exv10w1



 






EXECUTION COPY




AMENDED AND RESTATED




ASSET PURCHASE AGREEMENT




by and between




CAL DIVE INTERNATIONAL, INC.,




as Buyer,




and




TORCH OFFSHORE, INC.,




TORCH OFFSHORE L.L.C.,




and




TORCH EXPRESS, L.L.C.,




as Sellers




May 2, 2005




 








 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	Article I
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article II
	 	PURCHASE AND SALE OF SUBJECT ASSETS; THE CLOSING	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	2.1	 	 	Sale and Purchase
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	2.2	 	 	Excluded Assets
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	2.3	 	 	Assumption of Liabilities
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	2.4	 	 	Excluded Liabilities
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	2.5	 	 	The Closing
	 	 	11	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article III
	 	PURCHASE PRICE; SECURITY DEPOSIT	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	3.1	 	 	Purchase Price
	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	3.2	 	 	Security Deposit
	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article IV
	 	CLOSING DELIVERIES	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	4.1	 	 	Closing Deliveries of Sellers
	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	4.2	 	 	Closing Deliveries of Buyer
	 	 	13	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article V
	 	REPRESENTATIONS OF BUYER	 	 	14	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	5.1	 	 	Organization, Power and Status of Buyer
	 	 	14	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	5.2	 	 	Authorization, Enforceability, Execution and Delivery
	 	 	14	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	5.3	 	 	No Conflicts; Laws and Consents; No Default
	 	 	14	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	5.4	 	 	Financing
	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article VI
	 	REPRESENTATIONS OF SELLERS	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.1	 	 	Organization, Power and Status of Seller
	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.2	 	 	Authorization, Enforceability, Execution and Delivery
	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.3	 	 	No Conflicts; Laws and Consents; No Default
	 	 	16	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.4	 	 	Taxes
	 	 	16	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.5	 	 	Property; Title; Sufficiency
	 	 	17	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.6	 	 	Legal Proceedings
	 	 	18	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.7	 	 	Compliance with Laws; Permits
	 	 	18	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.8	 	 	Environmental Matters
	 	 	19	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	6.9	 	 	Assumed Contracts
	 	 	20	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article VII
	 	SURVIVAL; EXCLUSION OF WARRANTIES; NO ASSUMPTION OF LIABILITIES; EMPLOYEES	 	 	20	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	7.1	 	 	Survival
	 	 	20	 






 








 





	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	7.2	 	 	Exclusion of Warranties
	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	7.3	 	 	No Assumption of Liabilities
	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	7.4	 	 	No Obligation for Employees
	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article VIII
	 	CONDITIONS TO CLOSING	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	8.1	 	 	Buyer’s Conditions Precedent
	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	8.2	 	 	Sellers’ Conditions Precedent
	 	 	22	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article IX
	 	SELLERS’ BANKRUPTCY	 	 	23	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	9.1	 	 	Procedure for Approval of Transaction
	 	 	23	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	9.2	 	 	Condition to Closing Relating to Bankruptcy
	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article X
	 	COVENANTS; TRANSFER OF TITLE AND DELIVERY OF VESSELS	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.1	 	 	Covenants with Respect to Conduct Prior to Closing
	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.2	 	 	Transfer of Title
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.3	 	 	Inspections and Due Diligence
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.4	 	 	Notices; Time and Place of Delivery
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.5	 	 	Buyer Responsibilities Upon Delivery
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.6	 	 	Delivery Procedure
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	10.7	 	 	Spares, etc
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article XI
	 	TAXES	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	11.1	 	 	Responsibility for Taxes
	 	 	29	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	11.2	 	 	Cooperation on Tax Matters
	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	11.3	 	 	Preparation of Allocation Schedule
	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article XII
	 	DISPUTE RESOLUTION; SERVICE; GOVERNING LAW	 	 	31	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	12.1	 	 	Dispute Resolution; Service of Process; Waiver of Jury Trial
	 	 	31	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	12.2	 	 	Governing Law
	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article XIII
	 	TERMINATION	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	13.1	 	 	Termination
	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	13.2	 	 	Procedure Upon Termination
	 	 	33	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	13.3	 	 	Effect of Termination
	 	 	34	 
	 
	 	 	 	 	 	 	 	 	 	 
	Article XIV
	 	MISCELLANEOUS PROVISIONS	 	 	34	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.1	 	 	Amendments and Waivers
	 	 	34	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.2	 	 	Severability
	 	 	34	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.3	 	 	Notices
	 	 	34	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.4	 	 	Captions
	 	 	36	 






ii








 





	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.5	 	 	No Partnership
	 	 	36	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.6	 	 	Counterparts; Delivery by Facsimile
	 	 	36	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.7	 	 	General Interpretive Principles
	 	 	36	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.8	 	 	Punitive, Consequential, and Special Damages
	 	 	36	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.9	 	 	Further Assurances
	 	 	37	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.10	 	 	Entire Agreement
	 	 	37	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.11	 	 	Finders or Broker’s Fees
	 	 	37	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.12	 	 	Binding Effect; Assignment
	 	 	37	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	14.13	 	 	Publicity
	 	 	37	 






Buyer’s Schedules




	 	 	 	 	 
	Schedule 5.3(a)

	 	—
	 	Conflicts
	Schedule 5.3(b)

	 	—
	 	Consents and Approvals






Sellers’ Schedules



	 	 	 	 	 
	Schedule 6.3(a)

	 	—
	 	Conflicts
	Schedule 6.3(b)

	 	—
	 	Consents and Approvals
	Schedule 6.4

	 	—
	 	Taxes
	Schedule 6.5(b)

	 	—
	 	Licensed Software
	Schedule 6.6

	 	—
	 	Legal Proceedings
	Schedule 6.7(a)

	 	—
	 	Compliance with Laws
	Schedule 6.7(b)(i)

	 	—
	 	Permits
	Schedule 6.7(b)(ii)

	 	—
	 	Exceptions to Permits
	Schedule 6.8

	 	—
	 	Environmental Matters






Exhibits




	 	 	 
	Exhibit A-1

	 	Subject Assets
	Exhibit A-2

	 	Excluded Vessels and Equipment
	Exhibit B

	 	Patents
	Exhibit C

	 	Form of Bill of Sale
	Exhibit D

	 	Form of Assignment and Assumption Agreement
	Exhibit E

	 	Form of Patent Assignment
	Exhibit F

	 	Form of Power of Attorney
	Exhibit G

	 	Bidding Procedures
	Exhibit H

	 	Form of Protocol of Delivery and Acceptance






 iii 




 








 





AMENDED AND RESTATED ASSET PURCHASE AGREEMENT




      THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into
as of May 2, 2005, by and between Cal Dive International, Inc., a Minnesota corporation
(“Buyer”), and Torch Offshore, Inc., a Delaware corporation (“Torch”), Torch
Offshore, L.L.C., a Delaware limited liability company (“Offshore”), and Torch Express,
L.L.C., a Louisiana limited liability company (“Express”, with Torch and Offshore, each a
“Seller” and collectively, “Sellers”). Buyer and each Seller are sometimes
individually referred to as a “Party” and collectively as the “Parties.”



W I T N E S S E T H:




      WHEREAS, the Parties entered into an Asset Purchase Agreement, dated as of April 1, 2005 (the
“Original Agreement”), in order to provide for the purchase of certain assets and
properties of the Sellers by Buyer;



      WHEREAS, the Parties desire to amend and restate the Original Agreement in its entirety to
reflect and provide for the application of the terms and conditions set forth in this Agreement;



      WHEREAS, Sellers are the owners of the six (6) marine vessels and the related and associated
assets thereto that are described on Exhibit A-1 hereto (the “Subject Assets”);



      WHEREAS, on January 7, 2005 (the “Petition Date”), Torch, Offshore and Express
petitioned the United States Bankruptcy Court for the Eastern District of Louisiana for relief
under chapter 11 of title 11 of the United States Code (which such proceedings are being jointly
administered under Case No. 05-10137 (“B”)); and



      WHEREAS, Sellers desire to sell, transfer and assign to Buyer or its designated Affiliate or
Affiliates, and Buyer desires to (or to cause its designated Affiliate or Affiliates to) acquire
from Sellers, all of the Subject Assets, all as more specifically provided herein;



      In consideration of the mutual covenants and agreements herein contained, and of other
valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as
follows:



ARTICLE I

DEFINITIONS



The following terms employed in this Agreement have the meanings set forth as follows:




      “Affiliate” means, with respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, such Person, and the term “control” (including the terms “controlled
by” and “under common control with”) means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person, whether
through ownership of voting securities, by contract or otherwise



 








 





      “Action” means any action, motion, application, complaint, hearing, investigation,
petition, suit or other proceeding, whether in law or in equity, or before any arbitrator or
Governmental Authority.



      “Agreement” has the meaning set forth in the Preamble.



      “Approval Order” means a Final Order or Final Orders of the Bankruptcy Court, in form
and substance reasonably acceptable to Buyer that, among other things, (i) approves, pursuant to
sections 363(b) and 363(f) of the Bankruptcy Code, (A) the execution, delivery and performance by
Sellers of this Agreement, and the other instruments and agreements contemplated hereby, (B) the
sale of the Subject Assets free and clear of any and all Liens (other than Permitted Exceptions) to
Buyer on the terms set forth herein, and (C) the performance by each of Sellers and Buyer of its
respective obligations under this Agreement; and (ii) finds that Buyer is a “good faith” purchaser
within the meaning of section 363(m) of the Bankruptcy Code, and which such Order or Orders shall
be in full force and effect and shall not have been modified or amended in any respect.



      “Assumed Liabilities” has the meaning set forth in Section 2.3.



      “Auction” means the Bankruptcy Court auction for the Subject Assets to be held in
accordance with the Scheduling Order. The Auction shall be held at a location to be selected by
Sellers, and the auctioneer at the Auction shall be Torch or its designee.



      “Bankruptcy Case” means Sellers’ chapter 11 cases currently pending before the
Bankruptcy Court as jointly administered under Case No. 05-10137 (“B”).



      “Bankruptcy Code” means Title 11 of the United States Code, as heretofore and
hereafter amended, and codified as 11 U.S.C. section 101, et seq., or any successor statute, and
applicable federal and local rules of bankruptcy procedure thereunder.



      “Bankruptcy Court” means the United States Bankruptcy Court for the Eastern District
of Louisiana or any other court having jurisdiction over the Bankruptcy Case.



      “Bidding Procedures” has the meaning set forth in Exhibit G.



      “Break-Up Fee” has the meaning set forth in Section 9.1(e)(i).



      “Business Day” means any day of the year on which national banking institutions in New
York, New York, Houston, Texas and New Orleans, Louisiana are open to the public for conducting
business and are not required or authorized to close.



      “Buyer” has the meaning set forth in the Preamble.



      “Classification Society” or “Class” means that “classification society” or
“class” referred to in Exhibit A.



2








 





      “Closing” has the meaning set forth in Section 2.5.



      “Closing Date” has the meaning set forth in Section 2.5.



      “Code” means the Internal Revenue Code of 1986, as amended.



      “Competing Transaction” means any sale or other disposition of all or a portion of the
Subject Assets to a Person other than Buyer.



      “Contract” means any contract, agreement, indenture, note, bond, loan, instrument,
lease, commitment or other arrangement or agreement, whether written or oral.



      “Credit Bid” means a bid by either Regions Bank or Export Development Canada for
purchase of all or any portion of the Subject Assets pursuant to Section 363(k) of the Bankruptcy
Code providing that the sole consideration for such purchase shall be claims of such bidder against
the Sellers and their estates.



      “Cure Amount” means the aggregate of all cure amounts described in Section
9.1(h) and approved by the Bankruptcy Court pursuant to section 365(b) of the Bankruptcy Code.



      “Cure Payment” means: (i) if the Cure Amount is equal to or less than One Million
Dollars ($1,000,000), the Cure Amount; or (ii) if the Cure Amount is in excess of One Million
Dollars ($1,000,000), an amount equal to (a) One Million Dollars ($1,000,000) plus (b) an amount
equal to fifty percent (50%) of the amount by which the Cure Amount exceeds One Million Dollars
($1,000,000).



      “Employee” means any individual who is employed by Sellers in connection with the
operation of the Subject Assets, including, without limitation, any individual who is hired prior
to the Closing Date in respect of the operation of the Subjects Assets after the date hereof.



