|
<br />effect as of the Closing with, as a result of obtaining any Franchise Consent, no change having been
<br />made in the terms of any Fyanchise except as provided in Section 5.6(b). Notwithstanding the
<br />foregoing, (i) the License Consents (other than with respect to CARS licenses) shall be deemed to
<br />have been obtained as required above in this Section 6.2 if the FCC, on or prior to the Closing Date,
<br />grants "special temporary authority" or "conditional authority" to Parent to use the same or, in the
<br />case of business radio licenses, so long as a temporary authorization or conditional authorization is
<br />available to Parent under FCC rules and Parent reasonably expects that the FCC's consent can be
<br />obtained within 120 days after Closing, and (ii) the Fyanchise Consents shall be deemed to be
<br />obtained in the event all Fyanchise Consents are obtained except with respect to Fyanchises that, in
<br />the aggregate, exclusive of Franchises for which no Fyanchise Consent is required, serve less than
<br />ten percent (10%) of all Basic Subscribers of the Cable Systems in the aggregate.
<br />
<br />Section 63 Performance bv Companv. The Company shall have performed in all material
<br />respects all of its agreements and covenants under this Agreement (including, but not limited to,
<br />making, or standing willing and able to make, the deliveries and taking, or standing willing and able
<br />to take, the actions required by Section 8.2, but excluding the covenants and agreements set forth
<br />in Section 5.2(b)(vii)) to the extent such are required to be performed at or prior to the Closing.
<br />
<br />Section 6.4 Truth of Representations and Warranties. Each of the representations and
<br />warranties of the Company contained in this Agreement (i) if specifically qualified by materiality,
<br />shall be true and complete as so qualified, and (ii) ifnot qualified by materiality, shall be true and
<br />complete in all material respects, in each such case, on and as of the date hereof and as of the
<br />Closing Date, with the same effect as if then made, except where any such representation or
<br />warranty is as of a specific earlier date, in which event it shall remain true and correct (as qualified)
<br />as of such earlier date, and except as any such representation or warranty may be affected by specific
<br />transactions or occurrences contemplated in or permitted by this Agreement or any Related
<br />Agreement. The foregoing notwithstanding, the Closing condition set forth above in this Section
<br />6.4 shall be deemed to be satisfied unless the failure of such representations and warranties to be so
<br />true and complete in all material respects, if not qualified by materiality, and true and complete as
<br />so qualified, if qualified by materiality, shall individually or in the aggregate constitute a Company
<br />Material Adverse Effect or that would have a material adverse effect on the ability of the Company
<br />to consummate the transactions hereunder; provided, however, that the representations and
<br />warranties set forth in Section 3 .2(b) and Section 3.24 shall be true and complete in all respects.
<br />
<br />Section 6.5 Absence of Proceedings. All waiting periods required under the HSR Act
<br />shall have expired or otherwise terminated prior to the Closing; no Govemmental Authority
<br />(including, without limitation, any federal or state court of competent jurisdiction) shall have
<br />enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order,
<br />decree, judgement, injunction or other order (whether temporary, preliminary or permanent), in any
<br />case that is in effect and that prevents or prohibits consummation of the Merger or any other
<br />transactions contemplated in this Agreement; and no judgment or order shall have been issued, and
<br />no action or proceeding shall have been instituted by any Governmental Authority on or prior to the
<br />Closing, that has or would have if successful a Company Material Adverse Effect or a Parent
<br />
<br />ATl/90584-8
<br />
<br />44
<br />
|