Common use of Franchise Consents Clause in Contracts

Franchise Consents. If by the date that is 210 days after the date of ------------------ this Agreement (i) the aggregate number of AT&T EBSs located in areas that are served without a franchise or that are served pursuant to AT&T System Franchises that either do not require consent or as to which Required Consents have been obtained is at least 95% of the number of EBSs for all AT&T Systems as of the last day of the month preceding the month in which Closing occurs; (ii) the aggregate number of Insight EBSs (including EBSs that relate to the Exchange Systems and Sale Systems) located in areas that are served without a franchise or that are served pursuant to Insight System Franchises (or system franchises that relate to the Exchange Systems or the Sale Systems) that either do not require consent or as to which all required consents have been obtained is at least 95% of the number of EBSs for all Insight Systems , Exchange Systems, and Sale Systems as of the last day of the month preceding the month in which Closing occurs; (iii) all conditions precedent to the obligations of the parties have been satisfied or waived by the applicable parties (other than any condition that all Required Consents for System Franchises have been obtained and any conditions precedent that are to be satisfied at Closing by delivery of documents), and (iv) the System Franchises for which consents have not then been obtained do not, and applicable Legal Requirements do not, in the reasonable judgment of the party transferring such System Franchises, prohibit the actions contemplated by this Section 7.24, then the following shall occur: (a) Closing shall occur with respect to, and Insight and AT&T shall transfer, convey and assign to the Partnership (the "Primary Transfer") all of the AT&T Assets and all of the Insight Contributed Assets other than any System Franchises for which Required Consents have not been obtained (such excepted System Franchises, including any Assets that are located in the franchise area for such franchises or that relate exclusively to such franchises, are referred to herein as the "Retained Franchises"). (b) Following the Closing of the Primary Transfer, the applicable transferor party and the Partnership shall continue to use commercially reasonable efforts to obtain Required Consents for any Retained Franchises as promptly as possible, with the provisions of Section 7.5(a) continuing to be applicable to such Retained Franchises. The Partnership will deliver copies of the Required Consents for any Retained Franchises to each of Insight and TCI LLC once they are obtained. Within 10 Business Days of obtaining a Required Consent for a Retained Franchise, the owner of such franchise shall transfer, convey and assign such franchise to the Partnership (a "Subsequent Transfer"), free and clear of all Liens other than Permitted Liens. The conditions to closing shall not apply to any Subsequent Transfer of a Retained Franchise other than the delivery of appropriate transfer documents. (c) Insight and AT&T shall negotiate in good faith to reach agreement at the Closing on a management agreement pursuant to which the Partnership (or Indiana LLC) will manage all Retained Franchises, which management agreement shall also contain any required signal sharing arrangements (the "Retained Franchise Management Agreement"). The Retained Franchise Management Agreement shall provide that the Partnership will bear all expenses relating to the Retained Franchises and the operation thereof (including any expenses related to defending any challenges raised with respect to a Retained Franchise or the transactions described in this Section as applied to such Retained Franchise) and will receive the net cash flow from the Retained Franchises as its management fee. The Retained Franchise Management Agreement shall provide that its term will continue with respect to each Retained Franchise until there is a Subsequent Transfer of such Retained Franchise, or such Retained Franchise is revoked as a result of the transactions described in this Section or a court orders the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise. If the Retained Franchise Management Agreement is terminated with respect to a Retained Franchise prior to its Subsequent Transfer, then (i) if such termination is due to the revocation of the Retained Franchise, the Partnership shall use reasonable commercial efforts to obtain a replacement franchise, or (ii) if such termination is due to a court ordering the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise, the Partnership, AT&T and Insight shall negotiate in good faith to reach some other structure that will allow the Partnership to continue to receive the benefits of the Retained Franchise. If the Partnership is unable to obtain a replacement franchise or the parties are unable to negotiate a structure that will allow the Partnership to continue to receive the benefits of the Retained Franchise, AT&T and Insight will negotiate in good faith the amount of the cash contribution that AT&T or Insight (or both) is required to make to the Partnership to maintain the membership interests of AT&T and Insight at 50% each, based upon the circumstances of the termination and the value of the Retained Franchise at the time of loss. (d) All references in this Agreement to the Closing and the Closing Date will mean the Closing and Closing Date of the Primary Transfer and the Aggregate Gross Fair Market Value determinations to be made pursuant to Section 3.2 and the Closing Adjustments to be determined pursuant to Section 3.3 will be made as of the Closing Date for the Retained Franchises as if they were transferred on the Closing Date. In addition, the Partnership will become liable for the Assumed Obligations and Liabilities with respect to the Retained Franchises as of the Closing Date rather than the Subsequent Transfer date. All representations and warranties (except as to those Required Consents that have not been obtained) made in connection with the Retained Franchises will be made as of the Closing Date rather than the Subsequent Transfer date. (e) If the provisions of this Section 7.24 become operative, the parties agree to use commercially reasonable efforts and act in good faith in taking such actions and negotiating such additional provisions or other agreements, including amendments to this Agreement, as may be necessary or appropriate to carry out the intent of this Section 7.24, including without limitation, keeping franchise transfers effective.

