**Table of Contents**       Page ARTICLE I. THE MERGER  2 Section 1.1. The Merger  2 Section 1.2. Closing  2 Section 1.3. Effective Time  2 Section 1.4. Effects of the Merger  2 Section 1.5. Certificate of Incorporation and By-laws of the Surviving Corporation.  3 Section 1.6. Directors  3 Section 1.7. Officers  3      ARTICLE II. CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES  3 Section 2.1. Effect on Capital Stock  3 Section 2.2. Election Procedures.  6 Section 2.3. Exchange of Shares.  7      ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY  9 Section 3.1. Qualification, Organization, Subsidiaries, etc.  9 Section 3.2. Capital Stock  10 Section 3.3. Corporate Authority Relative to this Agreement; No Violation  13 Section 3.4. Reports and Financial Statements  14 Section 3.5. Internal Controls and Procedures  15 Section 3.6. No Undisclosed Liabilities  15 Section 3.7. Compliance with Law; Permits  16 Section 3.8. Environmental Laws and Regulations  16 Section 3.9. Employee Benefit Plans  18 Section 3.10. Absence of Certain Changes or Events  20 Section 3.11. Investigations; Litigation  20 Section 3.12. Information Supplied  20 Section 3.13. Regulatory Matters  21 Section 3.14. Tax Matters  22 Section 3.15. Employment and Labor Matters  23 Section 3.16. Intellectual Property  24 Section 3.17. Real Property  25 Section 3.18. Required Vote of the Company Stockholders  26 Section 3.19. Opinion of Financial Advisor  26 Section 3.20. Material Contracts  27 Section 3.21. Finders or Brokers  28 Section 3.22. Insurance  28 Section 3.23. Consulting Agreements and Noncompetition Agreements  29 Section 3.24. No Additional Representations  29      ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB  29 
 

 
       Page Section 4.1. Qualification, Organization, Subsidiaries, etc.  29 Section 4.2. Equity Interests  31 Section 4.3. Partnership / Corporate Authority Relative to this Agreement; No Violation  33 Section 4.4. Reports and Financial Statements  34 Section 4.5. Internal Controls and Procedures  34 Section 4.6. No Undisclosed Liabilities  35 Section 4.7. Compliance with Law; Permits  35 Section 4.8. Environmental Laws and Regulations  36 Section 4.9. Employee Benefit Plans  36 Section 4.10. Absence of Certain Changes or Events  37 Section 4.11. Investigations; Litigation  37 Section 4.12. Information Supplied  37 Section 4.13. Regulatory Matters  38 Section 4.14. Tax Matters  38 Section 4.15. Employment and Labor Matters  39 Section 4.16. Real Property  40 Section 4.17. Vote of Parent Partners; Merger Sub Approval  41 Section 4.18. Opinion of Financial Advisors  41 Section 4.19. Material Contracts  41 Section 4.20. Finders or Brokers  43 Section 4.21. Lack of Ownership of Company Common Stock  43 Section 4.22. Financing  43 Section 4.23. No Additional Representations  44      ARTICLE V. COVENANTS AND AGREEMENTS  45 Section 5.1. Conduct of Business by the Company  45 Section 5.2. Conduct of Business by Parent  50 Section 5.3. Mutual Access  52 Section 5.4. Non-Solicitation by the Company  52 Section 5.5. Filings; Other Actions  57 Section 5.6. Equity-Based Awards  58 Section 5.7. Employee Matters  59 Section 5.8. Regulatory Approvals; Commercially Reasonable Efforts  60 Section 5.9. Takeover Statutes  63 Section 5.10. Public Announcements  63 Section 5.11. Indemnification and Insurance  64 Section 5.12. Control of Operations  65 Section 5.13. Certain Transfer Taxes  65 Section 5.14. Section 16 Matters  66 Section 5.15. Agreed Tax Treatment  66 Section 5.16. Tax Representation Letters  66 Section 5.17. NYSE Listing  66 Section 5.18. Financing and Financing Assistance.  67 
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       Page ARTICLE VI. CONDITIONS TO THE MERGER  69 Section 6.1. Conditions to Each Party’s Obligation to Effect the Merger  69 Section 6.2. Conditions to Obligation of the Company to Effect the Merger  70 Section 6.3. Conditions to Obligation of Parent to Effect the Merger  71 Section 6.4. Intentionally Omitted  72 Section 6.5. Frustration of Closing Conditions  72      ARTICLE VII. TERMINATION  72 Section 7.1. Termination or Abandonment  72 Section 7.2. Effect of Termination  73 Section 7.3. Expense Reimbursement; Breakup Fee  73      ARTICLE VIII. MISCELLANEOUS  76 Section 8.1. No Survival  76 Section 8.2. Expenses  76 Section 8.3. Counterparts; Effectiveness  76 Section 8.4. Governing Law  76 Section 8.5. Jurisdiction; Specific Enforcement  76 Section 8.6. WAIVER OF JURY TRIAL  77 Section 8.7. Notices  77 Section 8.8. Assignment; Binding Effect  79 Section 8.9. Severability  79 Section 8.10. Entire Agreement  79 Section 8.11. Amendments; Waivers  79 Section 8.12. Headings  79 Section 8.13. No Third Party Beneficiaries  80 Section 8.14. Interpretation  80 Section 8.15. Definitions  80 Exhibit A Form of Support Agreements
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     AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as ofJuly 4, 2011 (the “Amendment Date”), by and among Energy Transfer Equity, L.P., a Delawarelimited partnership (“Parent”), Sigma Acquisition Corporation, a Delaware corporation and adirect wholly owned subsidiary of Parent (“Merger Sub”), and Southern Union Company, aDelaware corporation (the “Company”).WITNESSETH :     WHEREAS, on June 15, 2011, the parties entered into an Agreement and Plan of Merger (the“Original Merger Agreement”);     WHEREAS, the parties are entering into this Amended and Restated Agreement and Plan of Mergerin order to modify certain terms and conditions of the Original Merger Agreement, with effect fromthe date of execution of the Original Agreement;     WHEREAS, the parties intend that Merger Sub be merged with and into the Company (the“Merger”), with the Company surviving the Merger as a direct wholly owned subsidiary ofParent;     WHEREAS, each of the Board of Directors of the Company and Merger Sub have (a) determined thatit is in the best interests of the Company and Merger Sub, respectively, and their respectivestockholders, and declared it advisable, to enter into this Agreement, (b) approved the execution,delivery and performance of this Agreement and the consummation of the transactions contemplatedhereby, including the Merger and (c) resolved to recommend adoption of this Agreement by theirrespective stockholders;     WHEREAS, the general partner of Parent has (a) determined that it is in the best interests ofParent and its unitholders, and declared it advisable, to enter into this Agreement and (b)approved the execution, delivery and performance of this Agreement and the consummation of thetransactions contemplated hereby, including the Merger and the Unit Issuance (as defined herein);     WHEREAS, simultaneously with, and as a condition to, the execution of this Amended andRestated Merger Agreement, certain stockholders of the Company are executing either an amended andrestated support agreement with Parent or a new support agreement, each dated as of the AmendmentDate, in the form of Exhibit A hereto (the “Support Agreements”), pursuant towhich, among other things, such shareholders have agreed to vote the shares of Common Stock ofwhich they are the record or beneficial owner in favor of the approval of this Agreement and theMerger and/or have agreed to make a Common Unit Election with respect to such shares of CommonStock in accordance with Section 2.1; and     WHEREAS, for Federal income tax purposes, it is intended that the Merger qualify under Section721(a) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect toholders of Company Common Stock receiving Common Units as Merger Consideration; and     WHEREAS, Parent, Merger Sub and the Company desire to make certain representations,warranties, covenants and agreements specified herein in connection with this Agreement.
 

 
     NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,covenants and agreements contained herein, and intending to be legally bound hereby, Parent, MergerSub and the Company agree as follows, and the Original Agreement is hereby amended and restated inits entirety with effect from the date of execution of the Original Agreement, as follows:**ARTICLE I.****THE MERGER**     Section 1.1. The Merger. At the Effective Time, upon the terms and subject to theconditions set forth in this Agreement and in accordance with the applicable provisions of theGeneral Corporation Law of the State of Delaware (the “DGCL”), Merger Sub shall be mergedwith and into the Company, whereupon the separate corporate existence of Merger Sub shall cease,and the Company shall continue its corporate existence under Delaware law as the survivingcorporation in the Merger (the “Surviving Corporation”) and a direct wholly ownedsubsidiary of Parent.     Section 1.2. Closing. The closing of the Merger (the “Closing”) shall take placeat the offices of Locke Lord Bissell & Liddell, 600 Travis Street, Suite 2800, Houston, Texas at10:00 a.m., local time, on a date to be agreed upon by the parties in writing (the “ClosingDate”), which shall be no later than the third business day after the satisfaction or waiver(to the extent permitted by applicable Law) of the conditions set forth in Article VI (other thanthose conditions that by their nature are to be satisfied by action taken at the Closing, butsubject to the satisfaction or waiver of such conditions), or at such other place, date and time asthe Company and Parent may agree in writing; provided, however, that upon satisfaction orwaiver of all the conditions set forth in Article VI (excluding conditions that, by their terms,cannot be satisfied until the Closing Date, but subject to the satisfaction or waiver of suchconditions) Parent may, on one occasion, by giving written notice to the Company no later than twobusiness days prior to the date the Closing is scheduled to occur, elect to postpone the ClosingDate for a period of time not to exceed 15 consecutive business days in order to facilitate theFinancings.     Section 1.3. Effective Time. On the Closing Date, the Company and Merger Sub shall filethe certificate of merger (the “Certificate of Merger”), executed in accordance with, andcontaining such information as is required by, the relevant provisions of the DGCL with theSecretary of State of the State of Delaware. The Merger shall become effective at such time as theCertificate of Merger is duly filed with the Secretary of State of the State of Delaware, or atsuch later time as is agreed between the parties and specified in the Certificate of Merger inaccordance with the relevant provisions of the DGCL (such date and time is hereinafter referred toas the “Effective Time”).     Section 1.4. Effects of the Merger. The effects of the Merger shall be as provided in this Agreement and in the applicableprovisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, atthe Effective Time, all of the property, rights, privileges, powers and franchises of the Companyand Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties ofthe Company and Merger Sub shall become the debts, liabilities and duties of the SurvivingCorporation, all as provided under the DGCL.
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     Section 1.5. Certificate of Incorporation and By-laws of the Surviving Corporation.     (a) At the Effective Time, the certificate of incorporation of Merger Sub, as in effectimmediately prior to the Effective Time, shall be the certificate of incorporation of the SurvivingCorporation until thereafter amended in accordance with the provisions thereof and applicable Law.     (b) At the Effective Time, the by-laws of Merger Sub, as in effect immediately prior to theEffective Time, shall be the by-laws of the Surviving Corporation until thereafter amended inaccordance with the provisions thereof and hereof and applicable Law.Section 1.6. Directors. Subject to applicable Law, the directors of Merger Sub immediatelyprior to the Effective Time shall be the initial directors of the Surviving Corporation and shallhold office until their respective successors are duly elected and qualified, or their earlierdeath, resignation or removal.Section 1.7. Officers. The officers of Merger Sub immediately prior to the Effective Timeshall be the initial officers of the Surviving Corporation and shall hold office until theirrespective successors are duly elected and qualified, or their earlier death, resignation orremoval.**ARTICLE II.****CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES**     Section 2.1. (a) Effect on Capital Stock. At the Effective Time, by virtue of the Mergerand without any action on the part of the Company, Merger Sub or the holders of any securities ofthe Company or Merger Sub, each share of common stock, par value $1.00 per share of the Company(such shares, collectively, “Company Common Stock”, and each, a “Share”) issued andoutstanding immediately prior to the Effective Time (other than Cancelled Shares and DissentingShares) shall, by virtue of this Agreement and without any action on the part of the holderthereof, be converted into and shall thereafter represent the right to receive the followingconsideration (collectively, the “Merger Consideration”), calculated in the followingorder:     (i) Each share of Company Common Stock issued and outstanding immediately priorto the Effective Time with respect to which an election toreceive cash (a “Cash Election”) has been effectively made and notrevoked or lost pursuant to Section 2.2 (each, a “Cash Election Share”)shall be converted into the right to receive $40.00 in cash without interest (the“Per Share Cash Consideration”); provided, however, if (A)the product of the Per Share Cash Consideration and the number of Cash ElectionShares (such product being the “Cash Election Amount”) exceeds the AvailableCash Election Amount, then each Cash Election Share shall be converted into a rightto receive (1) an amount of cash (without interest) equal to the product of (p) thePer Share Cash Consideration and (q) a fraction, the numerator of which shall be theAvailable Cash Election Amount and the denominator of which shall be the CashElection
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Amount (such fraction being the “Cash Fraction”) and (2) a numberof Common Units equal to the product of (r) 0.903 (the “Exchange Ratio”) and(s) one (1) minus the Cash Fraction. The “Available Cash Election Amount”shall equal (A) the product of (x) 0.60, (y) the Per Share Cash Consideration and(z) the total number of shares of Company Common Stock (other than the CancelledShares) issued and outstanding immediately prior to the Effective Time minus(B) the product of the Per Share Cash Consideration and the total number ofDissenting Shares immediately prior to the Effective Time.     (ii) Each share of Company Common Stock issued and outstanding immediatelyprior to the Effective Time with respect to which an election to receiveconsideration consisting of Common Units (a “Common Unit Election”) isproperly made and not revoked or lost pursuant to Section 2.2 (each, a “CommonUnit Election Share”), and each No Election Share (which shall be deemed to beCommon Unit Election Shares for purposes of this Section 2.1(a)(ii)), shall beconverted into the right to receive that number of Common Units equal to theExchange Ratio (together with any cash in lieu of fractional Common Units to be paidpursuant to Section 2.1(d), the “Per Share Common Unit Consideration”);provided, however, if the Cash Election Amount is less than an amount equalto 5/6 (five sixths) multiplied by the Available Cash Election Amount (the amount ofsuch shortfall, if any, the “Shortfall Amount”), then each Common UnitElection Share shall be converted into the right to receive (1) a number of CommonUnits equal to the product of (x) the Exchange Ratio and (y) a fraction, thenumerator of which shall be the Per Share Cash Consideration minus the amount ofcash calculated in clause (2) below and the denominator of which shall be the PerShare Cash Consideration and (2) an amount of cash (without interest) equal to theamount the Shortfall Amount divided by the number of Common Unit Election Shares.     (b) Cancellation of Shares. Each Share that is held directly or indirectly by theCompany or any of its wholly owned Subsidiaries immediately prior to the Effective Time (in eachcase, other than any Shares held on behalf of third parties) (the “Cancelled Shares”)shall, by virtue of the Merger and without any action on the part of the holder thereof, becancelled and retired and shall cease to exist, and no consideration shall be delivered in exchangefor such cancellation and retirement.     (c) Conversion of Merger Sub Common Stock. At the Effective Time, by virtue of theMerger and without any action on the part of the holder thereof, each share of common stock, parvalue $1.00 per share, of Merger Sub issued and outstanding immediately prior to the Effective Timeshall be converted into and become one validly issued, fully-paid and nonassessable share of commonstock, par value $1.00 per share, of the Surviving Corporation and shall constitute the onlyoutstanding shares of capital stock of the Surviving Corporation. From and after the EffectiveTime, all certificates representing the capital stock of Merger Sub shall be deemed for allpurposes to represent the number of shares of common stock of the Surviving Corporation into whichthey were converted in accordance with the immediately preceding sentence.
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     (d) Fractional Units. No fractional Common Units shall be issued in the Merger, butin lieu thereof each holder of Shares otherwise entitled to a fractionalCommon Unit will be entitled to receive, from the Exchange Agent in accordance with theprovisions of this Section 2.1(d), a cash payment in lieu of such fractional Common Unitrepresenting such holder’s proportionate interest, if any, in the proceeds from the sale by theExchange Agent (reduced by any fees of the Exchange Agent attributable to such sale) in one or moretransactions of Common Units equal to the excess of (A) the aggregate number of Common Units to bedelivered to the Exchange Agent by Parent pursuant to Section 2.3(a) over (B) the aggregate numberof whole Common Units to be distributed to the holders of Shares pursuant to Section 2.3(b) (suchexcess, the “Excess Shares”). No certificates or scrip representing fractional Common Unitsshall be issued in the Merger. The parties acknowledge that payment of the cash consideration inlieu of issuing fractional Common Units was not separately bargained-for consideration but merelyrepresents a mechanical rounding off for purposes of avoiding the expense and inconvenience toParent that would otherwise be caused by the issuance of fractional Common Units. As soon aspracticable after the determination of the amount of cash, if any, to be paid to holders of Sharesin lieu of any fractional Common Units, the Exchange Agent shall make available such amounts tosuch holders of Shares, without interest, subject to and in accordance with Section 2.2.     (e) Adjustments to the Exchange Ratio. If at any time during the period between thedate of this Agreement and the Effective Time, any change in the outstanding shares of capitalstock of the Company or Parent shall occur as a result of any reclassification, stock or unit split(including a reverse stock or unit split) or combination, exchange or readjustment of shares orunits, or any stock or unit dividend or stock or unit distribution with a record date during suchperiod, the Exchange Ratio, the Per Share Common Unit Consideration, the Per Share CashConsideration, the Merger Consideration and any other similarly dependent items shall be equitablyadjusted to provide to Parent, Merger Sub and the holders of Company Common Stock the same economiceffect as contemplated by this Agreement prior to such action, and thereafter, all references inthis Agreement to the “Exchange Ratio,” “Per Share Common Unit Consideration,” “Per Share CashConsideration,” “Merger Consideration” and any other similarly dependent items shall be referencesto the Exchange Ratio, Per Share Common Unit Consideration, Per Share Cash Consideration, MergerConsideration and any other similarly dependent items as so adjusted;provided, however, thatnothing in this Section 2.1(e) shall be deemed to permit or authorize any party hereto to effectany such change that it is not otherwise authorized or permitted to undertake pursuant to thisAgreement.     (f) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary,Shares that are issued and outstanding immediately prior to the Effective Time and which are heldby stockholders properly exercising appraisal rights available under Section 262 of the DGCL (the“Dissenting Shares”) shall not be converted into or be exchangeable for the right toreceive the Merger Consideration, unless and until such holders shall have failed to perfect orshall have effectively withdrawn or lost their rights to appraisal under the DGCL. Holders ofDissenting Shares shall be entitled to payment of the appraised value of the Dissenting Shares heldby them to the extent permitted by and in accordance with Section 262 of the DGCL. If any suchholder shall have failed to perfect or shall have effectively withdrawn or lost such right toappraisal, such holder’s Shares shall thereupon be converted into and become exchangeable only forthe right to receive, as of the later of the Effective Time and the time that such right to
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appraisal shall have been irrevocably lost, withdrawn or expired, the Merger Considerationspecified in Section 2.1(a)(iii); provided, in such circumstance, to the fullest extentpermitted by Law, that Parent shall be entitled at its sole option to convert each such share intothe right to receive the Merger Consideration specified in either Section 2.1(a)(i) or 2.1(a)(ii).The Company shall give Parent and Merger Sub (i) prompt written notice of any demands for appraisalof any Shares, attempted withdrawals of such demands and any other instruments served pursuant tothe DGCL and received by the Company relating to rights to be paid the “fair value” of DissentingShares, as provided in Section 262 of the DGCL, and (ii) the opportunity to participate innegotiations and proceedings with respect to demands for appraisal under the DGCL. The Companyshall not, except with the prior written consent of Parent which will not be unreasonably withheldor delayed, voluntarily make or agree to make any material payment with respect to any demands forappraisals of capital stock of the Company, offer to settle or settle any such demands.     Section 2.2. Election Procedures.     (a) An election form and other appropriate and customary transmittal materials (which shallspecify that delivery shall be effected, and risk of loss and title to the certificates theretoforerepresenting shares of Company Common Stock shall pass, only upon proper delivery of suchCertificates to the Exchange Agent) in such form as Parent shall specify and as shall be reasonablyacceptable to the Company (the “Election Form”) shall be mailed thirty days prior to theanticipated Closing Date or on such other date as Parent and the Company shall mutually agree (the“Mailing Date”) to each holder of record of Company Common Stock as of the close ofbusiness on the fifth business day prior to the Mailing Date (the “Election Form RecordDate”).     (b) Each Election Form shall permit the holder (or the beneficial owner through appropriateand customary documentation and instructions), other than any holder of Dissenting Shares, tospecify (i) the number of shares of such holder’s Company Common Stock with respect to which suchholder elects to receive the Per Share Common Unit Consideration and (ii) the number of shares ofsuch holder’s Company Common Stock with respect to which such holder elects to receive the PerShare Cash Consideration. Any Shares with respect to which the Exchange Agent has not received aneffective, properly completed Election Form on or before 5:00 p.m., New York time, on the twentieth(20th) day following the Mailing Date (or such other time and date as Parent and the Company shallagree) (the “Election Deadline”) (other than Cancelled Shares or any shares of Company Common Stock that constitute Dissenting Shares as ofsuch time) shall be deemed to be “No Election Shares”.     (c) Parent shall make available one or more Election Forms as may reasonably be requested fromtime to time by all Persons who become holders (or beneficial owners) of Company Common Stockbetween the Election Form Record Date and the close of business on the business day prior to theElection Deadline, and the Company shall provide to the Exchange Agent all information reasonablynecessary for it to perform as specified herein.     (d) Any such election shall have been properly made only if the Exchange Agent shall haveactually received a properly completed Election Form by the Election Deadline. An Election Formshall be deemed properly completed only if accompanied by one or more
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certificates (or customary affidavits and, if required by Parent, the posting by such Person of a bond, in such reasonableamount as Parent may direct, as indemnity against any claim that may be made against it withrespect to such certificate) representing all shares of Company Common Stock covered by suchElection Form, together with duly executed transmittal materials included in the Election Form.Any Election Form may be revoked or changed by the Person submitting such Election Form, by writtennotice received by the Exchange Agent prior to the Election Deadline. In the event an ElectionForm is revoked prior to the Election Deadline, the shares of Company Common Stock represented bysuch Election Form shall become No Election Shares and Parent shall cause the certificatesrepresenting such shares of Parent Common Stock to be promptly returned without charge to thePerson submitting the Election Form upon written request to that effect from the holder whosubmitted the Election Form, except to the extent (if any) a subsequent election is properly madewith respect to any or all of such shares of Company Common Stock. Subject to the terms of thisAgreement and of the Election Form, the Exchange Agent shall have reasonable discretion todetermine whether any election, revocation or change has been properly or timely made and todisregard immaterial defects in the Election Forms, and any good faith decisions of the ExchangeAgent regarding such matters shall be binding and conclusive. None of Parent, the Company or theExchange Agent shall be under any obligation to notify any Person of any defect in an ElectionForm.     Section 2.3. Exchange of Shares.     (a) Exchange Agent. Prior to the Effective Time, Parent shall appoint an exchangeagent mutually acceptable to Parent and the Company (the “Exchange Agent”) for the purposeof exchanging Shares for Merger Consideration. Prior to the Effective Time, Parent shall deposit,or shall cause to be deposited, with the Exchange Agent, in trust for the benefit of holders of theShares (other than the Cancelled Shares and any Dissenting Shares), certificates representing theCommon Units issuable pursuant to Section 2.1(a) and Section 5.6(a) (or appropriate alternativearrangements shall be made by Parent if uncertificated Common Units will be issued) and an amountof cash sufficient to effect the delivery of the Merger Consideration to the holders of CompanyCommon Shares (other than Cancelled Shares and any Dissenting Shares). Following the EffectiveTime, Parent agrees to make available to the Exchange Agent, from time to time as needed, cashsufficient to pay any distributions pursuant to Section 2.3(c). All such certificates representingCommon Units and cash deposited with the Exchange Agent from time to time is hereinafter referredto as the “Exchange Fund.”     (b) Exchange Procedures. As soon as reasonably practicable after the Effective Timeand in any event not later than the fifth business day following the Effective Time, Parent shallcause the Exchange Agent to mail to each holder of Shares, which at the Effective Time wereconverted into the right to receive the Merger Consideration pursuant to Section 2.1, (i) a letterof transmittal (which shall specify that delivery shall be effected, and that risk of loss andtitle to the Shares shall pass, only upon delivery of the Shares to the Exchange Agent) and (ii)instructions for use in effecting the surrender of the Shares in exchange for, as applicable, cashMerger Consideration, certificates representing whole Common Units (or appropriate alternativearrangements shall be made by Parent if uncertificated Common Units will be issued), cash in lieuof any fractional Common Units pursuant to Section 2.1(d) and any distributions payable pursuant toSection 2.3(c). Upon surrender of Shares for cancellation to the Exchange Agent, together with suchletter of transmittal, duly completed and validly executed in
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accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holderof such Shares shall be entitled to receive in exchange therefor, as applicable, that number ofwhole Common Units (after taking into account all Shares surrendered by such holder) to which suchholder is entitled pursuant to Section 2.1 and payment by cash or check of that amount of cashMerger Consideration to which such holder is entitled pursuant to Section 2.1, that amount of cashin lieu of fractional Common Units which such holder is entitled to receive pursuant to Section2.1(d) and any distributions payable pursuant to Section 2.3(c), and the Shares so surrenderedshall forthwith be cancelled. If any cash payment is to be made to, or any Common Unitsconstituting any part of the Merger Consideration is to be registered in the name of, a personother than the person in whose name the applicable surrendered Share is registered, it shall be acondition to the payment or registration thereof that the surrendered Share be in proper form fortransfer and that the person requesting such payment or delivery of the Merger Consideration payany transfer or other similar Taxes required as a result of such registration in the name of aperson other than the registered holder of such Share or establish to the satisfaction of theExchange Agent that such Tax has been paid or is not payable. Until surrendered as contemplated bythis Section 2.2(b), each Share shall be deemed at any time after the Effective Time to representonly the right to receive the Merger Consideration (and any amounts to be paid pursuant to Section2.1(d) or Section 2.3(c)) upon such surrender. No interest shall be paid or shall accrue on anyamount payable pursuant to Section 2.1(d) or Section 2.3(c).     (c) Distributions with Respect to Unexchanged Shares. No distributions with respectto Common Units with a record date after the Effective Time shall be paid to the holder of anyunsurrendered Share with respect to the Common Units represented thereby, and no cash payment inlieu of fractional Common Units shall be paid to any such holder pursuant to Section 2.1(d), untilsuch Share has been surrendered in accordance with this Article II. Subject to applicable Laws,following surrender of any such Share, there shall be paid to the recordholder thereof, withoutinterest, (i) promptly after such surrender, the number of whole Common Units issuable in exchangetherefor pursuant to this Article II, together with any cash payable in lieu of a fractional CommonUnit to which such holder is entitled pursuant to Section 2.1(d) and the amount of distributionswith a record date after the Effective Time theretofore paid with respect to such whole CommonUnits and (ii) at the appropriate payment date, the amount of distributions with a record dateafter the Effective Time and a payment date subsequent to such surrender payable with respect tosuch whole Common Units. The Exchange Agent shall be entitled to deduct and withhold from theconsideration otherwise payable under this Agreement to any holder of Shares, such amounts as are required to be withheld or deducted under theCode or any provision of U.S. state or local Tax Law with respect to the making of such payment.To the extent that amounts are so withheld or deducted and paid over to the applicable GovernmentalEntity, such withheld or deducted amounts shall be treated for all purposes of this Agreement ashaving been paid to the holder of the Shares, in respect of which such deduction and withholdingwere made.     (d) No Further Ownership Rights in Company Common Stock; Closing of Transfer Books.All Common Units issued upon the surrender for exchange of Shares in accordance with the terms ofthis Article II and any cash paid pursuant to Section 2.1(d) or Section 2.3(c) shall be deemed tohave been issued (or paid) in full satisfaction of all rights pertaining to the Shares previouslyrepresented by such Shares. After the Effective Time, the stock transfer books of the
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Company shall be closed, and there shall be no further registration of transfers on the stock transferbooks of the Surviving Corporation of the Shares that were outstanding immediately prior to theEffective Time. If, after the Effective Time, Shares are presented to the Surviving Corporation orthe Exchange Agent for any reason, they shall be cancelled and exchanged as provided in thisArticle II.     (e) Termination of Exchange Fund. Any portion of the Exchange Fund (including theproceeds of any investments thereof) that remains undistributed to the former holders of Shares forone year after the Effective Time shall be delivered to Parent upon demand, and any holders ofShares who have not theretofore complied with this Article II shall thereafter look only to Parentfor payment of their claim for the Merger Consideration, any cash in lieu of fractional CommonUnits pursuant to Section 2.1(d) and any distributions pursuant to Section 2.3(c).     (f) No Liability. Notwithstanding anything in this Agreement to the contrary, none ofthe Company, Parent, Merger Sub, the Surviving Corporation, the Exchange Agent or any other personshall be liable to any former holder of Shares for any amount properly delivered to a publicofficial pursuant to any applicable abandoned property, escheat or similar Law.**ARTICLE III.****REPRESENTATIONS AND WARRANTIES OF THE COMPANY**     Except as disclosed in the Company SEC Documents (excluding any disclosures set forth in any“risk factor” section and in any section relating to forward-looking statements, to the extent thatthey are cautionary, predictive or forward-looking in nature), where the relevance of theinformation as an exception to (or disclosure for purposes of) a particular representation isreasonably apparent on the face of such disclosure, or in the disclosure schedule delivered by theCompany to Parent immediately prior to the execution of this Agreement (the “Company DisclosureSchedule”) (each section of which qualifies the correspondingly numbered representation,warranty or covenant if specified therein and such other representations, warranties or covenantswhere its relevance as an exception to (or disclosure for purposes of) such other representation,warranty or covenant is reasonably apparent), the Company represents and warrants to Parent andMerger Sub as follows:     Section 3.1. Qualification, Organization, Subsidiaries, etc.     (a) Each of the Company and its Subsidiaries is a legal entity duly organized, validlyexisting and in good standing under the Laws of its respective jurisdiction of organization and hasall requisite corporate or similar power and authority to own, lease and operate its properties andassets, to carry on its business as presently conducted and to perform its material obligationsunder all Company Material Contracts. Each of the Company and its Subsidiaries is qualified to dobusiness and is in good standing as a foreign corporation in each jurisdiction where the ownership,leasing or operation of its assets or properties or conduct of its business requires suchqualification, except where the failure to be so organized, validly existing, qualified or in goodstanding, or to have such power or authority, would not have, individually or in the aggregate, aCompany Material Adverse Effect.
