OR ALLEGED
BREACH OR FAILURE TO BE TRUE AND CORRECT, OF ANY REPRESENTATION OR WARRANTY OR
ANY COVENANT OR AGREEMENT IN THIS AGREEMENT, EXCEPT FOR CLAIMS RELATING TO FRAUD
OR FOR INJUNCTIVE RELIEF, SHALL BE INDEMNIFICATION IN ACCORDANCE WITH THIS
SECTION 9.
SECTION 10.
CONDITIONS PRECEDENT TO PERFORMANCE BY THE SELLER.
The obligations of the Seller to consummate the transactions contemplated by
this Agreement is subject to the fulfillment, at or before the Closing Date, of
the following conditions, any one or more of which may be waived by the Seller
in its sole discretion:
SECTION 10.1.
REPRESENTATIONS AND WARRANTIES OF THE BUYER AND LEVEL 3.
EACH OF
THE REPRESENTATIONS AND WARRANTIES OF THE BUYER AND LEVEL 3 CONTAINED IN THIS
AGREEMENT (READ WITHOUT ANY MATERIALITY QUALIFICATIONS) SHALL BE TRUE AND
CORRECT AS OF THE DATE OF THIS AGREEMENT AND AS OF THE CLOSING DATE (EXCEPT TO
THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES SPEAK AS OF AN EARLIER DATE),
OTHER THAN SUCH FAILURES TO BE TRUE AND CORRECT THAT, INDIVIDUALLY OR IN THE
AGGREGATE, WOULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT WITH RESPECT TO LEVEL 3 AND ITS SUBSIDIARIES.
NOTWITHSTANDING THE
FOREGOING, SECTION 6.8 SHALL BE DISREGARDED
57
FOR PURPOSES OF THE PRIOR SENTENCE IF THE BUYER EXERCISES ITS CASH SUBSTITUTION
RIGHT IN FULL IN ACCORDANCE WITH SECTION 2.2 WITHIN THE TIME PERIODS SET FORTH
IN SECTION 12.1(D).
SECTION 10.2.
PERFORMANCE OF THE OBLIGATIONS OF THE BUYER AND LEVEL 3.
LEVEL 3
AND THE BUYER SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS
REQUIRED UNDER THIS AGREEMENT TO BE PERFORMED BY IT ON OR BEFORE THE CLOSING
DATE.
THE SELLER SHALL HAVE RECEIVED A CERTIFICATE AS TO THE SATISFACTION OF
THE CONDITIONS SET FORTH IN SECTIONS 10.1 AND 10.2 DATED THE CLOSING DATE AND
SIGNED BY ANY OFFICER OF LEVEL 3 AND THE BUYER.
SECTION 10.3.
HSR ACT.
ANY APPLICABLE WAITING PERIOD UNDER THE HSR ACT SHALL
HAVE EXPIRED OR BEEN TERMINATED.
SECTION 10.4.
NO VIOLATION OF ORDERS.
NO TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION OR OTHER ORDER ISSUED BY A COURT OF
COMPETENT JURISDICTION OR OTHER LEGAL RESTRAINT OR PROHIBITION PREVENTING THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE IN EFFECT;
PROVIDED THAT ANY PARTY INVOKING THIS CONDITION SHALL HAVE USED COMMERCIALLY
REASONABLE EFFORTS TO HAVE ANY SUCH ORDER, INJUNCTION OR RESTRAINT VACATED OR
REMOVED.
SECTION 10.5.
NO MATERIAL ADVERSE CHANGE.
DURING THE PERIOD FROM THE DATE
HEREOF TO THE CLOSING DATE, THERE SHALL NOT HAVE BEEN ANY MATERIAL ADVERSE
EFFECT WITH RESPECT TO LEVEL 3 AND ITS SUBSIDIARIES; PROVIDED, HOWEVER, THAT
THIS CLOSING CONDITION SHALL BE VOID AND BE OF NO FURTHER FORCE AND EFFECT IF
THE BUYER EXERCISES ITS CASH SUBSTITUTION RIGHT IN FULL IN ACCORDANCE WITH THE
TIME PERIODS SET FORTH IN SECTION 2.2 OR SECTION 12.1(D).
SECTION 10.6.
LEASE AGREEMENT.
THE COMPANY SHALL HAVE EXECUTED THE LEASE
AGREEMENT, IN THE FORM ATTACHED HERETO AS SCHEDULE 10.6 (THE "LEASE AGREEMENT"),
FOR A PORTION OF THE TULSA, OKLAHOMA