Common use of Conditions to Obligation of the Partnership to Effect the Merger Clause in Contracts

Conditions to Obligation of the Partnership to Effect the Merger. The obligation of the Partnership to effect the Merger is further subject to the fulfillment (or waiver by the Partnership) at or prior to the Effective Time of the following conditions: (a) The representations and warranties set forth in: (i) Section 4.1(b) (Qualification, Organization), Section 4.2(a) (Equity Interests), Section 4.2(b) (Equity Interests), Section 4.2(c) (Equity Interests) (first sentence only (excluding clauses (D) and (E) thereof)), Section 4.2(d) (Equity Interests), Section 4.4(a) (Authority; NonContravention) and Section 4.20 (Finders or Brokers) shall have been accurate in all material respects as of the entry into this Agreement and shall be accurate in all material respects as of the Closing Date, as if made on and as of the Closing Date (except for any such representations and warranties made as of a specific date, which shall have been accurate in all material respects as of such date); (ii) Section 4.9 (Absence of Certain Changes or Events) shall be accurate in all respects as of the entry into this Agreement; (iii) Article IV and the ET Support Agreement (other than those addressed in the foregoing clauses (i) and (ii)) without giving effect to any materiality qualifications set forth therein, shall have been accurate in all respects as of the entry into this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (except for any such representations and warranties made as of a specific date, which shall have been accurate in all respects as of such date), except where such inaccuracies, individually or in the aggregate, would not have a Parent Material Adverse Effect; (b) Each of ET, Parent, the Parent GP and Merger Sub shall have in all material respects performed all obligations and complied with all covenants required by this Agreement and the ET Support Agreement to be performed or complied with by it prior to the Effective Time; (c) Parent shall have delivered to the Partnership a certificate, dated the Closing Date and signed by the Chief Executive Officer or another senior officer of Parent GP, certifying to the effect that the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied; (d) The Parent Units to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance; (e) The Partnership shall have received a written opinion of Xxxxxxxx, Lipton, Xxxxx & Xxxx (or, if Xxxxxxxx, Lipton, Xxxxx & Xxxx is unable or unwilling to render such an opinion, another nationally recognized tax counsel as may be reasonably acceptable to the Partnership) dated as of the Closing Date and in form and substance reasonably satisfactory to the Partnership to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for U.S. federal income tax purposes, the exchange of Partnership Common Units for Parent Common Units pursuant to the Merger should be treated as an exchange described in Section 721(a) of the Code. In rendering such opinion, Xxxxxxxx, Lipton, Xxxxx & Xxxx or such other counsel shall be entitled to receive and rely on the representations, warranties, and covenants contained in the Partnership Tax Certificates and the Parent Tax Certificates; (f) Parent shall have received a written opinion of Xxxxxx & Xxxxxx LLP (or, if Xxxxxx & Xxxxxx LLP is unable or unwilling to render (or timely render) such an opinion, another nationally recognized tax counsel as may be reasonably acceptable to Parent and the Partnership) dated as of the Closing Date and in form and substance reasonably satisfactory to the Partnership to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, (i) at least 90% of the gross income of Parent for all of the calendar year that immediately precedes the calendar year that includes the Closing Date and each calendar quarter of the calendar year that includes the Closing Date for which the necessary financial information is available is from sources treated as “qualifying income” within the meaning of Section 7704(d) of the Code and (ii) Parent should not be treated as an investment company for purposes of Section 721(b) of the Code. In rendering such opinion, Xxxxxx & Xxxxxx LLP or such other counsel shall be entitled to receive and rely upon the Parent Tax Certificates, the Partnership Tax Certificates and any other representations, warranties and covenants of officers of Parent and the Partnership and any of their respective affiliates as to such matters as such counsel may reasonably request; and (g) There shall not have occurred since the entry into this Agreement a Parent Material Adverse Effect.

