EQUIPMENT PURCHASE AGREEMENT
THIS EQUIPMENT PURCHASE AGREEMENT (this "Agreement") is entered into as of
June 13, 2005 (the "Effective Date"), by and between Cal Dive International,
Inc., a corporation organized under the laws of Minnesota (the "Buyer"), and
Torch Offshore, Inc., a Delaware corporation ("Torch Offshore"), Torch Offshore,
LLC, a Delaware limited liability company ("Torch, LLC" and, jointly with Torch
Offshore, the "Seller"), and Torch Express, LLC ("Torch Express") a Louisiana
limited liability company.
RECITALS
WHEREAS, one or more of the Sellers own the "Equipment" (as described and
defined under that certain Order (A) Approving the Agreement in Settlement of
GECC's Motion Pursuant to Section 362(d) for Relief from the Automatic Stay, (B)
Approving Bidding Procedures for the Auction Sale of the M/V Midnight Eagle, the
M/V Midnight Gator and the M/V Midnight Wrangler; (C) Scheduling Bidding
Deadline, Auction and Sale Hearing Date; and (C) Approving the Form and Manner
of Notice Thereof (the "Bidding Procedures Order");
WHEREAS, on January 7, 2005 (the "Petition Date"), each of the Sellers
petitioned for relief under chapter 11 of title 11 of the United States Code;
and
WHEREAS, Sellers desire to sell, transfer and assign to Buyer or its
designee, and Buyer desires to (or to cause its designee to) acquire from
Sellers, all of the Equipment, all as more specifically provided herein;
NOW, THEREFORE, 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:
"Agreement" has the meaning set forth in the Preamble.
"Approval Order" means an order of the Bankruptcy Court, in form and
substance reasonably acceptable to the Buyer in all material respects, approving
the Transaction and all of the terms and conditions contemplated hereby, which
order (i) shall be in full force and effect and (ii) shall not have been stayed,
reversed, modified or amended in any respect and, if the Approval Order is the
subject of a pending appeal, the consummation of the Transaction shall not be
the subject of a presently effective stay pending appeal.
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Auction" means the Bankruptcy Court auction for the Equipment held on
June 2, 2005 in accordance with the Bidding Procedures Order.
"Bankruptcy Case" means Seller's chapter 11 cases currently pending before
the Bankruptcy Court.
"Bankruptcy Code" means title 11 of the United States Code, as heretofore
and hereafter amended, and codified as 11 U.S.C. sections 101, et seq.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Eastern District of Louisiana and any other court having jurisdiction over the
Bankruptcy Case.
"Bidding Procedures" means bidding procedures established by the
Bankruptcy Court and set forth in the Bidding Procedures Order.
"Bidding Procedures Order" has the meaning set forth in the Recitals.
"Business Days" are days on which banks are open in the place of Closing
provided in Section 2.2.
"Buyer" has the meaning set forth in the Preamble.
"Buyer's Authorized Representative" has the meaning set forth in Section
10.5.
"Claimants" has the meaning set forth in Section 6.5.
"Closing" has the meaning set forth in Section 2.2.
"Closing Date" has the meaning set forth in Section 2.2.
"Effective Date" has the meaning set forth in the Preamble.
"Equipment" has the meaning set forth in the Bidding Procedures Order.
"Final Order" means a judgment, order or decree of the relevant
Governmental Authority that has not been reversed, stayed, enjoined, set aside,
annulled, vacated or suspended and, with respect to any judgment, order or
decree of the Bankruptcy Court, any waiting period prescribed by Law before the
transactions contemplated hereby may be consummated has expired.
"Governmental Approval" means any authorization, consent, approval,
license, franchise, ruling, permit, tariff, rate, certification, exemption,
filing or registration by or with any Governmental Authority relating to the
ownership of the Equipment or to the execution, delivery or performance of this
Agreement.
"Governmental Authority" means any national government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any other governmental entity with authority over the Buyer or Sellers or
the operation of the Equipment.
