The parties to the St. Louis Agreement agree that TCI
Cable Partners of St. Louis, L.P., a Colorado limited partnership
("TCI-St. Louis") shall assign (a "Deferred Assignment") its rights to
all of the Assets (as defined in the St. Louis Agreement) located in
the Service Areas described in Exhibit 2 to this Amendment (the
"Deferred Sale Communities") and] its rights to receive the portion of
the St. Louis Purchase Price allocable thereto (the "Deferred Amount")
to a "qualified intermediary" as defined in Treasury Regulations
Section 1.1031(k)-1(g)(4) (an "AT&T Qualified Intermediary") engaged by
the AT&T Entities to satisfy the deferred like-
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kind exchange provisions of Section 1031 of the Code (the "Deferred
Exchange Provisions"). TCI St. Louis has provided the Charter Entities
with a copy of such assignment. This Amendment constitutes written
instructions to the Charter Entities that the Deferred Amount should be
paid directly to the AT&T Qualified Intermediary described on Exhibit 3
to this Amendment at the time of the closing pursuant to the St. Louis
Agreement ("St. Louis Closing") pursuant to the written wire transfer
instructions for such AT&T Qualified Intermediary set forth on Exhibit
3. The foregoing assignment shall not (i) limit or abrogate in any
respect the obligations of TCI-St. Louis pursuant to the St. Louis
Agreement; (ii) impair the Charter Entities' rights and remedies under
the St. Louis Agreement (including the Charter Entities' rights to
indemnification and to the assurances provided by TCI-St. Louis'
representations and warranties); (iii) increase the Charter Entities'
obligations or liability under the St. Louis Agreement or result in any
additional cost, expense or liability to the Charter Entities; (iv)
require the Charter Entities to take title to any property other than
the Assets (as defined in the St. Louis Agreement). TCI St. Louis
hereby agrees to indemnify, defend and hold the Charter Entities
harmless, without limitation, from and against any and all Losses (as
defined in the St. Louis Agreement) threatened against, suffered or
incurred by the Charter Entities by reason of any such cooperation
and/or TCI-St. Louis' attempt at exchange treatment.
(b) The Charter Entities shall have no liability or
obligations to any AT&T Entity or any third-party arising from any
amounts wired to an AT&T Qualified Intermediary pursuant to this
Section 6, provided that the Charter Entities comply with the written
instructions of the AT&T Entities provided pursuant to Section 6(a).
7. Identification of Deferred Assets.
The Charter Entities and the AT&T Entities will negotiate in
good faith to (i) reach agreement as to assets (the "Deferred Assets")
with an aggregate value of at least $180 million owned by a Charter
Entity or any affiliate(s) thereof ("Charter Seller") to correspond to
the St. Louis Assets sold by TCI St. Louis pursuant to the St. Louis
Agreement for purposes of the Deferred Exchange Provisions and (ii)
enter into an asset purchase agreement covering such Deferred Assets
(the "Deferred Agreement") within 60 days after the St. Louis Closing
(which the parties expect shall be substantially in the form of the
Florida Agreement). The parties expect that the Deferred Agreement will
provide that the parties thereto will use commercially reasonable
efforts to consummate the transactions contemplated by such agreement
within 180 days after the St. Louis Closing (provided the Deferred
Agreement is executed within 50 days following the St. Louis Closing).
If the parties enter into the Deferred Agreement, such Deferred
Agreement shall provide that Charter Seller may assign its right
pursuant to the Deferred Agreement to receive the purchase price to be
paid by TCI-St. Louis pursuant to the Deferred Agreement (the "Deferred
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Purchase Price") to a "qualified intermediary" as defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (a "Charter Qualified
Intermediary") engaged by Charter Seller to satisfy the Deferred
Exchange Provisions. If, after negotiations, the parties are unable to
reach agreement, in their sole respective discretion, with respect to
all aspects of the Deferred Agreement, then the parties shall have no
further obligations pursuant to this Section 7. The Charter Entities
shall have no liability if the exchange of the Deferred Assets for the
assets described in Section 6(a) does not qualify as a tax-deferred
exchange under the Deferred Exchange Provisions.
8. St. Louis and Florida Closings.
In connection with the St. Louis Closing and the Florida
Closing, (i) the cash consideration that the AT&T Entities are entitled
to receive and that Charter Communications Entertainment I, LLC
("CCEI") is obligated to pay as the purchase price (as preliminarily
adjusted as of the St. Louis Closing, the "St. Louis Purchase Price")
for the assets to be transferred under the St. Louis Agreement (the
"St. Louis Assets"), will be reduced (such reduction to come from the
portion of the St. Louis Purchase Price allocable to TCI Missouri) by
the amount of the purchase price (as preliminarily adjusted as of the
Florida Closing, the "Florida Purchase Price") TCI Missouri is
obligated to pay for the assets to be transferred under the Florida
Agreement (the "Florida Assets") and TCI Missouri will not be obligated
to pay the Florida Purchase Price. All subsequent adjustments with
respect to the purchase price for the Florida Assets and the St. Louis
Assets shall be paid in cash by the appropriate Charter Entities or
AT&T Entities pursuant to the terms of the St. Louis Agreement and the
Florida Agreement.
