ASSET PURCHASE AGREEMENT
BY AND BETWEEN
EPIC DIVERS, INC.,
AS BUYER,
AND
TORCH OFFSHORE, INC.,
TORCH OFFSHORE L.L.C.,
AND
TORCH EXPRESS, L.L.C.,
AS SELLERS
JUNE 9, 2005
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................... 1
ARTICLE II PURCHASE AND SALE OF SUBJECT ASSETS; THE CLOSING..................... 7
2.1 Sale and Purchase................................................. 7
2.2 Excluded Assets................................................... 7
2.3 [Intentionally omitted]........................................... 7
2.4 Excluded Liabilities.............................................. 7
2.5 The Closing....................................................... 8
ARTICLE III PURCHASE PRICE; SECURITY DEPOSIT.................................... 9
3.1 Purchase Price.................................................... 9
3.2 Security Deposit.................................................. 9
ARTICLE IV CLOSING DELIVERIES................................................... 9
4.1 Closing Deliveries of Sellers..................................... 9
4.2 Closing Deliveries of Buyer....................................... 10
ARTICLE V REPRESENTATIONS OF BUYER.............................................. 10
5.1 Organization, Power and Status of Buyer........................... 10
5.2 Authorization, Enforceability, Execution and Delivery............. 10
5.3 No Conflicts; Laws and Consents; No Default....................... 10
5.4 Financing......................................................... 11
5.5 Removal of Subject Assets......................................... 11
ARTICLE VI REPRESENTATIONS OF SELLERS........................................... 11
6.1 Organization, Power and Status of Seller.......................... 11
6.2 Authorization, Enforceability, Execution and Delivery............. 11
6.3 No Conflicts; Laws and Consents; No Default....................... 12
6.4 Taxes............................................................. 12
6.5 Property; Title; Sufficiency...................................... 13
6.6 Legal Proceedings................................................. 13
6.7 Compliance with Laws.............................................. 13
6.8 Environmental Matters............................................. 13
6.9 [Intentionally omitted]........................................... 14
ARTICLE VII SURVIVAL; EXCLUSION OF WARRANTIES; NO ASSUMPTION OF
LIABILITIES; EMPLOYEES.................................................... 14
7.1 Survival.......................................................... 14
7.2 Exclusion of Warranties........................................... 15
7.3 No Assumption of Liabilities...................................... 15
7.4 No Obligation for Employees....................................... 15
ARTICLE VIII CONDITIONS TO CLOSING.............................................. 15
8.1 Buyer's Conditions Precedent...................................... 15
8.2 Sellers' Conditions Precedent..................................... 16
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ARTICLE IX SELLERS' BANKRUPTCY.................................................. 17
9.1 Procedure for Approval of Transaction............................. 17
9.2 Condition to Closing Relating to Bankruptcy....................... 17
ARTICLE X COVENANTS; TRANSFER OF TITLE AND DELIVERY OF ASSETS................... 17
10.1 Covenants with Respect to Conduct Prior to Closing................ 17
10.2 Transfer of Title................................................. 19
10.3 [Intentionally omitted]........................................... 19
10.4 Notices; Time and Place of Delivery............................... 19
10.5 [Intentionally omitted]........................................... 19
10.6 Delivery Procedure................................................ 19
10.7 Spares, etc....................................................... 19
ARTICLE XI TAXES................................................................ 20
11.1 Responsibility for Taxes.......................................... 20
11.2 Cooperation on Tax Matters........................................ 20
11.3 [Intentionally omitted]........................................... 20
ARTICLE XII DISPUTE RESOLUTION; SERVICE; GOVERNING LAW.......................... 21
12.1 Dispute Resolution; Service of Process; Waiver of Jury Trial...... 21
12.2 Governing Law..................................................... 22
ARTICLE XIII TERMINATION........................................................ 22
13.1 Termination....................................................... 22
13.2 Procedure Upon Termination........................................ 23
13.3 Effect of Termination............................................. 23
ARTICLE XIV MISCELLANEOUS PROVISIONS............................................ 24
14.1 Amendments and Waivers............................................ 24
14.2 Severability...................................................... 24
14.3 Notices........................................................... 24
14.4 Captions.......................................................... 25
14.5 No Partnership.................................................... 25
14.6 Counterparts; Delivery by Facsimile............................... 26
14.7 General Interpretive Principles................................... 26
14.8 Punitive, Consequential, and Special Damages...................... 26
14.9 Further Assurances................................................ 26
14.10 Entire Agreement.................................................. 27
14.11 Finders or Broker's Fees.......................................... 27
14.12 Binding Effect; Assignment........................................ 27
14.13 [Intentionally omitted]........................................... 27
Sellers' Schedules
Schedule 6.4 - Taxes............................................................ 48
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Schedule 6.6 -- Legal Proceedings............................................... 50
Schedule 6.7(a) -- Compliance with Laws......................................... 54
Exhibits
Exhibit A Subject Assets........................................................ 57
Exhibit B ▇▇▇▇ of Sale..........................................................