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"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"Law" means any statute, law, rule, regulation, ordinance, order or code,
now or hereafter in effect, and any judicial or administrative interpretation
thereof by a Governmental Authority or otherwise, including any judicial or
administrative order, consent decree or judgment.
"Lien" or "Liens" means any mortgage, lien (statutory or other, including
all "Liens" as defined in the Bankruptcy Code), pledge, security interest,
encumbrance, hypothecation, assignment for security, or deposit arrangement or
other security agreement or adverse claim to ownership of the Equipment of any
kind or nature whatsoever, recorded or unrecorded.
"M/V Midnight Wrangler" means that certain construction/pipe lay vessel
Midnight Wrangler including all of her Equipment, a vessel registered and
flagged under the laws of the Republic of Vanuatu, Official Number 1480, and
owned by Torch Offshore.
"Party" or "Parties" means, in the singular, Sellers or Buyer as the
context requires, and, in the plural, Sellers and Buyer.
"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 government or any agency or
political subdivision thereof.
"Purchase Price" has the meaning set forth in Section 3.1.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or partnership agreement or other organizational or
governing documents of such Person, and any law applicable to or binding upon
such Person or any of its properties or to which such Person or any of its
properties is subject.
"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 Seller seeking approval and
entry of the Bidding Procedures Order and the Approval Order and scheduling of
the Bidding Procedures Hearing and the Sale Hearing.
"Security Deposit" has the meaning set forth in Section 3.2(a).
"Security Deposit Escrow Agent" means JPMorgan Chase Bank, N.A., or such
other entity agreed by the Parties.
"Security Deposit Escrow Agreement" has the meaning set forth in Section
3.2(a).
"Sellers" has the meaning set forth in the Preamble.
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"Torch Express" has the meaning given to it in the Recitals.
"Transaction" means the purchase and sale of the Equipment, along with any
other transactions contemplated in this Agreement or related thereto.
ARTICLE II
PURCHASE AND SALE OF SALE ASSETS; THE CLOSING
2.1 Sale and Purchase. Sellers hereby agree to sell to Buyer, and Buyer
hereby agrees to purchase from the Sellers, effective as of the Closing Date,
the Equipment.
2.2 The Closing. The closing of the purchase and sale of the Equipment
(the "Closing") will take place as soon as reasonably practicable after entry of
the Approval Order, during normal business hours at the offices of Heller,
Draper, Xxxxxx, Xxxxxxx & Xxxx, L.L.C. in New Orleans, Louisiana or at such
other venue as the Sellers may select. The Parties shall use all reasonable
efforts to cause the Closing to occur within ten (10) Business Days following
the entry of the Approval Order (such date, the "Closing Date").
2.3 Assumption/Exclusion of Liabilities. On the terms and subject to the
conditions set forth in this Agreement, at the Closing, Buyer will assume the
obligation to pay for all reasonable costs of removing the Equipment from the
M/V Midnight Wrangler and restoring that portion of the M/V Midnight Wrangler
where the Equipment was installed to substantially its same condition as existed
prior to installation of the Equipment thereon (the "Assumed Liabilities").
Other than as provided in the immediately preceding sentence, Buyer will not
assume or be liable for any liabilities or obligations arising out of, relating
to or otherwise in respect of the ownership, use or operation of the Equipment
on or before the Closing Date.
ARTICLE III
PURCHASE PRICE; ADJUSTMENTS
3.1 Purchase Price. The consideration to be given and paid by Buyer to
Sellers for the Equipment shall be (a) the assumption of the Assumed Liabilities
and (ii) Seven Hundred Thousand Dollars (U.S. $700,000) in cash (the "Purchase
Price").
3.2 Security Deposit.
(a) In connection herewith, Buyer has deposited with the Security
Deposit Escrow Agent, in its capacity as escrow agent under that certain
Escrow Agreement, dated as of the date hereof (the "Security Deposit
Escrow Agreement"), among Buyer, Torch Offshore and the Security Deposit
Escrow Agent, the sum of Seventy Thousand Dollars ($70,000) to constitute
a security deposit in respect of the obligations hereunder to purchase the
Equipment (the "Security Deposit"). At Closing, the Security Deposit plus
any interest or other amount accrued thereon shall be applied as a deposit
towards the Purchase Price as provided in Section 4.2(b), and the Parties
shall provide joint written instructions to the Security Deposit Escrow
Agent to such effect.