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     (b) As used in this Agreement, a “Company Material Adverse Effect” means a materialadverse event, change, effect, development, condition or occurrence on or with respect to thebusiness, financial condition or continuing results of operations of the Company and itsSubsidiaries, taken as a whole, other than any event, change, effect, development, condition oroccurrence: (i) disclosed in the Company SEC Documents filed or furnished prior to the date of thisAgreement (excluding any disclosure set forth in any risk factor section, or in any Sectionrelating to forward looking statements, and any other disclosures therein, in each case, to theextent that they are cautionary and predictive or forward looking in nature) or as disclosed on theface of the Company Disclosure Schedule, (ii) in or generally affecting the economy or thefinancial or securities markets in the United States or elsewhere in the world or (iii) resultingfrom or arising out of (A) any changes or developments in national, regional, state or localwholesale or retail markets for natural gas, natural gas transmission or distribution, or relatedproducts or services including those due to actions by competitors or due to changes in commoditiesprices or hedging markets therefor, (B) any changes or developments in national, regional, state orlocal wholesale or retail natural gas prices, (C) the announcement or the existence of, orcompliance with, this Agreement or the Original Merger Agreement or the transactions contemplatedhereby or thereby (including the impact thereof on the relationships, contractual or otherwise, ofthe Company or any of its Subsidiaries with employees, labor unions, customers, suppliers orpartners, and including any lawsuit, action or other proceeding with respect to the Merger or anyof the other transactions contemplated by this Agreement or the Original Merger Agreement), (D) anytaking of any action at the written request of Parent or Merger Sub, (E) any adoption,implementation, promulgation, repeal, modification, reinterpretation or proposal of any rule,regulation, ordinance, order, protocol or any other Law of or by any national, regional, state orlocal Governmental Entity, or market administrator, (F) any changes in GAAP or accounting standardsor interpretations thereof, (G) any weather-related or other force majeure event or outbreak orescalation of hostilities or acts of war or terrorism, or (H) any changes in the share price ortrading volume of the Shares or in the Company’s credit rating, or the failure of the Company tomeet projections or forecasts (unless due to any event, change, effect, development, condition oroccurrence which has otherwise resulted in a Company Material Adverse Effect); except, ineach case with respect to subclauses (A) — (B) and (E) — (G) of this clause (iii), to the extentmaterially and disproportionately affecting the Company and its Subsidiaries, taken as a whole, relative to other similarly situated companies in theindustries in which the Company and its Subsidiaries operate.     (c) The Company SEC Documents include a true and complete copy of the Company’s amended andrestated certificate of incorporation and by-laws, each as amended through the date hereof(collectively, the “Company Organizational Documents”), and promptly upon request, theCompany will make available to Parent the certificate of incorporation, certificate of limitedpartnership, certificate of formation, bylaws, limited partnership agreement, limited liabilitycompany agreement or comparable constituent or organizational documents of each material Subsidiaryof the Company.     Section 3.2. Capital Stock.     (a) The authorized capital stock of the Company consists of 200,000,000 shares of CompanyCommon Stock, par value, $1.00 per share and 6,000,000 shares of preferred stock, no par value pershare (“Company Preferred Stock”). As of June 14, 2011, (i) 125,960,694 shares
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of Company Common Stock were issued and 124,721,110 shares were outstanding, which does not include restrictedstock awards outstanding as of such date, (ii) 1,239,584 shares of Company Common Stock were heldin treasury, (iii) 341,213 restricted shares were issuable and, based on a price of $28.75 pershare of Company Common Stock, 4,090,310 shares of Company Common Stock were issuable, in each casepursuant to the Company Stock Plans in respect of Company Equity Awards, and (iv) no shares ofCompany Preferred Stock were issued or outstanding. All outstanding shares of Company Common Stockare duly authorized, validly issued, fully-paid and nonassessable and free of preemptive rights andall shares of Company Common Stock reserved for issuance as noted in clause (iii), when issued inaccordance with the respective terms thereof, will be duly authorized, validly issued, fully-paidand nonassessable and free of preemptive rights.     (b) Except as set forth in Section 3.2(b) of the Company Disclosure Schedule and in subsection(a) above (and other than Shares issuable pursuant to the terms of outstanding awards under theCompany Stock Plans), there are no outstanding subscriptions, options, warrants, calls, convertiblesecurities, exchangeable securities or other similar rights, agreements or commitments to which theCompany or any of its Subsidiaries is a party (i) obligating the Company or any of its Subsidiariesto (A) issue, transfer, exchange, sell or register for sale any shares of capital stock or otherequity interests of the Company or any Subsidiary of the Company or securities convertible into orexchangeable for such shares or equity interests, (B) grant, extend or enter into any suchsubscription, option, warrant, call, convertible securities or other similar right, agreement orarrangement, (C) redeem or otherwise acquire any such shares of capital stock or other equityinterests or (D) provide a material amount of funds to, or make any material investment (in theform of a loan, capital contribution or otherwise) in, any Subsidiary or (ii) granting anypreemptive or antidilutive or similar rights with respect to any security issued by the Company orany of its Subsidiaries.     (c) Neither the Company nor any of its Subsidiaries has outstanding bonds, debentures, notesor other indebtedness, the holders of which have the right to vote (or which are convertible or exchangeable into or exercisable for securities having the right to vote) withthe stockholders of the Company on any matter.     (d) There are no voting trusts or other agreements or understandings to which the Company orany of its Subsidiaries is a party with respect to the voting or registration of the capital stockor other equity interest of the Company or any of its Subsidiaries.     (e) The Company SEC Documents contain an accurate and complete copy of the Company Stock Plansand the forms of Company Stock Awards and Company RSUs (collectively, “Company EquityAwards”). There have been no repricings of any Company Stock Awards through amendments,cancellation and reissuance or other means since January 1, 2009. None of the Company EquityAwards have been granted in contemplation of the Merger or the transactions contemplated in thisAgreement and, except as set forth on Section 3.2(e) of the Company Disclosure Schedule, no CompanyEquity Awards have been granted since December 31, 2010. None of the Company Stock Awards wasgranted with an exercise price below or deemed to be below the per Share closing price on the NewYork Stock Exchange (the “NYSE”) on the date of grant. All grants of Company Equity Awardswere validly made and properly approved by the Board of Directors of the Company (or a dulyauthorized committee or
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subcommittee thereof) in compliance with all applicable Laws and the termsof the applicable Company Stock Plan and recorded on the consolidated financial statements of theCompany in accordance with GAAP, and, where applicable, no such grants involved any “back dating,”“forward dating” or similar practices with respect to grants of Company Stock Awards. Section3.2(e) of the Company Disclosure Schedule sets forth a complete list of all Company Equity Awardsoutstanding as of the date hereof and with respect to each Company Equity Award, the holderthereof, the number of shares of Company Common Stock subject thereto and the exercise pricethereof, if applicable.     (f) Except as set forth in Section 3.2(f) of the Company Disclosure Schedule, the Company or aCompany Subsidiary owns, directly or indirectly, all of the issued and outstanding shares ofcapital stock or other equity interests of each Subsidiary of the Company, free and clear of anyLiens other than Company Permitted Liens, and all of such shares of capital stock or other equityinterests are duly authorized, validly issued, fully-paid and nonassessable (except as suchnonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of theDelaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) or Sections 18-607and 18-804 of the Delaware Limited Liability Company Act, as amended (the “Delaware LLCAct”)) and free of preemptive rights. Except as set forth on Section 3.2(f) of the CompanyDisclosure Schedule and for equity interests in the Company’s Subsidiaries, neither the Company norany of its Subsidiaries owns, directly or indirectly, any equity interest in any person (or anysecurity or other right, agreement or commitment convertible or exercisable into, or exchangeablefor, any equity interest in any person), or has any obligation to acquire any such equity interest,security, right, agreement or commitment or to provide funds to or make any investment (in the formof a loan, capital contribution or otherwise) in, any person.     (g) As used in this Agreement, “Company Permitted Lien” means any Lien (i) for Taxesor governmental assessments, charges or claims of payment not yet delinquent, being contested ingood faith or for which adequate accruals or reserves have been established, (ii) that is acarriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lienarising in the ordinary course of business, (iii) arising under conditional sales contractsand equipment leases with third parties entered into in the ordinary course of business, (iv) notcreated by the Company or its Subsidiaries that affect the underlying fee interest of a CompanyLeased Real Property, (v) that is disclosed on the most recent consolidated balance sheet of theCompany included in the Company SEC Documents or notes thereto or securing liabilities reflected onsuch balance sheet, (vi) created pursuant to the agreements set forth on Section 3.2(g) of theCompany Disclosure Schedule, (vii) grants to others of Rights-of-Way, surface leases, crossingrights and amendments, modifications, and releases of Rights-of-Way, easements and surface leasesin the ordinary course of business, (viii) with respect to Rights-of-Way, restrictions on theexercise of any of the rights under a granting instrument that are set forth therein or in anotherexecuted agreement, that is of public record or to which the Company or any of its Subsidiariesotherwise has access, between the parties thereto, (ix) which an accurate up-to-date survey wouldshow, (x) resulting from any facts or circumstances relating to Parent or its Affiliates, or (xi)that does not and would not reasonably be expected to materially impair the continued use of aCompany Owned Real Property or a Company Leased Real Property as currently operated.
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     (h) As used in this Agreement, “Rights-of-Way” means easements, licenses,rights-of-way, permits, servitudes, leasehold estates, instruments creating an interest in realproperty, and other similar real estate interests.     Section 3.3. Corporate Authority Relative to this Agreement; No Violation.     (a) The Company has the requisite corporate power and authority to enter into this Agreementand, subject to receipt of the Company Stockholder Approval, to consummate the transactionscontemplated hereby. The execution and delivery of this Agreement and the consummation of thetransactions contemplated hereby have been duly and validly authorized by the Board of Directors ofthe Company and, except for the Company Stockholder Approval (assuming Parent is not an “interestedstockholder” under Section 203 of the DGCL), no other corporate proceedings on the part of theCompany are necessary to authorize the consummation of the transactions contemplated hereby. As ofthe Amendment Date, the Board of Directors of the Company has unanimously (among the directorspresent and voting) resolved to recommend that the Company’s stockholders approve this Agreementand the transactions contemplated hereby (the “Company Recommendation”). This Agreementhas been duly and validly executed and delivered by the Company and, assuming this Agreementconstitutes the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal,valid and binding agreement of the Company and is enforceable against the Company in accordancewith its terms, except as such enforcement may be limited by (i) the effect of bankruptcy,insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other Lawsaffecting or relating to creditors’ rights generally or (ii) the rules governing the availabilityof specific performance, injunctive relief or other equitable remedies and general principles ofequity, regardless of whether considered in a proceeding in equity or at law (the “RemediesExceptions”).     (b) Other than in connection with or in compliance with (i) Section 251 of the DGCL, (ii) theSecurities Exchange Act of 1934 (the “Exchange Act”), (iii) the Securities Act of 1933(the “Securities Act”), (iv) the rules and regulations of the NYSE, (v) theHart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), (vi) the FederalPower Act, 16 U.S.C. §§ 791a-825r and/or the regulations promulgated by Federal Energy RegulatoryCommission (the “FERC”) thereunder (the “FPA”), and the approval of the FERCthereunder (the “FERC Approval”), (vii) the approval of the Massachusetts Department ofPublic Utilities (the “MDPU Approval”), (viii) the approval of Missouri Public ServiceCommission (the “MPSC Approval”), (ix) the approval of the Federal CommunicationsCommission (the “FCC”) for the transfer of control (or assignment, as applicable) of theCompany’s business radio and other Title III wireless licenses, pursuant to Section 310 of theCommunications Act of 1934, as amended, 47 U.S.C. § 310(d) (the “FCC Approval”); and (x)the approvals set forth in Section 3.3(b) of the Company Disclosure Schedule (collectively, the“Company Approvals”), and, subject to the accuracy of the representations and warranties ofParent and Merger Sub in Section 4.3(b), no authorization, consent, order, license, permit orapproval of, or registration, declaration, notice or filing with, any United States, state of theUnited States or foreign governmental or regulatory agency, commission, court, body, entity orauthority, independent system operator, regional transmission organization, other marketadministrator, or national, regional or state reliability organization (each, a “GovernmentalEntity”) is necessary, under applicable Law, for the consummation by the Company of thetransactions contemplated by this Agreement, except for
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such authorizations, consents, approvals or filings that are not required to be obtained or made prior to consummation of such transactions.     (c) Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the executionand delivery by the Company of this Agreement do not, and (assuming the Company Approvals areobtained and the Requisite Regulatory Approvals are obtained without any adverse condition orrestraint) the consummation of the transactions contemplated hereby and compliance with theprovisions hereof will not (i) result in any loss, or material suspension, limitation or impairmentof any right of the Company or any of its Subsidiaries to own or use any assets material to theconduct of their business or result in any material violation of, or material default (with orwithout notice or lapse of time, or both) under, or give rise to a right of termination,cancellation or acceleration of any material obligation or to the loss of a material benefit underany loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease,agreement, contract, instrument, permit, concession, franchise, right or license binding upon theCompany or any of its Subsidiaries or result in the creation of any liens, claims, mortgages,encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”)other than Permitted Liens, in each case, upon any of the properties or assets of the Company orany of its Subsidiaries, (ii) conflict with or result in any violation of any provision of thecertificate of incorporation or by-laws or other equivalent organizational document, in each caseas amended or restated, of the Company or any of its Subsidiaries or (iii) materially conflict withor materially violate any applicable Laws.     (d) This Agreement and the Merger have been approved by the Continuing Directors ofCrossCountry Energy, LLC, a Delaware limited liability company (“CrossCountry”). For thepurposes of this subsection (d), the term “Continuing Director” shall have the meaning ascribedthereto in that certain Capital Stock Agreement, dated June 30, 1986, among El Paso EnergyCorporation (as successor interest to Sonat, Inc. by virtue of a merger), CrossCountry (assuccessor in interest to Enron Corp., which in turn was the successor in interest to InterNorth,Inc. by virtue of a name change, which in turn was the successor in interest to Houston NaturalGas corporation by virtue of a merger) and Citrus Corp. relating to the ownership by El Pasoand CrossCountry of the Capital Stock of Citrus and its wholly owned subsidiaries, as amended.CrossCountry is currently a “Principal” to such Capital Stock Agreement.     Section 3.4. Reports and Financial Statements.     (a) The Company and each of its Subsidiaries has filed or furnished all forms, documents andreports required to be filed or furnished prior to the date hereof by it with the Securities andExchange Commission (the “SEC”) since January 1, 2009 (the “Company SECDocuments”). As of their respective dates or, if amended, as of the date of the last suchamendment, the Company SEC Documents complied in all material respects with the requirements of theSecurities Act and the Exchange Act, as the case may be, and the applicable rules and regulationspromulgated thereunder, and none of the Company SEC Documents contained any untrue statement of amaterial fact or omitted to state any material fact required to be stated therein or necessary tomake the statements therein, in light of the circumstances under which they were made, notmisleading, except that information set forth in the Company SEC Documents as of a later date (butbefore the date of this Agreement) will be deemed to modify information as of an earlier date.
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     (b) The consolidated financial statements (including all related notes and schedules) of theCompany included in the Company SEC Documents fairly present in all material respects theconsolidated financial position of the Company and its consolidated Subsidiaries, as at therespective dates thereof, and the consolidated results of their operations and their consolidatedcash flows for the respective periods then ended (subject, in the case of the unaudited statements,to normal year-end audit adjustments and to any other adjustments described therein, including thenotes thereto) in conformity with United States generally accepted accounting principles(“GAAP”) (except, in the case of the unaudited statements, as permitted by the SEC) appliedon a consistent basis during the periods involved (except as may be indicated therein or in thenotes thereto).     Section 3.5. Internal Controls and Procedures. The Company has established and maintainsdisclosure controls and procedures and internal control over financial reporting (as such terms aredefined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as requiredby Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures arereasonably designed to ensure that all material information required to be disclosed by the Companyin the reports that it files or furnishes under the Exchange Act is recorded, processed, summarizedand reported within the time periods specified in the rules and forms of the SEC, and that all suchmaterial information is accumulated and communicated to the Company’s management as appropriate toallow timely decisions regarding required disclosure and to make the certifications requiredpursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). TheCompany’s management has completed an assessment of the effectiveness of the Company’s internalcontrols over financial reporting in compliance with the requirements of Section 404 of theSarbanes-Oxley Act for the year ended December 31, 2010 and such assessment concludedthat such controls were effective. Based on its most recent evaluation of internal controls overfinancial reporting prior to the date hereof, management of the Company has disclosed to theCompany’s auditors and the audit committee of the Company Board (i) any significant deficienciesand material weaknesses in the design or operation of internal controls over financial reportingthat are reasonably likely to adversely affect in any material respect the Company’s ability toreport financial information and (ii) any fraud, whether or not material, that involves managementor other employees who have a significant role in the Company’s internal control over financialreporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has beendisclosed to Parent prior to the date hereof.     Section 3.6. No Undisclosed Liabilities. Except (a) as reflected or reserved against inthe Company’s consolidated balance sheets (or the notes thereto) included in the Company SECDocuments, (b) as permitted or contemplated by this Agreement, (c) for liabilities and obligationsincurred since December 31, 2010 in the ordinary course of business consistent with past practiceand (d) for liabilities or obligations that have been discharged or paid in full in the ordinarycourse of business, as of the date hereof, neither the Company nor any Subsidiary of the Companyhas any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise,that would be required by GAAP to be reflected on a consolidated balance sheet of the Company andits consolidated Subsidiaries (or in the notes thereto), other than those which would not have,individually or in the aggregate, a Company Material Adverse Effect.
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     Section 3.7. Compliance with Law; Permits.     (a) Except as set forth in Section 3.7 of the Company Disclosure Schedule, the Company andeach of its Subsidiaries are in compliance with and are not in default under or in violation of anyapplicable federal, state, local or foreign law, statute, ordinance, rule, regulation, judgment,order, injunction, decree or agency requirement of any Governmental Entity (collectively,“Laws” and each, a “Law”), except where such non-compliance, default or violationwould not have, individually or in the aggregate, a Company Material Adverse Effect. Since January1, 2008, neither the Company nor any of its Subsidiaries has received any written notice or, to theCompany’s knowledge, other communication from any Governmental Entity regarding any actual orpossible violation of, or failure to comply with, any Law, except as would not have, individuallyor in the aggregate, a Company Material Adverse Effect.     (b) The Company and its Subsidiaries are in possession of all franchises, grants,authorizations, licenses, permits, easements, variances, exceptions, consents, certificates,approvals, clearances, permissions, qualifications and registrations and orders of all GovernmentalEntities, and all rights under any Company Material Contract with all Governmental Entities, andhave filed all tariffs, reports, notices, and other documents with all Government Entitiesnecessary for the Company and its Subsidiaries to own, lease and operate their properties andassets and to carry on their businesses as they are now being conducted (the “CompanyPermits”), except where the failure to have any of the Company Permits would not have,individually or in the aggregate, a Company Material Adverse Effect. All CompanyPermits are valid and in full force and effect and are not subject to any administrative orjudicial proceeding that could result in modification, termination or revocation thereof, exceptwhere the failure to be in full force and effect or any modification, termination or revocationthereof would not have, individually or in the aggregate, a Company Material Adverse Effect. TheCompany is, and each of its Subsidiaries is, in compliance in all respects with the terms andrequirements of such Company Permits, except where the failure to be in compliance would not have,individually or in the aggregate, a Company Material Adverse Effect.     Section 3.8. Environmental Laws and Regulations.     (a) Except as set forth in Section 3.8 of the Company Disclosure Schedule or as would nothave, individually or in the aggregate, a Company Material Adverse Effect: (i) no notice,notification, demand, request for information, citation, summons, complaint or order has beenreceived, no penalty has been assessed, and no investigation, action, claim, suit, proceeding orreview is pending or, to the knowledge of the Company, is threatened by any Governmental Entity orother person relating to the Company or any Subsidiary of the Company or against any person orentity whose liability the Company or any of its Subsidiaries has or may have retained or assumedeither contractually or by operation of law, and relating to or arising out of any EnvironmentalLaw, (ii) the Company and its Subsidiaries are, and except for matters that have been fullyresolved with the applicable Governmental Entity, since January 1, 2008 have been in compliancewith all Environmental Laws (which compliance includes, but is not limited to, possession of allCompany Permits and compliance with the terms and conditions thereof), (iii) the Company is notobligated to conduct or pay for, and is not conducting or paying for, any response, remedial,investigatory or corrective action under any Environmental Law at any location, (iv) there has beenno release of Hazardous Materials at any real property currently
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owned, leased or operated by the Company or any Subsidiary of the Company or, to the knowledgeof the Company, formerly owned, leased or operated by the Company or any Subsidiary of the Company or at anyoffsite disposal location used by the Company or any Subsidiary of the Company to dispose of anyHazardous Materials in concentrations or under circumstances that would require reporting or bereasonably likely to result in investigation, remediation or other corrective or response action bythe Company or any Subsidiary of the Company or, to the knowledge of Company and its Subsidiaries,by any person or entity whose liability the Company or any of its Subsidiaries has or may haveretained or assumed either contractually or by operation of law, under any Environmental Law, (v)the Company is not party to any order, judgment or decree that imposes any obligations under anyEnvironmental Law, (vi) there have been no ruptures or explosions in the Company Systems resultingin personal injury, loss of life or material property damage, except to the extent any claimsrelated to such ruptures have been resolved and (vii) there are no defects, corrosion or otherdamage to any of the Company Systems that could reasonably be expected to result in a pipelineintegrity failure.     (b) As used in this Agreement:     (i) “Company Systems” means the refined petroleum product, crude oil,natural gas, liquefied natural gas, natural gas liquid and other pipelines, laterallines, pumps, pump stations, storage facilities, terminals, processing plants, andother related operations, assets, machinery and equipment that are owned by theCompany or any of its Subsidiaries or used for the conduct of the business of theCompany or any of its Subsidiaries as it is presently conducted.     (ii) “Environment” means the indoor and outdoor environment, includingbut not limited to any ambient air, surface water, drinking water, groundwater, landsurface (whether below or above water), subsurface strata, sediment, buildingsurfaces, plant or animal life and natural resources.     (iii) “Environmental Law” means any Law or any binding agreement issuedor entered by or with any Governmental Entity relating to: (A) the Environment,including pollution, contamination, cleanup, preservation, protection andreclamation of the Environment; (B) any exposure to or release or threatened releaseof any Hazardous Materials, including investigation, assessment, testing,monitoring, containment, removal, remediation and cleanup of any such release orthreatened release; (C) the management of any Hazardous Materials, including theuse, labeling, processing, disposal, storage, treatment, transport or recycling ofany Hazardous Materials and Laws with regard to recordkeeping, notification,disclosure and reporting requirements respecting Hazardous Materials; or (D) thepresence of Hazardous Materials in any building, physical structure, product orfixture.     (iv) “Hazardous Materials” means all substances defined as HazardousSubstances, Oils, Pollutants or Contaminants in the National Oil and HazardousSubstances Pollution Contingency Plan, 40 C.F.R. § 300.5, or defined as such by, orregulated as such under, any Environmental Law, including any regulated
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pollutant orcontaminant (including any constituent, raw material, product or by-productthereof), petroleum or natural gas hydrocarbons or any liquid or fractionthereof, asbestos or asbestos-containing material, polychlorinated biphenyls,lead paint, any hazardous, industrial or solid waste, and any toxic, radioactive,infectious or hazardous substance, material or agent.     Section 3.9. Employee Benefit Plans.     (a) Section 3.9(a) of the Company Disclosure Schedule lists all material Benefit Planssponsored, maintained, contributed to or required to be contributed to by the Company, any of itsSubsidiaries, or any of their ERISA Affiliates, or under which the Company, any of its Subsidiariesor any of their ERISA Affiliates may have any liability (contingent or otherwise) (the “CompanyBenefit Plans”). Copies of the Company Benefit Plans and any amendments thereto have been madeavailable to Parent together with any applicable trust documents, the most recent summary plandescription (and summaries of material modifications, if applicable), non-discrimination testingresults, actuarial valuations, annual report (Form 5500 including, if applicable, Schedule Bthereto) and tax return (Form 990) prepared in connection with any such plan or related trust.Except as set forth in Section 3.9(a) of the Company Disclosure Schedule, neither the Company nor,to the knowledge of the Company, any other person or entity has any express or implied commitment,whether legally enforceable or not, to adopt, terminate or materially modify any Company BenefitPlan, other than with respect to a modification or termination required by ERISA or the Code. Forpurposes of this Agreement, “ERISA Affiliate” of any entity means any other person, entity,trade or business (whether or not incorporated) that, together with such entity, would be treatedas a single employer under Section 414(b), (c), (m) or (o) of the Code.     (b) Except for such non-compliance which would not, individually or in the aggregate,materially and adversely affect the ability of the Company and its Subsidiaries to operate theirbusiness in the ordinary course consistent with past practices, (i) each Company Benefit Plan hasbeen maintained and administered in compliance with its terms and with applicable Law, includingERISA and the Code to the extent applicable thereto, and (ii) all contributions required to be madeunder the terms of any Company Benefit Plan have been timely made or, if not yet due, have beenproperly reflected in the Company’s financial statements in accordance with GAAP. Except as setforth in Section 3.9(b) of the Company Disclosure Schedule, any Company Benefit Plan intended to bequalified under Section 401(a) or 401(k) of the Code has received a favorable determination letteror equivalent opinion letter from the Internal Revenue Service, and the Company has made availableto Parent a copy of the most recent such letter for each such Company Benefit Plan.     (c) Except as set forth in Section 3.9(c) of the Company Disclosure Schedule, neither theCompany nor its Subsidiaries maintains, contributes to or is required to contribute to, or has inthe past six years maintained, contributed to or been required to contribute to any plan orarrangement which provides retiree medical or welfare benefits, except pursuant to the continuationcoverage requirements of Section 601 et. Seq. of ERISA or Section 4980B of the Code.