Exhibit C Form of Protocol of Delivery and Acceptance........................... 74
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as
of June 9, 2005 (the "Effective Date"), by and between EPIC Divers, Inc., a
Louisiana corporation ("Buyer"), and Torch Offshore, Inc., a Delaware
corporation ("Torch"), Torch Offshore, L.L.C., a Delaware limited liability
company ("Offshore"), and Torch Express, L.L.C., a Louisiana limited liability
company ("Express", with Torch and Offshore, each a "Seller" and collectively,
"Sellers"). Buyer and each Seller are sometimes individually referred to as a
"Party" and collectively as the "Parties."
WITNESSETH:
WHEREAS, Sellers are the owners of that certain saturation system,
as more fully described on Exhibit A hereto (the "SAT System"), sometimes
collectively referred to as 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
desires to acquire from Sellers, 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.
"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 the Scheduling Order.
"Business Day" means any day of the year on which national banking
institutions in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ and New Orleans, Louisiana
are open to the public for conducting business and are not required or
authorized to close.
"Buyer" has the meaning set forth in the Preamble.
"Classification Society" or "Class" means that "classification society" or
"class" referred to in Exhibit A.
"Closing" has the meaning set forth in Section 2.5.
"Closing Date" has the meaning set forth in Section 2.5.
"Code" means the Internal Revenue Code of 1986, as amended.
"Competing Transaction" means any sale or other disposition of all or a
portion of the 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.
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"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 Materials, the environment
or natural resources, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601
et seq.), the Hazardous Materials Transportation Act (49 U.S.C. App. Section
1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean
Air Act (42 U.S.C. Section 7401 et seq.) the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 136 et seq.) (to the extent it regulates
Hazardous Materials), and the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), as each has been or may be amended and the regulations
promulgated pursuant thereto.
"Environmental Permit" means any Permit required by applicable
Environmental Laws for the ownership, use or operation of the Subject Assets.
"Excluded Assets" means all property and assets of Sellers not listed on
Exhibit A hereto.
"Excluded Liabilities" has the meaning set forth in Section 2.4.
"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 (unless such
waiting period has been waived by an Order of the Bankruptcy Court or by the
Buyer and Sellers).
"Governmental Approval" means any authorization, consent, approval,
license, franchise, ruling, permit, tariff, rate, certification, exemption,
filing or registration by or with any
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Governmental Authority relating to the ownership of the Subject Assets or to the
execution, delivery or performance of this Agreement.
"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.
"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.
"Indebtedness" of any Person means, without duplication, (i) the principal
of and premium (if any) in respect of (A) indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person and
all obligations of such Person under any title retention agreement; (iii) all
obligations of such Person under leases required to be capitalized in accordance
with generally accepted accounting principles; (iv) all obligations of such
Person for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (v) the liquidation value of all
redeemable preferred stock of such Person; (vi) all obligations of the type
referred to in clauses (i) through (v) of any Persons for the payment of which
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor, surety or otherwise, including guarantees of such obligations; and
(vii) all obligations of the type referred to in clauses (i) through (vi) of
other Persons secured by any Lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person).
"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,
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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.
"Lien" means any mortgage, lien (statutory or other, and including all
"Liens" defined in the Bankruptcy Code), pledge, security interest or interest
of ownership, encumbrance, deed of trust, hypothecation, assignment for
security, claim, lease, charge, option, right of first refusal, easement,
servitude, proxy, voting trust or agreement, transfer restriction or deposit
arrangement or other security agreement or adverse claim to ownership of the
Vessels or the other Subject Assets of any kind or nature whatsoever, whether
recorded or unrecorded.