      “Environmental Costs and Liabilities” means, with respect to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts and consultants and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or
demand by any other Person or in response to any violation of Environmental Law, whether known or
unknown, accrued or contingent, whether based in contract, tort, implied or express warranty,
strict liability or criminal or civil statute, to the extent based upon, related to, or arising
under or pursuant to any applicable Environmental Law or applicable Environmental Permit (including
an order or agreement with any Governmental Authority or other Person under an applicable
Environmental Law), violation of applicable Environmental Law or a Release or threatened Release of
Hazardous Materials.



      “Environmental Law” means any applicable international, transnational, foreign,
federal, state or local statute, regulation, ordinance, rule of common law or other legal
requirement as now in effect in any way relating to the protection of human health and safety from
Hazardous



3








 






Materials, the environment or natural resources, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. App. § 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Clean Water
Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et
seq.) the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.) (to
the extent it regulates Hazardous Materials), and the Occupational Safety and Health Act (29 U.S.C.
§ 651 et seq.), as each has been or may be amended and the regulations promulgated
pursuant thereto.



      “Environmental Permit” means any Permit required by applicable Environmental Laws for
the ownership, use or operation of the Subject Assets.



      “Escrow Agent” means JPMorgan Chase Bank, N.A.



      “Escrow Agreement” has the meaning set forth in Section 3.2(a);
provided, however, that any reference in such Escrow Agreement to the “Asset
Purchase Agreement, dated as of April 1, 2005” or the “Purchase Agreement” shall be deemed for all
purposes thereof to be a reference to this Agreement (and the amendment and restatement effected
herein).



      “Equipment” means all furniture, fixtures, furnishings, equipment (including all SAT
systems and support equipment), improvements and other tangible personal property owned by Sellers
for the use of the Vessels and located on the Vessels or located at the Sellers’ Dulac, Louisiana,
fabrication yard, including all artwork, desks, chairs, tables, Hardware, copiers, telephone lines
and numbers, telecopy machines and other telecommunication equipment and miscellaneous furnishings
and supplies and, without limitation, with respect to any Vessel (i) said Vessel’s machinery,
engines, lay installation equipment, towers, reels, cranes, tensioners, spares, motors, generators,
riggings, attachments, accessories, fixtures, replacement parts, consumables, fuel, oil, and all
other appurtenances associated with the Vessels, whether located on the Vessels or at shore based
facilities; (ii) all surveys, inspection records, safety logs and maintenance and navigation
records, vessel logs, engineering logs, documents relating to Class and as-built and design
drawings relating to each of the Vessels; (iii) all owner’s and operator’s manuals related to, or
used or usable by each of the Vessels; (iv) all construction and diving equipment including, but
not limited to, chambers, hydraulic units, hydraulic tools, tool compressors, dive compressors, jet
pumps, positive displacement pumps, centrifugal pumps, dive hoses, video equipment, recorders,
welding equipment, engines, jet hoses, air tools and hand tools whether located at shore-based
facilities or on the Vessels; and (v) all equipment used to support loading and unloading the
Vessels, including, without limitation, cranes, fork lifts, cherry pickers, conex boxes, supply
baskets, trucks, trailers, and vans whether located at shore-base facilities or on the Vessels.



      “Excluded Assets” means all property and assets of Sellers other than the Subject
Assets, including, without limitation, those vessels and related equipment described on Exhibit
A-2 hereto, the accounts receivable of Sellers and any Contracts,
choses in action or other
legal or equitable rights of Sellers and their bankruptcy estates other than the Warranties and the
Purchased Contracts.



4








 





      “Excluded Liabilities” has the meaning set forth in Section 2.4.



      “Expense Reimbursement” has the meaning set forth in Section 9.1(e)(ii).



      “Express” has the meaning set forth in the Preamble.



      “Final Order” means a judgment, order or decree of the relevant Governmental Authority
that has not been reversed, stayed, enjoined, set aside, annulled, vacated or suspended and, with
respect to any judgment, order or decree of the Bankruptcy Court, any waiting period prescribed by
Law before the transactions contemplated hereby may be consummated has expired.



      “Governmental Approval” means any authorization, consent, approval, license,
franchise, ruling, permit, tariff, rate, certification, exemption, filing or registration by or
with any Governmental Authority relating to the ownership of the Subject Assets or to the
execution, delivery or performance of this Agreement, including without limitation any applicable
consents and approvals required under the HSR Act.



      “Governmental Authority” means any international or transnational regulatory or
administrative authority, any national, state or local government, or any political subdivision or
instrumentality thereof, and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any other Governmental Authority with
authority over Buyer or Sellers, the operation of the Vessels or any of the other Subject Assets.



      “Hardware” means any and all computer and computer-related hardware, including, but
not limited to, computers, file servers, facsimile servers, scanners, color printers, laser
printers and networks.



      “Hazardous Material” means any substance, material or waste that is listed,
classified, or otherwise regulated under or pursuant to any applicable Environmental Law as
“hazardous,” “toxic,” “pollutant,” “contaminant,” “radioactive,” or words of similar meaning or
effect, including, without limitation, petroleum and its by-products, asbestos, polychlorinated
biphenyls, radon, and urea formaldehyde insulation.



      “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations promulgated thereunder.



      “Indebtedness” of any Person means, without duplication, (i) the principal of and
premium (if any) in respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of
which such Person is responsible or liable; (ii) all obligations of such Person issued or assumed
as the deferred purchase price of property, all conditional sale obligations of such Person and all
obligations of such Person under any title retention agreement; (iii) all obligations of such
Person under leases required to be capitalized in accordance with generally accepted accounting
principles; (iv) all obligations of such Person for the reimbursement of any obligor on



5








 






any letter of credit, banker’s acceptance or similar credit transaction; (v) the liquidation
value of all redeemable preferred stock of such Person; (vi) all obligations of the type referred
to in clauses (i) through (v) of any Persons for the payment of which such Person is responsible or
liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of
such obligations; and (vii) all obligations of the type referred to in clauses (i) through (vi) of
other Persons secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person).



      “Inventory” means all inventory of Sellers, including all merchandise, raw materials,
supplies and other tangible personal property, used or held for use in connection with the
operation of the Vessels.



      “Knowledge” means actual knowledge, after reasonable inquiry, of the officers of the
Party being held responsible for such knowledge.



      “Law” means any applicable international or transnational, foreign, federal, state or
local law (including common law), statute, rule, regulation, ordinance, order, code, treaty or
other legally binding requirement, in effect now or as of the Closing Date, including any judicial
or administrative order, consent decree or judgment.



      “Legal Proceeding” means any judicial, administrative or arbitral actions, suits,
proceedings (public or private) or claims or any proceedings by or before a Governmental Authority.



      “Liability” means any debt, loss, damage, adverse claim (including claims as defined
in the Bankruptcy Code), liability, royalty, deficiency or obligation (whether direct or indirect,
known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated, or due or to become due, and whether in contract, tort, strict liability or
otherwise), and including all costs and expenses relating thereto.



      “Licensed Software” means Software formally licensed to any of the Sellers via a
written license agreement governing the terms of use of said Software and which is material for the
use and operation, or prospective use and operation, of the Subject Assets.



      “Lien” means any mortgage, lien (statutory or other, and including all “Liens” defined
in the Bankruptcy Code), pledge, security interest or interest of ownership, encumbrance, deed of
trust, hypothecation, assignment for security, claim, lease, charge, option, right of first
refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction or deposit
arrangement or other security agreement or adverse claim to ownership of the Vessels or the other
Subject Assets of any kind or nature whatsoever, whether recorded or unrecorded.



      “Material Adverse Effect” means (i) a material adverse effect on the condition,
utilization or value of the Subject Assets or (ii) a material adverse effect on the ability of
Sellers to consummate the transactions contemplated by this Agreement or perform their obligations
under this Agreement.



6








 





      “Material Contracts” has the meaning set forth in Section 6.9(a).



      “Offshore” has the meaning set forth in the preamble.



      “Order” means any order, injunction, judgment, decree, ruling, writ, assessment or
arbitration award of a Governmental Authority, including, without limitation, any order entered by
the Bankruptcy Court in the Bankruptcy Case.



      “Outside Date” has the meaning set forth in Section 13.1(c).



      “Patents” means the patents and patent applications listed on Exhibit B
attached hereto and made a part hereof.



      “Permitted Exceptions” means (i) all defects, exceptions, restrictions, easements,
rights of way and encumbrances disclosed in policies of title insurance which have been made
available to Buyer; (ii) statutory liens for current Taxes, assessments or other governmental
charges not yet delinquent or the amount or validity of which is being contested in good faith by
appropriate proceedings provided an appropriate reserve is established therefor; (iii) mechanics’,
carriers’, workers’, repairers’ and similar Liens arising or incurred in the ordinary course of
business that are not material to the operations and condition of the Subject Assets so encumbered
and that are not resulting from a breach, default or violation by any Seller of any Contract or
Law; (iv) zoning, entitlement and other land use and environmental regulations of any Governmental
Authority provided that such regulations have not been violated; and (v) such other imperfections
in title, charges, easements, restrictions and encumbrances which do not materially detract from
the value of or materially interfere with the present use of any Subject Assets subject thereto or
affected thereby.



      “Permit” means any approval, authorization, consent, license, permit, franchise,
certificate or Order of a Governmental Authority, or any waiver of the foregoing, necessary or
appropriate for the operation and present use of the Subject Assets or for the transfer of the
Subject Assets.



      “Person” means an individual, a partnership, a corporation, a joint venture, an
unincorporated association, a joint-stock company, a trust, a limited liability company, or other
entity or a Governmental Authority or any agency or political subdivision thereof.



      “Petition Date” has the meaning assigned to such term in the recitals of this
Agreement.



      “Protocol of Delivery and Acceptance” has the meaning set forth in Section
10.6.



      “Purchase Price” has the meaning set forth in Section 3.1.



      “Purchased Contracts” means those Contracts identified under the heading “Purchased
Contracts” on Exhibit A-1 hereto, which such Contracts shall comprise a part of and be
included in the Subject Assets, but only to the extent that such Contracts are:



7








 






      (i) executory contracts or unexpired leases that are able to be assumed and
assigned by Sellers under applicable Law; and




      (ii) relate to goods or services that are necessary, required or reasonably
appropriate for the use, maintenance and operation of the Subject Assets;


provided, however, that the “Purchased Contracts” shall be “None” in the event that
the M/V Midnight Express is not included among the vessels that Buyer purchases from Sellers and,
in such event, the Buyer shall have no obligation for any payment of any cure amounts with respect
to those Contracts identified under the heading “Purchased Contracts” on Exhibit A-1
hereto.




      “Release” means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, or leaching of Hazardous Material into the environment.



      “Remedial Action” means all actions to (i) clean up, remove, treat or in any other way
address any Release of Hazardous Material; (ii) prevent the threatened Release of any Hazardous
Material so it does not endanger or threaten to endanger public health or welfare or the
environment; (iii) perform pre-remedial studies and investigations or post-remedial monitoring and
care associated with a Release of Hazardous Material; or (iv) correct a condition of noncompliance
with applicable Environmental Laws.



      “Sale Hearing” means the hearing to be scheduled and conducted by the Bankruptcy Court
to consider approval and entry of the Approval Order.



      “Sale Motion” means the motion or motions of Sellers filed with the Bankruptcy Court
on April 6, 2005 seeking approval and entry of the Approval Order and scheduling of the Sale
Hearing, with any modifications, amendments or supplements thereto that are reasonably acceptable
to Buyer.



      “Scheduling Hearing” means the hearing scheduled and conducted by the Bankruptcy Court
on April 27, 2005 and subsequent thereto to consider approval of the Break-Up Fee and Expense
Reimbursement, and issuance of the Scheduling Order.



      “Scheduling Motion” means the motion of Sellers filed with the Bankruptcy Court on
April 6, 2005 seeking setting of the Scheduling hearing and approval of the Scheduling Order, with
any modifications, amendments or supplements thereto that are reasonably acceptable to Buyer.



      “Scheduling Order” means an order of the Bankruptcy Court, in form and substance
reasonably acceptable to Buyer, (i) approving the Bidding Procedures, Break-Up Fee and Expense
Reimbursement relating to the Subject Assets, (ii) scheduling the Auction, (iii) providing that
notice of the Auction, Bidding Procedures, Break-Up Fee and Expense Reimbursement be given to all
Persons entitled under the Bankruptcy Code to receive notice thereof, including without limitation,
all Persons holding a Lien or interest on or in the Subject Assets, all licensees, all relevant
Taxing Authorities, and all other Persons to which Buyer reasonably requests that such notice be
given.




