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EXHIBIT 2.11(a)
FIRST AMENDMENT TO
PURCHASE AND CONTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND CONTRIBUTION AGREEMENT (this
"Amendment") is made and entered into as of February 14, 2000 by and among BCI
(USA), LLC, a Delaware limited liability company (the "General Partner"),
Xxxxxxx X. Xxxxxxx ("WBresnan"), Blackstone BC Capital Partners L.P., a Delaware
limited partnership ("BBC"), Blackstone BC Offshore Capital Partners, L.P., a
Cayman Islands exempted limited partnership ("BBCO"), Blackstone Family Media
Partnership III L.P., a Delaware limited partnership (as assignee of Blackstone
Family Investment Partnership III L.P., "BFM"), TCID of Michigan, Inc., a Nevada
corporation ("TCID-MI") and TCI Bresnan LLC, a Delaware limited liability
company ("TCI LLC" and collectively with the General Partner, WBresnan, BBC,
BBCO, BFM, TCID-MI, are sometimes referred to herein as "Sellers"), and Charter
Communications Holding Company, LLC, a Delaware limited liability company
("Buyer").
RECITALS
As of June 29, 1999, the General Partner, WBresnan, BBC, BBCO,
Blackstone Family Investment Partnership III L.P. ("BFI"), TCID-MI, TCI LLC and
Buyer entered into a Purchase and Contribution Agreement (the "Purchase and
Contribution Agreement"). Prior to the date of this Agreement, BFI assigned all
of its interests in the Partnership and all of its rights under the Purchase and
Contribution Agreement to BFM.
The Buyer and Sellers wish to amend the Purchase and Contribution
Agreement to reflect a modification of the purchase, sale and contribution
transactions set forth in the Purchase and Contribution Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Except as otherwise provided in this Amendment, all capitalized terms
used herein and not otherwise defined herein shall have the same meanings
assigned to them in the Purchase and Contribution Agreement.
2. Section 1.1 of the Purchase and Contribution Agreement is amended by
adding the following new definitions:
"Amendment" means the First Amendment to Purchase and Contribution
Agreement entered into as of February 14, 2000, among the General Partner,
WBresnan, BBC, BBCO, Blackstone Family Media Partnership III L.P., TCID-MI,
TCI LLC, Buyer and CC VIII.
"CC VIII" means CC VIII, LLC, a Delaware limited liability company.
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"CC VIII Contribution" means the contribution at the Closing by
Holdings of the Purchased Interests and the Contributed Interests and by TCI
LLC and TCID-MI of the Retained Interests to CC VIII in exchange for limited
liability company interests in CC VIII, as contemplated in this Agreement.
"CC VIII Limited Liability Company Agreement" means the CC VIII Limited
Liability Company Agreement attached as Exhibit K.
"Holdings" means Charter Communications Holdings, LLC, a
Delaware limited liability company.
3. Article 1 of the Purchase and Contribution Agreement is amended by
amending and restating in their entirety the following definitions:
"Closing" means the consummation of the purchase and sale of the
Purchased Interests, the contribution of the Contributed Interests and the
CC VIII Contribution pursuant to this Agreement in accordance with the
provisions of Article 7.
"PublicCo" means Charter Communications, Inc., a Delaware
corporation.
"Required Consents" means the consents, permits, approvals and
authorizations of Governmental Authorities and other Persons, and filings,
notices, and applications with Governmental Authorities and other Persons,
necessary to transfer lawfully the Purchased Interests and the Contributed
Interests to Buyer, consummate the CC VIII Contribution or otherwise to
consummate lawfully the transactions contemplated by this Agreement.
"Subsidiary" means Bresnan Telecommunications Company LLC, Bresnan
Public Corporation, Bresnan Telephone of Michigan L.L.C., Bresnan Telephone
of Minnesota, L.L.C., Bresnan Communications Group LLC, Bresnan Capital
Corporation or Midwest Video Electronics, Inc., as the context may require.
4. Section 2.1 of the Purchase and Contribution Agreement is amended
and restated in its entirety to read as follows:
2.1 Sale and Purchase of Purchased Interests; Contribution of
Contributed Interests; CC VIII Contribution .