"Material Adverse Effect" means (i) a material adverse effect on the
condition, utilization or value of the Subject Assets or (ii) a material adverse
effect on the ability of Sellers to consummate the transactions contemplated by
this Agreement or perform their obligations under this Agreement.
"Offshore" has the meaning set forth in the preamble.
"Order" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award of a Governmental Authority, including, without
limitation, any order entered by the Bankruptcy Court in the Bankruptcy Case.
"Outside Date" has the meaning set forth in Section 13.1(c).
"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.
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"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.
"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, among
other things, 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 the order of the Bankruptcy Court, dated May 6,
2005 approving, among other things, bidding procedures for the Auction.
"Security Deposit" has the meaning set forth in Section 3.2.
"Seller" and "Sellers" have the meanings set forth in the preamble.
"Subject Assets" has 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),
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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 contemplated in this Agreement.
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 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 [Intentionally omitted].
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 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
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condition thereon) on or before the Closing Date, including, without
limitation, any (i) Release or continuing Release (if existing as of the
Closing) of any Hazardous Material, regardless of by whom or (ii) any
noncompliance with applicable Environmental Laws;
(c) all Liabilities arising out of, relating to or with respect to
(i) the employment or performance of services, or termination of
employment or services by Sellers or any of its Affiliates of any Person
on or before the Closing Date, (ii) workers' compensation claims relating
to the Sellers or the use and operation of the Subject Assets on or before
the Closing Date, irrespective of whether such claims are made prior to or
after the Closing or (iii) any employee benefit plan of Sellers or any of
their respective Affiliates or subsidiaries;
(d) all Liabilities arising out of, under or in connection with any
of the Sellers' Contracts;
(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 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, the collection of which has
been permanently enjoined by an Order of the Bankruptcy Court or by any
applicable provision of the Bankruptcy Code (including, without
limitation, Section 524 of the Bankruptcy Code).
2.5 The Closing. The closing of the purchase and sale of the Subject
Assets (the "Closing") will take place at a time agreed by the Parties, during
normal business hours at the offices of Heller, Draper, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇,
L.L.C. in New Orleans, Louisiana, or at such other venue as Sellers and Buyer
mutually agree. The Parties shall use all reasonable efforts to cause the
Closing to occur on the date no later than three (3) Business Days following the
date on which all conditions to Closing hereunder are satisfied or waived (other
than such conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver of such conditions), unless another
time or date, or both, are agreed to in writing by the Parties. The date on
which the Closing shall be held is referred to in this Agreement as the "Closing
Date".
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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 $2,800,000 in cash (the "Purchase
Price").
3.2 Security Deposit.
(a) On May 27, 2005, Buyer provided to Seller a certified check in
the amount of $275,000.00 representing the Security deposit herein. 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).
ARTICLE IV
CLOSING DELIVERIES
4.1 Closing Deliveries of Sellers. On the Closing Date, in exchange for
the payment of the Purchase Price, 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 counterpart executed by Seller of the Protocol of Delivery and
Acceptance confirming the date and time of delivery of the Subject Assets
from the Seller to Buyer;
(c) one or more bills of sale in the form of Exhibit C hereto;
(d) a certified copy of the Approval Order;
(e) 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); and
(f) 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.
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4.2 Closing Deliveries of Buyer. On the Closing Date, in exchange for the
transfer, assignment, conveyance and delivery of Subject Assets by Sellers to
Buyer, Buyer shall execute and deliver the following to Sellers:
(a) a certificate evidencing resolutions (or commensurate authority)
of the Board of Directors of Buyer, certified by the Secretary or other
appropriate officer or agent of Buyer, duly authorizing the execution,
delivery and performance of this Agreement and the other transaction
documents;
(b) an amount equal to (i) the Purchase Price less the Security
Deposit plus any interest or other amounts accrued thereon, payable by
wire transfer to an account specified in writing by Sellers; and
(c) a counterpart executed by Buyer of the Protocol of Delivery and
Acceptance confirming the date and time of delivery of the Subject Assets
from Seller to Buyer.
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
Louisiana.
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) 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
10
conflict, violation, default, rights or entitlements that would not have a
material adverse effect upon Buyer's ability to perform its obligations
under this Agreement.
(b) No consent, waiver, approval, order, permit or authorization of,
or declaration or filing with, or notification to, any Person or
Governmental Authority is required on the part of Buyer in connection with
the execution and delivery of this Agreement or the consummation of the
Transaction or the compliance by Buyer with any of the provisions hereof,
except for 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 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.
