EXECUTION COPY
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
CAL DIVE INTERNATIONAL, INC.,
AS BUYER,
AND
TORCH OFFSHORE, INC.,
TORCH OFFSHORE L.L.C.,
AND
TORCH EXPRESS, L.L.C.,
AS SELLERS
JUNE 9, 2005
TABLE OF CONTENTS
Article I DEFINITIONS................................................................................... 2
Article II PURCHASE AND SALE OF SUBJECT ASSETS; THE CLOSING.............................................. 10
2.1 Sale and Purchase............................................................................. 10
2.2 Excluded Assets............................................................................... 10
2.3 Assumption of Liabilities..................................................................... 10
2.4 Excluded Liabilities.......................................................................... 11
2.5 The Closing................................................................................... 12
Article III PURCHASE PRICE; SECURITY DEPOSIT.............................................................. 12
3.1 Purchase Price................................................................................ 12
3.2 Security Deposit.............................................................................. 12
Article IV CLOSING DELIVERIES............................................................................ 13
4.1 Closing Deliveries of Sellers................................................................. 13
4.2 Closing Deliveries of Buyer................................................................... 14
Article V REPRESENTATIONS OF BUYER...................................................................... 14
5.1 Organization, Power and Status of Buyer....................................................... 14
5.2 Authorization, Enforceability, Execution and Delivery......................................... 14
5.3 No Conflicts; Laws and Consents; No Default................................................... 15
5.4 Financing..................................................................................... 15
Article VI REPRESENTATIONS OF SELLERS.................................................................... 15
6.1 Organization, Power and Status of Seller...................................................... 15
6.2 Authorization, Enforceability, Execution and Delivery......................................... 16
6.3 No Conflicts; Laws and Consents; No Default................................................... 16
6.4 Taxes......................................................................................... 16
6.5 Property; Title; Sufficiency.................................................................. 17
6.6 Legal Proceedings............................................................................. 18
6.7 Compliance with Laws; Permits................................................................. 18
6.8 Environmental Matters......................................................................... 19
6.9 Assumed Contracts............................................................................. 20
Article VII SURVIVAL; EXCLUSION OF WARRANTIES; NO ASSUMPTION OF LIABILITIES; EMPLOYEES.................... 21
7.1 Survival...................................................................................... 21
7.2 Exclusion of Warranties....................................................................... 21
7.3 No Assumption of Liabilities.................................................................. 21
7.4 No Obligation for Employees................................................................... 21
Article VIII CONDITIONS TO CLOSING......................................................................... 22
8.1 Buyer's Conditions Precedent.................................................................. 22
8.2 Sellers' Conditions Precedent................................................................. 23
Article IX SELLERS' BANKRUPTCY........................................................................... 23
9.1 Procedure for Approval of Transaction......................................................... 23
9.2 Condition to Closing Relating to Bankruptcy................................................... 27
Article X COVENANTS; TRANSFER OF TITLE AND DELIVERY OF VESSELS.......................................... 27
10.1 Covenants with Respect to Conduct Prior to Closing............................................ 27
10.2 Transfer of Title............................................................................. 29
10.3 Inspections and Due Diligence................................................................. 29
10.4 Notices; Time and Place of Delivery........................................................... 29
10.5 Buyer Responsibilities Upon Delivery.......................................................... 29
10.6 Delivery Procedure............................................................................ 29
10.7 Spares, etc................................................................................... 29
Article XI TAXES......................................................................................... 29
11.1 Responsibility for Taxes...................................................................... 29
11.2 Cooperation on Tax Matters.................................................................... 30
11.3 Preparation of Allocation Schedule............................................................ 30
Article XII DISPUTE RESOLUTION; SERVICE; GOVERNING LAW.................................................... 31
12.1 Dispute Resolution; Service of Process; Waiver of Jury Trial.................................. 31
12.2 Governing Law................................................................................. 32
Article XIII TERMINATION................................................................................... 32
13.1 Termination................................................................................... 32
13.2 Procedure Upon Termination.................................................................... 33
13.3 Effect of Termination......................................................................... 33
Article XIV MISCELLANEOUS PROVISIONS...................................................................... 34
14.1 Amendments and Waivers........................................................................ 34
14.2 Severability.................................................................................. 34
14.3 Notices....................................................................................... 34
14.4 Captions...................................................................................... 36
ii
14.5 No Partnership................................................................................ 36
14.6 Counterparts; Delivery by Facsimile........................................................... 36
14.7 General Interpretive Principles............................................................... 36
14.8 Punitive, Consequential, and Special Damages.................................................. 36
14.9 Further Assurances............................................................................ 37
14.10 Entire Agreement.............................................................................. 37
14.11 Finders or Broker's Fees...................................................................... 37
14.12 Binding Effect; Assignment.................................................................... 37
14.13 Publicity..................................................................................... 37
Sellers' Schedules
Schedule 6.3(a) -- Conflicts
Schedule 6.4 -- Taxes
Schedule 6.5(b) -- Licensed Software
Schedule 6.6 -- Legal Proceedings
Schedule 6.7(a) -- Compliance with Laws
Schedule 6.7(b)(i) -- Permits
Schedule 6.7(b)(ii) -- Exceptions to Permits
Schedule 6.8 -- Environmental Matters
Schedule 9.1(e) -- Break-Up Fee Assets Allocations
Exhibits
Exhibit A-1 Break-Up Fee Assets
Exhibit A-2 Additional Assets
Exhibit A-3 Excluded Vessels and Equipment
Exhibit B Patents
Exhibit C Form of ▇▇▇▇ of Sale
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form of Patent Assignment
Exhibit F Form of Power of Attorney
Exhibit G Form of Protocol of Delivery and Acceptance
iii
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this "Agreement") is
entered into as of June 9, 2005, by and between Cal Dive International, Inc., a
Minnesota corporation ("Buyer"), and Torch Offshore, Inc., a Delaware
corporation ("Torch"), Torch Offshore, L.L.C., a Delaware limited liability
company ("Offshore"), and Torch Express, L.L.C., a Louisiana limited liability
company ("Express", with Torch and Offshore, each a "Seller" and collectively,
"Sellers"). Buyer and each Seller are sometimes individually referred to as a
"Party" and collectively as the "Parties."
WITNESSETH:
WHEREAS, the Parties entered into an Asset Purchase Agreement, dated
as of April 1, 2005 (the "Original Agreement"), in order to provide for the
purchase of certain assets and properties of the Sellers by Buyer;
WHEREAS, the Original Agreement was amended and restated pursuant to
the Amended and Restated Asset Purchase Agreement, dated as of May 2, 2005 (as
amended, modified and supplemented prior to the date hereof, the "Prior
Restatement") to reflect agreed amendments, modifications and supplements to the
Original Agreement, and the Prior Restatement was further specifically amended,
modified and supplemented by a letter agreement dated as of May 5, 2005;
WHEREAS, the Parties desire to further amend and restate the
Original Agreement and the Prior Restatement in entirety to reflect and provide
for the application of the terms and conditions set forth in this Agreement;
WHEREAS, Sellers are the owners of (i) the six (6) marine vessels
and the related and associated assets thereto that are described on Exhibit A-1
hereto and (ii) the one (1) marine vessel and the related and associated assets
thereto that are described on Exhibit A-2 hereto (such vessels and assets as
described in Exhibit A-1 and Exhibit A-2 collectively comprising the "Subject
Assets");
WHEREAS, on January 7, 2005 (the "Petition Date"), Torch, Offshore
and Express petitioned the United States Bankruptcy Court for the Eastern
District of Louisiana for relief under chapter 11 of title 11 of the United
States Code (which such proceedings are being jointly administered under Case
No. 05-10137 ("B")); and
WHEREAS, Sellers desire to sell, transfer and assign to Buyer or its
designated Affiliate or Affiliates, and Buyer desires to (or to cause its
designated Affiliate or Affiliates to) acquire from Sellers, all of the Subject
Assets, all as more specifically provided herein;
In consideration of the mutual covenants and agreements herein
contained, and of other valuable consideration, the receipt of which is hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms employed in this Agreement have the meanings set forth as
follows:
"Action" means any action, motion, application, complaint, hearing,
investigation, petition, suit or other proceeding, whether in law or in equity,
or before any arbitrator or Governmental Authority.
"Additional Assets" means that vessel and the related and associated
assets thereto described on Exhibit A-2.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person, and the term
"control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
ownership of voting securities, by contract or otherwise
"Agreement" has the meaning set forth in the Preamble.
"Approval Order" means a Final Order or Final Orders of the Bankruptcy
Court, in form and substance reasonably acceptable to Buyer that, among other
things, (i) approves, pursuant to sections 363(b) and 363(f) of the Bankruptcy
Code, (A) the execution, delivery and performance by Sellers of this Agreement,
and the other instruments and agreements contemplated hereby, (B) the sale of
the Subject Assets free and clear of any and all Liens (other than Permitted
Exceptions) to Buyer on the terms set forth herein, and (C) the performance by
each of Sellers and Buyer of its respective obligations under this Agreement;
and (ii) finds that Buyer is a "good faith" purchaser within the meaning of
section 363(m) of the Bankruptcy Code, and which such Order or Orders shall be
in full force and effect and shall not have been modified or amended in any
respect.
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Auction" means the Bankruptcy Court auction for the Subject Assets held
in accordance with the Scheduling Order.
"Bankruptcy Case" means Sellers' chapter 11 cases currently pending before
the Bankruptcy Court as jointly administered under Case No. 05-10137 ("B").
"Bankruptcy Code" means Title 11 of the United States Code, as heretofore
and hereafter amended, and codified as 11 U.S.C. section 101, et seq., or any
successor statute, and applicable federal and local rules of bankruptcy
procedure thereunder.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Eastern District of Louisiana or any other court having jurisdiction over the
Bankruptcy Case.
2
"Bidding Procedures" has the meaning ascribed to such term in the
Scheduling Order.
"Break-Up Fee" has the meaning set forth in Section 9.1(e)(i).
"Break-Up Fee Assets" means those vessels and the related and associated
assets thereto described Exhibit A-1.
"Business Day" means any day of the year on which national banking
institutions in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ and New Orleans, Louisiana
are open to the public for conducting business and are not required or
authorized to close.
"Buyer" has the meaning set forth in the Preamble.
"Classification Society" or "Class" means that "classification society" or
"class" referred to in Exhibit A.
"Closing" has the meaning set forth in Section 2.5.
"Closing Date" has the meaning set forth in Section 2.5.
"Code" means the Internal Revenue Code of 1986, as amended.
"Competing Transaction" means any sale or other disposition of all or a
portion of the Break-Up Fee Assets to a Person other than Buyer.
"Contract" means any contract, agreement, indenture, note, bond, loan,
instrument, lease, commitment or other arrangement or agreement, whether written
or oral.
"Credit Bid" means a bid by either Regions Bank or Export Development
Canada for purchase of all or any portion of the Break-Up Fee Assets pursuant to
Section 363(k) of the Bankruptcy Code providing that the sole consideration for
such purchase shall be claims of such bidder against the Sellers and their
estates.
"Cure Amount" means the aggregate of all cure amounts described in Section
9.1(h) and approved by the Bankruptcy Court pursuant to section 365(b) of the
Bankruptcy Code.
"Cure Payment" means: (i) if the Cure Amount is equal to or less than One
Million Dollars ($1,000,000), the Cure Amount; or (ii) if the Cure Amount is in
excess of One Million Dollars ($1,000,000), an amount equal to (a) One Million
Dollars ($1,000,000) plus (b) an amount equal to fifty percent (50%) of the
amount by which the Cure Amount exceeds One Million Dollars ($1,000,000).
"Employee" means any individual who is employed by Sellers in connection
with the operation of the Subject Assets, including, without limitation, any
individual who is hired prior to the Closing Date in respect of the operation of
the Subject Assets after the date hereof.
3
"Environmental Costs and Liabilities" means, with respect to any Person,
all liabilities, obligations, responsibilities, Remedial Actions, losses,
damages, punitive damages, consequential damages, treble damages, costs and
expenses (including all reasonable fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim or
demand by any other Person or in response to any violation of Environmental Law,
whether known or unknown, accrued or contingent, whether based in contract,
tort, implied or express warranty, strict liability or criminal or civil
statute, to the extent based upon, related to, or arising under or pursuant to
any applicable Environmental Law or applicable Environmental Permit (including
an order or agreement with any Governmental Authority or other Person under an
applicable Environmental Law), violation of applicable Environmental Law or a
Release or threatened Release of Hazardous Materials.
"Environmental Law" means any applicable international, transnational,
foreign, federal, state or local statute, regulation, ordinance, rule of common
law or other legal requirement as now in effect in any way relating to the
protection of human health and safety from Hazardous Materials, the environment
or natural resources, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601
et seq.), the Hazardous Materials Transportation Act (49 U.S.C. App. Section
1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean
Air Act (42 U.S.C. Section 7401 et seq.) the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 136 et seq.) (to the extent it regulates
Hazardous Materials), and the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), as each has been or may be amended and the regulations
promulgated pursuant thereto.
"Environmental Permit" means any Permit required by applicable
Environmental Laws for the ownership, use or operation of the Subject Assets.
"Escrow Agent" means JPMorgan Chase Bank, N.A.
"Escrow Agreement" has the meaning set forth in Section 3.2(a); provided,
however, that any reference in such Escrow Agreement to the "Asset Purchase
Agreement, dated as of April 1, 2005" or the "Purchase Agreement" shall be
deemed for all purposes thereof to be a reference to this Agreement (and the
amendment and restatement effected herein).
"Equipment" means all furniture, fixtures, furnishings, equipment
(including all SAT systems and support equipment), improvements and other
tangible personal property owned by Sellers for the use of the Vessels and
located on the Vessels or located at the Sellers' Dulac, Louisiana, fabrication
yard, including all artwork, desks, chairs, tables, Hardware, copiers, telephone
lines and numbers, telecopy machines and other telecommunication equipment and
miscellaneous furnishings and supplies and, without limitation, with respect to
any Vessel (i) said Vessel's machinery, engines, lay installation equipment,
towers, reels, cranes, tensioners, spares, motors, generators, riggings,
attachments, accessories, fixtures, replacement parts, consumables, fuel, oil,
and all other appurtenances associated with the Vessels, whether located on the
Vessels or at shore based facilities; (ii) all surveys, inspection records,
safety logs and
4
maintenance and navigation records, vessel logs, engineering logs, documents
relating to Class and as-built and design drawings relating to each of the
Vessels; (iii) all owner's and operator's manuals related to, or used or usable
by each of the Vessels; (iv) all construction and diving equipment including,
but not limited to, ▇▇▇▇▇▇▇▇, hydraulic units, hydraulic tools, tool
compressors, dive compressors, jet pumps, positive displacement pumps,
centrifugal pumps, dive hoses, video equipment, recorders, welding equipment,
engines, jet hoses, air tools and hand tools whether located at shore-based
facilities or on the Vessels; and (v) all equipment used to support loading and
unloading the Vessels, including, without limitation, cranes, fork lifts, cherry
pickers, conex boxes, supply baskets, trucks, trailers, and vans whether located
at shore-base facilities or on the Vessels.
"Excluded Assets" means all property and assets of Sellers other than the
Subject Assets, including, without limitation, those vessels and related
equipment described on Exhibit A-3 hereto, the accounts receivable of Sellers
and any Contracts, choses in action or other legal or equitable rights of
Sellers and their bankruptcy estates other than the Warranties and the Purchased
Contracts.
"Excluded Liabilities" has the meaning set forth in Section 2.4.
"Expense Reimbursement" has the meaning set forth in Section 9.1(e)(ii).
"Express" has the meaning set forth in the Preamble.
"Final Order" means a judgment, order or decree of the relevant
Governmental Authority that has not been reversed, stayed, enjoined, set aside,
annulled, vacated or suspended and, with respect to any judgment, order or
decree of the Bankruptcy Court, any waiting period prescribed by Law before the
transactions contemplated hereby may be consummated has expired.
"Governmental Approval" means any authorization, consent, approval,
license, franchise, ruling, permit, tariff, rate, certification, exemption,
filing or registration by or with any Governmental Authority relating to the
ownership of the Subject Assets or to the execution, delivery or performance of
this Agreement, including without limitation any applicable consents and
approvals required under the HSR Act.
"Governmental Authority" means any international or transnational
regulatory or administrative authority, any national, state or local government,
or any political subdivision or instrumentality thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any other Governmental Authority
with authority over Buyer or Sellers, the operation of the Vessels or any of the
other Subject Assets.
"Hardware" means any and all computer and computer-related hardware,
including, but not limited to, computers, file servers, facsimile servers,
scanners, color printers, laser printers and networks.
5
"Hazardous Material" means any substance, material or waste that is
listed, classified, or otherwise regulated under or pursuant to any applicable
Environmental Law as "hazardous," "toxic," "pollutant," "contaminant,"
"radioactive," or words of similar meaning or effect, including, without
limitation, petroleum and its by-products, asbestos, polychlorinated biphenyls,
radon, and urea formaldehyde insulation.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person means, without duplication, (i) the principal
of and premium (if any) in respect of (A) indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person and
all obligations of such Person under any title retention agreement; (iii) all
obligations of such Person under leases required to be capitalized in accordance
with generally accepted accounting principles; (iv) all obligations of such
Person for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (v) the liquidation value of all
redeemable preferred stock of such Person; (vi) all obligations of the type
referred to in clauses (i) through (v) of any Persons for the payment of which
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor, surety or otherwise, including guarantees of such obligations; and
(vii) all obligations of the type referred to in clauses (i) through (vi) of
other Persons secured by any Lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person).
"Inventory" means all inventory of Sellers, including all merchandise, raw
materials, supplies and other tangible personal property, used or held for use
in connection with the operation of the Vessels.
"Knowledge" means actual knowledge, after reasonable inquiry, of the
officers of the Party being held responsible for such knowledge.
"Law" means any applicable international or transnational, foreign,
federal, state or local law (including common law), statute, rule, regulation,
ordinance, order, code, treaty or other legally binding requirement, in effect
now or as of the Closing Date, including any judicial or administrative order,
consent decree or judgment.
"Legal Proceeding" means any judicial, administrative or arbitral actions,
suits, proceedings (public or private) or claims or any proceedings by or before
a Governmental Authority.
"Liability" means any debt, loss, damage, adverse claim (including claims
as defined in the Bankruptcy Code), liability, royalty, deficiency or obligation
(whether direct or indirect, known or unknown, asserted or unasserted, absolute
or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to
become due, and whether in contract, tort, strict liability or otherwise), and
including all costs and expenses relating thereto.
6
"Licensed Software" means Software formally licensed to any of the Sellers
via a written license agreement governing the terms of use of said Software and
which is material for the use and operation, or prospective use and operation,
of the Subject Assets.
"Lien" means any mortgage, lien (statutory or other, and including all
"Liens" defined in the Bankruptcy Code), pledge, security interest or interest
of ownership, encumbrance, deed of trust, hypothecation, assignment for
security, claim, lease, charge, option, right of first refusal, easement,
servitude, proxy, voting trust or agreement, transfer restriction or deposit
arrangement or other security agreement or adverse claim to ownership of the
Vessels or the other Subject Assets of any kind or nature whatsoever, whether
recorded or unrecorded.
"Material Adverse Effect" means (i) a material adverse effect on the
condition, utilization or value of the Subject Assets or (ii) a material adverse
effect on the ability of Sellers to consummate the transactions contemplated by
this Agreement or perform their obligations under this Agreement.
"Offshore" has the meaning set forth in the preamble.
"Order" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award of a Governmental Authority, including, without
limitation, any order entered by the Bankruptcy Court in the Bankruptcy Case.
"Outside Date" has the meaning set forth in Section 13.1(c).
"Patents" means the patents and patent applications listed on Exhibit B
attached hereto and made a part hereof.
"Permitted Exceptions" means (i) all defects, exceptions, restrictions,
easements, rights of way and encumbrances disclosed in policies of title
insurance which have been made available to Buyer; (ii) statutory liens for
current Taxes, assessments or other governmental charges not yet delinquent or
the amount or validity of which is being contested in good faith by appropriate
proceedings provided an appropriate reserve is established therefor; (iii)
mechanics', carriers', workers', repairers' and similar Liens arising or
incurred in the ordinary course of business that are not material to the
operations and condition of the Subject Assets so encumbered and that are not
resulting from a breach, default or violation by any Seller of any Contract or
Law; (iv) zoning, entitlement and other land use and environmental regulations
of any Governmental Authority provided that such regulations have not been
violated; and (v) such other imperfections in title, charges, easements,
restrictions and encumbrances which do not materially detract from the value of
or materially interfere with the present use of any Subject Assets subject
thereto or affected thereby.
