in Seller Disclosure Schedule 3.6,
each applicable Seller Party hereby represents and warrants that it knows of no
material title defect affecting any of the Subject Entity Assets arising by,
through or under such Seller Party. There has not been granted to any Person,
and no Person possesses, any right of first refusal to purchase any of the
Subject Entity Assets. To the Seller Parties' knowledge, the Subject Entity
Assets constitute all of the physical assets material to the operation of the
business of the Subject Entities as conducted on the date hereof and the Closing
Date, and all such Subject Entity Assets are in good operating condition and
repair (normal wear and tear excepted and except as reserved against on the
audited combined balance sheet of the DEP II Midstream Business as of
September 30, 2008), are free from material defects (other than routine
9
maintenance or repairs) and are fit for the particular purpose for which they
are currently being used.
3.7 Brokers and Finders. No investment banker, broker, finder, financial
advisor or other intermediary has been retained by or is authorized to act on
behalf of any of the Seller Parties who is entitled to receive from any Buyer
Party any fee or commission in connection with the transactions contemplated by
this Agreement.
3.8 WAIVERS AND DISCLAIMERS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES AND OTHER
COVENANTS AND AGREEMENTS MADE BY THE PARTIES IN THIS AGREEMENT, THE CONCURRENT
AGREEMENTS AND THE OMNIBUS AGREEMENT, THE PARTIES HERETO ACKNOWLEDGE AND AGREE
THAT NO PARTY HAS MADE OR MAKES AND EACH SUCH PARTY SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATION, WARRANTY, PROMISE, COVENANT, AGREEMENT OR GUARANTY
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL
OR WRITTEN, PAST OR PRESENT, REGARDING (I) THE VALUE, NATURE, QUALITY OR
CONDITION OF THE SUBJECT ENTITY ASSETS, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL, GEOLOGY OR ENVIRONMENTAL CONDITION OF THE SUBJECT ENTITY ASSETS
GENERALLY, INCLUDING THE PRESENCE OR LACK OF HAZARDOUS SUBSTANCES ON OR UNDER
THE SUBJECT ENTITY ASSETS, (II) THE INCOME TO BE DERIVED FROM THE SUBJECT ENTITY
ASSETS, (III) THE SUITABILITY OF THE SUBJECT ENTITY ASSETS FOR ANY AND ALL
ACTIVITIES AND USES THAT MAY BE CONDUCTED THEREON, (IV) THE COMPLIANCE OF OR BY
THE SUBJECT ENTITY ASSETS OR THEIR OPERATION WITH ANY LAWS (INCLUDING WITHOUT
LIMITATION ANY ZONING, ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS,
RULES, REGULATIONS, ORDERS OR REQUIREMENTS), OR (V) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE SUBJECT ENTITY ASSETS. EXCEPT TO THE EXTENT PROVIDED IN THIS
AGREEMENT, THE CONCURRENT AGREEMENTS OR THE OMNIBUS AGREEMENT, NO PARTY IS
LIABLE TO THE OTHER PARTIES HEREIN OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE SUBJECT
ENTITY ASSETS FURNISHED BY ANY AGENT, EMPLOYEE OR THIRD PARTY. EXCEPT TO THE
EXTENT PROVIDED IN THIS AGREEMENT, THE CONCURRENT AGREEMENTS OR THE OMNIBUS
AGREEMENT, EACH OF THE PARTIES HERETO ACKNOWLEDGES