BUYER FOR THE PERIODS TO WHICH IT RELATES, IN EACH CASE IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED DURING THE PERIODS INVOLVED, EXCEPT IN
EACH CASE AS MAY BE NOTED THEREIN, SUBJECT TO NORMAL YEAR-END AUDIT ADJUSTMENTS
IN THE CASE OF UNAUDITED STATEMENTS.
EXCEPT AS AND TO THE EXTENT SET FORTH ON
ITS BALANCE SHEET AS OF DECEMBER 31, 2006 (OR SUCH LATER DATE OF ANY BALANCE
SHEET FILED WITH THE SEC AS AN SEC DOCUMENT), AS OF SUCH DATE, NEITHER BUYER NOR
ANY OF ITS SUBSIDIARIES HAD ANY LIABILITIES OR OBLIGATIONS OF ANY NATURE
(WHETHER ACCRUED, ABSOLUTE, CONTINGENT OR OTHERWISE) THAT WOULD BE REQUIRED TO
BE REFLECTED ON, OR RESERVED AGAINST IN, A BALANCE SHEET OR IN THE NOTES THERETO
PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED.
(I)
NO BROKERS.
NO ACTION HAS BEEN TAKEN BY BUYER THAT WOULD GIVE
RISE TO ANY VALID CLAIM AGAINST ANY PARTY HERETO FOR A BROKERAGE COMMISSION,
FINDER'S FEE OR OTHER LIKE PAYMENT WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, EXCLUDING, FEES TO BE PAID BY BUYER TO LEHMAN BROTHERS INC.
AND RBC CAPITAL MARKETS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT AND THIS AGREEMENT.
(J)
NO MATERIAL ADVERSE CHANGE.
EXCEPT AS DISCLOSED IN ITS SEC
DOCUMENTS FILED WITH THE SEC ON OR BEFORE THE DATE HEREOF, SINCE DECEMBER 31,
2006, (I) BUYER AND ITS SUBSIDIARIES HAVE CONDUCTED THEIR RESPECTIVE BUSINESSES
IN THE ORDINARY AND USUAL COURSE (EXCLUDING THE INCURRENCE OF EXPENSES RELATED
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY), (II) BUYER HAS NOT
MADE ANY MATERIAL CHANGE IN ITS ACCOUNTING METHODS, PRINCIPLES OR PRACTICES OR
ITS TAX METHODS, PRACTICES OR ELECTIONS AND (III) NO EVENT HAS OCCURRED OR
CIRCUMSTANCE ARISEN THAT, INDIVIDUALLY OR TAKEN TOGETHER WITH ALL OTHER FACTS,
CIRCUMSTANCES AND EVENTS IS REASONABLY LIKELY TO RESULT IN A MATERIAL ADVERSE
EFFECT.
(K)
CONFLICTS COMMITTEE ACTION.
AT A MEETING DULY CALLED AND HELD,
THE CONFLICTS COMMITTEE DETERMINED THAT THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY, TOGETHER WITH THE MERGER AGREEMENT AND THE TRANSACTION
CONTEMPLATED THEREBY, ARE FAIR AND REASONABLE TO, AND IN THE BEST INTERESTS OF,
THE UNAFFILIATED COMMON UNITHOLDERS AND THE PARTNERSHIP, AND RECOMMENDED THAT
THE BOARD OF DIRECTORS OF THE COMPANY APPROVE THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
(L)
ENERGY PARTNERS FAIRNESS OPINION.
LEHMAN BROTHERS INC. HAS
DELIVERED TO THE CONFLICTS COMMITTEE ITS WRITTEN OPINION DATED SEPTEMBER 5,
2007, THAT AS OF SUCH DATE, THE REDEMPTION/MERGER CONSIDERATION PAID IN THE
REDEMPTION AND THE MERGER AND THE CONSIDERATION PAID TO THE SELLERS PURSUANT TO
THIS AGREEMENT, IN THE AGGREGATE, ARE FAIR, FROM A FINANCIAL POINT OF VIEW, TO
THE UNAFFILIATED COMMON UNITHOLDERS.
11
(M)
LIMITATION OF REPRESENTATIONS AND WARRANTIES.
EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 3.2, BUYER IS NOT
MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED.
ARTICLE IVARTICLE IV
ADDITIONAL AGREEMENTS, COVENANTS, RIGHTS AND OBLIGATIONS
SECTION 4.1
COMMERCIALLY REASONABLE BEST EFFORTS; FURTHER
ASSURANCES.
FROM AND AFTER THE DATE HEREOF, UPON THE TERMS AND