"Permit" means any approval, authorization, consent, license, permit,
franchise, certificate or Order of a Governmental Authority, or any waiver of
the foregoing, necessary or appropriate for the operation and present use of the
Subject Assets or for the transfer of the Subject Assets.
7
"Person" means an individual, a partnership, a corporation, a joint
venture, an unincorporated association, a joint-stock company, a trust, a
limited liability company, or other entity or a Governmental Authority or any
agency or political subdivision thereof.
"Petition Date" has the meaning assigned to such term in the recitals of
this Agreement.
"Prior Restatement" has the meaning assigned to such term in the recitals
of this Agreement.
"Protocol of Delivery and Acceptance" has the meaning set forth in Section
10.6.
"Purchase Price" has the meaning set forth in Section 3.1.
"Purchased Contracts" means those Contracts identified under the heading
"Purchased Contracts" on Exhibit A-1 hereto, which such Contracts shall comprise
a part of and be included in the Subject Assets, but only to the extent that
such Contracts are:
(i) executory contracts or unexpired leases that are able to
be assumed and assigned by Sellers under applicable Law; and
(ii) relate to goods or services that are necessary, required
or reasonably appropriate for the use, maintenance and operation of
the Subject Assets;
provided, however, that the "Purchased Contracts" shall be "None" in the event
that the M/V Midnight Express is not included among the vessels that Buyer
purchases from Sellers and, in such event, the Buyer shall have no obligation
for any payment of any cure amounts with respect to those Contracts identified
under the heading "Purchased Contracts" on Exhibit A-1 hereto.
"Release" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, or leaching of Hazardous Material into
the environment.
"Remedial Action" means all actions to (i) clean up, remove, treat or in
any other way address any Release of Hazardous Material; (ii) prevent the
threatened Release of any Hazardous Material so it does not endanger or threaten
to endanger public health or welfare or the environment; (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care
associated with a Release of Hazardous Material; or (iv) correct a condition of
noncompliance with applicable Environmental Laws.
"Sale Hearing" means the hearing to be conducted by the Bankruptcy Court
to consider approval and entry of the Approval Order.
"Sale Motion" means the motion or motions of Sellers filed with the
Bankruptcy Court on April 6, 2005 seeking approval and entry of the Approval
Order and scheduling of the Sale Hearing, with any modifications, amendments or
supplements thereto that are reasonably acceptable to Buyer.
8
"Scheduling Hearing" means the hearing scheduled and conducted by the
Bankruptcy Court on April 27, 2005 and subsequent thereto to consider approval
of the Break-Up Fee and Expense Reimbursement, and issuance of the Scheduling
Order.
"Scheduling Motion" means the motion of Sellers filed with the Bankruptcy
Court on April 6, 2005 seeking setting of the Scheduling hearing and approval of
the Scheduling Order, with any modifications, amendments or supplements thereto
that are reasonably acceptable to Buyer.
"Scheduling Order" means that certain Order (A) Approving Bidding
Procedures for Submission and Acceptance of Competing Bids, and Under Certain
Circumstances, Payment of a Break-Up Fee and Expense Reimbursement to Cal Dive
International, Inc.; (B) Scheduling Bidding Deadline, Auction Date and Sale
Hearing Date; (C) Establishing Procedure for Determining Cure Amounts; and (D)
Fixing Notice Procedures and Approving Form of Notice, as approved and entered
by the Bankruptcy Court on May 6, 2005, and any amendments, modifications or
supplements thereto that are reasonably acceptable to Buyer.
"Security Deposit" has the meaning set forth in Section 3.2.
"Seller" and "Sellers" have the meanings set forth in the preamble.
"Software" means computer software programs, whether in source code,
object code or human readable form; provided, however, that Software does not
include any (i) computer software program that is subject to "shrink-wrap"
license or "click-through" agreements, or (ii) computer software program that is
commercially available to the general consuming public in exchange for a license
or purchase fee of Five Thousand Dollars ($5,000.00) or less.
"Subject Assets" have the meaning set forth in the recitals to this
Agreement. In the interest of clarity, the Subject Assets do not include the
Excluded Assets.
"Tax" or "Taxes" means (i) any and all federal, state, local or foreign
taxes, charges, fees, imposts, levies or other assessments, including, without
limitation, all net income, gross receipts, capital, sales, use, ad valorem,
value added, transfer, franchise, profits, inventory, capital stock, license,
withholding, payroll, employment, social security, unemployment, excise,
severance, stamp, occupation, property and estimated taxes, customs duties,
fees, assessments and charges of any kind whatsoever, and (ii) all interest,
penalties, fines, additions to tax or additional amounts imposed by any Taxing
Authority in connection with any item described in clause (i), and (iii) any
liability in respect of any items described in clauses (i) and/or (ii) payable
by reason of contract, assumption, transferee liability, operation of law,
Treasury Regulation section 1.1502-6(a) (or any predecessor or successor thereof
of any analogous or similar provision under law) or otherwise.
"Taxing Authority" means the IRS and any other Governmental Authority
responsible for the administration of any Tax.
"Tax Return" means any return, report or statement required to be filed
with respect to any Tax (including any attachments thereto, and any amendment
thereof) including, but not
9
limited to, any information return, claim for refund, amended return or
declaration of estimated Tax, and including, where permitted or required,
combined, consolidated or unitary returns for any group of entities that
includes the Sellers, any of their respective subsidiaries, or any of their
respective Affiliates.
"Termination Date" has the meaning set forth in Section 13.1.
"Torch" has the meaning set forth in the preamble.
"Transaction" means the purchase, sale and assignment of the Subject
Assets, along with any other transactions contemplated in this Agreement or
related thereto.
"Transferred Permits" means the respective Permits listed on Exhibits A-1
and A-2 attached hereto and made a part hereof, which such Permits are a part
of, and included in, the Subject Assets.
"Vessels" means the respective marine vessels identified on Exhibits A-1
and A-2 attached hereto and made a part hereof.
"Warranty" any warranty, representation or guaranty of any Person other
than Sellers (including, without limitation, any supplier, manufacturer or
contractor), whether express or implied, or for the design, quality, condition,
merchantability, seaworthiness or fitness for a particular purpose, with respect
to the design, manufacture, assembly, repair, maintenance, delivery or
installation of Subject Assets, or services rendered thereon or in connection
therewith, by any such Person.
ARTICLE II
PURCHASE AND SALE OF SUBJECT ASSETS; THE CLOSING
2.1 Sale and Purchase. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, Sellers shall sell, transfer, convey,
assign and deliver to Buyer, and Buyer shall (or shall cause its designated
Affiliate to) purchase, acquire and accept from Sellers, all of the Sellers'
right, title and interest in, to and under the Subject Assets, free and clear of
Liens except for Permitted Exceptions.
2.2 Excluded Assets. Nothing herein contained shall be deemed to sell,
transfer, assign or convey the Excluded Assets to Buyer, and Sellers shall
retain all right, title and interest to, in and under the Excluded Assets.
2.3 Assumption of Liabilities. On the terms and subject to the conditions
set forth in this Agreement, at the Closing, Buyer shall (or shall cause its
designated Affiliate or Affiliates to) assume, effective as of the Closing, all
Liabilities of Sellers under the Purchased Contracts and Transferred Permits
that arise out of or relate to performance thereunder or use and operation of
the Subject Assets in respect thereof from and after the Closing Date
(collectively, the "Assumed Liabilities").
10
2.4 Excluded Liabilities. Buyer will not assume or be liable for any
Excluded Liabilities. "Excluded Liabilities" shall mean all Liabilities arising
out of, relating to or otherwise in respect of the ownership, use or operation
of the Subject Assets on or before the Closing Date and, other than the Assumed
Liabilities, all other Liabilities of Sellers (whether known or unknown or
asserted or unasserted as of the Closing Date and irrespective of when any claim
in respect thereof shall be made), including, without limitation, the following
Liabilities:
(a) all Liabilities in respect of any and all products sold and
services performed by Sellers on or before the Closing Date;
(b) all Environmental Costs and Liabilities to the extent arising
out of, relating to or otherwise in respect of the ownership, use or
operation of the Subject Assets (or any condition thereon) on or before
the Closing Date, including, without limitation, any (i) Release or
continuing Release (if existing as of the Closing) of any Hazardous
Material, regardless of by whom or (ii) any noncompliance with applicable
Environmental Laws;
(c) all Liabilities arising out of, relating to or with respect to
(i) the employment or performance of services, or termination of
employment or services by Sellers or any of its Affiliates of any Person
on or before the Closing Date, (ii) workers' compensation claims relating
to the Sellers or the use and operation of the Subject Assets on or before
the Closing Date, irrespective of whether such claims are made prior to or
after the Closing or (iii) any employee benefit plan of Sellers or any of
their respective Affiliates or subsidiaries;
(d) all Liabilities arising out of, under or in connection with
Contracts that are not Purchased Contracts and, with respect to Purchased
Contracts, Liabilities (other than in respect of the payment of the Cure
Payment in accordance with Section 4.2(b)) in respect of any performance,
obligations, breach by or default accruing under such Contracts with
respect to any period prior to Closing;
(e) all Liabilities arising out of, under or in connection with any
Indebtedness of Sellers;
(f) all Liabilities for (i) Taxes of Seller, (ii) Taxes that relate
to the Subject Assets or the Assumed Liabilities for taxable periods (or
portions thereof) ending on or before the Closing Date, and (iii) payments
under any Tax allocation, sharing or similar agreement (whether oral or
written);
(g) all Liabilities in respect of any pending or threatened Legal
Proceeding, or any claim arising out of, relating to or otherwise in
respect of (i) the ownership, use or operation of the Subject Assets to
the extent such Legal Proceeding or claim relates to such ownership, use
or operation on or prior to the Closing Date, or (ii) any Excluded Asset;
(h) any and all Liabilities of Sellers that are discharged pursuant
to Section 1141(d)(1) of the Bankruptcy Code or any Order of the
Bankruptcy Court; and
11
(i) any and all Liabilities of Sellers other than Assumed
Liabilities, the collection of which has been permanently enjoined by an
Order of the Bankruptcy Court or by any applicable provision of the
Bankruptcy Code (including, without limitation, Section 524 of the
Bankruptcy Code).
2.5 The Closing. The closing of the purchase and sale of the Subject
Assets (the "Closing") will take place at a time agreed by the Parties, during
normal business hours at the offices of Heller, Draper, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇,
L.L.C. in New Orleans, Louisiana, or at such other venue as Sellers and Buyer
mutually agree. The Parties shall use all reasonable efforts to cause the
Closing to occur on the date no later than three (3) Business Days following the
date on which all conditions to Closing hereunder are satisfied or waived (other
than such conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver of such conditions), unless another
time or date, or both, are agreed to in writing by the Parties. The date on
which the Closing shall be held is referred to in this Agreement as the "Closing
Date".
ARTICLE III
PURCHASE PRICE; SECURITY DEPOSIT
3.1 Purchase Price. The consideration to be given and paid by Buyer to
Sellers for the Subject Assets shall be: (a) with respect to the Break-Up Fee
Assets, (i) the assumption of the Assumed Liabilities relating to the Break-Up
Fee Assets and (ii) Eighty Million Four Hundred and Fifty Thousand Dollars
($80,450,000.00) in cash (the "Break-Up Fee Assets Purchase Amount") and (b)
with respect to the Additional Assets, (i) the assumption of the Assumed
Liabilities relating to the Additional Assets and (ii) Two Million Five Hundred
and Fifty Thousand Dollars ($2,550,000) in cash (collectively with the Break-Up
Fee Assets Purchase Amount, the "Purchase Price").
3.2 Security Deposit.
(a) On April 6, 2005, Buyer deposited with Escrow Agent, in its
capacity as escrow agent pursuant to that certain Escrow Agreement, dated
as of April 6, 2005, among Buyer, Sellers and Escrow Agent (the "Escrow
Agreement"), the sum of Four Million Six Hundred Thousand Dollars
($4,600,000) (the "Security Deposit"). Pursuant to the Escrow Agreement,
the Security Deposit plus any interest or other amount accrued thereon
shall either (i) be applied as a deposit towards the Purchase Price as
provided in Section 4.2(b), or (ii) be returned to Buyer in the event that
this Agreement is terminated pursuant to Sections 13.1(a), (b), (c), (d),
(f) or (g) (in each such case, such return shall be authorized and
completed as soon as practicably possible after the occurrence of such
termination), or (iii) be paid to Sellers in the event that this Agreement
is terminated by Sellers pursuant to Section 13.1(h).
(b) Upon payment of the Security Deposit to Sellers as provided
under Section 3.2(a)(iii), Buyer shall be fully released and discharged
from any liability or obligation under or resulting from this Agreement
and Sellers shall not have any other remedy or cause of action under or
relating to this Agreement or any applicable Law.
12
ARTICLE IV
CLOSING DELIVERIES
4.1 Closing Deliveries of Sellers. On the Closing Date, in exchange for
the payment of the Purchase Price and the assumption of the Assumed Liabilities,
each of the Sellers, as applicable, shall execute and deliver the following to
Buyer:
(a) a certificate evidencing resolutions of the Board of Directors
(or commensurate authority) of each of the Sellers, certified by the
Secretary or other appropriate officer or agent of such Seller, duly
authorizing the execution, delivery and performance of this Agreement and
the other transaction documents;
(b) a ▇▇▇▇ of sale to each of the Vessels in a form recordable in
the country in which such Vessel is presently documented, duly notarially
attested transferring such Vessel;
(c) for each of the Vessels, a current Abstract of Title or
Certificate of Ownership and Encumbrances issued by the appropriate
Governmental Authorities showing the current record owners of the
respective Vessel and stating that the respective Vessel is free from any
registered Liens;
(d) for each of the Vessels, a counterpart executed by Seller of the
Protocol of Delivery and Acceptance confirming the date and time of
delivery of the respective Vessel from the Seller to Buyer;
(e) one or more bills of sale in the form of Exhibit C hereto for
all of the other assets comprising a part of the Subject Assets;
(f) an assignment and assumption agreement in the form of Exhibit D
hereto;
(g) duly executed assignments for the Patents, each substantially in
the form attached hereto as Exhibit E;
(h) a duly executed power of attorney in the form of Exhibit F
hereto;
(i) a certified copy of the Approval Order;
(j) an affidavit of non-foreign status that complies with Section
1445 of the Code (acknowledging and certifying that the transactions
contemplated hereby are exempt from withholding under such section of the
Code);
(k) any additional documents reasonably required by the appropriate
Governmental Authority for the purpose of re-documenting Buyer's ownership
of the Vessels, provided Buyer notifies Sellers of any such documents as
soon as possible after the date of this Agreement;
(l) evidence, in a form and substance satisfactory to the Buyer (or
its designated Affiliate), of the payment, on or prior to the Closing
Date, by the Sellers in
13
respect of the Purchased Contracts the cure amount to the non-Seller
parties to the Purchased Contracts (which, in the aggregate, shall be the
Cure Amount), with such payment being made prior to the assignment of such
Purchased Contracts from Sellers to Buyer (or its designated Affiliate);
and
(m) and such other instruments of transfer in a form and substance
satisfactory to Buyer (or its designated Affiliate) necessary to transfer
and vest in Buyer (or its designated Affiliate) all of the Sellers' right,
title and interest in and to the Subject Assets in accordance with the
terms of this Agreement.
4.2 Closing Deliveries of Buyer. On the Closing Date, in exchange for the
transfer, assignment, conveyance and delivery of Subject Assets by Sellers to
Buyer, Buyer shall execute and deliver the following to Sellers:
(a) a certificate evidencing resolutions (or commensurate authority)
of the Board of Directors of Buyer, certified by the Secretary or other
appropriate officer or agent of Buyer, duly authorizing the execution,
delivery and performance of this Agreement and the other transaction
documents;
(b) an amount equal to (i) the Purchase Price less the Security
Deposit plus any interest or other amounts accrued thereon, plus (ii) the
Cure Payment, payable by wire transfer to an account specified in writing
by Sellers;
(c) for each of the Vessels, a counterpart executed by Buyer of the
Protocol of Delivery and Acceptance confirming the date and time of
delivery of the respective Vessel from Seller to Buyer; and
(d) an assignment and assumption agreement in the form of Exhibit D
hereto.
ARTICLE V
REPRESENTATIONS OF BUYER
Buyer hereby represents and warrants to Sellers that:
5.1 Organization, Power and Status of Buyer. Buyer is an entity duly
formed, validly existing and in good standing under the laws of the State of
Minnesota.
5.2 Authorization, Enforceability, Execution and Delivery. Buyer has all
necessary corporate power and authority to execute, deliver and perform its
obligations under this Agreement and each other related document to which it is
a party. The execution, delivery and performance by Buyer of this Agreement have
been duly authorized by all necessary corporate action on behalf of Buyer. This
Agreement has been duly executed and delivered by Buyer and (assuming the due
authorization, execution and delivery by the other parties hereto and thereto)
this Agreement and each such other document related to this Agreement to which
Buyer is a party constitute legal, valid and binding obligations, enforceable
against it in accordance with their terms, except as such enforceability (i) may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of
14
creditors' rights and remedies generally and (ii) is subject to general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
5.3 No Conflicts; Laws and Consents; No Default.
(a) Except as set forth on Schedule 5.3(a), neither the execution,
delivery and performance of this Agreement nor the consummation of the
Transaction nor performance of or compliance with the terms and conditions
hereof will conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to any
increased, additional, accelerated or guaranteed rights or entitlements of
any Person under, or result in the creation of any Liens upon of the
Subject Assets under any provision of (i) any Law applicable to Buyer or
(ii) any document to which Buyer is a party, except for any such conflict,
violation, default, rights or entitlements that would not have a material
adverse effect upon Buyer's ability to perform its obligations under this
Agreement.
(b) No consent, waiver, approval, order, permit or authorization of,
or declaration or filing with, or notification to, any Person or
Governmental Authority is required on the part of Buyer in connection with
the execution and delivery of this Agreement or the consummation of the
Transaction or the compliance by Buyer with any of the provisions hereof,
except for compliance with any requirements (if applicable) of the HSR Act
and those set forth on Schedule 5.3(b) hereto or such consents, waivers,
approvals, orders, permits or authorizations, declarations, filings or
notifications that the failure to obtain or make would not, individually
or in the aggregate, have a material adverse effect on the ability of
Buyer to consummate the transactions contemplated by this Agreement.
5.4 Financing. Buyer has on the date hereof and will have sufficient
available funds to pay the Purchase Price and the Cure Payment in cash at
Closing in accordance with Section 4.2 hereof, and all fees and expenses
required to be paid by Buyer in connection with the Transaction. Buyer's
obligations to make any payments under this Agreement shall not be subject to
receipt of new financing by Buyer.
ARTICLE VI
REPRESENTATIONS OF SELLERS
Sellers, jointly and severally, hereby represent and warrant to
Buyer that:
6.1 Organization, Power and Status of Seller. Each Seller is (i) a legal
entity duly formed, validly existing and in good standing under the laws of the
state of its organization or incorporation, and (ii) duly authorized, to the
extent necessary, to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary,
except for any failure to be so qualified that would not, individually or in the
aggregate, have a Material Adverse Effect. Each Seller has all requisite
corporate power and authority to own and operate the property it purports to own
and to carry on its business as now being conducted and as proposed to be
conducted in respect of the applicable Subject Assets.