(a) Subject to the terms and conditions set forth in this
Agreement, each Seller hereby agrees to sell, transfer, and deliver to Buyer
at the Closing, and Buyer hereby agrees to purchase at the Closing, the
partnership interests specified below (the "Purchased Interests"), free and
clear of all Liens:
(1) from the General Partner, the entire General
Partnership Interest; and
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(2) from each Seller, that portion of its Limited
Partnership Interest that is not represented by either a Contributed
Interest or a Retained Interest.
(b) Each Seller (other than TCI LLC and TCID-MI) agrees to
contribute to Buyer a portion of its respective Limited Partnership
Interest, in each case free and clear of all Liens and subject to the Legal
Requirements (each such contributed Limited Partnership Interest, a
"Contributed Interest"). The percentage of each contributing Seller's
Limited Partnership Interest represented by a Contributed Interest and such
Seller's share of Units in Buyer to be issued by Buyer in exchange for such
Contributed Interests (the "Equity Consideration") is reflected as a
percentage of the aggregate of the Equity Consideration and the Lower Tier
Equity Consideration in Schedule 2.1. The number of Units that comprise the
Equity Consideration will be calculated and may be adjusted in accordance
with Exhibit I.
(c) Immediately following the purchase and contribution steps
described in Section 2.1(a) and (b), TCI LLC will retain all of its Limited
Partnership Interest and TCID-MI will retain a portion of its original
Limited Partnership Interest (each, a "Retained Interest"). The percentage
of each of TCI LLC's and TCID-MI's Limited Partnership Interest represented
by a Retained Interest and TCI LLC's and TCID-MI's share of Class A
Preferred Units in CC VIII to be issued by CC VIII in exchange for such
Retained Interests (the "Lower Tier Equity Consideration") is reflected as a
percentage of the aggregate of the Equity Consideration and the Lower Tier
Equity Consideration in Schedule 2.1. The number of Class A Preferred Units
in CC VIII that comprise the Lower Tier Equity Consideration will be
calculated and may be adjusted in accordance with Exhibit I. At the Closing,
and immediately following the purchase and contribution steps described in
Section 2.1(a) and (b),
(i) Buyer will cause Holdings and PublicCo to,
and TCI LLC and TCID-MI will, execute and deliver the CC VIII Limited
Liability Company Agreement in the form attached as Exhibit K,
(ii) Buyer will contribute the Contributed
Interests to Holdings,
(iii) Holdings will contribute the Purchased
Interests and Contributed Interests to CC VIII in exchange for Class B Units
in CC VIII, and
(iv) TCI LLC and TCID-MI will contribute the
Retained Interests to CC VIII in exchange for the Lower Tier Equity
Consideration.
In connection with the CC VIII Contribution, Buyer, TCI LLC and TCID-MI will
deliver or cause to be delivered such documents and agreements as
contemplated by this Agreement and the Amendment.
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5. Section 2.2 of the Purchase and Contribution Agreement is amended
and restated in its entirety to read as follows:
2.2 Purchase Price for Purchased Interests . Buyer shall pay and
deliver to the Sellers, by wire transfer of immediately available funds to
one or more accounts of the Sellers, as designated in writing by the Sellers
not later than the Business Day before Closing, as consideration for the
sale of the Purchased Interests an aggregate amount in cash equal to
$2,100,000,000, subject to adjustment as provided in Section 2.3 (the
"Purchase Price") and subject to the provisions of Sections 2.4 and 2.5.
Buyer shall have no liability or obligation arising from its allocation of
the Purchase Price among the Sellers, provided that Buyer complies with the
written instructions of the Sellers provided under the preceding sentence.
At its option Buyer may cause Holdings, its wholly owned subsidiary, to pay
the Purchase Price for and receive the Purchased Interests and to pay or
receive any post-Closing adjustments as determined under this Agreement.
6. Section 2.3 of the Purchase and Contribution Agreement is amended to
add the following new subsection (e):
(e) The Purchase Price shall be decreased by $1,500,000 to
reflect certain purchase price adjustments made with respect to the
Acquisition Agreements.
7. Buyer hereby notifies each Seller that Buyer has delegated and assigned
to Holdings, Buyer's obligations and rights to pay the Purchase Price for and
receive the Purchased Interests and to pay or receive any post-Closing
adjustments as determined under the Purchase and Contribution Agreement.
