AND COMPLETE COPY OF THE LEVEL 3 SEC
REPORTS.
THE LEVEL 3 SEC REPORTS HAVE BEEN TIMELY FILED PURSUANT TO THE
EXCHANGE ACT.
(B)
THE LEVEL 3 SEC REPORTS COMPLIED AS TO FORM
IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE EXCHANGE ACT IN EFFECT ON
THE DATE OF FILING.
THE LEVEL 3 SEC REPORTS, WHEN FILED PURSUANT TO THE
EXCHANGE ACT, DID NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO
STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(C)
EACH OF LEVEL 3'S FINANCIAL STATEMENTS
(INCLUDING THE RELATED NOTES) INCLUDED IN THE LEVEL 3 SEC REPORTS PRESENT FAIRLY
IN ALL MATERIAL RESPECTS THE CONSOLIDATED
37
FINANCIAL POSITION AND CONSOLIDATED RESULTS OF OPERATIONS AND CASH FLOWS OF
LEVEL 3 AND ITS SUBSIDIARIES AS OF THE RESPECTIVE DATES OR FOR THE RESPECTIVE
PERIODS SET FORTH THEREIN, ALL IN CONFORMITY WITH GAAP CONSISTENTLY APPLIED
DURING THE PERIOD INVOLVED EXCEPT AS OTHERWISE NOTED THEREIN, AND SUBJECT, IN
THE CASE OF ANY UNAUDITED INTERIM FINANCIAL STATEMENTS INCLUDED THEREIN, TO
NORMAL YEAR-END ADJUSTMENTS AND TO THE ABSENCE OF COMPLETE FOOTNOTES.
SECTION 6.8.
NO MATERIAL ADVERSE EFFECT.
SINCE JUNE 30, 2005, THERE HAS NOT
BEEN ANY MATERIAL ADVERSE EFFECT ON LEVEL 3 AND ITS SUBSIDIARIES.
SECTION 6.9.
PRIVATE PLACEMENT.
THE ISSUANCE OF THE SHARES TO LEUCADIA
PURSUANT TO THIS AGREEMENT WILL NOT REQUIRE REGISTRATION UNDER THE SECURITIES
ACT, ASSUMING THAT (I) THE REPRESENTATIONS AND WARRANTIES OF THE SELLER MADE TO
LEVEL 3 AND THE BUYER IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT ARE TRUE, COMPLETE AND ACCURATE (UPON WHICH
ASSUMPTION LEVEL 3 AND THE BUYER HAVE RELIED WITHOUT INDEPENDENT INVESTIGATION);
AND (II) THE SELLER COMPLIES WITH ITS REPRESENTATIONS AND WARRANTIES SET FORTH
IN SECTION 5.26 OF THIS AGREEMENT.
SECTION 6.10.
NO BROKERS.
NO BROKER, FINDER OR SIMILAR INTERMEDIARY HAS ACTED
FOR OR ON BEHALF OF, OR IS ENTITLED TO ANY BROKER'S, FINDER'S OR SIMILAR FEE OR
OTHER COMMISSION FROM THE BUYER IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN JP MORGAN SECURITIES INC. AND
EVERCORE PARTNERS.
SECTION 6.11.
SUFFICIENCY OF FUNDS.
THE BUYER HAS, AND AT THE CLOSING WILL
HAVE, SUFFICIENT FUNDS AVAILABLE TO PAY THE CASH PURCHASE PRICE AND THE
ADDITIONAL CASH AMOUNT AT THE CLOSING.
SECTION 6.12.
NO OTHER REPRESENTATIONS OR WARRANTIES.
EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 6, NEITHER THE BUYER
NOR LEVEL 3 NOR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY ON BEHALF OF THE BUYER NOR LEVEL 3.
SECTION 7.
COVENANTS OF LEUCADIA AND THE SELLER.
Leucadia and the Seller hereby jointly and severally covenant as follows:
SECTION 7.1.
CONDUCT OF BUSINESS BEFORE THE CLOSING DATE.
(A)
WITHOUT THE
PRIOR WRITTEN CONSENT OF THE BUYER, BETWEEN THE DATE HEREOF AND THE CLOSING
DATE, LEUCADIA AND THE SELLER SHALL NOT PERMIT EITHER THE COMPANY OR ITS
RETAINED SUBSIDIARIES TO, EXCEPT (W) AS