CONTRACT OF SALE AND PURCHASE OF VESSELS
This CONTRACT OF SALE AND PURCHASE OF VESSELS, made as of October 11,
1999 (this "Agreement"), by and between MARITRANS OPERATING PARTNERS L.P., a
Delaware limited partnership ("Seller"), and K-SEA TRANSPORTATION LLC, a
Delaware limited liability company ("Buyer").
W I T N E S S E T H :
WHEREAS, the Seller is the owner of the vessels listed on Attachment A
hereto and made a part hereof ("Vessels");
WHEREAS, the Seller wishes to sell the Vessels to the Buyer, and the
Buyer wishes to purchase the Vessels from the Seller; and
WHEREAS, the parties desire to enter into certain other agreements as
more fully set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and with the intent to be legally bound hereby,
the parties hereto agree as follows:
1. Sale and Purchase of the Vessels.
The Seller agrees to sell and the Buyer agrees to purchase the Vessels
on the Closing Date (as hereinafter defined) on the terms and conditions hereof.
The sale of the Vessel shall include all of the Vessels' appurtenances, parts,
instruments, accessories and other equipment installed thereon and all stores,
fuel oil and lube oil on board on the Closing Date, and such shoreside spares
and other equipment associated with the Vessels which are listed on Attachment B
hereto. Seller is not required to replace spare parts which are taken out of
spares belonging to the Vessel and used as replacement parts on the Vessels
prior to delivery; however, Seller agrees not to use any of such spares on any
vessels other than the Vessels. Notwithstanding the foregoing, the sale of the
Vessels hereunder does not include vessel computers or software, or the personal
belongings, including personal computers and slop chests, of the Captain,
officers and crew.
2. Purchase Price.
The purchase price of the Vessels is Thirty Four Million Dollars
($34,000,000.00) (hereinafter called the "Contract Price"), payable as follows:
(a) ONE MILLION DOLLARS ($1,000,000.00) (the "Deposit") upon signing
this Agreement by federal wire transfer to The Chase Manhattan Bank, as
escrow agent, pursuant to an escrow agreement in the form attached as
Attachment C hereto (the "Escrow Agreement"):
Bank: The Chase Manhattan Bank
ABA #000000000
Account: Escrow Exigency Account
Account #: 000-0-00000
Attn: Xxxxxx Xxxxxxxxxx
Re: K-Sea Escrow
(b) TWENTY-EIGHT MILLION DOLLARS ($28,000,000.00) on the Closing Date
by federal wire transfer to the following account:
Bank: Wilmington Trust Company
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
ABA #0311-00092
Account: Maritrans Operating Partners L.P.
Account #: 23965-0
Re: Maritrans Northeast Fleet Sale
(c) A 6-year 8.5% subordinated note issued by Buyer to Seller on the
Closing Date in the aggregate principal amount of FIVE MILLION DOLLARS
($5,000,000.00) (the "Note"), which such principal amount shall be
reduced to FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS ($4,500,000.00)
if the party to whom the vessel INTERSTATE 70 is being chartered
pursuant to the bareboat charter described in Section 13(a) herein
exercises its option to purchase such vessel, which such Note shall not
be transferred by Buyer or Seller at least until after January 21,
2002.
The amount of the Contract Price is exclusive of any applicable sales, use or
other transfer taxes or other governmental fees of any nature which, if any are
applicable to this transaction, shall be the sole responsibility of and paid for
by Buyer. The Seller shall use reasonable efforts consistent with contractual
requirements to position the Vessels on the Closing Date at locations designated
by Buyer.
3. Inspection.
(a) Charters; Documentation. Upon execution of this Agreement, Seller
shall permit Buyer and its representatives reasonable access to inspect
its books and records relating to the Vessels and to the contracts and
charters being acquired hereunder.
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(b) Y2K Compliance. Seller shall permit Buyer to inspect its Y2K
Compliance Plan and compliance documentation pertaining to the Vessels,
and Seller will provide copies of all Y2K Compliance documents which it
has submitted to the U.S. Coast Guard.