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     (d) Except as set forth in Section 3.9(d) of the Company Disclosure Schedule, neither theCompany, its Subsidiaries nor any of their ERISA Affiliates maintains, contributes to or isrequired to contribute to, or has in the past six years maintained, contributed to or been requiredto contribute to any Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section412 or 4971 of the Code. None of the Company Benefit Plans is a “multiple employer welfarearrangement” (as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined inSection 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), andneither the Company, its Subsidiaries nor any other their ERISA Affiliates has during the past sixyears maintained or contributed to, or been required to contribute to, or otherwise had anyobligation or liability in connection with, such a multiple employer plan or multiemployer plan.     (e) Except as set forth in Section 3.9(e) of the Company Disclosure Schedule, the consummationof the transactions contemplated by this Agreement will not, either alone or in combination withanother event, (i) entitle any current or former employee, consultant, officer or other serviceprovider of the Company or any of its Subsidiaries to severance pay, unemployment compensation orany other payment, (ii) accelerate the time of payment or vesting, or increase the amount ofcompensation due any such employee, consultant, officer or other service provider or (iii) triggerany payment or funding (through a grantor trust or otherwise) of compensation or benefits, or (iv)increase the amount payable or trigger any other material obligation, benefit (including loanforgiveness), requirement or restriction pursuant to any Company Benefit Plan or otherwise.Without limiting the foregoing, Section 3.9(e) of the Company Disclosure Schedule sets forth a listof employment or consulting agreements with the Company containing “change in control” or similarprovisions that will be triggered by the consummation of the Merger or the entry into thisAgreement by the Company.     (f) Except as occasioned by differences between the Original Merger Agreement and thisAgreement, and except as set forth on Section 3.9(f) of the Company Disclosure Schedule, no amountor benefit that could be, or has been, received (whether in cash or property or the vesting ofproperty or the cancellation of indebtedness) by any current or former employee or other serviceprovider of the Company or any Subsidiary of the Company who is a “disqualified individual” withinthe meaning of Section 280G of the Code could be characterized as an “excess parachute payment” (asdefined in Section 280G(b)(1) of the Code) as a result of the consummation of the transactionscontemplated by this Agreement.     (g) Except as set forth on Section 3.9(g) of the Company Disclosure Schedule, each CompanyBenefit Plan and any award thereunder (i) has been operated in good faith compliance in allmaterial respects with Section 409A of the Code since January 1, 2005, and all applicableregulations and notices issued thereunder, and (ii) since January 1, 2009, has been in all materialrespects in documentary compliance with Section 409A of the Code. Each Company Stock Award wasgranted with an exercise price not less than the fair market value of the underlying Company CommonStock on the date of grant. Except as set forth on Section 3.9(g) of the Company DisclosureSchedule, no director, officer, employee or service provider of the Company or its affiliates isentitled to a gross-up, make-whole or indemnification payment with respect to taxes imposed underSection 409A or Section 4999 of the Code.
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     (h) Except as would not, individually or in the aggregate, materially and adversely affect theability of the Company and its Subsidiaries to operate their business in the ordinary courseconsistent with past practices, there are no pending or, to the Company’s knowledge, threatenedclaims by or on behalf of any Company Benefit Plan, by any employee or beneficiary covered underany Company Benefit Plan or otherwise involving any Company Benefit Plan (other than routine claimsfor benefits).     (i) Except as set forth on Section 3.9(i) of the Company Disclosure Schedule, no CompanyBenefit Plan provides benefits or compensation to any employees or other service providers whoreside or provide services primarily outside of the United States.     Section 3.10. Absence of Certain Changes or Events. Since December 31, 2010:     (a) except as otherwise contemplated by this Agreement, the businesses of the Company and itsSubsidiaries have been conducted, in all material respects, in the ordinary course of businessconsistent with past practices; and     (b) there has not been any event, change, effect, development, condition or occurrence that,individually or in the aggregate, has had or would reasonably be expected to have, a CompanyMaterial Adverse Effect.     Section 3.11. Investigations; Litigation.Except as set forth in Section 3.11 of theCompany Disclosure Schedule or as would not have a Company Material Adverse Effect, (a) there is noinvestigation or review pending (or, to the knowledge of the Company, threatened) by anyGovernmental Entity with respect to the Company or any of its Subsidiaries, (b) there are noactions, suits, inquiries, investigations, proceedings, subpoenas, civil investigative demands orother requests for information relating to potential violations of law pending (or, to theknowledge of the Company, threatened) against or affecting the Company or any of its Subsidiaries,or any of their respective properties at law or in equity and (c) there are no orders, judgments ordecrees of, or before, any Governmental Entity.     Section 3.12. Information Supplied.None of the information provided by the Company forinclusion or incorporation by reference in (a) the registration statement on Form S-4 to be filedwith the SEC by Parent in connection with the issuance of Common Units in the Merger (including anyamendments or supplements, the “Form S-4”) will, at the time the Form S-4 becomes effective underthe Securities Act, contain any untrue statement of a material fact or omit to state any materialfact required to be stated therein or necessary to make the statements therein not misleading or(b) the proxy statement relating to the Stockholders’ Meeting (the “Proxy Statement”) will not, atthe date it is first mailed to the Company’s stockholders and at the time of the Stockholders’Meeting, contain any untrue statement of a material fact or omit to state any material factrequired to be stated therein or necessary in order to make the statements therein, in light of thecircumstances under which they were made, not misleading. The Proxy Statement and the Form S-4(solely with respect to the portion thereof relating to the Stockholders’ Meeting, and then,excluding anyportion thereof based on information supplied by Parent or Merger Sub for inclusion orincorporation by reference therein, with respect to which no representation is made by the Companyor any of its Subsidiaries) will comply as to form in all material respects with the requirementsof the Securities Act and the Exchange Act
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and the rules and regulations promulgated thereunder.Notwithstanding the foregoing provisions of this Section 3.12, no representation or warranty ismade by the Company with respect to information or statements made or incorporated by reference inthe Form S-4 or the Proxy Statement that were not supplied by or on behalf of the Company.     Section 3.13. Regulatory Matters.     (a) Except as set forth in Section 3.13(a) of the Company Disclosure Schedule, none of theCompany and its Subsidiaries is a natural gas company under the Natural Gas Act, 15 U.S.C. §§717-717W, and the regulations promulgated by FERC thereunder (“NGA”), a public utility,transmitting utility, electric utility or electric utility company under the FPA, a common carrierunder the provisions of the Interstate Commerce Act implemented by the FERC pursuant to 49 USC §60502 and the regulations promulgated by FERC thereunder (“ICA”), or a utility, utilityholding company, intrastate pipeline, gas service company, electric service company, gas company,electric company, or any similar entity however described under the laws of any state or localjurisdiction and the regulations promulgated thereunder. Except by reason of direct or indirectownership and/or control of Exempt Wholesale Generators, none of the Company or its Subsidiaries isa holding company as defined in the Public Utility Holding Company Act of 2005, 42 U.S.C. §§16451-16453, and the regulations promulgated by FERC thereunder (“PUHCA”).     (b) Each of the Company’s Subsidiaries that is identified on Section 3.13(a) of the CompanyDisclosure Schedule as a public utility under the FPA engages in the sale of electricityexclusively at wholesale and has been authorized by the FERC, pursuant to the FPA, to make suchsales at market-based rates, and has been granted such waivers and blanket authorizations(including blanket authorization to issue securities and to assume liabilities under Section 204 ofthe FPA and 18 C.F.R. Pt. 34) as are customarily granted to entities with market-based rateauthority. Each such Subsidiary has obtained an order from the FERC finding it, or has in goodfaith self-certified itself to the FERC, to be an Exempt Wholesale Generator under PUHCA. Thereare no pending, or to the knowledge of the Company, threatened, judicial or administrativeproceedings to revoke any such Subsidiary’s market-based rate authorization or Exempt WholesaleGenerator status, as applicable. To the knowledge of the Company, there are no facts that arereasonably likely to cause any such Subsidiary to lose or be ineligible for its market-based rateauthorization or to lose its status as an Exempt Wholesale Generator under PUHCA.     (c) All filings (other than immaterial filings) required to be made by the Company or any ofits Subsidiaries during the three years preceding the date hereof, with the FERC under the FPA,NGA, Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3302-3432, and regulations promulgated by FERCthereunder (“NGPA”), the ICA or PUHCA, the Department of Energy, the FCC, the MDPU, theMPSC or any other applicable state public utility commission or department, as the case may be,have been made, including all forms, statements, reports,notices, agreements and all documents, exhibits, amendments and supplements appertainingthereto, including all rates, tariffs and related documents, and all such filings complied, as oftheir respective dates, and, as amended or supplemented, continue to comply with all applicablerequirements of applicable statutes and the rules and regulations promulgated thereunder, exceptfor filings the failure of which to make or the failure of which to make in compliance with allapplicable requirements of applicable statutes and the rules and regulations promulgated
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thereunder, would not, individually or in the aggregate, materially and adversely affect theability of the Company and its Subsidiaries to operate their business in the ordinary courseconsistent with past practices.     Section 3.14. Tax Matters.Except as set forth in Section 3.14 of the Company DisclosureSchedule or as would not have, individually or in the aggregate, a Company Material Adverse Effect:     (a) The Company and its Subsidiaries (i) have duly and timely filed (taking into account anyextension of time within which to file) all Tax Returns required to have been filed by or withrespect to the Company or any of its Subsidiaries, and all such Tax Returns are true, correct andcomplete in all material respects, (ii) have duly and timely paid all Taxes shown as due on suchTax Returns, (iii) have adequate accruals and reserves, in accordance with GAAP, on the financialstatements included in the Company SEC Documents for all Taxes payable by the Company and itsSubsidiaries for all taxable periods and portions thereof through the date of such financialstatements, (iv) have not, since the date of the financial statements included in the most recentCompany SEC Documents, incurred any liability for Taxes outside the ordinary course of business orotherwise inconsistent with past custom and practice and (v) have not received written notice ofany deficiencies for any Tax from any taxing authority against the Company or any of itsSubsidiaries for which there are not adequate reserves on the financial statements included in theCompany SEC Documents.     (b) Neither the Company nor any of its Subsidiaries is the subject of any currently ongoingtax audit or other proceeding with respect to Taxes nor has any Tax audit or other proceeding withrespect to Taxes been proposed against any of them in writing. As of the date of this Agreement,there are no pending requests for waivers of the time to assess any Tax. Neither the Company norany of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to anyextension of time with respect to a Tax assessment or deficiency. There are no Liens for Taxes onany of the assets of the Company or any of its Subsidiaries other than any Lien for Taxes not yetdelinquent, being contested in good faith or for which adequate accruals or reserves have beenestablished and disclosed in the Company SEC Documents. No claim has ever been made in writing bya taxing authority of a jurisdiction where the Company or one of its Subsidiaries has not filed TaxReturns claiming that the Company or such Subsidiary is or may be subject to taxation by thatjurisdiction.     (c) Neither the Company nor any of its Subsidiaries is obligated by any written contract,agreement or other arrangement to indemnify any other person (other than the Company and itsSubsidiaries) with respect to Taxes. Neither the Company nor any of its Subsidiaries is a party toor bound by any written Tax allocation, indemnification or sharing agreement (other than anagreement with the Company or its Subsidiaries). To the knowledge ofthe Company, neither the Company nor any of its Subsidiaries is liable under TreasuryRegulation Section 1.1502-6 (or any similar provision of the Tax Laws of any state, local orforeign jurisdiction) or as a transferee or successor for any Tax of any person other than theCompany and its Subsidiaries.
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     (d) The Company and its Subsidiaries have withheld and paid all Taxes required to have beenwithheld and paid in connection with amounts paid or owing to any employee, independent contractor,creditor, stockholder or other third party.     (e) Neither the Company nor any of its Subsidiaries was a “distributing corporation” or“controlled corporation” in a transaction intended to qualify under Section 355 of the Code withinthe past two years or otherwise as part of a plan that includes the Merger.     (f) Neither the Company nor any of its Subsidiaries has participated in any “reportabletransaction” within the meaning of Treasury Regulation Section 1.6011-4.     (g) The Company has made available to Parent or its legal or accounting representative copiesof all federal and state income Tax Returns for the Company and each of its Subsidiaries filed forall periods including and after the period ended December 31, 2005.     (h) As used in this Agreement, (i) “Taxes” means any and all domestic or foreign,federal, state, local or other taxes of any kind (together with any and all interest, penalties,additions to tax and additional amounts imposed with respect thereto) imposed by any GovernmentalEntity, including taxes on or with respect to income, franchises, windfall or other profits, grossreceipts, occupation, property, transfer, sales, use, capital stock, severance, alternativeminimum, payroll, employment, unemployment, social security, workers’ compensation or net worth,and taxes in the nature of excise, withholding, ad valorem or value added or other taxes, fees,duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the same or asimilar nature to any of the foregoing, and (ii) “Tax Return” means any return, report orsimilar filing (including the attached schedules) with respect to Taxes, including any informationreturn, claim for refund, amended return or declaration of estimated Taxes.     Section 3.15. Employment and Labor Matters.     (a) Except as set forth in Section 3.15(a) of the Company Disclosure Schedule, (i) neither theCompany nor any of its Subsidiaries is a party to or bound by any material collective bargaining orsimilar agreement or work rules or practices with any labor union, labor organization or employeeassociation applicable to employees of the Company or any of its Subsidiaries, (ii) there are noexisting or, to the knowledge of the Company, threatened strikes or lockouts with respect to anyemployees of the Company or any of its Subsidiaries (“Company Employees”), (iii) to theknowledge of the Company, there is no union organizing effort pending or threatened against theCompany or any of its Subsidiaries, (iv) there is no material unfair labor practice, labor dispute(other than, in each case, routine individual grievances) or labor arbitration proceeding pendingor, to the knowledge of the Company, threatened with respect to Company Employees and (v) there isno slowdown or work stoppage in effect or, to the knowledge of the Company, threatened with respectto Company Employees.     (b) Except for such matters that would not, individually or in the aggregate, materially andadversely affect the ability of the Company and its Subsidiaries to operate their business in theordinary course consistent with past practices, the Company and its Subsidiaries are, and havebeen, in material compliance with all applicable Laws respecting (i) employment and employmentpractices, (ii) terms and conditions of employment and wages and hours, and
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(iii) unfair laborpractices. Neither the Company nor any of its Subsidiaries has any material liabilities under theWorker Adjustment and Retraining Notification Act of 1998 as a result of any action taken by theCompany (other than at the written direction of Parent or as a result of any of the transactionscontemplated hereby).     Section 3.16. Intellectual Property.Except as would not have, individually or in theaggregate, a Company Material Adverse Effect, either the Company or a Subsidiary of the Companyowns, or is licensed or otherwise possesses legally valid and enforceable rights to use, allIntellectual Property necessary to the conduct of their respective businesses as currentlyconducted, free and clear of Liens other than Company Permitted Liens. The execution and deliveryby the Company of this Agreement do not, and the consummation of the transactions contemplatedhereby will not result in the loss, suspension, limitation, termination or other impairment of, orgive rise to any right of any person to suspend, limit, terminate, consent to or otherwise impairthe continued right of the Company or any of its Subsidiaries to own or use or otherwise exerciseany other rights that the Company or any of its Subsidiaries currently has with respect to, anyIntellectual Property material to the business of the Company and its Subsidiaries. There are noactions, suits, proceedings, investigations or claims pending or, to the knowledge of the Company,threatened that challenges the validity, enforceability, registration, ownership or use of anyIntellectual Property owned by the Company or one of its Subsidiaries and material to the conductof their business. Except as would not have, individually or in the aggregate, a Company MaterialAdverse Effect, (a) there are no proceedings pending, and neither the Company nor any of itsSubsidiaries has received any written claims, in each case alleging infringement, misappropriationor other violation by the Company or any of its Subsidiaries of the Intellectual Property rights ofany person, (b) the conduct of the business of the Company and its Subsidiaries does not infringe,misappropriate or otherwise violate any Intellectual Property rights of any person, (c) neitherthe Company nor any of its Subsidiaries has made any claim against any other person alleging aviolation, misappropriation or infringement of the Intellectual Property rights of the Company orany of its Subsidiaries and (d) no person is infringing, misappropriating or otherwise violatingany Intellectual Property rights of the Company or any of its Subsidiaries. As used in thisAgreement, “Intellectual Property” means all intellectual property and industrial property rightsof any kind or nature, including all U.S. and foreign: (i) trademarks, trade names, service marks,service names, logos, assumed names, domain names and other similar designations of source ororigin, and any registrations or applications for the foregoing, together with the goodwill of thebusiness connection with the use of and symbolized by any of the foregoing; (ii) registered andunregistered copyrights; (iii) patents, patent applications, patent disclosures, and all relatedcontinuations, continuations-in-part, divisionals, reissues, reexaminations, substitutions, andextensions thereof; and (iv) trade secrets, know-how and other confidential business information.The computers, software, servers, workstations, routers, hubs, switches, circuits, networks, datacommunications lines and all other information technology infrastructure and equipment(collectively, the “IT Assets”) of the Company and its Subsidiaries (i) operate and perform in allmaterial respects in accordance with their documentation and functional specifications andotherwise as required by the Company and its Subsidiaries and have not materially malfunctioned orfailed within the past three (3) years and (ii) are sufficient for the immediate and reasonablyforeseeable needs of the Company and its Subsidiaries. The Company and its Subsidiaries haveimplemented commercially reasonable measures, consistent with industry standards, to protect theconfidentiality, integrity and security of the IT Assets (and all information and transactions
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stored or contained therein or transmitted thereby). The Company and its Subsidiaries haveimplemented commercially reasonable data backup, data storage, system redundancy and disasteravoidance and recovery procedures, as well as a commercially reasonable business continuity plan,in each case consistent with customary industry practices.     Section 3.17. Real Property.     Except as set forth in Section 3.17 of the Company DisclosureSchedule:     (a) With respect to each material real property owned by the Company or any Subsidiary otherthan Company Real Property Leases and Rights-of-Way (such property collectively, the “CompanyOwned Real Property”), except as would not have, individually or in the aggregate, a CompanyMaterial Adverse Effect, (i) either the Company or a Subsidiary of the Company has marketable andinsurable fee simple title to such Company Owned Real Property, free and clear of all Liens otherthan any Company Permitted Liens and conditions, encroachments, easements, rights-of-way,restrictions and other encumbrances that do not adversely affect the existing use of the realproperty subject thereto by the owner (or lessee to the extent a leased property) thereof in theoperation of its business (“Permitted Encumbrances”), (ii) there are no leases, subleases,licenses, rights or other agreements affecting any portion of the Company Owned Real Property thatwould reasonably be expected to adversely affect the existing use of the Company Owned RealProperty by the Company in the operation of its business thereon, and (iii) there are nooutstanding options or rights of first refusal in favor of any other party to purchase such CompanyOwned Real Property or any portion thereof or interest therein that would reasonably be expected toadversely affect the existing use of the Company Owned Real Property by the Company in theoperation of its business thereon. Neither the Company nor any of its Subsidiaries has receivednotice of any pending, and to the knowledge of the Company there is no threatened, condemnationproceeding with respect to any Company Owned Real Property, except proceedings which would nothave, individually or in the aggregate, a Company Material Adverse Effect.     (b) Except as would not have, individually or in the aggregate, a Company Material AdverseEffect, (i) each material lease, sublease and other agreement, including mineral or storage rights(collectively, the “Company Real Property Leases”) under which the Company or any of itsSubsidiaries uses or occupies or has the right to use or occupy any material real property (the“Company Leased Real Property”) at which the material operations of the Company or any ofits Subsidiaries are conducted, is valid, binding and in full force and effect, (ii) neither theCompany nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting anyperson the right to use or occupy a material portion of a Company Leased Real Property that wouldreasonably be expected to adversely affect the existing use of the Company Leased Real Property bythe Company in the operation of its business thereon, and (iii) no uncured default of a materialnature on the part of the Company or, if applicable, itsSubsidiary or, to the knowledge of the Company, the landlord thereunder, exists under anyCompany Real Property Lease, and no event has occurred or circumstance exists which, with thegiving of notice, the passage of time, or both, would constitute a material breach or default undera Company Real Property Lease. Except as would not have, individually or in the aggregate, aCompany Material Adverse Effect, the Company and each of its Subsidiaries has a good and validleasehold interest, subject to the terms of the Company Real Property Leases, in each parcel ofCompany Leased Real Property, free and clear of all Liens, except for Company
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Permitted Liens andPermitted Encumbrances. Neither the Company nor any of its Subsidiaries has received notice of anypending, and, to the knowledge of the Company, there is no threatened, condemnation proceeding withrespect to any Company Leased Real Property, except such proceeding which would not have,individually or in the aggregate, a Company Material Adverse Effect.     (c) Except as would not, individually or in the aggregate, have a Company Material AdverseEffect: (i) each of the Company and its Subsidiaries has such Rights-of-Way that are necessary forthe Company and its Subsidiaries to use and operate their respective assets and properties in themanner that such assets and properties are currently used and operated, and each such Right-of-Wayis valid and free and clear of all Liens (other than Company Permitted Liens); (ii) the Company andits Subsidiaries conduct their businesses in a manner that does not violate any of theRights-of-Way; (iii) the Company and its Subsidiaries have fulfilled and performed all of theirobligations with respect to such Rights-of-Way; and (iv) the Company has not received writtennotice of the occurrence of any ongoing event or circumstance that allows, or after the giving ofnotice or the passage of time, or both, would allow the limitation, revocation or termination ofany Right-of-Way or would result in any impairment of the rights of the Company and itsSubsidiaries in and to any such Rights-of-Way. All pipelines operated by the Company and itsSubsidiaries are subject to Rights-of-Way, and there are no gaps (including any gap arising as aresult of any breach by the Company or any of its Subsidiaries of the terms of any Rights-of-Way)in the Rights-of-Way other than gaps that would not, individually or in the aggregate, have aCompany Material Adverse Effect     Section 3.18. Required Vote of the Company Stockholders. (a) Assuming Parent is not an“interested stockholder” under Section 203 of the DGCL, the affirmative vote of a majority of theoutstanding Company Common Stock entitled to vote on this Agreement and the Merger is the only voteof holders of securities of the Company which is required to approve this Agreement and the Merger(the “Company Stockholder Approval”), (b) the action of the Board of Directors of the Company inapproving this Agreement is sufficient to render inapplicable to this Agreement and thetransactions contemplated hereby the restrictions on “business combinations” (as defined in Section203 of the DGCL) as set forth in Section 203 of the DGCL and (c) no other Takeover Laws areapplicable to the Merger, this Agreement, or any of the transactions contemplated hereby andthereby. As used in this Agreement, “Takeover Laws” means any “moratorium,” “control shareacquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combinationstatute or regulation” or other similar state anti-takeover Laws and regulations.     Section 3.19. Opinion of Financial Advisor. The Special Committee of the Board of Directors of the Company has received the opinion of eachof Evercore Group L.L.C. and Goldman, Sachs & Co. to the effect that, as of the date of each suchopinion and subject to the assumptions, limitations, qualifications and other matters considered inthe preparation thereof, the Merger Consideration is fair, from a financial point of view, to theholders of Company Common Stock. The Company shall, promptly following receipt of said opinions inwritten form, furnish an accurate and complete copy of said opinions to Parent solely forinformational purposes.
