OFFICER OF
SELLER, DATED THE CLOSING DATE, TO THE EFFECT THAT THE CONDITIONS SET FORTH IN
SECTIONS 6.2(A), 6.2(B) AND 6.2(F) HAVE BEEN SATISFIED.
(E)
FRANCHISES. EXCEPT AS WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, ALL LFA APPROVALS
SHALL HAVE BEEN OBTAINED, AND ALL PURCHASE RIGHTS (OTHER THAN IN CONNECTION WITH
THE EXCHANGE) SHALL HAVE BEEN WAIVED, IN RESPECT OF EACH SPECIFIED BUSINESS ON
OR PRIOR TO THE CLOSING; PROVIDED, THAT THIS CONDITION SHALL BE DEEMED NOT TO
HAVE BEEN SATISFIED UNTIL THE EARLIEST OF (I) THE DATE UPON WHICH THIS CONDITION
WOULD BE SATISFIED IF THE FOREGOING MATERIAL ADVERSE EFFECT EXCEPTION WERE
OMITTED, (II) 30 DAYS FOLLOWING THE DATE THE CONDITION
135
WOULD HAVE BEEN SATISFIED BUT FOR THIS PROVISO AND (III) SIX BUSINESS DAYS PRIOR
TO THE OUTSIDE DATE.
(F)
NO MATERIAL ADVERSE CHANGE. SINCE THE DATE OF THIS AGREEMENT, NO
EVENT OR CONDITION HAS OCCURRED THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD
OR WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(G)
BANKRUPTCY PLAN AND [CONFIRMATION]TRANSACTION ORDER. THE
[CONFIRMATION ORDER AND]TRANSACTION ORDER ISSUED BY, AND, OTHER THAN IN THE CASE
OF A 363 SALE, THE PLAN, CONFIRMED BY, THE BANKRUPTCY COURT SHALL, TO THE EXTENT
RELATING TO OR AFFECTING THE TRANSACTION, THE TRANSFERRED ASSETS, THE ASSUMED
LIABILITIES, PARENT OR ITS AFFILIATES (IN THE CASE OF PARENT OR ITS AFFILIATES,
ONLY TO THE EXTENT RELATED TO THE TRANSACTION OR AN INTEREST IN THE TRANSFERRED
JOINT VENTURE PARENTS (OTHER THAN WITH RESPECT TO PLAN OR JV PLAN DISTRIBUTION
MATTERS) AND NOT IN THEIR CAPACITY AS CREDITORS OR, WITH RESPECT TO PLAN OR JV
PLAN DISTRIBUTION MATTERS, EQUITYHOLDERS), BE IN ALL MATERIAL RESPECTS
SATISFACTORY TO BUYER IN ITS REASONABLE DISCRETION (PROVIDED THAT, IN THE CASE
OF A 363 SALE, THE 363 ORDER SHALL BE IN ALL RESPECTS SATISFACTORY TO BUYER IN
ITS REASONABLE DISCRETION) AND, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE [CONFIRMATION]TRANSACTION ORDER SHALL CONTAIN THE FINDING THAT
BUYER IS A GOOD FAITH PURCHASER OF THE TRANSFERRED ASSETS PURSUANT TO SECTION
363(M) OF THE BANKRUPTCY CODE UNLESS BUYER'S ACTIONS HAVE BEEN DETERMINED BY THE
BANKRUPTCY COURT TO HAVE NOT BEEN IN GOOD FAITH PRECLUDE SUCH A FINDING.
(H)
SUBSCRIBERS. AT LEAST 60 DAYS PRIOR TO THE CLOSING, SELLER SHALL
HAVE IMPLEMENTED THE SUBSCRIBER ACCOUNTING SYSTEM. THE NUMBER OF ELIGIBLE BASIC
SUBSCRIBERS SERVED BY EACH SPECIFIED BUSINESS SHALL BE AT LEAST EQUAL TO (I) THE
BASE SUBSCRIBER NUMBER FOR SUCH SPECIFIED BUSINESS MINUS (II) THE SUBSCRIBER
BASKET FOR SUCH SPECIFIED BUSINESS MINUS (III) THE SUBSCRIBER CAP FOR SUCH
SPECIFIED BUSINESS.
(I)
INTENTIONALLY OMITTED.
(J)
NO BUYER ADVERSE TAX EVENT. THERE SHALL NOT HAVE BEEN A BUYER
ADVERSE TAX EVENT THAT IS IN EXISTENCE AS OF THE CLOSING.
(K)
FINANCIAL INFORMATION. SELLER SHALL HAVE PROVIDED BUYER WITH ALL
FINANCIAL INFORMATION AND THE ADDITIONAL FINANCIAL STATEMENTS CONTEMPLATED BY
SECTION 5.11 TO BE PROVIDED PRIOR TO THE CLOSING (DISREGARDING FOR THIS PURPOSE
ALL REFERENCES THEREIN TO "COMMERCIALLY REASONABLE EFFORTS")