4. Passage of Title.
Title to the Vessels shall pass to the Buyer on the Closing Date.
5. Buyer's Representations and Warranties.
The Buyer represents, warrants and covenants that on the date of this
Agreement and the Closing Date:
(a) It is a limited liability company duly organized and existing
under and by virtue of the laws of the State of Delaware;
(b) (i) it has full legal right, power and authority to execute and
deliver, and to perform all of its obligations under, this
Agreement; (ii) this Agreement constitutes the legal, valid and
binding obligation of Buyer enforceable against Buyer in
accordance with the terms hereof; and (iii) it has legal power
and authority to purchase the Vessels pursuant to the terms and
conditions of this Agreement; and
(c) It is a "citizen" of the United States as defined in Section 2
of the Shipping Act, 1916, as amended.
6. Seller's Representations and Warranties.
(a) The Seller represents, warrants and covenants that on the date
of this Agreement and on the Closing Date:
(i) It is a limited partnership duly organized and existing under
and by virtue of the laws of the State of Delaware;
(ii) a) it has full legal right, power and authority to execute
and deliver, and to perform all of its obligations under,
this Agreement and the Bills of Sale (as hereinafter
defined); b) this Agreement constitutes, and upon execution
and delivery thereof the Bills of Sale will constitute, the
legal, valid and binding obligations of Seller enforceable
against Seller in accordance with the respective terms hereof
and thereof; and c) it has legal power and authority to sell
the Vessels pursuant to the terms and conditions of this
Agreement;
(iii) Except for required Xxxx-Xxxxx-Xxxxxx filings, neither the
execution and delivery of this Agreement by Seller, nor the
performance by Seller of all of its obligations hereunder,
requires the consent or approval of, the giving of notice to,
or the registration, filing or recording with, or the taking
of any other action in respect of, any federal, state, local
or foreign government or governmental authority or agency or
any other person, and no further action, including any filing
or recording of any document is necessary or advisable in
order to establish and perfect Buyer's title to and interest
in, the Vessels as against Seller and/or third parties in any
applicable jurisdiction except for the filings being made
with the United States Coast Guard;
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(iv) There is no litigation or other proceeding now pending or, to
the best of Seller's knowledge, threatened, against or
affecting Seller, in any court or before any regulatory
commission, board or other administrative governmental agency
which would directly or indirectly adversely affect or impair
the title of Buyer to the Vessels or Buyer's ability to
operate the Vessels in the coastwise trade, or which, if
decided adversely to Seller, would materially adversely
affect the business operations or financial condition of
Seller and/or Seller's ability to perform this Agreement;
(v) The Bills of Sale will be effective on the Closing Date to
convey to Buyer all of Seller's right, title and interest in
and to the Vessels;
(vi) Seller warrants good title, free and clear of all mortgages,
liens, encumbrances, levies or claims of any type whatsoever
whether recorded, secret, state, maritime or otherwise and
agrees to indemnify, hold harmless and defend Buyer from any
such mortgages, liens, encumbrances, levies and claims;
(vii) The Vessels are eligible for documentation in the United
States coastwise trade;
(viii) Since the Vessels' last drydocking, to the best of Sellers'
knowledge, no Vessel has been grounded, stranded, or suffered
any other occurrence or casualty that could have caused or
actually did cause any damage to such Vessel's bottom and/or
hull or other underwater parts. However, to establish any
liability on the Seller under this warranty, the burden shall
be on Buyer to establish that the damage pre-dated its
acquisition, and any payment by Seller to Buyer for damage
discovered after transfer of title is subject to receipt of
and is limited to the amount of indemnity received from
Seller's underwriters plus the amount of any deductible or
copayment for which Seller is responsible under such
insurance;
(ix) The contracts and charters listed in Section 13 hereof
constitute all of the contracts, charters, and agreements
related to (A) the Vessels and (B) Seller's and its
affiliates' inland and coastwise movements of petroleum
products in quantities of less than 150,000 barrels north of
Norfolk, Virginia (excluding inland movements in the local
Philadelphia, Pennsylvania, Chesapeake Bay, Delaware Bay and
Delaware River markets) and, during the twelve months prior
to the date of this Agreement, no other contracts, charters
and agreements were in effect; and
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(x) The information provided by Seller to Buyer in connection
with the transactions contemplated by this Agreement is
accurate and complete in all material respects.
