RESTORE OR REPLACE SUCH PROPERTY,
SUCH PROPERTY SHALL BECOME AN EXCLUDED ITEM AND THE PURCHASE PRICE SHALL BE
REDUCED BY THE VALUE AS PER EXHIBIT J OF SUCH PROPERTY OR IF NOT LISTED IN
EXHIBIT J THEN THE PURCHASE PRICE SHALL BE REDUCED BY THE FAIR MARKET VALUE AS
DETERMINED BY A MUTUALLY ACCEPTABLE APPRAISER, IN EACH INSTANCE, ADJUSTED FOR
THE INSURANCE PROCEEDS PAID TO THE BUYER.
(B)
IF PRIOR TO CLOSING, THE VESSEL SUFFERS A LOSS OR CASUALTY SUCH
THAT IT IS DETERMINED TO BE EITHER (I) A TOTAL LOSS FOR INSURANCE PURPOSES OR
(II) THE LOSS OR CASUALTY IS SUCH THAT THE VESSEL WOULD NOT BE OPERATIONAL PRIOR
TO THE DROP DEAD DATE, THEN EITHER BUYER OR SELLER MAY TERMINATE THIS AGREEMENT.
3.03
CONDUCT OF BUSINESS.
PRIOR TO THE CLOSING, EXCEPT AS OTHERWISE
APPROVED BY BUYER IN WRITING, SELLER SHALL OPERATE THE PROPERTY AND ITS
BUSINESSES WHICH ARE PRESENTLY CONDUCTED WITH THE PROPERTY IN THE ORDINARY
COURSE THEREOF CONSISTENT WITH PAST PRACTICE (INCLUDING, WITHOUT LIMITATION,
CAPITAL EXPENDITURES, THE ACQUISITION OF PARTS AND INVENTORY, KEEPING OF ALL OF
THE PROPERTY IN GOOD WORKING ORDER AND REPAIR, AND REPLACING ANY PROPERTY WHICH
SHALL BE WORN OUT, LOST, STOLEN, DAMAGED OR DESTROYED) AND IN SUCH A MANNER THAT
SELLER MAY CONTINUE TO PERFORM ITS OBLIGATIONS UNDER THE EXISTING CONTRACTS AND
AS MAY BE REQUIRED BY
10
ANY APPLICABLE LAW.
SELLER SHALL GIVE BUYER PROMPT WRITTEN NOTICE OF ANY AND
ALL MATERIAL ADVERSE CHANGES IN THE CONDITION OR OPERATION OF ANY OF THE
PROPERTY.
BUYER ACKNOWLEDGES AND AGREES THAT AFTER THE CONDITION SET FORTH IN
SECTION 9.03 IS SATISFIED OR WAIVED BY BUYER THAT NOTWITHSTANDING THE FOREGOING,
SELLER SHALL NOT OPERATE THE PROPERTY AND THAT THE PROPERTY WILL BE MAINTAINED
AT A DOCK UNTIL CLOSING.
3.04
NEGATIVE COVENANTS.
DURING THE PERIOD FROM THE EFFECTIVE DATE OF
THIS AGREEMENT TO THE CLOSING DATE, SELLER SHALL NOT, WITHOUT BUYER'S PRIOR
WRITTEN CONSENT:
(A)
SELL, LEASE, MORTGAGE, PLEDGE OR OTHERWISE DISPOSE OF OR TRANSFER
ANY OF THE PROPERTY, EXCEPT FOR INVENTORY SOLD OR OTHERWISE DISPOSED OF IN THE
ORDINARY AND REGULAR COURSE OF SELLER'S BUSINESS; OR
(B)
ENTER INTO OR EXTEND ANY EMPLOYMENT AGREEMENT WITH ANY DESIGNATED
EMPLOYEE FOR A TERM EXTENDING BEYOND THE CLOSING OR INCREASE THE COMPENSATION OF
ANY DESIGNATED EMPLOYEE, OR INCREASE OR OTHERWISE CHANGE THE RATE OR NATURE OF
THE COMPENSATION (INCLUDING WAGES, SALARIES, BONUSES AND BENEFITS UNDER PENSION,
PROFIT SHARING, DEFERRED COMPENSATION AND SIMILAR PLANS OR PROGRAMS) WHICH IS
PAID OR PAYABLE TO ANY DESIGNATED EMPLOYEE; PROVIDED, HOWEVER, THAT SELLER SHALL
BE PERMITTED TO MAKE "SEPARATION PAYMENTS" TO ANY OF ITS EMPLOYEES IT DETERMINES
TO TERMINATE ON OR PRIOR TO THE CLOSING DATE.
3.05
CONSENTS.
PRIOR TO THE CLOSING DATE, SELLER SHALL PROCEED WITH ALL
REASONABLE DILIGENCE AND USE ITS BEST EFFORTS TO OBTAIN THE WRITTEN CONSENT TO
THE CONSUMMATION OF THIS AGREEMENT FROM ALL NECESSARY PERSONS.
3.06
NO SOLICITATION.
PRIOR TO THE CLOSING OR UNTIL THE TERMINATION OF
THIS AGREEMENT, SELLER SHALL NOT, WITHOUT THE PRIOR APPROVAL OF