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EXECUTION COPY




ASSET PURCHASE AGREEMENT




By and Between




Hornbeck Offshore Services LLC

as Buyer




and




Superior Offshore International, Inc.

as Seller




Dated: January 8, 2008





 









 








Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 SALE AND PURCHASE
	 	 	2	 
	1.1 Sale and Purchase of Assets
	 	 	2	 
	1.2 Purchase Price
	 	 	3	 
	1.3 Closing
	 	 	4	 
	1.4 Assumption of Contracts
	 	 	4	 
	1.5 Excluded Liabilities
	 	 	5	 
	1.6 Transfer Taxes and Fees
	 	 	6	 
	1.7 Ad Valorem Taxes
	 	 	6	 
	1.8 Public Announcements
	 	 	6	 
	 
	 	 	 	 
	ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER
	 	 	6	 
	2.1 Organization and Good Standing
	 	 	6	 
	2.2 Authority of Seller
	 	 	6	 
	2.3 No Conflicts
	 	 	7	 
	2.4 Consents and Approvals
	 	 	8	 
	2.5 Title to Properties
	 	 	8	 
	2.6 Solvency
	 	 	8	 
	2.7 Absence of Certain Changes or Events
	 	 	9	 
	2.8 Absence of Defaults
	 	 	9	 
	2.9 Compliance with Laws
	 	 	10	 
	2.10 Tax Returns and Reports
	 	 	10	 
	2.11 Litigation
	 	 	10	 
	2.12 Accounts and Notes Payable
	 	 	10	 
	2.13 Contracts and Commitments
	 	 	11	 
	2.14 Regulatory Filings
	 	 	11	 
	2.15 Brokers/Advisors
	 	 	11	 
	2.16 Disclosure
	 	 	11	 
	2.17 Construction Payment Documentation
	 	 	12	 
	2.18 Insurance
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER
	 	 	12	 
	3.1 Organization and Good Standing
	 	 	12	 
	3.2 Authority of Buyer
	 	 	12	 
	3.3 No Conflicts
	 	 	12	 
	3.4 Consents and Approvals
	 	 	13	 
	3.5 Brokers
	 	 	13	 
	3.6 Litigation
	 	 	13	 
	3.7 Financing
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	13	 
	4.1 Conduct of Business
	 	 	13	 
	4.2 Approvals
	 	 	14	 






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Table of Contents
(Continued)






	 	 	 	 	 
	 	 	Page	 
	4.3 Compliance with Legal Requirements
	 	 	15	 
	4.4 Books and Records
	 	 	15	 
	4.5 Investigation by Buyer
	 	 	15	 
	4.6 Certain Acts or Omissions
	 	 	15	 
	4.7 Confidentiality
	 	 	15	 
	4.8 Additional Disclosure
	 	 	16	 
	4.9 No Solicitation of Competing Transactions
	 	 	16	 
	4.10 Buyer’s Performance of Assumed Contracts
	 	 	17	 
	4.11 Reimbursement Obligation
	 	 	17	 
	4.12 Cooperation Arrangement
	 	 	20	 
	4.13 Letter of Credit Cancellation
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 5 CONDITIONS TO OBLIGATIONS OF BUYER
	 	 	21	 
	5.1 Representations and Warranties
	 	 	21	 
	5.2 Compliance with Agreement
	 	 	21	 
	5.3 No Action or Proceeding
	 	 	21	 
	5.4 Consents, Authorizations, Etc
	 	 	21	 
	5.5 Corporate Action by Seller
	 	 	21	 
	5.6 Opinion of Counsel
	 	 	22	 
	5.7 No Bankruptcy Proceedings
	 	 	22	 
	5.8 Material Adverse Change to Vessel, Cranes and/or Assumed Contracts
	 	 	22	 
	5.9 Creditor Releases
	 	 	22	 
	5.10 Physical Possession and Control
	 	 	22	 
	5.11 Delivery of Documents and Instruments
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 6 CONDITIONS TO OBLIGATIONS OF SELLER
	 	 	23	 
	6.1 Representations and Warranties
	 	 	23	 
	6.2 Compliance with Agreement
	 	 	24	 
	6.3 No Action or Proceeding
	 	 	24	 
	6.4 Consents, Authorizations, Etc
	 	 	24	 
	6.5 Corporate Action by Buyer
	 	 	24	 
	6.6 Opinion of Counsel
	 	 	24	 
	6.7 Delivery of Purchase Price
	 	 	24	 
	6.8 Delivery of Documents and Instruments
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 7 SURVIVAL
	 	 	25	 
	7.1 Survival of Representations and Warranties
	 	 	25	 
	7.2 Survival of Covenants and Agreements
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 8 INDEMNIFICATION
	 	 	26	 
	8.1 In General
	 	 	26	 
	8.2 Indemnification of Buyer Indemnitees
	 	 	26	 
	8.3 Indemnification of Seller Indemnitees
	 	 	27	 
	8.4 Limitation on Indemnification
	 	 	27	 
	8.5 Method of Asserting Claims, Etc
	 	 	27	 
	8.6 Payment of Indemnity
	 	 	30	 






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Table of Contents
(Continued)





	 	 	 	 	 
	 	 	Page	 
	8.7 Indemnification Reductions and Other Matters
	 	 	30	 
	8.8 Adverse Consequences
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 9 TERMINATION
	 	 	31	 
	9.1 Termination
	 	 	31	 
	9.2 Termination Remedies
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 10 NOTICES
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 11 MISCELLANEOUS
	 	 	33	 
	11.1 Usage of Terms
	 	 	33	 
	11.2 Legal Representation of the Parties
	 	 	34	 
	11.3 Incorporation of Schedules and Appendices; Entire Agreement
	 	 	34	 
	11.4 Waiver
	 	 	35	 
	11.5 Amendment
	 	 	35	 
	11.6 Counterparts
	 	 	35	 
	11.7 Headings
	 	 	35	 
	11.8 Governing Law
	 	 	35	 
	11.9 Risk of Loss
	 	 	35	 
	11.10 Binding Effect; Successors and Assignment
	 	 	35	 
	11.11 Expenses
	 	 	36	 
	11.12 Further Assurances
	 	 	36	 
	11.13 No Third Party Beneficiary
	 	 	36	 
	11.14 Limitation of Liability
	 	 	36	 







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Table of Contents

Schedules




	 	 	 
	Schedule 1.1

	 	Reimbursement Payment Guaranties
	Schedule 2.12

	 	Accounts Payable
	Schedule 2.13

	 	Contracts and Commitments
	Schedule 2.17

	 	Construction Expenses






Appendices




	 	 	 	 	 
	Appendix A

	 	–
	 	Assignment and Assumption of Construction Contract
	Appendix B

	 	–
	 	Assignment and Assumption of NO Crane Contract
	Appendix C

	 	–
	 	Assignment and Assumption of Huisman Crane and Winch Contract
	Appendix D

	 	–
	 	Letter of Credit
	Appendix E

	 	–
	 	Release







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INDEX OF DEFINED TERMS




	 	 	 	 	 
	A&R Equipment
	 	 	2	 
	Accounting Expert
	 	 	19	 
	Acquisition Proposal
	 	 	17	 
	Additional Purchase Price
	 	 	4	 
	Adverse Consequences
	 	 	31	 
	Affiliate
	 	 	3	 
	Agreement
	 	 	1	 
	Assets
	 	 	2	 
	Assumed Contracts
	 	 	4	 
	Base Purchase Price
	 	 	3	 
	Buyer
	 	 	1	 
	Buyer Indemnitees
	 	 	27	 
	Capitalized Interest
	 	 	17	 
	Claim Notice
	 	 	28	 
	Closing
	 	 	4	 
	Closing Date
	 	 	4	 
	Construction Contract
	 	 	5	 
	Contractual Obligation
	 	 	7	 
	Cranes
	 	 	2	 
	Credit Agreements
	 	 	8	 
	Damages
	 	 	27	 
	Definitive Agreement
	 	 	1	 
	Estimated Project Costs
	 	 	17	 
	Excluded Assets
	 	 	3	 
	Excluded Liabilities
	 	 	5	 
	Excluded Payments
	 	 	18	 
	Final Reimbursement Request
	 	 	19	 
	Fortis
	 	 	3	 
	Fortis Credit Agreement
	 	 	8	 
	Governmental Body
	 	 	7	 
	Huisman
	 	 	3	 
	Huisman Crane
	 	 	2	 
	Huisman Crane and Winch Contract
	 	 	5	 
	Indemnified Party
	 	 	27	 
	Indemnifying Party
	 	 	27	 
	Indemnity Notice
	 	 	29	 
	Indemnity Reduction Amounts
	 	 	30	 
	Interim Reimbursement Request
	 	 	19	 
	January 2008 Payments
	 	 	5	 
	JP Morgan
	 	 	3	 
	JP Morgan Credit Agreement
	 	 	8	 
	Law
	 	 	7	 
	Letter
	 	 	1	 






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	Lien
	 	 	2	 
	Liens
	 	 	2	 
	Merwede
	 	 	1	 
	National Oilwell
	 	 	3	 
	NO Crane
	 	 	2	 
	NO Crane Contract
	 	 	5	 
	Notice Period
	 	 	28	 
	Order
	 	 	7	 
	Payment Defaults
	 	 	5	 
	Permits
	 	 	3	 
	Permitted Liens
	 	 	3	 
	Project
	 	 	8	 
	Purchase Price
	 	 	3	 
	Reimbursement Amount
	 	 	18	 
	Reimbursement Guaranties
	 	 	2	 
	Reimbursement Request
	 	 	19	 
	Remaining Contract Payments
	 	 	18	 
	Required Consents
	 	 	7	 
	Review Period
	 	 	19	 
	Seller
	 	 	1	 
	Seller Indemnitees
	 	 	27	 
	Statement of Objections
	 	 	19	 
	Tax
	 	 	10	 
	Tax Return
	 	 	10	 
	Taxes
	 	 	10	 
	Third Party Claim
	 	 	28	 
	Time Charter
	 	 	23	 
	Total Project Costs
	 	 	18	 
	Vessel
	 	 	2	 







-vi-











 





ASSET PURCHASE AGREEMENT




     THIS ASSET PURCHASE AGREEMENT, dated as of January 8, 2008 (together with the appendices and
schedules attached hereto, the “Agreement”) is by and between Hornbeck Offshore Services LLC, a
Delaware limited liability company (the “Buyer”), and Superior Offshore International, Inc., a
Delaware corporation and the successor to Superior Offshore International, L.L.C., a Louisiana
limited liability company (the “Seller”).



W I T N E S S E T H:




     WHEREAS, Seller is a party to a Construction Contract (as defined below) providing for the
construction of the Vessel (as defined below) by IHC Holland Merwede Krimpen BV (as successor in
interest to Merwede Shipyard Nieuwbouw BV) (“Merwede”) and the purchase of such Vessel by Seller;



     WHEREAS, Seller is a party to the NO Crane Contract and Huisman Crane and Winch Contract (each
as defined below) providing for the construction of the Cranes (as defined below) and the purchase
of such Cranes by Seller;



     WHEREAS, construction of the Vessel and the Cranes has not yet been completed and the Vessel
and the Cranes have not yet been delivered to, or accepted by, Seller and Seller does not currently
have title to the Vessel or the Cranes;



     WHEREAS, additional payments are due from Seller to Merwede under the Construction Contract
and to the other parties to the NO Crane Contract and Huisman Crane and Winch Contract;



     WHEREAS, Buyer and Seller have executed and delivered a letter of intent, dated December 14,
2007 (the “Letter”), pursuant to which such parties intend that Buyer or one of its Affiliates
purchase certain assets of Seller, as more specifically set forth in Section 1.1 below;



     WHEREAS, the Letter contemplates the negotiation and execution of a legally binding, written
definitive agreement setting forth the terms and conditions of the sale described in the Letter;



     WHEREAS, Buyer and Seller intend that this Agreement constitute such definitive agreement; and



     WHEREAS, Seller desires to sell to Buyer, Buyer desires to purchase from Seller, the Assets
(as defined below) for the Purchase Price (as defined below) and upon and subject to the terms and
conditions set forth herein.



     NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements set forth
herein and in reliance upon the representations and warranties contained herein, the parties hereto
covenant and agree as follows:



 









 






ARTICLE 1

SALE AND PURCHASE




     1.1 Sale and Purchase of Assets. On the terms and subject to the conditions contained in this
Agreement, Seller shall sell, transfer, convey, assign and deliver to Buyer, at the Closing on the
Closing Date, and Buyer shall purchase from Seller, free and clear of all liens, encumbrances,
mortgages, pledges, charters, leases, charges, options, rights, security interests, agreements, or
claims of any nature whatsoever, recorded or unrecorded (individually a “Lien” and collectively the
“Liens”), other than Permitted Liens, all of Seller’s right, title and interest in and to the
following assets, wherever located (the “Assets”):



     (a) the “Superior Achiever,” a Merwede T-22 design, DP-3 multi-purpose service vessel
currently under construction as Hull No. 714 (the “Vessel”);



     (b) one (1) National Oilwell crane currently under construction (model
no. OC3426KSCE-(20-70)-(29-14)(18.5)(10-30) per Seller’s Purchase Order 0328H0001336 (the “NO
Crane”);



     (c) one (1) Huisman 160-ton crane currently under construction (per Order Confirmation
A06-10840) (the “Huisman Crane”);



     (d) one (1) Huisman 300-ton abandonment and recovery winch currently under construction (per
Order Confirmation A06-10840) and all related lifting and lowering gear and/or equipment currently
under construction (the “A&R Equipment,” together with the NO Crane and the Huisman Crane,
collectively the “Cranes”);



     (e) the Construction Contract, NO Crane Contract and Huisman Crane and Winch Contract (all as
defined below);



     (f) all equipment, machinery, tools, fixtures, furniture, computers and associated hardware
and software, telecommunications and DP systems relating to or necessary for the operation of the
Vessel and the Cranes, and all other tangible and intangible assets and property, including choses
in action, that are owned by Seller, or are to be constructed, incorporated into, intended to be
used for or ordered under the Assumed Contracts for the Vessels and Cranes, and all supplies, spare
parts (such as spare engines, engine parts, shafts rudders and wheels) and warranties (including
pending warranty claims) of all kinds relating to the Vessel, the Cranes or any such other items;
provided, however, that the items to be sold, transferred, conveyed, assigned and delivered
pursuant to this Section 1.1(f) are limited to only those items that can be purchased or are
deliverable under the Construction Contract, NO Crane Contract and Huisman Crane and Winch
Contract;



     (g) the Reimbursement Guaranties issued in favor of Seller by Commerzbank AG Kartoor Amsterdam
set forth in Schedule 1.1 attached hereto (collectively, the “Reimbursement Guaranties”);



     (h) all permits, licenses, certificates, authorizations, consents, approvals, applications,
registrations, exemptions, waivers, notices of intent and orders obtained from or issued by any



2









 







Governmental Body and that relate to the ownership, construction or operation of the Assets
(collectively, the “Permits”); and



     (i) all information, drawings, specifications and manuals relating to the Vessel or Cranes,
purchasing records, correspondence, quality control records and procedures, blueprints, service and
warranty records, equipment logs, operating guides and manuals, records related to personal
property or ad valorem Taxes or sales or use Taxes applicable to the Vessel or Cranes, and all
records, purchase orders, service orders, other contractual rights and correspondence relating to
the Assumed Contracts.


Except for the Assets set forth above, Buyer shall not purchase any other assets or properties of
Seller or its Affiliates (the “Excluded Assets”). The parties agree that the Assets shall not
include any saturation diving systems or remotely operated vehicles. The Buyer agrees that the
Seller does not have title to the Vessel or Cranes as title will pass to the purchaser thereof free
of liens and encumbrances in accordance with the terms of the Assumed Contracts. For purposes
hereof, “Affiliate” shall mean any person who is an “affiliate” of a person as defined in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934. For
purposes hereof, “Permitted Liens” shall mean (i) Liens that are caused or created by Buyer; and
(ii) Liens of, and Liens caused or created by, Merwede, National Oilwell Norway AS (“National
Oilwell”) or Huisman Special Lifting Equipment B.V. (“Huisman”), including Liens of creditors,
suppliers, mechanics, carriers, workers, repairmen or subcontractors of such entities (other than
Liens created or approved in writing by Seller for the benefit of the foregoing).




     1.2 Purchase Price.



     (a) In consideration for the sale and assignment by Seller to Buyer of the Assets, at the
Closing (i) Seller shall assign and Buyer shall assume the Assumed Contracts as set forth in
Section 1.4 below and (ii) Buyer shall pay to Seller (or to the third parties designated by Seller
below) the aggregate base purchase price of SIXTY-NINE MILLION FIVE HUNDRED EIGHT-EIGHT THOUSAND
FIVE HUNDRED FORTY-THREE AND NO/100 DOLLARS (US$69,588,543.00) (the “Base Purchase Price”)
plus the Additional Purchase Price (together with the “Base Purchase Price,” collectively
the “Purchase Price”) in cash as set forth below, after first offsetting the cash payment
obligations of Buyer herein by all amounts due from Seller (or any of its Affiliates) to Buyer (or
any of its Affiliates) under (i) a time charter for the HOS Cape Fear (and/or any other vessel of
Buyer that has provided services to Seller or its Affiliates), (ii) a facility use agreement
between Seller (or any of its Affiliates) and HOS Port LLC and (iii) the terms of Section 11.11:




     (1) an amount specified in writing by Fortis prior to the Closing Date that is
sufficient to repay in full all of Seller’s payment obligations under the Fortis Credit
Agreement (as defined below) shall be paid to Fortis Capital Corp. (“Fortis”) on behalf of
Seller by wire transfer in immediately available federal funds to the account specified in
writing by Fortis prior to the Closing Date;




     (2) an amount specified in writing by JP Morgan prior to the Closing Date shall be paid
to JPMorgan Chase Bank, N.A. (“JP Morgan”) on behalf of Seller by wire



3









 







transfer in
immediately available federal funds to the account specified in writing by JP Morgan prior
to the Closing Date; and




     (3) the remaining amount, if any, shall be paid to Seller by wire transfer in
immediately available federal funds to the account specified in writing by Seller prior to
the Closing Date.



     (b) The “Additional Purchase Price” shall be an amount in cash equal to the aggregate payments
made after the execution date of this Agreement through the Closing Date in connection with the
construction of the Vessel and the Cranes (i) by or on behalf of Seller to Merwede, National
Oilwell or Huisman pursuant to the Assumed Contracts; (ii) plus any amounts drawn down by Merwede,
National Oilwell or Huisman from any letter of credit in their favor securing Seller’s payment
obligations under the Assumed Contracts; provided, that Seller shall promptly provide notice to
Buyer of any such payment or drawdown. All payments included in the Additional Purchase Price
shall be supported by appropriate documentation provided to Buyer at least two (2) days prior to
Closing.



     (c) Except as set forth in subparagraphs (a) and (b) above, no other cash consideration shall
be paid or payable to Seller in connection with the transactions contemplated in this Agreement.



     1.3 Closing. Subject to the terms and conditions hereof, the consummation of the sale and
purchase of the Assets provided for herein (the “Closing”) shall take place at the offices of
Buyer, located at 103 Northpark Boulevard, Suite 300, Covington, Louisiana 70433, at 10:00 a.m.
local time, or at such other place or time upon which Buyer and Seller may mutually agree in
writing, within three (3) business days after all conditions to the Closing set forth in Article 5
and Article 6 (other than those that can only be satisfied at Closing) have been satisfied or
waived by the party entitled to waive same. The date upon which the Closing occurs is referred to
as the “Closing Date.” At the option of the parties to this Agreement, documents to be delivered
at the Closing may be delivered to the place of Closing by facsimile or e-mail transmission on or
before the Closing Date, and the original documents shall be delivered to the place of Closing on
or before the first business day following the Closing Date. At the Closing, Buyer (or an
Affiliate of Buyer acting on Buyer’s behalf), shall pay the Purchase Price to or for the benefit of
Seller by wire transfer in immediately available federal funds to one or more accounts specified by
Seller, Fortis and JPMorgan in a notice of wire instructions provided to Buyer within a reasonable
time before the Closing Date. Each of Buyer and Seller shall further deliver such other documents,
certificates and opinions required to be delivered by such party pursuant to Article 5 and Article
6 hereof, and shall provide proof or indication of the satisfaction or waiver of each of the
conditions set forth in Article 5 and Article 6 hereof to the extent such party is required to
satisfy or obtain a waiver of such condition.



     1.4 Assumption of Contracts. On the Closing, upon the terms and subject to the conditions of
this Agreement (including receipt of any required third party consents), Seller shall assign and
Buyer shall assume (i) the contractual duties, liabilities and obligations of Seller that accrue,
arise or come due after the Closing under the agreements expressly set forth below
(collectively, the “Assumed Contracts”), (ii) Seller’s obligation to pay twenty percent (20%)
of the Contract Price (as defined in the Construction Contract) totaling TWELVE MILLION



4









 







THREE HUNDRED FORTY SEVEN THOUSAND ONE HUNDRED EUROS (€12,347,100.00) to Merwede in January 2008
(representing one-half of the sixth installment not previously paid by Seller and one-half of the
seventh installment to be paid by Seller) and any interest thereon pursuant to the Construction
Contract and (iii) Seller’s obligation to pay ONE MILLION NINE HUNDRED THIRTY-TWO THOUSAND FOUR
HUNDRED THIRTY AND 15/100 DOLLARS (US$1,932,430.15) and any interest thereon to Huisman in January
2008 pursuant to the Huisman Crane and Winch Contract (collectively, the “January 2008 Payments”),
but expressly excluding any debts, liabilities and/or obligations with respect to any breach or
default under any Assumed Contracts (other than breaches or defaults in connection with the failure
to pay the January 2008 Payments when due and any requirement to provide Merwede with replacement
letters of credit (collectively, the “Payment Defaults”)), which arose, accrued or occurred on or
before the Closing Date, all of which shall be, in addition to those liabilities set forth in
Section 1.5 below, Excluded Liabilities:



     (a) that certain Shipbuilding Contract YN-714 between Seller and Merwede for construction of
the Vessel (together with all purchase and change orders for goods, services or other deliverables
issued under or pursuant to such Contract, and all schedules, appendices and amendments thereto,
collectively referred to as the “Construction Contract”), which shall be assigned and assumed
pursuant to the Assignment and Assumption of Construction Contract attached hereto as Appendix A;



     (b) that certain Order Confirmation for Hydralift AHC Crane dated October 30, 2006, together
with the Variation Order dated November 19, 2007, entered into by Seller with National Oilwell for
construction of the NO Crane (together with all purchase and change orders for goods, services or
other deliverables issued under or pursuant to such Contract, and all schedules, appendices and
amendments thereto, collectively referred to as the “NO Crane Contract”), which shall be assigned
and assumed pursuant to the Assignment and Assumption of NO Crane Contract attached hereto as
Appendix B; and



     (c) that certain Order Confirmation A06-10840 for Lifting Gear for Superior Achiever, dated
October 30, 2006, together with the Variation Order dated March 29, 2007, entered into by Seller
with Huisman for construction of the Huisman Crane and A&R Equipment (together with all purchase
and change orders for goods, services or other deliverables issued under or pursuant to such
Contract, and all schedules, appendices and amendments thereto, collectively referred to as the
"Huisman Crane and Winch Contract”), which shall be assigned and assumed pursuant to the Assignment
and Assumption of Huisman Crane and Winch Contract attached hereto as Appendix C.



     1.5 Excluded Liabilities. Except for performance of the Assumed Contracts in accordance with
the express terms of Section 1.4 above, Buyer shall not assume nor agree to pay, perform or
discharge any debts, obligations or liabilities of Seller or any of its Affiliates of any kind or
nature, whether or not such debts, obligations or liabilities related to or arose out of the
conduct of the business of Seller or of its Affiliates or the operation of the Assets or the
Excluded Assets, whether accrued, absolute, contingent or otherwise, whether due, to become due or
otherwise, whether known or unknown, whether payable prior to or after the Closing, which
debts, liabilities and obligations, if ever in existence, shall continue to be debts, liabilities
and obligations of Seller and its Affiliates (collectively, the “Excluded Liabilities”).



5









 





     1.6 Transfer Taxes and Fees. All applicable sales Taxes, transfer Taxes, recording or
transfer fees, costs or premiums for or related to, and other similar costs due and payable in
connection with, the transfer of the Assets to Buyer shall be paid by Buyer; provided, however,
that Seller shall pay any taxes on income or gain attributable to Seller arising from the sale of
the Assets.



     1.7 Ad Valorem Taxes. Ad valorem Taxes relating to the Assets for any ad valorem Tax period
in which the Closing Date falls shall be paid by the Buyer regardless of which party receives a Tax
statement from any Taxing authority. The party named on the relevant ad valorem Tax notice,
assessment or invoice shall pay the amount due, provide the other party copies of the relevant
supporting data and request reimbursement of the other party’s portion of the ad valorem Tax paid.
The parties agree to make appropriate reimbursements in respect of such ad valorem Taxes.



     1.8 Public Announcements. Before making any public announcements with respect to this
Agreement or the transactions contemplated hereby, Seller and Buyer shall each consult with the
other parties hereto and use good faith efforts to agree upon the text of a joint announcement to
be made by Seller and Buyer or use good faith efforts to obtain such other party’s approval of the
text of any public announcement to be made on behalf of any one party. Subject to the preceding
sentence, and except as otherwise agreed in writing by each of the Seller and Buyer or required by
Law, including the securities laws, or the rules and regulations of The New York Stock Exchange and
the Nasdaq Stock Market, each such party shall maintain as confidential the terms and conditions of
this Agreement and the transactions contemplated hereby.



ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF SELLER




     Seller hereby represents and warrants to Buyer that:



     2.1 Organization and Good Standing. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Seller has all requisite corporate
power and authority to own, hold, use and lease its properties and assets and to conduct its
business as it is now being conducted. Seller has made available to Buyer true, complete and
correct copies of its certificate of incorporation and bylaws, as amended to the date of this
Agreement.



     2.2 Authority of Seller. Seller has all requisite corporate power and authority to enter
into, execute and deliver this Agreement and the documents contemplated hereby to be executed by
Seller and to perform the obligations to be performed by Seller hereunder and thereunder,
respectively. The execution, delivery and compliance by Seller with the terms of this Agreement
and the documents contemplated hereby to be executed by Seller, and the consummation by
Seller of the transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action by Seller. This Agreement has been duly executed and delivered by
Seller, and this Agreement constitutes, and the documents contemplated hereby to be executed by
Seller upon their execution and delivery as herein provided will constitute, the legal, valid and
binding obligations of Seller, enforceable against Seller in accordance with their respective



6









 







terms, except as enforcement may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar Laws relating to or affecting creditors’ rights generally
and by general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at Law).



