SALE OF THE PURCHASED UNITS TO PURCHASER SHALL BE
SUBJECT TO THE SATISFACTION ON OR PRIOR TO THE CLOSING DATE OF THE CONDITION
(WHICH MAY BE WAIVED BY K-SEA IN WRITING, IN WHOLE OR IN PART, TO THE EXTENT
PERMITTED BY APPLICABLE LAW) THAT THE REPRESENTATIONS AND WARRANTIES OF
PURCHASER CONTAINED IN THIS AGREEMENT THAT ARE QUALIFIED BY MATERIALITY OR A
PURCHASER MATERIAL ADVERSE EFFECT SHALL BE TRUE AND CORRECT WHEN MADE AND AS OF
THE CLOSING DATE, ALL OTHER REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS WHEN MADE AND AS OF THE CLOSING DATE, IN EACH
CASE AS THOUGH MADE AT AND AS OF THE CLOSING DATE (EXCEPT THAT REPRESENTATIONS
MADE AS OF A SPECIFIC DATE SHALL BE REQUIRED TO BE TRUE AND CORRECT AS OF SUCH
DATE ONLY, AND K-SEA SHALL HAVE RECEIVED A CERTIFICATE SIGNED ON BEHALF OF
PURCHASER TO SUCH EFFECT), AND PURCHASER SHALL HAVE DELIVERED, OR CAUSED TO BE
DELIVERED, TO K-SEA AT THE CLOSING PURCHASER'S CLOSING DELIVERIES DESCRIBED IN
SECTION 2.06.
Section 2.05
K-Sea Deliveries.
At the Closing,
subject to the terms and conditions hereof, K-Sea will deliver, or cause to be
delivered, to Purchaser:
(A)
A CERTIFICATE OR CERTIFICATES REPRESENTING
THE PURCHASED UNITS (BEARING THE LEGEND SET FORTH IN SECTION 4.05(E)) AND
MEETING THE REQUIREMENTS OF THE PARTNERSHIP AGREEMENT, FREE AND CLEAR OF ANY
LIENS OF ANY OTHER PERSON, OTHER THAN TRANSFER RESTRICTIONS UNDER APPLICABLE
FEDERAL AND STATE SECURITIES LAWS;
(B)
COPIES OF THE CERTIFICATE OF LIMITED
PARTNERSHIP OF (I) K-SEA AND (II) K-SEA GENERAL PARTNER L.P., AND OF THE
CERTIFICATE OF FORMATION OF K-SEA GENERAL PARTNER GP, LLC, EACH CERTIFIED BY THE
SECRETARY OF STATE OF THE JURISDICTION OF ITS FORMATION AS OF A RECENT DATE;
6
(C)
A CERTIFICATE OF THE SECRETARY OF STATE OF
THE STATE OF DELAWARE, DATED A RECENT DATE, THAT K-SEA IS IN GOOD STANDING;
(D)
A CERTIFICATE OF THE SECRETARY OR ASSISTANT
SECRETARY OF K-SEA GENERAL PARTNER GP, LLC, ON BEHALF OF K-SEA, CERTIFYING AS TO
(1) THE PARTNERSHIP AGREEMENT, (2) BOARD RESOLUTIONS AUTHORIZING THE EXECUTION
AND DELIVERY OF THIS AGREEMENT AND ALL OF THE AGREEMENTS AND INSTRUMENTS TO BE
EXECUTED AND DELIVERED BY K-SEA IN CONNECTION HEREWITH, AND THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND (3) ITS INCUMBENT OFFICERS AUTHORIZED
TO EXECUTE AND DELIVER THIS AGREEMENT AND THE OTHER AGREEMENTS AND INSTRUMENTS
CONTEMPLATED HEREBY, SETTING FORTH THE NAME AND TITLE AND BEARING THE SIGNATURES
OF SUCH OFFICERS;
(E)
A CERTIFICATE, DATED THE CLOSING DATE AND
SIGNED BY (X) THE PRESIDENT AND CHIEF EXECUTIVE OFFICER AND (Y) THE CHIEF
FINANCIAL OFFICER OF K-SEA GENERAL PARTNER GP, LLC, IN THEIR CAPACITIES AS SUCH,
STATING THAT:
(I)
K-SEA HAS PERFORMED AND COMPLIED WITH THE COVENANTS AND
AGREEMENTS CONTAINED IN THIS AGREEMENT WHICH ARE REQUIRED TO BE PERFORMED AND
COMPLIED WITH BY K-SEA ON OR PRIOR TO THE CLOSING DATE; AND
(II)
THE REPRESENTATIONS AND WARRANTIES OF K-SEA CONTAINED IN THIS
AGREEMENT THAT ARE QUALIFIED BY MATERIALITY OR K-SEA MATERIAL ADVERSE EFFECT