Franchise Consents. If by the date that is 210 days after the date of ------------------ this Agreement (i) the aggregate number of AT&T TCI EBSs located in areas that are served without a franchise or that are served pursuant to AT&T TCI System Franchises that either do not require consent or as to which Required Consents have been obtained is at least 95% of the number of EBSs for all AT&T TCI Systems as of the last day of the month preceding the month in which Closing occurs(it being agreed that 95% for this purpose is 153,288 EBSs); (ii) the aggregate number of Insight EBSs (including EBSs that relate to the Exchange Systems and Sale Systems) located in areas that are served without a franchise or that are served pursuant to Insight System Franchises (or system franchises that relate to the Exchange Systems or the Sale Systems("Exchange Franchises")) that either do not require consent or as to which all required consents have been obtained is at least 95% of the number of EBSs for all Insight Systems , and Exchange Systems, and Sale Systems as of the last day of the month preceding the month in which Closing occurs(it being agreed that 95% for this purpose is 150,742 EBSs); (iii) all conditions precedent to the obligations of the parties have been satisfied or waived by the applicable parties (other than any condition that all Required Consents for System Franchises or Exchange Franchises have been obtained and any conditions precedent that are to be satisfied at Closing by delivery of documents), and (iv) the System Franchises or Exchange Franchises for which consents have not then been obtained do not, and applicable Legal Requirements do not, in the reasonable judgment of the party transferring such System FranchisesFranchises or Exchange Franchises (the transferring party being TCI for this purpose), prohibit the actions contemplated by this Section 7.24, then the following shall occur: (a) Closing shall occur with respect to, and Insight and AT&T TCI shall transfer, convey and assign to the Partnership Company (the "Primary Transfer") all of the AT&T TCI Assets and all of the Insight Contributed Assets and Exchange Assets other than any System Franchises or Exchange Franchises for which Required Consents have not been obtained (such excepted System Franchises, including any Assets that are located in the franchise area for such franchises or that relate exclusively to such franchises, are referred to herein as the "Retained Franchises"; provided, that any excepted Exchange Franchises, including any Assets that are located in the franchise area for such franchises or that relate exclusively to such franchises, are referred to herein as the "Exchange Retained Franchises" and not as "Retained Franchises"). (b) Following the Closing of the Primary Transfer, the applicable transferor party and the Partnership parties shall continue to use commercially reasonable efforts to obtain Required Consents for any Retained Franchises as promptly as possible, in accordance with the provisions terms of Section 7.5(a) continuing this Agreement and to be applicable to such Retained Franchises. The Partnership will deliver copies of the obtain Required Consents for any Exchange Retained Franchises to each in accordance with the terms of Insight and TCI LLC once they are obtainedthe Exchange Agreement. Within 10 Business Days of obtaining a Required Consent for a Retained Franchise or Exchange Retained Franchise, the owner of such franchise System Franchise shall transfer, convey and assign such franchise System Franchise to the Partnership Company (a "Subsequent Transfer"), free and clear of all Liens other than Permitted LiensLiens (or in the case of a transfer of an Exchange Retained Franchise from Insight to the Company, subject only to Liens that existed as of the Closing Date of the Primary Transfer under the Exchange Agreement). The conditions to closing shall not apply to any Subsequent Transfer of a Retained Franchise or an Exchange Retained Franchise other than the delivery of appropriate transfer documentsdocuments and other than any closing conditions for the Exchange Retained Franchises that are specified in the management agreements related thereto that are entered into pursuant to the Exchange Agreement. (c) Insight and AT&T TCI shall negotiate in good faith to reach agreement at the Closing on a management agreement pursuant to which the Partnership (or Indiana LLC) Company will manage all Retained Franchises, which management agreement shall also contain any required signal sharing arrangements (the "Retained Franchise Management Agreement"). The Retained Franchise Management Agreement shall provide that the Partnership Company will bear all expenses relating to the Retained Franchises and the operation thereof (including any expenses related to defending any challenges raised with respect to a Retained Franchise or the transactions described in this Section as applied to such Retained