ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM AND OTHER SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND TO
THE PRINCIPLES OF EQUITY (WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING IN
EQUITY OR AT LAW).
SECTION 5.3
NON-CONTRAVENTION.
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE SCHEDULES AND EXHIBITS HERETO, NOR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, DOES OR SHALL VIOLATE, CONFLICT
WITH OR RESULT IN BREACH OF OR REQUIRE NOTICE OR CONSENT UNDER ANY LAW, THE
CERTIFICATE OF FORMATION, CERTIFICATE OF LIMITED PARTNERSHIP, LIMITED LIABILITY
COMPANY AGREEMENT OR AGREEMENT OF LIMITED PARTNERSHIP OF BUYER OR THE
PARTNERSHIP (AS THE CASE MAY BE) NOR OR ANY PROVISION OF ANY AGREEMENT OR
INSTRUMENT TO WHICH BUYER OR THE PARTNERSHIP IS A PARTY.
SECTION 5.4
VALIDITY.
THERE IS NO INVESTIGATION, CLAIM, PROCEEDING OR
LITIGATION OF ANY TYPE PENDING OR, TO THE KNOWLEDGE OF BUYER OR THE PARTNERSHIP,
THREATENED TO WHICH BUYER OR THE PARTNERSHIP IS A PARTY THAT (I) QUESTIONS OR
INVOLVES THE VALIDITY OR ENFORCEABILITY OF ANY OF BUYER'S OR THE PARTNERSHIP'S
OBLIGATIONS UNDER THIS AGREEMENT OR ANY OF THE EXHIBITS HERETO OR (II) SEEKS (OR
REASONABLY MIGHT BE EXPECTED TO SEEK) (A) TO PREVENT OR DELAY THE CONSUMMATION
BY BUYER OR THE PARTNERSHIP OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
OR (B) DAMAGES IN CONNECTION WITH ANY SUCH CONSUMMATION.
35
SECTION 5.5
BROKER INVOLVEMENT.
NEITHER BUYER NOR THE PARTNERSHIP HAS HIRED,
RETAINED OR DEALT WITH ANY BROKER OR FINDER IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
SECTION 5.6
BUYER'S REVIEW.
IN CONNECTION WITH ITS DECISION TO PURCHASE THE
EQUITY INTERESTS, EACH OF BUYER AND THE PARTNERSHIP ACKNOWLEDGES THAT IT IS A
SOPHISTICATED PARTY WITH SUCH KNOWLEDGE AND EXPERIENCE IN BUSINESS AND FINANCIAL
MATTERS AS TO BE CAPABLE OF EVALUATING THE MERITS AND RISKS OF THE ACQUISITION.
EACH OF BUYER AND THE PARTNERSHIP HAS HAD AN OPPORTUNITY TO REVIEW THE RECORDS
AND BUSINESS OF EACH OF THE SUBJECT COMPANIES PROVIDED TO BUYER AND THE
PARTNERSHIP AND TO ASK QUESTIONS AND RECEIVE ANSWERS FROM THE SELLER PARTIES AND
EACH OF THE SUBJECT COMPANIES REGARDING EACH OF THE SUBJECT COMPANIES.
SECTION 5.7
CITIZENSHIP.
EACH OF BUYER AND THE PARTNERSHIP IS A CITIZEN OF THE
UNITED STATES WITHIN THE MEANING OF CHAPTER 505 OF TITLE 46 OF THE UNITED STATES
CODE, FOR THE PURPOSE OF OPERATING THE VESSELS IN THE COASTWISE TRADE OF THE
UNITED STATES.
ARTICLE VI
COVENANTS
SECTION 6.1
OTHER OFFERS.
FROM AND AFTER THE DATE HEREOF AND UNTIL THE
CLOSING, NEITHER THE SELLER PARTIES, SMITH MARITIME, GO BIG NOR ANY OF THEIR
RESPECTIVE OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES
OR AGENTS SHALL, DIRECTLY OR INDIRECTLY, (A) SOLICIT, ENTER INTO OR CONDUCT
DISCUSSIONS RELATING TO, INITIATE OR ENCOURAGE ANY OFFER OR PROPOSAL FOR, OR ANY
INDICATION OF INTEREST IN, (1) A MERGER, CONSOLIDATION, SHARE EXCHANGE OR OTHER
BUSINESS COMBINATION INVOLVING ANY OF THE SUBJECT COMPANIES OR ANY SELLER PARTY,
(2) THE ACQUISITION OF AN EQUITY INTEREST IN ANY OF THE SUBJECT COMPANIES OR ANY