8









 






      “Security Deposit” has the meaning set forth in Section 3.2.



      “Seller” and “Sellers” have the meanings set forth in the preamble.



      “Software” means computer software programs, whether in source code, object code or
human readable form; provided, however, that Software does not include any (i)
computer software program that is subject to “shrink-wrap” license or “click-through” agreements,
or (ii) computer software program that is commercially available to the general consuming public in
exchange for a license or purchase fee of Five Thousand Dollars ($5,000.00) or less.



      “Subject Assets” have the meaning set forth in the recitals to this Agreement. In the
interest of clarity, the Subject Assets do not include the Excluded Assets.



      “Tax” or “Taxes” means (i) any and all federal, state, local or foreign taxes,
charges, fees, imposts, levies or other assessments, including, without limitation, all net income,
gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll, employment, social security, unemployment,
excise, severance, stamp, occupation, property and estimated taxes, customs duties, fees,
assessments and charges of any kind whatsoever, and (ii) all interest, penalties, fines, additions
to tax or additional amounts imposed by any Taxing Authority in connection with any item described
in clause (i), and (iii) any liability in respect of any items described in clauses (i) and/or (ii)
payable by reason of contract, assumption, transferee liability, operation of law, Treasury
Regulation section 1.1502-6(a) (or any predecessor or successor thereof of any analogous or similar
provision under law) or otherwise.



      “Taxing Authority” means the IRS and any other Governmental Authority responsible for
the administration of any Tax.



      “Tax Return” means any return, report or statement required to be filed with respect
to any Tax (including any attachments thereto, and any amendment thereof) including, but not
limited to, any information return, claim for refund, amended return or declaration of estimated
Tax, and including, where permitted or required, combined, consolidated or unitary returns for any
group of entities that includes the Sellers, any of their respective subsidiaries, or any of their
respective Affiliates.



      “Termination Date” has the meaning set forth in Section 13.1.



      “Torch” has the meaning set forth in the preamble.



      “Transaction” means the purchase, sale and assignment of the Subject Assets, along
with any other transactions contemplated in this Agreement or related thereto.



      “Transferred Permits” means the Permits listed on Exhibit A-1 attached hereto
and made a part hereof, which such Permits are a part of, and included in, the Subject Assets.



9








 





      “Vessels” means the marine vessels identified on Exhibit A-1 attached hereto
and made a part hereof.



      “Warranty” any warranty, representation or guaranty of any Person other than Sellers
(including, without limitation, any supplier, manufacturer or contractor), whether express or
implied, or for the design, quality, condition, merchantability, seaworthiness or fitness for a
particular purpose, with respect to the design, manufacture, assembly, repair, maintenance,
delivery or installation of Subject Assets, or services rendered thereon or in connection
therewith, by any such Person.



ARTICLE II

PURCHASE AND SALE OF SUBJECT ASSETS; THE CLOSING




      2.1 Sale and Purchase. On the terms and subject to the conditions set forth in this
Agreement, at the Closing, Sellers shall sell, transfer, convey, assign and deliver to Buyer, and
Buyer shall (or shall cause its designated Affiliate to) purchase, acquire and accept from Sellers,
all of the Sellers’ right, title and interest in, to and under the Subject Assets, free and clear
of Liens except for Permitted Exceptions.



      2.2 Excluded Assets. Nothing herein contained shall be deemed to sell, transfer,
assign or convey the Excluded Assets to Buyer, and Sellers shall retain all right, title and
interest to, in and under the Excluded Assets.



      2.3 Assumption of Liabilities. On the terms and subject to the conditions set forth
in this Agreement, at the Closing, Buyer shall (or shall cause its designated Affiliate or
Affiliates to) assume, effective as of the Closing, all Liabilities of Sellers under the Purchased
Contracts and Transferred Permits that arise out of or relate to performance thereunder or use and
operation of the Subject Assets in respect thereof from and after the Closing Date (collectively,
the “Assumed Liabilities”).



      2.4 Excluded Liabilities. Buyer will not assume or be liable for any Excluded
Liabilities. “Excluded Liabilities” shall mean all Liabilities arising out of, relating to
or otherwise in respect of the ownership, use or operation of the Subject Assets on or before the
Closing Date and, other than the Assumed Liabilities, all other Liabilities of Sellers (whether
known or unknown or asserted or unasserted as of the Closing Date and irrespective of when any
claim in respect thereof shall be made), including, without limitation, the following Liabilities:




      (a) all Liabilities in respect of any and all products sold and services performed by
Sellers on or before the Closing Date;




      (b) all Environmental Costs and Liabilities to the extent arising out of, relating to
or otherwise in respect of the ownership, use or operation of the Subject Assets (or any
condition thereon) on or before the Closing Date, including, without limitation, any (i)
Release or continuing Release (if existing as of the Closing) of any Hazardous Material,
regardless of by whom or (ii) any noncompliance with applicable Environmental Laws;



10








 






      (c) all Liabilities arising out of, relating to or with respect to (i) the employment
or performance of services, or termination of employment or services by Sellers or any of
its Affiliates of any Person on or before the Closing Date, (ii) workers’ compensation
claims relating to the Sellers or the use and operation of the Subject Assets on or before
the Closing Date, irrespective of whether such claims are made prior to or after the Closing
or (iii) any employee benefit plan of Sellers or any of their respective Affiliates or
subsidiaries;




      (d) all Liabilities arising out of, under or in connection with Contracts that are not
Purchased Contracts and, with respect to Purchased Contracts, Liabilities (other than in
respect of the payment of the Cure Payment in accordance with Section 4.2(b)) in
respect of any performance, obligations, breach by or default accruing under such Contracts
with respect to any period prior to Closing;




      (e) all Liabilities arising out of, under or in connection with any Indebtedness of
Sellers;




      (f) all Liabilities for (i) Taxes of Seller, (ii) Taxes that relate to the Subject
Assets or the Assumed Liabilities for taxable periods (or portions thereof) ending on or
before the Closing Date, and (iii) payments under any Tax allocation, sharing or similar
agreement (whether oral or written);




      (g) all Liabilities in respect of any pending or threatened Legal Proceeding, or any
claim arising out of, relating to or otherwise in respect of (i) the ownership, use or
operation of the Subject Assets to the extent such Legal Proceeding or claim relates to such
ownership, use or operation on or prior to the Closing Date, or (ii) any Excluded Asset;




      (h) any and all Liabilities of Sellers that are discharged pursuant to Section
1141(d)(1) of the Bankruptcy Code or any Order of the Bankruptcy Court; and




      (i) any and all Liabilities of Sellers other than Assumed Liabilities, the collection
of which has been permanently enjoined by an Order of the Bankruptcy Court or by any
applicable provision of the Bankruptcy Code (including, without limitation, Section 524 of
the Bankruptcy Code).



      2.5 The Closing. The closing of the purchase and sale of the Subject Assets (the
“Closing”) will take place at a time agreed by the Parties, during normal business hours at
the offices of Heller, Draper, Hayden, Patrick & Horn, L.L.C. in New Orleans, Louisiana, or at such
other venue as Sellers and Buyer mutually agree. The Parties shall use all reasonable efforts to
cause the Closing to occur on the date no later than three (3) Business Days following the date on
which all conditions to Closing hereunder are satisfied or waived (other than such conditions that
by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of
such conditions), unless another time or date, or both, are agreed to in writing by the Parties.
The date on which the Closing shall be held is referred to in this Agreement as the “Closing
Date”.



11








 





ARTICLE III

PURCHASE PRICE; SECURITY DEPOSIT




      3.1 Purchase Price. The consideration to be given and paid by Buyer to Sellers for
the Subject Assets shall be: (i) the assumption of the Assumed Liabilities and (ii) Eighty Million
Dollars ($80,000,000.00) in cash (the “Purchase Price”).



      3.2 Security Deposit.




      (a) On April 6, 2005, Buyer deposited with Escrow Agent, in its capacity as escrow
agent pursuant to that certain Escrow Agreement, dated as of April 6, 2005, among Buyer,
Sellers and Escrow Agent (the “Escrow Agreement”), the sum of Four Million Six
Hundred Thousand Dollars ($4,600,000) (the “Security Deposit”). Pursuant to the
Escrow Agreement, the Security Deposit plus any interest or other amount accrued thereon
shall either (i) be applied as a deposit towards the Purchase Price as provided in
Section 4.2(b), or (ii) be returned to Buyer in the event that this Agreement is
terminated pursuant to Sections 13.1(a), (b), (c), (d),
(e), (f) or (g) (in each such case, such return shall be
authorized and completed as soon as practicably possible after the occurrence of such
termination), or (iii) be paid to Sellers in the event that this Agreement is terminated by
Sellers pursuant to Section 13.1(h).




      (b) Upon payment of the Security Deposit to Sellers as provided under Section
3.2(a)(iii), Buyer shall be fully released and discharged from any liability or
obligation under or resulting from this Agreement and Sellers shall not have any other
remedy or cause of action under or relating to this Agreement or any applicable Law.



ARTICLE IV

CLOSING DELIVERIES




      4.1 Closing Deliveries of Sellers. On the Closing Date, in exchange for the payment
of the Purchase Price and the assumption of the Assumed Liabilities, each of the Sellers, as
applicable, shall execute and deliver the following to Buyer:




      (a) a certificate evidencing resolutions of the Board of Directors (or commensurate
authority) of each of the Sellers, certified by the Secretary or other appropriate officer
or agent of such Seller, duly authorizing the execution, delivery and performance of this
Agreement and the other transaction documents;




      (b) a bill of sale to each of the Vessels in a form recordable in the country in which
such Vessel is presently documented, duly notarially attested transferring such Vessel;




      (c) for each Seller’s Vessel, a current Abstract of Title or Certificate of Ownership
and Encumbrances issued by the appropriate Governmental Authorities showing the current
record owners of the Vessel and stating that the Vessel is free from any registered Liens;



12








 






      (d) for each Seller’s Vessel, a counterpart executed by Seller of the Protocol of
Delivery and Acceptance confirming the date and time of delivery of the Vessel from the
Seller to Buyer;




      (e) one or more bills of sale in the form of Exhibit C hereto for all of the
other assets comprising a part of the Subject Assets;




      (f) an assignment and assumption agreement in the form of Exhibit D hereto;




      (g) duly executed assignments for the Patents, each substantially in the form attached
hereto as Exhibit E;




      (h) a duly executed power of attorney in the form of Exhibit F hereto;




      (i) a certified copy of the Approval Order;




      (j) an affidavit of non-foreign status that complies with Section 1445 of the Code
(acknowledging and certifying that the transactions contemplated hereby are exempt from
withholding under such section of the Code);




      (k) any additional documents reasonably required by the appropriate Governmental
Authority for the purpose of re-documenting Buyer’s ownership of the Vessels, provided Buyer
notifies Sellers of any such documents as soon as possible after the date of this Agreement;




      (l) evidence, in a form and substance satisfactory to the Buyer (or its designated
Affiliate), of the payment, on or prior to the Closing Date, by the Sellers in respect of
the Purchased Contracts the cure amount to the non-Seller parties to the Purchased Contracts
(which, in the aggregate, shall be the Cure Amount), with such payment being made prior to
the assignment of such Purchased Contracts from Sellers to Buyer (or its designated
Affiliate); and




      (m) and such other instruments of transfer in a form and substance satisfactory to
Buyer (or its designated Affiliate) necessary to transfer and vest in Buyer (or its
designated Affiliate) all of the Sellers’ right, title and interest in and to the Subject
Assets in accordance with the terms of this Agreement.



      4.2 Closing Deliveries of Buyer. On the Closing Date, in exchange for the transfer,
assignment, conveyance and delivery of Subject Assets by Sellers to Buyer, Buyer shall execute and
deliver the following to Sellers:




      (a) a certificate evidencing resolutions (or commensurate authority) of the Board of
Directors of Buyer, certified by the Secretary or other appropriate officer or agent of
Buyer, duly authorizing the execution, delivery and performance of this Agreement and the
other transaction documents;



13








 






      (b) an amount equal to (i) the Purchase Price less the Security Deposit plus any
interest or other amounts accrued thereon, plus (ii) the Cure Payment, payable by wire
transfer to an account specified in writing by Sellers;




      (c) for each Vessel, a counterpart executed by Buyer of the Protocol of Delivery and
Acceptance confirming the date and time of delivery of the Vessel from Seller to Buyer; and




      (d) an assignment and assumption agreement in the form of Exhibit D hereto.