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     Section 3.20. Material Contracts.     (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits tothe Company SEC Documents and the agreements set forth on Section 3.20(a) of the Company DisclosureSchedule, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is aparty to or bound by:     (i) any “material contract” (as such term is defined in Item 601(b)(10) ofRegulation S-K of the SEC);     (ii) any contract imposing any material restriction on the right or ability ofthe Company or any of its Subsidiaries to (A) compete with any other person or (B)acquire or dispose of the securities of another person;     (iii) any mortgage, note, debenture, indenture, security agreement, guaranty,pledge or other agreement or instrument evidencing Indebtedness of the Company orany of its Subsidiaries in an amount in excess of $50.0 million;     (iv) any Contract that provides for the acquisition, disposition, license, use,distribution or outsourcing of assets, services, rights or properties with a valueor requiring annual fees in excess of $50.0 million;     (v) any Contract to acquire all or a substantial portion of the capital stock,business, property or assets of any other person for an amount of cash (or value ofnon-cash consideration), in excess of $50.0 million;     (vi) any joint venture, partnership or limited liability company agreement orother similar Contract relating to the formation, creation, operation, management orcontrol of any joint venture, partnership or limited liability company, other thanany such Contract solely between or among the Company and or any of itsSubsidiaries;     (vii) any Contract limiting or restricting the ability of the Company or any ofits Subsidiaries to make distributions or declare or pay dividends in respect oftheir capital stock, partnership interests, membership interests or other equityinterests, as the case may be;     (viii) any Contract containing any exclusivity or most favored nation clause;     (ix) any Contract that involves future expenditures or receipts by the Companyor any of its Subsidiaries of more than $50.0 million in any one year period thatcannot be terminated on less than 90 days notice without material payment orpenalty;     (x) any acquisition Contract that contains “earn out” or other contingentpayment obligations, or remaining indemnity or similar obligations,
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that couldreasonably be expected to result in future payments by or to the Company or any ofits Subsidiaries in excess of $25.0 million;     (xi) any Contract with a labor union or guild (including any collectivebargaining agreement);     (xii) any Contract containing provisions triggered by any change of control ofthe Company or any of its Subsidiaries;     (xiii) any Contract in favor of directors, officers, members, managers orpartners relating to employment or compensation or providing rights toindemnification;     (xiv) any Contract the loss or breach of which could reasonably be expected tohave a Company Material Adverse Effect; and     (xv) any material lease or sublease with respect to leased real property.          All contracts of the types referred to in clauses (i) through (xv) above are referred toherein as “Company Material Contracts.” As used herein, “Contract” shall mean anyagreement, contract, obligation, promise, understanding or undertaking (whether written or oral andwhether express or implied) that is legally binding and (i) under which the Company or any of itsSubsidiaries has or may acquire any rights, (b) under which the Company or any of its Subsidiarieshas or may become subject to any obligation or liability or (c) by which the Company or any of itsSubsidiaries, or the assets owned or used by the Company or any of its Subsidiaries, is or maybecome bound. Section 3.20 of the Company Disclosure Schedule sets forth a complete and correctlist of all Company Material Contracts as of the date of this Agreement that have not been filed orincorporated by reference in the Company SEC Reports. The Company has delivered or made availableto Parent true and correct copies of all Company Material Contracts.     (b) Neither the Company nor any Subsidiary of the Company is in material breach of or materialdefault under the terms of any Company Material Contract. To the knowledge of the Company, noother party to any Company Material Contract is in material breach of or material default under theterms of any Company Material Contract. Each Company Material Contract is a valid and bindingobligation of the Company or the Subsidiary of the Company that is party thereto and, to theknowledge of the Company, of each other party thereto, and is in full force and effect, subject tothe Remedies Exceptions.     Section 3.21. Finders or Brokers.Except for Evercore Group L.L.C. and Goldman, Sachs &Co., neither the Company nor any of its Subsidiaries has employed any investment banker, broker orfinder in connection with the transactions contemplated by this Agreement who might be entitled toany fee or any commission in connection with or upon consummation of the Merger. The Company hasfurnished to Parent accurate and complete copies of its agreements with Evercore Group L.L.C.relating to the transactions contemplated by this Agreement.          Section 3.22. Insurance. The Company and its Subsidiaries maintain insurance in suchamounts and against such risks substantially as the Company believes to be customary for the
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industries in which it and its Subsidiaries operate. Neither the Company nor any of itsSubsidiaries has received notice of any pending or threatened cancellation or material premiumincrease (retroactive or otherwise) with respect to any such material insurance policy, and each ofits Subsidiaries is in compliance in all material respects with all conditions contained therein.     Section 3.23. Consulting Agreements and Noncompetition Agreements. Each of the ConsultingAgreements and Noncompetition Agreements referred to in the Original Agreement have been terminatedby mutual consent of the parties thereto on or prior to the Amendment Date.     Section 3.24. No Additional Representations. The Company acknowledges that neither Parentnor Merger Sub makes any representation or warranty as to any matter whatsoever except as expresslyset forth in this Agreement or in any certificate delivered by Parent or Merger Sub to the Companyin accordance with the terms hereof, and specifically (but without limiting the generality of theforegoing) that neither Parent nor Merger Sub makes any representation or warranty with respect to(a) any projections, estimates or budgets delivered or made available to the Company (or any oftheir respective affiliates, officers, directors, employees or Representatives) of future revenues,results of operations (or any component thereof), cash flows or financial condition (or anycomponent thereof) of Parent and its Subsidiaries or (b) the future business and operations ofParent and its Subsidiaries, and the Company has not relied on such information or any otherrepresentation or warranty not set forth in this Agreement.**ARTICLE IV.****REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB**     Except as disclosed in the Parent SEC Documents (excluding any disclosures set forth in any“risk factor” section and in any section relating to forward-looking statements, and any otherdisclosures therein, in each case to the extent that they are cautionary, predictive orforward-looking in nature) or as contemplated by the Drop-Down Agreements, where the relevance ofthe information as an exception to (or disclosure for purposes of) a particular representation isreasonably apparent on the face of such disclosure, or in the disclosure schedule delivered byParent to the Company immediately prior to the execution of this Agreement (the “ParentDisclosure Schedule”) (each section of which qualifies the correspondingly numberedrepresentation, warranty or covenant if specified therein and such other representations,warranties or covenants where its relevance as an exception to (or disclosure for purposes of) suchother representation, warranty or covenant is reasonably apparent), Parent and Merger Sub representand warrant to the Company as follows:     Section 4.1. Qualification, Organization, Subsidiaries, etc.     (a) Each of Parent and its Subsidiaries is a legal entity duly-organized, validly existing andin good standing under the Laws of its respective jurisdiction of organization and has allrequisite corporate or similar power and authority to own, lease and operate its properties andassets, to carry on its business as presently conducted and to perform its material obligationsunder all Parent Material Contracts. Each of Parent and its Subsidiaries is qualifiedto do
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business, and is in good standing as a foreign entity in each jurisdiction where the ownership,leasing or operation of its assets or properties or conduct of its business requires suchqualification, except where the failure to be so organized, validly existing, qualified or in goodstanding, or to have such power or authority, would not have, individually or in the aggregate, aParent Material Adverse Effect.     (b) As used in this Agreement, a “Parent Material Adverse Effect” means a materialadverse event, change, effect, development, condition or occurrence on or with respect to thebusiness, financial condition or continuing results of operations of Parent and its Subsidiaries,taken as a whole, other than any event, change, effect, development, condition or occurrence: (i)disclosed in the Parent SEC Documents filed or furnished prior to the date of this Agreement(excluding any disclosure set forth in any risk factor section, or in any Section relating toforward looking statements, and any other disclosures therein, in each case, to the extent thatthey are cautionary and predictive or forward looking in nature) or as disclosed on the face of theParent Disclosure Schedule (ii) in or generally affecting the economy or the financial orsecurities markets in the United States or elsewhere in the world, or (iii) resulting from orarising out of (A) any changes or developments in national, regional, state or local wholesale orretail markets for natural gas, natural gas transmission or distribution or related products orservices including those due to actions by competitors or due to changes in commodities prices orhedging markets therefor, (B) any changes or developments in national, regional, state or localwholesale or retail natural gas prices (C) the announcement or the existence of, or compliancewith, this Agreement or the Original Merger Agreement or the transactions contemplated hereby orthereby (including the impact thereof on the relationships, contractual or otherwise, of Parent orany of its Subsidiaries with employees, labor unions, customers, suppliers or partners, andincluding any lawsuit, action or other proceeding with respect to the Merger or any of the othertransactions contemplated by this Agreement or the Original Merger Agreement), (D) any taking ofany action at the written request of the Company, (E) any adoption, implementation, promulgation,repeal, modification, reinterpretation or proposal of any rule, regulation, ordinance, order,protocol or any other Law of or by any national, regional, state or local Governmental Entity, ormarket administrator, (F) any changes in GAAP or accounting standards or interpretations thereof,(G) any weather-related or other force majeure event or outbreak orescalation of hostilities or acts of war or terrorism, or (H) any changes in the share priceor trading volume of the Common Units or in Parent’s credit rating, or the failure of Parent tomeet projections or forecasts (unless due to any event, change, effect, development, condition oroccurrence which has otherwise resulted in a Parent Material Adverse Effect); except, ineach case with respect to subclauses (A) — (B) and (E) — (G) of this clause (iii), to the extentmaterially disproportionately affecting Parent and its Subsidiaries, taken as a whole, relative toother similarly situated companies in the industries in which Parent and its Subsidiaries operate     (c) Parent has made available to the Company prior to the date of this Agreement a true andcomplete copy of Parent’s Certificate of Limited Partnership as amended (the “ParentCertificate of Limited Partnership”), and Third Amended and Restated Agreement of LimitedPartnership (as amended through the date hereof, the “Parent Partnership Agreement” andtogether with the Parent Certificate of Limited Partnership, the “Parent OrganizationalDocuments”), ETP’s Certificate of Limited Partnership as amended (the “ETP Certificate ofLimited Partnership”) and Second Amended and Restated Agreement of Limited Partnership (the“ETP Partnership Agreement”), and the certificate of incorporation, certificate of limited
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partnership, certificate of formation, bylaws, limited partnership agreement, limited liabilitycompany agreement or comparable constituent or organizational documents of each material Subsidiaryof Parent.     Section 4.2. Equity Interests.     (a) The authorized equity interests of Parent consist of Series A Convertible Preferred Unitsrepresenting limited partner interests in Parent (“Series A Preferred Units”), common unitsrepresenting limited partner interests in Parent (“Common Units”) and a general partnerinterest in Parent (“General Partner Interest”). As of June 13, 2011, the issued andoutstanding limited partner interests and general partner interests of Parent consisted of (i)3,000,000 Series A Preferred Units, (ii) 222,978,708 Common Units and (iii) and an approximate 0.3%General Partner Interest. As of June 13, 2011, 2,853,676 Common Units were issuable pursuant toemployee and director equity plans of Parent (the “Parent Equity Plans”). The authorizedequity interests of Energy Transfer Partners, L.P., a Delaware limited partnership (“ETP”),consist of common units representing limited partner interests in ETP (“ETP Common Units”),Class E Units representing limited partner interests in ETP (“Class E Units”), theIncentive Distribution Rights (as defined in the ETP Partnership Agreement) and a general partnerinterest in ETP (“ETP General Partner Interest”). As of June 13, 2011, the issued andoutstanding limited partner interests and general partner interests of ETP consisted of (i)8,853,832 Class E Units, (ii) 208,805,626 ETP Common Units, (iii) the Incentive Distribution Rightsand (iv) and an approximate 1.6% ETP General Partner Interest. As of June 13, 2011, 3,147,524 ETPCommon Units were issuable pursuant to employee and director equity plans of ETP (the “ETPEquity Plans”). All outstanding equity securities of Parent and of ETP are duly authorized,validly issued, fully-paid and nonassessable (except as such nonassessability may be affected bymatters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and free ofpreemptive rights (except as set forth in the ETP Partnership Agreement).     (b) Except as set forth in subsection (a) above and as set forth on Section 4.2(b) of theParent Disclosure Schedule, there are no outstanding subscriptions, options, warrants, calls,convertible securities, exchangeable securities or other similar rights, agreements or commitmentsto which Parent or any of its Subsidiaries is a party (i) obligating Parent or any of itsSubsidiaries to (i) issue, transfer, exchange, sell or register for sale any Common Units, Class EUnits or other equity interests of Parent or any Subsidiary of Parent or securities convertibleinto or exchangeable for such partnership units or equity interests, (ii) grant, extend or enterinto any such subscription, option, warrant, call, convertible securities or other similar right,agreement or arrangement, (iii) redeem or otherwise acquire any such partnership units or otherequity interests or (iv) provide a material amount of funds to, or make any material investment (inthe form of a loan, capital contribution or otherwise) in, any Subsidiary or (ii) granting anypreemptive or antidilutive or similar rights with respect to any security issued by Parent or itsSubsidiaries.     (c) Neither Parent nor any of its Subsidiaries has outstanding bonds, debentures, notes orother indebtedness, the holders of which have the right to vote (or which are convertible orexchangeable into or exercisable for securities having the right to vote) with the unitholders ofParent on any matter.
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     (d) There are no voting trusts or other agreements or understandings to which Parent orany of its Subsidiaries is a party with respect to the voting or registration of equity securitiesof Parent or any of its Subsidiaries.     (e) As of the date of this Agreement, the authorized capital stock of Merger Sub consists of1,000 shares of common stock, par value $0.01 per share, all of which are validly issued andoutstanding. All of the issued and outstanding capital stock of Merger Sub is, and at theEffective Time will be, owned by Parent or a direct or indirect wholly owned Subsidiary of Parent.Merger Sub has no outstanding option, warrant, right or any other agreement pursuant to which anyperson other than Parent may acquire any equity security of Merger Sub. Merger Sub has notconducted any business prior to the date hereof and has, and prior to the Effective Time will have,no assets, liabilities or obligations of any nature other than those incident to its formation andpursuant to this Agreement and the Merger and the other transactions contemplated by thisAgreement.     (f) When issued pursuant to the terms hereof, all outstanding Common Units constituting anypart of the Merger Consideration will be duly authorized, validly issued, fully-paid (to the extentrequired under the Parent Partnership Agreement) and nonassessable (except as such nonassessabilitymay be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act)and free of preemptive rights (except as set forth in the Parent Partnership Agreement).     (g) Except as disclosed in Section 4.2(g) of the Parent Disclosure Schedule, Parent or aParent Subsidiary owns, directly or indirectly, all of the issued and outstanding equity interestsof each Subsidiary of Parent, free and clear of any Liens other than Parent Permitted Liens, andall of such equity interests have been duly authorized and validly issued and are fully paid,nonassessable (except as such nonassessability may be affected by matters described in Sections17-303, 17-607 and 17-804 of the Delaware LP Act or Sections 18-607 and 18-804 of the Delaware LLCAct) and free of preemptive rights. Except for equity interests in Parent’s Subsidiaries, neitherParent nor any of its Subsidiaries owns directly or indirectly any equity interest in any person(or any security or other right, agreement or commitment convertible or exercisable into, orexchangeable for, any equity interest in any person), or has any obligation to acquire any suchequity interest, security, right, agreement or commitment or to provide funds to or make anyinvestment (in the form of a loan, capital contribution or otherwise) in, any person.     (h) As used in this Agreement, “Parent Permitted Lien” means any Lien (i) for Taxes orgovernmental assessments, charges or claims of payment not yet delinquent, being contested in goodfaith or for which adequate accruals or reserves have been established, (ii) that is a carriers’,warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in theordinary course of business, (iii) arising under conditional sales contracts and equipment leaseswith third parties entered into in the ordinary course of business, (iv) not created by Parent orits Subsidiaries that affect the underlying fee interest of a Parent Leased Real Property, (v) thatis disclosed on the most recent consolidated balance sheet of Parent included in the Parent SECDocuments or notes thereto or securing liabilities reflected on such balance sheet, (vi) createdpursuant to the agreements set forth on Section 4.2(h) of the Parent Disclosure Schedule, (vii)grants to others of Rights-of-Way, surface leases, crossing rights and amendments, modifications,and releases of Rights-of-Way, easements and surface leases in the
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ordinary course of business, (viii) with respect to Rights-of-Way, restrictions on the exercise of any ofthe rights under a granting instrument that are set forth therein or in another executed agreement,that is of public record or to which Parent or any of its Subsidiaries otherwise has access,between the parties thereto, (ix) which an accurate up-to-date survey would show, (x) resultingfrom any facts or circumstances relating to the Parent or its Affiliates, or (xi) that does not andwould not reasonably be expected to materially impair the continued use of a Parent Owned RealProperty or a Parent Leased Real Property as currently operated.     Section 4.3. Partnership / Corporate Authority Relative to this Agreement; No Violation.     (a) Each of Parent and Merger Sub has requisite partnership or corporate power and authorityto enter into this Agreement, the Support Agreement and each other document to be entered into byParent and Merger Sub in connection with the transactions contemplated hereby (together with thisAgreement, the “Parent Transaction Documents”) and, subject to the approval of Parent asthe sole stockholder of Merger Sub, which approval shall be delivered by Parent immediatelyfollowing execution of this Agreement, to consummate the transactions contemplated hereby. Theexecution and delivery of this Agreement and the other Parent Transaction Documents and theconsummation of the transactions contemplated hereby and thereby have been duly and validlyauthorized by the general partner of Parent and the Board of Directors of Merger Sub, and no otherentity or equity-holder proceedings on the part of Parent, Merger Sub or their respective equityholders, except Parent as the sole stockholder of Merger Sub, are necessary to authorize theconsummation of the transactions contemplated hereby. As of the Amendment Date, the generalpartner of Parent has unanimously approved the issuance of Common Units (the “UnitIssuance”) in connection with the Merger. Each of the Parent Transaction Documents has beenduly and validly executed and delivered by Parent and Merger Sub and, assuming such ParentTransaction Document constitutes the legal, valid and binding agreement of the counterpartythereto, each of the Parent Transaction Documents constitutes the legal, valid and bindingagreement of each of Parent and Merger Sub and is enforceable against Parent and Merger Sub inaccordance with its terms, except as such enforcement may be limited by the Remedies Exceptions.     (b) Other than in connection with or in compliance with (i) the Exchange Act, (ii) theSecurities Act, (iii) the rules and regulations of the NYSE, (iv) the HSR Act, (v) the FPA and theFERC Approval, (vi) the MDPU Approval, (vii) the MPSC Approval, (viii) the FCC Approval, and (ix)the approvals set forth in Section 4.3(b) of the Parent Disclosure Schedule (collectively, the“Parent Approvals”), and, subject to the accuracy of the representations and warranties ofthe Company in Section 3.3(b), no authorization, consent, order, license, permit or approval of, orregistration, declaration, notice or filing with, any Governmental Entity is necessary, underapplicable Law, for the consummation by Parent or Merger Sub of the transactions contemplated bythis Agreement, except for the filing of the Certificate of Merger and for such authorizations,consents, approvals or filings that are not required to be obtained or made prior to consummationof such transactions or that, if not obtained or made, would not materially impede or delay theconsummation of the Merger and the other transactions contemplated by this Agreement ormaterially and adversely affect the ability of Parent and its Subsidiaries to operate theirbusiness in the ordinary course consistent with past practices.
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     (c) The execution and delivery by Parent and Merger Sub of this Agreement do not, and,assuming receipt of the Parent Approvals, the consummation of the transactions contemplated herebyand compliance with the provisions hereof will not (i) result in any loss, or material suspension,limitation or impairment of any right of Parent or any of its Subsidiaries to own or use any assetsmaterial to the conduct of their business or result in any material violation of, or materialdefault (with or without notice or lapse of time, or both) under, or give rise to a right oftermination, cancellation or acceleration of any material obligation or to the loss of a materialbenefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage,indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or licensebinding upon Parent or any of its Subsidiaries or result in the creation of any Liens other thanPermitted Liens, in each case, upon any of the properties or assets of Parent or any of itsSubsidiaries, (ii) conflict with or result in any violation of any provision of the certificate ofincorporation or by-laws or other equivalent organizational document, in each case as amended orrestated, of Parent or any of its Subsidiaries or (iii) materially conflict with or materiallyviolate any applicable Laws.     Section 4.4. Reports and Financial Statements.     (a) Parent and each of its Subsidiaries has filed or furnished all forms, documents andreports required to be filed or furnished prior to the date hereof by it with the SEC since January1, 2009 (the “Parent SEC Documents”). As of their respective dates or, if amended, as ofthe date of the last such amendment, the Parent SEC Documents complied in all material respectswith the requirements of the Securities Act and the Exchange Act, as the case may be, and theapplicable rules and regulations promulgated thereunder, and none of the Parent SEC Documentscontained any untrue statement of a material fact or omitted to state any material fact required tobe stated therein or necessary to make the statements therein, in light of the circumstances underwhich they were made, not misleading, except that information set forth in the Parent SEC Documentsas of a later date (but before the date of this Agreement) will be deemed to modify information asof an earlier date.     (b) The consolidated financial statements (including all related notes and schedules) ofParent included in the Parent SEC Documents fairly present in all material respects theconsolidated financial position of Parent and its consolidated Subsidiaries, as at the respectivedates thereof, and the consolidated results of their operations and their consolidated cash flowsfor the respective periods then ended (subject, in the case of the unaudited statements, to normalyear-end audit adjustments and to any other adjustments described therein, including the notesthereto) in conformity with GAAP (except, in the case of the unaudited statements, as permitted bythe SEC) applied on a consistent basis during the periods involved (except as may be indicatedtherein or in the notes thereto).     Section 4.5. Internal Controls and Procedures. Parent has established and maintains disclosure controls and procedures and internal controlover financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, ofRule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’sdisclosure controls and procedures are reasonably designed to ensure that all material informationrequired to be disclosed by Parent in the reports that it files or furnishes under the Exchange Actis recorded, processed, summarized and reported within the time periods specified in the rules andforms of the SEC,
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and that all such material information is accumulated and communicated to Parent’s management asappropriate to allow timely decisions regarding required disclosure and to make the certificationsrequired pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Parent’s management hascompleted an assessment of the effectiveness of Parent’s internal control over financial reportingin compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year endedDecember 31, 2010, and such assessment concluded that such controls were effective. Based on itsmost recent evaluation of internal control over financial reporting prior to the date hereof,management of Parent has disclosed to Parent’s auditors and the audit committee of the board ofdirectors of the general partner of Parent (i) any significant deficiencies and material weaknessesin the design or operation of internal control over financial reporting that are reasonably likelyto adversely affect in any material respect Parent’s ability to report financial information and(ii) any fraud, whether or not material, that involves management or other employees who have asignificant role in Parent’s internal control over financial reporting, and each such deficiency,weakness and fraud so disclosed to auditors, if any, has been disclosed to the Company prior to thedate hereof.     Section 4.6.No Undisclosed Liabilities. Except (a) as reflected or reserved against inParent’s consolidated balance sheets (or the notes thereto) included in the Parent SEC Documents,(b) as permitted or contemplated by this Agreement, (c) for liabilities and obligations incurredsince December 31, 2010 in the ordinary course of business consistent with past practice and (d)for liabilities or obligations which have been discharged or paid in full in the ordinary course ofbusiness, neither Parent nor any Subsidiary of Parent has any liabilities or obligations of anynature, whether or not accrued, contingent or otherwise, that would be required by GAAP to bereflected on a consolidated balance sheet of Parent and its consolidated Subsidiaries (or in thenotes thereto), other than those which would not have, individually or in the aggregate, a ParentMaterial Adverse Effect.     Section 4.7. Compliance with Law; Permits.     (a) Parent and each of its Subsidiaries are in compliance with and are not in default under orin violation of any applicable Law, except where such non-compliance, default or violation wouldnot have, individually or in the aggregate, a Parent Material Adverse Effect. Except as set forthin Section 4.7 of the Parent Disclosure Schedule, since January 1, 2008, neither Parent nor any ofits Subsidiaries has received any written notice or, to Parent’s knowledge, other communicationfrom any Governmental Entity regarding any actual or possible violation of, or failure to complywith, any Law, except as would not have, individually or in the aggregate, a Parent MaterialAdverse Effect.     (b) Parent and its Subsidiaries are in possession of all franchises, grants, authorizations,licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances,permissions, qualifications and registrations and orders of all Governmental Entities, and allrights under any Parent Material Contract with all Governmental Entities, and have filed alltariffs, reports, notices and other documents with all Governmental Entities necessary for Parentand its Subsidiaries to own, lease and operate their properties and assets or to carry on theirbusinesses as they are now being conducted (the “Parent Permits”), except where the failureto have any of the Parent Permits would not have, individually or in the aggregate, a ParentMaterial Adverse Effect. All Parent Permits are valid and in full force and
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effect and are not subject to any administrative or judicial proceeding that could result inmodification, termination or revocation thereof, except where the failure to be in full force andeffect would not have, individually or in the aggregate, a Parent Material Adverse Effect. Parentis, and each of its Subsidiaries is, in compliance in all respects with the terms and requirementsof such Parent Permits, except where the failure to be in compliance would not have, individuallyor in the aggregate, a Parent Material Adverse Effect.     Section 4.8. Environmental Laws and Regulations.     (a) Except as would not have, individually or in the aggregate, a Parent Material AdverseEffect: (i) no notice, notification, demand, request for information, citation, summons, complaintor order has been received, no penalty has been assessed, and no investigation, action, claim,suit, proceeding or review is pending or, to the knowledge of Parent, is threatened by anyGovernmental Entity or other person relating to Parent or any Subsidiary of Parent or against anyperson or entity whose liability Parent or any of its Subsidiaries has or may have retained orassumed either contractually or by operation of law, and relating to or arising out of anyEnvironmental Law, (ii) Parent and its Subsidiaries are, and except for matters that have beenfully resolved with the applicable Governmental Entity, since January 1, 2008 have been incompliance with all Environmental Laws (which compliance includes, but is not limited to,possession of all Parent Permits and compliance with the terms and conditions thereof), (iii)Parent is not obligated to conduct or pay for, and is not conducting or paying for, any response,remedial, investigatory or corrective action under any Environmental Law at any location, (iv)there has been no release of Hazardous Materials at any real property currently owned, leased oroperated by Parent or any Subsidiary of Parent or, to the knowledge of Parent, formerly owned,leased or operated by Parent or any Subsidiary of Parent or at any offsite disposal location usedby Parent or any Subsidiary of Parent to dispose of any Hazardous Materials in concentrations orunder circumstances that would require reporting or be reasonably likely to result ininvestigation, remediation or other corrective or response action by Parent or any Subsidiary ofParent or, to the knowledge of Parent and its Subsidiaries, by any person or entity whose liabilityParent or any of its Subsidiaries has or may have retained or assumed either contractually or byoperation of law, under any Environmental Law, (v) Parent is not party to any order, judgment ordecree that imposes any obligations under any Environmental Law, (vi) there have been no rupturesor explosions in Parent Systems resulting in personal injury, loss of life or material propertydamage, except to the extent any claims related to such ruptures have been resolved and (vii) thereare no defects, corrosion or other damage to any of Parent Systems that could reasonably beexpected to result in a pipeline integrity failure.     (b) As used in this Agreement, “Parent Systems” means the refined petroleum product,crude oil, natural gas, liquefied natural gas, natural gas liquid and other pipelines, laterallines, pumps, pump stations, storage facilities, terminals, processing plants, and other relatedoperations, assets, machinery and equipment that are owned by Parent or any of its Subsidiaries orused for the conduct of the business of Parent or any of its Subsidiaries as it is presentlyconducted.     Section 4.9. Employee Benefit Plans. Except as would not, individually or in theaggregate, materially and adversely affect the ability of Parent and its Subsidiaries to operatetheir business in the ordinary course consistent with past practices, (i) neither Parent, its
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Subsidiaries nor any of their ERISA Affiliates maintains, contributes to or is required tocontribute to any Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412or 4971 of the Code and (ii) none of the Benefit Plans sponsored, maintained or contributed to byParent or any of its Subsidiaries, or to which Parent or any of its Subsidiaries is required tocontribute, is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a“multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (asdefined in Section 3(37) of ERISA), and neither Parent, its Subsidiaries nor any of their ERISAAffiliates has during the past six (6) years contributed to, been required to contribute to orotherwise had any obligation or liability in connection with such a multiple employer plan ormultiemployer plan.     Section 4.10. Absence of Certain Changes or Events. Since December 31, 2010:     (a) except as otherwise contemplated by this Agreement, the businesses of Parent and itsSubsidiaries have been conducted, in all material respects, in the ordinary course of businessconsistent with past practices; and     (b) there has not been any event, change, effect, development, condition or occurrence that,individually or in the aggregate, has had or would reasonably be expected to have, a ParentMaterial Adverse Effect.     Section 4.11. Investigations; Litigation. Except as would not have a Parent MaterialAdverse Effect, (a) there is no investigation or review pending (or, to the knowledge of Parent,threatened) by any Governmental Entity with respect to Parent or any of its Subsidiaries, (b) thereare no actions, suits, inquiries, investigations, proceedings, subpoenas, civil investigativedemands or other requests for information relating to potential violations of law pending (or, tothe knowledge of Parent, threatened) against or affecting Parent or any of its Subsidiaries, or anyof their respective properties at law or in equity and (c) there are no orders, judgments ordecrees of, or before, any Governmental Entity.     Section 4.12. Information Supplied. None of the information provided by Parent or its Subsidiaries for inclusion or incorporation byreference in (a) the Form S-4 will, at the time the Form S-4 becomes effective under the SecuritiesAct, contain any untrue statement of a material fact or omit to state any material fact required tobe stated therein or necessary to make the statements therein not misleading or (b) the ProxyStatement will, at the date it is first mailed to the Company’s stockholders or at the time of theStockholders’ Meeting, contain any untrue statement of a material fact or omit to state anymaterial fact required to be stated therein or necessary in order to make the statements therein,in light of the circumstances under which they were made, not misleading. The Proxy Statement(other than the portion thereof relating solely to the Stockholders’ Meeting) and the Form S-4(other than the portion thereof based on information supplied by the Company for inclusion orincorporation by reference therein, with respect to which no representation is made by Parent orany of its Subsidiaries) will comply as to form in all material respects with the requirements ofthe Securities Act and the Exchange Act and the rules and regulations promulgated thereunder.Notwithstanding the foregoing provisions of this Section 4.12, no representation or warranty ismade by Parent with respect to information or statements made or incorporated by reference in theForm S-4 or the Proxy Statement which were not supplied by or on behalf of Parent.