Franchise) and will receive the net cash flow from the Retained Franchises as its management fee. The Retained Franchise Management Agreement shall provide that its term will continue with respect to each Retained Franchise until there is a Subsequent Transfer of such Retained Franchise, or such Retained Franchise is revoked as a result of the transactions described in this Section or a court orders the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise. If the Retained Franchise Management Agreement is terminated with respect to a Retained Franchise prior to its Subsequent Transfer, then (i) if such termination is due to the revocation of the Retained Franchise, the Partnership Company shall use reasonable commercial efforts to obtain a replacement franchise, or (ii) if such termination is due to a court ordering the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise, the Partnership, AT&T Company TCI and Insight shall negotiate in good faith to reach some other structure that will allow the Partnership Company to continue to receive the benefits of the Retained Franchise. If the Partnership Company is unable to obtain a replacement franchise or the parties are unable to negotiate a structure that will allow the Partnership Company to continue to receive the benefits of the Retained Franchise, AT&T TCI and Insight will negotiate in good faith the amount of the cash contribution that AT&T TCI or Insight (or both) is required to make to the Partnership Company to maintain the membership interests of AT&T TCI and Insight at 50% each, based upon the circumstances of the termination and the value of the Retained Franchise at the time of loss. (d) All references in this Agreement to the Closing and the Closing Date will mean the Closing and Closing Date of the Primary Transfer and the Aggregate Gross Fair Market Value determinations contribution value determination to be made pursuant to the LLC Agreement and Section 3.2 3.1 hereof and the Closing Adjustments to be determined pursuant to Section 3.3 3 will be made as of the Closing Date for the Retained Franchises as if they were transferred on the Closing Date. In addition, the Partnership Company will become liable for the Assumed Obligations and Liabilities with respect to the Retained Franchises as of the Closing Date rather than the Subsequent Transfer date. All representations and warranties (except as to those Required Consents that have not been obtained) made in connection with the Retained Franchises will be made as of the Closing Date rather than the Subsequent Transfer date. (e) If With respect to each Exchange Retained Franchise, Insight will contribute to the provisions of this Section 7.24 become operativeCompany until the Subsequent Transfer date for such Exchange Retained Franchise, Insight's after-tax net cash flow taking into account all expenses and expenditures, including capital expenditures from the Insight Matching Franchise (as defined in the Exchange Agreement) for such Exchange Retained Franchise pursuant to an agreement that will define such net cash flow, and the times at which it must be contributed, that the parties agree to use commercially reasonable efforts and act will negotiate in good faith in taking to enter into at Closing. If the Subsequent Transfer date for an Exchange Retained Franchise does not occur by the second anniversary of the Closing Date, Insight shall contribute to the Company the proceeds from its sale of the Insight Matching Franchise for such actions and negotiating such additional provisions or other agreements, including amendments Exchange Retained Franchise to this TCI pursuant to the Exchange Agreement, after deducting its actual taxes payable in respect of such sale, its reasonable expenses incurred in connection with such sale and the actual income taxes payable by Insight's ultimate equity owners (as may estimated by Insight in good faith); provided that if the Insight Matching Franchise cannot be necessary or appropriate sold to carry out TCI because consent for the intent transfer thereof to TCI was not obtained, then Insight and TCI shall negotiate in good faith the cash contribution that Insight is required to make to the Company to maintain the membership interests of this Section 7.24TCI and Insight at 50% each, including without limitation, keeping franchise transfers effective.based upon the circumstances of the termination and the value of the Exchange Retained

