THE LEASE AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT OR TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, INCLUDING AS A CONSEQUENCE OF ANY MATERIAL IMPEDIMENT,
INTERFERENCE OR DELAY.
SECTION 5.4.
CONSENTS AND APPROVALS.
EXCEPT AS SET FORTH IN SCHEDULE 5.4, NO
CONSENT, WAIVER, AUTHORIZATION OR APPROVAL OF ANY GOVERNMENTAL ENTITY, AND NO
DECLARATION OR NOTICE TO OR FILING OR REGISTRATION WITH ANY GOVERNMENTAL ENTITY,
IS REQUIRED IN CONNECTION WITH THE EXECUTION AND DELIVERY BY LEUCADIA OR THE
SELLER OF THIS AGREEMENT, BY LEUCADIA AND THE
16
SELLER OF THE REGISTRATION RIGHTS AGREEMENT AND BY THE COMPANY AND WILTEL
TECHNOLOGY CENTER, LLC OF THE LEASE AGREEMENT OR THE PERFORMANCE BY LEUCADIA,
THE SELLER, THE COMPANY OR WILTEL TECHNOLOGY CENTER, LLC OF THEIR RESPECTIVE
OBLIGATIONS HEREUNDER OR THEREUNDER, EXCEPT FOR (I) THE FILING OF NOTIFICATION
AND REPORT FORM UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENT ACT OF 1976,
AS AMENDED (THE "HSR ACT"), (II) FILINGS REQUIRED UNDER, AND COMPLIANCE WITH
OTHER APPLICABLE RULES, REGULATIONS AND REQUIREMENTS OF, THE FEDERAL
COMMUNICATIONS COMMISSION (THE "FCC") AND THE RELEVANT STATE PUC'S SET FORTH ON
SCHEDULE 5.4, AND (III) SUCH OTHER GOVERNMENTAL CONSENTS, WAIVERS,
AUTHORIZATIONS, APPROVALS, DECLARATIONS, NOTICES, FILINGS OR REGISTRATIONS THAT
IN THE CASE OF THIS CLAUSE (III), IF NOT OBTAINED, MADE OR GIVEN, WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON THE COMPANY AND THE RETAINED SUBSIDIARIES.
SECTION 5.5.
AUTHORIZATION AND VALIDITY OF AGREEMENT.
LEUCADIA AND THE SELLER
HAVE ALL REQUISITE CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT
AND THE REGISTRATION RIGHTS AGREEMENT AND TO CARRY OUT THEIR RESPECTIVE
OBLIGATIONS HEREUNDER AND THEREUNDER.
THE COMPANY AND WILTEL TECHNOLOGY CENTER,
LLC HAVE ALL REQUISITE LIMITED LIABILITY COMPANY POWER TO ENTER INTO THE LEASE
AGREEMENT AND TO CARRY OUT THEIR OBLIGATIONS THEREUNDER.
THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE LEASE AGREEMENT AND THE REGISTRATION RIGHTS
AGREEMENT AND THE PERFORMANCE OF THE RESPECTIVE OBLIGATIONS OF LEUCADIA, THE
SELLER, THE COMPANY, AND WILTEL TECHNOLOGY CENTER, LLC HEREUNDER AND THEREUNDER
HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY LIMITED LIABILITY COMPANY OR
CORPORATE ACTION (AS THE CASE MAY BE) AND NO OTHER LIMITED LIABILITY COMPANY OR
CORPORATE PROCEEDINGS (AS THE CASE MAY BE) ON THE PART OF LEUCADIA, THE SELLER,
THE COMPANY OR WILTEL TECHNOLOGY CENTER, LLC ARE NECESSARY TO AUTHORIZE SUCH
EXECUTION, DELIVERY AND PERFORMANCE.
THIS AGREEMENT HAS BEEN DULY EXECUTED BY
LEUCADIA AND THE SELLER AND, ASSUMING DUE EXECUTION AND DELIVERY BY LEVEL 3 AND
THE BUYER, SHALL CONSTITUTE THEIR VALID AND BINDING OBLIGATION, ENFORCEABLE
AGAINST THEM IN ACCORDANCE WITH ITS TERMS, SUBJECT TO (I) THE EFFECT OF
BANKRUPTCY, FRAUDULENT CONVEYANCE, REORGANIZATION, MORATORIUM AND OTHER SIMILAR
LAWS RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY,
(II) GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) AND (III) AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
SECTION 5.6.
CAPITALIZATION AND RELATED MATTERS.
(A)
ALL OF THE OUTSTANDING MEMBERSHIP UNITS ARE
VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND ARE HELD SOLELY OF