     2.3 No Conflicts. The execution and delivery of this Agreement and the documents contemplated
hereby to be executed by Seller do not, and compliance by Seller with the terms hereof and thereof
and consummation by Seller of the transactions contemplated hereby and thereby will not, except in
each case subject to obtaining the Required Consents (as defined below), (a) violate or conflict
with any existing term or provision of any foreign, federal, state, county, municipal or local law,
treaty, statute, code, ordinance, rule or regulation (“Law”) or any order, writ, judgment,
injunction, ruling, assessment, award, subpoena, or decree (“Order”) of any Governmental Body
applicable to Seller or the Assets so as to materially and adversely affect the ability of Seller
to consummate timely the transactions contemplated hereby or thereby or restrict Buyer’s ability to
use the Assets after the Closing or adversely affect the validity and enforceability of this
Agreement; (b) conflict with or result in a breach of or default under any of the terms, conditions
or provisions of the certificate of incorporation or bylaws of Seller or any material Contractual
Obligation, including the Assumed Contracts, to which Seller is a party or otherwise subject, or by
which Seller or any of Seller’s material assets or properties, including the Assets, may be bound
or subject, in each case where such conflict, breach or default may reasonably be expected to
materially and adversely affect the ability of Seller to consummate timely the transactions
contemplated hereby or thereby or restrict Buyer’s ability to use the Assets after the Closing or
adversely affect the validity and enforceability of this Agreement; (c) result in the creation or
imposition of any Lien upon Seller’s material assets or properties, including the Assets, other
than Permitted Liens referenced in clause (i) of the “Permitted Liens” definition; or (d) give to
others any right of termination, cancellation, acceleration or modification in or with respect to
any material Contractual Obligation, including the Assumed Contracts, to which Seller is a party or
otherwise subject, or by which Seller or any of Seller’s material assets or properties, including
the Assets, may be bound or subject, in each case where such termination, cancellation,
acceleration or modification of any such Contractual Obligation may reasonably be expected to
materially and adversely affect the ability of Seller to consummate timely the transactions
contemplated hereby or thereby or restrict Buyer’s ability to use the Assets after the Closing or
adversely affect the validity and enforceability of this Agreement. Seller is not a party to, or
bound by, any agreement that is currently in effect, granting rights to any person which are
inconsistent with the rights to be granted by Seller in this Agreement and the agreements
contemplated hereby. For purposes of this Agreement, the term “Governmental Body” means any
(i) nation, state, county, city, borough, village, district or other jurisdiction, (ii) federal,
state, local, municipal, foreign or other government or instrumentality, (iii) governmental or
quasi-governmental authority of any nature, including any agency, branch, department, board,
commission, court, tribunal or other entity exercising governmental or quasi-governmental powers,
(iv) multinational organization or body, (v) body exercising or entitled or purporting to
exercise any administrative, executive, judicial, legislative, police, regulatory or taxing
authority or power or (vi) official of any of the foregoing. For purposes hereof, the term
"Contractual Obligation” means any agreement, undertaking, contract, license, indenture, mortgage,
deed of trust or other instrument to which a person is a party or by which it or any of its
properties or assets are bound. “Required Consents” means the notices, consents and approvals
required to be made or obtained under the Assumed



7









 







Contracts, the Credit Agreement, dated as of
February 27, 2007 (the “JP Morgan Credit Agreement”), among Seller, as Borrower, the lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, as amended, and the Credit
Agreement, dated as of June 19, 2007 (the “Fortis Credit Agreement” and, together with the JP
Morgan Credit Agreement, the “Credit Agreements”), among Seller, as Borrower, the Collateral Agent
as named therein, the several lenders from time to time parties thereto, and Fortis Capital Corp.,
as Administrative Agent.



     2.4 Consents and Approvals. The execution and delivery by Seller of this Agreement and the
documents contemplated hereby to be executed by Seller, compliance by Seller with the terms hereof
and thereof and consummation by Seller of the transactions contemplated hereby and thereby do not
require Seller to obtain any consent, approval or action of, make any filings with or give any
notice to any corporation, person, firm or other entity, or any Governmental Body, the failure to
obtain which or give may reasonably be expected to materially and adversely affect the ability of
Seller to timely consummate the transactions contemplated hereby or restrict Buyer’s ability to use
the Assets after the Closing or adversely affect the validity and enforceability of this Agreement,
except in each case for the Required Consents.



     2.5 Title to Properties. Seller has good, valid and indefeasible right, title and interest in
and to the Assumed Contracts, free and clear of any Liens other than (i) Permitted Liens and
(ii) Liens arising pursuant to the Credit Agreements. At the Closing, upon the sale, assignment,
transfer and conveyance of the Assumed Contracts to Buyer, there will be vested in Buyer, good,
valid and indefeasible right, title and interest in and to the Assumed Contracts, free and clear of
any Liens other than Permitted Liens. At the Closing, upon the sale, assignment, transfer and
conveyance of Seller’s right, title and interest in and to the Assets to Buyer, Buyer shall succeed
to all of Seller’s right, title and interest in and to the Assets free and clear of any Liens other
than Permitted Liens. There are no actual, pending or, to the knowledge of Seller, overtly
threatened claims against Seller’s material assets or properties, including the Assets, that could
give rise to a Lien on the Assets (other than (i) Permitted Liens and (ii) Liens arising pursuant
to the Credit Agreements), or acts or incidents which could give rise to any such claims, relating
to or arising out of Seller’s material assets or properties, including the Assets, or the operation
of Seller’s business. Except for the Assets, including the Assumed Contracts, no other assets
(tangible or intangible) owned by Seller or its Affiliates are required for the construction and
completion of the Vessel and the Cranes consistent with the Project. The Assumed Contracts
constitute all the contracts entered into by Seller to construct and complete the Vessel and the
Cranes consistent with the Project. “Project” shall mean for purposes hereof, the construction of
the Vessel as contemplated under the Construction Contract, including the most current versions of
all change orders, drawings and specifications as of the date hereof for the Vessel prepared in
connection therewith, as outfitted by the Cranes according to the specifications and drawings
therefor set forth in the other Assumed Contracts, except that the Project does not include
saturation diving systems and remotely-operated vehicles and equipment necessary for the
operation thereof.



     2.6 Solvency. Seller is not now insolvent, and will not be rendered insolvent by any of the
transactions contemplated herein. In addition, immediately after giving effect to the consummation
of the transactions contemplated herein, (a) Seller will be able to pay it debts as they become
due, (b) Seller will not have unreasonably small assets with which to conduct its present or
proposed business and (c) taking into account all pending and threatened litigation,



8









 







final judgments against Seller in actions for money damages are not reasonably anticipated to be rendered
at a time when, or in amounts such that, Seller will be unable to satisfy any such judgments
promptly in accordance with their terms (taking into account the maximum probable amount of such
judgments in any such actions and the earliest reasonable time at which such judgments might be
rendered) as well as all other obligations of Seller. The cash available to Seller, after taking
into account all other anticipated uses of the cash, will be sufficient to pay all such debts and
judgments promptly in accordance with their terms.



     2.7 Absence of Certain Changes or Events. Except for the Payment Defaults and except as
provided or contemplated by this Agreement, there has not been, occurred or arisen any of the
following as they relate to Seller, Seller’s business or Seller’s material assets or properties,
including the Assets, since September 30, 2007:



     (a) any change in, or any event, condition or state of facts of any character that has had or
would be reasonably expected to have an adverse effect on the Assets, or that adversely affects the
validity or enforceability of this Agreement;



     (b) any destruction, damage, or loss suffered with respect to any of the Assets (whether or
not covered by insurance);



     (c) any sale, charter, lease or other disposition of any of the Assets;



     (d) any mortgage, pledge, or other encumbrance of any of the Assets (other than Permitted
Liens and Liens arising under the Credit Agreements);



     (e) any entry into or amendment or termination of any Contractual Obligation to which Seller
is a party and to which any of the Assets are subject or bound that could reasonably be expected to
have an adverse effect on the Assets;



     (f) any breach of the terms of any Contractual Obligation that could reasonably be expected to
have an adverse effect on the Assets;



     (g) any commencement, notice of commencement or overt threat of commencement of any litigation
or any governmental proceeding against or investigation of Seller that could reasonably be expected
to have an adverse effect on the Assets;



     (h) any waiver or release of any right or claim of Seller relating to the Assets that could
reasonably be expected to have an adverse effect on the Assets;



     (i) any entry into any commitment of any kind, or the occurrence of any event giving rise to
any contingent liability not covered by the foregoing, that could reasonably be expected to have an
adverse effect on the Assets; or



     (j) any contract, commitment or agreement to do any of the foregoing.



     2.8 Absence of Defaults. Neither Seller nor any of its Affiliates is in default, and no event
has occurred which with notice or lapse of time or both would constitute a default, in any way
under any term or provision of any material Contractual Obligation, including the Assumed



9









 







Contracts, to which Seller or any of its Affiliates is a party or by which Seller or any such
Affiliate is bound that would adversely affect the Assets or restrict Buyer’s use of the Assets
after Closing or could materially adversely affect the ability of Seller to consummate timely the
transactions contemplated hereby, other than the Payment Defaults and defaults under the Credit
Agreements.



     2.9 Compliance with Laws. There has been no failure by Seller or its Affiliates to comply
with any applicable Law or Order in any respect that could have an adverse effect on Buyer’s
ability to use the Assets once construction and delivery of the Vessels and Cranes is complete or
on the ability of Seller to consummate timely the transactions contemplated hereby or which could
reasonably be expected to prohibit or restrict Seller from consummating timely the transactions
contemplated hereby.



     2.10 Tax Returns and Reports. Seller has not failed to file any federal, state, local or
foreign Tax reports and Tax Returns (including pursuant to extensions) required to be filed by
Seller with appropriate Governmental Bodies in any jurisdiction in which such returns and reports
are required to be filed where such failure may reasonably be expected to materially and adversely
affect the ability of Seller to consummate timely the transactions contemplated hereby or restrict
Buyer’s ability to use the Assets after the Closing or adversely affect the validity and
enforceability of this Agreement. There are no Tax Liens on the Assets, other than Permitted
Liens. As used in this Agreement, “Tax” or “Taxes” means all income, gross receipts, sales, value
added, use, employment, franchise, profits, ad valorem, personal and real property, excise or other
taxes, fees, stamp taxes and duties, assessments or charges of any kind whatsoever (whether payable
directly or by withholding), together with all interest and all penalties, additions to tax or
additional amounts imposed by any taxing or other Governmental Body with respect thereto and “Tax
Return” means all Tax returns and forms required to be filed or furnished with respect to the
Seller’s material assets or properties, including the Assets, or Seller’s business.



     2.11 Litigation. There are no actions, claims, suits, investigations, inquiries or
proceedings pending against Seller or in rem against any of its material assets or properties,
including the Assets, or, to the knowledge of Seller, overtly threatened against Seller or in rem
against any of its material assets or properties, including the Assets, at law or in equity, in,
before or by any Governmental Body which could reasonably be expected to (i) adversely affect the
validity or enforceability of this Agreement or the documents contemplated hereby to be executed by
Seller or its Affiliates, (ii) delay consummation of the transactions contemplated hereby,
(iii) restrict Buyer’s use of the Assets following the Closing or (iv) establish a Lien against any
of the Assets. Neither Seller nor its Affiliates is in violation of any Order of any
Governmental Body, the result of which violation individually or violations in the aggregate
could reasonably be expected to (i) adversely affect the validity or enforceability of this
Agreement or the documents contemplated to be executed by Seller, (ii) delay consummation of the
transactions contemplated hereby, (iii) restrict Buyer’s use of the Assets following the Closing or
(iv) establish a Lien against the Assets.



     2.12 Accounts and Notes Payable. Schedule 2.12 sets forth an accurate list of all accounts
payable of Seller and its Affiliates with respect to the Assets as of December 31, 2007. All the
accounts and notes payable reflected in such schedule, and all accounts and notes payable



10









 







arising thereafter and before the date hereof relating to the Assets arose from bona fide transactions in
the ordinary course of business.



     2.13 Contracts and Commitments. Schedule 2.13 contains a true, complete and correct list (and
Seller has previously delivered to Buyer true, complete and correct copies) of all Contractual
Obligations, including the Assumed Contracts (other than the Credit Agreements), to which, on the
date of this Agreement, Seller is a party or to which the Assets are subject or bound that may
reasonably be expected to adversely affect the Assets, restrict Buyer’s ability to use the Assets
after Closing, materially adversely affect the ability of Seller to timely consummate the
transactions contemplated hereby or adversely affect the validity and enforceability of this
Agreement. As to each contract set forth in Schedule 2.13, such contract is in full force and
effect, no notice of cancellation or termination or default has been received by Seller and, except
for the Payment Defaults, no event or condition has occurred or exists which, with notice or lapse
of time or both, would constitute a default thereunder, except where such failure, cancellation,
termination, default, event or condition could not reasonably be expected to materially and
adversely affect the ability of Seller to timely consummate the transactions contemplated hereby or
restrict Buyer’s ability to use the Assets after the Closing or adversely affect the validity and
enforceability of this Agreement. As of the date hereof, the Reimbursement Guaranties are the only
payment guaranties required to be issued under the Construction Contract and are in full force and
effect.



     2.14 Regulatory Filings. Seller has, or has caused to be, filed all reports, statements,
documents, registrations, filings or submissions required, in connection with the construction of
the Vessels and the Cranes, to be filed by Seller or its Affiliates with any Governmental Body,
except where such failure to file would not reasonably be expected to materially and adversely
affect the ability of Seller to timely consummate the transactions contemplated hereby or restrict
Buyer’s ability to use the Assets after the Closing or adversely affect the validity and
enforceability of this Agreement. All such filings complied in all material respects with
applicable Law when filed and no deficiencies have been asserted by any such Governmental Body with
respect to such filings or submissions.



