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 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
SUBJECT