ARTICLE V

REPRESENTATIONS OF BUYER




      Buyer hereby represents and warrants to Sellers that:



      5.1 Organization, Power and Status of Buyer. Buyer is an entity duly formed, validly
existing and in good standing under the laws of the State of Minnesota.



      5.2 Authorization, Enforceability, Execution and Delivery. Buyer has all necessary
corporate power and authority to execute, deliver and perform its obligations under this Agreement
and each other related document to which it is a party. The execution, delivery and performance by
Buyer of this Agreement have been duly authorized by all necessary corporate action on behalf of
Buyer. This Agreement has been duly executed and delivered by Buyer and (assuming the due
authorization, execution and delivery by the other parties hereto and thereto) this Agreement and
each such other document related to this Agreement to which Buyer is a party constitute legal,
valid and binding obligations, enforceable against it in accordance with their terms, except as
such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors’ rights and remedies
generally and (ii) is subject to general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).



      5.3 No Conflicts; Laws and Consents; No Default.




      (a) Except as set forth on Schedule 5.3(a), neither the execution, delivery and
performance of this Agreement nor the consummation of the Transaction nor performance of or
compliance with the terms and conditions hereof will conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both) under, or give
rise to any increased, additional, accelerated or guaranteed rights or entitlements of any
Person under, or result in the creation of any Liens upon of the Subject Assets under any
provision of (i) any Law applicable to Buyer or (ii) any document to which Buyer is a party,
except for any such conflict, violation, default, rights or entitlements that would not have
a material adverse effect upon Buyer’s ability to perform its obligations under this
Agreement.




      (b) No consent, waiver, approval, order, permit or authorization of, or declaration or
filing with, or notification to, any Person or Governmental Authority is required on the
part of Buyer in connection with the execution and delivery of this Agreement or the
consummation of the Transaction or the compliance by Buyer with any



14








 






of the provisions hereof, except for compliance with any requirements (if applicable) of the HSR Act and those
set forth on Schedule 5.3(b) hereto or such consents, waivers, approvals, orders,
permits or authorizations, declarations, filings or notifications that the failure to obtain
or make would not, individually or in the aggregate, have a material adverse effect on the
ability of Buyer to consummate the transactions contemplated by this Agreement.



      5.4 Financing. Buyer has on the date hereof and will have sufficient available funds
to pay the Purchase Price and the Cure Payment in cash at Closing in accordance with Section
4.2 hereof, and all fees and expenses required to be paid by Buyer in connection with the
Transaction. Buyer’s obligations to make any payments under this Agreement shall not be subject to
receipt of new financing by Buyer.



ARTICLE VI

REPRESENTATIONS OF SELLERS





      Sellers, jointly and severally, hereby represent and warrant to Buyer that:



      6.1 Organization, Power and Status of Seller. Each Seller is (i) a legal entity duly
formed, validly existing and in good standing under the laws of the state of its organization or
incorporation, and (ii) duly authorized, to the extent necessary, to do business in each
jurisdiction where the character of its properties or the nature of its activities makes such
qualification necessary, except for any failure to be so qualified that would not, individually or
in the aggregate, have a Material Adverse Effect. Each Seller has all requisite corporate power
and authority to own and operate the property it purports to own and to carry on its business as
now being conducted and as proposed to be conducted in respect of the applicable Subject Assets.



      6.2 Authorization, Enforceability, Execution and Delivery. Each Seller has all
necessary organizational power and authority to execute and deliver and, subject to the entry of
the Approval Order and, with respect to the Sellers’ obligations under Section 9.1(e), the
entry of the Scheduling Order, perform its obligations under this Agreement and each other related
document to which it is a party. The execution and delivery of this Agreement and the related
documents to which a Seller is a party and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary organizational action on the part of the
Sellers. This Agreement has been, and, subject to the entry of the Approval Order and, with
respect to Sellers’ obligations under Section 9.1(e), the entry of the Scheduling Order,
each of the related documents to which a Seller is a party will be at or prior to the Closing, duly
and validly executed and delivered by such Seller which is a party thereto and (assuming the due
authorization, execution and delivery by the other Parties hereto and thereto, the entry of the
Approval Order and, with respect to Sellers’ obligations under Section 9.1(e), the entry of
the Scheduling Order) this Agreement and each such other document related to this Agreement to
which a Seller is a party constitute its legal, valid and binding obligations, enforceable
against it in accordance with their terms, except as such enforceability (i) may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the
enforcement of creditors’ rights and remedies generally, and (ii) is subject to general principles
of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).



15








 





      6.3 No Conflicts; Laws and Consents; No Default.




      (a) Except as set forth on Schedule 6.3(a), and subject to the entry of the
Approval Order, neither the execution, delivery and performance of this Agreement nor the
consummation of the Transaction nor performance of or compliance with the terms and
conditions hereof will conflict with, or result in any violation of or default (with or
without notice or lapse of time, or both) under, or give rise to or result in the creation
of any Liens upon the Subject Assets under any provision of (i) any Law applicable to
Sellers or the Subject Assets, (ii) any Contract or Permit to which any of the Sellers is a
party or by which any of the Subject Assets are bound, or (iii) any Order of any
Governmental Authority applicable to any Seller or by which any of the properties or assets
of any Seller (including, without limitation, the Subject Assets) are bound, except for any
such conflict, violation, default, rights or entitlements that that would not have a
Material Adverse Effect. Each Seller is in compliance in all material respects with and not
in default under any and all Laws applicable to such Seller and the Subject Assets, the
terms and provisions of this Agreement or any other related documents to which such Seller
is a party.




      (b) No consent, waiver, approval, order, permit or authorization of, or declaration or
filing with, or notification to, any Person or Governmental Authority is required on the
part of any Seller in connection with the execution and delivery of this Agreement or the
consummation of the Transaction or the compliance by any Seller with any of the provisions
hereof, except for compliance with the applicable requirements of the Approval Order, the
Scheduling Order, the HSR Act and those set forth on Schedule 6.3(b) hereto or such
consents, waivers, approvals, orders, permits or authorizations, declarations, filings or
notifications that the failure to obtain or make would not, individually or in the
aggregate, have a Material Adverse Effect.



      6.4 Taxes. Except as set forth in Schedule 6.4, each Seller has filed, or
caused to be filed, and shall, as of the Closing, have filed, or cause to be filed, all material
Tax Returns that are required to have been filed by it with the appropriate Taxing Authority in any
jurisdiction with respect to the Subject Assets, and has paid, or caused to be paid, and shall, as
of the Closing, have paid, or caused to be paid, all Taxes shown to be due and payable on such Tax
Returns and all other Taxes and assessments payable by it with respect to the Subject Assets, to
the extent the same have become due and payable, but excluding any Taxes which would not subject,
either on or prior to the Closing Date or after the Closing Date, the Subject Assets to imminent
forfeiture or sale or result in the imposition of any Lien thereon. There are no Liens for Taxes
upon the Subject Assets, except for Liens arising as a matter of Law relating to current Taxes not
yet due. None of the Sellers is a foreign person within the meaning of Section 1445 of the Code.
Each Seller has provided to Buyer copies of any written inquiry of any Governmental Authority received since December 31, 2001, that
raises any issue which, by application of the same principles, would reasonably be expected to
affect the Tax treatment of the Subject Assets in any taxable period (or portion thereof) ending
after the Closing Date. No power of attorney with respect to any Tax matter is currently in force
with respect to the Subject Assets that would, in any manner, bind, obligate or restrict Buyer.
None of the Sellers has executed or entered into any agreement with, or obtained any consents or
clearances from, any Taxing Authority, or has



16








 




been subject to any ruling guidance specific to any
of the Sellers, that would be binding on Buyer for any taxable period (or portion thereof) ending
after the Closing Date.




      6.5 Property; Title; Sufficiency.




      (a) Sellers represent that they respectively own and have good and marketable title to
the Subject Assets and that they shall, subject to the terms and conditions hereof, deliver
at the Closing the Subject Assets to Buyer or its designee. Since March 1, 2005, there has
not been any damage, destruction or loss, whether or not covered by insurance, with respect
to the Subject Assets and there otherwise has not been any event, change, occurrence or
circumstance that, in each case, has had or could reasonably be expected to have a Material
Adverse Effect. Except as may be set forth on Exhibit A-1, Sellers represent that
there is no equipment or inventory material in the use and operation of the Subject Assets
other than such equipment and inventory located on the Vessels or located at the Sellers’
Dulac, Louisiana, fabrication yard.




      (b) Exhibit B sets forth a true, correct and complete list of all Patents and
Schedule 6.5(b) sets forth a true, correct and complete list of all Licensed
Software. The Patents and the Licensed Software comprise all material intellectual property
rights owned by or licensed to Sellers necessary or appropriate for the use and operation of
the Subject Assets as used or operated by Sellers prior to April 1, 2005. Except as set
forth in Schedule 6.5(b), or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, Torch owns, has the exclusive
right to use, sell, license and dispose of, and has the exclusive right to bring actions for
the infringement of its Patents and has not licensed its Patents to any other Person other
than Offshore and Express. Except as set forth in Schedule 6.5(b), or as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,
each Seller has a valid license to use its Licensed Software, assuming that the respective
licensor thereof has valid title thereto or a valid license for such Licensed Software and
has the right to license such Licensed Software to such Seller (and such Seller has not
received notice that any such licensor does not have valid title thereto or a valid license
or that the licensor is not permitted to license such Licensed Software). Except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, none of the Sellers has received from any Person in the past two years any notice,
charge, complaint, claim or assertion that any patent, registered trademark or registered
copyright is being interfered with, infringed upon or misappropriated in any manner in
connection with the ownership, use and operation of the Subject Assets. Except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, none of the Sellers or, to the Knowledge of
the Sellers, any agent, attorney or representative thereof, has sent to any Person in
the past two years, or otherwise communicated to any Person, any notice, charge, complaint,
claim or other assertion of any present, impending or threatened infringement by,
misappropriation of, or other conflict with, any of the Patents by such other Person and, to
the Knowledge of Sellers, no such infringement, misappropriation, conflict or act of unfair
competition is occurring or threatened. Except set forth in Schedule 6.5(b), or as
would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, the consummation of the Transaction contemplated hereby will not result



17








 






in the loss or impairment of Buyer’s right to own or use any of the Patents or the Licensed
Software. None of the Sellers has granted any license or sublicense of any rights under or
with respect to any Patents except to Offshore and Express.




      (c) Except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, none of the Sellers has committed any act or failed to
commit any act, which would result in, and there has been no occurrence which would give
rise to or form the basis of, any rejection, renunciation, denial or refusal by any other
applicable Person of any Warranty or any Action in respect thereof.



      6.6 Legal Proceedings. Except as set forth on Schedule 6.6 or arising in or
related to the Bankruptcy Case, there is no Legal Proceeding filed and pending or, to the Knowledge
of any Seller, threatened against any Seller, or to which any Seller is otherwise a party before
any Governmental Authority, except any such Legal Proceeding as could not reasonably be expected to
have a Material Adverse Effect. Except as set forth on Schedule 6.6, none of the Sellers
is subject to any Order that could reasonably be expected to have a Material Adverse Effect.



      6.7 Compliance with Laws; Permits.




      (a) Except to the extent set forth in Schedule 6.7(a):




      (i) each of the Sellers is in compliance with all Laws of any Governmental
Authority applicable to their respective operations or assets (including the Subject
Assets), except where such non-compliance could not reasonably be expected to have a
Material Adverse Effect;




      (ii) Sellers have not received any written or other notice of or been charged
with the violation of any Laws that could reasonably be expected to have a Material
Adverse Effect and, to the Knowledge of each Seller, there are no facts or
circumstances which could reasonably be expected to form the basis for any such
violation that would have a Material Adverse Effect; and




      (iii) to the Knowledge of each Seller, none of the Sellers or the Subject
Assets is under investigation with respect to a material violation of any applicable
Laws.