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(b) Upon the termination of this Agreement for any reason other than
a breach by Buyer of its obligations hereunder, Buyer shall be entitled to
the return of the Security Deposit plus any interest or other amount
accrued thereon pursuant to the terms of the Security Deposit Escrow
Agreement, and the Parties shall provide joint written instructions to the
Security Deposit Escrow Agent to such effect.
(c) In the event of a termination of the Agreement due to a breach
by Buyer of Buyer's obligations under this Agreement, Buyer shall forfeit
its Security Deposit (plus any interest earned thereon). The forfeited
Security Deposit shall be considered as a portion of the sale proceeds
with respect to the Equipment and shall be distributed to the Sellers for
further distribution in accordance with a Final Order of the Bankruptcy
Court.
ARTICLE IV
CLOSING DELIVERIES
4.1 Closing Deliveries of Seller. On the Closing Date, in exchange for the
Purchase Price, Sellers shall deliver the following to Buyer:
(a) A certificate evidencing resolutions of the Board of Directors
(or commensurate authority) of each of the Seller, certified by the
Secretary or other appropriate officer or agent of the Seller, duly
authorizing the execution, delivery and performance of this Agreement and
other transaction documents;
(b) a xxxx of sale in the form of Exhibit A hereto for the
Equipment, duly notarially attested, transferring the Equipment free and
clear of all Liens; and
(c) 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 Equipment in accordance with the terms of
this Agreement
4.2 Closing Deliveries of Buyer. On the Closing Date, in exchange for the
Equipment, Buyer shall deliver the following to Seller:
(a) a certificate evidencing resolutions of the Board of Directors
of the Buyer, certified by the Secretary or other appropriate officer or
agent of the Buyer, duly authorizing the execution, delivery and
performance of this Agreement and other documents relating hereto; and
(b) an amount equal to (i) the Purchase Price less (ii) the amount
of the Security Deposit plus any interest or other amount accrued thereon.
ARTICLE V
REPRESENTATIONS OF BUYER
5.1 Organization, Power and Status of the Buyer. Buyer is (i) an entity
duly formed, validly existing and in good standing under the laws of the State
of Minnesota, and (ii) duly authorized, to the extent necessary, to do business
in each jurisdiction where the character of its
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properties or the nature of its activities makes such qualification necessary,
except for any failure to be so qualified that would not have a material adverse
effect upon Buyer's ability to perform its obligations under the Agreement.
Buyer has all requisite corporate power and authority to own and operate the
property it purports to own and to carry on its business as now being conducted
and as proposed to be conducted in respect of the purchase of the Equipment.
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. All actions on the part of Buyer that are required for the
authorization, execution, delivery and performance of the Agreement and each
other related document to which it is a party, in each case, have been duly and
effectively taken, and the execution, delivery and performance of its
obligations under this Agreement and each such other document do not require the
approval or consent of any Person, except for (a) compliance with any
requirements (if applicable) of the HSR Act or (b) such consents and approvals
as have been or will be obtained on or prior to the Closing Date, which is the
date the Equipment will be delivered by Sellers to Buyer. This Agreement and
each such other document related to the Agreement to which Buyer is a party
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms thereof, 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. 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 (i) subject to compliance with any requirements (if applicable) of the
HSR Act, contravenes any Requirement of Law applicable to Buyer or (ii)
constitutes a default under any document related hereto to which Buyer is a
party, except for any such contravention or default that would not have a
material adverse effect upon Buyer's ability to perform its obligations under
this Agreement. Buyer is in compliance in all material respects with and not in
default under any and all Requirements of Law applicable to Buyer, the terms and
provisions of the Agreement and any other related documents to which Buyer is a
party.
