RELEASES
AND OTHER DOCUMENTATION REASONABLY REQUESTED BY PURCHASER IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO PURCHASER PROVIDING FOR THE TERMINATION AND RELEASE
OF ALL LIENS (OTHER THAN
42
PERMITTED LIENS AND LIENS DISCLOSED ON SCHEDULE 4.15(A)) ON THE ASSETS OR
LEASEHOLD INTERESTS OF DS LLC OR ANY SUBSIDIARY.
(G)
CERTIFICATE OF MERGER.
THE CERTIFICATE OF MERGER SHALL HAVE BEEN DULY
FILED AND ACCEPTED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE.
(H)
OTHER DOCUMENTS.
SELLERS SHALL HAVE DELIVERED SUCH OTHER DOCUMENTS AND
INSTRUMENTS AS MAY BE REASONABLY REQUIRED TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE ANCILLARY AGREEMENTS.
SECTION 11.2
PURCHASER DELIVERABLES.
AT THE CLOSING, THE FOLLOWING SHALL BE
DELIVERED TO THE SELLERS:
(A)
CONSIDERATION.
PURCHASER SHALL HAVE DELIVERED THE MERGER CONSIDERATION
AND PURCHASE PRICE BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS PURSUANT TO
THE TERMS OF SECTION 2.6 AND SECTION 3.2, RESPECTIVELY.
(B)
SECRETARY'S CERTIFICATE.
THE PURCHASER SHALL HAVE DELIVERED A CERTIFICATE
OF THE SECRETARY OF PURCHASER CERTIFYING AS TO ITS CERTIFICATE OF INCORPORATION
AND BYLAWS.
(C)
ANCILLARY AGREEMENTS.
PURCHASER SHALL HAVE DELIVERED EACH ANCILLARY
AGREEMENT REQUIRED TO BE DULY AUTHORIZED AND DELIVERED BY PURCHASER OR ITS
AFFILIATES;
(D)
TRANSFER LAWS.
THE COMPANY WILL EXECUTE ALL DOCUMENTS NECESSARY OR
ADVISABLE TO BE EXECUTED BY THE COMPANY IN CONNECTION WITH THE TRANSFER LAWS;
AND
(E)
OTHER DOCUMENTS.
PURCHASER SHALL HAVE DELIVERED SUCH OTHER DOCUMENTS AND
INSTRUMENTS AS MAY BE REASONABLY REQUIRED TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE ANCILLARY AGREEMENTS.
ARTICLE XII
LIABILITIES AND INDEMNIFICATION
SECTION 12.1
SURVIVAL PERIODS.
ALL REPRESENTATIONS, COVENANTS AND WARRANTIES
OF THE PARTIES CONTAINED IN THIS AGREEMENT AND THE RIGHT TO INDEMNIFICATION
PROVIDED IN SECTION 12.2(A) SHALL BE CONTINUING AND SHALL SURVIVE THE CLOSING AS
FOLLOWS: (A) FOR THE TITLE REPRESENTATIONS AND THE OBLIGATION OF ANY BREACHING
SELLER TO INDEMNIFY PURCHASER INDEMNITEES WITH RESPECT TO SUCH SELLER'S TITLE
REPRESENTATIONS AS PROVIDED IN SECTION 12.2(A)(IV), THE EXPIRATION OF THE
APPLICABLE STATUTES OF LIMITATION PERIOD, AND (B), FOR ALL OTHER
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED IN THIS
AGREEMENT, INCLUDING THE COVENANTS CONTAINED IN THIS ARTICLE XII, EIGHTEEN (18)
MONTHS FROM THE CLOSING.
THE TIME PERIODS SET FORTH IN SUBSECTIONS (A) AND (B)
OF THIS SECTION 12.1 ARE COLLECTIVELY THE "SURVIVAL PERIOD").
THE PARTIES
INTEND TO SHORTEN THE STATUTE OF LIMITATIONS AND AGREE THAT NO CLAIMS OR CAUSES
OF ACTION, MAY BE BROUGHT AGAINST ANY PARTY BASED UPON, DIRECTLY OR INDIRECTLY,
ANY OF THE REPRESENTATIONS, WARRANTIES OR AGREEMENTS CONTAINED IN ARTICLE IV,
ARTICLE V, ARTICLE VI, ARTICLE VII AND ARTICLE VIII OR ANY OF THE MATTERS SET
FORTH IN SECTION 12.2(A) HEREOF AFTER THE APPLICABLE SURVIVAL PERIOD.
EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION 12.1, THIS SECTION 12.1 SHALL NOT LIMIT
ANY COVENANT OR AGREEMENT OF THE PARTIES THAT CONTEMPLATES PERFORMANCE AFTER THE
CLOSING, INCLUDING
43
THE COVENANTS AND AGREEMENTS SET FORTH IN ARTICLE X HEREOF AND ANY OTHER
ANCILLARY AGREEMENT; PROVIDED, HOWEVER, FOR THE AVOIDANCE OF DOUBT, THE RIGHT TO
INDEMNIFICATION SET FORTH IN SECTION 12.2(A) SHALL EXPIRE