8. Section 3.19 of the Purchase and Contribution Agreement is
amended and restated in its entirety to read as follows:
3.19 Securities Law Matters . Such Seller understands and acknowledges
that the Equity Consideration and the Lower Tier Equity Consideration have
not been registered or qualified under the federal or applicable state
securities laws and the Equity Consideration is being transferred to BBC,
BBCO, BFM, WBresnan and the General Partner, and the Lower Tier Equity
Consideration is being transferred to TCI LLC and TCID-MI, in reliance upon
applicable exemptions from such registration and qualification requirements.
Such Seller is an "accredited investor" within the meaning of the federal
securities laws and acknowledges it has been furnished with or afforded
access to, and has had the opportunity to ask questions and receive answers
concerning, all information pertaining to the Equity Consideration and the
Lower Tier Equity Consideration. The Equity Consideration is being acquired
by BBC, BBCO, BFM, WBresnan and the General Partner, and the Lower Tier
Equity Consideration is being acquired by TCI LLC and TCID-MI, for
investment only and not with a view to any public distribution thereof. Such
Seller understands that the Equity Consideration and the Lower Tier Equity
Consideration represent "restricted securities" within the meaning of the
federal securities laws and agrees that it will not offer to sell or
otherwise dispose of the
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Equity Consideration or the Lower Tier Equity Consideration in violation of
the registration and qualification requirements of the federal and
applicable state securities laws.
9. Section 4.5 of the Purchase and Contribution Agreement is amended and
restated in its entirety to read as follows:
4.5 Securities Law Matters . Buyer understands and acknowledges that
the Purchased Interests, the Contributed Interests and the Retained
Interests have not been registered or qualified under the federal or
applicable state securities laws and the Purchased Interests are being sold
to and purchased by Buyer, the Contributed Interests are being contributed
to Buyer and the Retained Interests are being contributed to CC VIII in
reliance upon applicable exemptions from such registration and qualification
requirements. Buyer is an "accredited investor" within the meaning of the
federal securities laws and acknowledges it has been furnished with or
afforded access to, and has had the opportunity to ask questions and receive
answers concerning, all information pertaining to the Purchased Interests,
the Contributed Interests and the Retained Interests. The Purchased
Interests, the Contributed Interests and the Retained Interests are being
acquired by Buyer for investment only and not with a view to any public
distribution thereof. Buyer understands that the Purchased Interests, the
Contributed Interests and the Retained Interests are "restricted securities"
within the meaning of the federal securities laws and agrees that it will
not offer to sell or otherwise dispose of the Purchased Interests and the
Contributed Interests in violation of the registration and qualification
requirements of the federal and applicable state securities laws.
10. Section 5.9(a) of the Purchase and Contribution Agreement is amended
and restated in its entirety to read as follows:
(a) Each Seller consents to the execution, delivery, and
performance of this Agreement by each Seller and to the taking by each
Seller and the Partnership of all actions contemplated by this Agreement to
be taken by such Person, including the sale of the Purchased Interests, the
contribution of the Contributed Interests by each Seller to Buyer and the CC
VIII Contribution.
11. Section 5.9 of the Purchase and Contribution Agreement is amended to
add the following new subsection (g):
(g) The Platinum Accounting System software and platform owned
and used by the Partnership, any software license or service agreements
related solely to such software, all system and user data utilized by such
software and any ancillary systems that may have Partnership financial data
benefit, in existence as of the Closing (collectively, the "Platinum
Accounting System") shall constitute Excluded Assets that may be transferred
to the General Partner at the time of the Closing for such consideration or
no consideration and on such terms as the Sellers may determine; provided,
however, that the Sellers shall cause the Partnership, its Subsidiaries and
the Partnership Systems to have no obligations or liabilities after the
Closing Date with respect to the related transferred license or services
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agreements and provided further that Buyer and the General Partner agree and
covenant that for a period of 180 days after the date of the Closing, (i)
the General Partner shall use commercially reasonable efforts to retain the
Platinum Accounting System and not to alter or otherwise delete the Platinum
Accounting System in any manner that would prevent or impair Buyer from
obtaining any information and data relating to the Partnership or any of its
Subsidiaries prior to the Closing Date; but shall in no event dispose of the
Platinum Accounting System for a period of 180 days after the date of the
Closing, (ii) Buyer shall be entitled to access any and all modules of the
Platinum Accounting System relating to the Partnership or any of its
Subsidiaries prior to the Closing Date, including without limitation, the
accounts payable module, the general ledger module and the fixed asset
module, and to receive or obtain downloads of data from the Platinum
Accounting System relating the Partnership or any of its Subsidiaries in a
format reasonably acceptable to Buyer, (iii) the General Partner shall
provide Buyer with reasonable access to the Platinum Accounting System as it
relates to the Partnership or any of its Subsidiaries, including access to
the property where such system, or any part thereof is stored, to facilitate
the transfer or download of any information or data being transferred
pursuant to clause (ii) above and (iv) shall assist and cooperate with Buyer
in the process of transferring any such requested information or data from
the Platinum Accounting System.