5.4 Government Approvals. Subject to compliance with any requirements (if
applicable) of the HSR Act, all Governmental Approvals that are required to be
obtained in the name of Buyer in connection with the execution, delivery and
performance by Buyer of the Agreement and the related documents have been
obtained and are in effect on the Closing Date.
ARTICLE VI
REPRESENTATIONS OF SELLER
6.1 Organization, Power and Status of the Seller. Sellers are each (i) an
entity duly formed, validly existing and in good standing under the laws of the
jurisdiction of their respective organization, 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 have a material
6
adverse effect upon Seller's ability to perform its obligations under the
Agreement. Sellers have all requisite corporate power and authority to own and
operate the property it purports to own and to carry on its business as now
being conducted and as proposed to be conducted in respect of the sale of the
Equipment.
6.2 Authorization, Enforceability, Execution and Delivery. Sellers have
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. Subject to entry of the Approval Order, all actions on the part of
Sellers that are required for the authorization, execution, delivery and
performance of this Agreement, and each other related document to which it is a
party, in each case, has been duly and effectively taken, and the execution,
delivery and performance of its obligations under this Agreement and each such
other document does not require the approval or consent of any Person, except
for (a) compliance with any requirements (if applicable) of the HSR Act or (b)
such consents and approvals as have been obtained on or prior to the Closing,
which is the time the Equipment will be delivered by Sellers to Buyer. Each of
this Agreement and each such other document to which a Seller is a party
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms thereof, 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. 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 (i) subject to compliance with any requirements (if applicable) of the
HSR Act, contravenes any Requirement of Law applicable to Sellers or (ii)
constitutes a default under any document, related hereto to which a Seller is a
party, except for any such contravention or default that would not have a
material adverse effect upon Sellers' ability to perform its obligations under
this Agreement. Sellers are in compliance in all material respects with and not
in default under any and all Requirements of Law applicable to Sellers, the
terms and provisions of the Agreement or any other related documents to which a
Seller is a party.
6.4 Taxes. Except as set forth in Schedule 6.4, as of the Closing Date,
Sellers shall have filed, or caused to be filed, all tax and information returns
that are required to have been filed by it in any jurisdiction with respect to
the Equipment and has paid, or caused to be paid, all taxes shown to be due and
payable on such returns and all other taxes or assessments payable by it with
respect to the Equipment, to the extent the same have become due and payable,
but excluding any taxes the Sellers are contesting in good faith and by
appropriate proceedings, provided such contest, if determined adversely, would
not subject the Equipment to imminent forfeiture or sale or result in the
imposition of any Lien thereon.
6.5 Good Title. At the Closing Date, Sellers will have good and marketable
title to the Equipment. The Approval Order will provide that the Equipment is
being sold to Buyer free and clear of any Liens and other interests pursuant to
Sections 363(b)(1) and 363(f) of the Bankruptcy Code. In this connection,
Sellers represent that as of the Closing Date they shall have identified to
Buyer all known Lien holders, Lien claimants, interest holders or creditors
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who have previously asserted, or to Sellers' knowledge may assert a lien, claim,
encumbrance or interest against the Equipment (collectively, "Claimants") and
that such Claimants have received good and sufficient notice of the Sale Motion
and the Sale Hearing.
6.6 U.S. Citizenship. Sellers are citizens of the United States within the
meaning of Section 2 of the Shipping Act of 1916, as amended, and the
regulations promulgated pursuant thereto, qualified to engage in the coastwise
trade of the United States.
ARTICLE VII
EXCLUSION OF WARRANTIES; NO ASSUMPTION OF LIABILITIES
7.1 Exclusion of Warranties. The Equipment will be sold by order of the
Bankruptcy Court free and clear of all Liens, mortgages and encumbrances of any
kind. Except as set forth above, Buyer shall take the Equipment "AS IS, WHERE
IS," at the time title passes to Buyer without any warranty or representation by
Sellers whatsoever, express or implied, including without limitation as to the
design, quality, condition, merchantability or seaworthiness, or as to the
fitness of the Equipment for any particular purpose or trade, and the xxxx of
sale referred to in Section 4.1(b) shall so provide. Buyer hereby represents
that it has had full opportunity to inspect the Equipment as of the Effective
Date, and will, except as otherwise provided in this Agreement, accept the
Equipment upon the satisfaction by Sellers of Section 8.2 and by Buyer of
Section 8.1 of this Agreement. After the Closing, Sellers shall have no
obligation with respect to the Equipment. Buyer's execution of the documentation
at Closing shall be conclusive evidence of Buyer's acceptance of the condition
of the Equipment.