15
6.2 Authorization, Enforceability, Execution and Delivery. Each Seller has
all necessary organizational power and authority to execute and deliver and,
subject to the entry of the Approval Order, perform its obligations under this
Agreement and each other related document to which it is a party. The execution
and delivery of this Agreement and the related documents to which a Seller is a
party and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary organizational action on the part of
the Sellers. This Agreement has been, and, subject to the entry of the Approval
Order, each of the related documents to which a Seller is a party will be at or
prior to the Closing, duly and validly executed and delivered by such Seller
which is a party thereto and (assuming the due authorization, execution and
delivery by the other Parties hereto and thereto and the entry of the Approval
Order) this Agreement and each such other document related to this Agreement to
which a Seller is a party constitute its legal, valid and binding obligations,
enforceable against it in accordance with their terms, except as such
enforceability (i) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights and remedies generally, and (ii) is subject to general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
6.3 No Conflicts; Laws and Consents; No Default.
(a) Except as set forth on Schedule 6.3(a), and subject to the entry
of the Approval Order, neither the execution, delivery and performance of
this Agreement nor the consummation of the Transaction nor performance of
or compliance with the terms and conditions hereof will conflict with, or
result in any violation of or default (with or without notice or lapse of
time, or both) under, or give rise to or result in the creation of any
Liens upon the Subject Assets under any provision of (i) any Law
applicable to Sellers or the Subject Assets, (ii) any Contract or Permit
to which any of the Sellers is a party or by which any of the Subject
Assets are bound, or (iii) any Order of any Governmental Authority
applicable to any Seller or by which any of the properties or assets of
any Seller (including, without limitation, the Subject Assets) are bound,
except for any such conflict, violation, default, rights or entitlements
that that would not have a Material Adverse Effect. Each Seller is in
compliance in all material respects with and not in default under any and
all Laws applicable to such Seller and the Subject Assets, the terms and
provisions of this Agreement or any other related documents to which such
Seller is a party.
(b) No consent, waiver, approval, order, permit or authorization of,
or declaration or filing with, or notification to, any Person or
Governmental Authority is required on the part of any Seller in connection
with the execution and delivery of this Agreement or the consummation of
the Transaction or the compliance by any Seller with any of the provisions
hereof, except for compliance with the applicable requirements of the
Approval Order, the Scheduling Order and the HSR Act or such consents,
waivers, approvals, orders, permits or authorizations, declarations,
filings or notifications that the failure to obtain or make would not,
individually or in the aggregate, have a Material Adverse Effect.
6.4 Taxes. Except as set forth in Schedule 6.4, each Seller has filed, or
caused to be filed, and shall, as of the Closing, have filed, or cause to be
filed, all material Tax Returns that
16
are required to have been filed by it with the appropriate Taxing Authority in
any jurisdiction with respect to the Subject Assets, and has paid, or caused to
be paid, and shall, as of the Closing, have paid, or caused to be paid, all
Taxes shown to be due and payable on such Tax Returns and all other Taxes and
assessments payable by it with respect to the Subject Assets, to the extent the
same have become due and payable, but excluding any Taxes which would not
subject, either on or prior to the Closing Date or after the Closing Date, the
Subject Assets to imminent forfeiture or sale or result in the imposition of any
Lien thereon. There are no Liens for Taxes upon the Subject Assets, except for
Liens arising as a matter of Law relating to current Taxes not yet due. None of
the Sellers is a foreign person within the meaning of Section 1445 of the Code.
Each Seller has provided to Buyer copies of any written inquiry of any
Governmental Authority received since December 31, 2001, that raises any issue
which, by application of the same principles, would reasonably be expected to
affect the Tax treatment of the Subject Assets in any taxable period (or portion
thereof) ending after the Closing Date. No power of attorney with respect to any
Tax matter is currently in force with respect to the Subject Assets that would,
in any manner, bind, obligate or restrict Buyer. None of the Sellers has
executed or entered into any agreement with, or obtained any consents or
clearances from, any Taxing Authority, or has been subject to any ruling
guidance specific to any of the Sellers, that would be binding on Buyer for any
taxable period (or portion thereof) ending after the Closing Date.
6.5 Property; Title; Sufficiency.
(a) Sellers represent that they respectively own and have good and
marketable title to the Subject Assets and that they shall, subject to the
terms and conditions hereof, deliver at the Closing the Subject Assets to
Buyer or its designee. Since March 1, 2005, there has not been any damage,
destruction or loss, whether or not covered by insurance, with respect to
the Subject Assets and there otherwise has not been any event, change,
occurrence or circumstance that, in each case, has had or could reasonably
be expected to have a Material Adverse Effect. Except as may be set forth
on Exhibit A-1 or Exhibit A-2, Sellers represent that there is no
equipment or inventory material in the use and operation of the Subject
Assets other than such equipment and inventory located on the Vessels or
located at the Sellers' Dulac, Louisiana, fabrication yard.
(b) Exhibit B sets forth a true, correct and complete list of all
Patents and Schedule 6.5(b) sets forth a true, correct and complete list
of all Licensed Software. The Patents and the Licensed Software comprise
all material intellectual property rights owned by or licensed to Sellers
necessary or appropriate for the use and operation of the Subject Assets
as used or operated by Sellers prior to April 1, 2005. Except as set forth
in Schedule 6.5(b), or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, Torch owns, has
the exclusive right to use, sell, license and dispose of, and has the
exclusive right to bring actions for the infringement of its Patents and
has not licensed its Patents to any other Person other than Offshore and
Express. Except as set forth in Schedule 6.5(b), or as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, each Seller has a valid license to use its
Licensed Software, assuming that the respective licensor thereof has valid
title thereto or a valid license for such Licensed Software and has the
right to license such Licensed Software to such Seller (and such Seller
has not received notice that any such licensor does not have valid title
thereto or a
17
valid license or that the licensor is not permitted to license such
Licensed Software). Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, none of the
Sellers has received from any Person in the past two years any notice,
charge, complaint, claim or assertion that any patent, registered
trademark or registered copyright is being interfered with, infringed upon
or misappropriated in any manner in connection with the ownership, use and
operation of the Subject Assets. Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect,
none of the Sellers or, to the Knowledge of the Sellers, any agent,
attorney or representative thereof, has sent to any Person in the past two
years, or otherwise communicated to any Person, any notice, charge,
complaint, claim or other assertion of any present, impending or
threatened infringement by, misappropriation of, or other conflict with,
any of the Patents by such other Person and, to the Knowledge of Sellers,
no such infringement, misappropriation, conflict or act of unfair
competition is occurring or threatened. Except set forth in Schedule
6.5(b), or as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, the consummation of the
Transaction contemplated hereby will not result in the loss or impairment
of Buyer's right to own or use any of the Patents or the Licensed
Software. None of the Sellers has granted any license or sublicense of any
rights under or with respect to any Patents except to Offshore and
Express.
(c) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, none of the
Sellers has committed any act or failed to commit any act, which would
result in, and there has been no occurrence which would give rise to or
form the basis of, any rejection, renunciation, denial or refusal by any
other applicable Person of any Warranty or any Action in respect thereof.
6.6 Legal Proceedings. Except as set forth on Schedule 6.6 or arising in
or related to the Bankruptcy Case, there is no Legal Proceeding filed and
pending or, to the Knowledge of any Seller, threatened against any Seller, or to
which any Seller is otherwise a party before any Governmental Authority, except
any such Legal Proceeding as could not reasonably be expected to have a Material
Adverse Effect. Except as set forth on Schedule 6.6, none of the Sellers is
subject to any Order that could reasonably be expected to have a Material
Adverse Effect.
6.7 Compliance with Laws; Permits.
(a) Except to the extent set forth in Schedule 6.7(a):
(i) each of the Sellers is in compliance with all Laws of any
Governmental Authority applicable to their respective operations or
assets (including the Subject Assets), except where such
non-compliance could not reasonably be expected to have a Material
Adverse Effect;
(ii) Sellers have not received any written or other notice of
or been charged with the violation of any Laws that could reasonably
be expected to have a Material Adverse Effect and, to the Knowledge
of each Seller, there are no facts or circumstances which could
reasonably be expected to form the basis for any such violation that
would have a Material Adverse Effect; and
18
(iii) to the Knowledge of each Seller, none of the Sellers or
the Subject Assets is under investigation with respect to a material
violation of any applicable Laws.
(b) Schedule 6.7(b)(i) of this Agreement contains a true, correct
and complete list of all Permits which are material to the ownership and
operation of the Subject Assets as presently owned and operated. Except as
described in Schedule 6.7(b)(ii), or as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, to
the Knowledge of the Sellers, all Permits set forth therein (i) are valid
and subsisting and in full force and effect and (ii) are transferable to
Buyer either without any further action by Sellers, or with such further
action by Sellers as it otherwise permitted by Law and required under this
Agreement, including without limitation, Section 14.9 hereof, and none of
Sellers is in default or material violation, and no event has occurred
which, with notice or the lapse of time or both, would reasonably be
expected to constitute a default or violation, in any material respect of
any term, condition or provision of any Permit to which it is a party, to
which any of the Subject Assets is subject or bound and, to the Knowledge
of each Seller, there are no facts or circumstances which could reasonably
be expected to form the basis for any such default or violation that would
have a Material Adverse Effect and no suspension, cancellation or
termination of any of such Permits is threatened or pending.
6.8 Environmental Matters. Except as set forth in Schedule 6.8 hereto:
(a) the operations of Sellers, with respect to the Subject Assets,
are in material compliance with all applicable Environmental Laws, which
material compliance includes obtaining, maintaining in good standing and
complying in all material respects with all applicable Environmental
Permits necessary to operate the Subject Assets and no action or
proceeding is pending or, to the Knowledge of any Seller, threatened to
revoke, modify in any material respect or terminate any such Environmental
Permit, and, to the Knowledge of any Seller, no facts, circumstances or
conditions currently exist that could reasonably be expected to adversely
affect such continued material compliance with applicable Environmental
Laws and applicable Environmental Permits or require material capital
expenditures to achieve or maintain such continued material compliance
with applicable Environmental Laws and applicable Environmental Permits;
(b) with respect to the Subject Assets, none of the Sellers is the
subject of any outstanding written order or Contract with any Governmental
Authority or Person respecting (i) Environmental Laws, (ii) Remedial
Action or (iii) any Release of a Hazardous Material, or for which a Seller
has material, outstanding liabilities;
(c) no claim has been filed and is pending, or to the Knowledge of
any Seller, threatened against any Seller or the Subject Assets, alleging,
with respect to the Subject Assets, that a Seller or any of its Subject
Assets is in material violation of any applicable Environmental Law or any
applicable Environmental Permit or has any material liability under any
applicable Environmental Law;
19
(d) to the Knowledge of Sellers, no facts, circumstances or
conditions exist with respect to the Subject Assets that could reasonably
be expected to result in Buyer incurring material Environmental Costs or
Liabilities either before or after Closing for pre-closing events or
conditions other than those that are generally incurred in the ordinary
course (without material violation of applicable Environmental Law) by
Sellers;
(e) to the Knowledge of Sellers, there are no investigations of the
Subject Assets pending or threatened which could reasonably be expected to
lead to the imposition of any material Environmental Costs or Liabilities
on the Subject Assets or material Liens under applicable Environmental Law
on the Subject Assets;
(f) to the Knowledge of Sellers, the Transaction contemplated
hereunder is not one for which an applicable Environmental Law requires
the consent of or advance filings with any Governmental Authority with
jurisdiction over the Subject Assets and environmental matters; and
(g) Sellers have provided to Buyer all material audits, studies,
reports, analyses, and results of investigations of matters regulated by
applicable Environmental Laws that have been performed since January 1,
2003 with respect to the Subject Assets and that are in Sellers'
possession.
6.9 Assumed Contracts.
(a) On March 31, 2005, Sellers provided to Buyer (via email) a list
entitled "Torch Relevant Contracts" which contains a true, complete and
correct list of all Contracts conforming to the descriptions set forth
below in this Section 6.9(a) to which any Seller is a party which relates
to the Subject Assets, copies of each of which have been delivered or
otherwise made available to Buyer: (i) any Contract relating to the use or
operation of, or limiting or restricting in any material manner the use or
operation of, the Subject Assets, (ii) Contracts relating to incurrence,
assumption or guarantee of any Indebtedness imposing a Lien on any of the
Subject Assets; (iii) any Contract providing warranties for, or relating
to the furnishing or receipt of services for, any Subject Assets, and (iv)
any power of attorney (irrevocable or otherwise) to any Person for any
purpose relating to the Subject Assets or the ownership, use or operation
thereof.
(b) Upon payment of the Cure Amount, (i) each Purchased Contract
will continue to be in full force and effect and constitute the entire
agreement by and between or among the parties thereto, (ii) after giving
effect to a Final Order approving the assumption of the Purchased
Contracts, each Purchased Contract shall continue to be legal, valid,
binding, enforceable and in full force and effect on identical terms
following the consummation of the Transaction contemplated by this
Agreement, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, (iii) after giving effect
to a Final Order approving the assumption of the Purchased Contracts, no
Purchased Contract prohibits or requires the consent of any Person to the
assignment to and assumption by Buyer or its designee of such Purchased
Contract, (iv) no party to any Purchased Contract has, to the
20
Knowledge of the Sellers, repudiated any provision thereof, and (v) no
Seller who is a party to any Purchased Contract is in breach or default,
and to the Knowledge of each Seller, no other party to any Purchased
Contract is in breach or default, and to the Knowledge of Sellers no event
has occurred which, with notice or lapse of time, would constitute a
breach or default or permit termination, modification or acceleration
thereunder (other than any such breaches or defaults which shall be cured
pursuant to Order of the Bankruptcy Court).
ARTICLE VII
SURVIVAL; EXCLUSION OF WARRANTIES;
NO ASSUMPTION OF LIABILITIES; EMPLOYEES
7.1 Survival. The representations and warranties made by Buyer and Sellers
under this Agreement and of each Party in any certificate delivered hereunder,
respectively, shall not survive beyond the Closing Date or a termination of this
Agreement.
7.2 Exclusion of Warranties. The Subject Assets will be sold and delivered
and taken over "AS IS, WHERE IS," on the Closing Date by Buyer without any
warranty or representation by Sellers whatsoever, express or implied, as to the
design, quality, condition, merchantability or seaworthiness, or as to the
fitness of the Vessels or the Equipment for any particular purpose or trade, and
the bills of sale referred to in Section 4.1(b) shall so provide. Except as
provided in Section 14.9, after the Closing, Sellers shall have no obligation
with respect to the Subject Assets. Buyer's execution of the Protocol of
Delivery and Acceptance shall be conclusive evidence of Buyer's acceptance of
the condition of the Vessels and the other Subject Assets.
7.3 No Assumption of Liabilities. Other than with respect to the Assumed
Liabilities, Buyer will not assume, and hereby expressly disclaims any
assumption of, any Indebtedness, Liabilities or obligations (absolute or
contingent) of any kind of Sellers, including but not limited to (i) accounts
payable, (ii) Indebtedness of Sellers for money borrowed, (iii) Taxes of Sellers
or relating to ownership, use or operation of the Subject Assets on or prior to
the Closing Date, (iv) claims, litigation, Liabilities or obligations arising
out of or relating to the operations of Sellers, (v) Liabilities or obligations
of any kind in respect of any past or present stockholders, directors, officers,
employees or consultants of Sellers, whether under any contract or agreement,
pursuant to any pension plan or employee benefit plan or welfare plan, or
otherwise, (vi) Liabilities or obligations relating to recapture or any
depreciable deduction, and/or (vii) any other Liabilities or obligations of or
relating to Sellers or any of their Affiliates or related entities in any manner
whatsoever.
7.4 No Obligation for Employees. Buyer may offer employment to any
Employee without restriction by the Sellers. Sellers shall be responsible for
any Employee who is not offered employment and for complying with any applicable
notice or other requirements of applicable Law with respect to termination of
employees and layoffs. In addition, Sellers shall be responsible for satisfying
any employee benefit obligations relating to employment of Employees on and
prior to the Closing Date. Nothing in this Section 7.4 shall be deemed to impose
upon Buyer any Liabilities or responsibilities regarding individuals who do not
become employees of Buyer pursuant to offers of employment to Employees,
including, without limitation, Liabilities or responsibilities for (i) pension,
retirement, profit-sharing, savings,
21
medical, dental, disability income, continuing health coverage benefits, life
insurance or accidental death benefits, whether insured or self-insured, whether
funded or unfunded, (ii) workers' compensation (both long term and short term)
benefits, whether insured or self-insured, whether or not accruing or based upon
exposure to conditions prior to the date of this Agreement or for claims
incurred or for disabilities commencing prior to the Closing Date, or (iii)
severance benefits. None of the Parties intend to create any rights or
obligations for employment and no past, present or future employees of Sellers
or Buyer shall be treated as third-party beneficiaries of this Section 7.4.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Buyer's Conditions Precedent. In addition to the condition set forth
in Section 9.2 hereof, Buyer's obligation to consummate the transactions
contemplated by this Agreement, including, without limitation, to accept the
Subject Assets from Sellers and to pay the Purchase Price in accordance with
Article III of this Agreement, is subject to fulfillment on or before the
Closing Date, of each the following conditions precedent:
(a) all Governmental Approvals that are required to be obtained in
connection with the execution, delivery and performance of this Agreement
and the related documents have been obtained and are in effect at Closing,
including, without limitation, that, if applicable, the waiting period
under the HSR Act shall have expired or early termination shall have been
granted;
(b) all consents, waivers and approvals from all Governmental
Authorities, third parties and such other entities, as necessary for the
consummation of the Transaction shall have been obtained and Buyer shall
have received copies thereof;
(c) Sellers shall have performed and complied in all respects with
all obligations and agreements required in this Agreement to be performed
or complied with by it prior to the Closing Date, including, without
limitation, the transfer, conveyance, assignment and delivery to Buyer of
the Subject Assets free and clear of all Liens (other than Permitted
Exceptions);
(d) Sellers' representations and warranties in Article VI of this
Agreement that are qualified as to materiality or by the term "Material
Adverse Effect" shall be true and correct in all respects as of the
Closing and any such representations and warranties that are not so
qualified shall be true and correct in all material respects as of the
Closing as though made at and as of the Closing (or if made as of a
specified date, only as of such date);
(e) Sellers have completed all deliveries they are required to make
under Section 4.1;
(f) there shall not have occurred since the date hereof and be
continuing as of the Closing Date any Material Adverse Effect;
22
(g) there shall not be in effect any Order by a Governmental
Authority of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated hereby;
(h) the Scheduling Order shall be a Final Order; and
(i) Sellers have complied in all material respects with their
obligations under paragraphs (a) through (j) of Section 9.1 of this
Agreement.
8.2 Sellers' Conditions Precedent. In addition to the condition set forth
in Section 9.2 hereof, Sellers' obligation to consummate the transactions
contemplated by this Agreement, including, without limitation, to sell,
transfer, assign, convey and deliver the Subject Assets to Buyer at Closing is
subject to fulfillment on or before the Closing Date, of each of the following
conditions precedent:
(a) all Governmental Approvals that are required to be obtained in
connection with the execution, delivery and performance of this Agreement
and the related documents have been obtained and are in effect at Closing,
including, without limitation, that, if applicable, the waiting period
under the HSR Act shall have expired or early termination shall have been
granted;
(b) all consents, waivers and approvals from all Governmental
Authorities, third parties and such other entities, as necessary for the
consummation of the Transaction shall have been obtained;
(c) Buyer's representations and warranties in Article V of this
Agreement that are qualified as to materiality shall be true and correct
in all respects as of the Closing and any such representations and
warranties that are not so qualified shall be true and correct in all
material respects as of the Closing as though made at and as of the
Closing (or if made as of a specified date, only as of such date);
(d) Buyer has paid Sellers the amounts required under Sections
4.2(b) of this Agreement; and
(e) Buyer has made the other deliveries required under Section 4.2
of this Agreement.
ARTICLE IX
SELLERS' BANKRUPTCY
9.1 Procedure for Approval of Transaction.
(a) Filing of Appropriate Motions; Provision of Notice. On April 6,
2005, Sellers filed with the Bankruptcy Court (i) the Sale Motion, seeking
entry of the Approval Order and (ii) the Scheduling Motion, seeking entry
of the Scheduling Order. Buyer agrees that it will promptly take such
actions as are reasonably requested by Sellers to assist in obtaining the
Approval Order and the Scheduling Order, including furnishing affidavits
or other documents or information for filing with the Bankruptcy
23
Court for the purposes, among others, of providing necessary assurances of
performance by Buyer under this Agreement and demonstrating that Buyer is
a "good faith" purchaser under Section 363(m) of the Bankruptcy Code. In
the event the entry of the Approval Order or the Scheduling Order shall be
appealed, Sellers and Buyer shall each use its commercially reasonable
efforts to defend such appeal. Sellers shall give notice of the Sale
Motion, Scheduling Motion and Sale Hearing as reasonably requested by
Buyer and required by the Bankruptcy Code or applicable Bankruptcy Rules.