5.5 Removal of Subject Assets. Buyer acknowledges that the Subject Assets
have been removed from the M/V Midnight Hunter, and are currently not in service
or operation. Buyer acknowledges that such removal and the fact that the Subject
Assets are not in service or operation does not in any way constitute a Material
Adverse Effect.
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 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, perform its obligations under this
Agreement and each other related document to which it is a party. The execution
and delivery of this Agreement and the related documents to which a Seller is a
party and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary organizational action on the part of
the Sellers. This Agreement has been, and, subject to the entry of the Approval
Order, each of the related documents to which a Seller is a party will be at or
prior to the Closing, duly and validly executed and delivered by such Seller
which is a party thereto and (assuming the due authorization, execution and
delivery by the other Parties hereto and thereto and the entry of the Approval
Order) this Agreement and each such other document related to this Agreement to
11
which a Seller is a party constitute its legal, valid and binding obligations,
enforceable against it in accordance with their terms, except as such
enforceability (i) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights and remedies generally, and (ii) is subject to general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
6.3 No Conflicts; Laws and Consents; No Default.
(a) 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
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 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 will provide 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,
12
in any manner, bind, obligate or restrict Buyer. None of the Sellers has
executed or entered into any agreement with, or obtained any consents or
clearances from, any Taxing Authority, or has been subject to any ruling
guidance specific to any of the Sellers, that would be binding on Buyer for any
taxable period (or portion thereof) ending after the Closing Date with respect
to the Subject Assets.
6.5 Property; Title; Sufficiency. 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.
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.
6.7 Compliance with Laws.
(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, except where such violation could
not reasonably be expected to have a Material Adverse Effect.
6.8 Environmental Matters.
(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
13
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 Laws that have been performed since January 1,
2003 with respect to the Subject Assets and that are in Sellers'
possession.
6.9 [Intentionally omitted]
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.
14
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 Subject Assets 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 Subject Assets.
7.3 No Assumption of 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 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:
15
(a) 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;
(b) 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);
(c) 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);
(d) Sellers have completed all deliveries they are required to make
under Section 4.1; and
(e) 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.
8.2 Sellers' Conditions Precedent. In addition to the condition set forth
in Section 9.2 hereof, Sellers' obligation to consummate the transactions
contemplated by this Agreement, including, without limitation, to sell,
transfer, assign, convey and deliver the Subject Assets to Buyer at Closing is
subject to fulfillment on or before the Closing Date, of each of the following
conditions precedent:
(a) all 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;
(b) 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);
(c) Buyer has paid Sellers the amounts required under Sections
4.2(b) of this Agreement; and
(d) Buyer has made the other deliveries required under Section 4.2
of this Agreement.
16
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, 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 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) Sale Motion. Sellers have filed the Sale Motion seeking entry of
the Approval Order and deadlines for filing and serving objections and
responses to the relief requested in the Sale Motion, and as part of such
filing Sellers requested that the Sale Hearing occur on or about June 8,
2005.
(d) 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 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.
(e) Cooperation. Buyer and Sellers shall cooperate in filing and
prosecuting the Sale Motion and obtaining entry of the Approval Order.
9.2 Condition to Closing Relating to Bankruptcy. In addition to the
conditions to Closing set forth in Sections 8.1 and 8.2 of this Agreement, the
Closing shall be subject to the satisfaction of the condition that the
Bankruptcy Court shall have entered the Approval Order, and such order shall be
a Final Order.
ARTICLE X
COVENANTS; TRANSFER OF TITLE AND DELIVERY OF ASSETS
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:
17
(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 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 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 comply in all material respects with all applicable Laws in
regard to the Subject Assets, shall not take any action which would
adversely affect the ability of the Parties to consummate the transactions
contemplated by this Agreement, 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.
(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 of the Sellers and Buyer
shall make all filings required by applicable Law to be made by it in
order to consummate the transactions contemplated by this Agreement. 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 or Sellers to
consummate the transactions contemplated by this Agreement; provided,
however, that, notwithstanding
18
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.
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 [Intentionally omitted].
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 Subject Assets at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facility, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
10.5 [Intentionally omitted].
10.6 Delivery Procedure. Sellers shall deliver the Subject Assets 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 B
which shall evidence the delivery of the Subject Assets to Buyer.