(b) THE VESSELS ARE SOLD AS IS, WHERE IS with no warranties of the
Seller other than as set forth in this Agreement.
7. Delivery of the Vessels and Closing Documents.
(a) The Seller shall deliver the Vessels on December 1, 1999, unless
such date is changed either (i) by a party hereto upon notice to the other to a
date on or before December 31, 1999 or (ii) by a party hereto after obtaining
consent from the other party, which such consent shall not be unreasonably
withheld, to a date after December 31, 1999, which such date shall not be later
than June 1, 2000 (herein called the "Closing Date"). The Seller shall use
reasonable efforts consistent with contractual requirements to position the
Vessels on the Closing Date at locations designated by Buyer.
(b) On the Closing Date, the Vessels shall be in the same condition as
when inspected by Buyer, ordinary wear and tear excepted.
(c) On the Closing Date, the Seller shall deliver to the Buyer:
(1) Duplicate originals of notarized Bills of Sale on Coast
Guard Form CG-1340 (the "Bills of Sale"), in form satisfactory to Buyer
for filing and recordation with the United States Coast Guard and
original Certificates of Documentation;
(2) Certified Abstracts of Title for the Vessels issued by the
United States Coast Guard at the National Vessel Documentation Center
dated no earlier than seven (7) days prior to the Closing Date showing
Seller to be the owner of the Vessels and that the Vessels are free and
clear of registered mortgages, liens and other encumbrances except for
those relating to Wilmington Trust Company;
(3) An Incumbency Certificate designating the officers of
Seller who are authorized to sign this Agreement, the Bills of Sale and
related documents and Resolutions or other authorizing documents to
demonstrate Seller's authority to enter into this Agreement, the Bills
of Sale, and other related documents;
(4) Confirmation of Class Certificates by the American Bureau
of Shipping issued no earlier than seven (7) days prior to the Closing
Date;
(5) Other technical documentation (including but not limited
to Classification Certificates and U.S. Coast Guard Certificates of
Inspection and plans) which may be in the Seller's possession on board
the Vessels;
(6) Other non-proprietary technical documentation, whether on
board or not on board, including plans, instruction books and manuals
which may be in Seller's possession, provided that Seller may keep the
Vessels' logbooks, but Buyer shall have the right to make copies of
same; and
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(7) Assignments of Charters and Contracts, or execution of
equivalent Charters and Contracts between Buyer and Seller, as
specified in Section 13 of this Agreement.
(d) On the Closing Date, the Buyer shall deliver to the Seller a bank
wire transfer of the balance of the cash portion of the Contract Price set forth
in Section 2(b) and the Note.
(e) On the Closing Date, the Buyer and the Seller shall complete and
sign a protocol of delivery and acceptance for the Vessels and such protocol of
delivery and acceptance shall be conclusive evidence of the time, date and place
of delivery of the Vessels on the Closing Date.
8. Termination.
This Agreement may be terminated by a party hereto upon notice to the
other (which notice shall specify the reason for termination) as follows:
(i) By Buyer, if Seller fails to execute and deliver the Bills
of Sale or deliver the Vessels to Buyer on or before the Closing Date or
otherwise fails to perform its obligations under this Agreement;
(ii) By Buyer or Seller, if government objections in response
to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx")
filing prevent the transfer of title to the Vessels or if the waiting period
under the HSR Act has not expired or been terminated on or before the Closing
Date, so long as required filings, complete in all respects, are made by the
party terminating pursuant to this clause prior to October 30, 1999;
(iii) By Seller, if Seller is unable to obtain consent from
its mortgagees to the sale of the listed assets consistent with the terms
herein;
(iv) By Buyer within two business days of receipt of the
Charters and Contracts specified in Section 13 if the terms of such Charters and
Contracts are not satisfactory to Buyer in its sole discretion;
(v) By Buyer, if Buyer has not received financing on or before
the Closing Date sufficient to fund the cash portion of the purchase price on
terms and conditions reasonably satisfactory to Buyer;
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(vi) By Seller, if Seller, in its sole discretion, is not
satisfied with the terms and/or security of the Note described in Section 2(c)
hereof and if Buyer shall not grant to Seller in its place a seven year 8.5%
First Preferred Ship Mortgage/Note secured by the Tug Clipper and Ocean 155
issued by Buyer to Seller on the Closing Date substantially in the form of
Attachment D hereto in the aggregate principal amount of $5,000,000.