     2.15 Brokers/Advisors. All negotiations with respect to this Agreement and the transactions
contemplated hereby have been carried out by Seller directly with Buyer, without the intervention
of any person on behalf of Seller in such manner as to give rise to any valid claim by any person
against Buyer or Seller for a finder’s fee, brokerage commission or similar payment.



     2.16 Disclosure. Copies of the most recent versions of all documents and other written
information referred to herein or in the schedules that have been delivered or made available to
Buyer are true, correct and complete copies thereof and include all amendments, supplements or
modifications thereto or waivers thereunder. Except as expressly set forth in this Agreement or in
the certificates or other documents delivered or made available to Buyer, to the knowledge of the
Seller, there are no other facts which may reasonably be expected to materially and adversely
affect the ability of Seller to consummate timely the transactions contemplated hereby or restrict
Buyer’s ability to use or own the Assets after the Closing or adversely affect the validity and
enforceability of this Agreement.



11









 





     2.17 Construction Payment Documentation. Schedule 2.17 sets forth a true, correct and
complete schedule of all payments made by Seller and its Affiliates as of the execution of this
Agreement with respect to the construction of the Vessel and Cranes. On or before January 8, 2008,
Seller shall provide Buyer with true, correct and complete copies of all material documentation
evidencing the expenses incurred by Seller and its Affiliates pursuant to which the payments listed
on Schedule 2.17 were made. In addition, all documentation provided to Buyer at the Closing
evidencing the expenses constituting the Additional Purchase Price are true, correct and complete.



     2.18 Insurance. Seller does not maintain any insurance on the Vessels or Cranes, except that
the Construction Contract provides that Merwede is to add the Seller as an additional insured under
an insurance policy maintained by Merwede. To Seller’s knowledge, there have been no casualty or
loss claims asserted against such insurance policy with respect to the Vessel or the Cranes as of
the date of this Agreement.



ARTICLE 3

REPRESENTATIONS AND WARRANTIES

OF BUYER




     Buyer represents and warrants to Seller that:



     3.1 Organization and Good Standing. Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.



     3.2 Authority of Buyer. Buyer has all requisite limited liability company power and authority
to enter into this Agreement and the documents contemplated hereby to be executed by it and to
perform the obligations to be performed by it hereunder and thereunder. The execution, delivery
and compliance by Buyer with the terms of this Agreement and the documents contemplated hereby to
be executed by Buyer, and the consummation by Buyer of the transactions contemplated hereby and
thereby have been duly authorized by all necessary limited liability company action by Buyer. This
Agreement has been duly executed and delivered by Buyer. This Agreement constitutes, and the
documents contemplated hereby to be executed by Buyer upon its execution and delivery as herein
provided will constitute the legal, valid and binding obligations of Buyer, enforceable against the
Buyer in accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws relating
to or affecting creditors’ rights generally
and by general principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at Law).



     3.3 No Conflicts. The execution and delivery of this Agreement by Buyer, and the consummation
of the transactions contemplated hereby, and the execution and delivery by Buyer of, and the
consummation of the transactions contemplated by, the documents contemplated hereby to be executed
by Buyer, will not (a) violate or conflict with any existing term or provision of any Law or Order
of any Governmental Body applicable to Buyer so as to materially and adversely affect the ability
of Buyer to consummate the transactions contemplated hereby or thereby; (b) conflict with or result
in a breach of or default under any of the terms, conditions or provisions of the articles of
formation or limited liability company agreement of



12









 







Buyer or any Contractual Obligation to which
Buyer is a party, where such breach or default may reasonably be expected to materially and
adversely affect the ability of Buyer to consummate the transactions contemplated hereby or thereby
or (c) give to others any right of termination, cancellation, acceleration or modification in or
with respect to any Contractual Obligation to which Buyer is a party where such termination,
cancellation, acceleration or modification of any such Contractual Obligation may reasonably be
expected to materially and adversely affect the ability of Buyer to consummate the transactions
contemplated hereby.



     3.4 Consents and Approvals. The execution and delivery by Buyer of this Agreement and the
documents contemplated hereby to be executed by Buyer, compliance by Buyer with the terms hereof
and thereof, and the consummation by Buyer of the transactions contemplated hereby and thereby, do
not require Buyer to obtain any consent, approval or action of, or make any filing with or give any
notice to (other than filings and press releases required under applicable securities laws) any
corporation, person or firm or other entity or any Governmental Body, the failure to obtain which
may reasonably be expected to materially and adversely affect the ability of Buyer to consummate
the transactions contemplated hereby, except for any notices required to be given to Buyer’s lender
under its primary bank credit facilities.



     3.5 Brokers. All negotiations with respect to this Agreement and the transactions
contemplated hereby have been carried out by Buyer directly with Seller, without the intervention
of any person on behalf of Buyer in such manner as to give rise to any valid claim by any person
against Seller or Buyer for a finder’s fee, brokerage commission or similar payment.



     3.6 Litigation. There are no actions, claims, suits, investigations, inquiries or proceedings
pending against Buyer or, to the knowledge of Buyer, overtly threatened against Buyer, at law or in
equity, in, before or by any Governmental Body which could reasonably be expected to materially and
adversely affect the validity or enforceability of this Agreement or the documents contemplated
hereby to be executed by Buyer, and Buyer is not in violation of any Order of any Governmental
Body, where such violation may reasonably be expected to materially and adversely affect the
validity or enforceability of this Agreement.



     3.7 Financing. Buyer has available, and on the Closing Date will have available, sufficient
cash, available lines of credit or other sources of immediately available funds to enable it to pay
the Purchase Price and pay any other amounts to be paid by it under this Agreement or the Assumed
Contracts, including the January 2008 Payments. Buyer’s obligations under this
Agreement are not subject to any condition regarding Buyer’s ability to obtain financing for
the consummation of the transactions contemplated hereunder.



ARTICLE 4

COVENANTS




     4.1 Conduct of Business. Except as expressly permitted or required by this Agreement or
agreed to in writing by Buyer, or as required to effectuate the transactions contemplated by this
Agreement, and except that Seller shall not be required to make any payments under the Assumed
Contracts, during the period commencing on the date hereof and




13












 




ending on the earlier of (i) the
Closing Date and (ii) the date on which this Agreement is terminated in accordance with its terms:




     (a) Seller shall use its reasonable commercial efforts to maintain, preserve and protect the
Assets;



     (b) Seller shall not amend, supplement, modify, terminate or waive any rights under any
Contractual Obligation of Seller in any way that may reasonably be expected to adversely affect the
Assets, the ability of Seller to consummate timely the transactions contemplated hereby, adversely
affect the validity or enforceability of the Agreement or restrict Buyer’s use of the Assets after
Closing, nor shall Seller enter into any change orders for the Assumed Contracts;



     (c) Seller shall not delay or defer the payment of any accounts payable outside the ordinary
course of business consistent with past practice, except where said accounts payable are disputed
in good faith, that does, or could reasonably be expected to, result in a Lien against any of the
Assets (other than Permitted Liens and Liens arising under the Credit Agreements);



     (d) Seller shall not enter into any material Contractual Obligation or incur any material
liabilities outside of the ordinary course of business that could adversely affect or bind the
Assets, including any charters for any of the Assets, materially or adversely affect the ability of
Seller to consummate timely the transactions contemplated hereby, adversely affect the validity or
enforceability of the Agreement or restrict Buyer’s use of the Assets after the Closing, nor shall
Seller enter into any change orders for the Assumed Contracts;



     (e) Seller shall not amend, supplement, modify, terminate or waive any rights under any of the
Assumed Contracts; or



     (f) Seller shall not authorize any of, or commit or agree to take any of, the foregoing
actions.



     4.2 Approvals. Seller shall use its commercially reasonable efforts to obtain, and Buyer
shall reasonably cooperate with Seller in obtaining, as promptly as possible, all approvals,
consents, authorizations and clearances of Governmental Bodies and other third parties, including
the Required Consents, required of Seller to consummate the transactions contemplated hereby.
Buyer shall use its commercially reasonable efforts to obtain, and Seller shall reasonably
cooperate with Buyer in obtaining, as promptly as possible, all approvals, consents, authorizations
and clearances of Governmental Bodies and other third parties required of Buyer to consummate the
transactions contemplated hereby. Seller and Buyer shall
reasonably cooperate to provide such other information and communications to Governmental
Bodies as such Governmental Bodies may request and to obtain the requisite consents of third
parties required to consummate the transactions contemplated hereby. Notwithstanding any other
language herein, neither Seller nor Buyer shall be required to make any payment (other than nominal
payments required of Seller that are not significant in amount in the aggregate) or other
concession or to assume any obligation (other than assumption of the Assumed Contracts by Buyer as
expressly set forth herein) in connection with obtaining any consents required to consummate the
transactions contemplated hereby (including the Required Consents).



14









 





     4.3 Compliance with Legal Requirements. Seller and Buyer shall comply promptly with all
requirements which applicable Law may impose on Seller or Buyer, as appropriate, or any of their
respective Affiliates with respect to the transactions contemplated by this Agreement, and will
promptly cooperate with and furnish information to the other party in connection with any such
requirements imposed upon Seller or Buyer in connection therewith.



     4.4 Books and Records. Seller shall make its books and records related to the Assets
available or shall deliver copies thereof to Buyer during normal business hours for any reasonable
business purpose.



     4.5 Investigation by Buyer. From and after the date hereof and until the earlier of the
Closing Date or the termination of this Agreement in accordance with its terms, Seller shall permit
Buyer and its counsel, accountants and other representatives reasonable access during normal
business hours to all of its properties, books, contracts, commitments and other records relating
to or affecting the Assets including without limitation Tax returns, declarations of estimated Tax
and Tax reports, and, during such period, Seller shall furnish promptly to Buyer and its
representatives all other information concerning the Assets as Buyer and its representatives may
reasonably request; provided, however, that NO INVESTIGATION PURSUANT TO THIS SECTION 4.5 OR
OTHERWISE SHALL LIMIT THE EFFECT OF ANY REPRESENTATIONS OR WARRANTIES CONTAINED IN THIS AGREEMENT.



     4.6 Certain Acts or Omissions. Neither Seller nor Buyer shall (a) omit to take any action
called for by any of its covenants contained in this Agreement, or (b) take any action which it is
required to refrain from taking by any of such covenants. Each of Seller and Buyer shall, before
the Closing, use reasonable commercial efforts to cure any violation or breach of any of its
representations, warranties or covenants contained in this Agreement, which becomes known to it,
occurs or arises subsequent to the date of this Agreement and shall use reasonable commercial
efforts to obtain the satisfaction of all conditions to Closing set forth in this Agreement.



     4.7 Confidentiality.



     (a) Seller shall not, before the Closing Date, disclose directly or indirectly or allow any of
its Affiliates to disclose directly or indirectly to third parties any information that Seller has
obtained from Buyer in connection with this Agreement with respect to Buyer or any of its
Affiliates, and from and after the Closing Date, Seller shall not disclose directly or indirectly
or allow any of its Affiliates to disclose directly or indirectly to third parties, nor will Seller
use for its own benefit or the benefit of any third party or allow any of its Affiliates to use for
its own
benefit or the benefit of any third party, any trade secrets, customer and supplier lists,
marketing arrangements, business plans, projections, financial information, training manuals,
pricing manuals, product and service development plans, market strategies, internal performance
statistics, business secrets or other information relating to the Assets or any information that
Seller has obtained from Buyer in connection with this Agreement with respect to Buyer or any of
its Affiliates, unless disclosure may otherwise be required pursuant to applicable Law or
Governmental Body; provided that the party being required to disclose such information shall notify
Buyer party promptly after receipt of any disclosure notice to provide Buyer with an opportunity to
legally prevent such disclosure.



15









 





     (b) Buyer shall not, before the Closing Date, disclose directly or indirectly or allow any of
its Affiliates to disclose directly or indirectly to third parties any information that Buyer has
obtained from Seller in connection with this Agreement with respect to Seller or any of its
Affiliates, and from and after the Closing Date, Buyer shall not disclose directly or indirectly or
allow any of its Affiliates to disclose directly or indirectly to third parties, nor will Buyer use
for its own benefit or the benefit of any third party or allow any of its Affiliates to use for its
own benefit or the benefit of any third party, any trade secrets, customer and supplier lists,
marketing arrangements, business plans, projections, financial information, training manuals,
pricing manuals, product and service development plans, market strategies, internal performance
statistics, business secrets or any information that Buyer has obtained from Seller in connection
with this Agreement with respect to Seller or any of its Affiliates, expressly excluding
any information that pertains or relates to the Assets, unless disclosure may otherwise be required
pursuant to applicable Law or Governmental Body; provided that the party being required to disclose
such information shall notify Seller party promptly after receipt of any disclosure notice to
provide Seller with an opportunity to legally prevent such disclosure.



     (c) Notwithstanding any of the foregoing, nothing in this Agreement shall prohibit Buyer or
Seller from making any public disclosures (which may include the filing of this Agreement as an
exhibit to a filing with the Securities and Exchange Commission) as required by the securities laws
or the rules and regulations of The New York Stock Exchange or the Nasdaq Stock Market.



     4.8 Additional Disclosure.



     (a) From the date of this Agreement to and including the Closing Date or the termination of
this Agreement in accordance with its terms, Seller shall promptly after the occurrence thereof is
known to Seller advise Buyer of each event subsequent to the date hereof which causes any covenant
of Seller to be breached or causes any representation or warranty of Seller contained herein to no
longer be true, correct or complete, or that otherwise materially and adversely affects Seller or
its business or adversely affects the Assets.