12. At Closing, and immediately following the consummation of the purchase and
sale of the Purchased Interests and the contribution by Sellers of the
Contributed Interests, the parties will deliver or cause to be delivered the
following, in the order and subject to such intermediate steps as described in
the Bresnan Closing Memorandum, a copy of which is attached to this Amendment:
1.Buyer will deliver to Holdings duly executed assignment
agreements providing for the assignment of the Contributed
Interests to Holdings, in a form reasonably satisfactory to TCI.
2.Buyer will cause Holdings to deliver to CC VIII a duly executed
assignment agreement providing for the assignment of the Purchased
Interests and the Contributed Interests to CC VIII, in a form
reasonably satisfactory to TCI.
0.XXX LLC and TCID-MI will deliver to CC VIII a duly executed
assignment agreement providing for the assignment of the Retained
Interests to CC VIII, in a form reasonably satisfactory to CC VIII
(which assignment agreement may be the same instrument delivered by
Holdings under Section 12(b) and such assignments, whether by the
same or separate instruments, are referred to as the "Multiparty
Assignment").
0.XXX LLC and TCID-MI will deliver to Holdings and CC VIII a duly
executed CC VIII limited liability company agreement in the form
attached as Exhibit K.
5.Buyer will cause Holdings and PublicCo to deliver to TCI LLC and
TCID-MI a
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duly executed CC VIII limited liability company agreement in the
form attached as Exhibit K.
6.Buyer will cause CC VIII to issue and deliver to Holdings
80,778,116 Class B Units of CC VIII, each having the rights,
preferences and obligations set forth in the CC VIII Limited
Liability Company Agreement attached as Exhibit K.
7.Buyer will cause CC VIII to issue and deliver to TCI LLC and
TCID-MI 24,215,749 Class A Preferred Units of CC VIII, each having
the rights, preferences and obligations set forth in the CC VIII
Limited Liability Company Agreement attached as Exhibit K.
13. TCI LLC, TCID-MI and Buyer will, and Buyer will cause CC VIII and
Holdings to, enter into and deliver such documents and take such other actions
as may be reasonably requested by any of TCI LLC, TCID-MI or Buyer to authorize,
consummate or evidence the CC VIII Contribution.
14. Pursuant to Section 5.16(d) of the Purchase and Contribution Agreement,
Xxxx X. Xxxxx has delivered into escrow held by Xxxxxxx & Xxxxxx L.L.C. a Put
Agreement with respect to each Seller (the "Original Xxxxx Puts"). At Closing,
Buyer shall cause Xxxx X. Xxxxx to deliver Put Agreements with respect to each
Seller in the form attached as Exhibit H, in each case duly executed by Xxxx X.
Xxxxx. Upon such delivery, Section 7.3(g) of the Purchase and Contribution
Agreement shall have no further force or effect, the Original Xxxxx Puts shall
be terminated and of no further force and effect, and Buyer and Sellers will
execute and deliver at Closing a joint instruction to Xxxxxxx & Xxxxxx L.L.C.
designating Irell & Xxxxxxx LLP as the successor escrow agent and directing
Xxxxxxx & Xxxxxx L.L.C. to deliver the Original Xxxxx Puts to Irell & Xxxxxxx
LLP for destruction upon receipt of Xxxx X. Xxxxx'x consent to such destruction.
15. Section 5.17 of the Purchase and Contribution Agreement is amended to
delete the last sentence of such Section and replace it with the following
sentence:
Buyer will not cause, and will not permit any of its Affiliates to cause,
the Partnership to be merged, consolidated or otherwise converted into an
entity that is taxed as a corporation under the Code.