10.7 Spares, etc. Forwarding charges for spare parts and spare equipment,
if any, shall be for Buyer's account.
19
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 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 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 [Intentionally omitted].
20
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 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.
21
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) or the Approval Order is stayed, 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 fulfilled or waived (other than those conditions that, by their terms, cannot
be satisfied until Closing) or the Approval Order is stayed, 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
22
(10) Business Days after the Approval Order becomes a Final Order. If the date
for termination under this subsection (c) shall have been extended to July 31,
2005 due to the failure of the Bankruptcy Court to enter the Approval Order on
or before June 30, 2005, and the Bankruptcy Court shall then have entered the
Approval Order on or prior to July 31, 2005, then Buyer shall not be permitted
to terminate this Agreement until the later of (x) July 31, 2005 and (y) after
the date that immediately follows the date on which the Approval Order becomes a
Final Order;
(d) by Sellers, on the one hand, or Buyer, on the other hand, if
there shall be any applicable Law (including, without limitation, a
nonappealable Final Order of a Governmental Authority of competent
jurisdiction) restraining, enjoining or otherwise prohibiting the
consummation of the Transaction;
(e) [Intentionally omitted].
(f) without further notice or action, by Buyer or Sellers upon the
consummation of a Competing Transaction;
(g) by Buyer, so long as Buyer is not then in material breach of its
obligations under this Agreement, if there shall have been a material
breach by any of Sellers of any representation, warranty, covenant or
agreement of any Seller set forth in this Agreement resulting in a
Material Adverse Effect, in each case such that the conditions set forth
in Section 8.1 would not be satisfied and such breach (i) cannot be cured
by the Outside Date or (ii) has not been cured within thirty (30) days of
the date on which the applicable Seller receives written notice thereof
from Buyer; or
(h) by Sellers, so long as no Seller is then in material breach of
its obligations under this Agreement, if there shall have been a material
breach by the Buyer of any representation, warranty, covenant or agreement
of Buyer set forth in this Agreement, in each case such that the
conditions set forth in Section 8.2 would not be satisfied and such breach
(i) cannot be cured by the Outside Date or (ii) has not been cured within
thirty (30) days of the date on which the Buyer receives written notice
thereof from Sellers.
13.2 Procedure Upon Termination. In the event of termination and
abandonment by Buyer or Sellers, or both, pursuant to Section 13.1 hereof,
except as provided in Section 13.1(f) (in which case no notice shall be
required), written notice thereof shall forthwith be given to the other Party or
Parties, and this Agreement shall terminate, and the purchase of the Subject
Assets hereunder shall be abandoned, without further action by Buyer or Sellers.
13.3 Effect of Termination. In the event that this Agreement is validly
terminated as provided herein, then each of the Parties shall be relieved of
their duties and obligations arising 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
Section 3.2 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.
23
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:
If to Buyer to:
EPIC DIVERS, Inc.
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: 504-340-5416
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
If to Sellers to:
Torch Offshore, Inc.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Restructuring Advisor
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Manager
Telecopier: (504) 367-8605
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Bridge Associates, LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates
c/o ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
King & Spalding LLP
c/o ▇▇▇▇▇▇ ▇. South III
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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.
25
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.
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.
26
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 Sellers' financial
advisors, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates and Bridge Associates, LLC, 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.
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 [Intentionally omitted].
27
IN WITNESS WHEREOF both parties have hereunto placed their
signatures on the day and year first written above.
SELLERS:
TORCH OFFSHORE, INC.
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TORCH OFFSHORE L.L.C.
TORCH EXPRESS L.L.C.
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
BUYER:
EPIC DIVERS, INC.
__________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its:
28
Schedule 6.4
Taxes
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ - ▇▇ ▇▇▇▇ sales tax - not yet paid
Louisiana Department of Revenue - Disputed Sales Tax amounts for 1/1/2001 to
7/31/2003
Terrebone Parish - 2004 property taxes - not yet paid
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 2004 property taxes - not yet paid
Torch Offshore, Inc. Consolidated 2004 Federal Income Tax Return - not yet filed
State of Delaware - 2004 franchise tax - partially paid
State of Louisiana - 2004 State Income Tax Return - on extension
State of Texas - 2004 property tax
Form 5500 - 401K plan - 2004
Vanuatu - 2004 tonnage tax not yet paid
Sellers have not filed any Personal Property Reports with the Parish Assessor of
either Jefferson, Plaquemines or Terrebone Parish for 2005 or any prior periods.