     (b) From the date of this Agreement to and including the Closing Date or the termination of
this Agreement in accordance with its terms, Buyer shall promptly after the occurrence thereof is
known to Buyer advise Seller of each event subsequent to the date hereof which causes any covenant
of Buyer to be breached or causes any representation or warranty of Buyer contained herein to no
longer be true, correct or complete, or that otherwise materially and adversely effects Buyer or
its business.



     (c) Any disclosure made by Seller or Buyer after the date of this Agreement pursuant to this
Section 4.8 shall not modify, amend, supplement or limit any representations or warranties
contained in this Agreement and shall not affect the right of the non-disclosing party to seek
Damages for breaches thereof in accordance with Article 8 or to terminate this Agreement in
accordance with Article 9.



     4.9 No Solicitation of Competing Transactions. From and after the date of this Agreement
until the Closing Date, Seller shall not, directly or indirectly, through any officer, director,
employee, representative or agent thereof, solicit or encourage the initiation or



16









 







submission of any
inquiries, proposals or offers regarding the sale or charter (except for marketing of Seller’s
services with the Vessel in the ordinary course of its business) of any of the Assets (any of the
foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”). Seller
shall immediately notify Buyer after receipt of any Acquisition Proposal or any request for
nonpublic information relating to Seller, its Affiliates or the Assets in connection with an
Acquisition Proposal or for access to the properties, books or records of Seller or its Affiliates
in connection with an Acquisition Proposal or that informs the board of directors of Seller that
the entity making the request is considering making or has made an Acquisition Proposal. Such
notice to Buyer shall be made promptly orally and in writing and shall indicate in reasonable
detail the identity of the offeror and the terms and conditions of such proposal, inquiry or
contact. Subject to their fiduciary duties, so long as this Agreement remains in effect and has
not been terminated under Article 9, the board of directors of Seller shall not (i) withdraw or
modify, or propose to withdraw or modify, in a manner adverse to Buyer the approval or
recommendation by such board of this Agreement, the agreements contemplated herein or the
transactions contemplated hereby, (ii) approve or recommend, or propose to approve or recommend,
any Acquisition Proposal (other than as contemplated in this Agreement) or (iii) approve or
authorize the entering into any agreement with respect to any Acquisition Proposal.
Notwithstanding anything herein to the contrary, nothing herein shall prohibit or otherwise
restrict Seller from negotiating, committing to or consummating, directly or indirectly, any
financing, borrowing, charter, merger, business combination, tender offer, exchange offer, sale of
capital stock or assets (other than a sale or charter of the Assets) or similar transaction
involving the Seller, provided that Seller shall promptly notify Buyer of the execution of any
letters of intent, memorandum of understandings or similar agreements with any interested parties
with respect to any of the foregoing.



     4.10 Buyer’s Performance of Assumed Contracts. From and after the Closing, Buyer shall
perform all of the rights, duties, liabilities and obligations of Seller in, to and under the
Assumed Contacts which arise, accrue or come due after the Closing Date and pay the January 2008
Payments. Buyer acknowledges the existence of the Payment Defaults and Buyer shall promptly, after
the Closing Date, make the January 2008 Payments to cure the Payment Defaults.



     4.11 Reimbursement Obligation.



     (a) Subject to the terms and conditions set forth in this Section 4.11, Seller agrees that if
the Total Project Costs exceed the Estimated Project Costs, Seller shall pay Buyer an amount equal
to the Reimbursement Amount.



     (b) The following terms are used in this Agreement with the meanings set forth below:



     “Capitalized Interest” shall mean an amount of interest expense attributable to Buyer or its
Affiliates on indebtedness for money borrowed that is incurred and used to fund the Purchase Price
and the Remaining Contract Payments during the period from the Closing Date to delivery and
acceptance of the Vessel and that is required to be capitalized under generally accepted accounting
principles at the agreed upon rate of 7.75% per annum.



     “Estimated Project Costs” shall equal US$120,000,000.00.



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     “Excluded Payments” shall mean all payments (other than the January 2008 Payments) arising out
of, based upon or resulting from (i) breaches or defaults arising or accruing after the Closing
Date, (ii) modifications or change orders requested by Buyer or its Affiliates after the Closing
Date, (iii) delays attributable to, caused by or otherwise resulting from Buyer and (iv) any
amendments, modifications, waivers or assignments to the Assumed Contacts made after the Closing
Date.



     “Reimbursement Amount” shall be the amount calculated by subtracting the Estimated Project
Costs from the lesser of (i) the Total Project Costs and (ii) US$128,000,000.00.



     “Remaining Contract Payments” shall mean an amount equal to the sum of all payments (other
than Excluded Payments) made by or on behalf of Buyer or its Affiliates on or after the Closing
Date to (i) Merwede pursuant to, and in accordance with, the Construction Contract, (ii) National
Oilwell pursuant to, and in accordance with, the NO Crane Contract, (iii) Huisman pursuant to, and
in accordance with, the Huisman Crane and Winch Contract and (iv) any Taxing authorities pursuant
to Sections 1.6 and 1.7 of this Agreement; provided, however, that for purposes of this definition,
any such payments that are paid by or on behalf of Buyer or its Affiliates in Euros shall be
converted from Euros to US Dollars at an exchange rate of 1.0 Euro to 1.46 US Dollars.



     “Total Project Costs” shall equal the sum of the Purchase Price, the Remaining Contract
Payments and Capitalized Interest.



     (c) Buyer shall maintain books and records of account in which full and correct entries will
be made of all expenses and payments incurred or made in connection with the construction of the
Vessel and the Cranes. As soon as reasonably practicable, but in no event more than fifteen days
following the end of each month, Buyer shall prepare and deliver to Seller a statement setting
forth in reasonable detail all payments made during such month that may be included in Remaining
Contract Payments and the amount of Capitalized Interest for such month. Such statement shall be
accompanied by true, correct and complete copies of all documentation evidencing the expenses
incurred by Buyer and its Affiliates with respect to the construction of the Vessel and Cranes
during such month.



     (d) Buyer shall keep Seller reasonably informed on a timely basis of the status of the
construction of the Vessel and the Cranes and shall promptly inform the Seller of any
circumstances, changes or events that may reasonably be expected to result in a material delay in
the anticipated delivery of the Vessel and the Cranes or in the payment of a Reimbursement Amount.
Buyer shall make reasonably available to Seller knowledgeable personnel of the Buyer (including its
Chief Executive Officer) to discuss the expenses incurred by Buyer and its Affiliates in connection
with the construction of the Vessel and the Cranes and the status of the construction of the Vessel
and the Cranes.



     (e) Buyer shall promptly notify Seller of any amendments, modifications or waivers to any of
the Assumed Contracts and of any change orders or modifications made thereto by the Buyer or its
Affiliates, and shall promptly deliver to Seller true, correct and complete copies of all
documentation evidencing such amendments, modifications, waivers and change orders.



18









 





     (f) As soon as reasonably practicable, but in no event later than 90 days after the delivery
of the Vessel to Buyer (or its assignee) by Merwede pursuant to the Construction Contract and the
delivery of the Cranes to Buyer (or its assignee), Buyer shall prepare and deliver to Seller a
notice (the “Final Reimbursement Request”) setting forth in reasonable detail the Total Project
Costs and, if applicable, a request for payment of the Reimbursement Amount under this
Section 4.11. Notwithstanding the preceding sentence, Buyer may at any time prior thereto (but not
more than once each month, except with respect to Reimbursement Requests for amounts equal to or
greater than US$500,000.00, which can be made at any time), submit an interim reimbursement request
(an “Interim Reimbursement Request,” and together with the Final Reimbursement Request, a
“Reimbursement Request”) for payment of the Reimbursement Amount then calculated based on
information then available. Seller shall not be obligated to pay for any items that have
previously been submitted in a Reimbursement Request by Buyer and paid by Seller.



     (g) Upon receipt of a Reimbursement Request, Seller and its representatives shall be permitted
during the succeeding 30 day period (a “Review Period”) full access at all reasonable times to the
books and records of Buyer and its Affiliates, and the personnel of, and work papers prepared by,
Buyer or its Affiliates or their representatives, to the extent that they relate to the Assets and
to such historical financial information relating to the construction of the Vessels and Cranes as
Seller may reasonably request for the purpose of reviewing and verifying such Reimbursement
Request.



     (h) On or prior to the last day of the applicable Review Period, Seller may object to the
Reimbursement Request or any portion thereof by delivering to Buyer a written statement setting
forth the basis for Seller’s objections thereto (the “Statement of Objections”). If Seller fails
to deliver a Statement of Objections within the applicable Review Period, the applicable
Reimbursement Request and the applicable Total Project Costs set forth therein shall be deemed to
have been accepted by Seller and shall be used in determining the Reimbursement Amount. If Seller
delivers a Statement of Objections within the applicable Review Period, Seller and Buyer shall
negotiate in good faith to resolve such objections, and, if the same are so resolved, the
applicable Reimbursement Request and the applicable Total Project Costs, with such changes that may
have been agreed in writing by Seller
and Buyer, shall be final and binding on the parties, and shall be used in determining the
applicable Reimbursement Amount.



     (i) If Seller and Buyer shall fail to reach an agreement with respect to any of the matters
set forth in the Statement of Objections, then such unresolved matters shall, not later than 15
days after one of the parties affirmatively terminates discussions in writing with respect to the
Statement of Objections, be submitted for resolution to an independent nationally recognized
accounting firm or other qualified person (the “Accounting Expert”) reasonably satisfactory to each
of the parties. The Accounting Expert shall, acting as an expert and not as arbitrator, resolve
the disputes set forth in the Statement of Objections and make any corresponding adjustments to the
applicable Total Project Costs.



     (j) Subject to, and to the extent permitted by, any applicable Laws, Seller and Buyer shall
each make readily available to the Accounting Expert all relevant work papers and books and records
relating to the construction of the Vessel and the Cranes, and copies of all such



19









 







materials and
information provided by a party to the Accounting Expert shall be concurrently delivered to the
other parties to the proceeding.



     (k) The parties shall jointly instruct the Accounting Expert to make a determination as soon
as practicable within 30 days (or such other time as the parties hereto shall agree in writing)
after its engagement. Each party shall have the right to make a presentation of its positions in
person to the Accounting Expert. The Accounting Expert may make such inquiries of the parties as
it may deem appropriate. The Accounting Expert’s resolution of the disputes set forth in the
applicable Statement of Objections and the applicable Total Project Costs, with any such
adjustments made by the Accounting Expert, shall be final and binding upon the parties, and shall
be used in determining the applicable Reimbursement Amount.



     (l) The fees of the Accounting Expert shall be paid by the party against whom the Accounting
Expert shall rule, or if some issues are ruled against each of the parties, as otherwise equitably
divided between the parties as such Accounting Expert may deem appropriate.



     (m) Within five business days of the later of (1) acceptance of the applicable Reimbursement
Request (including any portion thereof that is not disputed in the Statement of Objections by
Seller) or (2) the resolution of Sellers’ objections to the applicable Reimbursement Request or
portion thereof, Seller shall pay to Buyer an amount equal to the applicable Reimbursement Amount,
if any (including under (1) any portion not subject to an objection and under (2) any portion
applicable to an objection resolved in Buyer’s favor). Any such payment shall be in United States
dollars in federal or other immediately available funds as directed by Buyer.



     (n) Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be
required to reimburse or pay Buyer more than US$8,000,000.00 in the aggregate under this
Section 4.11.



     4.12 Cooperation Arrangement. The parties shall negotiate in good faith to establish a
non-exclusive joint marketing and cooperation arrangement. The parties shall seek mutually
beneficial business opportunities utilizing the complementary joint resources of both parties.



     4.13 Letter of Credit Cancellation. Buyer covenants that it shall return the Letter of Credit
to the issuing bank thereof for cancellation upon the latest to occur of the following:
(i) eighteen (18) months after the Closing; (ii) completion of all material duties and obligations
of Seller and its Affiliates under the Time Charter; and (iii) completion of all material duties
and obligations of Seller and its Affiliates under any time charters or vessel management
agreements entered into with the Buyer or its Affiliates subsequent to the Closing but prior to
termination of the Time Charter, provided, however, to the extent that there are unfulfilled
obligations pursuant to the agreements specified above or any unresolved reimbursement or indemnity
claims asserted by Buyer pursuant to Section 4.11 or Article 8 of this Agreement, Buyer may at its
sole option agree to an earlier cancellation of the Letter of Credit if Seller provides substitute
letters of credit or alternative security acceptable to Buyer in its sole discretion to cover the
full amount of such obligations and indemnity claims.




20











 





ARTICLE 5

CONDITIONS TO OBLIGATIONS

OF BUYER




     Except as may be waived in writing by Buyer, the obligations of Buyer to consummate this
Agreement and the transactions to be consummated by Buyer hereunder on the Closing Date shall be
subject to the following conditions:



     5.1 Representations and Warranties. The representations and warranties of Seller contained in
Article 2 of this Agreement or in any certificate or document executed and delivered by Seller to
Buyer pursuant to this Agreement shall have been true and correct in all respects on the date made
and shall be true and correct on and as of the Closing Date as though such representations and
warranties were made at and as of such date (except that representations and warranties that by
their terms speak as of the date of this Agreement or some other date or time need only be true and
correct as of such date or time).



     5.2 Compliance with Agreement. On and as of the Closing Date, Seller shall have performed and
complied in all material respects with the covenants and agreements required by this Agreement to
be performed and complied with by Seller on or before the Closing Date.