      (b) Schedule 6.7(b)(i) of this Agreement contains a true, correct and complete
list of all Permits which are material to the ownership and operation of the Subject Assets
as presently owned and operated. Except as described in Schedule 6.7(b)(ii),
or as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, to the Knowledge of the Sellers, all Permits set forth therein (i) are valid
and subsisting and in full force and effect and (ii) are transferable to Buyer either
without any further action by Sellers, or with such further action by Sellers as it
otherwise permitted by Law and required under this Agreement, including without limitation,
Section 14.9 hereof, and none of Sellers is in default or material violation, and no
event has occurred which, with notice or the lapse of time or both, would reasonably be
expected to constitute a default or violation, in any material respect of any term,
condition or provision of any Permit to which it is a party, to which any of the Subject
Assets is



18








 






subject or bound and, to the Knowledge of each Seller, there are no facts or
circumstances which could reasonably be expected to form the basis for any such default or
violation that would have a Material Adverse Effect and no suspension, cancellation or
termination of any of such Permits is threatened or pending.



      6.8 Environmental Matters. Except as set forth in Schedule 6.8 hereto:




      (a) the operations of Sellers, with respect to the Subject Assets, are in material
compliance with all applicable Environmental Laws, which material compliance includes
obtaining, maintaining in good standing and complying in all material respects with all
applicable Environmental Permits necessary to operate the Subject Assets and no action or
proceeding is pending or, to the Knowledge of any Seller, threatened to revoke, modify in
any material respect or terminate any such Environmental Permit, and, to the Knowledge of
any Seller, no facts, circumstances or conditions currently exist that could reasonably be
expected to adversely affect such continued material compliance with applicable
Environmental Laws and applicable Environmental Permits or require material capital
expenditures to achieve or maintain such continued material compliance with applicable
Environmental Laws and applicable Environmental Permits;




      (b) with respect to the Subject Assets, none of the Sellers is the subject of any
outstanding written order or Contract with any Governmental Authority or Person respecting
(i) Environmental Laws, (ii) Remedial Action or (iii) any Release of a Hazardous Material,
or for which a Seller has material, outstanding liabilities;




      (c) no claim has been filed and is pending, or to the Knowledge of any Seller,
threatened against any Seller or the Subject Assets, alleging, with respect to the Subject
Assets, that a Seller or any of its Subject Assets is in material violation of any
applicable Environmental Law or any applicable Environmental Permit or has any material
liability under any applicable Environmental Law;




      (d) to the Knowledge of Sellers, no facts, circumstances or conditions exist with
respect to the Subject Assets that could reasonably be expected to result in Buyer incurring
material Environmental Costs or Liabilities either before or after Closing for pre-closing
events or conditions other than those that are generally incurred in the ordinary course
(without material violation of applicable Environmental Law) by Sellers;




      (e) to the Knowledge of Sellers, there are no investigations of the Subject Assets
pending or threatened which could reasonably be expected to lead to the imposition of any
material Environmental Costs or Liabilities on the Subject Assets or material Liens under
applicable Environmental Law on the Subject Assets;




      (f) to the Knowledge of Sellers, the Transaction contemplated hereunder is not one for
which an applicable Environmental Law requires the consent of or advance filings with any
Governmental Authority with jurisdiction over the Subject Assets and environmental matters;
and




      (g) Sellers have provided to Buyer all material audits, studies, reports, analyses, and
results of investigations of matters regulated by applicable Environmental



19








 






Laws that have been performed since January 1, 2003 with respect to the Subject Assets and that are in
Sellers’ possession.



      6.9 Assumed Contracts.




      (a) On March 31, 2005, Sellers provided to Buyer (via email) a list entitled “Torch
Relevant Contracts” which contains a true, complete and correct list of all Contracts
conforming to the descriptions set forth below in this Section 6.9(a) to which any
Seller is a party which relates to the Subject Assets, copies of each of which have been
delivered or otherwise made available to Buyer: (i) any Contract relating to the use or
operation of, or limiting or restricting in any material manner the use or operation of, the
Subject Assets, (ii) Contracts relating to incurrence, assumption or guarantee of any
Indebtedness imposing a Lien on any of the Subject Assets; (iii) any Contract providing
warranties for, or relating to the furnishing or receipt of services for, any Subject
Assets, and (iv) any power of attorney (irrevocable or otherwise) to any Person for any
purpose relating to the Subject Assets or the ownership, use or operation thereof
(collectively, the “Material Contracts”).




      (b) Upon payment of the Cure Amount, (i) each Purchased Contract will continue to be in
full force and effect and constitute the entire agreement by and between or among the
parties thereto, (ii) after giving effect to a Final Order approving the assumption of the
Purchased Contracts, each Purchased Contract shall continue to be legal, valid, binding,
enforceable and in full force and effect on identical terms following the consummation of
the Transaction contemplated by this Agreement, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to general
principles of equity, (iii) after giving effect to a Final Order approving the assumption of
the Purchased Contracts, no Purchased Contract prohibits or requires the consent of any
Person to the assignment to and assumption by Buyer or its designee of such Purchased
Contract, (iv) no party to any Purchased Contract has, to the Knowledge of the Sellers,
repudiated any provision thereof, and (v) no Seller who is a party to any Purchased Contract
is in breach or default, and to the Knowledge of each Seller, no other party to any
Purchased Contract is in breach or default, and to the Knowledge of Sellers no event has
occurred which, with notice or lapse of time, would constitute a breach or default or permit
termination, modification or acceleration
thereunder (other than any such breaches or defaults which shall be cured pursuant to
Order of the Bankruptcy Court).



ARTICLE VII

SURVIVAL; EXCLUSION OF WARRANTIES;

NO ASSUMPTION OF LIABILITIES; EMPLOYEES




      7.1 Survival. The representations and warranties made by Buyer and Sellers under this
Agreement and of each Party in any certificate delivered hereunder, respectively, shall not survive
beyond the Closing Date or a termination of this Agreement.



20








 





      7.2 Exclusion of Warranties. The Subject Assets will be sold and delivered and taken
over “AS IS, WHERE IS,” on the Closing Date by Buyer without any warranty or representation by
Sellers whatsoever, express or implied, as to the design, quality, condition, merchantability or
seaworthiness, or as to the fitness of the Vessels or the Equipment for any particular purpose or
trade, and the bills of sale referred to in Section 4.1(b) shall so provide. Except as
provided in Section 14.9, after the Closing, Sellers shall have no obligation with respect
to the Subject Assets. Buyer’s execution of the Protocol of Delivery and Acceptance shall be
conclusive evidence of Buyer’s acceptance of the condition of the Vessels and the other Subject
Assets.



      7.3 No Assumption of Liabilities. Other than with respect to the Assumed Liabilities,
Buyer will not assume, and hereby expressly disclaims any assumption of, any Indebtedness,
Liabilities or obligations (absolute or contingent) of any kind of Sellers, including but not
limited to (i) accounts payable, (ii) Indebtedness of Sellers for money borrowed, (iii) Taxes of
Sellers or relating to ownership, use or operation of the Subject Assets on or prior to the Closing
Date, (iv) claims, litigation, Liabilities or obligations arising out of or relating to the
operations of Sellers, (v) Liabilities or obligations of any kind in respect of any past or present
stockholders, directors, officers, employees or consultants of Sellers, whether under any contract
or agreement, pursuant to any pension plan or employee benefit plan or welfare plan, or otherwise,
(vi) Liabilities or obligations relating to recapture or any depreciable deduction, and/or (vii)
any other Liabilities or obligations of or relating to Sellers or any of their Affiliates or
related entities in any manner whatsoever.



      7.4 No Obligation for Employees. Buyer may offer employment to any Employee without
restriction by the Sellers. Sellers shall be responsible for any Employee who is not offered
employment and for complying with any applicable notice or other requirements of applicable Law
with respect to termination of employees and layoffs. In addition, Sellers shall be responsible
for satisfying any employee benefit obligations relating to employment of Employees on and prior to
the Closing Date. Nothing in this Section 7.4 shall be deemed to impose upon Buyer any
Liabilities or responsibilities regarding individuals who do not become employees of Buyer pursuant
to offers of employment to Employees, including, without limitation, Liabilities or
responsibilities for (i) pension, retirement, profit-sharing, savings, medical, dental, disability
income, continuing health coverage benefits, life insurance or accidental death benefits, whether
insured or self-insured, whether funded or unfunded, (ii) workers’ compensation (both long term and short term)
benefits, whether insured or self-insured, whether or not accruing or based upon exposure to
conditions prior to the date of this Agreement or for claims incurred or for disabilities
commencing prior to the Closing Date, or (iii) severance benefits. None of the Parties intend to
create any rights or obligations for employment and no past, present or future employees of Sellers
or Buyer shall be treated as third-party beneficiaries of this Section 7.4.



ARTICLE VIII

CONDITIONS TO CLOSING




      8.1 Buyer’s Conditions Precedent. In addition to the condition set forth in
Section 9.2 hereof, Buyer’s obligation to consummate the transactions contemplated by this
Agreement, including, without limitation, to accept the Subject Assets from Sellers and to pay the
Purchase



21








 




Price in accordance with Article III of this Agreement, is subject to fulfillment
on or before the Closing Date, of each the following conditions precedent:





      (a) all Governmental Approvals that are required to be obtained in connection with the
execution, delivery and performance of this Agreement and the related documents have been
obtained and are in effect at Closing, including, without limitation, that, if applicable,
the waiting period under the HSR Act shall have expired or early termination shall have been
granted;




      (b) all consents, waivers and approvals from all Governmental Authorities, third
parties and such other entities, as necessary for the consummation of the Transaction shall
have been obtained and Buyer shall have received copies thereof;




      (c) Sellers shall have performed and complied in all respects with all obligations and
agreements required in this Agreement to be performed or complied with by it prior to the
Closing Date, including, without limitation, the transfer, conveyance, assignment and
delivery to Buyer of the Subject Assets free and clear of all Liens (other than Permitted
Exceptions);




      (d) Sellers’ representations and warranties in Article VI of this Agreement
that are qualified as to materiality or by the term “Material Adverse Effect” shall be true
and correct in all respects as of the Closing and any such representations and warranties
that are not so qualified shall be true and correct in all material respects as of the
Closing as though made at and as of the Closing (or if made as of a specified date, only as
of such date);




      (e) Sellers have completed all deliveries they are required to make under Section
4.1;




      (f) there shall not have occurred since the date hereof and be continuing as of the
Closing Date any Material Adverse Effect;




      (g) there shall not be in effect any Order by a Governmental Authority of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated hereby;




      (h) the Scheduling Order shall have been entered by the Bankruptcy Court in a form and
substance reasonably acceptable to the Buyer and such Order shall be a Final Order; and




      (i) Sellers have complied in all material respects with their obligations under
paragraphs (a) through (k) of Section 9.1 of this Agreement.



      8.2 Sellers’ Conditions Precedent. In addition to the condition set forth in
Section 9.2 hereof, Sellers’ obligation to consummate the transactions contemplated by this
Agreement, including, without limitation, to sell, transfer, assign, convey and deliver the Subject
Assets to Buyer at Closing is subject to fulfillment on or before the Closing Date, of each of the
following conditions precedent:



22








 






      (a) all Governmental Approvals that are required to be obtained in connection with the
execution, delivery and performance of this Agreement and the related documents have been
obtained and are in effect at Closing, including, without limitation, that, if applicable,
the waiting period under the HSR Act shall have expired or early termination shall have been
granted;




      (b) all consents, waivers and approvals from all Governmental Authorities, third
parties and such other entities, as necessary for the consummation of the Transaction shall
have been obtained;




      (c) Buyer’s representations and warranties in Article V of this Agreement that
are qualified as to materiality shall be true and correct in all respects as of the Closing
and any such representations and warranties that are not so qualified shall be true and
correct in all material respects as of the Closing as though made at and as of the Closing
(or if made as of a specified date, only as of such date);




      (d) Buyer has paid Sellers the amounts required under Sections 4.2(b) of this
Agreement; and




      (e) Buyer has made the other deliveries required under Section 4.2 of this
Agreement.



