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Exhibit 2.9(b)
SECOND AMENDMENT TO
PURCHASE AND CONTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND CONTRIBUTION AGREEMENT ("Second
Amendment") is made and entered into as of by and among Charter
Investment, Inc., a Delaware corporation formerly known as Charter
Communications, Inc. ("CII"), Charter Communications Holding Company, LLC, a
Delaware limited liability company ("Charter LLC"), Falcon Communications, L.P.,
a California limited partnership ("Falcon"), Falcon Holding Group, L.P., a
Delaware limited partnership ("FHGLP"), TCI Falcon Holdings, LLC, a Delaware
limited liability company ("TCI"), Falcon Cable Trust, a California trust ("FC
Trust"), Falcon Holding Group, Inc., a California corporation ("FHGI"), and DHN
Inc., a California corporation ("DHN") (FHGLP, TCI, FC Trust, FHGI and DHN are
sometimes referred to herein as "Sellers").
PRELIMINARY STATEMENT
A. CII, Falcon, and Sellers entered into the Purchase and
Contribution Agreement on May 26, 1999 (the "Purchase and Contribution
Agreement"), which was amended and modified by a First Amendment to Purchase and
Contribution Agreement dated as of June 22, 1999 ("First Amendment").
B. The parties hereto desire to modify the Purchase and
Contribution Agreement in certain respects as described herein. Section 11.9 of
the Purchase and Contribution Agreement provides that the Purchase and
Contribution Agreement may be amended; provided that any such amendment will be
binding on the parties prior to Closing only if set forth in a writing executed
by them.
C. Section 8.1(a)(1) of the Purchase and Contribution Agreement
provides that the Closing shall take place on the date specified therein or on
such earlier or later date as FHGLP and CII shall mutually agree. FHGLP, CII and
Charter LLC desire to designate a certain date for the Closing in certain events
as specified herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Except as otherwise provided in this Second 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, as
amended and modified by the First Amendment.
2. For purposes of this Second Amendment, "Charter IPO" means the
initial public offering of shares of Class A Common Stock of Charter
Communications, Inc. that is described in the Preliminary Prospectus dated
October 18, 1999.
3. In the event FHGLP would be authorized to specify a date for
the Closing that is on or before November 11, 1999 in accordance with Section
8.1(a)(1) of the Purchase and Contribution Agreement and FHGLP has heretofore
specified, or after the date hereof specifies, such a date for the Closing,
then, notwithstanding any such specification, FHGLP agrees to postpone the date
for the Closing to the earlier of (A) the date on which the Charter IPO is
consummated (in which event the Closing will occur concurrently with the
consummation of the
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Charter IPO) and (B) November 19, 1999; and FHGLP, CII and Charter LLC agree to
consummate the Closing on such earlier date in such event. If the date for the
Closing is determined pursuant to the preceding sentence, such date shall be
deemed determined in accordance with Section 8.1(a)(1) of the Purchase and
Contribution Agreement for all purposes of the Purchase and Contribution
Agreement (including, but not limited to, Section 9). Accordingly, consummation
of the Closing remains subject to satisfaction or, to the extent permitted by
law, waiver, of the closing conditions described in Section 7 and subject to
Sections 8.1(a)(2), 8.1(a)(3) and 8.1(a)(4) of the Purchase and Contribution
Agreement, and the proviso at the end of Section 8.1(a)(1) shall still apply. In
the event FHGLP would not be authorized to specify a date for the Closing that
is on or before November 11, 1999 in accordance with Section 8.1(a)(1) of the
Purchase and Contribution Agreement or FHGLP does not specify such a date for
the Closing, the date for the Closing shall be determined in accordance with the
provisions of the Purchase and Contribution Agreement without regard to this
Second Amendment.
4. The parties hereby agree that the Purchase and Contribution
Agreement, as amended and modified by the First Amendment, is hereby deemed
further amended in all respects necessary to give effect to the consents,
agreements and waivers contained in this Second Amendment, whether or not a
particular Section or provision of the Purchase and Contribution Agreement has
been referred to in this Second Amendment. Except as amended hereby, the
Purchase and Contribution Agreement, as amended and modified by the First
Amendment, shall remain unchanged and in full force and effect, and this Second
Amendment shall be governed by and subject to the terms of the Purchase and
Contribution Agreement, as amended and modified by the First Amendment and this
Second Amendment. From and after the date of this Second 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 Second Amendment or as otherwise expressly provided) shall
be deemed to mean the Purchase and Contribution Agreement, as amended and
modified by the First Amendment and as further amended and modified by this
Second Amendment, whether or not such First Amendment or Second Amendment is
expressly referenced. This Second Amendment may be signed in one or more
counterparts, each of which shall constitute an original but which when taken
together shall constitute one instrument.
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IN WITNESS WHEREOF, this Second Amendment has been executed by each of
CII, Charter LLC, Falcon and Sellers as of the date first written above.
SELLERS: CII:
FALCON HOLDING GROUP, L.P. CHARTER INVESTMENT, INC.
By: Falcon Holding Group, Inc., By: _______________________________
General Partner Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President CHARTER LLC:
CHARTER COMMUNICATIONS HOLDING
COMPANY, LLC
TCI FALCON HOLDINGS, LLC
By: _______________________________
By: _______________________________ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Senior Vice President
Title: Vice President
FALCON:
FALCON HOLDING GROUP, INC.
FALCON COMMUNICATIONS, L.P.
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: Falcon Holding Group, L.P.,
Title: Executive Vice President General Partner
By: Falcon Holding Group, Inc.
FALCON CABLE TRUST General Partner
By: _______________________________ By: _______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Trustee Title: Executive Vice President
By: TCI Falcon Holdings, LLC,
DHN, INC. General Partner
By: _______________________________ By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President Title: Vice President
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