(b) Scheduling Motion. Sellers requested the scheduling of the
Scheduling Hearing on April 27, 2005 and such hearing was commenced on
such date.
(c) Scheduling Order. The Bankruptcy Court entered the Scheduling
Order on May 6, 2005.
(d) Back-Up Bidder. Provided a Competing Transaction fails to close
and this Agreement has not been terminated, Buyer shall remain obligated
to consummate the Transaction for a period of sixty (60) days after the
Bankruptcy Court enters an Order authorizing the Competing Transaction;
provided Sellers seek to obtain such Order authorizing the Competing
Transaction within fourteen (14) days of the date on which the Auction
concludes; and provided, further, that Buyer shall not be obligated under
this Section 9.1(d) if the Bankruptcy Court enters an Order approving a
sale of all or any portion of the Subject Assets pursuant to a Credit Bid.
(e) Break-Up Fee and Expense Reimbursement. If, following the entry
of the Scheduling Order, this Agreement is terminated (i) by Sellers
pursuant to Section 13.1(b) or by Buyer pursuant to Sections 13.1(c) or
(g) or (ii) by either Party pursuant to Section 13.1(f), Sellers agree to
pay to Buyer:
(i) a break up fee, as applicable, and the amount of which, as
determined as follows (the "Break-Up Fee"):
(A) if such termination is pursuant or due to, or arises
because of, the entry of an Order approving a sale of
all of the Break-Up Fee Assets pursuant to a Credit Bid,
an amount equal to $400,000; or
(B) if such termination is pursuant or due to, or arises
because of, (I) the entry of an Order approving a sale
of all (other than as described in subclause (A) above)
or any portion of the Break-Up Fee Assets to any Person
other than the Buyer, including, without limitation, any
sale pursuant to a Credit Bid for a purchase of any (but
not all) Break-Up Fee Assets, or any such sale shall
occur (without the entry of an Order) or (II) the
Sellers shall determine to retain (and not sell) all or
any portion of the Break-Up Fee Assets, an amount equal
to (x) $1,878,500 times a percentage allocation to such
Break-Up Fee Assets (as set forth on Schedule 9.1(e))
that are determined to be retained by the Sellers or for
which a sale to any Person other than Buyer is approved
or occurs, other than a sale
24
pursuant to a Credit Bid for the purchase of any (but
not all) Break-Up Fee Assets, plus (y) $400,000 times a
percentage allocation to such Break-Up Fee Assets (as
set forth on Schedule 9.1(e)) for which a sale is
approved or occurs pursuant to a Credit Bid for the
purchase of any (but not all) Break-Up Fee Assets; and
(ii) a reimbursement amount in respect of the reasonable
expenses of outside counsel in connection with drafting, negotiating
and performing this Agreement and fees and other reasonable expenses
incurred in connection herewith (including, without limitation, any
filing fees (including with respect to the HSR Act), or other
amounts seeking the approvals necessary and appropriate to
consummate the Transaction) (the "Expense Reimbursement"), as
applicable, and the amount of which, as determined as follows:
(A) if such termination is pursuant or due to, or arises
because of, the circumstance described in Section
9.1(e)(i)(A) above, then there shall not be any
reimbursement of such expenses;
(B) if such termination is pursuant or due to, or arises
because of, the circumstances described in Section
9.1(e)(i)(B) above, an amount equal to $500,000 times a
percentage allocation to such Break-Up Fee Assets (as
set forth on Schedule 9.1(e)) that are determined to be
retained by the Sellers or for which a sale to any
Person other than Buyer is approved or occurs, excluding
any sale approved or occurring pursuant to a Credit Bid
for the purchase of any (but not all) Break-Up Fee
Assets; provided, however, that such amount shall be
further limited to the amount of such reasonable
expenses that are actually incurred by the Buyer.
The combined amount of the Break-Up Fee and Expense Reimbursement, as
applicable and as determined in accordance with the foregoing of this
Section 9.1(e), shall be payable by Sellers as a superpriority
administrative expense claim (and, in the case of the Break-Up Fee, shall
be payable by Sellers without the need for further application or request
filed with the Bankruptcy Court) to Buyer in cash, by wire transfer of
immediately available funds to an account designated by Buyer. In the
event the Break-Up Fee and Expense Reimbursement (if any) become payable
because the Sellers determine to retain (and not sell) all of the Break-Up
Fee Assets, Sellers shall pay to Buyer the Break-Up Fee and Expense
Reimbursement on the earlier of (A) the effective date of any chapter 11
plan confirmed in the Bankruptcy Case, or (B) one (1) year after the
Petition Date. In the event the Break-Up Fee and Expense Reimbursement (if
any) become payable because of the sale of all or any portion of the
Break-Up Fee Assets (including as part of a Competing Transaction or a
sale of Break-Up Fee Assets pursuant to a Credit Bid) to any Person other
than Buyer or Sellers determine to retain (and not sell) any portion (but
not all) of the Break-Up Fee Assets, Sellers shall pay to Buyer the
applicable Break-Up Fee and Expense Reimbursement contemporaneously with
the first consummation of a Competing Transaction or other applicable sale
of the Break-Up Fee Assets or any portion thereof. The combined Break-Up
Fee and Expense Reimbursement
25
shall be paid in recognition of the substantial costs incurred by Buyer in
evaluating the Transaction, negotiating this Agreement, and otherwise
devoting its time, attention and resources to closing the Transaction.
Upon payment of the applicable Break-Up Fee, Sellers shall be fully
released and discharged from any liability or obligation under or
resulting from this Agreement and Buyer shall not have any other remedy or
cause of action under or relating to this Agreement or any applicable Law.
(f) Sale Motion. Sellers have filed the Sale Motion seeking entry of
the Approval Order and deadlines for filing and serving objections and
responses to the relief requested in the Sale Motion, and as part of such
filing Sellers requested that the Sale Hearing occur on or about June 8,
2005.
(g) Proposal and Submission of Approval Order. Simultaneously with
their submission of the Sale Motion, Sellers proposed and submitted the
Approval Order to the Bankruptcy Court for execution at the Sale Hearing,
and such submission will be amended and modified pursuant to, and to
reflect the terms of this Agreement on or prior to such date that is five
(5) Business Days before the date scheduled for the Sale Hearing. The
amended and modified form of Approval Order shall be submitted to Buyer
for its review (and shall be subject to its reasonable approval) prior to
the filing of same with the Bankruptcy Court.
(h) Assumption of Executory Contracts and Unexpired Leases. Sellers
will assume and assign to Buyer the Purchased Contracts at the Closing.
Sellers requested as part of the Sale Motion that Sellers be granted
authority to file with the Bankruptcy Court and serve on all non-Seller
parties to the Purchased Contracts notice of Sellers' intent to assume and
assign that party's Contract, with such notice to be served no later than
twenty (20) days before the Sale Hearing. The cure amount for the
Purchased Contracts to be assumed shall be included in that party's
notice. Sellers have further requested that the non-Seller party have
until eight (8) days before the Sale Hearing to object to the cure amount
listed, and must state in its objection with specificity what the proper
cure amount should be and provide sufficient documentation in support
thereof. If no objection is timely received, Sellers shall request that
the Bankruptcy Court set the cure amount as the amount listed in the
notice.
(i) Cooperation. Buyer and Sellers shall cooperate in filing and
prosecuting the Sale Motion and obtaining entry of the Approval Order.
(j) Solicitation of Bidders. Except as otherwise consistent with the
Bidding Procedures, the Scheduling Order or any other Order of the
Bankruptcy Court, Sellers shall not, and shall cause their respective
employees, officers, directors, representatives and agents not to, solicit
or initiate discussions or negotiations with any Person (other than Buyer)
with respect to the Subject Assets (or any portion thereof) or a Competing
Transaction without the written consent of Buyer. Notwithstanding the
foregoing, nothing contained herein shall prohibit the Sellers or their
respective employees, officers, directors, representatives and agents from
providing information to any Person in response to unsolicited inquiries
regarding a potential Competing Transaction.
26
9.2 Condition to Closing Relating to Bankruptcy. In addition to the
conditions to Closing set forth in Sections 8.1 and 8.2 of this Agreement, the
Closing shall be subject to the satisfaction of the condition that the
Bankruptcy Court shall have entered the Approval Order, and such order shall be
a Final Order.
ARTICLE X
COVENANTS;
TRANSFER OF TITLE AND DELIVERY OF VESSELS
10.1 Covenants with Respect to Conduct Prior to Closing. During the period
from the date hereof through the Closing Date, the Sellers and Buyer covenant
and agree as follows:
(a) Access. Each Seller agrees that, prior to the Closing Date,
Buyer shall be entitled, through its officers, employees and
representatives (including, without limitation, its legal advisors and
accountants), to make such investigation of the Subject Assets and Assumed
Liabilities and related properties of Sellers as it reasonably requests
and deems necessary or appropriate for the purposes of familiarizing
itself with and evaluating the Subject Assets and Assumed Liabilities or
obtaining any necessary and appropriate Permits for the transactions
contemplated by this Agreement, and the Buyer shall be permitted to make
extracts and copies of such information. Any such investigation and
examination shall be conducted under reasonable circumstances, and Sellers
shall cooperate fully therein. No investigation by Buyer prior to or after
the date of this Agreement shall diminish or obviate any of the
representations, warranties, covenants or agreements of Sellers contained
herein. In order that Buyer may have full opportunity to make such
physical and diligence review, examination or investigation as it may
reasonably request of the Subject Assets, Sellers shall cause the
officers, employees, consultants, agents, accountants, attorneys and other
representatives of Sellers to cooperate fully with such representatives in
connection with such review and examination. Without limiting the
generality of the foregoing, Buyer shall be entitled to conduct or cause
to be conducted at or on the Subject Assets such surveys, tests and
inspections, including, environmental inspections and tests, as Buyer
shall deem necessary or useful in connection with its acquisition of such
Subject Assets.
(b) Operation of Subject Assets. Except as otherwise expressly
provided by this Agreement or with the prior written consent of Buyer,
Sellers shall own, use and operate the Subject Assets only in the ordinary
course of business consistent with past practice of Sellers after the
Petition Date and preserve such assets in their current condition
(ordinary wear and tear excepted), shall comply in all material respects
with all applicable Laws in regard to the Subject Assets and Assumed
Liabilities, shall not take any action which would adversely affect the
ability of the Parties to consummate the transactions contemplated by this
Agreement, shall not introduce any material change with respect to the
operation of the Subject Assets, in each case, other than in the ordinary
course of business of Sellers after the Petition Date or enter into any
transaction or enter into, modify or renew any Contract relating to the
Subject Assets that is not in the ordinary course of business of Sellers
after the Petition Date, and shall not agree to do anything prohibited by
this Section 10.1(b) or anything that would make any of the
27
representations and warranties of the Sellers in this Agreement untrue or
incorrect in any material respect.
(c) Consents. Sellers shall use their best efforts, and Buyer shall
cooperate with Sellers, to obtain at the earliest practicable date all
consents and approvals required to consummate the transactions
contemplated by this Agreement.
(d) Governmental Approvals. In addition to the matters to be
presented to the Bankruptcy Court under Section 9.1 hereof, as promptly as
practical after the date of this Agreement, each Seller shall make all
filings required by applicable Law to be made by it in order to consummate
the transactions contemplated by this Agreement. Sellers and Buyer have
heretofore caused to be made such filings (and Buyer has paid the filing
fees) under the HSR Act and such Parties requested earlier termination of
the waiting period thereunder. All documents required to be filed by any
Seller with any Governmental Authority in connection with this Agreement
or the transactions contemplated by this Agreement will comply in all
material respects with the provisions of applicable Law. Each Seller and
Buyer agree to cooperate and use their best efforts to obtain all (and
will immediately prepare all registrations, filings and applications,
requests and notices preliminary to obtaining all) Governmental Approvals,
Orders and Permits that may be necessary or which may be reasonably
requested by Buyer to consummate the transactions contemplated by this
Agreement, including, without limitation, notifying foreign, state and
local agencies that have issued Permits to any Seller or one or more of
its employees of the consummation of the transactions contemplated hereby;
provided, however, that, notwithstanding anything to the contrary provided
herein, neither Buyer nor any of its Affiliates shall be required in
connection with obtaining such Governmental Approvals (i) to hold separate
(including by trust or otherwise) or divest any of its businesses, product
lines or assets, or any of the Subject Assets, (ii) to agree to any
limitation on the operation or conduct of its business and operations or
the Subject Assets, or (iii) to waive any of the conditions to this
Agreement set forth in Section 8.1.
(e) Notification of Certain Matters. Sellers shall give prompt
written notice to Buyer of, (i) the occurrence, or failure to occur, of
any event that would be likely to cause any representation or warranty of
such Seller contained in this Agreement to be untrue or inaccurate in any
material respect at any time from the date of this Agreement to the
Closing Date, (ii) any failure of any Seller, as the case may be, to
comply with or satisfy, in any material respect, any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement,
(iii) the occurrence of any fact or condition after the date of this
Agreement that would be reasonably likely to cause or constitute a breach
of any representation or warranty had such representation or warranty been
made at the time of the occurrence, or such Seller's discovery of, such
fact or condition, (iv) any fact or condition of which Seller obtains
knowledge which has had or could reasonably be expected to have or result
in a Material Adverse Effect, and (v) the occurrence of any event that may
make the satisfaction of the conditions set out in Article VIII impossible
or unlikely. No such notification shall affect the representations or
warranties of the Sellers or the conditions to their respective
obligations hereunder.
28
10.2 Transfer of Title. Title and risk of loss of or damage to the
respective Subject Assets will pass from Sellers to Buyer at the time appearing
on the applicable Protocol of Delivery and Acceptance (provided for in Section
10.6) which shall be the time of Closing.
10.3 Inspections and Due Diligence. On or prior to the date hereof, Buyer
has inspected and accepted each Vessel's classification records.
10.4 Notices; Time and Place of Delivery.
(a) Sellers shall prepare the Subject Assets for delivery in due
course and in time for the Closing, and shall keep Buyer well informed of
the state of readiness for delivery of the Subject Assets.
(b) Sellers shall deliver the Vessels at a safe and accessible berth
or anchorage at the Port of New Orleans, Louisiana or such other location
to be determined by the Parties. The Equipment, Inventory and other
Subject Assets (other than the Vessels) shall be delivered at its location
at the time of the Closing, which location Sellers shall notify to Buyer
in advance of the Closing.
10.5 Buyer Responsibilities Upon Delivery. Immediately upon delivery,
Buyer shall have and assume all responsibility and liability as to any tugboats
or other boats or related equipment necessary to secure the Vessels at their
berths or transfer the Vessels to other berths at Buyer's choice. Buyer will
secure all necessary arrangements and approvals through the U.S. Coast Guard,
Port of New Orleans, Louisiana or other appropriate governmental or regulatory
authority regarding the berthing or transfer of the Vessels upon delivery by
Sellers.
10.6 Delivery Procedure. Sellers shall deliver the Vessels and Equipment
to a duly authorized representative of Buyer who shall execute and deliver to
Sellers a "Protocol of Delivery and Acceptance" in the form attached hereto as
Exhibit G, which shall evidence the delivery of the respective Vessel to Buyer.
10.7 Spares, etc. Forwarding charges for spare parts and spare equipment,
if any, shall be for Buyer's account. Captain's, officers' and crew's personal
belongings including the slop chest are excluded from the Transaction.
ARTICLE XI
TAXES
11.1 Responsibility for Taxes.
(a) In accordance with Section 1146(c) of the Bankruptcy Code, the
making or delivery of any instrument of transfer, including the filing of
any deed or other document of transfer to evidence, effectuate or perfect
the rights, transfers and interests contemplated by this Agreement, shall
be in connection with the Approval Order and as such shall be free and
clear of any and all transfer Tax, stamp Tax or similar Taxes; provided,
however, that if any such Taxes are due in connection with the
transactions contemplated herein, Buyer, on the one hand, and Sellers, on
the other hand, shall each pay one-half of the amount of any such Taxes
and they shall pay such amount in a timely
29
manner. The instruments transferring the Subject Assets to Buyer shall
contain the following endorsement:
"Because this instrument has been authorized pursuant to an
Order of the United States Bankruptcy Court for the Eastern
District of Louisiana, in connection with a plan of
reorganization of the Grantor, it is exempt from transfer
taxes, stamp taxes or similar taxes pursuant to 11 U.S.C.
Section 1146(c)".
(b) Except as otherwise provided in this Section 11.1(b), Sellers
shall bear all property and ad valorem tax liabilities with respect to the
Subject Assets if the Lien or assessment date arises prior to the Closing
Date irrespective of the reporting and payment dates of such Taxes. All ad
valorem and other real property Taxes, personal property Taxes, or ad
valorem obligations and similar recurring Taxes and fees on the Subject
Assets for taxable periods beginning before, and ending after, the Closing
Date, shall be prorated between Buyer, on the one hand, and Sellers, on
the other hand, as of 12:01 a.m., New York time, on the Closing Date. With
respect to Taxes described in this Section 11.1(b), Seller shall timely
file all Tax Returns due before the Closing Date with respect to such
Taxes and Buyer shall prepare and timely file all Tax Returns due after
the Closing Date with respect to such Taxes. If one Party remits to the
appropriate Taxing Authority payment for Taxes, which are subject to
proration under this Section 11.1(b) and such payment includes the other
Party's share of such Taxes, such other party shall promptly reimburse the
remitting party for its share of such Taxes.
11.2 Cooperation on Tax Matters. Buyer and Sellers shall furnish or cause
to be furnished to each other, as promptly as practicable, such information and
assistance relating to the Subject Assets and the Assumed Liabilities as is
reasonably necessary for the preparation and filing of any Tax Return, claim for
refund or other required or optional filings relating to Tax matters, for the
preparation for any Tax audit, for the preparation for any Tax protest, for the
prosecution or defense of any suit or other proceeding relating to Tax matters.
11.3 Preparation of Allocation Schedule.
(a) Not later than sixty (60) days after the Closing Date, Buyer
shall prepare and deliver to Sellers copies of Form 8594 and any required
exhibits thereto (the "Asset Acquisition Statement") allocating the total
consideration paid to Sellers hereunder among the Subject Assets. Buyer
shall prepare and deliver to Sellers from time to time revised copies of
the Asset Acquisition Statement (the "Revised Statements") so as to report
any matters on the Asset Acquisition Statement that need updating
(including purchase price adjustments, if any). The total consideration
paid by Buyer for the Subject Assets shall be allocated in accordance with
the Asset Acquisition Statement or, if applicable, the last Revised
Statements, provided by Buyer to Sellers, and all income Tax Returns and
reports filed by Buyer and Sellers shall be prepared consistently with
such allocation.
(b) The Asset Acquisition Statement, however, shall not be
inconsistent with any final determination by the Bankruptcy Court, made in
its sole discretion after notice
30
to all parties in interest, concerning the values of the Subject Assets.
Any such determination by the Bankruptcy Court will govern the allocation
of the total consideration paid to Sellers hereunder among the Subject
Assets for all purposes.
ARTICLE XII
DISPUTE RESOLUTION; SERVICE; GOVERNING LAW
12.1 Dispute Resolution; Service of Process; Waiver of Jury Trial.
(a) If any dispute should arise in connection with the
interpretation and fulfillment of this Agreement, the dispute will be
brought in the United States Bankruptcy Court for the Eastern District of
Louisiana or such other court as may have jurisdiction over the Bankruptcy
Case; provided, however, that if the Bankruptcy Court refuses to accept
jurisdiction over any such dispute, then each Party hereto hereby
irrevocably submits to and accepts for itself and its properties,
generally and unconditionally, the non-exclusive jurisdiction of and
service of process pursuant to the laws of the State of New York and the
rules of its courts, waives any defense of forum non conveniens and agrees
to be bound by any judgment rendered thereby arising under or out of in
respect of or in connection with this Agreement or obligation hereunder.
Each Party further irrevocably designates and appoints the individual
identified in or pursuant to Section 14.3 hereof to receive notices on its
behalf, as its agent to receive on its behalf service of all process in
any such Action before any Governmental Authority, such service being
hereby acknowledged to be effective and binding service in every respect.