7.2 No Assumption of Liabilities. Other than with respect to the Assumed
Liabilities, Buyer will not assume, and hereby expressly disclaims any
assumption of, any debts, liabilities or obligations (absolute or contingent) of
any kind of Sellers, including but not limited to (i) accounts payable, (ii)
indebtedness for money borrowed, (iii) income taxes, payroll taxes, withholding
taxes, franchise taxes, and other taxes except for sales, value added or use
taxes payable by Buyer with regard to the Equipment, (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 the
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.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Buyer's Conditions Precedent. The Buyer's obligation to accept the
Equipment from the Sellers and to pay the Purchase Price in accordance with this
Agreement is subject to fulfillment on or before the Closing Date of the
following conditions precedent, all documents to be in form and substance
reasonably satisfactory to the Buyer:
(a) All Governmental Approvals that are required to be obtained in
the name of Buyer in connection with the execution, delivery and
performance by Buyer of the
8
Agreement and the related documents have been obtained and are in effect
at Closing, including, without limitation, that, if applicable, the
waiting period under the HSR Act shall have expired or early termination
shall have been granted;
(b) Sellers have made all filings and has received all material
consents, waivers and approvals from all Governmental Authorities, third
parties and such other entities, as necessary for the consummation of the
Transaction;
(c) Sellers' representations and warranties in Article VI of this
Agreement are true and correct in all material respects;
(d) Sellers have completed all deliveries they are required to make
under Section 4.1; and
(e) Sellers have complied in all material respects with their
respective obligations under this Agreement.
8.2 Seller's Conditions Precedent. The Sellers' obligation to sell the
Equipment and deliver the Equipment to Buyer on the Closing Date is subject to
fulfillment of the following conditions precedent on or before the Closing Date,
all documents to be in form and substance reasonably satisfactory to Sellers:
(a) Buyer has made all filings and has received all material
consents, waivers and approvals from all Governmental Authorities, third
parties and such other entities, as necessary for the consummation of the
Transaction, including, without limitation, that, if applicable, the
waiting period under the HSR Act shall have expired or early termination
shall have been granted;
(b) Buyer's representations and warranties in Article V of this
Agreement are true and correct in all material respects;
(c) Buyer has paid Sellers the amount required under Section 4.2(b)
of this Agreement;
(d) Buyer has made all deliveries required of it under Section 4.2
of this Agreement; and
(e) Buyer has complied in all material respects with its obligations
under this Agreement.
ARTICLE IX
SELLER'S BANKRUPTCY
9.1 Procedure for Approval of Transaction.
(a) Sale Motion. Sellers have filed the Sale Motion seeking entry of
the Approval Order and deadlines for filing and service of objections and
responses to the
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relief requested in the Sale Motion, and have arranged for setting of the
Sale Hearing on a date that is no later than June 10, 2005.
(b) Proposal and Submission of Approval Order. In connection with
the Sale Motion, Sellers proposed and submitted to the Bankruptcy Court
for execution at the Sale Hearing, the Approval Order.
(c) Cooperation. Buyer and Sellers shall cooperate with filing and
prosecuting the Sale Motion and obtaining entry of the Approval Order.
