IN FUNDS LETTER
SUCH THAT NEITHER ARCLIGHT ENERGY PARTNERS FUND I, L.P. NOR ARCLIGHT ENERGY
PARTNERS FUND II, L.P. SHALL HAVE ANY OBLIGATION UNDER SUCH PLACE IN FUNDS
LETTER AFTER CLOSING.
Section 7.3
Conditions Precedent to Obligation of Buyer.
The obligation
of Buyer to consummate the transactions provided for in this Agreement on the
terms specified herein is subject to fulfillment of each of the following
conditions:
(A)
REPRESENTATIONS AND WARRANTIES.
SELLER'S REPRESENTATIONS AND
WARRANTIES MADE IN THIS AGREEMENT SHALL BE TRUE AND CORRECT ON THE CLOSING DATE
AS THOUGH MADE ON THE CLOSING DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS
AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE (IN WHICH CASE AS OF SUCH
EARLIER DATE) AND EXCEPT FOR SUCH BREACHES OF REPRESENTATIONS AND WARRANTIES
THAT, IN THE AGGREGATE, WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
COMPANIES TAKEN AS A WHOLE;
(B)
PERFORMANCE OF COVENANTS.
SELLER SHALL HAVE PERFORMED AND COMPLIED IN
ALL MATERIAL RESPECTS WITH ALL OBLIGATIONS AND COVENANTS REQUIRED BY THIS
AGREEMENT TO BE PERFORMED BY IT PRIOR TO OR AT THE CLOSING;
(C)
NO MATERIAL ADVERSE EFFECT.
NO EVENTS SHALL HAVE OCCURRED AND BE
CONTINUING AS OF THE TIME THAT CLOSING WOULD OTHERWISE OCCUR, AND NO
CIRCUMSTANCES SHALL EXIST AS OF THE TIME THAT CLOSING WOULD OTHERWISE OCCUR,
THAT INDIVIDUALLY OR IN THE AGGREGATE WOULD REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT ON THE COMPANIES TAKEN AS A WHOLE; AND
(D)
THIRD-PARTY APPROVALS.
SELLER SHALL HAVE OBTAINED ALL THIRD-PARTY
APPROVALS REQUIRED (I) FOR THE TRANSFER OF THE LLC INTERESTS IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT, (II) FOR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND (III) TO PREVENT A MATERIAL BREACH OR
TERMINATION OF ANY DISCLOSED CONTRACT.
Section 7.4
Frustration of Closing Conditions.
Neither Buyer nor Seller
may rely on the failure of any condition set forth in this Article VII to be
satisfied if such failure was caused by such party's failure to act in good
faith or to use its reasonable best efforts to cause the Closing to occur.
39
ARTICLE VIII
TERMINATION
Section 8.1
Termination Events.
This Agreement may be terminated at any
time prior to the Closing:
(A)
BY THE MUTUAL WRITTEN CONSENT OF BUYER AND SELLER;
(B)
BY EITHER BUYER OR SELLER IF THE CLOSING HAS NOT OCCURRED BY THE CLOSE
OF BUSINESS ON DECEMBER 31, 2007 (SUBJECT TO EXTENSION UNDER SECTION 6.9 AND
OTHERWISE TO ACCOMMODATE ANY CURE PERIOD SPECIFIED IN SECTION 8.1(C) OR SECTION
8.1(D)), PROVIDED THAT THE FAILURE TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT DID NOT RESULT FROM THE FAILURE BY THE PARTY SEEKING
TERMINATION OF THIS AGREEMENT TO FULFILL ANY MATERIAL UNDERTAKING OR COMMITMENT
PROVIDED FOR HEREIN THAT IS REQUIRED TO BE FULFILLED BY IT PRIOR TO THE CLOSING;
(C)
BY BUYER IF SELLER SHALL HAVE BREACHED OR FAILED TO PERFORM IN ANY
MATERIAL RESPECT ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR OTHER
AGREEMENTS CONTAINED IN THIS AGREEMENT, WHICH BREACH OR FAILURE TO PERFORM (I)
WOULD