A copy of any such process so served shall be mailed by registered mail to
each party at its address provided in Section 14.3; provided, that unless
otherwise provided by applicable Law, any failure to mail such copy shall
not affect the validity of the service of such process. If any agent so
appointed refuses to accept service, the designating party hereby agrees
that service of process sufficient for personal jurisdiction in any action
against it in the applicable jurisdiction may be made by registered or
certified mail, return receipt requested, to its address provided in
Section 14.3. Each party hereby acknowledges that such service shall be
effective and binding in every respect. Nothing herein shall affect the
right to serve process in any other manner permitted by Law or shall limit
the right of any party to bring any action or proceeding against the other
party in any other jurisdiction if the Bankruptcy Court refuses to accept
jurisdiction. Nothing herein shall limit or otherwise affect any choice of
Law or choice of venue made by any Seller and Buyer in any other agreement
to which they are both a party.
(b) THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE
TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL
PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER
BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (i) CERTIFIES
THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN
THE EVENT OF
31
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
12.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the Bankruptcy Code and, to the extent not inconsistent with the
Bankruptcy Code, the internal laws of the State of New York, without giving
effect to any choice of law or conflicting provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the laws of any
jurisdiction other than New York to be applied. In furtherance of the foregoing,
the law of the State of New York will control the interpretation and
construction of this Agreement, even if under such jurisdiction's choice of law
or conflict of laws analysis, the substantive law of some other jurisdiction
would ordinarily apply.
ARTICLE XIII
TERMINATION
13.1 Termination. This Agreement may be terminated at any time at or
before the Closing (the "Termination Date"), as follows:
(a) in writing, by mutual consent of the Parties;
(b) at the election of Sellers, on or after June 30, 2005 if the
Closing shall not have occurred by the close of business on such date;
provided that Sellers are not in material default of their obligations
hereunder; and provided further, however, that if the Closing shall not
have occurred by the close of business on June 30, 2005 due solely to the
failure of the Bankruptcy Court to enter the Approval Order and all other
conditions to the obligations of Buyer to close hereunder that are capable
of being fulfilled by June 30, 2005 shall have been so fulfilled or waived
(other than those conditions that, by their terms, cannot be satisfied
until Closing), then Sellers may not terminate this Agreement under this
subsection prior to July 31, 2005;
(c) at the election of Buyer, on or after the earlier (such earlier
date, the "Outside Date") of:
(i) June 30, 2005, if the Closing has not occurred by such
date and an Order authorizing a Competing Transaction has not been
entered by such date; and
(ii) sixty (60) days after entry of an Order authorizing a
Competing Transaction;
provided, that, in each case, Buyer is not in material default of its
obligations under this Agreement; provided, further, however, that if the
Closing shall not have occurred by June 30, 2005 due solely to the failure
of the Bankruptcy Court to enter the Approval Order (other than as a
result of Sellers' failure to prosecute the Sale Motion and/or timely
pursue entry of the Approval Order) and all other conditions to the
obligations of Seller to close hereunder that are capable of being
fulfilled by June 30, 2005 shall have been so
32
fulfilled or waived (other than those conditions that, by their terms,
cannot be satisfied until Closing), then Buyer shall not have the right to
terminate this Agreement under clause (i) above prior to July 31, 2005. If
the Bankruptcy Court has entered an Approval Order approving the
Transaction prior to June 30, 2005, but such Order has not become a Final
Order by June 30, 2005, Buyer may not terminate this Agreement under
clause (i) above until the date that is ten (10) Business Days after the
Approval Order becomes a Final Order. If the date for termination under
this subsection (c) shall have been extended to July 31, 2005 due to the
failure of the Bankruptcy Court to enter the Approval Order on or before
June 30, 2005, and the Bankruptcy Court shall then have entered the
Approval Order on or prior to July 31, 2005, then Buyer shall not be
permitted to terminate this Agreement until the later of (x) July 31, 2005
and (y) after the date that immediately follows the date on which the
Approval Order becomes a Final Order;
(d) by Sellers, on the one hand, or Buyer, on the other hand, if
there shall be any applicable Law (including, without limitation, a
nonappealable Final Order of a Governmental Authority of competent
jurisdiction) restraining, enjoining or otherwise prohibiting the
consummation of the Transaction;
(e) [intentionally omitted];
(f) without further notice or action, by Buyer or Sellers upon the
consummation of a Competing Transaction;
(g) by Buyer, so long as Buyer is not then in material breach of its
obligations under this Agreement, if there shall have been a material
breach by any of Sellers of any representation, warranty, covenant or
agreement of any Seller set forth in this Agreement resulting in a
Material Adverse Effect, in each case such that the conditions set forth
in Section 8.1 would not be satisfied and such breach (i) cannot be cured
by the Outside Date or (ii) has not been cured within thirty (30) days of
the date on which the applicable Seller receives written notice thereof
from Buyer; or
(h) by Sellers, so long as no Seller is then in material breach of
its obligations under this Agreement, if there shall have been a material
breach by the Buyer of any representation, warranty, covenant or agreement
of Buyer set forth in this Agreement, in each case such that the
conditions set forth in Section 8.2 would not be satisfied and such breach
(i) cannot be cured by the Outside Date or (ii) has not been cured within
thirty (30) days of the date on which the Buyer receives written notice
thereof from Sellers.
13.2 Procedure Upon Termination. In the event of termination and
abandonment by Buyer or Sellers, or both, pursuant to Section 13.1 hereof,
except as provided in Section 13.1(f)(in which case no notice shall be
required), written notice thereof shall forthwith be given to the other Party or
Parties, and this Agreement shall terminate, and the purchase of the Subject
Assets hereunder shall be abandoned, without further action by Buyer or Sellers.
13.3 Effect of Termination. In the event that this Agreement is validly
terminated as provided herein, then each of the Parties shall be relieved of
their duties and obligations arising
33
under this Agreement after the date of such termination and such termination
shall be without liability to Buyer or Sellers; provided, however, that the
rights and obligations of the Parties set forth in Sections 3.2, 9.1(e), 14.13
and this Section 13.3 shall survive any such termination and shall be
enforceable hereunder; provided, further, however, that nothing in this Section
13.3 shall relieve Buyer or Sellers of any liability for any willful breach of
its obligations under this Agreement in any material respect.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Amendments and Waivers. This Agreement may be amended and any
provision hereof may be waived from time to time only by written agreement
signed by the Parties. No action taken pursuant to this Agreement, including
without limitation, 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 representation, warranty, covenant or agreement contained herein. The waiver
by any Party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or as a
waiver of any other or subsequent breach. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such Party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law.
14.2 Severability. If any provision of this Agreement is held to be in
conflict with any Law or is otherwise held to be unenforceable for any reason
whatsoever, such circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to any extent whatsoever. The invalidity
of any one or more phrases, sentences, clauses or sections of this Agreement
shall not affect the remaining portions of this Agreement, or any part thereof,
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any Party.
14.3 Notices. Unless otherwise provided in this Agreement, any notice
permitted or required hereunder must be in writing and shall be deemed given (i)
when personally delivered (with confirmation of receipt), (ii) one Business Day
following the day sent by overnight delivery service (with written confirmation
of receipt), (iii) upon written confirmation of receipt after being sent by
United States registered or certified mail, postage prepaid, or (iv) when sent
by telecopy (provided that the telecopy is confirmed by written transmission),
addressed as follows:
34
If to Buyer to:
Cal Dive International, Inc.
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sellers to:
Torch Offshore, Inc.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Restructuring Advisor
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Manager
Telecopier: (504) 367-8605
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Bridge Associates, LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates
c/o ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
King & Spalding LLP
c/o ▇▇▇▇▇▇ ▇. South III
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
35
Any purported notice by e-mail shall be without effect. All notices required
under this Agreement should specifically state that this is a "Notice pursuant
to Section 14.3 of the Torch Asset Purchase Agreement."
14.4 Captions. The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. All references in this
Agreement to any "Section" are to the corresponding Section of this Agreement
unless otherwise specified.
14.5 No Partnership. Nothing herein contained shall be deemed or construed
to create a partnership or joint venture between the Parties.
14.6 Counterparts; Delivery by Facsimile. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement. This Agreement, and any amendments
hereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects as an original Contract and shall be
considered to have the same binding legal effects as if it were the original
signed version thereof delivered in person. At the request of any party hereto
or to any such Contract, each other party hereto or thereto shall re-execute
original forms thereof and deliver them to all other parties. No party hereto or
to any such Contract shall raise the use of a facsimile machine to deliver a
signature or the fact that any signature or Contract was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation of a Contract and each such party forever waives any such defense.
14.7 General Interpretive Principles. Except as otherwise expressly
provided or unless the context otherwise requires, the defined terms in this
Agreement shall include the plural as well as the singular, and the use of any
gender herein shall be deemed to include any other gender. When calculating the
period of time before which, within which or following which any act is to be
done or step taken pursuant to this Agreement, the date that is the reference
date in calculating such period shall be excluded. If the last day of such
period is a non-Business Day, the period in question shall end on the next
succeeding Business Day. Any reference in this Agreement to $ shall mean U.S.
dollars. The Exhibits and Schedules to this Agreement are hereby incorporated
and made a part hereof and are an integral part of this Agreement. All Exhibits
and Schedules annexed hereto or referred to herein are hereby incorporated in
and made a part of this Agreement as if set forth in full herein. Any
capitalized terms used in any Schedule or Exhibit but not otherwise defined
therein shall be defined as set forth in this Agreement. The words such as
"herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement as a
whole and not merely to a subdivision in which such words appear unless the
context otherwise requires. The word "including" or any variation thereof means
"including, without limitation" and shall not be construed to limit any general
statement that it follows to the specific or similar items or matters
immediately following it.
14.8 Punitive, Consequential, and Special Damages. Under no circumstances
shall either Party be liable to the other for any punitive, consequential, or
special damages.
36
14.9 Further Assurances. Sellers and Buyer agree to take all necessary
action and to deliver or cause to be delivered at Closing and at such other
times thereafter any such additional certificates, documents or instruments as
either of them may reasonably request for the purposes of carrying out this
Agreement and the transactions contemplated hereby. Without limitation of the
foregoing, from time to time following the Closing, Sellers and Buyer shall, and
shall cause their respective Affiliates to, execute, acknowledge and deliver all
such further conveyances, notices, assumptions, releases and acquaintances and
such other instruments, and shall take such further actions, as may be necessary
or appropriate to assure fully to Buyer and its respective successors or
assigns, all of the properties, rights, titles, interests, estates, remedies,
powers and privileges intended to be conveyed to Buyer under this Agreement and
to assure fully to Sellers and its successors and assigns, the assumption of the
liabilities and obligations intended to be assumed by Buyer under this
Agreement, and to otherwise make effective the transactions contemplated hereby.
14.10 Entire Agreement. This Agreement, including any Exhibits and
Schedules attached hereto, constitutes the entire understanding and agreement
among the parties with respect to the subject matter of this Agreement, and
supersedes all prior and contemporaneous agreements and understandings,
inducements, or conditions, express or implied, oral or written, except as
contained in this Agreement. Except as specifically set forth herein, this
Agreement is not dependent upon the existence of any other agreement.
14.11 Finders or Broker's Fees. With the exception of their respective
financial advisors, Bridge Associates LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, each
of Buyer (on the one hand), and Sellers (on the other hand), represents and
warrants that neither it nor any of its respective affiliates has dealt with any
broker or finder in connection with any of the transactions contemplated by this
Agreement, and no broker or other person is entitled to any commission or
finder's fee in connection with any of these transactions. Each party shall bear
the fees and expenses of its respective financial advisors; except as
contemplated by the provisions relating to the Expense Reimbursement.
14.12 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any Person not a party to this Agreement.
No assignment of this Agreement or of any rights or obligations hereunder may be
made by any Seller or Buyer (by operation of law or otherwise) without the prior
written consent of the other Parties hereto and any attempted assignment without
the required consents shall be void; provided, however, that Buyer may assign
this Agreement and any or all rights or obligations hereunder (including,
without limitation, Buyer's rights to purchase the Subject Assets) to any
Affiliate of Buyer or any Person from which it has borrowed money; provided,
further, that in the event of any such assignment, Buyer shall not be relieved
of its obligations hereunder. Upon any such permitted assignment, the references
in this Agreement to Buyer shall also apply to any such assignee unless the
context otherwise requires.
14.13 Publicity. Neither any Seller nor Buyer shall issue any press
release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
Parties hereto, which approval will not be unreasonably withheld or delayed,
except to the extent that a particular action is required by
37
applicable Law or by the applicable rules of any stock exchange on which Buyer
or Seller lists securities, provided that, to the extent required by applicable
Law, the party intending to make such release shall use its best efforts
consistent with such applicable Law to consult with the other party with respect
to the text thereof.
38
IN WITNESS WHEREOF both parties have hereunto placed their signatures on
the day and year first written above.
SELLERS:
TORCH OFFSHORE, INC.
____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TORCH OFFSHORE L.L.C.
TORCH EXPRESS L.L.C.
____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
BUYER:
CAL DIVE INTERNATIONAL, INC.
____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and COO
SCHEDULE 6.3(a)
CONFLICTS AND DEFAULTS
The following customers have projects that are currently being performed by the
Sellers:
LLOG Exploration Offshore, Inc.
▇▇▇▇ Oil Company
The inability to complete these projects with the Subject Assets may cause
defaults under the customer contracts.
SCHEDULE 6.4
TAXES
1. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ - ▇▇ ▇▇▇▇ sales tax - not yet paid
2. Louisiana Department of Revenue - Disputed Sales Tax amounts for 1/1/2001
to 7/31/2003
3. Terribone Parish - 2004 property taxes - not yet paid
4. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 2004 property taxes - not yet paid
5. Torch Offshore, Inc. Consolidated 2004 Federal Income Tax Return - not yet
filed
6. State of Delaware - 2004 franchise tax - partially paid
7. State of Louisiana - 2004 State Income Tax Return - on extension
8. State of Texas - 2004 property tax
9. Form 5500 - 401K plan - 2004
10. Vanuatu - 2004 tonnage tax not yet paid
11. Sellers have not filed any Personal Property Reports with the Parish
Assessor of either Jefferson, Plaquemines or Terribone Parish for 2005 or
any prior periods.
SCHEDULE 6.5(b)
LICENSED SOFTWARE
Siemens Ship Management Software - consent of Siemens required to transfer
SCHEDULE 6.6
LEGAL PROCEEDINGS
1. Personal Injury: ▇▇▇ ▇▇▇▇▇▇▇ v. Torch Offshore, Inc.; United States
District Court for the Eastern District of Louisiana; No. 04-1445
2. Petition to recognize privilege and lien: Laredo Offshore v. Tana
Exploration; 32nd JDC; No. 144082
3. Enforcement of maritime lien for crew wages : C-Mar America, Inc. v. M/V
Midnight Wrangler, her engines, freights, tackle, apparel, etc., in rem.;
USDC TX Eastern; No. 1-04CV0792
4. Wrongful Death: ▇▇▇▇▇ ▇. ▇▇▇▇, et al versus Torch Offshore, Inc., et al;
17th Judicial District; No. 97996 Div:"A"
5. Personal Injury: ▇▇▇▇▇ ▇▇▇▇ versus Torch Offshore, Inc. and North American
Capacity Insurance Company; United States District Court for the Eastern
District of Louisiana; No. 04-1524 S (3)
6. Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ versus Torch, Inc.; United States
District Court for Western District of Louisiana; No. CV03-1005
7. Personal Injury: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ versus Torch Offshore, Inc.; Western
District of LA; No. CV04-1208 L-O
8. Personal Injury: ▇▇▇▇ ▇▇▇▇ vs. C-Mar America, Inc, C-Mar Services (Canada)
LTD. And Torch Offshore, Inc.; 80th Judicial District Court; No.
2004-67957
9. Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇▇▇ versus Torch Offshore, Inc. & N. Am. ;
United States District Court for the Eastern District of Louisiana; No.
04-1871 A (1)
10. Personal Injury: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ versus Torch, Inc.; 38th Judicial
District; No. 10-15810
11. Personal Injury: ▇▇▇ ▇▇▇▇▇▇▇▇▇ versus Torch Inc.; 24th Judicial District;
No. 581-518 Div:"L"
12. Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ versus Torch Offshore, Inc.; 24th
Judicial District; No. 608-655 Div:"C"
13. Personal Injury: ▇▇▇▇ ▇. Dressing versus Torch Offshore, Inc.; Southern
District of Texas/Galveston Div.; No. G-04-416
14. Personal Injury: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr. versus Torch, Inc. and Offshore
Express, Inc.; Western District of LA; No. CV04-1925 L-O
15. Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇ versus Torch Offshore, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
Offshore, LLC and Chevron U.S.A., Inc.; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇
▇▇▇▇▇▇; No. 04-03622 Div:"B"
16. Personal Injury: Kiras Scoot vs. Torch Offshore, Inc.; Southern District
of Texas/Galveston Div.; No. G-04-480 Admiralty
17. Employment Practices: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ versus Torch Offshore,
Incorporated; United States District Court for the Eastern District of
Louisiana; No. 04-3089 R (3)
18. Employment Practices: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ versus Torch Offshore,
Incorporated; United States District Court for the Eastern District of
Louisiana; No. 04-3088 T (5)
19. Personal Injury: ▇▇▇▇▇, ▇▇▇ ▇. versus Torch Inc., Gertias DGC Land, & K.C.
Offshore LLC; 21st Judicial Dist. Ct.; No. 90609 Div:"B"
20. Personal Injury: ▇▇▇▇▇▇ ▇▇▇▇▇ vs. Torch Offshore, Inc.; 38th Judicial
District; No. 10-16659
21. Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ v. Torch, Inc.; United States
District Court for the Eastern District of Louisiana; No. 04-0021 S (1)
22. Personal Injury: ▇▇▇ ▇▇▇▇▇▇▇ versus Torch Offshore, Inc.; United States
District Court for the Eastern District of Louisiana; No. 04-1445 S (5)
23. Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ v. Torch, Inc.; United States District
Court for the Eastern District of Louisiana; No. 04-0701 C (2)
24. Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇ v. Torch Offshore, Inc.; Southern District of
Texas/Galveston Div.; No. G-04-401 Admiralty
25. Personal Injury: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ versus Torch Offshore, Inc.; United
States District Court for the Eastern District of Louisiana; No. 04-0344
26. Personal Injury: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ v. Torch Offshore, Inc.; Southern
District, TX; No. G-03-891
27. Shareholder suit: ▇▇▇▇ ▇. ▇▇▇▇▇, et. al. v. Torch Offshore, Inc., et. al.;
United States District Court for the Eastern District of Louisiana; No.
