LEGAL AND BENEFICIAL OWNER OF THAT NUMBER OF DS UNITS SET FORTH OPPOSITE SUCH
MANAGEMENT MEMBER'S NAME ON SCHEDULE 4.5 HEREOF, FREE AND CLEAR OF ALL LIENS
AND, UPON CONSUMMATION OF THE TRANSACTIONS
36
CONTEMPLATED BY THIS AGREEMENT, THE PURCHASER WILL ACQUIRE GOOD, VALID AND
INDEFEASIBLE TITLE TO SUCH MANAGEMENT MEMBER'S DS UNITS.
(B)
THERE ARE NO VOTING TRUSTS, AGREEMENTS, PROXIES OR OTHER
UNDERSTANDINGS IN EFFECT WITH RESPECT TO THE VOTING OR TRANSFER OF SUCH
MANAGEMENT MEMBER'S DS UNITS.
EXCEPT AS MAY BE SET FORTH IN THE DS OPERATING
AGREEMENT, THERE ARE NO OUTSTANDING OR AUTHORIZED STOCK APPRECIATION, PHANTOM
STOCK PARTICIPATION OR SIMILAR RIGHTS WITH RESPECT TO SUCH MANAGEMENT MEMBER'S
DS UNITS.
SECTION 7.5
LITIGATION.
EXCEPT AS DISCLOSED IN SCHEDULE 7.5, THERE ARE NO
OUTSTANDING JUDGMENTS, ORDERS, INJUNCTIONS, DECREES, STIPULATIONS OR AWARDS
(WHETHER RENDERED BY A COURT, ADMINISTRATIVE AGENCY, ARBITRAL BODY OR
GOVERNMENTAL AUTHORITY) AGAINST ANY MANAGEMENT MEMBER WITH RESPECT TO THE
INTERESTS OR THE BUSINESS.
SECTION 7.6
FINDERS' FEES.
EXCEPT AS SET FORTH ON SCHEDULE 7.6, THERE IS NO
INVESTMENT BANKER, BROKER, FINDER OR OTHER INTERMEDIARY WHICH HAS BEEN RETAINED
BY OR IS AUTHORIZED TO ACT ON BEHALF OF THE MANAGEMENT MEMBERS WHO MIGHT BE
ENTITLED TO ANY FEE OR OTHER COMMISSION IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY OF THE ANCILLARY AGREEMENTS.
SECTION 7.7
DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES.
EXCEPT AS
PROVIDED IN THIS AGREEMENT, IN THE ANCILLARY AGREEMENTS, OR IN ANY EXHIBIT
HERETO OR THERETO, NONE OF THE MANAGEMENT MEMBERS MAKE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND, AND THE MANAGEMENT MEMBERS DISCLAIM ALL OTHER
REPRESENTATIONS AND WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as of the date hereof and the
Closing Date as follows:
SECTION 8.1
CORPORATE EXISTENCE AND POWER.
PURCHASER IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE
OF DELAWARE.
PURCHASER HAS ALL CORPORATE POWER REQUIRED TO CARRY ON ITS
BUSINESS AS NOW CONDUCTED.
PURCHASER IS DULY QUALIFIED TO CONDUCT BUSINESS AS A
FOREIGN CORPORATION AND IS IN GOOD STANDING IN EACH JURISDICTION WHERE SUCH
QUALIFICATION IS NECESSARY.
SECTION 8.2
CORPORATE AUTHORIZATION; ENFORCEABILITY.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY PURCHASER OF THIS AGREEMENT AND EACH OF THE
ANCILLARY AGREEMENTS TO WHICH IT WILL BE A PARTY AT THE CLOSING ARE, AND WILL BE
AT THE CLOSING, WITHIN PURCHASER'S CORPORATE POWER AND HAVE BEEN DULY AUTHORIZED
BY THE BOARD OF DIRECTORS OF PURCHASER AND NO OTHER CORPORATE ACTION ON THE PART
OF PURCHASER IS NECESSARY TO AUTHORIZE THIS AGREEMENT OR ANY OF THE ANCILLARY
AGREEMENTS TO WHICH PURCHASER WILL BE A PARTY AT THE CLOSING.
THIS AGREEMENT
HAS BEEN, AND EACH OF THE ANCILLARY AGREEMENTS TO WHICH PURCHASER WILL BE A
PARTY AT THE CLOSING WILL HAVE BEEN, DULY EXECUTED AND DELIVERED BY PURCHASER.
ASSUMING THE DUE EXECUTION AND DELIVERY BY DS LLC, BCCM AND SELLERS