SELLER PARTIES SHALL REIMBURSE BUYER FOR
ANY AND ALL OF SUCH COSTS; PROVIDED FURTHER THAT THE FOREGOING PROVISO SHALL NOT
APPLY TO ANY MERGER, CONSOLIDATION, SHARE EXCHANGE OR OTHER BUSINESS COMBINATION
AMONG SIRIUS, SMITH (INCLUDING ONE OR MORE OF SMITH'S WHOLLY OWNED SUBSIDIARIES
AS OF THE DATE OF THIS AGREEMENT) AND GO BIG CHARTERING, LLC, A HAWAIIAN LIMITED
LIABILITY COMPANY WHOLLY OWNED BY GORDON L.K. SMITH.
SECTION 10.5
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING ALL
SCHEDULES AND EXHIBITS HERETO, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND CONSTITUTES (ALONG WITH THE
SCHEDULES, EXHIBITS, AND OTHER DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT) A
COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENT BETWEEN THE
PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND THERE ARE NO TERMS, CONDITIONS,
REPRESENTATIONS, WARRANTIES, OR COVENANTS OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT (ALONG WITH THE SCHEDULES, EXHIBITS, AND OTHER DOCUMENTS DELIVERED
PURSUANT TO THIS AGREEMENT).
THIS
57
AGREEMENT MAY NOT BE MODIFIED, AMENDED OR TERMINATED EXCEPT BY A WRITTEN
INSTRUMENT SPECIFICALLY REFERRING TO THIS AGREEMENT SIGNED BY ALL THE PARTIES
HERETO.
SECTION 10.6
NO RELIANCE.
NO PROMISE OR INDUCEMENT FOR THIS AGREEMENT
HAS BEEN MADE TO BUYER EXCEPT AS SET FORTH HEREIN AND IN THE SCHEDULES, EXHIBITS
AND OTHER DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT.
THIS AGREEMENT IS
EXECUTED BY BUYER FREELY AND VOLUNTARILY, AND WITHOUT RELIANCE ON ANY STATEMENT,
REPRESENTATION, OR WARRANTY, WHETHER WRITTEN OR ORAL, BY ANY SELLER PARTY, OR
ANY OF THEIR OFFICERS, DIRECTORS, ACCOUNTANTS, ATTORNEYS OR OTHER AGENTS OR
REPRESENTATIVES, EXCEPT AS SET FORTH IN THIS AGREEMENT AND THE SCHEDULES,
EXHIBITS AND OTHER DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT.
SECTION 10.7
WAIVERS AND CONSENTS.
ALL WAIVERS AND CONSENTS GIVEN
HEREUNDER SHALL BE IN WRITING.
NO WAIVER BY ANY PARTY HERETO OF ANY BREACH OR
ANTICIPATED BREACH OF ANY PROVISION HEREOF BY ANY OTHER PARTY SHALL BE DEEMED A
WAIVER OF ANY OTHER CONTEMPORANEOUS, PRECEDING OR SUCCEEDING BREACH OR
ANTICIPATED BREACH, WHETHER OR NOT SIMILAR.
EXCEPT AS PROVIDED IN THIS
AGREEMENT, NO ACTION TAKEN PURSUANT TO THIS AGREEMENT, INCLUDING ANY
INVESTIGATION BY OR ON BEHALF OF ANY PARTY, SHALL BE DEEMED TO CONSTITUTE A
WAIVER BY THE PARTY TAKING SUCH ACTION OF COMPLIANCE WITH ANY REPRESENTATIONS,
WARRANTIES, COVENANTS OR AGREEMENTS CONTAINED IN THIS AGREEMENT.
SECTION 10.8
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER
SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN RECEIVED ONLY IF AND WHEN
(A) PERSONALLY DELIVERED, (B) ON THE THIRD DAY AFTER MAILING, BY UNITED STATES
MAIL, FIRST CLASS, POSTAGE PREPAID OR BY CERTIFIED MAIL RETURN RECEIPT
REQUESTED, ADDRESSED IN EACH CASE AS FOLLOWS (OR TO SUCH OTHER ADDRESS AS MAY BE
SPECIFIED BY LIKE NOTICE) OR (C) RECEIVED BY FACSIMILE AT THE PHONE NUMBER
LISTED BELOW:
(a)
If to Buyer or the Partnership to:
K-Sea Transportation Partners L.P.
One Tower Center Boulevard, 17th Floor
East Brunswick, New Jersey 08816
Attn: Timothy J. Casey
Fax:
(732) 565-3696
with a copy to:
Baker Botts L.L.P.
One Shell Plaza
910