A VESSEL PURCHASE AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS
EXHIBIT D WITH RESPECT TO THE TRANSFERRED VESSELS, AND THE AMOUNT SET FORTH IN
SECTION 2.2(A) SHALL BE REDUCED BY THE PURCHASE PRICE OF THE TRANSFERRED VESSELS
UNDER SUCH VESSEL PURCHASE AGREEMENT, WHICH PRICE SHALL BE MUTUALLY AGREED
BETWEEN BUYER AND SELLER.
34
ARTICLE VI
INDEMNIFICATION
SECTION 6.1
SELLER'S INDEMNITY
OBLIGATIONS.
SELLER SHALL INDEMNIFY EACH BUYER INDEMNIFIED PARTY AGAINST, AND
HOLD EACH BUYER INDEMNIFIED PARTY HARMLESS FROM AND AGAINST, ANY INDEMNIFIED
AMOUNTS THAT ARISE FROM, ARE BASED ON OR RELATE OR OTHERWISE ARE ATTRIBUTABLE TO
(A) ANY ERROR, INACCURACY, BREACH OR MISREPRESENTATION IN ANY OF THE
REPRESENTATIONS AND WARRANTIES MADE BY OR ON BEHALF OF SELLER IN THIS AGREEMENT
(PROVIDED THAT SECTIONS 3.7, 3.20(C), 3.21, 3.22(A) AND 3.22(C) SHALL BE READ AS
IF NO MATERIALITY QUALIFIERS WERE CONTAINED THEREIN AND SECTION 3.22(A) SHALL BE
READ AS IF THERE WAS NO SCHEDULE OF EXCEPTIONS THERETO), (B) ANY VIOLATION OR
BREACH BY SELLER OF OR DEFAULT BY SELLER UNDER THE TERMS OF THIS AGREEMENT,
(C) ANY CLAIM BY ANY PERSON FOR BROKERAGE OR FINDER'S FEES OR COMMISSIONS OR
SIMILAR PAYMENTS BASED UPON ANY AGREEMENT OR UNDERSTANDING ALLEGED TO HAVE BEEN
MADE BY ANY SUCH PERSON WITH EITHER SELLER OR SEA COAST (OR ANY PERSON ACTING ON
THEIR BEHALF) IN CONNECTION WITH ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, (D) ANY CLAIM BY ANY PERSON UNDER ERISA OR OTHER APPLICABLE LAW
RELATING TO AN "EMPLOYEE PENSION BENEFIT PLAN" SPONSORED, MAINTAINED OR
CONTRIBUTED TO BY AN ERISA AFFILIATE AND SUBJECT TO TITLE IV OF ERISA OR THE
MINIMUM FUNDING REQUIREMENTS OF CODE SECTION 412, (E) ANY CLAIM BY THEODORE G.
MYERS FOR DISABILITY OR OTHER INJURY, INCLUDING, WITHOUT LIMITATION, CLAIMS
ARISING UNDER THAT CERTAIN LAWSUIT STYLED THEODORE G. MYERS V. SEA COAST
TOWING/EAGLE PACIFIC INS. CO./ALASKA NATIONAL INSURANCE CO. (U.S. DOL OWCP CAUSE
NO. 2005-LHC-01566 (14-137203); NO. 2005-LHC-01567 (14-138004); AND
NO. 2005-LHC-01568 (14-138910)); (F) ANY CLAIM RELATING TO THE 520 BRIDGE
MATTER, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING UNDER THAT CERTAIN LAWSUIT
STYLED WASHINGTON DEP'T TRANSP. V. SEA COAST (W.D. WASH. NO. 2003-CV-00166-TSZ);
(G) ANY CLAIMS RELATED TO THE IMPROPER CLASSIFICATION OF EMPLOYEES FOR PURPOSES
OF THE FAIR LABOR STANDARDS ACT OR OTHER APPLICABLE LAW DURING ANY PERIOD PRIOR
TO CLOSING; (H) ANY CLAIM RELATED TO SELLER'S EFFECTING A TAX-DEFERRED EXCHANGE
IN ACCORDANCE WITH CODE SECTION 1031 AS CONTEMPLATED BY THE VESSEL PURCHASE
AGREEMENT; AND (I) ANY CLAIM INVOLVING ANY DISPUTE AMONG SEA COAST, SELLER,
SALTCHUK, ROBERT C. DORN, WAYNE SUNDBERG, JANE DOE SUNDBERG, SIRIUS MARITIME,
LLC, JAMES H. BAUER OR BAUER MOYNIHAN & JOHNSON, LLP.
BUYER SHALL BE ENTITLED
TO RECOVER ITS REASONABLE AND NECESSARY ATTORNEYS' FEES AND LITIGATION EXPENSES
INCURRED IN CONNECTION WITH SUCCESSFUL ENFORCEMENT OF ITS RIGHTS UNDER THIS
SECTION 6.1.
NOTWITHSTANDING THE FOREGOING, SELLER SHALL NOT BE REQUIRED TO
INDEMNIFY OR HOLD HARMLESS THE BUYER INDEMNIFIED PARTIES ON ACCOUNT OF ANY
INDEMNIFIED AMOUNTS ARISING UNDER SECTION 6.1(A) (OTHER THAN WITH RESPECT TO
BREACHES OF REPRESENTATIONS AND WARRANTIES CONTAINED