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     Section 4.13. Regulatory Matters.     (a) Except as set forth in Section 4.13(a) of the Parent Disclosure Schedule, none of Parentand Parent’s Subsidiaries is a natural gas company as defined in the NGA, a common carrier underthe ICA or a utility, utility holding company, electric service company or electric company howeverdescribed under the laws of any state or local jurisdiction and the regulations promulgatedthereunder.     (b) All filings (other than immaterial filings) required to be made by Parent or any of itsSubsidiaries during the three years preceding the date hereof, with the FERC under the NGA, theNGPA, the ICA, the Department of Energy or any applicable state public utility commission ordepartment, as the case may be, have been made, including all forms, statements, reports, notices,agreements and all documents, exhibits, amendments and supplements appertaining thereto, includingall rates, tariffs and related documents, and all such filings complied, as of their respectivedates, and, as amended or supplemented, continue to comply with all applicable requirements ofapplicable statutes and the rules and regulations promulgated thereunder, except for filings thefailure of which to make or the failure of which to make in compliance with all applicablerequirements of applicable statutes and the rules and regulations promulgated thereunder, would notreasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.     Section 4.14. Tax Matters. Except as would not have, individually or in the aggregate, aParent Material Adverse Effect:     (a) Parent and its Subsidiaries (i) have duly and timely filed (taking into account anyextension of time within which to file) all Tax Returns required to have been filed by or withrespect to Parent or any of its Subsidiaries, and all such Tax Returns are true, correct andcomplete, (ii) have duly and timely paid all Taxes shown as due on such Tax Returns, (iii)have adequate accruals and reserves, in accordance with GAAP, on the financial statements includedin the Parent SEC Documents for all Taxes payable by Parent and its Subsidiaries for all taxableperiods and portions thereof through the date of such financial statements, (iv) have not, sincethe date of the financial statements included in the most recent Parent SEC Documents, incurred anyliability for Taxes outside the ordinary course of business or otherwise inconsistent with pastcustom and practice and (v) have not received written notice of any deficiencies for any Tax fromany taxing authority against Parent or any of its Subsidiaries for which there are not adequatereserves on the financial statements included in the Parent SEC Documents.     (b) Neither Parent nor any of its Subsidiaries is the subject of any currently ongoing taxaudit or other proceeding with respect to Taxes nor has any Tax audit or other proceeding withrespect to Taxes been proposed against any of them in writing. As of the date of this Agreement,there are no pending requests for waivers of the time to assess any Tax. Neither Parent nor any ofits Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to anyextension of time with respect to a Tax assessment or deficiency. There are no Liens for Taxes onany of the assets of Parent or any of its Subsidiaries other than any Lien for Taxes not yetdelinquent, being contested in good faith or for which adequate accruals or reserves have beenestablished and disclosed in the Parent SEC Documents. No claim has ever been made in writing by ataxing authority of a jurisdiction where Parent or one of its
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Subsidiaries has not filed Tax Returns claiming that Parent or such Subsidiary is or may be subjectto taxation by that jurisdiction.     (c) Neither Parent nor any of its Subsidiaries is obligated by any written contract, agreementor other arrangement to indemnify any other person (other than Parent and its Subsidiaries) withrespect to Taxes. Neither Parent nor any of its Subsidiaries is a party to or bound by any writtenTax allocation, indemnification or sharing agreement (other than an agreement with Parent or itsSubsidiaries). To the knowledge of Parent, neither Parent nor any of its Subsidiaries is liableunder Treasury Regulation Section 1.1502-6 (or any similar provision of the Tax Laws of any state,local or foreign jurisdiction) or as a transferee or successor for any Tax of any person other thanParent and its Subsidiaries.     (d) Parent and its Subsidiaries have withheld and paid all Taxes required to have beenwithheld and paid in connection with amounts paid or owing to any employee, independent contractor,creditor, unitholder or other third party.     (e) Neither Parent nor any of its Subsidiaries was a “distributing corporation” or “controlledcorporation” in a transaction intended to qualify under Section 355 of the Code within the past two(2) years or otherwise as part of a plan that includes the Merger.     (f) Neither Parent nor any of its Subsidiaries has participated in any “reportabletransaction” within the meaning of Treasury Regulation Section 1.6011-4.     (g) Parent has made available to the Company or its legal or accounting representative copiesof all federal income Tax Returns for Parent and each of its Subsidiaries filed for all periodsincluding and after the period ended December 31, 2005 and all state income Tax Returns for Parent and each of its Subsidiaries filed for all periods including and afterthe period ended December 31, 2005.     Section 4.15. Employment and Labor Matters.     (a) (i) Except as set forth in Section 4.15(a) of the Parent Disclosure Schedule, neitherParent nor any of its Subsidiaries is a party to or bound by any material collective bargaining orsimilar agreement or work rules or practices with any labor union, labor organization or employeeassociation applicable to employees of Parent or any of its Subsidiaries , (ii) there are noexisting or, to the knowledge of Parent, threatened strikes or lockouts with respect to anyemployees of Parent or any of its Subsidiaries (“Parent Employees”), (iii) to the knowledgeof Parent, there is no union organizing effort pending or threatened against Parent or any of itsSubsidiaries, (iv) there is no unfair labor practice, labor dispute (other than, in each case,routine individual grievances) or labor arbitration proceeding pending or, to the knowledge ofParent, threatened with respect to Parent Employees and (v) there is no slowdown or work stoppagein effect or, to the knowledge of Parent, threatened with respect to Parent Employees.     (b) Except for such matters that would not, individually or in the aggregate, materially andadversely affect the ability of Parent and its Subsidiaries to operate their business in theordinary course consistent with past practices, Parent and its Subsidiaries are, and have been, inmaterial compliance with all applicable Laws respecting (i) employment and employment practices,(ii) terms and conditions of employment and wages and hours, and
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(iii) unfair labor practices. Neither Parent nor any of its Subsidiaries has any materialliabilities under the Worker Adjustment and Retraining Notification Act of 1998 as a result of anyaction taken by Parent (other than at the written direction of Parent or as a result of any of thetransactions contemplated hereby).     Section 4.16. Real Property.     (a) With respect to each material real property owned by Parent or any Subsidiary (suchproperty collectively, the “Parent Owned Real Property”), except as would not have,individually or in the aggregate, a Parent Material Adverse Effect, (i) either Parent or aSubsidiary of Parent has marketable and insurable fee simple title to such Parent Owned RealProperty, free and clear of all Liens other than any Parent Permitted Liens and PermittedEncumbrances, (ii) there are no leases, subleases, licenses, rights or other agreements affectingany portion of the Parent Owned Real Property that would reasonably be expected to adversely affectthe existing use of the Parent Owned Real Property by Parent in the operation of its businessthereon, and (iii) there are no outstanding options or rights of first refusal in favor of anyother party to purchase such Parent Owned Real Property or any portion thereof or interest thereinthat would reasonably be expected to adversely affect the existing use of the Parent Owned RealProperty by Parent in the operation of its business thereon. Neither Parent nor any of itsSubsidiaries has received notice of any pending, and to the knowledge of Parent there is nothreatened, condemnation proceeding with respect to any Parent Owned Real Property, exceptproceedings which would not have, individually or in the aggregate, a Parent Material AdverseEffect.     (b) Except as would not have, individually or in the aggregate, a Parent Material AdverseEffect, (i) each material lease, sublease and other agreement (collectively, the “Parent RealProperty Leases”) under which Parent or any of its Subsidiaries uses or occupies or has theright to use or occupy any material real property (the “Parent Leased Real Property”) atwhich the material operations of Parent or any of its Subsidiaries are conducted, is valid, bindingand in full force and effect, (ii) neither Parent nor any of its Subsidiaries is currentlysubleasing, licensing or otherwise granting any person the right to use or occupy a materialportion of a Parent Leased Real Property that would reasonably be expected to adversely affect theexisting use of the Parent Leased Real Property by Parent in the operation of its business thereon,and (iii) no uncured default of a material nature on the part of Parent or, if applicable, itsSubsidiary or, to the knowledge of Parent, the landlord thereunder, exists under any Parent RealProperty Lease, and no event has occurred or circumstance exists which, with the giving of notice,the passage of time, or both would constitute a material breach or default under a Parent RealProperty Lease. Except as would not have, individually or in the aggregate, a Parent MaterialAdverse Effect, Parent and each of its Subsidiaries has a good and valid leasehold interest,subject to the terms of the Parent Real Property Leases, in each parcel of Parent Leased RealProperty, free and clear of all Liens, except for Parent Permitted Liens and PermittedEncumbrances. Neither Parent nor any of its Subsidiaries has received notice of any pending, and,to the knowledge of Parent, there is no threatened, condemnation proceeding with respect to anyParent Leased Real Property, except such proceeding which would not have, individually or in theaggregate, a Parent Material Adverse Effect.
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     (c) Except as would not, individually or in the aggregate, have a Parent Material AdverseEffect: (i) each of Parent and its Subsidiaries has such Rights-of-Way that are necessary forParent and its Subsidiaries to use and operate their respective assets and properties in the mannerthat such assets and properties are currently used and operated, and each such Right-of-Way isvalid and free and clear of all Liens (other than Parent Permitted Liens); (ii) Parent and itsSubsidiaries conduct their businesses in a manner that does not violate any of the Rights-of-Way;(iii) Parent and its Subsidiaries have fulfilled and performed all of their obligations withrespect to such Rights-of-Way; and (iv) Parent has not received written notice of the occurrence ofany ongoing event or circumstance that allows, or after the giving of notice or the passage oftime, or both, would allow the limitation, revocation or termination of any Right-of-Way or wouldresult in any impairment of the rights of Parent and its Subsidiaries in and to any suchRights-of-Way. All pipelines operated by Parent and its Subsidiaries are subject to Rights-of-Way,and there are no gaps (including any gap arising as a result of any breach by Parent or any of itsSubsidiaries of the terms of any Rights-of-Way) in the Rights-of-Way other than gaps that wouldnot, individually or in the aggregate, materially and adversely affect the ability of Parent andits Subsidiaries to operate their business in the ordinary course consistent with past practices.     Section 4.17. Vote of Parent Partners; Merger Sub Approval.     (a) The general partner of Parent has approved this Agreement, the Merger and the UnitIssuance. No vote of holders of securities of Parent, other than the approval of and action by itsgeneral partner, is required to approve the Unit Issuance and no other vote of the holders of anyclass of Parent equity holders, other than the approval of and action by its general partner, isnecessary to approve this Agreement or the transactions contemplated hereby, including the Merger.     (b) The Board of Directors of Merger Sub, by written consent duly adopted prior to theAmendment Date, (i) determined that this Agreement and the Merger are advisable and fair to and inthe best interests of Merger Sub and its stockholder, (ii) duly approved and adopted thisAgreement, the Merger and the other transactions contemplated hereby, which adoption has not beenrescinded or modified and (iii) recommended this Agreement for adoption by Parent, as the solestockholder of Merger Sub. Immediately following execution of this Agreement, Parent, as the solestockholder of Merger Sub, will duly approve and adopt this Agreement and the Merger     Section 4.18. Opinion of Financial Advisors. The Board of Directors of Parent has receivedthe opinion of Credit Suisse Securities (USA) LLC to the effect that, as of the date of suchopinion and subject to the assumptions, limitations, qualifications and other matters considered inthe preparation thereof, the Merger Consideration is fair, from a financial point of view, toParent. Parent shall, promptly following receipt of such opinion in written form, furnish anaccurate and complete copy of said opinion to the Company solely for informational purposes.     Section 4.19. Material Contracts.     (a) Except for this Agreement, Parent’s Benefit Plans and agreements filed as exhibits toParent SEC Documents and the agreements otherwise provided or made available to
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the Company, as of the date of this Agreement, neither Parent nor any of its Subsidiaries is aparty to or bound by:     (i) any “material contract” (as such term is defined in Item 601(b)(10) ofRegulation S-K of the SEC);     (ii) any contract imposing any material restriction on the right or ability ofParent or any of its Subsidiaries to (A) compete with any other person or (B)acquire or dispose of the securities of another person;     (iii) any mortgage, note, debenture, indenture, security agreement, guaranty,pledge or other agreement or instrument evidencing Indebtedness of Parent or any ofits Subsidiaries in an amount in excess of $500.0 million;     (iv) any Contract that provides for the acquisition, disposition, license, use,distribution or outsourcing of assets, services, rights or properties with a valueor requiring annual fees in excess of $500.0 million;     (v) any Contract to acquire all or a substantial portion of the capital stock,business, property or assets of any other person for an amount of cash (or value ofnon-cash consideration), in excess of $500.0 million;     (vi) any joint venture, partnership or limited liability company agreement orother similar Contract relating to the formation, creation, operation, management orcontrol of any joint venture, partnership or limited liability company, other thanany such Contract solely between or among Parent and or any of its Subsidiaries;     (vii) any Contract limiting or restricting the ability of Parent or any of itsSubsidiaries to make distributions or declare or pay dividends in respect of theircapital stock, partnership interests, membership interests or other equityinterests, as the case may be;     (viii) any Contract containing any exclusivity or most favored nation clause;     (ix) any Contract that involves future expenditures or receipts by Parent orany of its Subsidiaries of more than $500.0 million in any one year period thatcannot be terminated on less than 90 days notice without material payment orpenalty;     (x) any acquisition Contract that contains “earn out” or other contingentpayment obligations, or remaining indemnity or similar obligations, that couldreasonably be expected to result in future payments by or to Parent or any of itsSubsidiaries in excess of $250.0 million;     (xi) any Contract with a labor union or guild (including any collectivebargaining agreement);
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     (xii) any Contract containing provisions triggered by any change of control ofParent or any of its Subsidiaries;     (xiii) any Contract in favor of directors, officers, members, managers orpartners relating to employment or compensation or providing rights toindemnification;     (xiv) any Contract the loss or breach of which could reasonably be expected tohave a Parent Material Adverse Effect; and     (xv) any lease or sublease with respect to leased real property requiringannual payments in excess of $50 million.          All contracts of the types referred to in clauses (i) through (xv) above are referred toherein as “Parent Material Contracts.” Section 4.19(a) of the Parent Disclosure Schedulesets forth a complete and correct list of all Parent Material Contracts as of the date of thisAgreement that have not been filed or incorporated by reference in Parent SEC Reports. Parent has deliveredor made available to Parent true and correct copies of all Parent Material Contracts.     (b) Neither Parent nor any Subsidiary of Parent is in material breach of or default under theterms of any Parent Material Contract. To the knowledge of Parent, no other party to any ParentMaterial Contract is in material breach of or default under the terms of any Parent MaterialContract. Each Parent Material Contract is a valid and binding obligation of Parent or theSubsidiary of Parent which is party thereto and, to the knowledge of Parent, of each other partythereto, and is in full force and effect, subject to the Remedies Exceptions.     Section 4.20. Finders or Brokers. Except for Credit Suisse Securities (USA) LLC, neitherParent nor any of its Subsidiaries has employed any investment banker, broker or finder inconnection with the transactions contemplated by this Agreement who might be entitled to any fee orany commission in connection with or upon consummation of the Merger. Parent has furnished to theCompany accurate and complete copies of its agreement with Credit Suisse Securities (USA) LLCrelating to the transactions contemplated by this Agreement.     Section 4.21. Lack of Ownership of Company Common Stock. Neither Parent nor any of itsSubsidiaries nor any “affiliate” or “associate” of Parent or any of its Subsidiaries (as such termsare defined in Section 203 of the DGCL) beneficially owns (or has beneficially owned in the pastthree years) directly or indirectly, any Shares or other securities convertible into, exchangeablefor or exercisable for Shares or any securities of any Subsidiary of the Company (including forpurposes of Section 203 of the DGCL), and neither Parent nor any of its Subsidiaries has any rightsto acquire any Shares except pursuant to this Agreement. Except for the Support Agreements, thereare no voting trusts or other agreements or understandings to which Parent or any of itsSubsidiaries is a party with respect to the voting of the capital stock or other equity interest ofthe Company or any of its Subsidiaries.     Section 4.22. Financing. As of the Amendment Date, Parent has delivered to the Companytrue, complete and correct copies of the fully executed commitment letter (such letter, as amended,modified or waived from time to time to the extent permitted herein, or any financing commitment inrespect of an Alternative Financing as contemplated by the last
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sentence of Section 5.18(b), the “Commitment Letter”) and fee letter (the “Fee Letter”)executed in connection with the debt financing of a portion of the cash component of the MergerConsideration (the “Financing”) (with certain fee amounts and certain economic terms of the “marketflex” provisions redacted). As of the Amendment Date, the Commitment Letter is in full force andeffect and constitutes the legal, valid, binding and enforceable obligations of Parent and, to theknowledge of Parent, the other parties thereto (subject to applicable bankruptcy, insolvency,fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rightsgenerally and general principles of equity). As of the Amendment Date, the Commitment Letter hasnot been amended or modified in any respect and the respective commitments therein have not beenwithdrawn or terminated. There are no conditions precedent or, to the knowledge of Parent, othercontingencies related to the funding of the full amount of the Financing on the terms set forth in the Commitment Letter (assuch terms may be altered in accordance with the “market flex” provisions set forth in the FeeLetter) other than as expressly set forth as of the Amendment Date in the Commitment Letter. As ofthe Amendment Date, no event has occurred that, with or without notice, lapse of time or both,would constitute a breach by Parent or any other party thereto under the Commitment Letter.Subject to the terms and conditions of the Commitment Letter, as of the Amendment Date, assumingcompliance by the Company in all material respects with its covenants contained in Section 5.1 andSection 5.18(d) and assuming satisfaction of the conditions set forth in Section 6.1 and Section6.3, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by theCommitment Letter, together with other financial resources of Parent, including cash on hand andmarketable securities, will, in the aggregate, be sufficient to fund the payment of the cashcomponent of the Merger Consideration. As of the Amendment Date, assuming satisfaction of theconditions set forth in Section 6.3, Parent has no reason to believe that either it or any otherparty will be unable to satisfy on a timely basis any condition of the Financing under theCommitment Letter or the Fee Letter or that the Financing contemplated by the Commitment Letterwill not be made available to Parent on the Closing Date; provided that Parent is not making anyrepresentation or warranty regarding the Company’s future performance, the effect of any inaccuracyof the representations and warranties of the Company in this Agreement or the failure of theCompany to comply with any of its covenants in all material respects under this Agreement.     Section 4.23. No Additional Representations. Parent and Merger Sub acknowledge that theCompany does not make any representation or warranty as to any matter whatsoever except asexpressly set forth in this Agreement or in any certificate delivered by the Company to Parent orMerger Sub in accordance with the terms hereof, and specifically (but without limiting thegenerality of the foregoing) that the Company makes no representation or warranty with respect to(a) any projections, estimates or budgets delivered or made available to Parent or Merger Sub (orany of their respective affiliates, officers, directors, employees or Representatives) of futurerevenues, results of operations (or any component thereof), cash flows or financial condition (orany component thereof) of the Company and its Subsidiaries or (b) the future business andoperations of the Company and its Subsidiaries, and neither Parent or Merger Sub has relied on suchinformation or any other representations or warranties not set forth in this Agreement.