     5.3 No Action or Proceeding. On the Closing Date, no Order shall be issued and no action or
proceeding by any Governmental Body or any other person shall be pending before any Governmental
Body or overtly threatened, nor shall there be any condition imposed under any applicable Law, to
(i) restrain, enjoin or otherwise prevent the consummation of this Agreement or the transactions
contemplated hereby, (ii) recover any damages, impose a material penalty or obtain other relief as
a result of this Agreement or the transactions contemplated herein or as a result of any agreement
entered into in connection with or as a condition precedent to the consummation thereof, (iii)
restrict the performance by Seller of its obligations under this Agreement or (iv) restrict Buyer’s
ability to use the Assets after the Closing.



     5.4 Consents, Authorizations, Etc. All orders, consents, permits, exemptions, authorizations,
approvals, waivers or other actions by, or notices to, or filings with, every Governmental Body and
other third parties in respect of all Laws and Contractual Obligations of Seller that are necessary
or required in connection with the execution, delivery and performance
by Seller of this Agreement and the other agreements contemplated hereby and consummation of
the transactions contemplated herein, including all required consents for conveyance of the Assets
and Assumed Contracts to Buyer, shall have been obtained or given and be in full force and effect,
and Buyer shall have been furnished with appropriate evidence thereof; provided, however, that any
third-party consent not obtained by Seller, but waived by Buyer, shall not be an unfulfilled
condition hereunder; and further provided that the forms of the Required Consents are reasonably
acceptable to Buyer.



     5.5 Corporate Action by Seller. All action necessary to authorize the execution, delivery and
performance by Seller of this Agreement and the documents contemplated to be executed and delivered
hereby shall have been duly and validly taken by Seller, and Seller shall have delivered to Buyer
copies, certified as of the Closing Date by the Secretary of Seller, of all



21









 







resolutions of the
Board of Directors of Seller authorizing this Agreement and the transactions contemplated by this
Agreement.



     5.6 Opinion of Counsel. Buyer shall have received an opinion, addressed to Buyer and dated
the Closing Date, of counsel for Seller, in form and substance reasonably satisfactory to Buyer.



     5.7 No Bankruptcy Proceedings. No bankruptcy or insolvency proceedings (voluntary or
involuntary) shall have been initiated with respect to Seller.



     5.8 Material Adverse Change to Vessel, Cranes and/or Assumed Contracts. Since September 30,
2007, no incident, circumstance, waiver, amendment or other change in or effect on the Vessel, the
Construction Contract, the NO Crane Contract, the Huisman Crane and Winch Contract, or the
Reimbursement Guaranties shall have occurred that, individually or when taken together with all
other circumstances, changes or effects, would be materially adverse to Buyer’s intended timing,
use and operation of the Vessel and the Cranes in its business; provided, however, that the
condition set forth in this Section 5.8 shall be deemed to have been satisfied notwithstanding the
existence of any Payment Default.



     5.9 Creditor Releases. Evidence reasonably satisfactory to Buyer that all Liens on the Assets
held by Seller’s creditors have been released, including all Liens held by JP Morgan and Fortis;
provided, however, that the condition set forth in this Section 5.9 shall be deemed to have been
satisfied with respect to JP Morgan and Fortis if the Liens held by JP Morgan and Fortis are
released as of the Closing upon payment of a portion of the Purchase Price to JPMorgan and Fortis.



     5.10 Physical Possession and Control. Seller shall have tendered to Buyer effective physical
possession and control of the tangible Assets, but only to the extent that Seller has such
possession and control of such Assets.



     5.11 Delivery of Documents and Instruments. The following documents shall have been duly
authorized, executed and delivered by Seller or its Affiliates, as the case may be, shall be in
full force and effect on the Closing Date without any event or condition having occurred or
existing that constitutes, or that with the giving of notice or lapse of time or both would
constitute, a default or breach of any thereof or would give any party thereto the right to
terminate any thereof, and executed counterparts of each thereof shall have been delivered to
Buyer:



     (a) Bills of sale and other instruments conveying title to the Assets as set forth in Section
1.1 free and clear of all Liens, other than Permitted Liens;



     (b) Assignment and Assumption of Construction Contract, in substantially the form attached
hereto as Appendix A;



     (c) Assignment and Assumption of NO Crane Contract, in substantially the form attached hereto
as Appendix B;



22









 





     (d) Assignment and Assumption of Huisman Crane and Winch Contract, in substantially the form
attached hereto as Appendix C;



     (e) Time Charter Agreement for the Vessel acceptable to Buyer and Seller (the “Time Charter”);



     (f) Letter of Credit in substantially the form attached hereto as Appendix D;



     (g) A corporate guaranty from Merwede reasonably acceptable to Buyer sufficient to pay all of
the amounts guaranteed by the Reimbursement Guaranties if replacements to the Reimbursement
Guaranties are not provided to Buyer; provided that delivery of such replacements shall not be a
condition to Closing under this Article 5;



     (h) An Officer’s Certificate (signed on behalf of Seller by its Chief Executive Officer) dated
as of the Closing Date certifying the (i) fulfillment of the conditions specified in Sections 5.1
and 5.2 hereof, and (ii) absence of the matters set forth in Sections 5.3, 5.7 and 5.8 hereof.



     (i) A Certificate of the Secretary of Seller dated as of the Closing Date attesting to the
incumbency and the signature specimens with respect to the officers of such entity executing the
Agreement and any other document delivered pursuant to the Agreement by or on behalf of such
entity, and attesting to such other instruments and documents as counsel for Buyer shall reasonably
request;



     (j) A Release in substantially the form attached hereto as Appendix E of any and all claims
that Seller may have against the Assets or Buyer, except as may arise hereunder or under any
documents executed in connection herewith; and



     (k) Further instruments and documents, in form and content reasonably satisfactory to counsel
for Buyer, as may be necessary or reasonably appropriate to consummate the transactions
contemplated hereby.



ARTICLE 6

CONDITIONS TO OBLIGATIONS OF SELLER




     Except as may be waived in writing by Seller, the obligations of Seller to consummate this
Agreement and the transactions to be consummated by Seller hereunder on the Closing Date shall be
subject to the following conditions:



     6.1 Representations and Warranties. The representations and warranties of Buyer contained in
Article 3 of this Agreement or in any certificate or document executed and delivered by Buyer to
Seller pursuant to this Agreement shall be true and correct in all respects on the date made and
shall be true and correct in all respects on and as of the Closing Date as though such
representations and warranties were made at and as of such date (except that representations and
warranties that by their terms speak as of the date of this Agreement or some other date or time
need only be true and correct as of such date or time).



23









 





     6.2 Compliance with Agreement. On and as of the Closing Date, Buyer shall have performed and
complied in all material respects with the covenants and agreements required by this Agreement to
be performed and complied with by Buyer on or before the Closing Date.



     6.3 No Action or Proceeding. On the Closing Date, no Order shall be issued and no action or
proceeding by any Governmental Body or any other person shall be pending before any Governmental
Body or overtly threatened, nor shall there be any condition imposed under any applicable Law, to
(i) restrain, enjoin or otherwise prevent the consummation of this Agreement or the transactions
contemplated hereby, or (ii) recover any damages, impose a material penalty or obtain other relief
as a result of this Agreement or the transactions contemplated herein or as a result of any
agreement entered into in connection with or as a condition precedent to the consummation thereof,
which action or proceeding could reasonably be expected to result in a decision, ruling or finding
which would have a material adverse effect on the ability of Buyer to fulfill its obligations under
this Agreement.



     6.4 Consents, Authorizations, Etc. All orders, consents, permits, exemptions, authorizations,
approvals, waivers or other actions by, or notices to, or filings with, every Governmental Body and
other third parties in respect of all Laws and Contractual Obligations of Buyer that are necessary
or required in connection with the execution, delivery and performance by Buyer of this Agreement
and the other agreements contemplated herein, and consummation of the transactions contemplated
herein (including the Required Consents), shall have been obtained or given and be in full force
and effect, and Seller shall have been furnished with appropriate evidence thereof; provided,
however, that any third party consent not obtained by Buyer, but waived by Seller, shall not be an
unfulfilled condition hereunder; and further provided that the forms of the Required Consents are
reasonably acceptable to Seller.



     6.5 Corporate Action by Buyer. All action necessary to authorize the execution, delivery and
performance by Buyer of this Agreement and the documents contemplated to be executed and delivered
hereby shall have been duly and validly taken by Buyer and Buyer shall have delivered to Seller
copies, certified as at the Closing Date by the Secretary of Buyer, of all resolutions of the Board
of Directors of Buyer authorizing this Agreement and the transactions contemplated by this
Agreement.



     6.6 Opinion of Counsel. Seller shall have received an opinion, addressed to Seller and dated
the Closing Date, of counsel for Buyer, in form and substance reasonably satisfactory to Seller.



     6.7 Delivery of Purchase Price. The Purchase Price shall have been delivered in the manner
described in Section 1.2.



     6.8 Delivery of Documents and Instruments. The following documents shall have been duly
authorized, executed and delivered by Buyer, shall be in full force and effect on the Closing Date
without any event or condition having occurred or existing that constitutes, or that with the
giving of notice or lapse of time or both would constitute, a default or breach of any thereof or
would give any party thereto the right to terminate any thereof, shall be in form and substance
satisfactory to Seller, and executed counterparts of each thereof shall have been delivered to
Seller:



24









 





     (a) Assignment and Assumption of Construction Contract, in substantially the form attached
hereto as Appendix A;



     (b) Assignment and Assumption of NO Crane Contract, in substantially the form attached hereto
as Appendix B;



     (c) Assignment and Assumption of Huisman Crane and Winch Contract, in substantially the form
attached hereto as Appendix C;



     (d) Time Charter Agreement for the Vessel acceptable to Buyer and Seller;



     (e) An Officer’s Certificate (signed on behalf of Buyer by its Chief Executive Officer) dated
as of the Closing Date certifying the fulfillment of the conditions specified in Sections 6.1 and
6.2 hereof;



     (f) A Certificate of the Secretary of Buyer dated as of the Closing Date attesting to the
incumbency and the signature specimens with respect to the officers of such entity executing the
Agreement and any other document delivered pursuant to the Agreement by or on behalf of such
entity, and attesting to such other instruments and documents as counsel for Seller shall
reasonably request;



     (g) Documentation evidencing the release of that certain Letter of Credit issued for the
benefit of Merwede pursuant to the Construction Contract; and



     (h) Further instruments and documents, in form and content reasonably satisfactory to counsel
for Seller, as may be necessary or reasonably appropriate to consummate the transactions
contemplated hereby.



ARTICLE 7

SURVIVAL




     7.1 Survival of Representations and Warranties. The respective representations and warranties
made by the parties in this Agreement or in any certificate or document executed and
delivered by either party to the other party pursuant to this Agreement, as well as any
indemnification rights granted herein, shall survive the Closing Date and the consummation of the
transactions contemplated hereby until the later of (i) the date that is eighteen (18) months after
the Closing Date and (ii) the date that is six months after the delivery of the Vessel to Buyer (or
its assignee) by Merwede pursuant to the Construction Agreement, regardless of any investigation
made by the parties hereto or any statutes of limitations, except for the representations and
warranties made in Sections 2.1, 2.2, 2.5, 2.15, 3.1, 3.2 and 3.5, which shall survive
indefinitely.



     7.2 Survival of Covenants and Agreements. All covenants and agreements in this Agreement
shall continue in full force and effect and survive until performed in accordance with their
respective terms by the relevant party or parties. A warranty shall not for any purposes hereunder
be considered a covenant.



25









 





ARTICLE 8

INDEMNIFICATION




     8.1 In General.



     (a) Except for any cause of action for fraud and any claims for specific performance of any
covenants set forth in this Agreement, from and after the Closing, the indemnification provided in
this  Article 8 shall be the sole and exclusive remedy of any party arising out of, related to, in
connection with or with respect to this Agreement; provided, however, that this clause shall not
affect or limit the rights or remedies of any party arising under or in connection with any other
agreements entered into before, on or after the Closing Date between the parties and/or their
Affiliates, including any time charters or vessel management agreements.



     (b) Effective as of the Closing Date, Seller hereby irrevocably and unconditionally waives,
and releases Buyer and Buyer’s Affiliates from, and agrees never to make or assert, any claims,
rights, causes of action, remedies or damages that it may have or assert against Buyer or any of
Buyer’s Affiliates pursuant to the terms of this Agreement or the transactions contemplated hereby
or the discussions, negotiations and investigations conducted in connection herewith, except for
any claims, rights, causes of action, remedies or damages that he or it may have or assert pursuant
to this  Article 8 and Section  4.11; provided, however, that this clause shall not affect or limit
the rights or remedies of Seller arising under or in connection with any other agreements entered
into before, on or after the Closing Date between the parties and/or their Affiliates, including
any time charters or vessel management agreements. Seller agrees to execute and deliver to Buyer
such further waivers, releases and discharges as may be reasonably necessary or appropriate to give
full effect to this Section  8.1(b).



     (c) Effective as of the Closing Date, Buyer hereby irrevocably and unconditionally waives, and
releases Seller and Sellers’ Affiliates from, and agrees never to make or assert, any claims,
rights, causes of action, remedies or damages that it may have or assert against Seller or any of
Sellers’ Affiliates pursuant to the terms of this Agreement or the transactions contemplated hereby
or the discussions, negotiations and investigations conducted in connection herewith, except for
any claims, rights, causes of action, remedies or damages that it may have or assert pursuant to
this  Article 8 and Section  4.11; provided, however, that this clause shall not
affect or limit the rights or remedies of Buyer arising under or in connection with any other
agreements entered into before, on or after the Closing Date between the parties and/or their
Affiliates, including any time charters or vessel management agreements. Buyer agrees to execute
and deliver to Seller such further waivers, releases and discharges as may be reasonably necessary
or appropriate to give full effect to this Section  8.1(c).