ARTICLE IX

SELLERS’ BANKRUPTCY




      9.1 Procedure for Approval of Transaction.




      (a) Filing of Appropriate Motions; Provision of Notice. On April 6, 2005,
Sellers filed with the Bankruptcy Court (i) the Sale Motion, seeking entry of the Approval
Order and (ii) the Scheduling Motion, seeking entry of the Scheduling Order.
Buyer agrees that it will promptly take such actions as are reasonably requested by
Sellers to assist in obtaining the Approval Order and the Scheduling Order, including
furnishing affidavits or other documents or information for filing with the Bankruptcy Court
for the purposes, among others, of providing necessary assurances of performance by Buyer
under this Agreement and demonstrating that Buyer is a “good faith” purchaser under Section
363(m) of the Bankruptcy Code. In the event the entry of the Approval Order or the
Scheduling Order shall be appealed, Sellers and Buyer shall each use its commercially
reasonable efforts to defend such appeal. Sellers shall give notice of the Sale Motion,
Scheduling Motion and Sale Hearing as reasonably requested by Buyer and required by the
Bankruptcy Code or applicable Bankruptcy Rules.




      (b) Scheduling Motion. Sellers requested the scheduling of the Scheduling
Hearing on April 27, 2005 and such hearing was commenced on such date.




      (c) Form of Scheduling Order. Sellers have submitted the Scheduling Order for
the Bankruptcy Court’s approval and execution, and such submission will be amended and
modified pursuant to, and to reflect, the terms of this Agreement. The Scheduling Order
shall approve the procedures attached hereto as Exhibit G, including,



23








 






among other things, (i) the approval of competitive bidding and sale procedures and the payment of the
Break-Up Fee and Expense Reimbursement and (ii) the scheduling of the Auction to occur after
the entry of the Scheduling Order as specified in Exhibit G.




      (d) Back-Up Bidder. Provided a Competing Transaction fails to close and this
Agreement has not been terminated, Buyer shall remain obligated to consummate the
Transaction for a period of sixty (60) days after the Bankruptcy Court enters an Order
authorizing the Competing Transaction; provided Sellers seek to obtain such Order
authorizing the Competing Transaction within fourteen (14) days of the date on which the
Auction concludes; and provided, further, that Buyer shall not be obligated
under this Section 9.1(d) if the Bankruptcy Court enters an Order approving a sale
of all or any portion of the Subject Assets pursuant to a Credit Bid.




      (e) Break-Up Fee and Expense Reimbursement. If, following the entry of the
Scheduling Order, this Agreement is terminated (i) by Sellers pursuant to Section
13.1(b) or by Buyer pursuant to Sections 13.1(c) or (g) or (ii) by
either Party pursuant to Section 13.1(f), Sellers agree to pay to Buyer:




      (i) a break up fee, as applicable, and the amount of which, as determined as
follows (the “Break-Up Fee”):




	 	(A)  	if such termination is pursuant or due to, or
arises because of, the entry of an Order approving a sale of all of the
Subject Assets pursuant to a Credit Bid, an amount equal to $500,000;
or
	 
	 	(B)  	if such termination is pursuant or due to, or
arises because of, (I) the entry of an Order approving a sale of all
(other than as described in subclause (A) above) or any portion of the
Subject Assets to any Person other than the Buyer, including, without
limitation, any sale pursuant to a Credit Bid for a purchase of any
(but not all) Subject Assets, or any such sale shall occur (without
the entry of an Order) or (II) the Sellers shall determine to retain
(and not sell) all or any portion of the Subject Assets, an amount
equal to (x) $1,878,500 times a percentage allocation to such Subject
Assets (as set forth on Schedule 9.1(e)) that are determined
to be retained by the Sellers or for which a sale to any Person other
than Buyer is approved or occurs, other than a sale pursuant to a
Credit Bid for the purchase of any (but not all) Subject Assets, plus
(y) $500,000 times a percentage allocation to such Subject Assets (as
set forth on Schedule 9.1(e)) for which a sale is approved or
occurs pursuant to a Credit Bid for the purchase of any (but not all)
Subject Assets; and






      (ii) a reimbursement amount in respect of the reasonable expenses of outside
counsel in connection with drafting, negotiating and performing this Agreement and
fees and other reasonable expenses incurred in connection herewith (including,
without limitation, any filing fees (including with respect to



24








 






the HSR Act), or other amounts seeking the approvals necessary and appropriate to consummate the
Transaction) (the “Expense Reimbursement”), as applicable, and the amount of
which, as determined as follows:




	 	(A)  	if such termination is pursuant or due to, or
arises because of, the circumstance described in Section
9.1(e)(i)(A) above, then there shall not be any reimbursement of
such expenses;






	 	(B)  	if such termination is pursuant or due to, or
arises because of, the circumstances described in Section
9.1(e)(i)(B) above, an amount equal to $500,000 times a percentage
allocation to such Subject Assets (as set forth on Schedule
9.1(e)) that are determined to be retained by the Sellers or for
which a sale to any Person other than Buyer is approved or occurs,
excluding any sale approved or occurring pursuant to a Credit Bid for
the purchase of any (but not all) Subject Assets; provided,
however, that such amount shall be further limited to the
amount of such reasonable expenses that are actually incurred by the
Buyer.






The combined amount of the Break-Up Fee and Expense Reimbursement, as applicable and as
determined in accordance with the foregoing of this Section 9.1(e), shall be payable
by Sellers as a superpriority administrative expense claim (and, in the case of the Break-Up
Fee, shall be payable by Sellers without the need for further application or request filed
with the Bankruptcy Court) to Buyer in cash, by wire transfer of immediately available funds
to an account designated by Buyer. In the event the Break-Up Fee and Expense Reimbursement
(if any) become payable because the Sellers determine to retain (and not sell) all of the
Subject Assets, Sellers shall pay to Buyer the Break-Up Fee and Expense Reimbursement on the
earlier of (A) the effective date of any chapter 11 plan confirmed in the Bankruptcy Case,
or (B) one (1) year after the Petition
Date. In the event the Break-Up Fee and Expense Reimbursement (if any) become payable
because of the sale of all or any portion of the Subject Assets (including as part of a
Competing Transaction or a sale of Subject Assets pursuant to a Credit Bid) to any Person
other than Buyer or Sellers determine to retain (and not sell) any portion (but not all) of
the Subject Assets, Sellers shall pay to Buyer the applicable Break-Up Fee and Expense
Reimbursement contemporaneously with the first consummation of a Competing Transaction or
other applicable sale of the Subject Assets or any portion thereof. The combined Break-Up
Fee and Expense Reimbursement shall be paid in recognition of the substantial costs incurred
by Buyer in evaluating the Transaction, negotiating this Agreement, and otherwise devoting
its time, attention and resources to closing the Transaction. Upon payment of the
applicable Break-Up Fee, Sellers shall be fully released and discharged from any liability
or obligation under or resulting from this Agreement and Buyer shall not have any other
remedy or cause of action under or relating to this Agreement or any applicable Law.




      (f) Sale Motion. Sellers have filed the Sale Motion seeking entry of the
Approval Order and deadlines for filing and serving objections and responses to the relief




25










 







requested in the Sale Motion, and as part of such filing Sellers requested that the Sale
Hearing occur on or about June 8, 2005.




      (g) Proposal and Submission of Approval Order. Simultaneously with their
submission of the Sale Motion, Sellers proposed and submitted the Approval Order to the
Bankruptcy Court for execution at the Sale Hearing, and such submission will be amended and
modified pursuant to, and to reflect the terms of this Agreement on or prior to such date
that is five (5) Business Days before the date scheduled for the Sale Hearing. The amended
and modified form of Approval Order shall be submitted to Buyer for its review (and shall be
subject to its reasonable approval) prior to the filing of same with the Bankruptcy Court.




      (h) Assumption of Executory Contracts and Unexpired Leases. Sellers will
assume and assign to Buyer the Purchased Contracts at the Closing. Sellers requested as
part of the Sale Motion that Sellers be granted authority to file with the Bankruptcy Court
and serve on all non-Seller parties to the Purchased Contracts notice of Sellers’ intent to
assume and assign that party’s Contract, with such notice to be served no later than twenty
(20) days before the Sale Hearing. The cure amount for the Purchased Contracts to be
assumed shall be included in that party’s notice. Sellers have further requested that the
non-Seller party have until eight (8) days before the Sale Hearing to object to the cure
amount listed, and must state in its objection with specificity what the proper cure amount
should be and provide sufficient documentation in support thereof. If no objection is
timely received, Sellers shall request that the Bankruptcy Court set the cure amount as the
amount listed in the notice.




      (i) Cooperation. Buyer and Sellers shall cooperate in filing and prosecuting
the Scheduling Motion and Sale Motion and obtaining entry of the Scheduling Order and the
Approval Order.




      (j) Solicitation of Bidders. Except in connection with the Auction or as
otherwise consistent with the Bidding Procedures, the Scheduling Order or any other Order of
the Bankruptcy Court, Sellers shall not, and shall cause their respective employees,
officers, directors, representatives and agents not to, solicit or initiate discussions or
negotiations with any Person (other than Buyer) with respect to the Subject Assets (or any
portion thereof) or a Competing Transaction without the written consent of Buyer.
Notwithstanding the foregoing, nothing contained herein shall prohibit the Sellers or their
respective employees, officers, directors, representatives and agents from providing
information to any Person in response to unsolicited inquiries regarding a potential
Competing Transaction.




      (k) Contact with Other Prospective Buyers. Buyer shall not contact any other
Person with respect to the Subject Assets or a Competing Transaction as a prospective Buyer,
without the written consent of Sellers.



      9.2 Condition to Closing Relating to Bankruptcy. In addition to the conditions to
Closing set forth in Sections 8.1 and 8.2 of this Agreement, the Closing shall be
subject to the



26








 






satisfaction of the condition that the Bankruptcy Court shall have entered the
Approval Order, and such order shall be a Final Order.



ARTICLE X

COVENANTS;

TRANSFER OF TITLE AND DELIVERY OF VESSELS




      10.1 Covenants with Respect to Conduct Prior to Closing. During the period from the
date hereof through the Closing Date, the Sellers and Buyer covenant and agree as follows:




      (a) Access. Each Seller agrees that, prior to the Closing Date, Buyer shall be
entitled, through its officers, employees and representatives (including, without
limitation, its legal advisors and accountants), to make such investigation of the Subject
Assets and Assumed Liabilities and related properties of Sellers as it reasonably requests
and deems necessary or appropriate for the purposes of familiarizing itself with and
evaluating the Subject Assets and Assumed Liabilities or obtaining any necessary and
appropriate Permits for the transactions contemplated by this Agreement, and the Buyer shall
be permitted to make extracts and copies of such information. Any such investigation and
examination shall be conducted under reasonable circumstances, and Sellers shall cooperate
fully therein. No investigation by Buyer prior to or after the date of this Agreement shall
diminish or obviate any of the representations, warranties, covenants or agreements of
Sellers contained herein. In order that Buyer may have full opportunity to make such
physical and diligence review, examination or investigation as it may reasonably request of
the Subject Assets, Sellers shall cause the officers, employees, consultants, agents,
accountants, attorneys and other representatives of Sellers to cooperate fully with such
representatives in connection with such review and examination. Without limiting the
generality of the foregoing, Buyer shall be entitled to conduct or cause to be conducted at
or on the Subject Assets such surveys, tests and
inspections, including, environmental inspections and tests, as Buyer shall deem
necessary or useful in connection with its acquisition of such Subject Assets.




      (b) Operation of Subject Assets. Except as otherwise expressly provided by
this Agreement or with the prior written consent of Buyer, Sellers shall own, use and
operate the Subject Assets only in the ordinary course of business consistent with past
practice of Sellers after the Petition Date and preserve such assets in their current
condition (ordinary wear and tear excepted), shall comply in all material respects with all
applicable Laws in regard to the Subject Assets and Assumed Liabilities, shall not take any
action which would adversely affect the ability of the Parties to consummate the
transactions contemplated by this Agreement, shall not introduce any material change with
respect to the operation of the Subject Assets, in each case, other than in the ordinary
course of business of Sellers after the Petition Date or enter into any transaction or enter
into, modify or renew any Contract relating to the Subject Assets that is not in the
ordinary course of business of Sellers after the Petition Date, and shall not agree to do
anything prohibited by this Section 10.1(b) or anything that would make any of the
representations and warranties of the Sellers in this Agreement untrue or incorrect in any
material respect.



27








 






      (c) Consents. Sellers shall use their best efforts, and Buyer shall cooperate
with Sellers, to obtain at the earliest practicable date all consents and approvals required
to consummate the transactions contemplated by this Agreement.