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**ARTICLE V.****COVENANTS AND AGREEMENTS**     Section 5.1. Conduct of Business by the Company.     (a) From and after the date hereof and prior to the Effective Time or the date, if any, onwhich this Agreement is earlier terminated pursuant to Section 7.1 (the “TerminationDate”), and except (i) as may be required by applicable Law, (ii) as may be agreed in writingby Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as maybe contemplated or required by this Agreement or (iv) as set forth in Section 5.1(a) of theCompany Disclosure Schedule, the Company covenants and agrees with Parent that the business of theCompany and its Subsidiaries shall be conducted, and that such entities shall not take any actionexcept in the ordinary course of business, and shall use their commercially reasonable efforts topreserve intact their present lines of business, maintain their rights and franchises and preservetheir relationships with customers and suppliers; provided,however, that no action by the Companyor its Subsidiaries with respect to matters specifically addressed by any provision of Section5.1(b) shall be deemed a breach of this sentence unless such action would constitute a breach ofsuch other provision. The Company shall (i) promptly notify Parent of any material change in itscondition (financial or otherwise) or business or any termination, cancellation, repudiation ormaterial breach of any Company Material Contract (or communications indicating that the same may becontemplated), and (ii) give prompt notice to Parent of any change, occurrence, effect, condition,fact, event, or circumstance known to the Company that is reasonably likely, individually or takentogether with all other changes, occurrences, effects, conditions, facts, events and circumstancesknown to such party, to result in a Company Material Adverse Effect;provided,however, that nounintentional failure by the Company to provide a required notice under the last sentence of thisSection 5.1(a) with respect to any matter that would not result in a failure of the conditions setforth in Section 6.3(a) shall result in a failure of the condition set forth in Section 6.3(b).     (b) The Company agrees with Parent, on behalf of itself and its Subsidiaries, that between thedate hereof and the Effective Time, without the prior written consent of Parent (which consentshall not be unreasonably withheld, delayed or conditioned), the Company:     (i) except in the ordinary course of business or as disclosed in Section5.1(b)(i) of the Company Disclosure Schedule, shall not, and shall not permit any ofits Subsidiaries that is not wholly owned by the Company or Subsidiaries of any suchSubsidiaries to, authorize or pay any dividends on or make any distribution withrespect to its outstanding shares of capital stock (whether in cash, assets, stockor other securities of the Company or its Subsidiaries), except (A) dividends ordistributions by any Subsidiaries only to the Company or to any Subsidiary of theCompany in the ordinary course of business, (B) dividends or distributions requiredunder the applicable organizational documents of such entity in effect on the dateof this Agreement, or (C) regular quarterly cash dividends with customary record andpayment dates on the shares of the Company Common Stock not in excess of $0.15 pershare per quarter;
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     (ii) except as otherwise permitted by this Agreement, shall not, and shall notpermit any of its Subsidiaries to, adopt a plan of complete or partial liquidation,dissolution, merger, consolidation, restructuring, recapitalization or otherreorganization, or enter into a letter of intent or agreement in principle withrespect thereto, other than the Merger and other than any mergers, consolidations,restructurings or reorganizations solely among the Company and its Subsidiaries oramong the Company’s Subsidiaries;     (iii) except as otherwise permitted by this Agreement or for transactionsbetween the Company and its Subsidiaries or among the Company’sSubsidiaries, shall not, and shall not permit any of its Subsidiaries, toprepay, redeem, repurchase, defease, cancel or otherwise acquire any Indebtedness orguarantees thereof of the Company or any Subsidiary, other than (A) at statedmaturity, (B) any required amortization payments and mandatory prepayments(including mandatory prepayments arising from any change of control put rights towhich holders of such Indebtedness or guarantees thereof may be entitled) and (C)Indebtedness or guarantees thereof disclosed in Section 5.1(b)(iii) of the CompanyDisclosure Schedule, in each case in accordance with the terms of the instrumentgoverning such indebtedness as in effect on the date hereof;     (iv) shall not, and shall not permit any of its Subsidiaries to, make anyacquisition of any other person or business or make any loans, advances or capitalcontributions to, or investments in, any other person with a value in excess of$50.0 million in the aggregate, except (A) as contemplated by the Company’s fiscal2011 budget and capital expenditure plan, as attached to Section 5.1(b)(iv) of theCompany Disclosure Schedule (the “Company 2011 Budget”) (whether or not suchacquisition, loan, advance, capital contribution or investment is made during the2011 fiscal year), (B) as required by contracts disclosed in Section 5.1(b)(iv) ofthe Company Disclosure Schedule or (C) as made in connection with any transactionsolely between the Company and a wholly-owned Subsidiary of the Company or betweenwholly-owned Subsidiaries of the Company; provided,however, that notwithstandingthe foregoing, the Company shall not, and shall not permit any of its Subsidiariesto, make any acquisition of any other person or business or make any loans, advancesor capital contributions to, or investments in, any other person which wouldreasonably be expected to prevent, impede or delay the consummation of the Merger bythe End Date;     (v) except as disclosed in Section 5.1(b)(v) of theCompany Disclosure Schedule, shall not, and shall not permit any of itsSubsidiaries to, authorize any capital expenditures in excess of $50.0million in the aggregate, except for (A) expenditures contemplated bythe Company 2011 Budget (whether or not such capital expenditure ismade during the 2011 fiscal year), (B) expenditures contemplated by theCompany’s fiscal 2012 budget and capital expenditures plan, which shallnot be greater than the expenditures contemplated by the Company 2011Budget plus 10%, excluding extraordinary items contained in the Company2011 Budget, or (C) expenditures made in response to any emergency,whether
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caused by war, terrorism, weather events, public health events, outages orotherwise;     (vi) shall not, and shall not permit any of its Subsidiaries to, split, combineor reclassify any of its capital stock or issue or authorize or propose the issuanceof any other securities in respect of, in lieu of or in substitution for shares ofits capital stock, except for any such transaction by a wholly owned Subsidiary ofthe Company which remains a wholly owned Subsidiary after consummation of suchtransaction;     (vii) except as disclosed in Section 5.1(b)(vii) of the Company DisclosureSchedule or Company Benefit Plans or as required by applicable Law, shall not, andshall not permit any of its Subsidiaries to, (A) increase the compensation or otherbenefits payable or provided to the Company’s directors, officers, employees orother service providers, other than customary increases in the ordinary course ofbusiness consistent with past practice, (B) enter into or amend any employment,change of control, severance or retention agreement with any director, officer oremployee of the Company except (1) for agreements entered into with any newly-hiredemployees who are not officers or (2) for severance agreements entered into withemployees who are not officers in connection with terminations of employment, ineach case, in the ordinary course of business consistent with past practice, (C)establish, adopt, enter into, terminate or amend any plan, policy, program orarrangement for the benefit of any current or former directors, officers oremployees or any of their beneficiaries, except as permitted pursuant to clause (B)above or in the ordinary course of business consistent with past practice as wouldnot result in a material increase in cost to the Company; provided, however, thatthe foregoing exception shall not apply to any equity based plan, policy, program orarrangement (or award under any of the foregoing), (D) enter into, terminate oramend any collective bargaining agreements, or (E) make any change in the keymanagement structure of the Company or any of its material Subsidiaries, includingthe hiring of additional officers or the termination of existing officers;     (viii) shall not, and shall not permit any of its Subsidiaries to, enter intoor make any loans or advances to any of its officers, directors, employees, agentsor consultants (other than loans or advances (A) in the ordinary course of businessor (B) for travel and reasonable business expenses) or make any change in itsexisting borrowing or lending arrangements for or on behalf of any of such persons,except as required by the terms of any Company Benefit Plan;     (ix) except as disclosed in Section 5.1(b)(ix) of the Company DisclosureSchedule, shall not, and shall not permit any of its Subsidiaries to, materiallychange financial accounting policies or procedures or any of its methods ofreporting income, deductions or other material items for financial accountingpurposes, except as required by GAAP, SEC rule or policy or applicable Law;
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     (x) except as disclosed in Section 5.1(b)(x) of the Company DisclosureSchedule, shall not adopt any amendments to its certificate of incorporation orby-laws or similar applicable charter documents, and shall not permit any of itsSubsidiaries to adopt any material amendments to its certificate of incorporation orby-laws or similar applicable charter documents;     (xi) except for transactions among the Company and its wholly ownedSubsidiaries or among the Company’s wholly owned Subsidiaries, shall not, and shallnot permit any of its Subsidiaries to, issue, sell, pledge, dispose of or encumber,or authorize the issuance, sale, pledge, disposition or encumbrance of, any sharesof its capital stock or other ownership interest in the Company or any of itsSubsidiaries or any securities convertible into or exchangeable for any such sharesor ownership interest, or any rights, warrants or options to acquire any such sharesof capital stock, ownership interest or convertible or exchangeable securities ortake any action to cause to be exercisable any otherwise unexercisable option underany existing Company Benefit Plans (except as otherwise provided by the terms ofthis Agreement or the express terms of any unexercisable or unexercised options orwarrants outstanding on the date hereof), other than (A) issuances of shares ofCompany Common Stock in respect of any exercise of Company Stock Awards andsettlement of any Company Equity Awards outstanding on the date hereof or as may begranted after the date hereof as permitted under this Section 5.1(b), (B) the saleof shares of Company Common Stock pursuant to the exercise of options to purchaseCompany Common Stock if necessary to effectuate an option direction upon exercise orfor withholding of Taxes, or (C) the grant of equity compensation awards at times,in amounts, on terms and conditions and otherwise in the ordinary course of businessconsistent with past practice and in accordance with Section 5.1(b)(xi) of theCompany Disclosure Schedule;     (xii) except for transactions among the Company and its wholly ownedSubsidiaries or among the Company’s wholly owned Subsidiaries, shall not, and shallnot permit any of its Subsidiaries to, directly or indirectly, purchase, redeem orotherwise acquire any shares of the capital stock of any of them or any rights,warrants or options to acquire any such shares;     (xiii) shall not, and shall not permit any of its Subsidiaries to, incur,assume, guarantee or otherwise become liable for any Indebtedness (directly,contingently or otherwise), except (A) for any Indebtedness incurred in the ordinarycourse of business, (B) for any Indebtedness among the Company and its wholly-ownedSubsidiaries or among the Company’s wholly-owned Subsidiaries, (C) for anyIndebtedness incurred to replace, renew, extend, refinance or refund any existingIndebtedness on substantially the same or more favorable terms to the Company thansuch existing Indebtedness, (D) for any guarantees by the Company of Indebtedness ofSubsidiaries of the Company or guarantees by the Company’s Subsidiaries ofIndebtedness of the Company or any Subsidiary of the Company, which Indebtedness isincurred in compliance with this Section 5.1(b), (E) as disclosed in Section5.1(b)(xiii) of the Company Disclosure Schedule, and
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(F) for any Indebtedness not to exceed $50.0 million in aggregate principalamount outstanding at any time incurred by the Company or any of its Subsidiariesother than in accordance with clauses (A)-(E); provided,however, that in the caseof each of clauses (A)-(F) such Indebtedness does not impose or result in anyadditional restrictions or limitations on the Company or any of its Subsidiaries or,following the Closing, the Surviving Corporation or any of its Subsidiaries, orsubject the Company or any of its Subsidiaries or, following the Closing, theSurviving Corporation or any of its Subsidiaries, to any additional covenants orobligations (other than the obligations to make payment on such Indebtedness) towhich the Company or its Subsidiaries is not otherwise subject under the terms ofany Indebtedness outstanding as of the date hereof;     (xiv) except for transactions among the Company and its wholly ownedSubsidiaries or among the Company’s wholly owned Subsidiaries or as disclosed inSection 5.1(b)(xiv) of the Company Disclosure Schedule, shall not, and shall notpermit any of its Subsidiaries to, sell, lease, license, transfer, exchange or swap,mortgage (including securitizations), or otherwise dispose of any material portionof its material properties or non-cash assets, including the capital stock ofSubsidiaries;     (xv) except as disclosed in Section 5.1(b)(xv) of the Company DisclosureSchedule, the Company shall not take any action, and shall not permit any of itsSubsidiaries to take any action, that would result in the Company or any of itsSubsidiaries becoming subject to any restriction not in existence on the date hereofwith respect to the payment of distributions or dividends;     (xvi) other than in the ordinary course of business, shall not, and shall notpermit any of its Subsidiaries to, modify, amend or terminate, or waive any rightsunder any Company Material Contract, in any material respect in a manner that isadverse to the Company and its Subsidiaries, taken as a whole or that could preventor materially delay the consummation of the Merger or the other transactionscontemplated by this Agreement past the End Date (or any extension thereof);     (xvii) except as disclosed in Section 5.1(b)(xvii) of the Company DisclosureSchedule, shall not, and shall not permit any of its Subsidiaries to, waive,release, assign, settle or compromise any claim, action or proceeding, other thanwaivers, releases, assignments, settlements or compromises (A) equal to or lesserthan the amounts specifically reserved with respect thereto on the balance sheet asof December 31, 2010 included in the Company SEC Documents or (B) that do not exceed$50.0 million in the aggregate;     (xviii) make, revoke or amend any material Tax election, enter into any closingagreement, settlement or compromise of any claim or assessment with respect to anymaterial Tax liability, amend any material Tax Return, surrender a claim for amaterial refund of Taxes or consent to any extension or waiver of the statute oflimitations period applicable to any material Tax claim or assessment;
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     (xix) knowingly or intentionally take any action that would reasonably beexpected to make any representation or warranty of the Company hereunder inaccuratein any respect or that would cause the condition in Section 6.3(a) not to be met;     (xx) other than in the ordinary course of business in accordance with pastpractice, shall not, and shall not permit any of its Subsidiaries to, modify, amend,permit to lapse, fail to renew, surrender, terminate, or waive any rights under anyCompany Permit, in any respect in a manner that is materially adverse to the Companyand its Subsidiaries, taken as a whole or that could prevent or materially delay theconsummation of the Merger or the other transactions contemplated by this Agreementpast the End Date (or any extension thereof);     (xxi) except in the ordinary course of business in accordance with pastpractice, take or fail to take any action, or permit any of its Subsidiaries to takeor fail to take any action, that could cause the Company or any of its Subsidiaries,or any of their assets or businesses that is not already so regulated or treated tobe a natural gas company as defined in the NGA, a public utility, transmittingutility, electric utility or electric utility company under the FPA, a non-exemptholding company under PUHCA, a common carrier under the ICA or a utility, utilityholding company, intrastate pipeline, gas service company, electric service company,gas company, electric company, or any similar entity however described under thelaws of any state or local jurisdiction and the regulations promulgated thereunder;and     (xxii) shall not, and shall not permit any of its Subsidiaries to, agree, inwriting or otherwise, to take any of the foregoing actions.“Indebtedness” means, with respect to any person, without duplication, (a) all obligationsof such person for borrowed money, (b) all obligations of such person evidenced by bonds,debentures, notes or other debt securities or warrants or other rights to acquire any debtsecurities of such person, (c) all capitalized lease or leveraged lease obligations of such personor obligations of such person to pay the deferred and unpaid purchase price of property andequipment, (d) all obligations of such person pursuant to securitization or factoring programs orarrangements, or (e) all guarantees of any of the foregoing.     Section 5.2. Conduct of Business by Parent.     (a) From and after the date hereof and prior to the Effective Time or the Termination Date, ifany, and except (i) as may be required by applicable Law, (ii) as may be agreed in writing by theCompany (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may becontemplated or required by this Agreement, (iv) as contemplated by the Drop-Down Agreements or (v)as set forth in Section 5.2(a) of the Parent Disclosure Schedule, Parent covenants and agrees withthe Company that the business of Parent shall be conducted in, and that Parent shall not take anyaction except in, the ordinary course of businessand shall use its reasonable best efforts to preserve intact its present lines of business,maintain its rights and franchises and preserve its relationships with customers and suppliers;provided,
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however, that no action by Parent with respect to matters specifically addressed by anyprovision of Section 5.2(b) shall be deemed a breach of this sentence unless such action wouldconstitute a breach of such other provision. Parent shall (i) promptly notify the Company of anymaterial change in its condition (financial or otherwise) or business or any termination,cancellation, repudiation or material breach of any Parent Material Contract (or communicationsindicating that the same may be contemplated), and (ii) give prompt notice to the Company of anychange, occurrence, effect, condition, fact, event, or circumstance known to Parent that isreasonably likely, individually or taken together with all other changes, occurrences, effects,conditions, facts, events and circumstances known to such party, to result in a Parent MaterialAdverse Effect; provided, however, that no unintentional failure by Parent to provide a requirednotice under the last sentence of this Section 5.2(a) with respect to any matter that would notresult in a failure of the conditions set forth in Section 6.2(a) shall result in a failure of thecondition set forth in Section 6.2(b).     (b) Parent agrees with the Company that between the date hereof and the Effective Time,without the prior written consent of the Company (which consent shall not be unreasonably withheld,delayed or conditioned), Parent:     (i) except in the ordinary course of business, shall not authorize or make anydistribution with respect to its outstanding equity securities (whether in cash,assets, partnership units, stock or other securities of Parent or its Subsidiaries),except (A) regular quarterly cash distributions with customary record and paymentdates on the Common Units not in excess of $0.625 per Common Unit per quarter, and(B) regular quarterly cash distributions with customary record and payment dates onthe Series A Preferred Units not in excess of $2.00 per Series A Preferred Unit perquarter plus any accrued and unpaid distributions on the Series A Preferred Unitsfrom prior quarters;     (ii) except as otherwise permitted by this Agreement or as disclosed in Section5.2(b)(ii) of the Parent Disclosure Schedule, shall not adopt a plan of complete orpartial liquidation or dissolution or enter into a letter of intent or agreement inprinciple with respect thereto;     (iii) except as disclosed in Section 5.2(b)(iii) of the Parent DisclosureSchedule shall not split, combine or reclassify any of its equity securities orissue or authorize or propose the issuance of any other securities in respect of, inlieu of or in substitution for its equity securities, except for any suchtransaction by a wholly owned Subsidiary of Parent which remains a wholly ownedSubsidiary after consummation of such transaction;     (iv) except as disclosed in Section 5.2(b)(iv) of the Parent DisclosureSchedule, shall not adopt any amendments to its Parent Organizational Documents;     (v) except for transactions among Parent and its wholly owned Subsidiaries oramong Parent’s wholly owned Subsidiaries, shall not directly or
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indirectly, purchase, redeem or otherwise acquire any equity securities of Parent or any rights,warrants or options to acquire any such equity securities;     (vi) knowingly or intentionally take any action that would reasonably beexpected to make any material representation or warranty of Parent or Merger Subhereunder inaccurate in any material respect or that would cause the condition inSection 6.2(a) not to be met; and     (vii) shall not, and shall not permit any of its wholly owned Subsidiaries to,agree, in writing or otherwise, to take any of the foregoing actions.     (c) For the avoidance of doubt, none of the restrictions contained in this Section 5.2 shallapply to ETP or its Subsidiaries.     Section 5.3. Mutual Access.     (a) For purposes of furthering the transactions contemplated hereby, each of the Company andParent shall afford the other party and (i) the officers and employees and (ii) the accountants,consultants, legal counsel, financial advisors and agents and other representatives (such personsdescribed in this clause (ii), collectively, “Representatives”) of such other partyreasonable access during normal business hours, throughout the period prior to the earlier of theEffective Time and the Termination Date, to its and its Subsidiaries’ personnel and properties,contracts, commitments, books and records and any report, schedule or other document filed orreceived by it pursuant to the requirements of applicable Laws and with such additional accounting,financing, operating, environmental and other data and information regarding the Company and itsSubsidiaries, as Parent may reasonably request, and Parent and its Subsidiaries, as the Company mayreasonably request, as the case may be. Notwithstanding the foregoing, neither the Company norParent shall be required to afford such access if it would unreasonably disrupt the operations ofsuch party or any of its Subsidiaries, would cause a violation of any agreement to which such partyor any of its Subsidiaries is a party, would cause a risk of a loss of privilege to such party orany of its Subsidiaries or would constitute a violation of any applicable Law. The foregoingnotwithstanding, neither the Company nor Parent, nor any of their respective officers, employees orRepresentatives, shall be permitted to perform any onsite procedures (including an onsite study)with respect to any property of the other party or any of the other party’s Subsidiaries withoutthe other party’s prior written consent (which consent shall not be unreasonably withheld, delayedor conditioned).     (b) The parties hereto hereby agree that all information provided to them or their respectiveofficers, directors, employees or Representatives in connection with this Agreement and theconsummation of the transactions contemplated hereby shall be deemed to be “Evaluation Material,”as such term is used in, and shall be treated in accordance with, the confidentiality agreement,dated as of May 12, 2011, among the Company, ETP and Parent (the “ConfidentialityAgreement”).     Section 5.4. Non-Solicitation by the Company.     (a) The Company agrees that neither it nor any Subsidiary of the Company, nor any of theirrespective officers, directors or employees, shall, and that it shall use its reasonable best
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efforts to cause its and their respective Representatives not to (and shall not authorize or givepermission to its and their respective Representatives to), directly or indirectly: (i) solicit,initiate, seek or knowingly encourage or facilitate the making, submission or announcement of, anyproposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal,(ii) furnish any non-public information regarding the Company or any of its Subsidiaries to, orafford access to the business, properties, books or records of the Company or any of itsSubsidiaries to, any person (other than Parent or Merger Sub), in connection with or in response toan Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with anyperson (other than Parent or Merger Sub) with respect to any Acquisition Proposal, (iv) approve,endorse or recommend (or publicly propose to approve, endorse or recommend) any AcquisitionProposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, mergeragreement, acquisition agreement, exchange agreement or any other agreement providing for anyAcquisition Transaction or requiring the Company to abandon, terminate or fail to consummate theMerger or any other transaction contemplated by this Agreement (except as contemplated by Section7.1(h)) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that thisSection 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directlyor indirectly through any officer, employee or Representative, prior to obtaining the CompanyStockholder Approval, from taking any of the actions described in clauses (ii) or (iii) above inresponse to an unsolicited Acquisition Proposal that the Board of Directors of the Company, priorto taking any such particular action, concludes in good faith, after consultation with itsfinancial advisors and outside legal counsel (it being understood that, for purposes of thisSection 5.4, such a financial advisor or outside legal counsel shall include a financial advisor oroutside legal counsel to a duly constituted and acting committee of the Board of Directors of theCompany), constitutes or is reasonably likely to result in a Superior Offer if (1) the Board ofDirectors of the Company concludes in good faith, after consultation with its outside legalcounsel, that the failure to take such action with respect to such Acquisition Proposal would bereasonably likely to constitute a breach by the Board of Directors of its fiduciary duties underapplicable Laws, (2) such Acquisition Proposal did not result from a breach of this Section 5.4,(3) the Company gives to Parent the notice required by Section 5.4, and (4) the Company furnishesany non-public information provided to the maker of the Acquisition Proposal only pursuant to aconfidentiality agreement between the Company and such person on substantially the same terms asthe Confidentiality Agreement (it being acknowledged and agreed that such confidentiality agreementneed not contain a “standstill” or similar provision that prohibits the third party recipient ofsuch information from making any Acquisition Proposal) and to the extent non-public informationthat has not been made available to Parent is made available to the maker of the AcquisitionProposal, provide such non-public information to Parent substantially concurrent with the time thatit is provided to such other person; (B) the Company from complying with Rules 14d-9 and 14e-2promulgated under the Exchange Act with regard to any Acquisition Proposal (or making any similarcommunication to stockholders in connection with any amendment to the terms of a tender offer orexchange offer) so long as any action taken or statement made to so comply is consistent with thisSection 5.4;(C) the Company, or the Board of Directors, directly or indirectly through any officer,employee or Representative disclosing factual information regarding the business, financialcondition or results of operations of the Company or the fact that an Acquisition Proposal has beenmade, the identity of the party making such proposal or the material terms of such proposal in theProxy Statement or otherwise, to the extent the Company in good faith determines that such
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information, facts, identity or terms is required to be disclosed under applicable Law or thatfailure to make such disclosure is reasonably likely to be inconsistent with its fiduciary dutiesunder applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly throughany officer, employee or Representative making any statement or disclosure to the Company’sstockholders required by applicable Law; provided that any such action taken or statement ordisclosure made that relates to an Acquisition Proposal shall be deemed to be a Change ofRecommendation unless the Board of Directors reaffirms its recommendation in favor of the proposedtransaction in such statement or disclosure or in connection with such action (except that a mere“stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall notconstitute a Change of Recommendation). So long as the Company and its Representatives haveotherwise complied with this Section 5.4, none of the foregoing shall prohibit the Company and itsRepresentatives from contacting in writing any persons or group of persons who has made anAcquisition Proposal after the date of this Agreement solely to request the clarification of theterms and conditions thereof so as to determine whether the Acquisition Proposal is, or couldreasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach ofthis Section 5.4.     (b) The Company shall promptly, and in no event later than twenty-four (24) hours after its orany of its Representatives’ receipt of any Acquisition Proposal or any request for non-publicinformation relating to the Company or any of its Subsidiaries in connection with an AcquisitionProposal, advise Parent orally and in writing of such Acquisition Proposal or request (includingproviding the identity of the person making or submitting such Acquisition Proposal or request,and, (x) if it is in writing, a copy of such Acquisition Proposal and any related draft agreementsand (y) if oral, a reasonably detailed summary thereof that is made or submitted by any personduring the period between the date hereof and the Closing). The Company shall keep Parent informedin all material respects on a prompt basis with respect to any change to the material terms of anysuch Acquisition Proposal (and in no event later than twenty-four (24) hours following any suchchange). The Company agrees that it shall promptly provide to Parent any non-public informationconcerning itself or its Subsidiaries provided to any other person in connection with anyAcquisition Proposal which was not previously provided to Parent.     (c) Immediately following the execution of this Agreement, (i) the Company shall, and shallcause its Subsidiaries and its and their respective officers, directors and employees, and shalluse its reasonable best efforts to cause its and their respective Representatives to, immediatelycease and terminate any discussions existing as of the date of this Agreement between the Companyor any of its Subsidiaries or any of their respective officers, directors, employees orRepresentatives and any person (other than Parent) that relate to any Acquisition Proposal, and(ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to,cause to be returned or destroyed all confidential information provided by or on behalf of theCompany or any Subsidiary to such person.     (d) Except as otherwise provided in Section 5.4(e), neither the Board of Directors of theCompany nor any committee thereof may (i) withhold, withdraw or modify, or publicly propose towithhold, withdraw or modify, the Company Recommendation in a manner adverse to Parent, or (ii)recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any AcquisitionProposal (any action described in this Section 5.4(d), a “Change of Recommendation”).
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     (e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) anIntervening Event or (ii) an Acquisition Proposal, the Board of Directors of the Company may at anytime prior to receipt of the Company Stockholder Approval, make a Change of Recommendation and/orterminate this Agreement pursuant to Section 7.1(h), if (and only if): (A) in the case of (ii)above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made tothe Company by a third party, and such Acquisition Proposal is not withdrawn; (y) the Company’sBoard of Directors determines in good faith after consultation with its financial advisors andoutside legal counsel that such Acquisition Proposal constitutes a Superior Offer; and (z) theCompany’s Board of Directors determines to terminate this Agreement pursuant to Section 7.1(h),(B) in the case of (i) above, following consultation with outside legal counsel, the Company’sBoard of Directors determines that the failure to make a Change of Recommendation would bereasonably likely to constitute a breach by the Board of Directors of its fiduciary duties underapplicable Laws; (C) in the case of (i) and (ii) above, (x) the Company provides Parent ninety-six(96) hour’s prior written notice of its intention to take such action, which notice shall includethe information with respect to such Intervening Event or Superior Offer, as the case may be, thatis specified in Section 5.4(b), (y) after providing such notice and prior to making such Change ofRecommendation in connection with an Intervening Event or a Superior Offer or taking any actionpursuant to Section 7.1(h) with respect to a Superior Offer, the Company shall negotiate in goodfaith with Parent during such ninety-six (96) hour period (to the extent that Parent desires tonegotiate) to make such revisions to the terms of this Agreement as would permit the Board ofDirectors of the Company not to effect a Change of Recommendation in connection with an InterveningEvent or a Superior Offer or to take such action pursuant to Section 7.1(h) in response to aSuperior Offer, and (z) the Board of Directors of the Company shall have considered in good faithany changes to this Agreement offered in writing by Parent and shall have determined in good faith,after consultation with its outside legal counsel and financial advisors, that the event continuesto constitute an Intervening Event or that the Superior Offer would continue to constitute aSuperior Proposal, in each case if such changes offered in writing by Parent were to be giveneffect; provided that, for the avoidance of doubt, the Company shall not effect a Change ofRecommendation in connection with an Intervening Event or a Superior Offer or take any actionpursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six(96) hours after it has provided the written notice required by clause (x) above; provided further,that in the event that the Acquisition Proposal is thereafter modified by the party making suchAcquisition Proposal, the Company shall provide written notice of such modified AcquisitionProposal and shall again comply with this Section 5.4(e), except that the Company’s advance writtennotice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hoursotherwise contemplated by this Section 5.4(e)) and the time the Company shall be permitted toeffect a Change of Recommendation in connection with a Superior Offer or to take action pursuant toSection 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two(72) hours after it has provided such written notice (rather than the time that is the ninety-six(96) hours otherwise contemplated by this Section 5.4(e)) (but in no event prior to the originalninety-six (96) hour advance notice period).     (f) As used in this Agreement:     (i) “Acquisition Proposal” means any bona fide offer, inquiry, proposalor indication of interest, whether or not in writing, received from a third
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party (other than an offer, inquiry, proposal or indication of interest by Parent orMerger Sub or any of their respective Subsidiaries) relating to any Acquisition Transaction;     (ii) “Acquisition Transaction” means any transaction or series oftransactions involving: (A) any merger, consolidation, share exchange,recapitalization or business combination involving the Company or any of itsmaterial Subsidiaries; (B) any direct or indirect acquisition, sale, issuance orrepurchase of securities, tender offer, joint venture, exchange offer or othersimilar transaction or series of transactions which would result in a person or“group” (as defined in the Exchange Act) of persons having direct or indirectbeneficial or record ownership of securities representing more than twenty percent(20%) of the outstanding Company Common Stock; (C) any direct or indirectacquisition of any business or businesses or of assets (including equity interestsin any Subsidiary) that constitute or account for twenty percent (20%) or more ofthe consolidated net revenues, net income or assets (based on the fair market valuethereof) of the Company and its Subsidiaries, taken as a whole; (D) any liquidationor dissolution of the Company or any of its Subsidiaries or the payment of anyextraordinary dividend by the Company; or (E) any combination of the foregoing;     (iii) “Intervening Event” means a material event, fact, circumstance,development or occurrence that is unknown to or by the Company’s Board of Directorsas of the date of this Agreement (or if known, the magnitude or materialconsequences of which were not known or understood by the Company Board of Directorsas of the date hereof), which event, fact, circumstance, development, occurrence,magnitude or material consequence becomes known to or by the Company’s Board ofDirectors prior to obtaining the Company Stockholder Approval; and     (iv) “Superior Offer” means a written Acquisition Proposal to acquireat least (A) fifty percent (50%) of the equity securities of the Company or (B)fifty percent (50%) or more of the assets of the Company and its Subsidiaries, takenas a whole (based on the fair market value thereof), in each case on terms that theCompany’s Board of Directors determines, in good faith, after consultation with itsoutside legal counsel and its financial advisor, is (A) if accepted, reasonablylikely to be consummated, and (B) if consummated would, based upon the advice of theCompany’s financial advisor, be more favorable to the Company’s stockholders from afinancial point of view than the Merger and the transactions contemplated by thisAgreement (taking into account anyproposal by Parent to amend or modify the terms of this Agreement which arecommitted to in writing), after taking into account such factors (including timing,likelihood of consummation, break-up fees, expense reimbursement provisions,required approvals, conditions to consummation, legal, financial, regulatory andother aspects of the offer, and the person making the offer) deemed relevant by theBoard of Directors of the Company.
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     Section 5.5. Filings; Other Actions.     (a) As promptly as reasonably practicable following the date of this Agreement, Parent and theCompany shall prepare and file with the SEC the Proxy Statement, and Parent shall prepare and filewith the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each ofParent and the Company shall use reasonable best efforts to have the Form S-4 declared effectiveunder the Securities Act as promptly as reasonably practicable after such filing and to keep theForm S-4 effective as long as necessary to consummate the Merger and the other transactionscontemplated hereby. The Company will cause the Proxy Statement to be mailed to the Company’sstockholders, as reasonably practicable after the Form S-4 is declared effective under theSecurities Act. Parent shall also take any action required to be taken under any applicable stateor provincial securities laws in connection with the issuance and reservation of Common Units inthe Merger, and the Company shall furnish all information concerning the Company and the holders ofCompany Common Stock as may be reasonably requested in connection with any such action. No filingof, or amendment or supplement to, the Form S-4 or the Proxy Statement will be made by Parent orthe Company, as applicable, without the other’s prior consent (which shall not be unreasonablywithheld, delayed or conditioned) and without providing the other party a reasonable opportunity toreview and comment thereon. Parent or the Company, as applicable, will advise the other promptlyafter it receives oral or written notice of the time when the Form S-4 has become effective or anysupplement or amendment has been filed, the issuance of any stop order, the suspension of thequalification of the Common Units issuable in connection with the Merger for offering or sale inany jurisdiction, or any oral or written request by the SEC for amendment of the Proxy Statement orthe Form S-4 or comments thereon and responses thereto or requests by the SEC for additionalinformation, and will promptly provide the other with copies of any written communication from theSEC or any state securities commission. If at any time prior to the Effective Time any informationrelating to Parent or the Company, or any of their respective affiliates, officers or directors, isdiscovered by Parent or the Company which should be set forth in an amendment or supplement to anyof the Form S-4 or the Proxy Statement, so that any of such documents would not include anymisstatement of a material fact or omit to state any material fact necessary to make the statementstherein, in light of the circumstances under which they were made, not misleading, the party thatdiscovers such information shall promptly notify the other parties hereto and an appropriateamendment or supplement describing such information shall be promptly filed with the SEC and, tothe extent required by law, disseminated to the stockholders of the Company.     (b) The Company shall take all action necessary in accordance with applicable Laws and theCompany Organizational Documents to duly give notice of, convene and hold a meeting of itsstockholders, to be held as promptly as practicable after the Form S-4 is declared effective underthe Securities Act, to consider the adoption of this Agreement and the approval of the transactionscontemplated hereby, including the Merger (the “Stockholders’ Meeting”). The Company will,except in the case of a Change of Recommendation, through its Board of Directors, recommend thatits stockholders adopt this Agreement and will use reasonable best efforts to solicit from itsstockholders proxies in favor of the adoption of this Agreement and to take all other actionnecessary or advisable to secure the vote or consent of its stockholders required by the rules ofthe NYSE or applicable Laws to obtain such approvals.
