CAUSE TO BE FURNISHED TO THE
INDEPENDENT ACCOUNTANTS SUCH WORK PAPERS AND OTHER DOCUMENTS AND INFORMATION
RELATING TO THE DISPUTED ISSUES AS THE INDEPENDENT ACCOUNTANTS MAY REQUEST AND
ARE AVAILABLE TO THAT PARTY OR ITS AGENTS AND SHALL BE AFFORDED THE OPPORTUNITY
TO PRESENT TO THE
22
INDEPENDENT ACCOUNTANTS ANY MATERIAL RELATING TO THE DISPUTED ISSUES AND TO
DISCUSS THE ISSUES WITH THE INDEPENDENT ACCOUNTANTS; (II) THE DETERMINATION BY
THE INDEPENDENT ACCOUNTANTS, AS SET FORTH IN A REASONABLY DETAILED NOTICE TO BE
DELIVERED TO BOTH PARENT AND BUYER WITHIN FORTY-FIVE (45) DAYS OF THE SUBMISSION
TO THE INDEPENDENT ACCOUNTANTS OF THE ISSUES REMAINING IN DISPUTE, SHALL BE
FINAL, BINDING AND CONCLUSIVE ON THE PARTIES AND SHALL BE USED IN THE
CALCULATION OF THE CLOSING NET ASSET VALUE; AND (III) SELLERS AND BUYER WILL
EACH BEAR FIFTY PERCENT (50%) OF THE FEES AND COSTS OF THE INDEPENDENT
ACCOUNTANTS FOR SUCH DETERMINATION.
IN CONNECTION WITH THE RETENTION OF THE
INDEPENDENT ACCOUNTANTS, SELLERS AND BUYER AGREE THAT THEY WILL ENTER INTO A
CUSTOMARY ENGAGEMENT AGREEMENT THEREWITH, INCLUDING APPROPRIATE PROVISION FOR
JOINT AND SEVERAL INDEMNITY OF SUCH INDEPENDENT ACCOUNTANTS AS TO THEIR SERVICES
AND CONCLUSIONS.
[***]
3.
REPRESENTATIONS AND WARRANTIES OF
SELLERS
As of the date hereof, except with respect to the representations and warranties
in Sections 3.2(c) and 3.17(a), as of August 5, 2005, Sellers, jointly and
severally, represent and warrant to Buyer as follows:
3.1
ORGANIZATION AND GOOD STANDING
Parent is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Texas, SSPS and SSI are corporations duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, each with full corporate power and authority to own, operate and
lease their respective properties and assets and to carry on their respective
businesses in the places and in the manner currently conducted.
S&S Trust is a
business trust duly formed, validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania, with full trust power and authority to own,
operate and lease its properties and assets and to carry on its business in the
places and in the manner currently conducted.
Each Seller, other than S&S
Trust, is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each state or other jurisdiction in which either the
ownership or use of the properties owned or used by it, or the nature of the
activities conducted by it, requires such qualification, except where the
failure to do so would not have a material adverse effect on such Seller or the
Business.
3.2
ENFORCEABILITY; AUTHORITY; NO CONFLICT
(A)
EACH SELLER HAS ALL REQUISITE CORPORATE OR
TRUST POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THE DOCUMENTS TO BE
DELIVERED BY SUCH SELLER AT THE CLOSING AND TO PERFORM ITS OBLIGATIONS HEREUNDER
AND THEREUNDER, INCLUDING THE CONTEMPLATED TRANSACTIONS.
THIS AGREEMENT HAS
BEEN DULY EXECUTED AND DELIVERED BY EACH SELLER AND CONSTITUTES