CASE OF EACH RESTRICTED
PARTY BY EXCLUDING FROM THAT COMPUTATION ANY TIME DURING WHICH THE RESTRICTED
PARTY IS IN VIOLATION OF ANY PROVISION OF SECTION 5.5.
THE COVENANTS CONTAINED
IN THIS SECTION 5.5 SHALL NOT BE AFFECTED BY ANY BREACH OF ANY OTHER PROVISION
HEREOF BY ANY PARTY HERETO.
(F)
BUYER AND EACH RESTRICTED PARTY HEREBY AGREE THAT THIS
SECTION 5.5 IS A MATERIAL AND SUBSTANTIAL PART OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
SECTION 5.6
FURTHER ASSURANCES.
SELLER
SHALL EXECUTE, ACKNOWLEDGE AND DELIVER OR CAUSE TO BE EXECUTED, ACKNOWLEDGED AND
DELIVERED TO THE BUYER OR ITS AFFILIATES SUCH ASSIGNMENTS OR OTHER INSTRUMENTS
OF TRANSFER, ASSIGNMENT AND CONVEYANCE, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO BUYER, AS SHALL BE NECESSARY TO VEST IN BUYER (OR ITS PERMITTED
ASSIGNEES) ALL OF THE RIGHT, TITLE AND INTEREST IN AND TO THE MEMBERSHIP
INTERESTS SOLD TO BUYER BY SELLER PURSUANT TO THIS AGREEMENT, FREE AND CLEAR OF
ALL LIENS, AND ANY OTHER DOCUMENT REASONABLY REQUESTED BY BUYER IN CONNECTION
WITH THIS AGREEMENT.
SECTION 5.7
GOVERNMENTAL FILINGS.
AS
PROMPTLY AS PRACTICABLE AFTER THE EXECUTION OF THIS AGREEMENT, EACH PARTY SHALL,
IN COOPERATION WITH THE OTHER, FILE ANY REPORTS OR NOTIFICATIONS THAT MAY BE
REQUIRED TO BE FILED BY IT UNDER APPLICABLE LAW.
SECTION 5.8
CONSENTS.
AFTER THE CLOSING,
SELLER SHALL USE ITS BEST EFFORTS TO OBTAIN ANY CONSENTS OR APPROVALS OR ASSIST
IN ANY FILINGS REQUIRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY
THAT ARE REQUESTED BY BUYER AND THAT HAVE NOT BEEN PREVIOUSLY OBTAINED OR MADE.
SECTION 5.9
PUBLIC ANNOUNCEMENTS.
NEITHER
PARTY SHALL, WITHOUT THE PRIOR APPROVAL OF THE OTHER PARTY, ISSUE, OR PERMIT ANY
OF ITS PARTNERS, STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
AFFILIATES TO ISSUE, ANY PRESS RELEASE OR OTHER PUBLIC ANNOUNCEMENT WITH RESPECT
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT AS MAY BE
REQUIRED BY LAW.
SECTION 5.10
TAX MATTERS.
(A)
AS TO THE FEDERAL INCOME TAX (AND RELATED STATE INCOME TAX)
MATTERS IDENTIFIED IN THIS SECTION 5.10(A), INCLUDING THE MANNER IN WHICH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WILL BE REPORTED BY SALTCHUK,
SELLER, BUYER AND THE PARTNERSHIP FOR INCOME
28
TAX PURPOSES (ON TAX RETURNS OR OTHERWISE), SALTCHUK, SELLER, BUYER AND THE
PARTNERSHIP AGREE AS FOLLOWS:
(I)
IN THE EVENT SELLER ELECTS TO SELL
CERTAIN VESSELS TO BUYER PURSUANT TO THE VESSEL PURCHASE AGREEMENT AS DESCRIBED
IN SECTION 5.19, SELLER INTENDS TO REPORT SUCH SALE AS PART OF A TAX-DEFERRED
EXCHANGE INVOLVING MULTIPLE PARTIES, IN ACCORDANCE WITH CODE SECTION 1031. IN
SUCH CASE, THE PARTIES HERETO AGREE THAT (A) THE TOTAL PURCHASE PRICE FOR THE
VESSELS IDENTIFIED IN THE VESSEL PURCHASE AGREEMENT SHALL EQUAL THE FAIR MARKET
VALUE OF SUCH VESSELS, AS DETERMINED UNDER SCHEDULE 5.10(A) (THE "1031 VALUE");
AND (B) THE TOTAL AMOUNT OF CONSIDERATION ATTRIBUTED TO THE TAXABLE SALE (AS
DEFINED IN SECTION 5.10(A)(II)), AND THE AMOUNT OF CONSIDERATION TO BE ALLOCATED
FOR THE PURCHASE PRICE ALLOCATION ON IRS FORM 8594, SHALL BE REDUCED BY THE 1031
VALUE.
IN THE EVENT SELLER ELECTS