Franchise Consents. Notwithstanding anything to the contrary in this Section 7.24, the 95% tests provided for herein shall be made separately with respect to each of the exchange transactions contemplated by this Agreement and the other provisions of this Section 7.24 shall be applied separately with respect to each exchange transaction. If by the date that is 210 days after the date of ------------------ this Agreement (i) the aggregate number of AT&T TCI EBSs located in areas that are served without a franchise or that are served pursuant to AT&T TCI System Franchises that either do not require consent or as to which Required Consents have been obtained is at least 95% of the number of EBSs for all AT&T TCI Systems (it being agreed that 95% for this purpose is 43,845 EBSs as of to the last day of Midwest/Insight exchange transaction and 16,186 EBSs as to the month preceding the month in which Closing occursIndiana/Insight exchange transaction); (ii) the aggregate number of Insight EBSs (including EBSs that relate to the Exchange Systems and Sale Systems) located in areas that are served without a franchise or that are served pursuant to Insight System Franchises (or system franchises that relate to the Exchange Systems or the Sale Systems) that either do not require consent or as to which all required consents Required Consents have been obtained is at least 95% of the number of EBSs for all Insight Systems , Exchange Systems, (it being agreed that 95% for this purpose is 39,093 EBSs as to the Midwest/Insight exchange transaction and Sale Systems 14,017 EBSs as of to the last day of the month preceding the month in which Closing occursIndiana/Insight exchange transaction); (iii) all conditions precedent to the obligations of the parties have been satisfied or waived by the applicable parties (other than any condition that all Required Consents for System Franchises have been obtained and any conditions precedent that are to be satisfied at Closing by delivery of documents), and (iv) the System Franchises for which consents have not then been obtained do not, and applicable Legal Requirements do not, in the reasonable judgment of the party transferring such System Franchises, prohibit the actions contemplated by this Section 7.24, then the following shall occur: (a) Closing shall occur with With respect to, and Insight and AT&T shall transfer, convey and assign to the Partnership (the "Primary Transfer") all of the AT&T Assets and all of the Insight Contributed Assets other than any each TCI System Franchises Franchise for which a TCI Required Consents have Consent has not been obtained as of the Closing Date (such excepted System Franchises, including any TCI Assets that are located in the franchise area for such franchises franchise or that relate exclusively to such franchisesfranchise, are referred to herein as the a "Retained Franchises"). (b) Following the Closing of the Primary Transfer, the applicable transferor party and the Partnership shall continue to use commercially reasonable efforts to obtain Required Consents for any Retained Franchises as promptly as possible, with the provisions of Section 7.5(a) continuing to be applicable to such Retained Franchises. The Partnership will deliver copies of the Required Consents for any Retained Franchises to each of Insight and TCI LLC once they are obtained. Within 10 Business Days of obtaining a Required Consent for a Retained Franchise, the owner of such franchise shall transfer, convey and assign such franchise to the Partnership (a "Subsequent Transfer"), free and clear of all Liens other than Permitted Liens. The conditions to closing shall not apply to any Subsequent Transfer of a Retained Franchise other than the delivery of appropriate transfer documents. (c) Insight and AT&T shall parties will negotiate in good faith to reach agreement at the Closing on a management agreement pursuant to which the Partnership (or Indiana LLC) will manage all Retained Franchises, which management agreement shall also contain any required signal sharing arrangements (the "Retained an Insight System Franchise Management Agreement"). The Retained Franchise Management Agreement shall provide that the Partnership will bear all expenses relating to the Retained Franchises and the operation thereof (including any expenses related Insight Assets that are located in the franchise area for such franchise or relate exclusively to defending any challenges raised with respect such franchise, an "Insight Matching Franchise") that is to a the greatest extent possible, like kind to such TCI Retained Franchise or the transactions described in this for purposes of Section as applied to such Retained Franchise) and will receive the net cash flow from the Retained Franchises as its management fee. The Retained Franchise Management Agreement shall provide that its term will continue with respect to each Retained Franchise until there is a Subsequent Transfer of such Retained Franchise, or such Retained Franchise is revoked as a result 1031 of the transactions described in this Section or a court orders the termination of the Retained Code. An Insight Matching Franchise Management Agreement with respect to such may also be an Insight Retained Franchise. If the Retained Franchise Management Agreement is terminated with respect to a Retained Franchise prior to its Subsequent Transfer, then (i) if such termination is due to the revocation of the Retained Franchise, the Partnership shall use