      (d) Governmental Approvals. In addition to the matters to be presented to the
Bankruptcy Court under Section 9.1 hereof, as promptly as practical after the date
of this Agreement, each Seller shall make all filings required by applicable Law to be made
by it in order to consummate the transactions contemplated by this Agreement. In addition,
(and if applicable) Sellers and Buyer shall make or cause to be made such filings and Buyer
shall pay any fees under the HSR Act within seven (7) Business Days of the entry of the
Scheduling Order and such Parties shall request earlier termination of the waiting period
thereunder. All documents required to be filed by any Seller with any Governmental
Authority in connection with this Agreement or the transactions contemplated by this
Agreement will comply in all material respects with the provisions of applicable Law. Each
Seller and Buyer agree to cooperate and use their best efforts to obtain all (and will
immediately prepare all registrations, filings and applications, requests and notices
preliminary to obtaining all) Governmental Approvals, Orders and Permits that may be
necessary or which may be reasonably requested by Buyer to consummate the transactions
contemplated by this Agreement, including, without limitation, notifying foreign, state and
local agencies that have issued Permits to any Seller or one or more of its employees of the
consummation of the transactions contemplated hereby; provided, however,
that, notwithstanding anything to the contrary provided herein, neither Buyer nor any of its
Affiliates shall be required in connection with obtaining such Governmental Approvals (i) to
hold separate (including by trust or otherwise) or divest any of its businesses, product
lines or assets, or any of the Subject Assets, (ii) to agree to any limitation on the
operation or conduct of its business and operations or the Subject Assets, or (iii) to waive
any of the conditions to this Agreement set forth in Section 8.1.




      (e) Notification of Certain Matters. Sellers shall give prompt written notice
to Buyer of, (i) the occurrence, or failure to occur, of any event that would be likely to
cause any representation or warranty of such Seller contained in this Agreement to be untrue
or inaccurate in any material respect at any time from the date of this Agreement to the
Closing Date, (ii) any failure of any Seller, as the case may be, to comply with or satisfy,
in any material respect, any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement, (iii) the occurrence of any fact or condition after
the date of this Agreement that would be reasonably likely to cause or constitute a breach
of any representation or warranty had such representation or warranty been made at the time
of the occurrence, or such Seller’s discovery of, such fact or condition, (iv) any fact or
condition of which Seller obtains knowledge which has had or could reasonably be expected to
have or result in a Material Adverse Effect, and (v) the occurrence of any event that may
make the satisfaction of the conditions set out in Article VIII impossible or unlikely. No
such notification shall affect the representations or warranties of the Sellers or the
conditions to their respective obligations hereunder.



28








 





      10.2 Transfer of Title. Title and risk of loss of or damage to the Subject Assets
will pass from Sellers to Buyer at the time appearing on the Protocol of Delivery and Acceptance
(provided for in Section 10.6) which shall be the time of Closing.



      10.3 Inspections and Due Diligence. On or prior to the date hereof, Buyer has
inspected and accepted each Vessel’s classification records.



      10.4 Notices; Time and Place of Delivery.




      (a) Sellers shall prepare the Subject Assets for delivery in due course and in time for
the Closing, and shall keep Buyer well informed of the state of readiness for delivery of
the Subject Assets.




      (b) Sellers shall deliver the Vessels at a safe and accessible berth or anchorage at
the Port of New Orleans, Louisiana or such other location to be determined by the Parties.
The Equipment, Inventory and other Subject Assets (other than the Vessels) shall be
delivered at its location at the time of the Closing, which location Sellers shall notify to
Buyer in advance of the Closing.



      10.5 Buyer Responsibilities Upon Delivery. Immediately upon delivery, Buyer shall
have and assume all responsibility and liability as to any tugboats or other boats or related
equipment necessary to secure the Vessels at their berths or transfer the Vessels to other berths
at Buyer’s choice. Buyer will secure all necessary arrangements and approvals through the U.S.
Coast Guard, Port of New Orleans, Louisiana or other appropriate governmental or regulatory
authority regarding the berthing or transfer of the Vessels upon delivery by Sellers.



      10.6 Delivery Procedure. Sellers shall deliver the Vessels and Equipment to a duly
authorized representative of Buyer who shall execute and deliver to Sellers a “Protocol of
Delivery and Acceptance” in the form attached hereto as Exhibit H, which shall evidence
the delivery of the respective Vessel to Buyer.



      10.7 Spares, etc. Forwarding charges for spare parts and spare equipment, if any,
shall be for Buyer’s account. Captain’s, officers’ and crew’s personal belongings including the
slop chest are excluded from the Transaction.



ARTICLE XI

TAXES




      11.1 Responsibility for Taxes.




      (a) In accordance with Section 1146(c) of the Bankruptcy Code, the making or delivery
of any instrument of transfer, including the filing of any deed or other document of
transfer to evidence, effectuate or perfect the rights, transfers and interests contemplated
by this Agreement, shall be in connection with the Approval Order and as such shall be free
and clear of any and all transfer Tax, stamp Tax or similar Taxes; provided,
however, that if any such Taxes are due in connection with the transactions
contemplated herein, Buyer, on the one hand, and Sellers, on the other hand, shall each pay
one-half of the amount of any such Taxes and they shall pay such amount in a timely



29








 






manner.
The instruments transferring the Subject Assets to Buyer shall contain the following
endorsement:



“Because this instrument has been authorized pursuant to an Order of
the United States Bankruptcy Court for the Eastern District of
Louisiana, in connection with a plan of reorganization of the
Grantor, it is exempt from transfer taxes, stamp taxes or similar
taxes pursuant to 11 U.S.C. Section 1146(c)”.




      (b) Except as otherwise provided in this Section 11.1(b), Sellers shall bear
all property and ad valorem tax liabilities with respect to the Subject Assets if the Lien
or assessment date arises prior to the Closing Date irrespective of the reporting and
payment dates of such Taxes. All ad valorem and other real property Taxes, personal
property Taxes, or ad valorem obligations and similar recurring Taxes and fees on the
Subject Assets for taxable periods beginning before, and ending after, the Closing Date,
shall be prorated between Buyer, on the one hand, and Sellers, on the other hand, as of
12:01 a.m., New York time, on the Closing Date. With respect to Taxes described in this
Section 11.1(b), Seller shall timely file all Tax Returns due before the Closing
Date with respect to such Taxes and Buyer shall prepare and timely file all Tax Returns due
after the Closing Date with respect to such Taxes. If one Party remits to the appropriate
Taxing Authority payment for Taxes, which are subject to proration under this Section
11.1(b) and such payment includes the other Party’s share of such Taxes, such other
party shall promptly reimburse the remitting party for its share of such Taxes.



      11.2 Cooperation on Tax Matters. Buyer and Sellers shall furnish or cause to be
furnished to each other, as promptly as practicable, such information and assistance relating to
the Subject Assets and the Assumed Liabilities as is reasonably necessary for the preparation and
filing of any Tax Return, claim for refund or other required or optional filings relating to Tax
matters, for the preparation for any Tax audit, for the preparation for any Tax protest, for the
prosecution or defense of any suit or other proceeding relating to Tax matters.



      11.3 Preparation of Allocation Schedule.




      (a) Not later than sixty (60) days after the Closing Date, Buyer shall prepare and
deliver to Sellers copies of Form 8594 and any required exhibits thereto (the “Asset
Acquisition Statement”) allocating the total consideration paid to Sellers hereunder
among the Subject Assets. Buyer shall prepare and deliver to Sellers from time to time
revised copies of the Asset Acquisition Statement (the “Revised Statements”) so as
to report any matters on the Asset Acquisition Statement that need updating (including
purchase price adjustments, if any). The total consideration paid by Buyer for the Subject
Assets shall be allocated in accordance with the Asset Acquisition Statement or, if
applicable, the last Revised Statements, provided by Buyer to Sellers, and all income Tax
Returns and reports filed by Buyer and Sellers shall be prepared consistently with such
allocation.




      (b) The Asset Acquisition Statement, however, shall not be inconsistent with any final
determination by the Bankruptcy Court, made in its sole discretion after notice



30








 






to all
parties in interest, concerning the values of the Subject Assets. Any such determination by
the Bankruptcy Court will govern the allocation of the total consideration paid to Sellers
hereunder among the Subject Assets for all purposes.



ARTICLE XII

DISPUTE RESOLUTION; SERVICE; GOVERNING LAW




      12.1 Dispute Resolution; Service of Process; Waiver of Jury Trial.




      (a) If any dispute should arise in connection with the interpretation and fulfillment
of this Agreement, the dispute will be brought in the United States Bankruptcy Court for the
Eastern District of Louisiana or such other court as may have jurisdiction over the
Bankruptcy Case; provided, however, that if the Bankruptcy Court refuses to
accept jurisdiction over any such dispute, then each Party hereto hereby irrevocably submits
to and accepts for itself and its properties, generally and unconditionally, the
non-exclusive jurisdiction of and service of process pursuant to the laws of the State of
New York and the rules of its courts, waives any defense of forum non conveniens and agrees
to be bound by any judgment rendered thereby arising under or out of in respect of or in
connection with this Agreement or obligation hereunder. Each Party further irrevocably
designates and appoints the individual identified in or pursuant to Section 14.3
hereof to receive notices on its behalf, as its agent to receive on its behalf service of
all process in any such Action before any Governmental Authority, such service being
hereby acknowledged to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to each party at its address
provided in Section 14.3; provided, that unless otherwise provided
by applicable Law, any failure to mail such copy shall not affect the validity of the
service of such process. If any agent so appointed refuses to accept service, the
designating party hereby agrees that service of process sufficient for personal jurisdiction
in any action against it in the applicable jurisdiction may be made by registered or
certified mail, return receipt requested, to its address provided in Section 14.3.
Each party hereby acknowledges that such service shall be effective and binding in every
respect. Nothing herein shall affect the right to serve process in any other manner
permitted by Law or shall limit the right of any party to bring any action or proceeding
against the other party in any other jurisdiction if the Bankruptcy Court refuses to accept
jurisdiction. Nothing herein shall limit or otherwise affect any choice of Law or choice of
venue made by any Seller and Buyer in any other agreement to which they are both a party.




      (b) THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING
OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (i) CERTIFIES THAT NO REPRESENTATIVE,
AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTIES WOULD NOT, IN THE EVENT OF



31








 






LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



      12.2 Governing Law. This Agreement shall be governed by and construed in accordance
with the Bankruptcy Code and, to the extent not inconsistent with the Bankruptcy Code, the internal
laws of the State of New York, without giving effect to any choice of law or conflicting provision
or rule (whether of the State of New York or any other jurisdiction) that would cause the laws of
any jurisdiction other than New York to be applied. In furtherance of the foregoing, the law of
the State of New York will control the interpretation and construction of this Agreement, even if
under such jurisdiction’s choice of law or conflict of laws analysis, the substantive law of some
other jurisdiction would ordinarily apply.