If the Agreement is terminated pursuant to clauses (i), (ii), (iii), (iv) or
(vi) above, Seller shall immediately execute a direction to the Escrow Agent
directing the Escrow Agent to return the Deposit, including interest thereon as
set forth in the Escrow Agreement, but in no event later than five days after
delivery of such notice of termination. In addition, if the Agreement is
terminated pursuant to clause (iii) above, Seller shall pay to Buyer at the time
of delivery to Buyer of the termination notice, $250,000 as liquidated damages
for Buyer's time and expense in connection with the transactions contemplated
hereby.
9. Non-Compete.
(a) For a period of five years from and after the Closing Date, neither
Seller nor its affiliates shall, directly or indirectly, (i) own, manage,
operate, join, control or participate in the ownership, management, operation or
control of, or be connected as an officer, director, employee, stockholder,
partner, advisor, consultant or otherwise with, or provide any financing (other
than the (i) Note and seller financing of a portion of the purchase price in
connection with the sale by Seller of the vessels listed on Attachment E hereto
to the purchaser of such vessels or (ii) Seller financing or charter of the Tug
Unbelievable) or lease any vessels capable of carrying no more than 150,000
barrels, to any entity that engages in or intends to engage in the coastwise
petroleum trade in any state of the United States on the East Coast north of
Norfolk, Virginia, with barges capable of carrying no more than 150,000 barrels
except for or under contract with Buyer or its affiliates, or (ii) solicit,
retain as a consultant, interfere with or attempt to entice away from Buyer or
its affiliates any of their employees, or (iii) solicit, interfere with or
attempt to entice away from Buyer and its affiliates, any person, firm or
corporation which has been or is during the two-year period commencing on the
Closing Date a customer of Buyer or its affiliates for coastwise trade in any
state of the United States on the East Coast, north of Norfolk, Virginia, with
barges capable of carrying no more than 150,000 barrels except for or under
contract with Buyer or its affiliates. Ownership of not more than 2% of the
outstanding stock of any publicly traded company shall not be a violation of
this provision so long as the Seller and its affiliates do not participate in
the management of such company.
(b) For a period of five years from and after the Closing Date, neither
Buyer nor its affiliates shall (i) use any of the Vessels to engage in
lightering in Delaware Bay except for or under contract with Seller or its
affiliates or pursuant to the rights granted under Section 10 nor (ii) solicit,
retain as a consultant, interfere with or attempt to entice away from Seller or
its affiliates any of their employees.
(c) The length of time for which the covenants not to compete shall be
in force shall not include any period of violation or any other period required
for litigation during which Buyer or Seller, as the case may be, seeks to
enforce such covenant. In the event that such covenants not to compete contained
in this Section 9 shall be determined by any court of competent jurisdiction to
be unenforceable by reason of its extending for too long a period of time or
over too large a geographical area or by reason of its being too extensive in
any other respect, it shall be interpreted to extend only over the longest
period of time for which it may be enforceable, and/or over the largest
geographical area as to which it may be enforceable and/or to the maximum extent
in all other respects as to which it may be enforceable, all as determined by
such court in such action.
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10. Right of First Refusal. For a period of five years from the date of
Closing, in the event that Seller and it affiliates determine that they are
unable to perform any lightering work in Delaware Bay with their own vessels,
Seller agrees that it will give Buyer prompt notice of such lightering work
specifying in detail the work involved and the time frame required. Buyer shall
have the right to perform such work as a contractor for Seller at a rate of
$0.28 per barrel, so long as Buyer or its affiliates can provide such services
in the lot sizes and within the time frames required.
