HEADQUARTERS, ALL AS SET FORTH MORE
PARTICULARLY THEREIN.
SECTION 10.7.
REGISTRATION RIGHTS AGREEMENT.
LEVEL 3 SHALL HAVE EXECUTED THE
REGISTRATION RIGHTS AND TRANSFER RESTRICTION AGREEMENT IN THE FORM ATTACHED
HERETO AS EXHIBIT A (THE "REGISTRATION RIGHTS AGREEMENT").
SECTION 10.8.
SECURITIES MATTERS.
THE SHARES ISSUED HEREUNDER, IF ANY, SHALL
HAVE BEEN ADMITTED FOR LISTING ON THE NASDAQ STOCK MARKET.
SECTION 10.9.
OPINION OF COUNSEL.
THE SELLER AND LEUCADIA SHALL HAVE RECEIVED
AN OPINION, DATED AS OF THE CLOSING DATE, FROM WILLKIE FARR & GALLAGHER LLP,
COUNSEL TO THE BUYER, COVERING THE MATTERS SET FORTH ON SCHEDULE 10.9, SUBJECT
TO CUSTOMARY LIMITATIONS AND QUALIFICATIONS FOR OPINIONS GIVEN IN TRANSACTIONS
OF THE KIND CONTEMPLATED HEREBY.
SECTION 10.10.
OTHER CLOSING DOCUMENTS.
THE SELLER AND LEUCADIA SHALL HAVE
RECEIVED SUCH OTHER CERTIFICATES, INSTRUMENTS AND DOCUMENTS IN CONFIRMATION OF
THE REPRESENTATIONS AND WARRANTIES OF THE BUYER AND LEVEL 3 OR IN FURTHERANCE OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AS THE SELLER OR ITS COUNSEL MAY
REASONABLY REQUEST.
SECTION 10.11.
SBC CONSENT TO ASSIGNMENT.
THE CONSENT TO ASSIGNMENT, DATED
OCTOBER 28, 2005, AMONG SBC AND ITS AFFILIATES PARTY TO THE SBC SETTLEMENT
AGREEMENT,
58
LEUCADIA, THE COMPANY AND WILTEL COMMUNICATIONS, LLC, ATTACHED HERETO AS
SCHEDULE 10.11, SHALL BE IN FULL FORCE AND EFFECT.
SECTION 10.12.
THE BUYER REIMBURSEMENTS; CASH BALANCE.
THE BUYER OR LEVEL 3
(AS APPLICABLE) SHALL HAVE COMPLIED IN ALL RESPECTS WITH THE COVENANTS SET FORTH
IN SECTION 8.7(A) AND (B) AND SHALL HAVE PAID ALL AMOUNTS DUE THEREUNDER.
SECTION 11.
CONDITIONS PRECEDENT TO PERFORMANCE BY THE BUYER AND LEVEL 3.
The obligations of Level 3 and the Buyer to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or before the
Closing Date, of the following conditions, any one or more of which may be
waived by Level 3 and the Buyer in their sole discretion:
SECTION 11.1.
REPRESENTATIONS AND WARRANTIES OF LEUCADIA AND THE SELLER.
EACH
OF THE REPRESENTATIONS AND WARRANTIES OF THE SELLER 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
REPRESENTATION 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 THE COMPANY AND ITS RETAINED SUBSIDIARIES.
SECTION 11.2.
PERFORMANCE OF THE OBLIGATIONS OF LEUCADIA AND THE SELLER.
EACH
OF LEUCADIA AND THE SELLER SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL
OBLIGATIONS REQUIRED UNDER THIS AGREEMENT TO BE PERFORMED BY IT ON OR BEFORE THE
CLOSING DATE; PROVIDED, HOWEVER, THAT THE OBLIGATION OF LEVEL 3 AND THE BUYER TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE AFFECTED BY THE
FAILURE BY LEUCADIA AND THE SELLER TO PERFORM THEIR RESPECTIVE OBLIGATIONS UNDER
SECTION 7.1 OF THIS AGREEMENT, UNLESS SUCH FAILURE TO PERFORM SUCH OBLIGATIONS
WAS NOT IN GOOD FAITH OR WOULD REASONABLY