     8.2 Indemnification of Buyer Indemnitees. Subject to the limitations set forth in  Article 7
and this  Article 8, Seller hereby agrees to indemnify and hold the Buyer Indemnitees harmless from
and against all Adverse Consequences arising out of, based upon or resulting from:



     (a) any breach of representation or warranty of Seller contained in  Article 2 of this
Agreement or in any Officer’s Certificate delivered pursuant to  Article 5;



26









 





     (b) any breach or non-fulfillment of any covenant or agreement on the part of Seller under the
terms of this Agreement;



     (c) any Taxes payable by Seller arising from, based upon or relating to the sale of the Assets
pursuant to this Agreement (except as provided in Sections  1.6 and  1.7);



     (d) the Excluded Liabilities and the Excluded Assets;



     (e) any breach or default by Seller under the Assumed Contracts prior to the Closing Date
(other than with respect to the Payment Defaults); and



     (f) the ownership of the Seller’s business and/or the use and operation of the Seller’s
business on or before the Closing Date (other than with respect to the Payment Defaults).



     8.3 Indemnification of Seller Indemnitees. Subject to the limitations set forth in  Article 7
and this  Article 8, Buyer agrees to indemnify and hold the Seller Indemnitees harmless from and
against all Adverse Consequences arising out of, based upon or resulting from:



     (a) any breach of representation or warranty of Buyer contained in  Article 3 of this
Agreement or in any Officer’s Certificate delivered pursuant to  Article 6;



     (b) any breach or non-fulfillment of any agreement on the part of Buyer under the terms of
this Agreement;



     (c) Buyer’s failure to perform the contractual duties, liabilities and obligations of Seller
that accrue, arise or come due after the Closing under the Assumed Contracts and payment of the
2008 January Payments in accordance with the terms of the Assumed Contracts; and



     (d) the ownership of the Assets and/or the use and operation of the Assets from and after the
Closing Date.



     8.4 Limitation on Indemnification. Seller’s maximum aggregate liability under Section  8.2(a)
shall be limited to an amount equal to thirty-five (35%) of the Purchase Price. Notwithstanding
the foregoing, the limitations on indemnification set forth in this Section  8.4
shall not apply to any indemnification claim relating to any breach of any representation or
warranty contained in Sections  2.1,  2.2,  2.5 or  2.15.



     8.5 Method of Asserting Claims, Etc. The items listed in Section  8.2 and Section  8.3 are
sometimes collectively referred to herein as “Damages”; provided that such reference shall be
understood to mean the respective damages from and against which Buyer and its Affiliates and their
respective subsidiaries, officers, directors, managers, members, employees, representatives, agents
and attorneys (the “Buyer Indemnitees”) or Seller and its Affiliates and their respective
subsidiaries, officers, directors, employees, representatives, agents and attorneys (the “Seller
Indemnitees”), as the case may be, are indemnified as the context requires. The person claiming
indemnification hereunder, whether a Buyer Indemnitee or a Seller Indemnitee, is sometimes referred
to as the “Indemnified Party” and the party against whom such claims are asserted hereunder is
sometimes referred to as the “Indemnifying Party.” All claims for



27









 







indemnification by an
Indemnified Party under Section 8.2 or Section 8.3 hereof, as the case may be, shall be asserted
and resolved as follows:



     (a) If any claim or demand for which an Indemnifying Party would be liable for Damages to an
Indemnified Party hereunder is overtly asserted against or sought to be collected from such
Indemnified Party by a third party (a “Third Party Claim”), such Indemnified Party shall with
reasonable promptness (but in no event later than thirty (30) days after the Third Party Claim is
so asserted or sought against the Indemnified Party) notify in writing the Indemnifying Party of
such Third Party Claim enclosing a copy of all papers served, if any, and specifying the nature of
and specific basis for such Third Party Claim and the amount or the estimated amount thereof to the
extent then reasonably determinable, which estimate shall not be conclusive of the final amount of
such Third Party Claim (the “Claim Notice”). For this purpose the commencement of any audit or
other investigation respecting Taxes shall constitute a Third Party Claim. Notwithstanding the
foregoing, failure to so provide a Claim Notice as provided above shall not relieve the
Indemnifying Party from its obligation to indemnify the Indemnified Party with respect to any such
Third Party Claim except to the extent that a failure to so notify the Indemnifying Party in
reasonably sufficient time prejudices the Indemnifying Party’s ability to defend against the Third
Party Claim. The Indemnifying Party shall have thirty (30) days from delivery of the Claim Notice
(the “Notice Period”) to notify the Indemnified Party (i) whether or not the Indemnifying Party
disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to
such Third Party Claim and (ii) whether or not the Indemnifying Party desires, at the sole cost and
expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.



     (b) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the
Indemnifying Party does not dispute its liability to the Indemnified Party and that the
Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim
pursuant to this Article 8, then the Indemnifying Party shall have the right to defend, at its
sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings
shall be diligently prosecuted by the Indemnifying Party to a final conclusion or settled at the
discretion of the Indemnifying Party (but only if the Indemnifying Party is liable hereunder to the
Indemnified Party for the full amount of, and all obligations under, such settlement;
otherwise, no such settlement shall be agreed to without the prior written consent of the
Indemnified Party). If the Indemnifying Party is liable hereunder to the Indemnified Party for the
full amount of such Third Party Claim, the Indemnifying Party shall have full control of such
defense and proceedings, including any compromise or settlement thereof; provided, however, that
the Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party
(but only if the Indemnified Party is actually entitled to indemnification hereunder or if the
Indemnifying Party assumes the defense with respect to the Third Party Claim as permitted
hereunder), to file during the Notice Period any motion, answer or other pleadings which the
Indemnified Party shall deem necessary or appropriate to protect its interests or those of the
Indemnifying Party and not prejudicial to the Indemnifying Party (it being understood and agreed
that if an Indemnified Party takes any such action which is prejudicial and conclusively causes a
final adjudication which is adverse to the Indemnifying Party, the Indemnifying Party shall be
relieved of its obligations hereunder with respect to such Third Party Claim); and provided,
further, that if requested by the Indemnifying Party, the Indemnified Party agrees, at the sole
cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party



28









 







and its
counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, or, if
appropriate and related to the Third Party Claim in question, in making any counterclaim against
the person asserting the Third Party Claim, or any cross-complaint against any person. The
Indemnified Party may participate in, but not control (except if the Indemnifying Party is not
liable hereunder to the Indemnified Party for the full amount of such Third Party Claim, in which
case whichever of the Indemnifying Party or the Indemnified Party is liable for the largest amount
of Damages with respect to the Third Party Claim shall control), any defense or settlement of any
Third Party Claim with respect to which the Indemnifying Party is participating pursuant to this
Section 8.5(b), and except as provided in the preceding sentence, the Indemnified Party shall bear
its own costs and expenses with respect to such participation.



     (c) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period
that the Indemnifying Party does not dispute its liability to the Indemnified Party and that the
Indemnifying Party desires to defend the Indemnified Party pursuant to this Article 8, then the
Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying
Party, the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly
and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The
Indemnified Party shall have full control of such defense and proceedings, including any compromise
or settlement thereof; provided, however, that if requested by the Indemnified Party, the
Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate
with the Indemnified Party and its counsel in contesting any Third Party Claim which the
Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in
question, in making any counterclaim against the person asserting the Third Party Claim, or any
cross-complaint against any person. Notwithstanding the foregoing provisions of this Section
8.5(c), if the Indemnifying Party has timely notified the Indemnified Party that the Indemnifying
Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of
the Indemnifying Party by final, non-appealable order of a court of competent jurisdiction, the
Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party’s
defense pursuant to this Section 8.5(c) or of the Indemnifying Party’s participation therein at
the Indemnified Party’s request and the Indemnified Party shall reimburse the Indemnifying Party in
full for all costs and expenses of such litigation. The Indemnifying Party may
participate in, but not control, any defense or settlement controlled by the Indemnified Party
pursuant to this Section 8.5(c) (other than a dispute as to the Indemnifying Party’s liability to
the Indemnified Party) and the Indemnifying Party shall bear its own costs and expenses with
respect to such participation.



     (d) If any Indemnified Party should have a claim against any Indemnifying Party hereunder
which does not involve a Third Party Claim, the Indemnified Party shall notify the Indemnifying
Party of such claim by the Indemnified Party, specifying the nature of and specific basis for such
claim and the amount of the estimated amount of such claim (the “Indemnity Notice”). If the
Indemnifying Party does not notify the Indemnified Party within thirty (30) days from delivery of
the Indemnity Notice that the Indemnifying Party disputes such claim, the amount or estimated
amount of such claim as specified by the Indemnified Party shall be conclusively deemed a liability
of the Indemnifying Party. If the Indemnifying Party has timely disputed such claim, as provided
above, such dispute shall be resolved by litigation in an appropriate court of competent
jurisdiction or as the parties otherwise at such time agree.



29









 





     8.6 Payment of Indemnity. Any indemnity claim shall be paid in cash by the Indemnifying Party
to or on behalf of the appropriate Indemnified Party. At Buyer’s option, any indemnity claim can
be paid in whole or in part by Buyer drawing down under the Letter of Credit delivered by Seller to
Buyer pursuant to the terms of this Agreement.



     8.7 Indemnification Reductions and Other Matters.



     (a) Any indemnification owing to an Indemnified Party pursuant to this Article 8 shall be
reduced by any amounts actually received by the Indemnified Party in connection with (i) any
insurance coverage with respect thereto (provided that amounts covered that are subject to
retrospective payments or premiums shall be reduced (but not below zero) by the amount of such
payments or premiums) or indemnification rights (other than under this Agreement) (net of expenses
to enforce, collect and pursue a claim for such insurance coverage or indemnification), (ii) any
claims the Indemnified Party has against any third party that reduces the Adverse Consequences that
would otherwise be sustained (net of expenses to enforce, collect and pursue such claims against
third parties) or (iii) any actual reduction in cash Taxes attributable to such indemnified
liability (any such amounts received that reduce the indemnification owing to an Indemnified Party,
the “Indemnity Reduction Amounts”). If the Indemnified Party receives any Indemnity Reduction
Amounts under applicable insurance policies, or from any third party, in respect of an indemnified
Adverse Consequence after the full amount of such indemnified Adverse Consequences has been paid by
the Indemnifying Party or after an Indemnifying Party has made a partial payment of such
indemnified Adverse Consequences and such Indemnity Reduction Amounts exceed the remaining unpaid
balance of such indemnified Adverse Consequences, then such Indemnified Party shall promptly remit
to the Indemnifying Party an amount equal to the excess (if any) of (A) the amount theretofore paid
by the Indemnifying Party in respect of such indemnified Adverse Consequences, less (B) the amount
of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect
thereof had been received before the indemnity payment was made.



     (b) In the event that an Indemnifying Party makes any payment to any Indemnified Party for
indemnification for which such Indemnified Party could have collected on a claim against a third
party, the Indemnifying Party shall be entitled to pursue claims and conduct litigation in good
faith on behalf of such Indemnified Party and any of its successors, to pursue and collect in good
faith on any indemnification or other remedy available to such Indemnified Party thereunder with
respect to such claim and generally to be subrogated to the rights of such Indemnified Party, but
only to the extent the Indemnified Party has been made whole for any Damages it has suffered or
incurred, and provided that the Indemnifying Party shall fully indemnify, defend and hold the
Indemnified Party harmless from and against any claims asserted or threatened against the
Indemnified Party by any third parties in connection with the Indemnifying Party’s pursuit of such
claims. Except pursuant to a settlement agreed to by the Indemnifying Party, the Indemnified Party
shall not waive or release any material contractual right to recover from a third party any known
Adverse Consequences subject to indemnification hereby without the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld, delayed or conditioned. The
Indemnified Party shall cooperate with the Indemnifying Party, at the Indemnifying Party’s expense,
with respect to any such effort to pursue and collect with respect thereto and shall execute and
deliver to the Indemnifying Party



30









 







such documents and instruments as may be reasonably necessary or
appropriate to give full effect to this Section 8.7(b).



     (c) Any Adverse Consequences included in the calculation of Remaining Contract Payments
pursuant to Section 4.11 shall not be subject to indemnification under Section 8.2.



     8.8 Adverse Consequences. As used in this Agreement, the term “Adverse Consequences” shall
mean actions, claims, suits, debts, liabilities, obligations, losses, costs, deficiencies,
penalties, fines, expenses and other judgments (at equity or in law) and damages whenever arising
or incurred, including without limitation, amounts paid in settlement and reasonable attorneys fees
and expenses.