9. Section 1031 Intent and Mechanics with respect to Florida and St.
Louis. The exchanges of assets pursuant to Section 8 are intended to
qualify, to the extent reasonably possible as a tax free exchange of
like-kind assets under Section 1031 of the Code (the "Exchanges"). The
AT&T Entities and the Charter Entities agree to use all reasonable
efforts to structure the Exchanges in such a way that to the extent
reasonably possible it will be a tax free exchange of like-kind assets
under Section 1031 of the Code.
(a) Method of Exchange. The Exchanges described in Section 8
are to occur as follows: (i) the AT&T tangible personal property and
the Charter tangible personal property are being exchanged each for the
other; (ii) AT&T's Real Property (as defined in the St. Louis
Agreement) owned by TCI Missouri and Charter's Real Property (as
defined in the Florida Agreement) are being exchanged each for the
other; and (iii) AT&T's Contracts, Franchises, Licenses and Intangibles
(each as defined in the St. Louis Agreement) owned by TCI Missouri and
Charter's Contracts, Franchises, Licenses and Intangibles (each as
defined in the Florida Agreement) are being exchanged each for the
other. In each case, the assets described in this Section 9(a) shall be
exchanged each for the other in
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"Exchange Groups" as defined under Treasury Regulations Sections
1.1031(a)-2 and 1.1031(j)-1, and in each case to the maximum extent
permitted by Section 1031 of the Code and the regulations promulgated
thereunder. Liabilities assumed or taken subject to by each party are
being exchanged each for the other to the maximum extent permitted
under Section 1031 of the Code and regulations thereunder.
(b) Calculation of Gross Values. For the purposes of this
Agreement, the gross value of AT&T's Assets (as defined in the St.
Louis Agreement) comprising the Systems (as defined in the St. Louis
Agreement) which are being transferred by TCI Missouri is $238,155,604,
as adjusted pursuant to the St. Louis Agreement and the gross value of
FCM's Assets (as defined in the Florida Agreement) comprising the
Systems (as defined in the Florida Agreement) which are being
transferred to TCI Missouri is $27,042,000, as adjusted pursuant to the
Florida Agreement.
(c) Allocation of Value. Following each of the St. Louis
Closing and the Florida Closing, the Parties shall use reasonable good
faith efforts to agree on the value to be allocated to the tangible
personal property and real property included in the Assets pursuant to
Treasury Regulations relating to like-kind exchanges of multiple assets
under Section 1031 of the Code. In the event the Parties fail, within
90 days after such Closing, to reach agreement on the allocation of
value, then the Parties shall hire an appraiser (the "Appraiser") to
prepare with respect to this Agreement, not later than 120 days after
such Closing, a written report regarding the value to be allocated to
the tangible personal property and real property included in the Assets
pursuant to Treasury Regulations relating to like-kind exchanges of
multiple assets under Section 1031 of the Code. The fees of the
Appraiser will be split equally between the Parties. The Parties agree
that for purposes of Sections 1031 and 1060 of the Code and the
regulations thereunder, each will report the transactions contemplated
by this Agreement in accordance with the values determined by this
Section 9(c). Each party promptly will give the other notice of any
disallowance or challenge of asset values by the Internal Revenue
Service or any state or local tax authority.
10. [Intentionally omitted]
11. [Intentionally omitted]"
3. Miscellaneous. This Amendment supersedes any inconsistent provisions
contained in the Agreement. Except as amended hereby, the Agreement
remains in full force and effect. This Amendment will be governed by,
and construed in accordance with, the laws of the State of Delaware,
without regard to principles of conflicts of law. This Amendment may be
executed in one or more counterparts, each of which will be deemed an
original and all of which will constitute one and the same instrument.
This Amendment has been negotiated by the parties hereto and their
respective legal counsel, and legal or equitable principles that might
require the construction of this Amendment
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or any provision of this Amendment against the party drafting this
Amendment will not apply in its construction or interpretation.
[SIGNATURE PAGE FOLLOWS]
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The parties are signing this First Amendment to Agreement
Regarding Closing Matters as of the date first written above.
AT&T BROADBAND, LLC
ON BEHALF OF THE AT&T ENTITIES
By: /s/ Xxxxxxx Xx Xxxxxx
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Name: Xxxxxxx Xx Xxxxxx
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Title: Vice President
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CHARTER COMMUNICATIONS, INC.
ON BEHALF OF THE CHARTER ENTITIES
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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