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     Section 5.6. Equity-Based Awards.     (a) The Company shall cause each option to purchase shares of Company Common Stock or stockappreciation right relating to Company Common Stock granted under a Company Benefit Plan thatprovides for equity-based compensation (each such Company Benefit Plan, a “Company StockPlan”) that is outstanding immediately prior to the Effective Time (a “Company StockAward”) to become vested and exercisable prior to the Effective Time and shall, in accordancewith the terms of the applicable Company Stock Plan, provide notice to all holders of Company StockAwards that any Company Stock Award not exercised prior to the Effective Time shall be cancelledand terminate upon the Effective Time. In consideration of such cancellation and termination ofCompany Stock Awards, the Company shall pay to each holder of a Company Stock Award within fivebusiness days following the Effective Time an amount, less applicable withholding Taxes, in cashwith respect to each share of Company Common Stock subject to the Company Stock Award equal to (i)the Per Share Cash Consideration minus (ii) the per share exercise price or strike price ofthe Company Stock Award. If Parent determines the consent of a holder of a Company Stock Award isrequired to effectuate the termination of any Company Stock Award, then the Company shall (i) useits reasonable best efforts to obtain such consent from the holder of such Company Stock Award forno additional consideration, except as approved by Parent in advance and (ii) shall make anyamendments to the terms of the Company Stock Plans or awards thereunder that may be necessary oradvisable to give effect to the termination of such Company Stock Awards, subject to the advanceapproval of Parent which approval shall not be unreasonably withheld. The Company shall requirethe holder of any Company Stock Award exercised prior the Effective Time to satisfy any withholdingobligation with respect to such Company Stock Award in accordance with the terms of the applicableCompany Stock Plan and award agreement.     (b) Each award of restricted Company Common Stock granted under a Company Stock Plan that isoutstanding immediately prior to the Effective Time (the “Restricted Shares”) shall, as ofthe Effective Time, automatically and without any action on the part of the holder thereof, vestand the restrictions with respect thereto shall lapse, and each share of Company Common Stocksubject to such grant of Restricted Shares shall be converted into cash, Common Units or acombination of cash and Common Units in accordance with Section 2.1, depending on whether theholder of such Restricted Shares makes a Cash Election or a Common Unit Election and subject to theterms and conditions of Section 2.1. Unless the holder of such Restricted Shares shall haveremitted to the Company the amount required to be withheld with respect to the vesting and lapse ofrestrictions on the Restricted Shares under the Code or any provision of state, local or foreigntax Law, the consideration to be received by such holder pursuant to Section 2.1 shall be reducedby the amount required to be deducted and withheld with respect to the vesting and lapse of suchrestrictions on the Restricted Shares. Such reduction shall come first from the cash portion ofthe consideration payable to the holder of the Restricted Shares under Section 2.1, if any, and ifthere is no cash portion of such consideration or if the cash portion is not sufficient to satisfythe amount required to be deducted and withheld with respect to vesting and lapse of suchrestrictions on the Restricted Shares, then the number of Common Units to be received by the holderof such Restricted Shares pursuant to Section 2.1 shall be reduced by a number of Common Units(rounded up to the nearest whole unit with cash payablein respect of the resulting fractional unit) equal to (i) the amount (or additional amount, asthe case may be) required to be deducted and withheld with respect to the vesting and lapse of such
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restrictions on the Restricted Shares, divided by (ii) the closing price of one Common Uniton the New York Stock Exchange on the day prior to the Closing Date.     (c) The Company shall cause each unvested award of restricted share units, performance sharesor phantom shares with respect to shares of Company Common Stock under a Company Stock Plan that isoutstanding immediately prior to the Effective Time (a “Company RSU”) to become fullyvested, and the Company shall, within five business days following the Effective Time pay to theholder of each outstanding Company RSU a lump sum cash payment, less any applicable withholdingTaxes, equal to the product of (i) the Per Share Cash Consideration and (ii) the total number ofshares underlying such Company RSU (giving effect to the acceleration of vesting contemplated bythis Section 5.6(c)).     (d) The Company shall use its reasonable best efforts to take any actions reasonably necessaryto effectuate the transactions contemplated by this Section 5.6 Prior to the Effective Time, theCompany shall deliver to the holders of the Company Stock Awards and Company RSUs notices, in formand substance reasonably acceptable to Parent, setting forth such holders’ rights pursuant to thisAgreement.     Section 5.7. Employee Matters.     (a) Parent shall cause the Surviving Corporation and each of its Subsidiaries, for the periodcommencing at the Effective Time and ending on the first anniversary thereof, to maintain for theindividuals employed by the Company or any of its Subsidiaries at the Effective Time (the“Current Employees”) compensation and benefits that are substantially comparable in theaggregate to the compensation and benefits (i) provided to Current Employees as a group immediatelyprior to the Effective Time (excluding, for this purpose, equity-based compensation andparticipation in a defined-benefit pension plan unless such participation is mandated by the termsof a collective bargaining or other similar agreement between the Company or one of itsSubsidiaries and an employee representative) or (ii) provided to similarly situated employees ofParent and its Subsidiaries.     (b) Parent will cause the Surviving Corporation to provide credit for each Current Employeeslength of service with the Company and its Subsidiaries prior to the Effective Time foreligibility, vesting and benefits accrual purposes under any employee benefit plans of theSurviving Corporation and its Subsidiaries to the same extent as such service was recognized undera similar Company Benefit Plan; provided, that such prior service credit shall not berequired to the extent it results in a duplication of benefits. Parent shall use commerciallyreasonable efforts to cause each health plan of Parent in which any Current Employee participatesfollowing the Closing to (i) waive any pre-existing condition limitation for any condition forwhich such Current Employee would have been entitled to coverage under the corresponding CompanyBenefit Plan prior to the Effective Time and (ii) honor co-payments made, and deductiblessatisfied, by such Current Employee prior to the Effective Time. For purposes of this Agreement,“Benefit Plans” means, with respect to any entity, any compensationor employee benefit plans, programs, policies, agreements or other arrangements, whether ornot “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement IncomeSecurity Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA, includingbonus, cash or equity-based incentive, deferred compensation, stock purchase, health,
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medical,dental, disability, accident, life insurance, or vacation, paid time off, perquisite, fringebenefit, severance, change of control, retention, employment, separation, retirement, pension, orsavings, plans, programs, policies, agreements or arrangements for the benefit of current or formerdirectors, officers or employees of such entity or any of its Subsidiaries or any dependant orbeneficiary thereof.     (c) If requested by Parent, subject to the terms of any such Benefit Plan, the Company’s Boardof Directors shall adopt resolutions, in form and substance reasonably acceptable to Parent,terminating, effective at least one day prior to the Closing Date (the “ERISA EffectiveDate”), any Company Benefit Plan qualified under Section 401(a) of the Code and containing aCode Section 401(k) cash or deferred arrangement (a “401(k) Plan”). Prior to the ERISAEffective Date, the Company shall provide Parent with executed resolutions of its Board ofDirectors authorizing such termination and amending any such 401(k) Plan commensurate with itstermination to the extent necessary to comply with all applicable Laws. The Company shall alsotake such other actions in furtherance of the termination of each 401(k) Plan as Parent mayreasonably require, including such actions as Parent may require prior to the Effective Time tosupport Parent obtaining a determination letter with respect to the termination of each 401(k) Planfollowing the ERISA Effective Date. In addition, if requested by Parent, the Company shall takesuch actions as may be necessary to eliminate, as of no later than immediately prior to theEffective Time, from any 401(k) Plan or other retirement plan, any investment fund, election oralternative that provides for an investment directly in shares of Company Common Stock.     (d) Nothing in this Section 5.7 shall be construed as an amendment of, or undertaking toamend, any Benefit Plan or to prevent the amendment or termination of any Benefit Plan. Nothing inthis Section 5.7 shall limit the right of Parent, the Surviving Corporation or any of theirSubsidiaries to terminate the employment of any Current Employee at any time, subject to any rightsto severance or other separation benefits accrued as of the applicable termination date under aCompany Benefit Plan. Without limiting the generality of Section 8.10, the provisions of thisSection 5.7 are solely for the benefit of the parties to this Agreement, and no current or formerdirector, officer, employee, other service provider or independent contractor or any other personshall be a third-party beneficiary of this Agreement, and nothing herein shall be construed as anamendment to any Parent Benefit Plan, Company Benefit Plan or other compensation or benefit plan orarrangement for any purpose.     Section 5.8. Regulatory Approvals; Commercially Reasonable Efforts.     (a) Subject to the terms and conditions set forth in this Agreement, each of the partieshereto shall use its reasonable best efforts (subject to, and in accordance with, applicable Law)to take, or cause to be taken, promptly all actions, and to do, or cause to be done, promptly andto assist and cooperate with the other parties in doing, all things necessary, proper or advisableunder applicable Laws to consummate and make effective the Merger and the other transactionscontemplated by this Agreement, including: (i) the obtaining of all necessary actions ornonactions, waivers, consents and approvals, including the Company Approvals and the ParentApprovals, from Governmental Entities and the making of all necessary registrations and filings andthe taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid anaction or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents,
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approvals or waivers from third parties other than any Governmental Entity (including consentsnecessary in connection with the merger of CrossCountry Energy, LLC with and into a subsidiary ofParent and thereafter a subsidiary of ETP), (iii) the defending of any lawsuits or other legalproceedings, whether judicial or administrative, challenging this Agreement or the consummation ofthe transactions contemplated by this Agreement, including seeking to have any stay or temporaryrestraining order entered by any Governmental Entity vacated or reversed, and (iv) the executionand delivery of any additional instruments necessary to consummate the transactions contemplated bythis Agreement. In the event that any litigation, administrative or judicial action or otherproceeding is commenced challenging the Merger or any of the proposed transactions, each of theCompany, Parent and Merger Sub shall cooperate with each other and use its respective reasonablebest efforts to contest and resist any such litigation, action or proceeding and to have vacated,lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary,preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummationof the transactions contemplated by this Agreement.     (b) Subject to the terms and conditions herein provided and without limiting the foregoing,the Company and Parent shall (i) as promptly as practicable (and in any event not more than tenbusiness days) after the date hereof, make their respective filings and thereafter make any otherrequired submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with eachother in (A) determining whether any filings are required to be made with, or consents, permits,authorizations, waivers or approvals are required to be obtained from, any third parties or otherGovernmental Entities in connection with the execution and delivery of this Agreement and theconsummation of the transactions contemplated hereby, (B) timely making all such filings and timelyseeking all such consents, permits, authorizations or approvals, (C) assuring that all such filingsare in material compliance with the requirements of applicable Regulatory Laws, and (D) makingavailable to the other party such information as the other party may reasonably request in order torespond to information requests by any relevant Governmental Entity, (iii) use reasonable bestefforts to take, or cause to be taken, all other actions and do, or cause to be done, all otherthings advisable to consummate and make effective the transactions contemplated hereby, and (iv)subject to applicable legal limitations and the instructions of any Governmental Entity, keep eachother apprised of the status of matters relating to the completion of the transactions contemplatedthereby, including promptly furnishing the other with copies of notices or other communications,filings or correspondence (or memoranda setting forth the substance thereof) between the Company orParent, or any of their respective Subsidiaries, and any third party and/or any Governmental Entity(or members of their respective staffs) with respect to such transactions. The Company and Parentshall use their respective reasonable best efforts to file applications for the FERC Approval, theMDPU Approval, the MPSC Approval, the FCC Approval and any other filings, determined to be requiredas promptly as practicable after the date hereof and shall make such filings jointly ifappropriate. Prior to transmitting any material to any Governmental Entity (or members of theirrespective staffs), the Company and Parent shall permit counsel for the other party a reasonableopportunity to review and provide comments thereon, and consider in good faith the views ofthe other party in connection with, any proposed written communication to any Governmental Entity(or members of their respective staffs) to the extent permitted by Law. Each of the Company andParent agrees not to participate in any meeting or discussion, either in person or by telephone,with any Governmental Entity in connection with the proposed transactions unless it consults
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withthe other party in advance and, to the extent not prohibited by such Governmental Entity or by Law,gives the other party the opportunity to attend and participate.     (c) In furtherance and not in limitation of the foregoing, each of Parent, Merger Sub and theCompany shall use their reasonable best efforts to obtain the Requisite Regulatory Approvals,including (i) responding to and complying with any request for information regarding thetransactions from any relevant Governmental Entity; (ii) ensuring the prompt expiration of anyapplicable waiting period and clearance or approval by any such relevant Governmental Entity,including defense against, and the resolution of, any objections or challenges, in court orotherwise, by any relevant Governmental Entity preventing consummation of the transactions; and(iii) assisting and cooperating with the other party in doing all things necessary, proper oradvisable to consummate and make effective the transactions, under any applicable Regulatory Lawwith each relevant Governmental Entity. In the event the parties, despite their reasonable bestefforts, have not obtained clearance or approval of the transactions from any relevant GovernmentalEntity and/or resolved any objections or challenges by any relevant Governmental Entity preventingconsummation of the transactions by the Closing Date, the Closing Date shall automatically beextended for an additional three months, and thereafter shall be extended for any additionalperiods as agreed by both Company and Parent.     (d) Parent agrees to take, or cause to be taken, any and all steps and to make, or cause to bemade, any and all undertakings necessary to resolve such objections, if any, that a GovernmentalEntity may assert under Regulatory Laws with respect to the transactions contemplated hereby, andto avoid or eliminate each and every impediment under Regulatory Laws that may be asserted by anyGovernmental Entity with respect to the Merger so as to enable the Closing to occur (i) as to theRequisite Regulatory Approvals related to the HSR Act, the Clayton Act, the Sherman Act or theFederal Trade Commission Act (the “Antitrust Approvals”), no later than the time at which allRequisite Regulatory Approvals other than those related to the Antitrust Approvals are achieved and(ii) as to Requisite Regulatory Approvals other than those related to the Antitrust Approvals, aspromptly as reasonably practicable and in any event no later than the End Date, including in eachcase taking any action (including any action that limits Parent’s freedom of action, ownership orcontrol with respect to, or its ability to retain or hold, any of the businesses, assets, productlines or properties of Parent or Company) as may be required in order to avoid the commencement ofany action to prohibit the merger, or, in the alternative, to avoid the entry of, or to effect thedissolution of, any injunction, temporary restraining order or other order in any action seeking toprohibit the merger; provided, however, that notwithstanding anything in this Section 5.8to the contrary, Parent shall not be required to take, or cause to be taken, any such action toobtain the MDPU Approval or the MPSC Approval to the extent that such action would require Parent,Merger Sub or the Company to take, or cause to be taken, any action with respect to any of theassets, businesses or product lines of the Company or any of its Subsidiaries, or of Parent or anyof its Subsidiaries, or any combination thereof, if such action would result in a material adverseeffect on or with respect to the business, financial condition or continuing results of operationsof Parent and its Subsidiaries (includingthe Surviving Corporation), taken as a whole (assuming Parent and its Subsidiaries (includingthe Surviving Corporation), taken as a whole were an entity with the assets, liabilities andrevenues of an entity the size of the Company and its Subsidiaries, taken as a whole). Subject tothe foregoing provisions of this Section 5.8, Parent shall have sole discretion in determining thescope of undertakings to be taken, including the scope of assets to be divested or held separate,
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or the conduct to be restricted, in order to meet the obligations of this Paragraph;provided, however, any undertaking pursuant to this Paragraph shall be conditioned onclosing of the transactions in this Agreement. Further, Company shall not, without the priorwritten consent of Parent, publicly or before any governmental entity or other third party committo or effect, by consent decree, hold separate order or otherwise, any sale, divestiture,disposition, prohibition or limitation or other action of a type described in this agreement. Forpurposes of this Section 5.8(d), ETP and Regency Energy Partners LP, a Delaware limited partnership(“Regency”), and their respective Subsidiaries, shall be deemed to be Subsidiaries ofParent.     (e) Parent and the Company and each of their respective Subsidiaries shall not take any actionwith the intention to, or that could reasonably be expected to, hinder or delay the obtaining ofclearance or any necessary consent of any Governmental Entity under any Regulatory Law or theexpiration of the required waiting period under any Regulatory Law.     (f) Notwithstanding the foregoing or any other provision of this Agreement, nothing in thisSection 5.8 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) orSection 7.1(c) so long as such party has, prior to such termination, complied with its obligationsunder this Agreement, including this Section 5.8.     (g) As used in this Agreement, “Regulatory Law” means the Sherman Act of 1890, theClayton Antitrust Act of 1914, the HSR Act, the FPA, the NGA, the NGPA, the ICA, the PUHCA, theCommunications Act of 1934, as amended, state laws governing local distribution companies in theStates of Massachusetts and Missouri and all other federal, state or foreign statutes, rules,regulations, orders, decrees, administrative and judicial doctrines and other Laws, including anyantitrust, competition or trade regulation Laws, that are designed or intended to (i) prohibit,restrict or regulate actions having the purpose or effect of monopolization or restraint of tradeor lessening competition through merger or acquisition or (ii) protect the national security or thenational economy of any nation.     Section 5.9. Takeover Statutes. If any Takeover Law may become, or may purport to be,applicable to the Merger, the Support Agreements or any other transactions contemplated hereby,each of the Company and Parent shall grant such approvals and take such actions as are reasonablynecessary so that the transactions contemplated hereby may be consummated as promptly aspracticable on the terms contemplated hereby and otherwise act to eliminate or minimize the effectsof such statute or regulation on the transactions contemplated hereby.     Section 5.10. Public Announcements. Except (a) following any Change of Recommendation or(b) with respect to action taken by the Company or its Board of Directors pursuant to, and inaccordance with, Section 5.4 so long asthis Agreement is in effect, the parties shall use reasonable best efforts to consult with eachother before issuing, and provide each other the reasonable opportunity to review and comment upon,any press release or any public announcement primarily relating to this Agreement or thetransactions contemplated hereby. Parent and the Company agree to issue a mutually acceptableinitial joint press release announcing this Agreement.
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     Section 5.11. Indemnification and Insurance.     (a) Parent and Merger Sub agree that all rights to exculpation, indemnification andadvancement of expenses now existing in favor of the current or former directors, officers oremployees, as the case may be, of the Company or its Subsidiaries as provided in their respectivecertificates of incorporation or by-laws or other organization documents or in any agreement towhich the Company or any of its Subsidiaries is a party, shall survive the Merger and shallcontinue in full force and effect. For a period of six years from the Effective Time, Parent andthe Surviving Corporation shall maintain in effect the exculpation, indemnification and advancementof expenses provisions of the Company’s and any of its Subsidiary’s certificate of incorporationand by-laws or similar organization documents in effect immediately prior to the Effective Time orin any indemnification agreements of the Company or its Subsidiaries with any of their respectivedirectors, officers or employees in effect immediately prior to the Effective Time, and shall notamend, repeal or otherwise modify any such provisions in any manner that would adversely affect therights thereunder of any individuals who immediately before the Effective Time were current orformer directors, officers or employees of the Company or any of its Subsidiaries; provided,however, that all rights to indemnification in respect of any Action pending or asserted or anyclaim made within such period shall continue until the disposition of such Action or resolution ofsuch claim. From and after the Effective Time, Parent shall assume, be jointly and severally liablefor, and honor, guaranty and stand surety for, and shall cause the Surviving Corporation and itsSubsidiaries to honor and perform, in accordance with their respective terms, each of the covenantscontained in this Section 5.11 without limit as to time.     (b) The Surviving Corporation shall, to the fullest extent permitted under applicable Law,indemnify and hold harmless (and advance funds in respect of each of the foregoing) each currentand former director, officer or employee of the Company or any of its Subsidiaries and each personwho served as a director, officer, member, trustee or fiduciary of another corporation,partnership, joint venture, trust, pension or other employee benefit plan or enterprise if suchservice was at the request or for the benefit of the Company or any of its Subsidiaries (each,together with such person’s heirs, executors or administrators, an “Indemnified Party”), ineach case against any costs or expenses (including advancing attorneys’ fees and expenses inadvance of the final disposition of any claim, suit, proceeding or investigation to eachIndemnified Party to the fullest extent permitted by applicable Law;provided, however, that thePerson to whom expenses are advanced provides an undertaking, if and only to the extent required byDelaware law, to repay such advances if it is ultimately determined that such person is notentitled to indemnification), judgments, fines, losses, claims, damages, liabilities and amountspaid in settlement in connection with any actual or threatened claim, action, suit, proceeding orinvestigation, whether civil, criminal, administrative or investigative (an“Action”), arising out of, relating to or in connection with any action or omission bythem in their capacities as such occurring or alleged to have occurred whether before or after theEffective Time (including acts or omissions in connection with such persons serving as an officer,director or other fiduciary in any entity if such service was at the request or for the benefit ofthe Company). In the event of any such Action, the Surviving Corporation shall cooperate with theIndemnified Party in the defense of any such Action.
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     (c) For a period of six years from the Effective Time, Parent shall cause to be maintained ineffect the coverage provided by the policies of directors’ and officers’ liability insurance andfiduciary liability insurance in effect as of the Effective Time by the Company and itsSubsidiaries with respect to matters arising on or before the Effective Time; provided, however,that Parent shall not be required to pay annual premiums in excess of 300% of the last annualpremium paid by the Company prior to the date hereof in respect of the coverages required to beobtained pursuant hereto, but in such case shall purchase as much coverage as reasonablypracticable for such amount.     (d) Parent shall pay all reasonable expenses, including reasonable attorneys’ fees, that maybe incurred by any indemnified party in enforcing the indemnity and other obligations provided inthis Section 5.11.     (e) The rights of each indemnified party hereunder shall be in addition to, and not inlimitation of, any other rights such indemnified party may have under the certificate ofincorporation or by-laws or other organization documents of the Company or any of its Subsidiariesor the Surviving Corporation, any other indemnification arrangement, the DGCL or otherwise.     (f) In the event Parent, the Surviving Corporation or any of their respective successors orassigns (i) consolidates with or merges into any other person and shall not be the continuing orsurviving corporation or entity in such consolidation or merger or (ii) transfers all orsubstantially all of its properties and assets to any person, then, and in either such case, properprovision shall be made so that the successors and assigns of Parent or the Surviving Corporation,as the case may be, shall assume the obligations of such party set forth in this Section 5.11.     (g) The obligations of Parent and the Surviving Corporation under this Section 5.11 shall notbe terminated, amended or modified in any manner so as to adversely affect any indemnified party(including their successors, heirs and legal representatives) to whom this Section 5.11 applieswithout the consent of such Indemnified Parties (it being expressly agreed that the IndemnifyingParties to whom this Section 5.11 applies shall be third party beneficiaries of this Section 5.11,and this Section 5.11 shall survive consummation of the Merger and shall be enforceable by suchIndemnified Parties and their respective successors, heirs and legal representatives against Parentand the Surviving Corporation and their respective successors and assigns.     Section 5.12. Control of Operations. Without in any way limiting any party’s rights or obligations under this Agreement, the partiesunderstand and agree that (a) nothing contained in this Agreement shall give Parent or the Company,directly or indirectly, the right to control or direct the other party’s operations prior to theEffective Time and (b) prior to the Effective Time, each of the Company and Parent shall exercise,consistent with the terms and conditions of this Agreement, complete control and supervision overits operations.     Section 5.13. Certain Transfer Taxes. Any liability arising out of any real estatetransfer Tax with respect to interests in real property owned directly or indirectly by the Companyor any of its Subsidiaries immediately prior to the Merger, if applicable and due with
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respect tothe Merger, shall be borne by the Surviving Corporation and expressly shall not be a liability ofstockholders of the Company.     Section 5.14. Section 16 Matters. Prior to the Effective Time, Parent and the Companyshall take all such steps as may be required to cause any dispositions of Company Common Stock(including derivative securities with respect to Company Common Stock) or acquisitions of CommonUnits (including derivative securities with respect to Common Units) resulting from thetransactions contemplated by this Agreement by each individual who is subject to the reportingrequirements of Section 16(a) of the Exchange Act with respect to the Company or will becomesubject to such reporting requirements with respect to Parent, to be exempt under Rule 16b-3promulgated under the Exchange Act.     Section 5.15. Agreed Tax Treatment. The parties to this Agreement intend that, withrespect to holders of Company Common Stock receiving Common Units as Merger Consideration, theMerger qualify under Section 721(a) of the Code with respect to holders of Company Common Stock tothe extent they receive Common Units as Merger Consideration; provided however, this result may notapply to the extent such holders receive money or other property, other than an operating cash flowdistribution (as such term is defined in Treasury regulation section 1.707-4), from Parent on anydate through and including the second anniversary of the Closing. Each party hereto agrees to fileall federal (and, to the extent applicable, state and local) income tax returns reporting theMerger in a manner consistent with such treatment. Provided the opinion conditions contained inSection 6.2(e) and Section 6.2(f) have been satisfied, Parent shall file the opinions described inSection 6.2(e) and Section 6.2(f) with the SEC by a post-effective amendment to the Form S-4promptly following the Closing, unless opinions issued to the Company and Parent and addressing thequalification of the Merger (in similar form to those opinions described in Section 6.2(e) andSection 6.2(f)) were previously filed with the SEC.     Section 5.16. Tax Representation Letters. Parent shall use its reasonable best efforts todeliver to Bingham McCutchen LLP and Latham & Watkins LLP, counsel to Parent (collectively“Parent’s Counsel”), and Roberts & Holland LLP and Locke Lord Bissell & Liddell, LLP, counsel tothe Company (collectively the “Company’s Counsel”), a “Tax Representation Letter,” dated as of theClosing Date (and, if requested, dated as of the date the Form S-4 shall have been declared effective by the SEC) andsigned by an officer of Parent and Merger Sub, containing representations of Parent and Merger Sub,and the Company shall use its reasonable best efforts to deliver to Parent’s Counsel and theCompany’s Counsel a “Tax Representation Letter,” dated as of the Closing Date (and, if requested,dated as of the date the Form S-4 shall have been declared effective by the SEC) and signed by anofficer of the Company, containing representations of the Company, in each case (notwithstandingSection 3.24 and Section 4.23) as shall be reasonably necessary or appropriate to enable theCompany’s Counsel to render the opinions described in Section 6.2(f) and Parent’s Counsel to renderthe opinions described in Section 6.2(e).     Section 5.17. NYSE Listing. Parent shall use its reasonable efforts to cause the CommonUnits to be issued in the Merger to be approved for listing on the NYSE, subject to official noticeof issuance, prior to the Closing Date.