29
Schedule 6.6
Legal Proceedings
Personal Injury: ▇▇▇ ▇▇▇▇▇▇▇ v. Torch Offshore, Inc.; United States District
Court for the Eastern District of Louisiana; No. 04-1445
Petition to recognize privilege and lien: Laredo Offshore v. Tana Exploration;
32nd JDC; No. 144082
Enforcement of maritime lien for crew wages : C-Mar America, Inc. v. M/V
Midnight Wrangler, her engines, freights, tackle, apparel, etc., in rem.; USDC
TX Eastern; No. 1-04CV0792
Wrongful Death: ▇▇▇▇▇ ▇. ▇▇▇▇, et al versus Torch Offshore, Inc., et al; 17th
Judicial District; No. 97996 Div:"A"
Personal Injury: ▇▇▇▇▇ ▇▇▇▇ versus Torch Offshore, Inc. and North American
Capacity Insurance Company; United States District Court for the Eastern
District of Louisiana; No. 04-1524 S (3)
Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ versus Torch, Inc.; United States District
Court for Western District of Louisiana; No. CV03-1005
Personal Injury: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ versus Torch Offshore, Inc.; Western District
of LA; No. CV04-1208 L-O
Personal Injury: ▇▇▇▇ ▇▇▇▇ vs. C-Mar America, Inc, C-Mar Services (Canada) LTD.
And Torch Offshore, Inc.; 80th Judicial District Court; No. 2004-67957
Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇▇▇ versus Torch Offshore, Inc. & N. Am. ; United
States District Court for the Eastern District of Louisiana; No. 04-1871 A (1)
Personal Injury: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ versus Torch, Inc.; 38th Judicial District; No.
10-15810
Personal Injury: ▇▇▇ ▇▇▇▇▇▇▇▇▇ versus Torch Inc.; 24th Judicial District; No.
581-518 Div:"L"
Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ versus Torch Offshore, Inc.; 24th Judicial
District; No. 608-655 Div:"C"
Personal Injury: ▇▇▇▇ ▇. Dressing versus Torch Offshore, Inc.; Southern District
of Texas/Galveston Div.; No. G-04-416
Personal Injury: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr. versus Torch, Inc. and Offshore Express,
Inc.; Western District of LA; No. CV04-1925 L-O
Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇ versus Torch Offshore, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
Offshore, LLC and Chevron U.S.A., Inc.; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
No. 04-03622 Div:"B"
30
Personal Injury: Kiras Scoot vs. Torch Offshore, Inc.; Southern District of
Texas/Galveston Div.; No. G-04-480 Admiralty
Employment Practices: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ versus Torch Offshore, Incorporated;
United States District Court for the Eastern District of Louisiana; No. 04-3089
R (3)
Employment Practices: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ versus Torch Offshore, Incorporated;
United States District Court for the Eastern District of Louisiana; No. 04-3088
T (5)
Personal Injury: ▇▇▇▇▇, ▇▇▇ ▇. versus Torch Inc., Gertias DGC Land, & K.C.
Offshore LLC; 21st Judicial Dist. Ct.; No. 90609 Div:"B"
Personal Injury: ▇▇▇▇▇▇ ▇▇▇▇▇ vs. Torch Offshore, Inc.; 38th Judicial District;
No. 10-16659
Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ v. Torch, Inc.; United States District
Court for the Eastern District of Louisiana; No. 04-0021 S (1)
Personal Injury: ▇▇▇ ▇▇▇▇▇▇▇ versus Torch Offshore, Inc.; United States District
Court for the Eastern District of Louisiana; No. 04-1445 S (5)
Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ v. Torch, Inc.; United States District Court for
the Eastern District of Louisiana; No. 04-0701 C (2)
Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇ v. Torch Offshore, Inc.; Southern District of
Texas/Galveston Div.; No. G-04-401 Admiralty
Personal Injury: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ versus Torch Offshore, Inc.; United States
District Court for the Eastern District of Louisiana; No. 04-0344
Personal Injury: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ v. Torch Offshore, Inc.; Southern District,
TX; No. G-03-891
Shareholder suit: ▇▇▇▇ ▇. ▇▇▇▇▇, et. al. v. Torch Offshore, Inc., et. al.;
United States District Court for the Eastern District of Louisiana; No.
