OUT OF OR RESULTING FROM ANY BREACH OF ANY
OF THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT (OTHER THAN ANY CLAIM
FOR INDEMNIFIED AMOUNTS ARISING OUT OF OR BASED ON FRAUD OR WILLFUL MISCONDUCT).
ARTICLE VIII
CONDITIONS TO CLOSING
SECTION 8.1
CONDITIONS TO OBLIGATIONS OF BUYER.
THE OBLIGATIONS OF
BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN ARE SUBJECT, AT THE
OPTION OF BUYER, TO SATISFACTION OF THE FOLLOWING CONDITIONS:
(A)
COMPLIANCE.
SIRIUS AND THE SELLER PARTIES SHALL HAVE COMPLIED
WITH THEIR COVENANTS AND AGREEMENTS CONTAINED HEREIN, AND THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN ARTICLES III AND IV HEREOF SHALL BE TRUE AND CORRECT
ON THE DATE HEREOF AND TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE
CLOSING DATE (EXCEPT THOSE REPRESENTATIONS AND WARRANTIES QUALIFIED BY
MATERIALITY, WHICH SHALL BE TRUE AND CORRECT IN ALL RESPECTS AS SO QUALIFIED).
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(B)
OFFICER'S CERTIFICATE.
BUYER SHALL HAVE RECEIVED A CERTIFICATE,
DATED AS OF THE CLOSING DATE, OF AN EXECUTIVE OFFICER OF SIRIUS AND EACH SELLER
CERTIFYING AS TO THE MATTERS SPECIFIED IN SECTIONS 8.1(A) HEREOF.
(C)
SELLERS' RESOLUTIONS.
EACH SELLER SHALL DELIVER TO BUYER A
CERTIFIED COPY OF RESOLUTIONS DULY ADOPTED BY THE MEMBERS OF SUCH SELLER AND
AUTHORIZING AND APPROVING THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
INCLUDING THE EXHIBITS AND SCHEDULES HERETO, AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREIN.
(D)
ASSIGNMENT OF MEMBERSHIP INTERESTS.
THE SELLER PARTIES SHALL EACH
DELIVER ASSIGNMENTS OF MEMBERSHIP INTERESTS ASSIGNING TO BUYER ALL OF THEIR
RIGHTS, TITLE AND INTERESTS IN THEIR RESPECTIVE MEMBERSHIP INTERESTS IN SIRIUS
IN THE FORM ATTACHED AS EXHIBIT B DULY EXECUTED BY SELLERS.
(E)
HSR ACT.
ANY WAITING PERIOD APPLICABLE TO THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT UNDER THE HSR ACT SHALL HAVE EXPIRED
OR BEEN TERMINATED.
(F)
DELIVERY OF FINANCIAL STATEMENTS.
BUYER SHALL HAVE RECEIVED THE
FINANCIAL STATEMENTS REQUIRED BY SECTION 6.14 AT LEAST THIRTY BUSINESS DAYS
PRIOR TO THE CLOSING DATE.
(G)
NO MATERIAL ADVERSE CHANGE.
NO MATERIAL ADVERSE CHANGE IN THE
VALUE OF THE MEMBERSHIP INTERESTS OR IN THE BUSINESS OR IN THE FINANCIAL
CONDITION OF SIRIUS SHALL HAVE OCCURRED SINCE THE DATE HEREOF, AND NO EVENT
SHALL HAVE OCCURRED SINCE THE DATE HEREOF WHICH COULD BE EXPECTED TO LEAD TO OR
CAUSE SUCH A MATERIAL ADVERSE CHANGE; PROVIDED, HOWEVER, THAT (I) CHANGES
RESULTING FROM CONDITIONS AFFECTING THE COASTWISE MARITIME PETROLEUM
TRANSPORTATION INDUSTRY IN GENERAL AND (II) CHANGES IN THE ECONOMY IN GENERAL
SHALL, IN EACH CASE, BE EXCLUDED FROM THE DETERMINATION TO THE EXTENT THAT THEY
DO NOT HAVE A DISPROPORTIONATE EFFECT ON SIRIUS AS COMPARED TO OTHER ENTITIES
ENGAGED IN THE COASTWISE MARITIME PETROLEUM TRANSPORTATION INDUSTRY IN HAWAII
AND ALONG THE WEST COAST.
(H)
CERTIFIED ABSTRACTS.
SIRIUS AND THE SELLER PARTIES SHALL DELIVER
CERTIFIED ABSTRACTS OF TITLE FOR EACH OF THE VESSELS ISSUED BY THE U.S. COAST
GUARD AT THE NATIONAL VESSEL DOCUMENTATION CENTER DATED NO EARLIER THAN SEVEN
DAYS PRIOR TO THE DATE OF THE CLOSING (I) SHOWING THAT SIRIUS IS THE OWNER OF
THE OWNED VESSELS AND