02-00582; 03-30227 (appeal)
28. Damages for additional work: Torch Offshore Inc. ▇. ▇▇▇▇▇▇▇▇ Exploration
Company; United States District Court for the Eastern District of
Louisiana; No. 03-0735 "T"
2
29. Personal Injury: ▇▇▇ ▇. ▇▇▇▇▇ v. Torch Inc., ▇▇▇▇▇▇ DGC Land Inc. & K.C.
Offshore, LLC; State of La Div "B"; No. 90609
30. Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇ versus Torch Offshore, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
Offshore, LLC and Chevron U.S.A., Inc.; State of La Div "B"; No. 2004-3622
31. Petition on open account : ▇▇▇▇ ▇▇▇▇▇▇▇ v. Torch Offshore, Inc.; 24th JDC;
No. 611-189
32. Petition on open account : Redfish Rental v. Torch Offshore, Inc.; 24th
JDC; No. 612-873
33. Petition on open account : North Bank Towing, Inc. v. Torch Offshore,
Inc.; United States District Court for the Eastern District of Louisiana;
No. 04-3183
34. Suit for premiums due on surety bond : US Fire Ins. Co. v. Torch Offshore,
Inc.; United States District Court for the Eastern District of Louisiana;
No. 04-2692
35. Employment Practices: EEOC Charge; NO District Office; No. ▇▇▇-▇▇▇▇-▇▇▇▇▇
36. Employment Practices: EEOC Charge; NO District Office; No. ▇▇▇-▇▇▇▇-▇▇▇▇▇
37. Personal Illness: ▇▇▇▇ ▇▇▇▇▇▇, et al., v. J. ▇▇▇ ▇▇▇▇▇▇▇▇▇, Inc., et al.;
58th Judicial Dist. Court; No. A-0168572
38. Personal Injury: ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ versus Torch
Offshore LLC, Torch Offshore Inc, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇; 24th
Judicial District; No. 614-452 Div:"D"
39. Enforcement of lien for settlement: Tesoro v. Torch, Inc. and Torch
Offshore, LLC; United States District Court for the Eastern District of
Louisiana and Western District of Louisiana; No. 04-2304 and 04-1703
40. Maritime breach of contract and open account : Southland Steel & Supply
Inc. v. Torch, Inc. and Torch Offshore, LLC; United States District Court
for the Eastern District of Louisiana and Western District of Louisiana;
No. 04-3007 and 04-2261
41. Petition on open account : Epic Divers, Inc. v. Torch, Inc. and Torch
Offshore, Inc.; 24th JDC; No. 614-097
42. Breach of contract charter: Cable Shipping, Inc. v. Torch Offshore, LLC
and Torch Offshore, Inc.; United States District Court for the Eastern
District of Louisiana; No. 04-CV 3465
43. Petition to enforce maritime lien for crew charges: C-Mar America, Inc.
and C-Mar Limited versus M/V Midnight Wrangler, M/V Midnight Express, and
M/V Midnight Eagle; United States District Court for the Eastern District
of Louisiana; No. 04-3466
3
44. Intervening Plaintiff to enforce maritime liens: ▇▇▇▇▇▇ Shipbuilding &
Repair Co. versus M/V Midnight Wrangler, M/V Midnight Express, and M/V
Midnight Eagle; United States District Court for the Eastern District of
Louisiana; No. 04-3466
45. Intervening Plaintiff to enforce maritime liens: Quay Marine Associates,
Inc. versus M/V Midnight Wrangler, M/V Midnight Express, and M/V Midnight
Eagle; United States District Court for the Eastern District of Louisiana;
No. 04-3466
46. Vessel Arrest: General Electric Capital Corporation versus M/V Midnight
Wrangler, Torch Offshore, Inc., Torch Offshore, LLC, and Torch Express,
LLC; USDC TX Eastern; No. 104CV0801
47. Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ vs. Torch Offshore LLC; ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇. ▇▇▇▇▇▇▇
48. Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇▇▇ v. Torch Offshore, L.L.C.; Southern
District of Texas/Galveston Div.; No. G-04-660
49. Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ vs. Torch Offshore, L.L.C.; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; No. 2001-60227
50. Personal Injury: ▇▇▇▇▇▇ ▇▇▇▇▇ Prince vs. Torch Offshore, L.L.C.; 113th
Judicial District Court; No. 2004-60216
51. Property Damage: Tennessee Gas Pipeline Company versus Stone Energy
Corporation, Torch Offshore, LLC, and Engineering Corporation of
Louisiana; 15th Judicial District Court; No. 04-0327
52. Breach of contract charter: ▇▇▇▇▇ Vessels (Bilbao) Limited v. Torch
Offshore, LLC; Southern District of New York ; No. 04CV9947
4
SCHEDULE 6.7(a)
COMPLIANCE WITH LAWS
None.
SCHEDULE 6.7(b)(i)
PERMITS
MIDNIGHT BRAVE
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG Official Number: 529263
Certificate of Inspection (COI) 529263 20-Mar-02 20-Mar-07
Certificate of Documentation (COD) 529263 02-Feb-05 28-Feb-06
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
International Oil Pollution Prevention Certificate 529263 04-Sep-03 04-Sep-08
USCG Stability Letter 03-Apr-03 N/A
U.S. FCC Ship Radio Station License 366675530 09-May-95 09-May-05
Bridge to Bridge Radio License 30-Jun-04 30-Jun-05
ABS
International Load Line Certificate LL7008990-9-8 06-Jul-04 N/A
Certificate of Class 7008990 13-Jul-04 30-Apr-09
International Tonnage Certificate (ITC) A0005721 09-Oct-00 N/A
MISCELLANEOUS
Life Raft Certificates 15-Jun-04 15-Jun-05
Fire Fighting Equipment Certificate 28-Jun-04 28-Jun-05
EPIRB Registration 19-Mar-02 11-May-06
MIDNIGHT CARRIER
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
VANUATU OFFICIAL NUMBER 1208
Certificate of Registry 01-0817 05-Sep-01 N/A
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
Vanuatu Ship Radio License 00-0896 ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇▇ Safe ▇▇▇▇▇▇▇ Certificate 00-0807 18-Oct-00 N/A
Exemption Certificate (International Convention for Safety
of Life at Sea 1974) 00-568 18-Aug-00 N/A
Record of approved GMDSS Radio for Safety of Life at Sea 0300171 27-Oct-03 N/A
Authorization to Carry Industrial Personnel 04-1583 29-Sept-04 N/A
Continuous Synopsis 04-1347 05-Aug-04 N/A
LLOYDS
International Load Line Certificate 0000229 12-Oct-00 11-Oct-05
Cargo Ship Safety Construction Certificate 0000229 12-Oct-00 11-Oct-05
Cargo Ship Safety Equipment Certificate 0000229 12-Oct-00 11-Oct-05
Cargo Ship Safety Radio Certificate 0000229 12-Oct-00 11-Oct-05
International Oil Pollution Prevention Certificate 0000229 25-Oct-00 11-Oct-05
Certificate of Class 0000229 12-Oct-00 11-Oct-05
International Tonnage Certificate DCG0000565 25-Jan-01 N/A
MISCELLANEOUS
Fire Fighting Equipment Certificate 18-Aug-04 18-Aug-05
Life Raft Certificates 53970 09-Aug-04 09-Aug-05
EPIRB Registration 22-Sep-03 22-Sep-05
Deratting Certificate 27-Aug-03 27-Feb-04
ABS
International Ship Security Certificate 170102 14-Jan-05 15-Jan-10
Safety Management Certificate ABS 174559 Jan-05 Jan-10
2
MIDNIGHT DANCER
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG Official Number: 586595
Certificate of Inspection (COI) 586595 03-Aug-00 03-Aug-05
Certificate of Documentation (COD) 586595 20-Apr-04 31-May-05
USCG Stability Letter 23-Feb-00 N/A
U.S. FCC Ship Radio Station License 366675530 02-Feb-99 16-Dec-04
Bridge to Bridge Radio Certificate FCC 827 03-Jul-03 03-Jul-04
ABS
International Load Line Certificate 7712781-7 15-Aug-00
Certificate of Class 7712781 03-Aug-99 30-Sep-04
International Tonnage Certificate (ITC) A9904971 20-Jul-99 N/A
MISCELLANEOUS
Fire Fighting Equipment Certificate 31-Jul-03 31-Jul-04
Life Raft Certificates 05-Aug-03 05-Aug-04
EPIRB Registration 03-Sep-99 03-Aug-03
MIDNIGHT RIDER
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG Official Number: 1035377
Certificate of Inspection (COI) 1035377 09-Aug-01 09-Aug-06
Certificate of Documentation (COD) 1035377 27-Aug-04 31-Aug-05
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
International Oil Pollution Prevention Certificate 1035377 09-Aug-01 09-Aug-06
USCG Stability Letter 13-May-98 N/A
U.S. FCC Ship Radio Station License 366878820 16-Jan-03 16-Jan-13
ABS
International Load Line Certificate 9632839-3 08-Jan-02 N/A
Certificate of Class 9632839 28-Aug-01 31-Mar-06
MISCELLANEOUS
Fire Fighting Equipment Certificate 30-Apr-04 30-Apr-05
Life Raft Certificates 18-Aug-04 18-Aug-05
EPIRB Registration 21-May-03 21-May-05
3
MIDNIGHT STAR
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
VANUATU OFFICIAL NUMBER 398
Certificate of Inspection (COI) 1035377 09-Aug-01 09-Aug-06
Certificate of Registry 02-0582 05-Jun-02 N/A
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-01 27-Jul-04
USCG Stability Letter 13-May-98 N/A
Vanuatu Ship Radio License 00-0897 24-Oct-00 23-Oct-04
Minimum Safe ▇▇▇▇▇▇▇ Certificate 00-0898 24-Oct-00 N/A
Exemption Certificate (International Convention for Safety
of Life at Sea 1974) 98-169 25-Mar-98 N/A
Certificate of Approval of Shipboard Oil Pollution Plan 98-245 24-Apr-98 N/A
ABS
International Load Line Certificate (Vanuatu) 7511836-9 30-Mar-00 N/A
Cargo Ship Safety Construction Certificate (Vanuatu) 398 10-Aug-00 31-Jul-04
Cargo Ship Safety Equipment Certificate (Vanuatu) 398 17-May-01 31-Jul-04
Cargo Ship Safety Radio Certificate (Vanuatu) 398 29-Mar-00 31-Jul-04
Safety Management Certificate 75109 05-Jul-02 04-Jul-07
International Oil Pollution Prevention Certificate 398 10-Aug-00 31-Jul-04
Class Survey Report 7511836 22-Apr-03 30-Apr-04
Certificate of Classification 7511836 07-Jan-00 31-Jul-04
MISCELLANEOUS
Fire Fighting Equipment Certificate 16-May-03 16-May-04
Continuous Synopsis Record 02-Mar-04 N/A
Life Raft Certificates 19-May-03 19-May-04
EPIRB Registration 21-May-03 21-May-05
MIDNIGHT EXPRESS
CERTIFICATES AND PERMITS
CERTIFICATE
NUMBER ISSUED EXPIRES
----------- ------ -------
VANUATU OFFICIAL NUMBER 1450; CS. YJSR8
Permanent Certificate of Registry 04-0848 6/2/04 N/A
Alternative Compliance Certificate for Regulations for
preventing Collisions at Sea (Masthead Lights) 03-0369 4/2/03 N/A
Certificate of Exemption for Regulations for Preventing
Collisions at Sea 04-0591 4/2/03 N/A
4
Continuous synopsis record (CSR) document no:-1 04-0572 4/5/04 N/A
Document of Compliance for Safety of Life at Sea ABS 9/10/02 6/11/07
Ship Radio Station License 04-631 6/2/04 6/01/08
Minimum SAFE ▇▇▇▇▇▇▇ 04-0849 6/2/04 N/A
Deratting Certificate (No Copy on board) 6/4/04 12/4/04
Certificate of Approval of the shipboard Oil Pollution
Emergency Plan (SOPEP) 3-0119 2/19/03 N/A
Doorway and stairway Exemption Certificate 03-104 1/28/03 N/A
USCG
Certificate of Financial Responsibility (COFR) 851432-08 8/17/04 8/17/07
USI Insurance Certificate 6/04/04 6/30/05
LLOYDS 0119
International Load Line NOS 0400181 12/02/04 08/23/09
International Tonnage Certificate MTL 0260010 5/17/04
International Oil Pollution Prevention Certificate NOS 0400181 10/27/04 8/23/09
Suez Canal Special Tonnage Cert. MSG 0400354 5/27/04 N/A
Panama Canal Certificate MTL 0260010 5/17/04 N/A
Certificate of Class NOS 0400181 8/23/04 08/23/09
Interim Survey DP 2 Certificate 6/8/04 N/A
Preliminary Heli deck Survey and statement NOS 0400181 11/04/04 N/A
Special Purpose ship safety Certificate NOS 0400181 10/27/04 08/23/09
Cargo Ship Safety Construction Certificate (S/T) NOS 0400181 10/27/04 08/23/09
Cargo Ship Radio Safety Cert. (S/T) NOS 0400181 8/24/04
Record of Approval GMDSS Radio Installation MTL 0370001 5/14/04
Cargo Ship Safety Equipment Cert. NOS 0400181 10/27/04 08/23/09
Cargo Ship Safety Radio Certificate NOS 0400181 8/24/04 11/3/04
Interim Certificate - ISM Code Safety Audit NOS 0409054 10/25/04 04/03/05
International Ship Security Certificate (ABS) 161415 7/6/04 7/05/09
Interim Certificate - various matters - Load Line renewal;
Safcon Renewal, Marpol Oil Renewal, Safety Equipment
Renewal, Radio tel Renewal Interim Certificate - Pipelay
Equipment Installed Interim Certificate - Machinery
- Continuous; Hull - Special; Docking; Annual; Intermediate NOS 400181 03/12/04 N/A
5
Record of Compliance with SOLAS 2000 Amendments 8116049 6/4/04 N/A
ISM Code Cert. - Ship Audit Plan MTL 0400238 6/4/04 N/A
ISM Code Cert. - Ship Audit Report MTL 0400238 6/4/04 N/A
Life Raft Inspection (Viking) V 194650 4/28/04 4/27/05
Life Raft Inspection (Viking) V 194656 4/28/04 4/27/05
Declaration of Shore based Maintenance (Radio Holland) 600-00676 4/30/05
MIDNIGHT FOX
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG OFFICIAL NUMBER: 1065954
Certificate of Inspection (COI) 1065954 19-Sep-00 19-Sep-05
Certificate of Documentation (COD) 1065954 20-Apr-04 31-May-05
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
USCG Stability Letter 20-Aug-98 N/A
U.S. FCC Ship Radio Station License 1065954 10-Sep-98 10-Sep-08
Communications Act Safety Radio Certificate 1065954 27-Jul-04 27-Jul-05
ABS
International Load Line Certificate 21-Aug-03 N/A
International Tonnage Certificate (ITC) A9805921 27-Aug-98 N/A
MISCELLANEOUS
Fire Fighting Equipment Certificate 26-Jul-04 26-Jul-05
EPIRB Registration 20-Jul-04 19-Jul-06
6
SCHEDULE 6.7(b)(ii)
EXCEPTIONS TO PERMITS
MIDNIGHT BRAVE
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG OFFICIAL NUMBER: 529263
Certificate of Inspection (COI) 529263 20-Mar-02 20-Mar-07
Certificate of Documentation (COD) 529263 02-Feb-05 28-Feb-06
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
International Oil Pollution Prevention Certificate 529263 04-Sep-03 04-Sep-08
USCG Stability Letter 03-Apr-03 N/A
U.S. FCC Ship Radio Station License 366675530 09-May-95 09-May-05
Bridge to Bridge Radio License 30-Jun-04 30-Jun-05
ABS
International Load Line Certificate LL7008990-9-8 06-Jul-04 N/A
Certificate of Class 7008990 13-Jul-04 30-Apr-09
International Tonnage Certificate (ITC) A0005721 09-Oct-00 N/A
MIDNIGHT CARRIER
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
VANUATU OFFICIAL NUMBER 1208
Certificate of Registry 01-0817 05-Sep-01 N/A
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
Vanuatu Ship Radio License 00-0896 ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇ of approved GMDSS Radio for Safety of Life at Sea 0300171 27-Oct-03 N/A
Continuous Synopsis 04-1347 05-Aug-04 N/A
LLOYDS
International Load Line Certificate 0000229 12-Oct-00 11-Oct-05
Cargo Ship Safety Construction Certificate 0000229 12-Oct-00 11-Oct-05
Cargo Ship Safety Equipment Certificate 0000229 12-Oct-00 11-Oct-05
Cargo Ship Safety Radio Certificate 0000229 12-Oct-00 11-Oct-05
International Oil Pollution Prevention Certificate 0000229 25-Oct-00 11-Oct-05
Certificate of Class 0000229 12-Oct-00 11-Oct-05
International Tonnage Certificate DCG0000565 25-Jan-01 N/A
MISCELLANEOUS
Deratting Certificate 27-Aug-03 27-Feb-04
ABS
International Ship Security Certificate 170102 14-Jan-05 15-Jan-10
Safety Management Certificate ABS 174559 Jan-05 Jan-10
Authorization to Carry Industrial Personnel 04-1583 29-Sep-04 N/A
MIDNIGHT DANCER
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG OFFICIAL NUMBER: 586595
Certificate of Inspection (COI) 586595 03-Aug-00 03-Aug-05
Certificate of Documentation (COD) 586595 20-Apr-04 31-May-05
USCG Stability Letter 23-Feb-00 N/A
U.S. FCC Ship Radio Station License 366675530 02-Feb-99 16-Dec-04
Bridge to Bridge Radio Certificate FCC 827 03-Jul-03 03-Jul-04
ABS
Certificate of Class 7712781 03-Aug-99 30-Sep-04
MISCELLANEOUS
Fire Fighting Equipment Certificate 31-Jul-03 31-Jul-04
Life Raft Certificates 05-Aug-03 05-Aug-04
EPIRB Registration 03-Sep-99 03-Aug-03
MIDNIGHT RIDER
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
USCG OFFICIAL NUMBER: 1035377
Certificate of Inspection (COI) 1035377 09-Aug-01 09-Aug-06
Certificate of Documentation (COD) 1035377 27-Aug-04 31-Aug-05
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
International Oil Pollution Prevention Certificate 1035377 09-Aug-01 09-Aug-06
USCG Stability Letter 13-May-98 N/A
U.S. FCC Ship Radio Station License 366878820 16-Jan-03 16-Jan-13
ABS
International Load Line Certificate 9632839-3 08-Jan-02 N/A
Certificate of Class 9632839 28-Aug-01 31-Mar-06
2
MIDNIGHT STAR
CERTIFICATE STATUS
ISSUED EXPIRES
------ -------
VANUATU OFFICIAL NUMBER 398
Certificate of Inspection (COI) 1035377 09-Aug-01 09-Aug-06
Certificate of Registry 02-0582 05-Jun-02 N/A
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-01 27-Jul-04
USCG Stability Letter 13-May-98 N/A
Vanuatu Ship Radio License 00-0897 24-Oct-00 23-Oct-04
Certificate of Approval of Shipboard Oil Pollution Plan 98-245 24-Apr-98 N/A
ABS
Cargo Ship Safety Construction Certificate (Vanuatu) 398 10-Aug-00 31-Jul-04
Cargo Ship Safety Equipment Certificate (Vanuatu) 398 17-May-01 31-Jul-04
Cargo Ship Safety Radio Certificate (Vanuatu) 398 29-Mar-00 31-Jul-04
Safety Management Certificate 75109 05-Jul-02 04-Jul-07
International Oil Pollution Prevention Certificate 398 10-Aug-00 31-Jul-04
Class Survey Report 7511836 22-Apr-03 30-Apr-04
Certificate of Classification 7511836 07-Jan-00 31-Jul-04
MISCELLANEOUS
Fire Fighting Equipment Certificate 16-May-03 16-May-04
Continuous Synopsis Record 02-Mar-04 N/A
Life Raft Certificates 19-May-03 19-May-04
EPIRB Registration 21-May-03 21-May-05
MIDNIGHT EXPRESS
CERTIFICATES AND PERMITS
CERTIFICATE
NUMBER ISSUED EXPIRES
----------- ------ -------
VANUATU OFFICIAL NUMBER 1450; CS. YJSR8
Permanent Certificate of Registry 04-0848 6/2/04 N/A
Continuous synopsis record (CSR) document no:-1 04-0572 4/5/04 N/A
Document of Compliance for Safety of Life at Sea ABS 9/10/02 6/11/07
Ship Radio Station License 04-631 6/2/04 6/01/08
Deratting Certificate (No Copy on board) 6/4/04 12/4/04
3
Certificate of Approval of the shipboard Oil Pollution
Emergency Plan (SOPEP) 3-0119 2/19/03 N/A
USCG
Certificate of Financial Responsibility (COFR) 851432-08 8/17/04 8/17/07
USI Insurance Certificate 6/04/04 6/30/05
LLOYDS 0119
International Load Line NOS 0400181 12/02/04 08/23/09
International Tonnage Certificate MTL 0260010 5/17/04
International Oil Pollution Prevention Certificate NOS 0400181 10/27/04 8/23/09
Suez Canal Special Tonnage Cert. MSG 0400354 5/27/04 N/A
Panama Canal Certificate MTL 0260010 5/17/04 N/A
Certificate of Class NOS 0400181 8/23/04 08/23/09
Interim Survey DP 2 Certificate 6/8/04 N/A
Preliminary Heli deck Survey and statement NOS 0400181 11/04/04 N/A
Special Purpose ship safety Certificate NOS 0400181 10/27/04 08/23/09
Cargo Ship Safety Construction Certificate (S/T) NOS 0400181 10/27/04 08/23/09
Cargo Ship Radio Safety Cert. (S/T) NOS 0400181 8/24/04
Record of Approval GMDSS Radio Installation MTL 0370001 5/14/04
Cargo Ship Safety Equipment Cert. NOS 0400181 10/27/04 08/23/09
Cargo Ship Safety Radio Certificate NOS 0400181 8/24/04 11/3/04
Interim Certificate - ISM Code Safety Audit NOS 0409054 10/25/04 04/03/05
International Ship Security Certificate (ABS) 161415 7/6/04 7/05/09
Interim Certificate - various matters - Load Line renewal;
Safcon Renewal, Marpol Oil Renewal, Safety Equipment Renewal,
Radio tel Renewal Interim Certificate - Pipelay Equipment
Installed Interim Certificate - Machinery - Continuous; Hull -
Special; Docking; Annual; Intermediate NOS 400181 03/12/04 N/A
Record of Compliance with SOLAS 2000 Amendments 8116049 6/4/04 N/A
ISM Code Cert. - Ship Audit Plan MTL 0400238 6/4/04 N/A
ISM Code Cert. - Ship Audit Report MTL 0400238 6/4/04 N/A
Life Raft Inspection (Viking) V 194650 4/28/04 4/27/05
Life Raft Inspection (Viking) V 194656 4/28/04 4/27/05
Declaration of Shore based Maintenance (Radio Holland) 600-00676 4/30/05
4
MIDNIGHT FOX
CERTIFICATE STATUS
ISSUED EXPIRES
--------- ---------
USCG OFFICIAL NUMBER: 1065954
Certificate of Inspection (COI) 1065954 19-Sep-00 19-Sep-05
Certificate of Documentation (COD) 1065954 20-Apr-04 31-May-05
Certificate of Financial Responsibility (COFR) 851432-08 27-Jul-04 27-Jul-07
USCG Stability Letter 20-Aug-98 N/A
U.S. FCC Ship Radio Station License 1065954 10-Sep-98 10-Sep-08
Bridge to Bridge Radio Certificate 1065954 27-Jul-04 27-Jul-05
ABS
International Load Line Certificate 21-Aug-03 N/A
International Tonnage Certificate (ITC) A9805921 27-Aug-98 N/A
5
SCHEDULE 6.8
ENVIRONMENTAL MATTERS
1. USCG Marine Safety Unit Houma issued notice on 10/29/04 in connection with
a violation of Environmental Law: Discharge of oil/33 USC 1321 (b)(3).