ARTICLE XIII

TERMINATION




      13.1 Termination. This Agreement may be terminated at any time at or before the
Closing (the “Termination Date”), as follows:




      (a) in writing, by mutual consent of the Parties;




      (b) at the election of Sellers, on or after June 30, 2005 if the Closing shall not have
occurred by the close of business on such date; provided that Sellers are not in
material default of their obligations hereunder; and provided further,
however, that if the Closing shall not have occurred by the close of business on June 30,
2005 due solely to the failure of the Bankruptcy Court to enter the Approval Order and all
other conditions to the obligations of Buyer to close hereunder that are capable of being
fulfilled by June 30, 2005 shall have been so fulfilled or waived (other than those
conditions that, by their terms, cannot be satisfied until Closing), then Sellers may not
terminate this Agreement under this subsection prior to July 31, 2005;




      (c) at the election of Buyer, on or after the earlier (such earlier date, the
“Outside Date”) of:




      (i) June 30, 2005, if the Closing has not occurred by such date and an Order
authorizing a Competing Transaction has not been entered by such date; and




      (ii) sixty (60) days after entry of an Order authorizing a Competing
Transaction;




provided, that, in each case, Buyer is not in material default of its obligations
under this Agreement; provided, further, however, that if the Closing shall
not have occurred by June 30, 2005 due solely to the failure of the Bankruptcy Court to
enter the Approval Order (other than as a result of Sellers’ failure to prosecute the Sale
Motion and/or timely pursue entry of the Approval Order) and all other conditions to the
obligations of Seller to close hereunder that are capable of being fulfilled by June 30,
2005 shall have been so



32








 






fulfilled or waived (other than those conditions that, by their
terms, cannot be satisfied until Closing), then Buyer shall not have the right to terminate
this Agreement under clause (i) above prior to July 31, 2005. If the Bankruptcy Court has
entered an Approval Order approving the Transaction prior to June 30, 2005, but such Order
has not become a Final Order by June 30, 2005, Buyer may not terminate this Agreement under
clause (i) above until the date that is ten (10) Business Days after the Approval Order
becomes a Final Order. If the date for termination under this subsection (c) shall have
been extended to July 31, 2005 due to the failure of the Bankruptcy Court to enter the
Approval Order on or before June 30, 2005, and the Bankruptcy Court shall then have entered
the Approval Order on or prior to July 31, 2005, then Buyer shall not be permitted to
terminate this Agreement until the later of (x) July 31, 2005 and (y) after the date that
immediately follows the date on which the Approval Order becomes a Final Order;




      (d) by Sellers, on the one hand, or Buyer, on the other hand, if there shall be any
applicable Law (including, without limitation, a nonappealable Final Order of a Governmental
Authority of competent jurisdiction) restraining, enjoining or otherwise prohibiting the
consummation of the Transaction;




      (e) by Buyer, if a Scheduling Order in the form and substance contemplated by this
Agreement (unless Buyer shall have agreed to all modifications) shall not have been approved
by the Bankruptcy Court on or before May 5, 2005 and entered promptly thereafter, and, as of
the time of such termination of this Agreement, the Scheduling Order shall not have been
entered by the Bankruptcy Court;




      (f) without further notice or action, by Buyer or Sellers upon the consummation of a
Competing Transaction;




      (g) by Buyer, so long as Buyer is not then in material breach of its obligations under
this Agreement, if there shall have been a material breach by any of Sellers of any
representation, warranty, covenant or agreement of any Seller set forth in this Agreement
resulting in a Material Adverse Effect, in each case such that the conditions set forth in
Section 8.1 would not be satisfied and such breach (i) cannot be cured by the
Outside Date or (ii) has not been cured within thirty (30) days of the date on which the
applicable Seller receives written notice thereof from Buyer; or




      (h) by Sellers, so long as no Seller is then in material breach of its obligations
under this Agreement, if there shall have been a material breach by the Buyer of any
representation, warranty, covenant or agreement of Buyer set forth in this Agreement, in
each case such that the conditions set forth in Section 8.2 would not be satisfied
and such breach (i) cannot be cured by the Outside Date or (ii) has not been cured within
thirty (30) days of the date on which the Buyer receives written notice thereof from
Sellers.



      13.2 Procedure Upon Termination. In the event of termination and abandonment by Buyer
or Sellers, or both, pursuant to Section 13.1 hereof, except as provided in Section
13.1(f)(in which case no notice shall be required), written notice thereof shall forthwith be
given



33








 






to the other Party or Parties, and this Agreement shall terminate, and the purchase of the
Subject Assets hereunder shall be abandoned, without further action by Buyer or Sellers.



      13.3 Effect of Termination. In the event that this Agreement is validly terminated as
provided herein, then each of the Parties shall be relieved of their duties and obligations arising
under this Agreement after the date of such termination and such termination shall be without
liability to Buyer or Sellers; provided, however, that the rights and obligations
of the Parties set forth in Sections 3.2, 9.1(e), 14.13 and this
Section 13.3 shall survive any such termination and shall be enforceable hereunder;
provided, further, however, that nothing in this Section 13.3 shall
relieve Buyer or Sellers of any liability for any willful breach of its obligations under this
Agreement in any material respect.



ARTICLE XIV

MISCELLANEOUS PROVISIONS




      14.1 Amendments and Waivers. This Agreement may be amended and any provision hereof
may be waived from time to time only by written agreement signed by the Parties. No action taken
pursuant to this Agreement, including without limitation, any investigation by or on behalf of any
Party, shall be deemed to
constitute a waiver by the Party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a further or continuing waiver
of such breach or as a waiver of any other or subsequent breach. No failure on the part of any
party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by
such Party preclude any other or further exercise thereof or the exercise of any other right, power
or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies
provided by law.



      14.2 Severability. If any provision of this Agreement is held to be in conflict with
any Law or is otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more
phrases, sentences, clauses or sections of this Agreement shall not affect the remaining portions
of this Agreement, or any part thereof, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially adverse to any Party.



      14.3 Notices. Unless otherwise provided in this Agreement, any notice permitted or
required hereunder must be in writing and shall be deemed given (i) when personally delivered (with
confirmation of receipt), (ii) one Business Day following the day sent by overnight delivery
service (with written confirmation of receipt), (iii) upon written confirmation of receipt after
being sent by United States registered or certified mail, postage prepaid, or (iv) when sent by
telecopy (provided that the telecopy is confirmed by written transmission), addressed as follows:



34








 




If to Buyer to:


Cal Dive International, Inc.

c/o Martin R. Ferron, President

400 N. Sam Houston Parkway E.

Suite 400

Houston, Texas 77060

Telecopier: (281) 618-0500


with a copy to:


Weil, Gotshal & Manges LLP

c/o Alfredo R. Pérez

700 Louisiana, Suite 1600

Houston, Texas 77002

Telecopier: (713) 224-9511


If to Sellers to:


Torch Offshore, Inc.

c/o David Phelps, Chief Restructuring Advisor

Telecopier: (877) 711-6966

c/o Robert Fulton, Manager

Telecopier: (504) 367-8605

401 Whitney Avenue, Suite 400

Gretna, Louisiana 70056


with a copy to:


Bridge Associates, LLC

c/o Anthony Schnelling

747 3rd Avenue, Suite 32A

New York, New York 10017

Telecopier: (212) 207-9294


Raymond James & Associates

c/o Raj Singh

250 Park Avenue, 2nd Floor

New York, New York 10077

Telecopier: (212) 297-5613


King & Spalding LLP

c/o George B. South III

1185 Avenue of the Americas

New York, New York 10036

Telecopier: (212) 556-2222



35








 





      Any purported notice by e-mail shall be without effect. All notices required under this
Agreement should specifically state that this is a “Notice pursuant to Section 14.3 of the
Torch Asset Purchase Agreement.”



      14.4 Captions. The provision of a Table of Contents, the division of this Agreement
into Articles, Sections and other subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in construing or interpreting this Agreement.
All references in this Agreement to any “Section” are to the corresponding Section of this
Agreement unless otherwise specified.



      14.5 No Partnership. Nothing herein contained shall be deemed or construed to create
a partnership or joint venture between the Parties.



      14.6 Counterparts; Delivery by Facsimile. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts, each of which
shall be deemed to be an original. Such counterparts shall constitute one and the same agreement.
This Agreement, and any amendments hereto, to the extent signed and delivered by means of a
facsimile machine, shall be
treated in all manner and respects as an original Contract and shall be considered to have the
same binding legal effects as if it were the original signed version thereof delivered in person.
At the request of any party hereto or to any such Contract, each other party hereto or thereto
shall re-execute original forms thereof and deliver them to all other parties. No party hereto or
to any such Contract shall raise the use of a facsimile machine to deliver a signature or the fact
that any signature or Contract was transmitted or communicated through the use of a facsimile
machine as a defense to the formation of a Contract and each such party forever waives any such
defense.



      14.7 General Interpretive Principles. Except as otherwise expressly provided or
unless the context otherwise requires, the defined terms in this Agreement shall include the plural
as well as the singular, and the use of any gender herein shall be deemed to include any other
gender. When calculating the period of time before which, within which or following which any act
is to be done or step taken pursuant to this Agreement, the date that is the reference date in
calculating such period shall be excluded. If the last day of such period is a non-Business Day,
the period in question shall end on the next succeeding Business Day. Any reference in this
Agreement to $ shall mean U.S. dollars. The Exhibits and Schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement. All Exhibits and
Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit
but not otherwise defined therein shall be defined as set forth in this Agreement. The words such
as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this
Agreement as a whole and not merely to a subdivision in which such words appear unless the context
otherwise requires. The word “including” or any variation thereof means “including,
without limitation” and shall not be construed to limit any general statement that it follows
to the specific or similar items or matters immediately following it.



      14.8 Punitive, Consequential, and Special Damages. Under no circumstances shall
either Party be liable to the other for any punitive, consequential, or special damages.



36








 





      14.9 Further Assurances. Sellers and Buyer agree to take all necessary action and to
deliver or cause to be delivered at Closing and at such other times thereafter any such additional
certificates, documents or instruments as either of them may reasonably request for the purposes of
carrying out this Agreement and the transactions contemplated hereby. Without limitation of the
foregoing, from time to time following the Closing, Sellers and Buyer shall, and shall cause their
respective Affiliates to, execute, acknowledge and deliver all such further conveyances, notices,
assumptions, releases and acquaintances and such other instruments, and shall take such further
actions, as may be necessary or appropriate to assure fully to Buyer and its respective successors
or assigns, all of the properties, rights, titles, interests, estates, remedies, powers and
privileges intended to be conveyed to Buyer under this Agreement and to assure fully to Sellers and
its successors and assigns, the assumption of the liabilities and obligations intended to be
assumed by Buyer under this Agreement, and to otherwise make effective the transactions
contemplated hereby.



      14.10 Entire Agreement. This Agreement, including any Exhibits and Schedules attached
hereto, constitutes the entire understanding and agreement among the parties with respect to the
subject matter of this Agreement, and
supersedes all prior and contemporaneous agreements and understandings, inducements, or
conditions, express or implied, oral or written, except as contained in this Agreement. Except as
specifically set forth herein, this Agreement is not dependent upon the existence of any other
agreement.



      14.11 Finders or Broker’s Fees. With the exception of their respective financial
advisors, Bridge Associates LLC and Raymond James & Associates, each of Buyer (on the one hand),
and Sellers (on the other hand), represents and warrants that neither it nor any of its respective
affiliates has dealt with any broker or finder in connection with any of the transactions
contemplated by this Agreement, and no broker or other person is entitled to any commission or
finder’s fee in connection with any of these transactions. Each party shall bear the fees and
expenses of its respective financial advisors; except as contemplated by the provisions relating to
the Expense Reimbursement.



      14.12 Binding Effect; Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and permitted assigns. Nothing in this
Agreement shall create or be deemed to create any third party beneficiary rights in any Person not
a party to this Agreement. No assignment of this Agreement or of any rights or obligations
hereunder may be made by any Seller or Buyer (by operation of law or otherwise) without the prior
written consent of the other Parties hereto and any attempted assignment without the required
consents shall be void; provided, however, that Buyer may assign this Agreement and
any or all rights or obligations hereunder (including, without limitation, Buyer’s rights to
purchase the Subject Assets) to any Affiliate of Buyer or any Person from which it has borrowed
money; provided, further, that in the event of any such assignment, Buyer shall not
be relieved of its obligations hereunder. Upon any such permitted assignment, the references in
this Agreement to Buyer shall also apply to any such assignee unless the context otherwise
requires.



      14.13 Publicity. Neither any Seller nor Buyer shall issue any press release or public
announcement concerning this Agreement or the transactions contemplated hereby without obtaining
the prior written approval of the other Parties hereto, which approval will not be unreasonably
withheld or delayed, except to the extent that a particular action is required by



37








 






applicable Law or
by the applicable rules of any stock exchange on which Buyer or Seller lists securities, provided
that, to the extent required by applicable Law, the party intending to make such release shall use
its best efforts consistent with such applicable Law to consult with the other party with respect
to the text thereof.



38








 





      IN WITNESS WHEREOF both parties have hereunto placed their signatures on the day and year
first written above.


	 	 	 	 	 
	 	SELLERS:





TORCH OFFSHORE, INC.

 	 
	 	/s/ ROBERT E. FULTON
 	 
	 	Robert E. Fulton 	 
	 	Chief Financial Officer 	 
	 
	 	 	 
	 	                                                   /s/ LANA J. HINGLE STOCKSILL
 	 
	 	Lana J. Hingle Stocksill 	 
	 	Chief Administrative Officer 	 
	 
	 	TORCH OFFSHORE L.L.C.

TORCH EXPRESS L.L.C.

 	 
	 	/s/ ROBERT E. FULTON
 	 
	 	Robert E. Fulton 	 
	 	Chief Financial Officer 	 
	 
	 	BUYER:





CAL DIVE INTERNATIONAL, INC.

 	 
	 	/s/ MARTIN R. FERRON
 	 
	 	Martin R. Ferron 	 
	 	President and COO 	 
	 





39