reasonable commercial efforts to obtain a replacement franchise, or (ii) if such termination is due to a court ordering the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise, the Partnership, AT&T and Insight shall negotiate in good faith to reach some other structure that will allow the Partnership to continue to receive the benefits of the Retained Franchise. If the Partnership is unable to obtain a replacement franchise or the parties are unable to negotiate a structure that will allow the Partnership to continue to receive the benefits of the Retained Franchise, AT&T and Insight will negotiate in good faith the amount of the cash contribution that AT&T or Insight (or both) is required to make to the Partnership to maintain the membership interests of AT&T and Insight at 50% each, based upon the circumstances of the termination and the value of the Retained Franchise at the time of loss. (d) All references in this Agreement to the Closing and the Closing Date will mean the Closing and Closing Date of the Primary Transfer and the Aggregate Gross Fair Market Value determinations to be made pursuant to Section 3.2 and the Closing Adjustments to be determined pursuant to Section 3.3 will be made as of the Closing Date for the Retained Franchises as if they were transferred on the Closing Date. In addition, the Partnership will become liable for the Assumed Obligations and Liabilities with respect to the Retained Franchises as of the Closing Date rather than the Subsequent Transfer date. All representations and warranties (except as to those Required Consents that have not been obtained) made in connection with the Retained Franchises will be made as of the Closing Date rather than the Subsequent Transfer date. (e) If the provisions For purposes of this Section 7.24 become operative, the parties agree to use commercially reasonable efforts and act in good faith in taking such actions and negotiating such additional provisions a "Retained Franchise" means either a TCI Retained Franchise or other agreements, including amendments to this Agreementan Insight Retained Franchise or both, as may be necessary the context requires, and a "Matching Franchise" means either a TCI Matching Franchise or appropriate to carry out an Insight Matching Franchise or both, as the intent of this Section 7.24, including without limitation, keeping franchise transfers effectivecontext requires.

Franchise Consents. If by the date that is 210 days after the date of ------------------ this Agreement but subject to the last proviso of Section 9.1 (i) the aggregate number of AT&T TCI EBSs located in areas that are served without a franchise or that are served pursuant to AT&T TCI System Franchises that either do not require consent or as to which Required Consents have been obtained is at least 95% of the number of EBSs for all AT&T TCI Systems as of the last day of the month preceding the month in which Closing occurs(it being agreed that 95% for this purpose is 231,190 EBSs); (ii) the aggregate number of Insight Century EBSs (including EBSs that relate to the Exchange Systems and Sale Systems) located in areas that are served without a franchise or that are served pursuant to Insight Century System Franchises (or system franchises that relate to the Exchange Systems or the Sale Systems) that either do not require consent or as to which all required consents have been obtained obtained, but excluding areas served by the Century Exchange Systems and, if the Riverside Agreement is terminated without Century acquiring the Riverside System, excluding areas served by the Riverside System, is at least 95% of the number of EBSs for all Insight Systems , Exchange Century Systems, other than the Century Exchange Systems and, if the Riverside Agreement is terminated without Century acquiring the Riverside System, other than the Riverside System (it being agreed that 95% for this purpose is 476,212 EBSs if the Riverside Closing has occurred at the time of determination and Sale Systems as of 458,302 EBSs if the last day of Riverside Agreement is terminated without Century acquiring the month preceding the month in which Closing occursRiverside System); (iii) all conditions precedent to the obligations of the parties have been satisfied or waived by the applicable parties (other than any condition that all Required Consents for System Franchises have been obtained and any conditions precedent that are to be satisfied at Closing by delivery of documents), and (iv) the System Franchises for which consents have not then been obtained do not, and applicable Legal Requirements do not, in the reasonable judgment of the party transferring such System Franchises, prohibit the actions contemplated by this Section 7.247.23, then the following shall occur: (a) Closing shall occur with respect to, and Insight Century and AT&T TCI shall transfer, convey and assign to the Partnership (the "Primary Transfer") all of the AT&T TCI Assets and all of the