PURCHASER ACKNOWLEDGES THAT IT:
(I) HAS MADE AN INVESTIGATION OF THE PERTINENT FACTS RELATING TO THE BUSINESS,
FINANCIAL CONDITION AND OPERATIONS OF THE COMPANY, (II) HAS HAD A REASONABLE
OPPORTUNITY TO ASK QUESTIONS OF, AND RECEIVE ANSWERS FROM, A PERSON OR PERSONS
ACTING ON BEHALF OF THE COMPANY
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CONCERNING THE BUSINESS, FINANCIAL CONDITION AND OPERATIONS OF THE COMPANY AND
OTHER RELATED MATTERS AND ALL SUCH QUESTIONS HAVE BEEN ANSWERED TO THE FULL
SATISFACTION OF THE PURCHASER AND (III) THE REPRESENTATIONS AND WARRANTIES MADE
BY THE SELLERS IN THIS AGREEMENT ARE IN LIEU OF AND ARE EXCLUSIVE OF ALL OTHER
REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES.
SECTION 8.8
HART-SCOTT-RODINO.
ON OCTOBER 12, 2006, PURCHASER'S COUNSEL
DELIVERED THE LETTER ATTACHED HERETO AS SCHEDULE 8.8 (THE "HSR LETTER") TO THE
PREMERGER NOTIFICATION OFFICE, BUREAU OF COMPETITION, FEDERAL TRADE COMMISSION
(THE "FTC"), IN ORDER TO CONFIRM THAT THE TRANSACTION CONTEMPLATED HEREIN NEED
NOT BE REPORTED UNDER THE HSR ACT.
NEITHER PURCHASER NOR COUNSEL TO PURCHASER
HAS RECEIVED ANY WRITTEN OR ORAL COMMUNICATION FROM THE FTC CONTRADICTING THE
STATEMENTS CONTAINED IN THE HSR LETTER.
SECTION 8.9
PURCHASER'S KNOWLEDGE.
TO THE PURCHASER'S KNOWLEDGE, NO
REPRESENTATION OR WARRANTY MADE BY THE COMPANY IN THIS AGREEMENT (INCLUDING ANY
SCHEDULE HERETO), WITHOUT GIVING EFFECT TO ANY COMPANY KNOWLEDGE QUALIFICATION
MODIFYING ANY SUCH REPRESENTATION OR WARRANTY, CONTAINS ANY UNTRUE STATEMENT OR
OMITS INFORMATION NECESSARY IN ORDER TO MAKE THE STATEMENTS HEREIN NOT
MISLEADING.
SECTION 8.10
PAYMENTS UNDER THE CREDIT AGREEMENT.
THE CREDIT AGREEMENT ALLOWS
FOR PAYMENT OF THE CLOSING FREE CASH FLOW PAYMENT AND THE POST-CLOSING FREE CASH
FLOW ADJUSTMENT AS PROVIDED IN THIS AGREEMENT, INCLUDING SECTION 3.7 AND SECTION
3.8, IN ALL EVENTS AND, PROVIDED THAT AN EVENT OF DEFAULT (AS DEFINED IN THE
CREDIT AGREEMENT) HAS NOT OCCURRED AND IS CONTINUING, THE CREDIT AGREEMENT
PERMITS THE PURCHASER TO MAKE ALL OTHER POST-CLOSING PAYMENTS TO SELLERS
CONTEMPLATED BY THIS AGREEMENT.
ARTICLE IX
CERTAIN COVENANTS
SECTION 9.1
ACCESS.
FOLLOWING THE CLOSING, THE PURCHASER SHALL, AND SHALL
CAUSE THE COMPANY AND BCCM TO, PROVIDE TO THE SELLERS REASONABLE ACCESS TO THE
BOOKS AND RECORDS OF THE COMPANY AND BCCM AND TO PROMPTLY FURNISH THE SELLERS
WITH SUCH FINANCIAL, OPERATING DATA AND OTHER INFORMATION AS SELLERS MAY
REASONABLY REQUEST FOR ACCOUNTING, TAX, LITIGATION OR ANY RELATED PURPOSES.
SECTION 9.2
EMPLOYEES AND EMPLOYMENT.
(A)
FOR THE PURPOSES OF THIS
AGREEMENT THE TERM "ACTIVE EMPLOYEES" SHALL MEAN ALL EMPLOYEES ACTIVELY EMPLOYED
BY DS LLC ON THE CLOSING DATE AND ALL EMPLOYEES OF DS LLC ON LAYOFF, LEAVE OF
ABSENCE OR SHORT TERM DISABILITY ON THE CLOSING DATE (BUT SPECIFICALLY EXCLUDING
ANY INDIVIDUAL ON LONG TERM DISABILITY FOR WHICH THE PURCHASER ASSUMES NO
RESPONSIBILITY).
SCHEDULE 9.2(A) LISTS ALL ACTIVE EMPLOYEES AS OF THE DATE OF
THIS AGREEMENT.
(B)
THE PURCHASER SHALL PROVIDE ALL ACTIVE EMPLOYEES UPON THE COMMENCEMENT OF
THEIR EMPLOYMENT BY THE COMPANY WITH PENSION BENEFIT PLANS AND WELFARE BENEFIT
PROGRAMS WHICH PROVIDE BENEFITS WHICH ARE COMPARABLE, IN THE AGGREGATE, TO THE
BENEFITS PROVIDED UNDER THE PENSION BENEFIT PLANS AND WELFARE