OF THIS AGREEMENT AND THE ACQUISITION OF SUCH SHARES.
(C)
THE SELLER IS AN "ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(A) PROMULGATED UNDER THE SECURITIES ACT.
(D)
THE SELLER UNDERSTANDS THAT THE SHARES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAW, BY
REASON OF THEIR ISSUANCE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS, WHICH
EXEMPTION DEPENDS UPON, AMONG OTHER THINGS, THE BONA FIDE NATURE OF THE SELLER'S
INVESTMENT INTENT AS EXPRESSED HEREIN.
THE SELLER UNDERSTANDS THAT SUCH
SECURITIES MUST BE HELD INDEFINITELY UNLESS THEY ARE SUBSEQUENTLY REGISTERED
UNDER THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS OR A SUBSEQUENT
DISPOSITION THEREOF IS EXEMPT FROM REGISTRATION.
THE SELLER UNDERSTANDS THAT
THE EXEMPTION FROM REGISTRATION AFFORDED BY RULE 144 (THE PROVISIONS OF WHICH
ARE KNOWN TO THE SELLER) PROMULGATED UNDER THE SECURITIES ACT DEPENDS UPON THE
SATISFACTION OF VARIOUS CONDITIONS AND THAT, IF APPLICABLE, RULE 144 MAY AFFORD
THE BASIS FOR SALES ONLY IN LIMITED AMOUNTS.
SECTION 5.27.
SBC.
(A)
EXCEPT AS SET FORTH IN SCHEDULE 5.27(A), AS
OF THE DATE HEREOF, NO CREDITS, REFUNDS OR PAYMENTS OF ANY KIND ARE DUE OR OWING
TO SBC.
THE COMPANY AND ITS SUBSIDIARIES HAVE BILLED SBC PURSUANT TO THE SBC
AGREEMENT IN A MANNER THAT IS CONSISTENT, ACCURATE AND IN ACCORDANCE WITH THE
TERMS OF SUCH AGREEMENT IN ALL MATERIAL RESPECTS.
(B)
SCHEDULE 5.27(B) SETS FORTH THE AMOUNTS
BILLED TO SBC AND ITS AFFILIATES FOR INCLUDED SERVICES PURSUANT TO, AND AS THAT
TERM IS DEFINED IN, THE SBC AGREEMENT AS OF OCTOBER 15, 2005 AND FOR EACH OF THE
CALENDAR MONTHS OF JULY, AUGUST AND SEPTEMBER 2005.
(C)
SBC HAS NEVER MADE AN INDEMNIFICATION CLAIM
OR OTHER CLAIM FOR LOSSES AGAINST THE COMPANY OR ANY OF ITS AFFILIATES.
EXCEPT
AS SET FORTH IN SCHEDULE 5.27(C), TO THE SELLER'S KNOWLEDGE, THERE ARE NO
MATERIAL DISPUTES PENDING WITH OR OVERTLY THREATENED BY SBC.
(D)
THE COMPANY AND ITS AFFILIATES HAVE NOT
REQUESTED, AND SBC AND ITS AFFILIATES HAVE NOT PAID FOR, ANY REIMBURSEMENTS
CONTEMPLATED BY SECTION 3.3(B) OF THE SBC AGREEMENT.
SECTION 5.28.
NO OTHER REPRESENTATIONS OR WARRANTIES.
EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, NEITHER THE SELLER
NOR LEUCADIA NOR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY ON BEHALF OF THE SELLER OR LEUCADIA WITH RESPECT TO
THE COMPANY AND THE RETAINED SUBSIDIARIES.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF THE BUYER AND LEVEL 3.
The Buyer and Level 3 hereby jointly and severally represent and warrant to
Leucadia and the Seller as follows:
35
SECTION 6.1.
CORPORATE ORGANIZATION.
THE BUYER IS A LIMITED LIABILITY COMPANY
AND LEVEL 3 IS A CORPORATION, EACH OF WHICH HAS BEEN DULY ORGANIZED, VALIDLY
EXISTING AND IS IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, AND
HAS ALL REQUISITE LIMITED LIABILITY COMPANY OR CORPORATE POWER (AS THE CASE MAY
BE) AND AUTHORITY TO OWN ITS PROPERTIES AND ASSETS AND