COURT COSTS, COSTS
OF EXPERT WITNESSES, TRANSPORTATION, LODGING AND MEAL COSTS OF THE PARTIES AND
WITNESSES, COSTS OF TRANSCRIPT PREPARATION AND OTHER REASONABLE AND NECESSARY
DIRECT AND INCIDENTAL COSTS SHALL BE APPORTIONED
55
BY THE ARBITRATOR(S) SELECTED PURSUANT TO SECTION 10.2(D) HEREOF WITH A VIEW TO
ALLOCATING COSTS TO THE PARTY THAT DOES NOT PREVAIL IN THE ARBITRATION.
(J)
PAYMENT OF ARBITRATION AWARD.
THE ARBITRATION AWARD SHALL BE
MADE AND SHALL BE PAYABLE FREE OF ANY TAX OR ANY OTHER DEDUCTION. THE
ARBITRATION AWARD SHALL INCLUDE INTEREST, AT A RATE DETERMINED AS APPROPRIATE BY
THE ARBITRATORS, AS OF THE DATE OF ANY BREACH OR OTHER VIOLATION OF THIS
AGREEMENT TO THE DATE WHEN THE ARBITRATION AWARD IS PAID IN FULL.
(K)
ENFORCEMENT.
THE PARTIES FURTHER AGREE THAT THE ARBITRATION AWARD
AND ANY JUDGMENT THEREON, IF UNSATISFIED, MAY BE ENTERED IN AND SHALL BE
ENFORCEABLE BY THE COURTS OF ANY NATION HAVING JURISDICTION OVER THE PERSON OR
PROPERTY OF THE PARTY AGAINST WHOM THE ARBITRATION AWARD HAS BEEN RENDERED.
(L)
SPECIFIC PERFORMANCE; ENFORCEMENT OF ARBITRATION AWARD.
IN THE
EVENT OF ANY BREACH BY A PARTY OF THE TERMS OF THIS AGREEMENT WHICH WOULD CAUSE
ANY NONBREACHING PARTY TO BE IRREPARABLY HARMED OR FOR WHICH SUCH NONBREACHING
PARTY COULD NOT BE MADE WHOLE BY MONETARY DAMAGES, THEN IN SUCH CIRCUMSTANCES
SUCH NONBREACHING PARTY, IN ADDITION TO ANY OTHER REMEDY TO WHICH IT MAY BE
ENTITLED AT LAW OR IN EQUITY, SHALL BE ENTITLED TO COMPEL SPECIFIC PERFORMANCE
OF THIS AGREEMENT IN ANY ACTION INSTITUTED PURSUANT TO THIS SECTION 10.2 AND IN
ANY ACTION INSTITUTED IN ANY COURT OF APPLICABLE JURISDICTION TO ENFORCE ANY
INTERIM OR FINAL ARBITRATION AWARD RENDERED PURSUANT TO THIS SECTION 10.2.
(M)
WAIVER OF JURY TRIAL.
EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO
TRIAL BY JURY IN ANY SUIT OR PROCEEDING RELATING TO OR ARISING FROM THIS
AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
EACH PARTY ACKNOWLEDGES THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER THIS AGREEMENT AND EACH PARTY
REPRESENTS THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS JURY TRIAL RIGHT
AFTER CONSULTATION WITH LEGAL COUNSEL.
SECTION 10.3
CONFIDENTIALITY.
(A)
EACH SELLER PARTY ACKNOWLEDGES THAT IT HAS OR MAY HAVE HAD IN THE
PAST, CURRENTLY HAS AND IN THE FUTURE MAY HAVE ACCESS TO CONFIDENTIAL
INFORMATION (AS DEFINED BELOW) OF SIRIUS, BUYER AND THE PARTNERSHIP.
DURING THE
PERIOD PRIOR TO CLOSING, THE PARTIES AGREE TO ABIDE BY THE CONFIDENTIALITY
PROVISIONS IN PARAGRAPH 10 OF THE LETTER OF INTENT DATED JANUARY 25, 2007
BETWEEN K-SEA OPERATING PARTNERSHIP L.P. AND THE SELLER PARTIES (AND THAT THE
SELLER PARTIES WILL BE BOUND BY SUCH PARAGRAPH AS IF IT APPLIED TO THEM MUTATIS
MUTANDIS).
FROM AND AFTER THE CLOSING, EACH SELLER PARTY AGREES THAT IT SHALL
KEEP CONFIDENTIAL ALL SUCH CONFIDENTIAL INFORMATION AND, EXCEPT WITH THE
SPECIFIC PRIOR WRITTEN CONSENT OF BUYER, SHALL NOT DISCLOSE SUCH CONFIDENTIAL
INFORMATION TO ANY PERSON EXCEPT (I) THE DIRECTORS, OFFICERS, EMPLOYEES,
AFFILIATES, ACCOUNTANTS (INCLUDING INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS),
ADVISORS, ATTORNEYS, CONSULTANTS OR OTHER AGENTS (COLLECTIVELY,