02-00582; 03-30227 (appeal)
Damages for additional work: Torch Offshore Inc. ▇. ▇▇▇▇▇▇▇▇ Exploration
Company; United States District Court for the Eastern District of Louisiana; No.
03-0735 "T"
Personal Injury: ▇▇▇ ▇. ▇▇▇▇▇ v. Torch Inc., ▇▇▇▇▇▇ DGC Land Inc. & K.C.
Offshore, LLC; State of La Div "B"; No. 90609
Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇ versus Torch Offshore, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
Offshore, LLC and Chevron U.S.A., Inc.; State of La Div "B"; No. 2004-3622
Petition on open account: ▇▇▇▇ ▇▇▇▇▇▇▇ v. Torch Offshore, Inc.; 24th JDC; No.
611-189
Petition on open account: Redfish Rental v. Torch Offshore, Inc.; 24th JDC; No.
612-873
Petition on open account: North Bank Towing, Inc. v. Torch Offshore, Inc.;
United States District Court for the Eastern District of Louisiana; No. 04-3183
31
Suit for premiums due on surety bond: US Fire Ins. Co. v. Torch Offshore, Inc.;
United States District Court for the Eastern District of Louisiana; No. 04-2692
Employment Practices: EEOC Charge; NO District Office; No. ▇▇▇-▇▇▇▇-▇▇▇▇▇
Employment Practices: EEOC Charge; NO District Office; No. ▇▇▇-▇▇▇▇-▇▇▇▇▇
Personal Illness: ▇▇▇▇ ▇▇▇▇▇▇, et al., v. J. ▇▇▇ ▇▇▇▇▇▇▇▇▇, Inc., et al.; 58th
Judicial Dist. Court; No. A-0168572
Personal Injury: ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ versus Torch
Offshore LLC, Torch Offshore Inc, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇; 24th Judicial
District; No. 614-452 Div:"D"
Enforcement of lien for settlement: Tesoro v. Torch, Inc. and Torch Offshore,
LLC; United States District Court for the Eastern District of Louisiana and
Western District of Louisiana; No. 04-2304 and 04-1703
Maritime breach of contract and open account: Southland Steel & Supply Inc. v.
Torch, Inc. and Torch Offshore, LLC; United States District Court for the
Eastern District of Louisiana and Western District of Louisiana; No. 04-3007 and
04-2261
Petition on open account: Epic Divers, Inc. v. Torch, Inc. and Torch Offshore,
Inc.; 24th JDC; No. 614-097
Breach of contract charter: Cable Shipping, Inc. v. Torch Offshore, LLC and
Torch Offshore, Inc.; United States District Court for the Eastern District of
Louisiana; No. 04-CV 3465
Petition to enforce maritime lien for crew charges: C-Mar America, Inc. and
C-Mar Limited versus M/V Midnight Wrangler, M/V Midnight Express, and M/V
Midnight Eagle; United States District Court for the Eastern District of
Louisiana; No. 04-3466
Intervening Plaintiff to enforce maritime liens: ▇▇▇▇▇▇ Shipbuilding & Repair
Co. versus M/V Midnight Wrangler, M/V Midnight Express, and M/V Midnight Eagle;
United States District Court for the Eastern District of Louisiana; No. 04-3466
Intervening Plaintiff to enforce maritime liens: Quay Marine Associates, Inc.
versus M/V Midnight Wrangler, M/V Midnight Express, and M/V Midnight Eagle;
United States District Court for the Eastern District of Louisiana; No. 04-3466
Vessel Arrest: General Electric Capital Corporation versus M/V Midnight
Wrangler, Torch Offshore, Inc., Torch Offshore, LLC, and Torch Express, LLC;
USDC TX Eastern; No. 104CV0801
Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ vs. Torch Offshore LLC; ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇. ▇▇▇▇▇▇▇
32
Personal Injury: ▇▇▇▇▇ ▇▇▇▇▇▇▇ v. Torch Offshore, L.L.C.; Southern District of
Texas/Galveston Div.; No. G-04-660
Personal Injury: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ vs. Torch Offshore, L.L.C.; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; No. 2001-60227
Personal Injury: ▇▇▇▇▇▇ ▇▇▇▇▇ Prince vs. Torch Offshore, L.L.C.; 113th Judicial
District Court; No. 2004-60216
Property Damage: Tennessee Gas Pipeline Company versus Stone Energy Corporation,
Torch Offshore, LLC, and Engineering Corporation of Louisiana; 15th Judicial
District Court; No. 04-0327
Breach of contract charter: ▇▇▇▇▇ Vessels (Bilbao) Limited v. Torch Offshore,
LLC; Southern District of New York ; No. 04CV9947
33
Schedule 6.7(a)
Compliance with Laws
None.