9.2 Conditions to Closing relating to Bankruptcy. In addition to the
conditions to Closing set forth in Sections 8.1 and 8.2, the obligations of the
Parties to close under this Agreement shall be subject to the satisfaction at or
prior to the Closing of the following conditions:
(a) The Bankruptcy Court shall have entered the Approval Order,
which order shall not have been stayed, reversed, modified or amended in
any respect and, if the Approval Order is the subject of a pending appeal,
the consummation of the Transaction shall not be the subject of a
presently effective stay pending appeal;
(b) The Bidding Procedures Order shall be a Final Order and the
Sellers shall have complied in all materials respects with the
requirements of the Bidding Procedures Order;
(c) All consents, waivers, approvals and authorizations of third
parties as are necessary to consummate the Transaction shall have been
obtained for both parties; and
(d) Sellers shall have given notice of the Sale Motion, Auction and
Sale Hearing as required by the Bankruptcy Code or applicable Bankruptcy
Rules.
ARTICLE X
TRANSFER OF TITLE AND DELIVERY OF VESSELS
10.1 Transfer of Title. Title and risk of loss of or damage to the
Equipment will pass from the Sellers to the Buyer at the time of Closing.
10.2 Inspections and Due Diligence. The Buyer has inspected the Equipment
and has accepted the Equipment following this inspection. The sale is outright
and definite, subject only to the terms and conditions of this Agreement.
10.3 Notices; Time and Place of Delivery. Sellers shall deliver the
Equipment at its location at the time of the Closing, which location Sellers
shall notify to Buyer in advance of the Closing.
10.4 [Reserved].
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10.5 Delivery Procedure. Sellers shall deliver the Equipment to a duly
authorized representative of Buyer ("Buyer's Authorized Representative"), which
shall be effective as of the Closing and acknowledged by Buyer.
ARTICLE XI
TAXES
Any tax (including sales tax), fees and expenses in connection with the
transfer of the Equipment to Buyer shall be paid exclusively by the Buyer. Ad
valorem taxes on the Equipment accrued prior to the Closing shall be the
responsibility of Seller. Ad valorem taxes on the Equipment accruing after the
Closing shall be the responsibility of Buyer.
ARTICLE XII
[RESERVED]
ARTICLE XIII
TERMINATION
13.1 Termination. In addition to any other termination rights set forth in
this Agreement, this Agreement may be terminated at any time at or prior to the
Closing, as follows:
(a) in writing, by mutual consent of the Parties;
(b) at the election of the Buyer, in the event the Sale Hearing is
not held on or before June 10, 2005 (unless otherwise agreed to in writing
by Buyer);
(c) at the election of the Buyer, in the event the Bankruptcy Court
fails to execute or enter the Approval Order on or before June 30, 2005,
as contemplated by this Agreement; or
(d) at the election of Sellers or Buyer, on July 31, 2005 in the
event that the Closing has not occurred on or before such date; provided,
however, that such terminating Party is not then in material breach of its
obligations under this Agreement.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Amendment. This Agreement may be amended from time to time by written
agreement signed by the Parties.
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
11
one or more phrases, sentences, clauses or sections of this Agreement shall not
affect the remaining portions of this Agreement, or any part thereof.
14.3 Notices. Unless otherwise provided in this Agreement, any Notice
permitted or required hereunder must be sent by (i) personal delivery, (ii)
expedited delivery service with proof of delivery, (iii) United States
registered or certified mail, postage prepaid, or (iv) telecopy (provided that
the telecopy is confirmed by mail in the manner previously described), addressed
as follows:
If to the Buyer to:
Cal Dive International, Inc.
c/o Xxxxxx X. Xxxxxx, President
000 X. Xxx Xxxxxxx Xxxxxxx X.
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
c/o Xxxxxxx X. Xxxxx
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
If to any Seller to:
Torch Express, L.L.C.
c/o Torch Offshore, Inc.
c/o Xxxxx Xxxxxx, Chief Restructuring Advisor
Telecopier: (000) 000-0000
c/o Xxxxxx Xxxxxx, Manager
Telecopier: (504) 367-8605
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxx 00000
with a copy to:
Heller, Draper, Xxxxxx, Xxxxxxx & Xxxx, L.L.C.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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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 this Agreement."
14.4 Captions. The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement.
14.5 No Partnership. Nothing herein contained shall be deemed or construed
to create a partnership or joint venture between the Parties.
14.6 Counterparts. 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.
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.