16. The General Partner represents and warrants to Buyer, TCI LLC and
TCID-MI as follows:
1.Bresnan Public Corporation is a corporation, validly existing and
in good standing under the laws of the State of Delaware. At no
time prior to Closing will Bresnan Public Corporation have
conducted any business activities or other operations of any kind,
or hold any asset, or become liable for any obligation.
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0.XX VIII was duly formed as a limited liability company under the
laws of the State of Delaware. At no time prior to Closing will CC
VIII have conducted any business activities or other operations of
any kind, or hold any asset, or become liable for any obligation
other than its obligations under the Purchase and Contribution
Agreement and this Amendment.
17. Buyer represents and warrants to the Sellers as follows:
0.XX VIII is validly existing and in good standing under the laws
of the State of Delaware. To Buyer's Knowledge, at no time prior to
Closing will CC VIII have conducted any business activities or
other operations of any kind, or hold any asset, or become liable
for any obligation other than its obligations under the Purchase
and Contribution Agreement and this Amendment.
2.Subject to the due execution and delivery of the CC VIII Limited
Liability Company Agreement and the Multiparty Assignment, (i) the
execution, delivery, and performance by CC VIII of the Transaction
Documents to which CC VIII will be a party and to be delivered at
Closing will be duly authorized by all necessary action on the part
of CC VIII and (ii) the Transaction Documents to which CC VIII will
be a party, when executed and delivered will be duly executed and
delivered and will constitute the legal, valid, and binding
obligation of CC VIII, enforceable against CC VIII in accordance
with their terms, except as the enforceability of such Transaction
Documents may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting
creditors' rights generally or by judicial discretion in the
enforcement of equitable remedies and except as may be affected by
any breach by TCID-MI or TCI LLC of the Purchase and Contribution
Agreement or this Amendment.
3.Subject to the due execution and delivery of the CC VIII Limited
Liability Company Agreement and the Multiparty Assignment, the
execution and delivery by CC VIII, the performance by CC VIII
under, and the consummation of the transactions contemplated by,
this Amendment and the Transaction Documents to which CC VIII will
be a party will not: (a) conflict with or violate any provision of
the Charter Documents of CC VIII; (b) violate any provision of any
Legal Requirement; (c) require any material consent, approval or
authorization of, or filing of any certificate, notice,
application, report or other document with, any Governmental
Authority or other Person; or (d) (i) result in a material breach
of or constitute a material default under (without regard to
requirements of notice, lapse of time or elections of other Persons
or any combination thereof), (ii) permit or result in the
termination, suspension or material modification of, or (iii)
result in the material acceleration of (or give any Person the
right to accelerate) the performance of CC VIII under, any Contract
or other instrument by which Buyer or its Affiliates has caused CC
VIII or any of its assets to be bound or affected or, to Buyer's
Knowledge, any other Contract or instrument by which CC VIII is
bound or affected, except for
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any of the foregoing that (x) would not materially adversely affect
CC VIII's ability to perform its obligations under the Transaction
Documents, (y) that result from or are caused by any breach by
TCID-MI or TCI LLC of the Purchase and Contribution Agreement or
this Amendment or (z) result from any act or omission by the
General Partner taken with respect to CC VIII without the consent
of Buyer.
4.Neither Buyer nor any of its Affiliates (including CC VIII) have
granted any preemptive rights, whether at law or otherwise, to
purchase any securities of CC VIII; any outstanding options,
warrants, subscriptions, agreements, plans, rights or other
commitments pursuant to which CC VIII is or may become obligated to
sell or issue any Class A Preferred Units or any other equity
security; or any outstanding securities convertible into such Class
A Preferred Units or any other equity security of CC VIII.
5.Subject to the due execution and delivery of the CC VIII Limited
Liability Company Agreement and the Multiparty Assignment, the
Class A Preferred Units being issued hereunder, when issued and
delivered in accordance with the terms of the Purchase and
Contribution Agreement and this Amendment for the consideration
expressed herein, will be duly authorized and validly issued. The
delivery of such Class A Preferred Units pursuant to the Purchase
and Contribution Agreement and this Amendment will transfer to TCI
LLC and TCID-MI good and valid title to such Class A Preferred
Units, free and clear of all Liens and any other limitations or
restrictions (including any restrictions on the right to vote, sell
or otherwise dispose of such interest), other than the transfer
restrictions created by the CC VIII Limited Liability Company
Agreement or imposed by the Exchange Agreement or applicable Legal
Requirements.