Conditions to Obligation of the Partnership to Effect the Merger. The obligation of the Partnership to effect the Merger is further subject to the fulfillment (or waiver by the Partnership) at or prior to the Effective Time of the following conditions: (a) The representations and warranties of Parent and Merger Sub set forth in: in (i) this Agreement (other than in Section 4.1(b) (Qualification, Organization4.2(a), Section 4.2(a) (Equity Interests), Section 4.2(b) (Equity Interests), Section 4.2(c) (Equity Interests) (the first sentence only (excluding clauses (D) and (E) thereof)), of Section 4.2(d) (Equity Interests), Section 4.4(a) (Authority; NonContravention4.2(g) and Section 4.20 (Finders or Brokers4.9(b)) shall have been accurate in all material respects be true and correct both at and as of the entry into date of this Agreement and shall be accurate in all material respects at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to “materiality,” Parent Material Adverse Effect and similar qualifiers contained in such representations and warranties) would not, in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, (ii) Section 4.2(a) and the first sentence of Section 4.2(g) shall be true and correct both at and as if made on of the date of this Agreement and at and as of the Closing Date (as though made at and as of the Closing Date, except for any such representations immaterial inaccuracies, and warranties made as of a specific date, which shall have been accurate in all material respects as of such date); (iiiii) Section 4.9 (Absence of Certain Changes or Events4.9(b) shall be accurate in all respects true and correct both at and as of the entry into this Agreement; (iii) Article IV and the ET Support Agreement (other than those addressed in the foregoing clauses (i) and (ii)) without giving effect to any materiality qualifications set forth therein, shall have been accurate in all respects as date of the entry into this Agreement and shall be accurate in all respects at and as of the Closing Date as if though made on at and as of the Closing Date (except for any such Date; provided, however, that representations and warranties that are made as of a specific dateparticular date or period shall be true and correct (in the manner set forth in clauses (i), which shall have been accurate in all respects (ii) or (iii), as applicable) only as of such date), except where such inaccuracies, individually date or in the aggregate, would not have a Parent Material Adverse Effectperiod; (b) Each of ET, Parent, the Parent GP and Merger Sub shall have in all material respects performed all obligations and complied with all covenants required by this Agreement and the ET Support Agreement to be performed or complied with by it prior to the Effective Time; (c) Parent shall have delivered to the Partnership a certificate, dated the Closing Date and signed by the Chief Executive Officer or another senior officer of Parent GP, certifying to the effect that the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied; (d) The Partnership shall have received an opinion of Xxxxxx & Xxxxxx L.L.P. (or, if Xxxxxx & Xxxxxx L.L.P. is unable or unwilling to render such an opinion, the written opinion of another nationally recognized counsel as may be reasonably acceptable to Partnership) dated as of the Closing Date to the effect that for U.S. federal income tax purposes (i) the Partnership should not recognize any income or gain as a result of the Merger and (ii) no gain or loss should be recognized by holders of Partnership Common Units (in their capacity as holders of Partnership Common Units) and Partnership Preferred Units (in their capacity as holders of Partnership Preferred Units) as a result of the Merger (in the case of each of clause (i) and (ii), other than any gain or loss resulting from (A) any decrease in a holder’s share of partnership liabilities pursuant to Section 752 of the Code, (B) the receipt of cash in lieu of fractional Parent Common Units pursuant to Section 2.4(d), (C) the receipt of cash pursuant to a Special Distribution, (D) the receipt of cash in exchange for Partnership Preferred Units that are redeemed pursuant to Section 2.1(c) or Section 5.23 (E) a disguised sale attributable to contributions of cash or other property to the Partnership on or after the date of this Agreement and prior to the Effective Time, (F) any distribution of cash or property by Parent (other than to the extent such distribution qualifies as an “operating cash flow distribution” within the meaning of Treasury Regulations Section 1.707-4(b)(2)), (G) the withholding provisions of Section 2.5, (H) the application of Section 897, 1445 or 1446 of the Code and the Treasury Regulations thereunder to any non-U.S. holder of Partnership Units that has beneficially owned more than five percent of such class of Partnership Units at any time during the five-year period ending on the Closing Date, (I) the enactment or amendment of special gain recognition rules applicable to persons that hold Partnership Units received in exchange for “applicable partnership interests” (as defined in Section 1061 of the Code) or (J) the transactions contemplated by Section 5.22). In rendering such opinion, Xxxxxx & Xxxxxx L.L.P. or such other counsel shall be entitled to receive and rely upon the Partnership Tax Certificate, the Parent Tax Certificate and any other representations, warranties and covenants of officers of the Partnership, Parent and any of their respective affiliates as to such matters as such counsel may reasonably request; (e) The Parent Units to be issued in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance; (e) The Partnership shall have received a written opinion of Xxxxxxxx, Lipton, Xxxxx & Xxxx (or, if Xxxxxxxx, Lipton, Xxxxx & Xxxx is unable or unwilling to render such an opinion, another nationally recognized tax counsel as may be reasonably acceptable to the Partnership) dated as of the Closing Date and in form and substance reasonably satisfactory to the Partnership to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, for U.S. federal income tax purposes, the exchange of Partnership Common Units for Parent Common Units pursuant to the Merger should be treated as an exchange described in Section 721(a) of the Code. In rendering such opinion, Xxxxxxxx, Lipton, Xxxxx & Xxxx or such other counsel shall be entitled to receive and rely on the representations, warranties, and covenants contained in the Partnership Tax Certificates and the Parent Tax Certificates; (f) Parent shall have received a written opinion of Xxxxxx & Xxxxxx LLP (or, if Xxxxxx & Xxxxxx LLP is unable or unwilling to render (or timely render) such an opinion, another nationally recognized tax counsel as may be reasonably acceptable to Parent and the Partnership) dated as of the Closing Date and in form and substance reasonably satisfactory to the Partnership to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, (i) at least 90% of the gross income of Parent for all of the calendar year that immediately precedes the calendar year that includes the Closing Date and each calendar quarter of the calendar year that includes the Closing Date for which the necessary financial information is available is from sources treated as “qualifying income” within the meaning of Section 7704(d) of the Code and (ii) Parent should not be treated as an investment company for purposes of Section 721(b) of the Code. In rendering such opinion, Xxxxxx & Xxxxxx LLP or such other counsel shall be entitled to receive and rely upon the Parent Tax Certificates, the Partnership Tax Certificates and any other representations, warranties and covenants of officers of Parent and the Partnership and any of their respective affiliates as to such matters as such counsel may reasonably request; and (gf) There shall not have occurred since the entry into date of this Agreement a Parent Material Adverse Effect.