MULTIPLIED BY THE SHORTFALL.
24
Closing Date
Subscriber
Target
Per Subscriber
Price
On or before September 30, 2005
136,797
$
3,801
From October 1, 2005 to and including October 31, 2005
136,947
3,797
From November 1, 2005 to and including November 30, 2005
137,097
3,793
From and after December 1, 2005
137,247
3,789
(C)
EXCEPT AS PROVIDED IN SECTION 3.3(D), AND
SUBJECT TO THE SELLERS' TERMINATION RIGHT IN SECTION 12.1(L), IF THE OPERATING
CASH FLOW FOR THE 12-MONTH PERIOD ENDING ON THE CALCULATION DATE IS LESS THAN
THE OPERATING CASH FLOW TARGET AS SET FORTH BELOW, THEN THE PURCHASE PRICE SHALL
BE REDUCED BY AN AMOUNT EQUAL TO THE PRODUCT OF THE MULTIPLE AS SET FORTH BELOW
AND THE SHORTFALL:
Closing Date
Operating Cash
Flow Target
Multiple
On or before August 31, 2005
$
52,000,000
10.00
From September 1, 2005 to and including October 31, 2005
$
52,500,000
9.90
From November 1, 2005 to and including November 30, 2005
$
52,750,000
9.86
From and after November 30, 2005
$
53,000,000
9.81
NOTWITHSTANDING THE FOREGOING, IF ALL OF THE CONDITIONS TO CLOSING SET FORTH IN
SECTIONS 8, 9 AND 10, OTHER THAN SECTION 9.9 AND OTHER THAN THOSE CONDITIONS
WHICH BY THEIR TERMS CAN ONLY BE SATISFIED ON THE CLOSING DATE, HAVE BEEN
SATISFIED BY OCTOBER 26, 2005, THE OPERATING CASH FLOW TARGET SHALL NOT INCREASE
ON OR AFTER NOVEMBER 1, 2005.
(D)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
SECTION 3.3(B) OR SECTION 3.3(C), IF THERE OTHERWISE WOULD BE REDUCTIONS IN THE
PURCHASE PRICE PURSUANT TO BOTH SECTION 3.3(B) AND SECTION 3.3(C), THEN THE
PURCHASE PRICE SHALL BE REDUCED ONLY BY THE GREATER OF THE REDUCTION PURSUANT TO
SECTION 3.3(B) AND THE REDUCTION PURSUANT TO SECTION 3.3(C).
25
3.4
Determination of Purchase Price Adjustments
(A)
CLOSING DATE ESTIMATED ADJUSTMENTS.
IN
ORDER TO ADJUST THE PURCHASE PRICE PAYABLE AT THE CLOSING ON A PRELIMINARY BASIS
(SUBJECT TO THE FINAL ADJUSTMENTS TO BE MADE PURSUANT TO SECTION 3.4(B)) TO
REFLECT THE PURCHASE PRICE ADJUSTMENTS SET FORTH IN SECTION 3.3, AT LEAST FIVE
(5) BUSINESS DAYS PRIOR TO THE CLOSING DATE, THE CABLE VENTURE SHALL DELIVER TO
THE BUYER A CERTIFICATE SETTING FORTH IN REASONABLE DETAIL THE CABLE VENTURE'S
GOOD FAITH ESTIMATES OF THE ADJUSTMENTS PURSUANT TO SECTION 3.3 AS WELL AS OF
THE UNPAID COST TO COMPLETE THE REBUILD (IF ANY), INCLUDING (I) THE ESTIMATED
CLOSING DATE WORKING CAPITAL, (II) THE ESTIMATED OUTSTANDING FUNDED DEBT (IF
ANY) AS OF THE CLOSING DATE, (III) THE ESTIMATED NUMBER OF EQUIVALENT
SUBSCRIBERS AS OF THE CALCULATION DATE (AND, IF THE CALCULATION DATE IS NOT THE
CLOSING DATE, THE ESTIMATED NUMBER OF EQUIVALENT SUBSCRIBERS AS OF THE CLOSING
DATE) AND (IV) THE OPERATING CASH FLOW FOR THE 12-MONTH PERIOD ENDING ON THE
PREVIOUS MONTH END (THE "ESTIMATED ADJUSTMENT CERTIFICATE"), TOGETHER WITH AN
ESTIMATED CLOSING DATE BALANCE SHEET (THE "ESTIMATED CLOSING DATE BALANCE
SHEET") AND SUPPORTING DOCUMENTATION IN REASONABLE DETAIL.
THE ESTIMATED
ADJUSTMENT CERTIFICATE SHALL BE PREPARED FROM THE COMPANIES' BOOKS AND RECORDS
IN ACCORDANCE WITH