18. The representations and warranties of the General Partner contained in
Section 16 of this Agreement shall expire as of the Closing Date and shall not
survive the Closing. The representations and warranties of Buyer contained in
Section 17 of this Agreement (other than the representations and warranties
contained in subparagraph (b) which shall survive the Closing until the
expiration of the applicable statute of limitations) shall expire as of the
Closing Date and shall not survive the Closing.
19. In connection with the assignment by BFI of all of its right, title and
interest in the Partnership to BFM, the admission of BFM as a substituted
limited partner under the Partnership Agreement and the consent of each of the
Sellers to the assignment of BFI's rights and obligations under the Purchase and
Contribution Agreement pursuant to the First Amendment to Amended and Restated
Limited Partnership Agreement, Buyer hereby consents to the assignment of all of
BFI's rights and obligations under the Purchase and Contribution Agreement to
BFM and the agreements contemplated therein. BFM hereby accepts the
aforementioned assignment and undertakes to discharge, satisfy and perform all
obligations of BFI under the Purchase and Contribution Agreement and the
agreements contemplated therein. All references to BFI in the Purchase and
Contribution Agreement shall be deemed references
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to BFM.
20. As of the date hereof, all notices to be delivered to TCID-MI or TCI
LLC in accordance with Section 9.2 of the Purchase and Contribution Agreement
shall be delivered to the following (and such Section 9.2 is hereby amended to
reflect such change):
c/o AT&T Broadband
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X'Xxxxxx
Telecopier: (000) 000-0000
with a copy (which Xxxxxxx & Xxxxxx, L.L.C.
shall not constitute 000 Xxxxxxxxxxx Xxxxxx
notice) to: Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
21. The parties hereby agree that the Purchase and Contribution Agreement
is hereby deemed amended in all respects necessary to give effect to the
consents, agreements and waivers contained in this Amendment, whether or not a
particular Section or provision of the Purchase and Contribution Agreement has
been referred to in this Amendment. Except as amended hereby, the Purchase and
Contribution Agreement shall remain unchanged and in full force and effect, and
this Amendment shall be governed by and subject to the terms of the Purchase and
Contribution Agreement, as amended hereby. From and after the date of this
Amendment, each reference in the Purchase and Contribution Agreement to "this
Agreement," "hereof," "hereunder" or words of like import, and all references to
the Purchase and Contribution Agreement in any and all agreements, instruments,
documents, notes, certificates and other writings of every kind and nature
(other than in this Amendment or as otherwise expressly provided) shall be
deemed to mean the Purchase and Contribution Agreement, as amended by this
Amendment, whether or not such Amendment is expressly referenced.
22. Schedules 3.1 and 5.9 and Exhibits G, H, I and J are hereby amended and
restated in their entirety as attached to this Amendment. Buyer hereby consents
to the changes in the ownership of the Limited Partnership Interests set forth
in Schedule 3.1, as so amended and restated, to reflect the transfer of BFI's
Limited Partnership Interest from BFI to BFM. Exhibit A is attached to this
Amendment, and the Sellers may further amend Exhibit A at any time after the
Closing by giving written notice to Buyer, provided that the sum of the
Proportionate Interests for all Sellers shall equal 100% and further provided
that if any Seller's Proportionate Interest is changed by more than 500 basis
points, Buyer will have the right to consent to such change, which consent will
not unreasonably withheld. The following new Schedule and Exhibit are attached
to this Amendment and deemed attached to the Purchase and Contribution
Agreement:
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Schedule 2.1 Contributed Interests and Retained Interests
Exhibit K Form of CC VIII Limited Liability Company
Agreement
23. This Amendment shall be construed in accordance with the laws of the
State of New York, without giving effect to the choice of law principles.
24. This Amendment may be signed in counterparts with the same effect as if
the signature on each counterpart were the same instrument.
[The remainder of this page has intentionally been left blank]
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IN WITNESS WHEREOF, this Amendment has been executed by Buyer and each
the Sellers as of the date first written above.
BUYER:
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SELLERS:
BCI(USA), LLC
By: Bresnan Communications, Inc., its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, individually
TCID OF MICHIGAN, INC.