11. Seagoing Employees. Buyer and its affiliates agree to make offers
of employment on such terms and conditions as Buyer shall determine, to
substantially all seagoing employees designated by Seller, which shall include
the full complement of non-supervisory employees employed on or assigned to the
Vessels on the date of Closing, and the number of supervisory personnel as
stated in Attachment F. Nothing herein shall limit Buyer's ability to terminate
any of such employees at any time after they become employees of Buyer. Seller
agrees to use reasonable efforts to assist the Buyer in hiring crews to operate
the Vessels by providing a list of all seagoing employees employed on the
Vessels within 21 days of Closing (but in no event earlier than November 1,
1999), providing the opportunity to conduct pre-offer employment interviews, and
terminating the employment of any of Seller's employees employed on the Vessels
at the time of Closing. In addition, Seller will provide information on
employment applications that it has on file.
12. HSR. The parties hereto shall make all filings which may be
required by each of them in connection with the consummation of the transactions
contemplated hereby under the HSR Act prior to October 30, 1999. Each party
shall furnish to each other such necessary information and assistance as the
other party may reasonably request in connection with the preparation of any
necessary filings or submissions by it to any governmental agency, including,
without limitation, any filings necessary under the provisions of the HSR Act.
Each party shall provide the other parties hereto the opportunity to make copies
of all correspondence, filings or communications (or memoranda setting forth the
substance thereof) between such party or its representatives, on the one hand,
and the Federal Trade Commission, the Antitrust Division of the United States
Department of Justice or members of their respective staffs, on the other hand,
with respect to this Agreement or the transactions contemplated hereby.
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13. Existing Contracts and Charters.
Seller agrees to assign to Buyer or an affiliate of Buyer the following
contracts or charters (copies of which are attached hereto as Attachment G)
relating to the Vessels (which contracts and charters constitute all of the
contracts and charters relating to the Vessels), subject to Seller obtaining the
consent, if required, of the contracting party/charterer (a "Third Party
Consent"), or, if assignment cannot be obtained, Seller agrees to enter into
equivalent contract or charter arrangements with Buyer or an affiliate of Buyer
for the work covered by the listed contracts and charters so that Buyer or an
affiliate of Buyer will realize the same economic benefits as Buyer or an
affiliate of Buyer would if the contract or charter had been assigned directly
to Buyer or an affiliate of Buyer:
(a) Bareboat charter of the INTERSTATE 70
(b) SUNOCO: New York Harbor and Albany, Contract of Affreightment
(c) EQUIVA: Delaware City to New England, Contract of Affreightment
(d) EQUIVA: New York Harbor to Bridgeport Contract of Affreightment
(e) MORANIA: Asphalt Requirements Contract
(f) TOSCO: Ocean 155 & Clipper Time Charter
Buyer understands that the agreements listed in subsections (c) and (d) hereof
(the "Equiva Agreements") currently are not in existence, and that the terms of
such agreements are reflected in a single agreement, a copy of which will be
provided to Buyer pursuant to this Section. Seller will enter into the Equiva
Agreements on or before the Closing Date, pursuant to the terms of the current
agreement, but modified with respect to geographical limits, as specified in
subsections (c) and (d) hereof.
14. Damage to or Destruction of any Vessel.
Seller shall bear the risk of loss of a Vessel prior to the Closing
Date. In the event that a Vessel shall suffer an actual or constructive or
agreed upon total loss or damage beyond repair after the execution of this
Agreement but before the Closing Date, then, the Contract Price shall be reduced
by an amount equal to the insured value for such Vessel under Seller's insurance
policies as in existence on the date hereof. In the event that a Vessel shall
suffer repairable damage requiring repairs in excess of $25,000 after the
execution of this Agreement but before the Closing Date, Seller shall notify
Buyer and shall either repair such damage or such Vessel shall be deemed to be
destroyed and shall be treated in accordance with the preceding sentence. Any
reduction in the Contract Price pursuant to this Section 13 shall be applied
first against the principal amount of the Note and second against the cash
portion of the Contract Price.