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. The Sellers and the Buyer agree to take all
necessary action and to deliver or cause to be delivered on the Closing Date 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.
14.10 Entire Agreement. This Agreement, including any Exhibits attached
hereto, constitutes the entire understanding and agreement among the parties
with respect to the subject matter of this Agreement, and supersedes all prior
and contemporaneous agreements and understandings, inducements, or conditions,
express or implied, oral or written, except as contained in this Agreement.
Except as specifically set forth herein, this Agreement is not dependent upon
the existence of any other agreement.
14.11 Finders or Broker's Fees. With the exception of their respective
financial advisors, 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, other than Bridge Associates, LLC
("Bridge") and Xxxxxxx Xxxxx & Associates ("RJA").
14.12 No Assignment. This Agreement may not be assigned in whole or in
part by any Seller or Buyer, except that Buyer may assign this Agreement to a
wholly owned subsidiary of Buyer; provided, however, that in the event of such
permitted assignment, Buyer shall not be relieved of its obligations hereunder
and further, the assignee shall assume the obligations of Buyer hereunder.
13
14.13 Governing Law. The Agreement will be governed by and interpreted in
accordance with the laws of the State of Louisiana, without giving effect to the
principles of conflicts of law.
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IN WITNESS WHEREOF both parties have hereunto placed their signatures on
the day and year first written above.
SELLERS:
TORCH OFFSHORE, L.L.C.
BY: ________________________________
ITS: _______________________________
TORCH OFFSHORE, INC.
BY: ________________________________
ITS: _______________________________
TORCH EXPRESS, L.L.C.
BY: ________________________________
ITS: _______________________________
BUYER:
CAL DIVE INTERNATIONAL, INC.
____________________________________
Xxxxxx X. Xxxxxx
President and COO
SCHEDULE 6.4
TAXES
1. Xxxxxxxxx Xxxxxxxxxx xx Xxxxxxx - X0 0000 sales tax - not yet paid
2. Louisiana Department of Revenue - Disputed Sales Tax amounts for 1/1/2001
to 7/31/2003
3. Terribone Parish - 2004 property taxes - not yet paid
4. Xxxxxxxxx Xxxxxx - 2004 property taxes - not yet paid
5. Torch Offshore, Inc. Consolidated 2004 Federal Income Tax Return - not yet
filed
6. State of Delaware - 2004 franchise tax - partially paid
7. State of Louisiana - 2004 State Income Tax Return - on extension
8. State of Texas - 2004 property tax
9. Form 5500 - 401K plan - 2004
10. Vanuatu - 2004 tonnage tax not yet paid
11. Sellers have not filed any Personal Property Reports with the Parish
Assessor of either Jefferson, Plaquemines or Terribone Parish for 2005 or
any prior periods.
EXHIBIT A
FORM OF XXXX OF SALE
THIS XXXX OF SALE (this "Xxxx of Sale") is made and delivered this
[___] day of [_______], 2005, by [Seller], a [___________________ ("Seller")]
for the benefit of Cal Dive International, Inc., a Minnesota corporation
("Buyer"). Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement (as hereinafter defined).
WHEREAS, Seller and Buyer have entered into that certain Equipment
Purchase Agreement dated as of June 13, 2005 (the "Agreement"), the terms of
which are incorporated herein by reference, which provides for the sale and
assignment by Seller to Buyer of the Equipment.
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 Equipment TO HAVE AND TO HOLD such
Equipment with all appurtenances thereto, unto Buyer, and its successors and
assigns, for its use forever.
3. This Xxxx 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 Xxxx 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 Xxxx of Sale conflicts or is
inconsistent with the terms of the terms of the Agreement, the Agreement shall
govern.
5. This Xxxx of Sale is executed and delivered pursuant to the
Agreement.
6. This Xxxx of Sale shall be governed by, and construed in
accordance with, the laws of the State of Louisiana, 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 Xxxx of Sale to be executed and delivered as of the day and year
first above written.
[SELLER]
By: ___________________________________
Name: _________________________________
Title: ________________________________
