Preview | Asset Purchase Agreement |

TABLE OF CONTENTS


Article I DEFINITIONS			1
Article II PURCHASE AND SALE OF SUBJECT ASSETS; THE CLOSING			10
	2.1	Sale and Purchase	10
	2.2	Excluded Assets	10
	2.3	Assumption of Liabilities	10
	2.4	Excluded Liabilities	10
	2.5	The Closing	11
Article III PURCHASE PRICE; SECURITY DEPOSIT			11
	3.1	Purchase Price	11
	3.2	Security Deposit	11
Article IV CLOSING DELIVERIES			12
	4.1	Closing Deliveries of Sellers	12
	4.2	Closing Deliveries of Buyer	13
Article V REPRESENTATIONS OF BUYER			13
	5.1	Organization, Power and Status of Buyer	14
	5.2	Authorization, Enforceability, Execution and Delivery	14
	5.3	No Conflicts; Laws and Consents; No Default	14
	5.4	Financing	14
Article VI REPRESENTATIONS OF SELLERS			15
	6.1	Organization, Power and Status of Seller	15
	6.2	Authorization, Enforceability, Execution and Delivery	15
	6.3	No Conflicts; Laws and Consents; No Default	15
	6.4	Taxes	16
	6.5	Property; Title; Sufficiency	16
	6.6	Legal Proceedings	17
	6.7	Compliance with Laws; Permits	18
	6.8	Environmental Matters	18
	6.9	Assumed Contracts	19
Article VII SURVIVAL; EXCLUSION OF WARRANTIES; NO ASSUMPTION OF LIABILITIES; EMPLOYEES			20
	7.1	Survival	20


	7.2	Exclusion of Warranties	20
	7.3	No Assumption of Liabilities	20
	7.4	No Obligation for Employees	21
Article VIII CONDITIONS TO CLOSING			21
	8.1	Buyers Conditions Precedent	21
	8.2	Sellers Conditions Precedent	22
Article IX SELLERS BANKRUPTCY			23
	9.1	Procedure for Approval of Transaction	23
	9.2	Condition to Closing Relating to Bankruptcy	25
Article X COVENANTS; TRANSFER OF TITLE AND DELIVERY OF VESSELS			26
	10.1	Covenants with Respect to Conduct Prior to Closing	26
	10.2	Transfer of Title	27
	10.3	Inspections and Due Diligence	27
	10.4	Notices; Time and Place of Delivery	28
	10.5	Buyer Responsibilities Upon Delivery	28
	10.6	Delivery Procedure	28
	10.7	Spares, etc	28
Article XI TAXES			28
	11.1	Responsibility for Taxes	28
	11.2	Cooperation on Tax Matters	29
	11.3	Preparation of Allocation Schedule	29
Article XII DISPUTE RESOLUTION; SERVICE; GOVERNING LAW			30
	12.1	Dispute Resolution; Service of Process; Waiver of Jury Trial	30
	12.2	Governing Law	31
Article XIII TERMINATION			31
	13.1	Termination	31
	13.2	Procedure Upon Termination	32
	13.3	Effect of Termination	32
Article XIV MISCELLANEOUS PROVISIONS			33
	14.1	Amendments and Waivers	33
	14.2	Severability	33
	14.3	Notices	33
	14.4	Captions	34


14.5	No Partnership	35
14.6	Counterparts; Delivery by Facsimile	35
14.7	General Interpretive Principles	35
14.8	Punitive, Consequential, and Special Damages	35
14.9	Further Assurances	35
14.10	Entire Agreement	36
14.12	Binding Effect; Assignment	36
14.13	Publicity	36

Buyers Schedules


Schedule 5.3(a)				Conflicts
Schedule 5.3(b)				Consents and Approvals

Sellers Schedules

Schedule 6.3(a)				Conflicts
Schedule 6.3(b)				Consents and Approvals
Schedule 6.4				Taxes
Schedule 6.5(b)				Licensed Software
Schedule 6.6				Legal Proceedings
Schedule 6.7(a)				Compliance with Laws
Schedule 6.7(b)(i)				Permits
Schedule 6.7(b)(ii)				Exceptions to Permits
Schedule 6.8				Environmental Matters

Exhibits


Exhibit A		Subject Assets
Exhibit B		Patents
Exhibit C		Form of Bill of Sale
Exhibit D		Form of Assignment and Assumption Agreement
Exhibit E		Form of Patent Assignment
Exhibit F		Form of Power of Attorney
Exhibit G		Bidding Procedures
Exhibit H		Form of Protocol of Delivery and Acceptance
Exhibit I		Form of Escrow Agreement

iii

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this Agreement) is entered into as of April 1, 2005 (the Effective Date), by and between Cal Dive International, Inc., a Minnesota corporation (Buyer), and Torch Offshore, Inc., a Delaware corporation (Torch), Torch Offshore, L.L.C., a Delaware limited liability company (Offshore), and Torch Express, L.L.C., a Louisiana limited liability company (Express, with Torch and Offshore, each a Seller and collectively, Sellers). Buyer and each Seller are sometimes individually referred to as a Party and collectively as the Parties.

W I T N E S S E T H:

WHEREAS, Sellers are the owners of the eleven (11) marine vessels and the related and associated assets thereto that are described on Exhibit A hereto (the Subject Assets);

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

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

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

ARTICLE I
DEFINITIONS

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

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

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

Agreement has the meaning set forth in the Preamble.

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

Assumed Liabilities has the meaning set forth in Section 2.3.

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

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

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

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

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