34
EXHIBIT A
SUBJECT ASSETS
SATURATION SYSTEM:
The SAT System is comprised of the following:
TSS 2 1,000' Diving Depth, Saturation System - Complete gas reclaim and life
support equipment, 2 man ▇▇▇▇, 6 man split system. Main chamber skid w/control
desk (65 st), two 20' containers, umbilical with basket, U boom, ▇▇▇▇, and ▇▇▇▇
table. No gas storage included with system.
Said Equipment being located at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facility, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
DOCUMENTS
All files, documents, instruments, papers, books, reports, records, tapes,
microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title
policies, customer lists, regulatory filings, operating data and plans,
technical documentation (design specifications, functional requirements,
operating instructions, logic manuals, flow charts, etc.), user documentation
(installation guides, user manuals, training materials, release notes, working
papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web
pages, etc.), and other similar materials related to the Subject Assets in each
case whether or not in electronic form.
35
EXHIBIT B
FORM OF ▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE (this "▇▇▇▇ of Sale") is made and delivered this
[___] day of [_______], 2005, by [Seller], a [___________________ ("Seller")]
for the benefit of EPIC Divers, Inc., a Louisiana corporation ("Buyer").
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Agreement (as hereinafter defined).
WHEREAS, Seller and Buyer have entered into that certain Asset
Purchase Agreement dated as of June [_], 2005 (the "Agreement"), the terms of
which are incorporated herein by reference, which provides, among other things,
for the sale and assignment by Seller to Buyer of the Subject Assets.
NOW, THEREFORE, in consideration of the mutual promises contained in
the Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, and subject to the terms
and conditions of the Agreement:
1 Seller does hereby bargain, sell, grant, assign, transfer, convey
and deliver unto Buyer, and its successors and assigns, forever, all of Seller's
right, title and interest in and to the Subject Assets TO HAVE AND TO HOLD such
Subject Assets with all appurtenances thereto, unto Buyer, and its successors
and assigns, for its use forever.
3 This ▇▇▇▇ of Sale shall inure to the benefit of and be binding
upon the parties thereto and their respective successors and assigns.
4 Nothing in this ▇▇▇▇ of Sale, express or implied, is intended to
or shall be construed to modify, expand or limit in any way the terms of the
Agreement. To the extent that any provision of this ▇▇▇▇ of Sale conflicts or is
inconsistent with the terms of the terms of the Agreement, the Agreement shall
govern.
5 This ▇▇▇▇ of Sale is executed and delivered pursuant to the
Agreement.
6 This ▇▇▇▇ of Sale shall be governed by, and construed in
accordance with, the laws of the State of New York, as applied to contracts made
and performed entirely in such State.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Seller
has caused this ▇▇▇▇ of Sale to be executed and delivered as of the day and year
first above written.
[SELLER]
By:
Name:
Title:
36
EXHIBIT C
FORM OF PROTOCOL OF DELIVERY AND ACCEPTANCE
Torch Offshore, Inc., Torch Offshore L.L.C., and Torch Express
L.L.C. (collectively, the "Sellers"), and EPIC Divers, Inc. ("Buyer"), each for
itself does hereby certify: that at __________ o'clock p.m. United States
Central Time on the ___ day of ___________, 2005, at ______________,
_______________, Sellers delivered that certain saturation system (the "SAT
System") to Buyer pursuant to the terms of that certain Asset Purchase Agreement
(the "Agreement") dated as of June __, 2005, by and between Sellers and Buyer,
and Buyer accepted such conveyance of title under the Agreement, now holds title
to, and acknowledges that it is in possession of the SAT System in accordance
with the terms of the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
this ____ day of ________________, 2005.
[TORCH OFFSHORE, INC./
TORCH OFFSHORE L.L.C./
TORCH EXPRESS, L.L.C.]
BY:
Name:
Its:
EPIC DIVERS, INC.
BY:
Name:
Its:
37