Insight Contributed Century Assets other than any System Franchises for which Required Consents have not been obtained (such excepted System Franchises, including any Assets that are located in the franchise area for such franchises or and that relate exclusively to such franchises, are referred to herein as the "Retained Franchises"). (b) Following the Closing of the Primary Transfer, the applicable transferor party and the Partnership parties shall continue to use commercially reasonable efforts to obtain Required Consents for any Retained Franchises as promptly as possible, in accordance with the provisions terms of Section 7.5(a) continuing to be applicable to such Retained Franchises. The Partnership will deliver copies of the Required Consents for any Retained Franchises to each of Insight and TCI LLC once they are obtainedthis Agreement. Within 10 Business Days of obtaining a Required Consent for a Retained Franchise, the owner of such franchise System Franchise shall transfer, convey and assign such franchise System Franchise to the Partnership (a "Subsequent Transfer"), free and clear of all Liens other than Permitted Liens. The conditions to closing shall not apply to any Subsequent Transfer of a Retained Franchise other than the delivery of appropriate transfer documents. (c) Insight Century and AT&T TCI shall negotiate in good faith to reach agreement at the Closing on a management agreement pursuant to which the Partnership (or Indiana LLC) will manage all Retained Franchises, which management agreement shall also contain any required signal sharing arrangements (the "Retained Franchise Management Agreement"). The Retained Franchise Management Agreement shall provide that the Partnership will bear all expenses relating to the Retained Franchises and the operation thereof (including any expenses related to defending any challenges raised with respect to a Retained Franchise or the transactions described in this Section as applied to such Retained Franchise) and will receive the net cash flow from the Retained Franchises as its management fee. The Retained Franchise Management Agreement shall provide that its term will continue with respect to each Retained Franchise until there is a Subsequent Transfer of such Retained Franchise, or such Retained Franchise is revoked as a result of the transactions described in this Section or a court orders the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise. If the Retained Franchise Management Agreement is terminated with respect to a Retained Franchise prior to its Subsequent Transfer, then (i) if such termination is due to the revocation of the Retained Franchise, the Partnership shall use reasonable commercial efforts to obtain a replacement franchise, or (ii) if such termination is due to a final court ordering the termination of the Retained Franchise Management Agreement with respect to such Retained Franchise, the Partnership, AT&T TCI and Insight Century shall negotiate in good faith to reach some other structure that will allow the Partnership to continue to receive the benefits of the Retained Franchise. If such termination occurs within one year of the Closing Date and the Partnership is unable to obtain a replacement franchise or the parties are unable to negotiate a structure that will allow the Partnership to continue to receive the benefits of the Retained Franchise, AT&T and Insight will negotiate in good faith the amount of the cash contribution that AT&T or Insight (or both) is required to make to the Partnership to maintain the membership interests of AT&T and Insight at 50% each, based upon the circumstances of the termination and the value of the Retained Franchise at the time of loss. (d) All references in this Agreement to the Closing and the Closing Date will mean the Closing and Closing Date of the Primary Transfer and the Aggregate Gross Fair Market Value determinations to be made pursuant to Section 3.2 and the Closing Adjustments to be determined pursuant to Section 3.3 will be made as of the Closing Date for the Retained Franchises as if they were transferred on the Closing Date. In addition, the Partnership will become liable for the Assumed Obligations and Liabilities with respect to the Retained Franchises as of the Closing Date rather than the Subsequent Transfer date. All representations and warranties (except as to those Required Consents that have not been obtained) made in connection with the Retained Franchises will be made as of the Closing Date rather than the Subsequent Transfer date. (e) If the provisions of this Section 7.24 become operative, the parties agree to use commercially reasonable efforts and act in good faith in taking such actions and negotiating such additional provisions or other agreements, including amendments to this Agreement, as may be necessary or appropriate to carry out the intent of this Section 7.24, including without limitation, keeping franchise transfers effective.negotiate