Description of incident: While taking on fuel, hose became detached
spilling approximately 150 - 200 gallons of fuel into the slip. ES&H
(Spill Response Company) was notified and cleaned up the spill. Torch
notified the USCG whereby after their investigation, they issued a fine of
$1,000.
2. USCG Marine Safety Office ▇▇▇▇▇▇ City issued notice on 12/16/04 in
connection with a violation of Environmental Law: Discharge of oil/33 USC
1321 (b)(3). Description of incident: On 11/19/04 Wrangler deck crew were
lifting W.O.G jumper to set it over the side of the vessel when a main
HYD. Hose started spraying from a fitting on the tech crane. About 150
liters were lost, most was contained on deck and was cleaned up but about
25 liters went over the side of the ship. USCG and the NRC were notified.
Torch received a Letter of Warning from the USCG with no fine issued.
3. USCG Marine Safety Office ▇▇▇▇▇▇ issued notice on 3/14/05 in connection
with a violation of Environmental Law: Discharge of oil/33 USC 1321
(b)(3); Description of incident: On 2/12/05 one half gallon of Hydraulic
Oil discharged into the Gulf of Mexico. Torch received a Letter of Warning
from the USCG with no fine issued.
SCHEDULE 9.1(e)
BREAK-UP FEE ASSETS ALLOCATIONS
Assessed on a vessels-as-units basis, which incorporates related assets and
property into the allocation with such vessels.
VESSEL PERCENTAGE
-------------------- ----------
M/V Midnight Express 69.0%
M/V Midnight Star 5.2%
M/V Midnight Carrier 5.2%
M/V Midnight Brave 8.6%
M/V Midnight Rider 8.6%
M/V Midnight Dancer 3.4%
EXHIBIT A-1
BREAK-UP FEE ASSETS
-------------------
VESSELS
1. Vessel Name: M/V MIDNIGHT EXPRESS
Owner: TORCH EXPRESS, LLC
Classification Society/Class: Lloyds / LRS 100A1 UMS DP(AA)
Built: Helsinki, Finland (1983) By: Valmet
Converted: 2004 By: Davie Maritime
Flag: Vanuatu Place of Registration: Vanuatu
Call Sign: YJSR8 Grt/Nrt: 20655/6196
Official Number: 1450
2. Vessel Name: M/V MIDNIGHT BRAVE
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: American Bureau of Shipping / A1 Barge
Built: Galveston, TX (1970) By: ▇▇▇▇▇ Marine, Inc.
Converted: By:
Flag: USA Place of Registration: USA
Call Sign: WCR 4658 Grt/Nrt: 2895 GT ITC/868 NT ITC
Official Number: 529263
A-1-1
3. Vessel Name: M/V MIDNIGHT CARRIER
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: Lloyd's / +100A1; +LMC
Built: Middleborough, UK (1975) By: ▇▇▇▇▇ Dock Ltd
Flag: Vanuatu Place of Registration: Vanuatu
Call Sign: YJRH8 Grt/Nrt: 2670/801
Official Number: 1209
4. Vessel Name: M/V MIDNIGHT DANCER
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: American Bureau of Shipping /A1 Towing
Service; AMS
Built: Bourg, LA (1977) By: ▇▇▇▇▇ Dry Dock & Service Co.
Inc.
Converted: By:
Flag: USA Place of Registration: NVDC
Call Sign: WCP 3996 Grt/Nrt: 1297 GT ITC/389 NT ITC
196GRT/13 NRT
Official Number: 586595
A-1-2
5. Vessel Name: M/V MIDNIGHT RIDER
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: American Bureau of Shipping / A1 Barge
Built: Morgan City, LA (1995) By: ▇▇▇▇▇▇ Industries, Inc.
Converted: By:
Flag: USA Place of Registration: NVDC
Call Sign: WDB 2699 Grt/Nrt: 2472 GT ITC/742NT ITC
Official Number: 1035377
6. Vessel Name: M/V MIDNIGHT STAR
Owner: TORCH OFFSHORE, L.L.C.
Classification Society/Class: American Bureau of Shipping / A1 Towing
Service; AMS
Built: Houston, Texas (1976) By: ▇▇▇▇▇▇▇ Shipbuilding
Converted: By:
Flag: Vanuatu Place of Registration: Vanuatu
Call Sign: YJXM9 Grt/Nrt: 1114/334
Official Number: 398
A-1-3
CONTRACTS
The Purchased Contracts, which are as follows:
SELLER ENTITY
(NAME ON EFFECTIVE
CONTRACT) COUNTERPARTY NAME DESCRIPTION DATE
--------------------- --------------------------------- ----------------------------------------- ---------
Torch Offshore L.L.C. Caterpillar Motoren GmbH & Co. KG MaK Marine Diesel Engines 6/25/02
Torch Express, L.L.C. ▇▇▇▇▇▇▇ Special Lifting Supply of Lay System for Midnight 6/27/04
Equipment B.V. Express with Amendments and Attachments
Torch Express, L.L.C. Hydralift AmClyde, Inc. 500 MT offshore crane 7/2/02
Torch Express, L.L.C. Power Dynamics, Inc. Pipe Handling System for Midnight Express 3/3/04
Torch Express, L.L.C. Siemens Energy & Automation Inc. Supply of an Integrated Propulsion System 6/27/02
EQUIPMENT AND INVENTORY
All Equipment and Inventory used or held for use in connection with the use and
operation of the Vessels named in this Exhibit A-1, including, without
limitation:
- All machinery, equipment, cranes, masts, riggings, boats, anchors,
cable, chains, tackle, apparel, spare parts and gear attached to
such Vessels, and all other appurtenances thereto appertaining or
belonging, whether now owned or hereafter acquired, and any and all
additions, improvements and replacements made in, on or to any of
such Vessels.
- The equipment and pipe lay system equipment on M/V MIDNIGHT EXPRESS,
including but not limited to the following:
- AMCLYDE 500 - ton Kingpost Crane
- one (1) 160 Te tensioner (pipelay tower)
- one (1) 17.5m diameter aligner (pipelay tower)
- one (1) 250 Te hang-off module (pipelay tower)
- one (1) 250 ton winch capacity, double drum abandon and
recovery winch complete with 10,000' of 3-1/2" diameter
wire rope on below deck storage winch
A-1-4
- one (1) 80 ton capacity abandon and recovery winch with
10,000' of 2" diameter wire rope
- one (1) deck tensioner (firing line)
- one (1) drive system (product reel)
- one (1) 120-ton gantry crane complete with controls
- one (1) hold back winch (firing line)
- one (1) main straightener (pipelay tower)
- one (1) piggyback straightener (pipelay tower)
- one (1) pipe fabrication line (firing line)
- one (1) pipelay tower
- six (6) workstations (firing line)
- two (2) 20.4 m diameter reels (product reel)
- one (1) pipe handling system
- two (2) line-up ROLLER BOXES (firing line)
- Siemens Vessel Management System computer
- The M/V MIDNIGHT DANCER's one (1) 10-ton hydraulic cherry picker
type boom with approximately 65' of boom and one (1) 40-ton ▇▇▇▇▇▇▇,
Model 40SCH hydraulic crane mounted on aft deck and powered by one
6V71 General Motors diesel engine
- The M/V MIDNIGHT RIDER's one (1) Power Dynamics, Inc. tension
machine, Model 50KIP, two (2) Manitowac Model 4000W cranes (S/N
40048 and S/N 40403), ten (10) ▇▇▇▇▇▇ Model 900751 welding machines,
one eight (8) point mooring system with control tower
- The M/V MIDNIGHT CARRIER's one (1) American 5299 crane
- The M/V MIDNIGHT BRAVE's one (1) Manitowoc Model 3900 crane, one (1)
Linkbelt 118 crane, one (1) heliport complete with all safety rails,
color codes and FAA approved lighting, one (1) pipe stinger, one (1)
set of pipe rollers, one seven (7) point mooring system with control
tower
- Refurbished Manitowoc 3900 crane (S/N 391279) in Dulac
- Two (2) P&H truck cranes located in Dulac, LA (S/N 23344 and 23348)
A-1-5
- Self-propelled jet sled (6 roller)
- Nissan forklift - Model KEH02A25 (S/N 900109)
- Toyota forklift - Model 7FD080 (S/N 60083)
- 15 ton Gallon Cherry Picker (S/N 150-FAC-150-DGA-8480)
- 5-ton spooling tensioner
- Two (2) 4-roller jet machines
- Four (4) miscellaneous stingers
- Miscellaneous diving ▇▇▇▇▇▇▇▇
- Miscellaneous diving compressors
- Miscellaneous diving equipment
- 15-person Dodge passenger van (VIN ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇)
- tensioner located on or about Power Dynamics in Mississippi
- to the extent not already set forth above, the equipment listed on
Schedule A attached to this Exhibit A-1
DOCUMENTS
All files, documents, instruments, papers, books, reports, records, tapes,
microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title
policies, customer lists, regulatory filings, operating data and plans,
technical documentation (design specifications, functional requirements,
operating instructions, logic manuals, flow charts, etc.), user documentation
(installation guides, user manuals, training materials, release notes, working
papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web
pages, etc.), and other similar materials related to the Vessels named in this
Exhibit A-1 in each case whether or not in electronic form.
PERMITS
Those Permits listed on Schedule 6.7(b)(i) relating to the Vessels named in
this Exhibit A-1.
WARRANTIES
A-1-6
All Warranties relating to the Vessels named in this Exhibit A-1.
INTELLECTUAL PROPERTY
See Exhibit B and Schedule 6.5(b).
A-1-7
SCHEDULE A
TORCH OFFSHORE INC.
EQUIPMENT LIST AS OF MAY 18, 2005
*This list is being provided for informational purposes only and nothing herein
shall be construed as an agreement by the Debtors to sell any of the equipment
listed herein. The Debtors reserve any and all of their rights to determine
which, if any, of the equipment listed herein shall be sold
YEAR DESCRIPTION DIVISION ASSIGNMENT SERIAL NO. STORAGE LOCATION (1)
---- ----------------------------- ---------- --------------------- ------------ ---------------------
1 Fabrication Pattern Cutting Equipment Fabrication Shop Main Fab Shop
Table, Gas Torch, Optical
tracer
2 Forklift, Nissan Model KEH02 Equipment Fabrication Shop 900109 Mobile in yard
A25
3 2001 Forklift, Toyota Model 7FD080 Equipment Fabrication Shop 60083 Mobile in yard
4 Seven (7) Welding Machines, Equipment Fabrication Shop Main Fab Shop
Shop (Transformer type,
electric)
5 Hose Reel, Hydraulic Machine Equipment Hydraulic Jet Machine East Side of Fab Shop
Jetting with 4" Air, 6"
water and Hydraulic
umbilicals
6 Hydraulic Jet Machine, Equipment Hydraulic Jet Machine Fab Shop Extension
Control Consol
7 Hydraulic Power Unit, Jet Equipment Hydraulic Jet Machine West side of
Machine Roller and cylinder Warehouse
power
8 Hydraulic Power Unit, Jet Equipment Hydraulic Jet Machine West side of
Machine Thruster Power Warehouse
9 Air Compressor, Diving, Equipment NA C6-6068 Fab Shop Extension
Diesel Driven 5120
10 Air Compressor, Diving, Equipment NA C6-6069 Fab Shop Extension
Diesel Driven 5120
11 Air Compressor, Diving, Equipment NA 6098578 Fab Shop Extension Undergoing
Electric 5120 Repair
12 Air Compressor, Diving, Equipment NA 6098577 Fab Shop Extension Undergoing
Electric 5120 Repair
13 Diving ▇▇▇▇, Open Equipment NA East Side of Fab Shop
14 Eleven (11) Concrete Materials NA BGC yard, south fence
Protection Mats, Submar
15 Excavator, ▇▇▇▇ Deere Equipment NA 761448 Mobile in yard
Backhoe Model 310
A-1-8
YEAR DESCRIPTION DIVISION ASSIGNMENT SERIAL NO. STORAGE LOCATION (1)
---- ----------------------------- ---------- --------------------- ------------ ---------------------
16 Firing Line Equipment, Equipment NA BGC Yard
Station #1, Welding Stall,
Contractor Built from 40'
container
17 Firing Line Equipment, Equipment NA BGC Yard
Station #2, Welding Stall,
Contractor Built from 40'
container
18 Firing Line Equipment, Equipment NA BGC Yard
Station #3, Welding Stall,
Contractor Built from 40'
container
19 Five (5) Life rafts, 10 man Equipment NA North Side of
Dispatch Office
20 Hose Reel, Sled Jetting with Equipment NA BGC Yard, near
2x4" Air and 2x4" water Midnight Eagle
21 Hose Reel, Sled Jetting with Equipment NA BGC yard, south fence
4" Air and 6" water
22 Jet Sled, 3" thru 24" Equipment NA BGC yard, south fence
adjustable, crossing jumper
style
23 Life raft, 12 man Equipment NA North Side of
Dispatch Office
24 Life raft, 16 man Equipment NA North Side of
Dispatch Office
25 Pump, Centrifugal , vertical Equipment NA South Side of
turbine feed water, Dispatch Office
Flowserve Model 14ENL-B30
(2550gpm @ 55ft head)
26 Pump, Centrifugal Jet Pump Equipment NA West Side of Fab
(2 stage, United M 10x 23 shop Extension
BFD 493, 2,500gpm @ 400psi
w/1,000hp.) - No Power
27 Pump, Centrifugal Jet Pump Equipment NA North Side of
(4 stage, ▇▇▇▇▇▇▇ 8x10x12.5 Dispatch Office
Model MSB5/4 ST 6, 2,750gpm
@ 900psi w/2,000hp) - No
Power
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ of
Dispatch Office
29 Radiator, xxxx Engine Parts NA Warehouse area
30 Seven (7) Load Cells, Equipment NA Fab Shop Extension
Dyn-a-line
A-1-9
YEAR DESCRIPTION DIVISION ASSIGNMENT SERIAL NO. STORAGE LOCATION (1)
---- ----------------------------- ---------- --------------------- ------------ ---------------------
31 Stinger, 50 ft truss type Equipment NA Near North Dock,
fits Brave or Rider South of ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ft. truss type Equipment NA Near North Dock,
with multiple support South of North Road
rollers - fits Brave and
Rider - two (piece) for
storage
33 Thrusters, Outboard unit Equipment NA South side North
including Propeller and kort Road/shop
nozzle with GE 752 electric
motors
34 Thrusters, ▇▇▇▇▇▇▇▇ upper Equipment NA BGC yard
gearbos and shafts
35 Two (2) Decompression Equipment NA Fab Shop Extension
▇▇▇▇▇▇▇▇, Surface Diving
36 Two (2) Dive ladders Equipment NA
37 Two (2) Pipe Product Line-up Equipment NA BGC yard on top of
Stations, Hydraulic , no Welding station
HPU, Contractor built enclosures
38 Welding Machine, Spare Equipment NA Fab Shop Extension
(Motor-Generator type,
electric)
39 Welding Machine, Spare Equipment NA Fab Shop Extension
(Transformer type, electric)
40 Tensioner, 50 ▇▇▇ track Equipment Portable Power Dynamics Inc.
type, PDI manufacturer in Stennis, MS
41 Firing Line Equipment, Pipe Equipment Spool Base Spool Base
Product Line-up Station,
Hydraulic , no HPU,
Contractor built
42 Firing Line Equipment, Equipment Spool Base Spool Base
Station #1, Welding Stall,
Contractor Built from 40'
container
43 Firing Line Equipment, Equipment Spool Base Spool Base
Station #2, Welding Stall,
Contractor Built from 40'
container
44 Firing Line Equipment, Equipment Spool Base Spool Base
Station #3, Welding Stall,
Contractor Built from 40'
container
45 Firing Line Equipment, Equipment Spool Base Spool Base
Station #4, Coating Stall,
Contractor Built from 40'
container
A-1-10
YEAR DESCRIPTION DIVISION ASSIGNMENT SERIAL NO. STORAGE LOCATION (1)
---- ----------------------------- ---------- --------------------- ------------ ---------------------
46 Firing Line Equipment, Equipment Spool Base Spool Base
Tie-in Station , Spooling
Operations, Contractor Built
from 40' container
47 Hydraulic Power Unit - Equipment Spool Base Spool Base
Skidded Unit - Electric-
Dulac spool base tensioners
and line up station
48 Two (2) Tensioner, 25k Equipment Spool Base Spool Base
-contractor built - PDI
plumbed
49 Air Compressor, 1600 CFM Parts Yard BGC yard, south fence
(Broken - Dropped and Dunked)
50 Anchor, 3,500# Stockless Equipment Yard BGC yard, south fence
51 Anchor, 4,000# Stockless Equipment Yard BGC yard, south fence
52 Anchor, 6,000# Stockless Equipment Yard BGC yard, south fence
53 Anchor, 7,000# Stockless Equipment Yard BGC yard, south fence
54 Anchor, 8,000# Stockless Equipment Yard BGC yard, south fence
55 Anchor, 8,000# Stockless Equipment Yard BGC yard, south fence
56 Crane, Gallon 15 ton cherry Equipment Yard Mobile in yard
picker
57 1982 Crane, Manitowoc 3900 V 100 Equipment Yard 391279 Mobile in yard
Ton Crane
58 Deck Boards Materials Yard West side of
Warehouse
59 Diesel Engine, 471 Detroit Equipment Yard Fab Shop Extension
Diesel (Rebuilt - New)
60 Diesel Engine, 671 Detroit Equipment Yard Fab Shop Extension
Diesel (Rebuilt - New)
61 Flat Boat, 16' with 40 HP Equipment Yard North Side of
Honda Outboard Motor Dispatch Office
62 Floatation Unit Frames, Materials Yard West side of
Pipeline (Marathon) Warehouse
63 Floatation, High Density Materials Yard Warehouse area
(~16"OD x 4' long) cylinders
64 Floatation, Pipeline Materials Yard West side of
(Marathon) Warehouse
65 Generator, ▇▇▇▇▇▇▇ 20 kw Equipment Yard shop
A-1-11
YEAR DESCRIPTION DIVISION ASSIGNMENT SERIAL NO. STORAGE LOCATION (1)
---- ----------------------------- ---------- --------------------- ------------ ---------------------
66 Hydraulic Power Unit, Divers Equipment Yard West Side of Dive
hand tools ▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Devise, Equipment Yard Fab Shop Extension
Enviropack
68 Two (2) Hose Reels, Equipment Yard Dive Shop
Hydraulic Hytorc bolt
tensioning system
69 Outboatrd Motor, 25 HP Equipment Yard shop
70 Pile Driver Leads and Hammer Equipment Yard Northwest side of
Dive Shop
71 Three (3) Davits, Open Equipment Yard North of North Road
Diving ▇▇▇▇
72 Three (3) Fairleaders, Equipment Yard West Side of
Mooring system Dispatch Office
73 Three (3) sets of Bolt Equipment Yard Dive Shop
Tensioning Equipment, Hytorc
System; includes heads and
gauges hose reel and HPU
74 Tractor, International Farm Equipment Yard Mobile in yard
Type - with loader bucket
and ▇▇▇▇ hog
75 1960 Two (2) Cranes, P&H Truck - Equipment Yard 23344 and Mobile in yard
34 ton 23348
76 Two (2) Diesel Equipment Yard Fab Shop Extension
Engine-Generator Sets,
Detroit Diesel 8v71 with
alternator
77 Van, Dodge 2002 crew change Equipment Yard Mobile in yard
78 Air Tugger, 3,000 # line pull Equipment Yard Fab Shop Extension
79 Air Tugger, 10,000 # line Equipment Yard West Road
pull
80 Two (2) Air Tuggers, 4,000 # Equipment Yard West Road
line pull
(1) LOCATION IS DULAC, LA UNLESS OTHERWISE NOTED
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
ADDITIONAL ASSETS
VESSEL
1. Vessel Name: M/V MIDNIGHT FOX
Owner: TORCH OFFSHORE L.L.C.