15. Vessel Markings.
Buyer agrees to change the names of the Vessels and alter the stack
insignias of the Vessels as soon as practicable after Closing, and to change the
color scheme and other vessel markings identifying Seller within nine (9) months
after the Closing Date.
16. Expenses.
Buyer and Seller shall each bear their own expenses (including
attorneys fees and expenses) necessary or appropriate to effect the sale and
purchase of the Vessels, provided that all expenses relating to the Coast Guard
documentation of the Vessels in the name of Buyer shall be borne by Buyer.
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17. Commissions.
The Seller and Buyer each represents and warrants that there are no
commissions or other consideration payable to any individual, firm or
corporation in connection herewith. Each party hereto agrees to indemnify and
save harmless the other party from and against the claims or demands of any
individual, firm or corporation claiming to have been employed by or to have
dealt with such indemnifying party in connection herewith.
18. Notices.
All notices and other communications hereunder shall be in writing and
shall be delivered in person or by registered or certified mail, postage
prepaid, or by facsimile.
If to the Seller, they shall be addressed to it as follows:
Maritrans Operating Partners L.P.
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Buyer, they shall be addressed to it as follows:
K-Sea Transportation LLC
0000 Xxxxxxxx Xxxxxxx
X.X. Xxx 000000
Xxxxxx Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as either party shall have designated in writing for
such purpose.
19. Confidentiality.
This Agreement and the terms and conditions contained herein shall be
and remain strictly privileged and confidential between the parties, and shall
not be discussed, revealed, disseminated or divulged to the media or general
public, or to any other third party, without the express prior written consent
of the other party, which consent shall not be unreasonably withheld; except
that (i) any party may disclose any relevant term to any of its affiliates,
underwriters, financing sources, members, rating agencies and counsel and (ii)
any party may make any disclosure required by generally accepted accounting
principles, by applicable law or regulation or by an order of a court or other
governmental agency.
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20. Governing Law.
This Agreement shall be governed by the general maritime law of the
United States to the extent applicable and thereafter by the law of the
Commonwealth of Pennsylvania without regard to the principles of conflicts of
laws. Each party consents to the non-exclusive jurisdiction of the U.S. District
Court for the Eastern District of Pennsylvania. Except for appeals to a court
for injunctive or other non-monetary equitable relief, any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration in Philadelphia, Pennsylvania in accordance with the
rules of the American Arbitration Association. The dispute shall be referred to
three arbitrators, one to be appointed by each of the parties and the third to
be mutually agreed upon by the parties. In the event that the parties cannot
agree to an arbitrator, one shall be appointed by agreement of the two
previously-selected arbitrators, chosen from a list of arbitrators submitted by
the American Arbitration Association. The decision of all of the arbitrators or
any two of the arbitrators shall be final and binding upon the parties and
judgment upon any award rendered thereof.
21. Miscellaneous.
No party hereto shall assign any of its rights or obligations under
this Agreement without the prior written consent of the other party; provided,
however, that Buyer may assign this Agreement or any rights hereunder to an
affiliate of Buyer and as collateral security to its financing sources. This
Agreement and all the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be amended, waived or otherwise modified except
in writing signed by the parties hereto. This Agreement may be executed by the
parties hereto in separate counterparts, which together shall constitute a
binding agreement. One or more counterparts of this Agreement may be delivered
by telecopier with the intention that they shall have the same effect as an
original counterpart hereof. Except as otherwise specifically provided herein,
and except for the existing Confidentiality Agreement between Maritrans and F.S.
Private Investments LLC dated 9 September 1999, which Agreement is binding on
Buyer, this Agreement, the Bills of Sale and the other agreements contemplated
hereby contain the entire agreement of the parties with respect to the subject
matter hereof, and supersede all prior agreements and understandings between the
parties, whether written or oral.
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WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or agents thereunto duly authorized, as of
the day and year first above written.
MARITRANS OPERATING PARTNERS L.P., Seller
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President
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K-SEA TRANSPORTATION LLC, Buyer
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President
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