By: /s/ Xxxxx X'Xxxxxx
------------------------------------
Name: Xxxxx X'Xxxxxx
Title: Vice President
TCI BRESNAN LLC
By: /s/ Xxxxx X'Xxxxxx
------------------------------------
Name: Xxxxx X'Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT
TO PURCHASE AND CONTRIBUTION AGREEMENT]
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BLACKSTONE BC CAPITAL PARTNERS, L.P.
By: Blackstone Media Management Associates III
L.L.C., its General Partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Member
BLACKSTONE FAMILY MEDIA PARTNERSHIP III L.P.
By: Blackstone Media Management Associates
III L.L.C., its General Partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Member
BLACKSTONE BC OFFSHORE CAPITAL PARTNERS L.P.
By: Blackstone Media Management Associates III L.L.C.,
its Investment General Partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Member
[SIGNATURE PAGE TO FIRST AMENDMENT
TO PURCHASE AND CONTRIBUTION AGREEMENT]
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SCHEDULE 2.1
CONTRIBUTED INTERESTS AND RETAINED INTERESTS
Seller Portion of Limited Portion of Limited Limited Partnership Share of Aggregate
Partnership Interest Partnership Interest Interest Represented Units to be Issued
to be Contributed to be Retained by Contributed as Equity
Interest Interest Interest or Retained Consideration or
Interest Lower Tier Equity
Consideration
BBC 33.5811% 0% 11.2929% 20.7449%
(Class C Common
Units)
BBCO 33.5811% 0% 1.2663% 2.3262%
(Class C Common
Units)
BFM 33.5811% 0% 0.8017% 1.4726%
(Class C Common
Units)
WBresnan 33.5811% 0% 0.3358% 0.6169%
(Class C Common
Units)
BCI (USA), LLC 37.6699% 0% 3.0938% 12.7664%
(Class C Common
Units)
TCI LLC 0% 100.0000% 12.9309% 23.3212%
(CC VIII Class A
Preferred Units)
TCID-MI 0% 50.1051% 18.5735% 38.7518%
(CC VIII Class A
Preferred Units)
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SCHEDULE 3.1
ORGANIZATION AND OWNERSHIP OF THE PARTNERSHIP
1. General Partner
BCI (USA), LLC 1.0000%
Limited Partners
Blackstone BC Capital Partners L.P. 33.6289%
Blackstone BC Offshore Capital Partners L.P. 3.7710%
Blackstone Family Media Partnership III L.P. 2.3872%
TCI Bresnan LLC 12.9309%
TCID of Michigan, Inc. 37.0691%
Xxxxxxx X. Xxxxxxx 1.0000%
BCI (USA), LLC 8.2129%
2. Bresnan Telecommunications Company LLC ("BTC") has pledged its interest in
its subsidiaries (other than Midwest Video Electronics, Inc.) and Bresnan
Communications Group LLC has pledged its interest in BTC, each pursuant to
the Credit Facility.
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SCHEDULE 5.9
EXCLUDED ASSETS
1. All rights to the use of the Bresnan name and other marks.
2. Two warrants for 110,000 shares each of ICTV, Inc., common stock.
3. Warrant for 70,162 shares of Online System Services, Inc., common
stock.
4. All furniture and fixtures, including, without limitation, desks, cubicles,
computers and computer equipment (other than the accounting, billing
system/network and any organizational documents related to the Partnership
and the Subsidiaries and the Human Resources system/network), phone system,
office supplies, vehicles and artwork located at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx.
5. The Split Dollar Life Insurance Policy for Xxxxxxx X. Xxxxxxx.
6. The Platinum Accounting System.
7. All right, title and interest in and to the following marks:
YOUR LINK TO TOMORROW Reg. No. 2,284,563
BRESNANLINK Reg. No. 2,301,017
BRESNAN COMMUNICATIONS Reg. No. 2,284,565
BRESNAN (stylized) Reg. No. 2,284,564
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EXHIBIT A
PROPORTIONATE INTERESTS
Blackstone BC Capital Partners L.P. 28.7527%
Blackstone BC Offshore Capital Partners L.P. 3.2242%
Blackstone Family Media Partnership III L.P. 2.0411%
TCI Bresnan LLC 11.0559%
TCID of Michigan, Inc. 31.6941%
Xxxxxxx X. Xxxxxxx 0.8550%
BCI (USA), LLC 22.3770%
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