ARTICLE 9

TERMINATION




     9.1 Termination. This Agreement may be terminated at any time before the Closing Date:



     (a) by mutual consent of Buyer, on the one hand, and Seller, on the other hand;



     (b) by Buyer, upon notice of termination of its obligation to consummate the transaction
delivered to Seller, if Buyer reasonably has determined that there has been any material breach of
any covenant of Seller or that Seller has materially breached any of its representations or
warranties (in any case without regard to any materiality or other limitation stated in such
covenant, representation or warranty), stating in particularity the default or defaults on which
the notice is based; provided, however, that Seller shall, after receipt of such notice, have
fifteen (15) days in which to cure such material breach and, if so cured, Buyer shall, for that
reason, have no right to terminate this Agreement;



     (c)
by Seller upon notice of termination of its obligation to consummate the transaction delivered to Buyer, if Seller reasonably has determined that there has been any material breach of any covenant of Buyer or that Buyer has breached any of its representations or warranties (in any case without regard to any materiality or other limitation stated in such covenant, representation or warranty), stating in particularity
the default or defaults on which the notice is based; provided, however, that Buyer shall, after receipt of such notice, have fifteen (15) days in which to cure such material breach and, if so cured, Seller shall, for that reason, have no right to terminate this Agreement;



     (d)
by either Buyer, on the one hand, or Seller, on the other hand, if the Closing has not occurred on or before January 21, 2008; provided, however, that neither Buyer on the one hand nor Seller on the other hand shall be entitled to terminate this Agreement pursuant hereto if such party is in material breach of any of its representations, warranties or covenants contained in this Agreement;



     (e)
by either Buyer, on the one hand, or Seller, on the other hand, in accordance with Section 11.9 of this Agreement; or




31












 





     (f) by Buyer on or before January 9, 2008, if, after entering into this Agreement, any fact,
circumstance or event comes to the Buyer’s attention that, in the Buyer’s good faith, reasonable
judgment, is so materially adverse as to make it impracticable or inadvisable to proceed with the
purchase of the Assets on the terms and in the manner contemplated in this Agreement.



     9.2 Termination Remedies. Except as otherwise set forth below in this Section, if this
Agreement is terminated pursuant to Sections 9.1(a), 9.1(d), 9.1(e) or 9.1(f) above, such
termination shall be without liability to any party hereto, except as specifically provided in
Section 11.11. If this Agreement is terminated pursuant to Sections 9.1(b) or 9.1(c) above, the
rights and remedies granted hereby shall be cumulative and nonexclusive of any other right or
remedy available to the terminating party at law or in equity. The parties agree that the Assets
are unique in character and, if Seller refuses to consummate the transactions contemplated herein
for any reason other than (i) pursuant to Sections 9.1(a), 9.1(c), 9.1(d) or 9.1(e) or (ii) because
there has been a failure to satisfy any of the conditions (not otherwise waived by Seller) set
forth in Article 6, damages suffered by Buyer may not be readily ascertainable. Accordingly,
Seller agrees that Buyer, at its option, shall be entitled to seek the equitable remedy of specific
performance. The terms of Sections 1.8, 4.7, 9.2, 11.1, 11.2, 11.3, 11.4, 11.8, 11.11, 11.13,
11.14 and Article 10 shall survive the termination of this Agreement.



ARTICLE 10

NOTICES




     Whenever any notice, request, claim, demand or other communication is required or permitted
under this Agreement, such notice, request, claim, demand or other communication shall be in
writing and shall be given (and shall be deemed to have been duly received, if so given and no
notice of failure of delivery is received) by (a) personal delivery, (b) electronic transmission
(facsimile or other generally recognized electronic means of delivery, other than e-mail) (provided
that a copy of such transmission shall also be given by means of clause (a), (c) or (d)),
(c) nationally recognized commercial courier for next business day delivery or (d) registered or
certified mail, postage prepaid, return receipt requested, to the parties at the addresses set
forth below or at such other addresses as such parties may designate by notice to the other
parties. No such notice specifying a new address shall be deemed to have been given until it is
actually received by the party sought to be charged with the contents.



     If to Seller, to:


Superior Offshore International, Inc.

717 Texas Avenue, Suite 3150

Houston, Texas 77002

Facsimile: (713) 910-4755

Attention: Chief Executive Officer




32









 








     With a copy (which shall not constitute notice) to:


Bracewell & Giuliani LLP

711 Louisiana Street, Suite 2300

Houston, Texas 77002

Facsimile: (713) 437-5370

Attention: William S. Anderson, Esq.




     If to Buyer, to:


Hornbeck Offshore Services, LLC

103 Northpark Blvd., Suite 300

Covington, LA 70447

Facsimile: (985) 727-2006

Attention: Chief Executive Officer




     With a copy (which shall not constitute notice) to:


Winstead PC

600 Town Center One

1450 Lake Robbins Drive

The Woodlands, Texas 77380

Facsimile: (281) 681-5901

Attention: R. Clyde Parker, Jr., Esq.




     All notices, requests, claims, demands or other communications personally delivered will be
deemed given on the date delivered. Any notice, request, claim, demand or other communication by
electronic transmission will be deemed delivered to the party to whom addressed on the earlier of
actual delivery or the first business day after such transmission was sent if such transmission was
electronically confirmed or no notice that it was undeliverable was received. Any notice, request,
claim, demand or other communication delivered by courier will be deemed given on the earlier of
actual delivery or the first business day after deposit with an overnight courier. Any notice,
request, claim, demand or other communication delivered by mail will be deemed given on the third
business day after deposit in the United States mail.



ARTICLE 11

MISCELLANEOUS




     11.1 Usage of Terms. In this Agreement, unless a clear intention to the contrary appears:



     (a) the singular number includes the plural and vice versa;



     (b) reference to any person includes such person’s successors and assigns, to the extent such
successors and assigns are not prohibited by this Agreement, and reference to a person in a
particular capacity excludes such person in any other capacity or individually;



     (c) reference to any gender includes each other gender;



33









 





     (d) reference to any agreement, document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in accordance with the terms
thereof;



     (e) reference to any Law means such Law as amended, modified, codified, replaced or reenacted,
in whole or in part, and in effect from time to time, including rules and regulations promulgated
thereunder, and reference to any section or other provision of any Law means that provision of such
Law from time to time in effect and constituting the substantive amendment, modification,
codification, replacement or reenactment of such section or other provision;



     (f) reference to the knowledge of a party means the actual knowledge of such party’s officers,
directors and senior management employees, after diligent inquiry;



     (g) reference to Seller’s material assets or properties, or similar terminology, shall mean
all the material assets and properties of Seller and its Affiliates;



     (h) “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to
this Agreement as a whole and not to any particular article, section or other provision hereof;



     (i) “including” means including without limiting the generality of any description preceding
such term;



     (j) “or” is used in the inclusive sense of “and/or”;



     (k) with respect to any determination of any period of time, “from” means “from and including”
and “to” means “to but excluding”;



     (l) references to documents, instruments or agreements shall be deemed to refer as well to all
addenda, exhibits, schedules or amendments thereto; and



     (m) unless otherwise specified herein, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder shall be made in accordance with GAAP for financial
reporting in the United States of America.



     11.2 Legal Representation of the Parties. This Agreement was negotiated by the parties with
the benefit of legal representation, and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any party shall not apply to any
construction or interpretation hereof.



     11.3 Incorporation of Schedules and Appendices; Entire Agreement. The Appendices and
Schedules attached hereto are an integral part of this Agreement and are incorporated herein by
this reference and the specific references thereto contained herein. This Agreement supersedes all
prior discussions and agreements among the parties with respect to the subject matter of this
Agreement, including the Letter. This Agreement, including the Appendices and Schedules hereto to
be delivered in connection herewith, contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof.



34









 





     11.4 Waiver. Any term or condition of this Agreement may be waived at any time by the party
which is entitled to the benefit thereof; such waiver shall be in writing and shall be executed by
the chairman, president or a vice president of each of the parties as applicable. A waiver on one
occasion shall not be deemed to be a waiver of the same or any other matter on a future occasion.



     11.5 Amendment. This Agreement may be modified or amended only by a writing duly executed by
or on behalf of all the parties hereto.



     11.6 Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.



     11.7 Headings. The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.



     11.8 Governing Law. Except as otherwise provided herein, this Agreement and all rights and
obligations hereunder, including matters of construction, validity and performance shall be
governed by the Laws of the State of Texas without giving effect to the principles of conflicts of
laws thereof. Buyer and Seller each hereby submit to the personal jurisdiction of the United
States District Court for the Eastern District of Louisiana, which shall be the exclusive forum and
venue for all disputes, controversies and enforcement actions arising or related to this Agreement.



     11.9 Risk of Loss. The risk of any loss, damage, impairment, confiscation or condemnation of
the Assets or any part thereof shall be upon Seller at all times before the Closing Date. In any
such event, Seller may either (a) repair, replace or restore any such property as soon as possible
after its loss, impairment, confiscation or condemnation, or (b) if insurance proceeds are
sufficient to repair, replace or restore the property, pay such proceeds to Buyer; provided,
however, that in the event of damage to any substantial portion of the Assets prior to the Closing
Date, Buyer or Seller may terminate this Agreement with no penalty or liability to Buyer or Seller.



     11.10 Binding Effect; Successors and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns; provided, however,
that this Agreement or any right or part hereunder shall not be voluntarily assigned by either
party hereto without the prior written consent of the other party hereto, except that prior to the
Closing Date Buyer may assign its rights and obligations hereunder to a wholly owned, direct or
indirect, subsidiary of Hornbeck Offshore Services, Inc. by providing written notice of such
assignment to Seller provided that Buyer shall remain fully and unconditionally responsible to
Seller for the full and prompt payment and performance of the obligations of Buyer’s assignee under
this Agreement. Each party hereto shall require any successor or assignee (whether direct or
indirect, by purchase, merger, consolidation, contribution, assignment, restructuring or otherwise)
to all or substantially all the business and/or assets of such party, by agreement in writing in
form and substance reasonably satisfactory to the other party, expressly, absolutely, and
unconditionally to assume and agree to perform this Agreement in the same manner and to



35









 







the same extent that such party would be required to perform it if no such succession or
assignment had taken place.



     11.11 Expenses. The Seller shall pay all expenses incurred by Seller in connection with the
Letter, this Agreement and the transactions contemplated hereby, including, the expenses of legal
counsel and other professional expenses, as well as other expenses incurred by the Seller in
connection herewith and not expressly allocated hereunder. In addition, Seller shall reimburse
Buyer at Closing for all actual out-of-pocket expenses reasonably incurred by Buyer in connection
with the Letter, this Agreement and the transactions contemplated hereby, including, all legal and
other professional expenses, the expenses of Buyer’s due diligence review and other expenses
incurred by Buyer in connection herewith and not expressly allocated hereunder, provided Buyer
shall provide supporting documentation for such costs; provided, however, that in no event shall
Seller be required to reimburse Buyer for expenses in excess of $150,000 in the aggregate.
Notwithstanding the foregoing, if the Reimbursement Guaranties are not all transferred, or
replacement guaranties are not issued (through a financial institution that is reasonably
acceptable to Buyer) to replace all the Reimbursement Guaranties, to Buyer at the Closing, Seller
shall pay $450,000 to Buyer at the Closing, superseding Seller’s reimbursement obligations in the
immediately preceding sentence above and, from and after the Closing, Seller shall have no further
obligations under this Section 11.11. Notwithstanding anything in this Agreement to the contrary,
Seller shall have no liability under this Agreement for any inability or failure to assign,
transfer or convey any of the Reimbursement Guaranties to Buyer (or to obtain replacements thereof)
except for the payment expressly set forth in the immediately preceding sentence.



     11.12 Further Assurances. Seller, on the one hand, and Buyer, on the other hand, at any time
after the Closing Date, will promptly execute, acknowledge and deliver any further deeds,
assignments, conveyances and other assurances, documents and instruments of transfer, reasonably
requested by the other parties and necessary to comply with the representations, warranties and
covenants contained herein and will take any action consistent with the terms of this Agreement
that may reasonably be requested by the other parties for the purpose of assigning, transferring,
granting, conveying, vesting and confirming ownership in or to Buyer, or reducing to Buyer’s
possession, any or all of the Assets or effecting the assumption of the Assumed Contracts.



     11.13 No Third Party Beneficiary. Any agreement to perform any obligation or pay any amount
and any assumption of any obligation herein contained, express or implied, shall be only for the
benefit of the parties hereto and their respective successors and permitted assigns as expressly
permitted in this Agreement, and such agreements and assumptions shall not inure to the benefit of
any obligee, whomever, it being the intention of the undersigned that no one shall be or be deemed
to be a third party beneficiary of this Agreement other than parties that may have a right to
indemnification under this Agreement.



     11.14 Limitation of Liability. The parties hereto expressly acknowledge and agree that no
party hereto shall have any liability under any provision of this Agreement for any punitive,
incidental, consequential, special or indirect damages, including business interruption, diminution
in value, loss of future revenue, profits or income, or loss of business reputation or opportunity
relating to the breach or alleged breach of this Agreement.



36









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first written above.



	 	 	 	 	 	 	 
	 	 	BUYER:
	 
	 	 	 	 	 	 
	 	 	HORNBECK OFFSHORE SERVICES LLC
	 	 	a Delaware limited liability company
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Todd M. Hornbeck	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Todd M. Hornbeck	 	 
	 

	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	SELLER:
	 
	 	 	 	 	 	 
	 	 	SUPERIOR OFFSHORE INTERNATIONAL, INC.
	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Roger D. Burks	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Roger D. Burks	 	 
	 

	 	Title:
	 	Executive Vice President, Chief Financial
and Administrative Officer	 	 






[Signature Page to Asset Purchase Agreement By and Between

Hornbeck Offshore Services LLC and Superior Offshore International, Inc.]





 









 








Schedule 1.1




Reimbursement Guaranties





 









 








Schedule 2.12




Accounts Payable





 









 








Schedule 2.13




Contracts and Commitments





 









 








Schedule 2.17




Construction Expenses





 









 








Appendix A




Assignment and Assumption of Construction Contract




 









 








Appendix B




Assignment and Assumption of NO Crane Contract




 









 








Appendix C




Assignment and Assumption of Huisman Crane and Winch Contract




 









 








Appendix D




Letter of Credit





 









 








Appendix E




Release