Classification Society: American Bureau of Shipping
Built: Bayou LA Batre AL (1998) By: J & J Marine, Inc.
Converted: By:
Flag: USA Place of Registration: NVDC
Call Sign: WCY 6879 Grt/Nrt: 348 GT ITC/104NT ITC; 94GRT/ 62NRT
Official Number: 1065954
EQUIPMENT AND INVENTORY
All Equipment and Inventory used or held for use in connection with the use and
operation of the Vessel named in this Exhibit A-2, including, without
limitation, all machinery, equipment, cranes, masts, riggings, boats, anchors,
cable, chains, tackle, apparel, spare parts and gear attached to such Vessel,
and all other appurtenances thereto appertaining or belonging, whether now owned
or hereafter acquired, and any and all additions, improvements and replacements
made in, on or to such Vessel.
DOCUMENTS
All files, documents, instruments, papers, books, reports, records, tapes,
microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title
policies, customer lists, regulatory filings, operating data and plans,
technical documentation (design specifications, functional requirements,
operating instructions, logic manuals, flow charts, etc.), user documentation
(installation guides, user manuals, training materials, release notes, working
papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web
pages, etc.), and other similar materials related to the Vessel named in this
Exhibit A-2 in each case whether or not in electronic form.
A-2-1
PERMITS
Those Permits listed on Schedule 6.7(b)(i) relating to the Vessel named in this
Exhibit A-2.
WARRANTIES
All Warranties relating to the Vessel named in this Exhibit A-2.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
EXCLUDED ASSETS
VESSELS
1. Vessel Name: M/V MIDNIGHT EAGLE
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: American Bureau of Shipping / A1 Barge; DPS-2
Built: ▇▇▇▇▇, LA (1977) By: Shipyard Division, Geosource, Inc.
Converted: By:
Flag: USA Place of Registration: NVDC
Call Sign: WCZ 3366 Grt/Nrt: 1670 TT ITC/501 NT ITC 1499
GRT/1499 NRT
Official Number: 588872
2. Vessel Name: M/V MIDNIGHT GATOR
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: N/A
Built: Houma, LA By: Offshore Shipbuilders Inc.
Converted: By:
Flag: USA Place of Registration: NVDC
Call Sign: Grt/Nrt: 334/334
Official Number: 1131254
A-3-1
3. Vessel Name: M/V MIDNIGHT WRANGLER
Owner: TORCH OFFSHORE L.L.C.
Classification Society/Class: Det Norske Veritas / 1A1 HELDK - EO DYNPOS -
AUTR
Built: Norway (1982) By: Fosen Mek Verksted NS
Converted: 2000 By:▇▇▇▇▇▇ ▇▇▇▇▇ Yard
Flag: Vanuatu Place of Registration: Vanuatur
Call Sign: YJSV6 Grt/Nrt: 1480/4416
Official Number: 1480
4. Vessel Name: M/V SAPPHIRE
Owner: TORCH OFFSHORE, Inc.
Classification Society/Class: N/A
Built: 1970 By: ▇▇▇▇▇▇ Baycraft
Converted: N/A By:
Flag: N/A Place of Registration: LA Dept. of
Wildlife
Call Sign: N/A Grt/Nrt: N/A
Official Number: LA-0803-JN (Registration Number)
EQUIPMENT
- The M/V MIDNIGHT WRANGLER'S Modular Lay System used for the
installation of flexible and rigid pipe/umbilicals and consisting of
the reel drive assembly, reel drive hydraulic unit and hydraulic
control board and pipe lay tower/ramp as described more fully below:
- Reel tracking assembly, including
- port and starboard deck rails (8 segments to accommodate 4
reel positions with hydraulic motors and chain drive to move drive
towers);
A-3-2
- port and starboard sub-base structures (with hydraulic
systems to move the drive towers transverses' to engage the reels,
as described further below); and
- port and starboard side frames (drive towers including drive
hub, drive jacking, with local and remote controls);
- Electric reel drive systems and lay tower components
- Two (2) 8.6m product reels
- Two (2) 9.2m product reels
- Pipe lay tower/ramp, including
- pipe lay entry chute;
- structural tower/ramp upgraded to 20Te capacity;
- pipe straightener;
- tower support stand;
- tower uprighting mechanism;
- tower support HPU;
- pipe tensioner upgraded to l5Te capacity;
- retractable A/R sheave;
- workstation;
- 20Te pipe hang-off clamp;
- 20Te dual pipeline PLET stand;
- 20' containerized control building and electrical equipment
room;
- TSS1 Saturation Diving System, 650' diving depth and Aux.
Equipment (currently on Midnight Wrangler);
- 8' x 8' resistor building;
- one (1) ▇▇▇▇▇▇▇ hydraulic crane (under repair at the Coastal
Equipment yard at ▇▇▇▇▇ ▇▇▇▇▇, La.); and
A-3-3
- 8.6/9.2m Under Roller Assembly with Containerized HPU and
control stand
- The M/V MIDNIGHT EAGLE's one (1) American Crane, Model 5299 (S/N GS17935),
four (4) ▇▇▇▇▇▇ welding machines Model SRH-444, one (1) Lincoln welding
machine Model SAE400, one (1) Manitowac 390 hoist with Vicon 2DM powered by
General Motors Detroit Diesel Model 8V71, one (1) 30 ▇▇▇ S-Lay Tensioner, one
(1) 50' stinger
- The M/V MIDNIGHT GATOR's two (2) Caterpillar Model 3512-D1 (S/N 50Y00958 and
S/N 50Y00957) engines driving skid mounted jet pumps and a 14" x 12" dredge
booster pump skid mounted with 12V71 Detroit Diesel drive unit.
A-3-4
EXHIBIT B
PATENTS
B-1
COUNTRY APP. SERIAL # PATENT # TITLE
-------------- ---------------------------- --------- ----------------------------------
United States 09/898,561 6,554,538 Reel type pipeline laying ship and
method
United States 10/117,946 6,702,519 Reel type pipeline laying ship and
method
United States 10/285,376 6,733,208 Reel type pipeline laying ship and
method
United States 10/050,430 6,761,505 Reel type pipeline laying ship and
method
United States 11/013,677 None Improved underwater trenching
apparatus
PCT PCT/US02/21253 None Reel type pipeline laying ship and
method
Australia 2002354783 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US02/21253
Brazil P10205278-4 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US02/21253
Canada 2,417,280 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US02/21253
Mexico PA/a/2003/001916 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US02/21253
Norway 2003 0008 None Reel type pipeline laying ship and
*entered national state from method
PCT/US02/21253
Trinidad TT/A/2003/00013 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US01/21253
United Kingdom 0300230.0 None Reel type pipeline laying ship and
*entered national stage from method
▇▇▇/▇▇▇▇/▇▇▇▇▇
▇▇▇ ▇▇▇/▇▇▇▇/▇▇▇▇▇ ▇▇▇▇ Reel type pipeline laying ship and
method
Australia 2003205302 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US03/02032
Brazil PI0301999-3 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US03/02032
Canada 2,432,806 None Reel type pipeline laying ship and
*entered from national stage method
from PCT/US03/02032
Mexico PA/a/2003/008701 None Reel type pipeline laying ship and
*entered from national stage method
from PCT/US03/02032
Norway 20033197 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US03/02032
Trinidad TT/A/2003/00126 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US03/02032
United Kingdom 0316148.6 None Reel type pipeline laying ship and
*entered national stage from method
PCT/US03/02032
B-2
B-3
EXHIBIT C
FORM OF ▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE (this "▇▇▇▇ of Sale") is made and delivered this
[___] day of [_______], 2005, by [Seller], a [___________________ ("Seller")]
for the benefit of Cal Dive International, Inc., a Minnesota corporation
("Buyer"). Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement (as hereinafter defined).
WHEREAS, Seller and Buyer have entered into that certain Amended and
Restated Asset Purchase Agreement dated as of June 9, 2005 (the "Agreement"),
the terms of which are incorporated herein by reference, which provides, among
other things, for the sale and assignment by Seller to Buyer of the Subject
Assets.
NOW, THEREFORE, in consideration of the mutual promises contained in
the Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, and subject to the terms
and conditions of the Agreement:
1. Seller does hereby bargain, sell, grant, assign, transfer, convey
and deliver unto Buyer, and its successors and assigns, forever, all of Seller's
right, title and interest in and to the Subject Assets TO HAVE AND TO HOLD such
Subject Assets with all appurtenances thereto, unto Buyer, and its successors
and assigns, for its use forever.
3. This ▇▇▇▇ of Sale shall inure to the benefit of and be binding
upon the parties thereto and their respective successors and assigns.
4. Nothing in this ▇▇▇▇ of Sale, express or implied, is intended to
or shall be construed to modify, expand or limit in any way the terms of the
Agreement. To the extent that any provision of this ▇▇▇▇ of Sale conflicts or is
inconsistent with the terms of the terms of the Agreement, the Agreement shall
govern.
5. This ▇▇▇▇ of Sale is executed and delivered pursuant to the
Agreement.
6. This ▇▇▇▇ of Sale shall be governed by, and construed in
accordance with, the laws of the State of New York, as applied to contracts made
and performed entirely in such State.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Seller
has caused this ▇▇▇▇ of Sale to be executed and delivered as of the day and year
first above written.
[SELLER]
By: _____________________________________
Name: ___________________________________
Title: __________________________________
C-4
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [___], 2005 (this
"Agreement"), between [Seller], a [_________________] ("Seller"), and Cal Dive
International, Inc., a Minnesota corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer are parties to an Amended and Restated Asset
Purchase Agreement, dated as of June 9, 2005 (the "Agreement"), providing for,
among other things, the sale by Seller to Buyer of the Subject Asset and the
assumption by Buyer of the Assumed Liabilities; and
WHEREAS, in accordance with the terms of the Agreement, Seller and Buyer
have agreed to enter into this Agreement, providing for (a) the assignment from
Seller to Buyer of all of Seller's right, title and interest in, under and to
the Purchased Contracts and Transferred Permits from and after the Closing, on
and subject to the terms of the Agreement, and (b) the acceptance by Buyer of
such assignment and the assumption by Buyer of (i) all obligations to be
performed by Seller under the Purchased Contracts and Transferred Permits on and
after the Closing Date and (ii) the other Assumed Liabilities.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Assignment. In accordance with and subject to the terms of the
Agreement, Seller hereby sells, assigns, transfers and conveys to Buyer, to the
extent that such are legally assignable and any necessary consents to assignment
have been obtained, all of Seller's right, title and interest in, under and to
the Purchased Contracts and the Transferred Permits from and after the Closing.
2. Acceptance and Assumption. In accordance with and subject to the terms
of the Agreement, Buyer hereby (a) purchases and accepts the assignment,
transfer and conveyance, to the extent that such are legally assignable and
necessary consents to assignment have been obtained, of Seller's right, title
and interests in, under and to the Purchased Contracts and the Transferred
Permits; (b) assumes, undertakes and agrees, subject to valid claims and
defenses, to pay, satisfy, perform or discharge in accordance with the terms
thereof all obligations and liabilities of any kind arising out of, or required
to be performed under, such assigned Purchased Contracts and Transferred Permits
from and after the Closing; and (c) assumes, undertakes and agrees to pay,
satisfy, perform or discharge in accordance with the terms thereof all of the
Assumed Liabilities and all obligations and liabilities of any kind arising out
of Buyer's assumption of the Assumed Liabilities.
D-1
3. Parties in Interest. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
4. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one and the same
instrument.
5. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York as applied to contracts made and performed
entirely in such State.
6. Definitions. Capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Agreement.
[signature page follows]
D-2
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first written above.
[SELLER]
By: _____________________________________
Name:
Title:
CAL DIVE INTERNATIONAL, INC.
By: _____________________________________
Name:
Title
D-3
EXHIBIT E
PATENT ASSIGNMENT
This Patent Assignment (this "Assignment"), dated as of ____ , 2005, is
made by Torch Offshore, Inc., a Delaware corporation ("Assignor"), in favor of
Cal Dive International, Inc., a Minnesota corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to Section 4.1(g) of that certain Amended and Restated
Asset Purchase Agreement, dated as of June 9, 2005, by and among Assignee,
Assignor, Torch Offshore L.L.C., a Delaware limited liability company, and Torch
Express, L.L.C., a Louisiana limited liability company (the "Asset Purchase
Agreement"), Assignor desires to transfer to Assignee the Patents (as
hereinafter defined) and all right, title and interest thereto.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Asset Purchase Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged:
1. Assignment of the Patents. Assignor does hereby assign, grant,
transfer, contribute and deliver to Assignee the full, exclusive and entire
right, title, and interest in and to: (i) the patents and patent applications
listed on Schedule A attached hereto; (ii) any divisions, continuations,
continuations-in-part, renewals and reissues thereof; (iii) all inventions and
improvements disclosed and described therein, as well as any corresponding (in
whole or in part) future United States or foreign patents and patent
applications; and (iv) the right to claim any applicable priority rights arising
from the scheduled patents and patent applications or otherwise required for
said corresponding future United States or foreign patents and applications
under the terms of any applicable conventions, treaties, statutes, or
regulations (collectively, the "Patents"). Assignor hereby requests the
Commissioner for Patents to issue any and all Patents to Assignee, as the
assignee, for its interest and for the sole use and benefit of Assignee and its
assigns and legal representatives. All rights to the Patents, including, without
limitation, the right to ▇▇▇ for any damages and other remedies in respect of
any infringement of the Patents which may have occurred prior to the date of
this Assignment shall be the sole property of Assignee and inure to the benefit
of Assignee. Assignor further agrees that all necessary records of such Assignor
to establish priority of invention in any interference or similar proceeding
will be made available at no additional charge to Assignee, in the event such
records are needed in connection with any of the assigned Patents.
2. Further Assurances. Assignor agrees without any additional
consideration therefor to sign all documents, execute all divisional,
continuing, renewal, reissue and other applications, make all assignments and
rightful oaths, and generally do everything possible to aid Assignee, its
successors, assigns, and nominees, to obtain and enforce proper protection for
all said Patents in all applicable countries throughout the world.
E-1
3. Successors and Assigns. Assignor hereby acknowledges that the terms and
provisions of this Assignment and the respective rights and obligations of such
Assignor and rights of Assignee hereunder shall be binding upon, and inure to
the benefit of, their respective successors and assigns.
4. Recordings. Assignor hereby acknowledges that an executed copy of this
Assignment may be filed with the United States Patent and Trademark Office or in
the patent office of any other country or region, as applicable, by Assignee or
its affiliates at any time.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
executed and delivered as of the date and year first above written.
TORCH OFFSHORE, INC.,
a Delaware corporation
By: ______________________________
Name:
Title:
E-2
SCHEDULE A
COUNTRY APP. SERIAL # PATENT # TITLE
-------------- ----------------------------- --------- -----------------------------------------
United States 09/898,561 6,554,538 Reel type pipeline laying ship and method
United States 10/117,946 6,702,519 Reel type pipeline laying ship and method
United States 10/285,376 6,733,208 Reel type pipeline laying ship and method
United States 10/050,430 6,761,505 Reel type pipeline laying ship and method
United States 11/[0131],677 None Improved underwater trenching apparatus
PCT PCT/US02/21253 None Reel type pipeline laying ship and method
Australia 2002354783 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US02/21253
Brazil P10205278-4 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US02/21253
Canada 2,417,280 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US02/21253
Mexico PA/a/2003/001916 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US02/21253
Norway 2003 0008 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US02/21253
Trinidad TT/A/2003/00013 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US02/21253
United Kingdom 0300230.0 None Reel type pipeline laying ship and method
*entered national stage from
▇▇▇/▇▇▇▇/▇▇▇▇▇
▇▇▇ ▇▇▇/▇▇▇▇/▇▇▇▇▇ ▇▇▇▇ Reel type pipeline laying ship and method
Australia 2003205302 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
Brazil PI0301999-3 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
Canada 2,432,806 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
Mexico PA/a/2003/008701 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
Norway 20033197 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
Trinidad TT/A/2003/00126 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
United Kingdom 0316148.6 None Reel type pipeline laying ship and method
*entered national stage from
PCT/US03/02032
Schedule A to Exhibit E - Pg. 1
EXHIBIT F
FORM OF POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, which are intended to constitute a
LIMITED POWER OF ATTORNEY, that the undersigned, [Seller] ("Seller") does hereby
appoint Cal Dive International, Inc. ("Buyer"), as its attorney-in-fact to
endorse and deposit all checks and other evidences of indebtedness received by
Buyer on account of the assets transferred by Seller to Buyer pursuant to that
certain Amended and Restated Asset Purchase Agreement (the "Agreement") dated as
of June 9, 2005, by and between, inter alios, Seller and Buyer.
To induce any third party to rely on this instrument, it is hereby agreed
that any third party receiving a duly executed copy or facsimile of this
instrument may rely on this instrument, until revocation of this instrument
shall have been received by such third party, provided Seller delivers to Buyer
written notice (in the manner provided in the Agreement) of the name and address
of such third party simultaneously therewith, and the undersigned hereby agrees
to indemnify and hold harmless such third party from and against any and all
claims that may arise against such third party by reason of such third party
having relied on the provisions of this instrument prior to the receipt of such
revocation.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its duly authorized signatory.
[SELLER]
By: __________________________________
Name:
Title:
Dated: ________ __, 2005
F-1
EXHIBIT G
FORM OF PROTOCOL OF DELIVERY AND ACCEPTANCE
[Torch Offshore, Inc./Torch Offshore L.L.C./Torch Express L.L.C.]
("Seller"), and Cal Dive International, Inc. ("Buyer"), each for itself does
hereby certify: that at __________ o'clock p.m. United States Central Time on
the ___ day of ___________, 2005, at ______________, _______________, Seller
delivered the M/V _____________, Official Number _____ (the "Vessel") to Buyer
pursuant to the terms of that certain Amended and Restated Asset Purchase
Agreement (the "Agreement") dated as of June 9, 2005, by and between Seller and
Buyer, and Buyer accepted such conveyance of title under the Agreement, now
holds title to, and acknowledges that it is in possession of the M/V __________
in accordance with the terms of the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
____ day of ________________, 2005.
[TORCH OFFSHORE, INC./
TORCH OFFSHORE L.L.C./
TORCH EXPRESS, L.L.C.]
BY: ___________________________
Name: _________________________
Its: __________________________
CAL DIVE INTERNATIONAL, INC.
BY: ___________________________
Name: _________________________
Its: __________________________
G-1