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     Section 5.18. Financing and Financing Assistance.     (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actionsand to do, or cause to be done, all things necessary, advisable or proper to consummate and obtainthe Financing on the terms and conditions described in the Commitment Letter (or on revised termsthat are not materially adverse to Parent as compared to the terms and conditions described in theCommitment Letter and do not contain any provisions which would reasonably be expected to prevent,materially delay or materially impede the consummation of the Financing or the transactionscontemplated by this Agreement, including any modified or additional conditions to the closing ofsuch Financing), including using reasonable best efforts to (i) maintain in effect the CommitmentLetter, (ii) satisfy on a timely basis all conditions to the funding of the Financing set forth inthe Commitment Letter, (iii) enforce the terms of the Commitment Letter and (iv) negotiate andenter into definitive agreements with respect thereto on the terms and conditions contemplated bythe Commitment Letter (including after giving effect to any “market flex” provisions set forth inthe Fee Letter executed in connection with the Financing). Parent shall not, and shall not permitMerger Sub to, agree to or permit any amendment, replacements, supplement or other modification of,or waive any of its material rights under, the Commitment Letter without the Company’s priorwritten consent (which consent shall not be unreasonably withheld, conditioned or delayed);provided that Parent and Merger Sub may (x) enter into any amendment, replacement, supplement orother modification to or waiver of any provision of the Commitment Letter that does not contain anyprovisions that would reasonably be expected to prevent, materially delay or materially impede theconsummation of the Financing or the transactions contemplated by this Agreement; and (y) amend theCommitment Letter to add lenders, lead arrangers, book runners, syndication agents or similarentities who had not executed the Commitment Letter as of the date of this Agreement so long as anysuch addition would not reasonably be expected to prevent, materially hinder or materially delaythe consummation of the Financing or the transactions contemplated by this Agreement or theavailability of the Financing under the Commitment Letter. Parent shall exercise its option toextend the commitment to provide the Financing in accordance with the terms of the CommitmentLetter if it becomes necessary to ensure that the Financing is available at Closing.     (b) In the event any portion of the Financing becomes unavailable on the terms and conditionsdescribed in or contemplated by the Commitment Letter (including after giving effect to the “marketflex” provisions set forth in the Fee Letter executed in connection with the Financing) for anyreason, Parent shall, in consultation with the Company, use its reasonable best efforts to arrangeto obtain, as promptly as practicable following the occurrence of such event, alternative financingfrom the same or alternative sources (the “Alternative Financing”) in an amount sufficient toenable Parent to fund the payment of the cash component of the Merger Consideration, whichAlternative Financing would not contain any provisions that would reasonably be expected toprevent, materially delay or materially impede the consummation of the Financing or thetransactions contemplated by this Agreement, including any conditions to the closing of suchFinancing that are materially less favorable to Parent than the conditions to closing in theCommitment Letter (as set forth therein immediately prior to such Alternative Financing). If anAlternative Financing is required in accordance with this Section 5.18(b), Parent shall obtain, andwhen obtained, provide the Company with a copy of, a new financing commitment that provides forsuch Alternative Financing, and thereafter the “Commitment
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Letter” as defined herein shall refer tosuch financing commitment in respect of the Alternative Financing.     (c) Prior to the Closing, the Company shall use its reasonable best efforts to provide toParent and Merger Sub, and shall use its reasonable best efforts to cause its Subsidiaries and therespective officers, employees, agents and representatives of the Company and its Subsidiaries to,provide to Parent and Merger Sub cooperation reasonably requested by Parent that is necessary orreasonably required in connection with the Financing or any other financing that may be arranged byParent or ETP (together with the Financing, the “Financings”, and the sources of the Financings,the “Financing Sources”), consisting of the following: (i) using reasonable best efforts to causethe senior officers and other representatives of the Company and its Subsidiaries, includingwithout limitation Citrus Corp. (the “Company Finance Parties”) to participate in meetings,presentations, road shows, due diligence sessions (including accounting due diligence sessions),drafting sessions and sessions with rating agencies on reasonable advance notice to the extentpracticable; (ii) assisting with the preparation of appropriate and customary materials for ratingagency presentations, customary debt offering documents and customary bank information memoranda inconnection with the Financings; (iii) using its commercially reasonable efforts to assist with thepreparation of any pledge and security documents, any loan agreement, currency or interest hedgingagreement, other definitive financing documents on terms reasonably satisfactory to Parent, orother certificates, legal opinions or documents as may be reasonably requested by Parent and usualand customary for transactions of the type contemplated by the Financings, provided that noobligation of any Company Finance Party under any such document or agreement shall be effectiveuntil the Effective Time; (iv) using commercially reasonable efforts to facilitate the pledging ofcollateral, provided that no pledge shall be effective until the Effective Time; (v) usingreasonable best efforts to furnish to Parent and Merger Sub and the Financing Sources, as promptlyas reasonably practicable, with financial statements regarding the Company Finance Parties as maybe reasonably requested by Parent, including all historical financial statements that meet therequirements of Regulation S-X promulgated under the Securities Act and other financial datareasonably required in connection with the Financing, including such financial information thatParent reasonably requires for the preparation of pro-forma financial statements; (vi) providingmonthly financial statements to the extent the Company Finance Parties customarily preparesuch financial statements within the time such statements are customarily prepared; (vii)executing and delivering (or using reasonable best efforts to obtain from its advisors), andcausing the Company Finance Parties to execute and deliver (or use reasonable best efforts toobtain from its advisors), customary certificates, accounting comfort letters (including consentsof accountants for use of their audit reports in any financial statements relating to theFinancing), legal opinions or other documents and instruments relating to guarantees and othermatters ancillary to the Financings as may be reasonably requested by Parent as necessary andcustomary in connection with the Financings, (viii) providing audited consolidated financialstatements of the Company (and any other Company Finance Party that regularly prepares suchfinancial statements) covering the three (3) fiscal years immediately preceding the date of anyrequest therefor for which audited consolidated financial statements are then currently available,unaudited financial statements for any regular quarterly interim fiscal period or periods of theCompany (and any other Company Finance Party that regularly prepares such financial statements)ended after the date of the most recent audited financial statements and at least 45 days prior toany request therefor (within 45 days after the end of each such period), and (ix)
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requesting thatits independent accountants cooperate with and assist Parent and ETP in preparing customary andappropriate information packages and offering materials as the parties to the Financings mayreasonably request for use in connection with the Financings, in obtaining third party consents inconnection with such financing, and, if applicable, in extinguishing existing indebtedness of theCompany Finance Parties and releasing liens securing such indebtedness, in each case to take effectat the Effective Time; provided, that the cooperation and actions required by the Company FinanceParties pursuant to this Section 5.18(c) shall not be required to be taken if any such cooperationor act (x) causes any representations or warranties of the Company in this Agreement to bebreached, (y) otherwise causes a breach of this Agreement or (z) would cause the Company FinanceParties any material disruption in its business and the reasonable out-of-pocket cost and expenseof such cooperation and actions under this Section 5.18(c) shall be borne by the Parent.Notwithstanding anything to the contrary contained in this Agreement, the Company shall not bedeemed to be in breach of the covenant set forth in this Section 5.18(c) so long as it has acted ingood faith to comply with the cooperation and assistance set forth herein. The Company may provideParent with a written notice indicating that it has complied with the covenant set forth in thisSection 5.18(c) (other than those items that are not capable of being satisfied prior to Closing)which shall be deemed accepted by Parent unless Parent shall object to such determination inwriting within 5 business days from receipt of such notice which objection shall specificallyidentify the area or areas where it believes that the Company Finance Parties have not satisfiedits obligations under this Section 5.18(c) (other than those items that are not capable of beingsatisfied prior to Closing).     (d) All material non-public information regarding the Company and its Subsidiaries provided toParent, Merger Sub, ETP and their respective representatives pursuant to Section 5.18(c) shall bekept confidential by them in accordance with the Confidentiality Agreement. The Company herebyconsents to the use of all of its and its Subsidiaries’ names and logos in connection with theFinancing; provided that such names and logos are used solely in a manner that is not intended tonor is reasonably likely to harm or disparage the Company or any of its Subsidiaries, thereputation or goodwill of the Company or any of its Subsidiaries or any of their assets, includingtheir logos and marks.**ARTICLE VI.****CONDITIONS TO THE MERGER**     Section 6.1. Conditions to Each Party’s Obligation to Effect the Merger. The respectiveobligations of each party to effect the Merger shall be subject to the fulfillment (or waiver byall parties) at or prior to the Effective Time of the following conditions:     (a) The Company Stockholder Approval shall have been obtained.     (b) No injunction by any court or other tribunal of competent jurisdiction which prohibits theconsummation of the Merger shall have been entered and shall continue to be in effect.     (c) The FERC Approval, the MDPU Approval and the MPSC Approval shall have been obtained, theexpiration or termination of the waiting and review periods (and any
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extensions thereof) under theHSR Act shall have occurred, there shall be no pending challenge by a Governmental Entity seekingto prohibit the merger, (all such permits, approvals, filings and consents and the lapse of suchwaiting period being referred to as the “Requisite Regulatory Approvals”) and all suchRequisite Regulatory Approvals shall be in full force and effect and final and nonappealable.     (d) The Common Units to be issued in the Merger shall have been approved for listing on theNYSE, subject to official notice of issuance.     (e) The Form S-4 shall have been declared effective by the SEC under the Securities Act and nostop order suspending the effectiveness of the Form S-4 shall have been issued by the SEC and noproceedings for that purpose shall have been initiated or threatened by the SEC.     Section 6.2. Conditions to Obligation of the Company to Effect the Merger. The obligationof the Company to effect the Merger is further subject to the fulfillment of, or the waiver by theCompany on or prior to the Effective Time of, the following conditions:     (a) The representations and warranties of Parent and Merger Sub set forth in (i) thisAgreement (other than Section 4.2, Section 4.3 and Section 4.10(b)) shall be true and correct bothat and as of the date of this Agreement and at and as of the Closing Date as though made at and asof the Closing Date (without regard to “materiality”, Parent Material Adverse Effect and similarqualifiers contained in such representations and warranties), except where such failures to be sotrue and correct would not, in the aggregate, reasonably be expected to have a Parent MaterialAdverse Effect, (ii) Section 4.3 shall be true and correct in all material respects both at and asof the date of this Agreement and at and as of the Closing Date as though made at and as of theClosing Date, (iii) Section 4.2 shall be true and correct both at and as of the date of thisAgreement and at and as of the Closing Date as though made at and as of the Closing Date, exceptfor de minimis inaccuracies, and (iv) Section 4.10(b) shall be true and correct both at and as ofthe date of this Agreement and at and as of the Closing Date as though made at and as of theClosing Date; provided, however, that representations and warranties that are made as of aparticular date or period shall be true and correct (in the manner set forth in clauses (i),(ii), (iii) and (iv), as applicable) only as of such date or period.     (b) Parent shall have in all material respects performed all obligations and complied with allcovenants required by this Agreement to be performed or complied with by it prior to the EffectiveTime.     (c) Since the date of this Agreement, there shall not have occurred any Parent MaterialAdverse Effect or any event or development that could, individually or in the aggregate, reasonablybe expected to result in a Parent Material Adverse Effect.     (d) Parent shall have delivered to the Company a certificate, dated the Closing Date andsigned by the Chief Executive Officer or another senior officer of its general partner, certifyingto the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c)have been satisfied.     (e) Parent shall have received from Parent’s Counsel, the following written opinions dated asof the Closing Date and upon which the Company shall be expressly entitled to rely: (i)
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an opinionfrom Bingham McCutchen LLP to the effect that for U.S. federal income tax purposes, Parent shouldnot be treated as an investment company for purposes of section 721(b) of the Code and (ii) anopinion from Latham & Watkins LLP to the effect that for U.S. federal income tax purposes, 90% ofthe current gross income of Parent constitutes qualifying income within the meaning of Section7704(d) of the Code and Parent will be treated as a partnership for federal income tax purposespursuant to Section 7704(c) of the Code. In rendering such opinion, Parent’s Counsel shall beentitled to rely upon assumptions, representations, warranties and covenants, including thosecontained in this Agreement and in the Tax Representation Letters described in Section 5.16.     (f) The Company shall have received from the Company’s counsel a written opinion dated as ofthe Closing Date to the effect that for U.S. federal income tax purposes the Merger should qualifyunder Section 721(a) of the Code with respect to holders of Company Common Stock to the extent theyreceive Common Units as Merger Consideration; provided however, this result may not apply to theextent such holders receive money or other property, other than an operating cash flow distribution(as such term is defined in Treasury regulation section 1.707-4), from Parent on any date throughand including the second anniversary of the Closing. In rendering such opinion, the Company’sCounsel shall be entitled to rely upon assumptions, representations, warranties and covenants,including those contained in this Agreement and in the Tax Representation Letters described inSection 5.16 and on the opinions of Parent’s Counsel described in Section 6.2(e).     Section 6.3. Conditions to Obligation of Parent to Effect the Merger. The obligation ofParent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on orprior to the Effective Time of, the following conditions:     (a) The representations and warranties of the Company set forth in (i) this Agreement (otherthan Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) shall be true and correctboth at and as of the date of this Agreement and at and as of the Closing Date as thoughmade at and as of the Closing Date (without regard to “materiality”, Company Material AdverseEffect and similar qualifiers contained in such representations and warranties), except where suchfailures to be so true and correct would not, in the aggregate, reasonably be expected to have aCompany Material Adverse Effect, (ii) Section 3.3(a)-(c) shall be true and correct in all materialrespects both at and as of the date of this Agreement and at and as of the Closing Date as thoughmade at and as of the Closing Date, (iii) Section 3.2 shall be true and correct at and as of thedate of this Agreement and at and as of the Closing Date as though made at and as of the ClosingDate, except for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21shall be true and correct both at and as of the date of this Agreement and at and as of the ClosingDate as though made at and as of the Closing Date; provided,however, that representations andwarranties that are made as of a particular date or period shall be true and correct (in the mannerset forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period.     (b) The Company shall have in all material respects performed all obligations and compliedwith all covenants required by this Agreement to be performed or complied with by it prior to theEffective Time.
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     (c) Since the date of this Agreement, there shall not have occurred any Company MaterialAdverse Effect or any event or development that could, individually or in the aggregate, reasonablybe expected to result in a Company Material Adverse Effect.     (d) The Company shall have delivered to Parent a certificate, dated the Closing Date andsigned by its Chief Executive Officer or another senior officer, certifying to the effect that theconditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.     Section 6.4. Intentionally Omitted.     Section 6.5. Frustration of Closing Conditions. Neither the Company nor Parent may rely,either as a basis for not consummating the Merger or terminating this Agreement and abandoning theMerger, on the failure of any condition set forth in Section 6.1, Section 6.2 or Section 6.2(f), asthe case may be, to be satisfied if such failure was caused by such party’s willful and intentionalmaterial breach of any material provision of this Agreement.**ARTICLE VII.****TERMINATION**     Section 7.1. Termination or Abandonment. Notwithstanding anything in this Agreement to thecontrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time,whether before or after any approval of the Merger by the stockholders of the Company:     (a) by the mutual written consent of the Company and Parent;     (b) by either Parent or the Company if the Merger shall not have been consummated on or priorto June 30, 2012 (the “End Date”),provided, however, that if all of the conditions toClosing, other than the condition set forth in Section 6.1(c), shall have been satisfied or shallbe capable of being satisfied at such time, the End Date may be extended by Parent or the Companyfrom time to time by written notice to the other party up to a date not beyond December 31, 2012,the latest of any of which dates shall thereafter be deemed to be the End Date; and provided,further, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not beavailable to a party if the failure of the Closing to occur by such date shall be due to thematerial breach by such party of any representation, warranty, covenant or other agreement of suchparty set forth in this Agreement;     (c) by either the Company or Parent if an injunction shall have been entered permanentlyrestraining, enjoining or otherwise prohibiting the consummation of the Merger and such injunctionshall have become final and non-appealable; provided that the party seeking to terminate thisAgreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to removesuch injunction to the extent such party is required to use its reasonable best efforts pursuant tothis Agreement;     (d) by either the Company or Parent if the Stockholders’ Meeting (including any adjournmentsor postponements thereof) shall have concluded and the Company Stockholder Approval shall not havebeen obtained;
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     (e) by the Company, if Parent shall have breached or failed to perform any of itsrepresentations, warranties, covenants or other agreements contained in this Agreement, whichbreach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1or Section 6.2 and (ii) by its nature, cannot be cured prior to the End Date or, if by its naturesuch breach or failure is capable of being cured by the End Date, Parent does not diligentlyattempt or ceases to diligently attempt to cure such breach or failure after receiving writtennotice from the Company describing such breach or failure in reasonable detail (provided that theCompany is not then in material breach of any representation, warranty, covenant or other agreementcontained herein);     (f) by Parent, if the Company shall have breached or failed to perform any of itsrepresentations, warranties, covenants or other agreements contained in this Agreement, whichbreach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1or Section 6.2(f) and (ii) by its nature, cannot be cured prior to the End Date or, if by itsnature such breach or failure is capable of being cured by the End Date, the Company does notdiligently attempt or ceases to diligently attempt to cure such breach or failure after receivingwritten notice from Parent describing such breach or failure in reasonable detail (provided thatParent is not then in material breach of any representation, warranty, covenant or other agreementcontained herein);     (g) by Parent, (i) prior to the Company Stockholder Approval, in the event of a Change ofRecommendation or if the Board of Directors of the Company shall have approved orrecommended to its shareholders an Acquisition Transaction, or (ii) the Company shall havewillfully and materially breached any of its obligations under Section 5.4; and     (h) by the Company, prior to obtaining the Company Stockholder Approval and if the Company hascomplied with its obligations under Section 5.4, in order to enter into a definitive agreementwith respect to a Superior Offer; provided that any such purported termination by the Companypursuant to this Section 7.1(h) shall be void and of no force or effect unless the Company pays toParent the expense reimbursement in accordance with Section 7.3(a) and the Breakup Fee inaccordance with Section 7.3(c).     Section 7.2. Effect of Termination. In the event of termination of this Agreement pursuantto Section 7.1, this Agreement shall terminate (except for the provisions of Section 7.3 andArticle VIII), and there shall be no other liability on the part of the Company or Parent to theother except as provided in Section 7.3 and, subject to Section 7.3(h), liability arising out of orthe result of, fraud or any willful or intentional breach of any covenant or agreement or willfulor intentional breach of any representation or warranty in this Agreement occurring prior totermination or as provided for in the Confidentiality Agreement, in which case the aggrieved partyshall be entitled to all rights and remedies available at law or in equity.     Section 7.3. Expense Reimbursement; Breakup Fee.     (a) If this Agreement is terminated (i) by either the Company or Parent pursuant to Section7.1(d) and (A) prior to such termination, any person (other than Parent or its affiliates) shallhave made an Acquisition Proposal, which shall have been publicly announced or disclosed orotherwise communicated to the Company, the Board of Directors of the Company or any
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Representativeof the Company (or any person shall have publicly announced a bona fide intention, whether or notconditional, to make an Acquisition Proposal), and such Acquisition Proposal shall not have beenwithdrawn prior to such termination and (B) within twelve months after such termination of thisAgreement, the Company shall have consummated, or shall have entered into an agreement toconsummate (which may be consummated after such twelve-month period), an Acquisition Transaction,(ii) by the Company pursuant to Section 7.1(d), (iii) by Parent pursuant to Section 7.1(f), (iv) byParent pursuant to Section 7.1(g), or (v) by the Company pursuant to Section 7.1(h), then theCompany shall, promptly upon written demand by Parent (and in any event no later than two businessdays after such written demand is delivered to the Company) reimburse Parent, by wire transfer ofsame day federal funds to the account specified by Parent, for all out-of-pocket fees and expensesincurred or paid by or on or behalf of Parent and Merger Sub in connection with the Merger orrelated to the preparation, negotiation, execution and performance of this Agreement, theCommitment Letter, the Fee Letter and the Support Agreements, including all fees and expenses ofcounsel, financial advisors, accountants, experts, and consultants retained by Parent or MergerSub, and all commitment and other fees of the financing sources in connection with the Financings,such amount not to exceed $50 million.     (b) If this Agreement is terminated by the Company pursuant to Section 7.1(e) (other than fora failure to cause the Closing to occur as a result of Parent’s failure to obtain the Financing orany Alternative Financing), then Parent shall promptly upon written demand by the Company (and inany event no later than two business days after such written demand is delivered to Parent)reimburse the Company, by wire transfer of same day federal funds to the account specified by theCompany, for all out-of-pocket fees and expenses incurred or paid by or on or behalf of the Companyin connection with the Merger or related to the preparation, negotiation, execution and performanceof this Agreement, including all fees and expenses of counsel, financial advisors, accountants,experts, and consultants retained by the Company, such amount not to exceed $50 million.     (c) If this Agreement is terminated (i) by Parent pursuant to Section 7.1(f), (ii) by Parentpursuant to Section 7.1(g) or (iii) by the Company pursuant to Section 7.1(h), then the Companyshall pay to Parent the Breakup Fee (x) within two business days after termination of thisAgreement in the case of a termination pursuant to clauses (i) and (ii) above and (y) upontermination of this Agreement, and as a condition to the effectiveness of such termination, in thecase of a termination pursuant to clause (iii) above.
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     (d) If this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b) orSection 7.1(d) or by Parent pursuant to Section 7.1(f) and (i) prior to the Company StockholderApproval, any person (other than Parent or its affiliates) shall have made an Acquisition Proposalwhich shall have been publicly announced or disclosed or otherwise communicated to the Company, theBoard of Directors of the Company or any Representative of the Company (or any person shall havepublicly announced a bona fide intention, whether or not conditional, to make an AcquisitionProposal) and such Acquisition Proposal shall not have been withdrawn prior to the CompanyStockholder Approval and (ii) within twelve months after such termination of this Agreement, theCompany shall have consummated, or shall have entered into an agreement to consummate (which may beconsummated after such twelve-month period), an Acquisition Transaction, then the Company shall payto Parent the Breakup Fee, by wire transfer of same day federal funds to the account specified byParent, on the date such Acquisition Transaction is consummated, or, if earlier, contemporaneouslywith or immediately after the entry into of any binding agreement to consummate the AcquisitionTransaction.     (e) If this Agreement is terminated by the Company pursuant to Section 7.1(e) (other than fora failure to cause the Closing to occur as a result of Parent’s failure to obtain the Financing orany Alternative Financing), then Parent shall pay to the Company the Breakup Fee in immediatelyavailable funds within two (2) business days after termination of this Agreement.     (f) Solely for purposes of this Section 7.3, “Acquisition Transaction” shall have themeaning ascribed thereto in Section 5.4, except that all references to twenty-five percent (25%)shall be changed to fifty percent (50%).     (g) As used in this Agreement, “Breakup Fee” means $162.5 million.     (h) Upon payment of the Breakup Fee to Parent, the Company shall have no further liabilitywith respect to this Agreement or the transactions contemplated hereby to Parent or itsstockholders; provided, that nothing herein shall release any party from liability arisingout of orthe result of, fraud or any willful or intentional breach of any covenant or agreement orwillful or intentional breach of any representation or warranty in this Agreement and providedfurther that whether or not the Breakup Fee has been paid, nothing in this Agreement shallrelease Parent from any liabilities in the event that (i) all of the conditions to the Closing setforth in Section 6.1 and Section 6.3 have been satisfied (other than conditions that can only besatisfied as of the Closing) and Parent does not cause the Closing to occur or (ii) the Closingdoes not occur as a result of a breach by Parent of its obligations under Section 5.8. The partiesacknowledge and agree that in no event shall the Company be required to pay the Breakup Fee on morethan one occasion. In addition, the parties acknowledge that the agreements contained in thisSection 7.3 are an integral part of the transactions contemplated by this Agreement and are not apenalty, and that, without these agreements, neither party would enter into this Agreement. If theCompany or Parent, as the case may be, fails to pay promptly the amounts due pursuant to thisSection 7.3, the Company or Parent, as the case may be, will also pay to Parent or the Company, asthe case may be, such party’s reasonable costs and expenses (including legal fees and expenses) inconnection with any action, including the filing of any lawsuit or other legal action, taken tocollect payment, together with interest on the unpaid amount under this Section 7.3, accruing fromits due date, at an interest rate per annum equal to two percentage points in excess of the primecommercial lending rate quoted by The Wall Street Journal. Any change in the interest
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rate hereunder resulting from a change in such prime rate will be effective at the beginning of the dateof such change in such prime rate.**ARTICLE VIII.****MISCELLANEOUS**     Section 8.1. No Survival. None of the representations, warranties, covenants andagreements in this Agreement or in any instrument delivered pursuant to this Agreement shallsurvive the Merger, except for covenants and agreements which contemplate performance after theEffective Time or otherwise expressly by their terms survive the Effective Time.     Section 8.2. Expenses. Except as set forth in Section 7.3, whether or not the Merger isconsummated, all costs and expenses incurred in connection with the Merger, this Agreement and thetransactions contemplated hereby shall be paid by the party incurring or required to incur suchexpenses, except that the HSR Act filing fees and expenses incurred in connection with theprinting, filing and mailing of the Proxy Statement and Form S-4 (including applicable SEC filingfees) shall be borne equally by Parent and the Company.     Section 8.3. Counterparts; Effectiveness. This Agreement may be executed in two or morecounterparts (including by facsimile), each of which shall be an original, with the same effect asif the signatures thereto and hereto were upon the same instrument, and shall become effective whenone or more counterparts have been signed by each of the parties and delivered (by telecopy orotherwise) to the other parties.     Section 8.4. Governing Law. This Agreement shall be governed by and construed inaccordance with the laws of the State of Delaware, without giving effect to any choice or conflictof law provision or rule (whether of the State of Delaware or any other jurisdiction) that wouldcause the application of the laws of any jurisdiction other than the State of Delaware.     Section 8.5. Jurisdiction; Specific Enforcement. The parties agree that irreparable damagewould occur in the event that any of the provisions of this Agreement were not performed, or werethreatened to be not performed, in accordance with their specific terms or were otherwise breached.It is accordingly agreed that, in addition to any other remedy that may be available to it,including monetary damages, each of the parties shall be entitled to an injunction or injunctionsto prevent breaches of this Agreement and to enforce specifically the terms and provisions of thisAgreement exclusively in the Delaware Court of Chancery and any state appellate court therefromwithin the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdictionover a particular matter, any state or federal court within the State of Delaware), and all suchrights and remedies at law or in equity shall be cumulative, except as may be limited by Section7.3. The parties further agree that no party to this Agreement shall be required to obtain, furnishor post any bond or similar instrument in connection with or as a condition to obtaining any remedyreferred to in this Section 8.5 and each party waives any objection to the imposition of suchrelief or any right it may have to require the obtaining, furnishing or posting of any such bond orsimilar instrument. In addition, each of the parties hereto irrevocably agrees that any legalaction or proceeding with respect to this Agreement and the rights and obligations arisinghereunder, or for recognition and enforcement
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of any judgment in respect of this Agreement and therights and obligations arising hereunder brought by the other party hereto or its successors orassigns, shall be brought and determined exclusively in the Delaware Court of Chancery and anystate appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancerydeclines to accept jurisdiction over a particular matter, any state or federal court within theState of Delaware). Each of the parties hereto hereby irrevocably submits with regard to any suchaction or proceeding for itself and in respect of its property, generally and unconditionally, tothe personal jurisdiction of the aforesaid courts and agrees that it will not bring any actionrelating to this Agreement or any of the transactions contemplated by this Agreement in any courtother than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agreesnot to assert, by way of motion, as a defense, counterclaim or otherwise, in any action orproceeding with respect to this Agreement, (a) any claim that it is not personally subject to thejurisdiction of the above named courts for any reason other than the failure to serve in accordancewith this Section 8.5, (b) any claim that it or its property is exempt or immune from jurisdictionof any such court or from any legal process commenced in such courts (whether through service ofnotice, attachment prior to judgment, attachment in aid of execution of judgment, execution ofjudgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claimthat (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) thevenue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matterhereof, may not be enforced in or by such courts. Notwithstanding the foregoing, each of theparties hereto agrees that it will not bring or support any action, cause of action, claim,cross-claim or third-party claim of any kind or description, whether in law or in equity, againstthe FinancingSources in any way relating to this Agreement or any of the transactions contemplated by thisAgreement, including but not limited to any dispute arising out of or relating in any way to theCommitment Letter or the performance thereof, in any forum other than the Supreme Court of theState of New York, County of New York, or, if under applicable law exclusive jurisdiction is vestedin the Federal courts, the United States District Court for the Southern District of New York (andappellate courts thereof).     Section 8.6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY ANDALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT ORTHE TRANSACTIONS CONTEMPLATED HEREBY.     Section 8.7. Notices. Any notice required to be given hereunder shall be sufficient if inwriting, and sent by facsimile transmission, by reliable overnight delivery service (with proof ofservice) or hand delivery, addressed as follows:     To Parent or Merger Sub:Energy Transfer Equity, L.P.