Forgot to say Good Morning/Afternoon Monkeys!
KTF LIfesong 2NJ Anybody have We seen this before http://agreements.realdealdocs.com/Asset-Purchase-Agreement/EXHIBIT-10-1AMENDMENT-TO-ASSET-PURCHASE--847791/#doc_startEXHIBIT 10.1
AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement (the “ Amendment ”), dated as of November 1, 2005, is made by and among CAL DIVE INTERNATIONAL, INC. , a Minnesota corporation (“ CDI ” or the “ Buyer ”), and STOLT OFFSHORE INC. , a Louisiana corporation, S & H DIVING LLC , a Louisiana limited liability company and SCS SHIPPING LIMITED , an Isle of Man company (collectively, the “ Sellers ”). Buyer and Sellers are sometimes referred to herein individually as a “ Party ” and collectively as the “ Parties .” Unless otherwise specified, capitalized terms used herein shall have the meaning specified in the Asset Purchase Agreement (as defined below).
WHEREAS, the Parties entered into that certain Asset Purchase Agreement dated as of April 11, 2005 (the “ Asset Purchase Agreement ”); and
WHEREAS, because of the delay resulting from complying with the requirements of the HSR Act, the Parties desire to amend the Asset Purchase Agreement as set forth herein;
NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and subject to the terms and conditions as herein provided, the Parties agree as follows:
1. The introductory paragraph of the Asset Purchase Agreement is hereby modified to include “ SCS SHIPPING LIMITED , an Isle of Man company” as one of the Sellers. By its execution of this Amendment, SCS SHIPPING LIMITED hereby adopts and ratifies all terms and conditions of the Asset Purchase Agreement, except as otherwise hereby amended by this Amendment.
2. Section 1.1 of the Asset Purchase Agreement is hereby amended and restated to define “ Closing ” and “ Closing Date ” as follows:
“ Closing ” shall mean the consummation of the IMR Closing, DLB 801 Closing, and SEAWAY KESTREL Closing, respectively, as indicated by the context of the relevant provision, and shall apply with respect to that portion of the Subject Assets as is being sold to Buyer at such Closing, with each such Closing each effective as of the date specified herein.
“ Closing Date ” shall mean the date on which each of the IMR Closing, DLB 801 Closing, and SEAWAY KESTREL Closing occurs, respectively, as indicated by the context of the relevant provision, and shall apply with respect to that portion of the Subject Assets as is being sold to Buyer on such date.
3. Section 1.1 of the Asset Purchase Agreement is hereby amended to add the following definitions:
“ DLB 801 ” shall mean the vessel of that name as such vessel is more particularly described in Exhibit A .
Amendment to
Asset Purchase Agreement
--------------------------------------------------------------------------------
“ DLB 801 Closing ” shall mean the closing of the sale of the DLB 801.
“ Effective Time ” shall mean the effective time of a particular Closing as more particularly described in Section 9.1(a) with respect to the IMR Vessel Closing; Section 9.1(b) with respect to the SEAWAY KESTREL Closing; and Section 9.1(c) with respect to the DLB 801 Closing.
“ IMR Closing ” shall mean the closing of all of the transactions contemplated by this Agreement other than the transactions contemplated by the SEAWAY KESTREL Closing and the DLB 801 Closing.
“ IMR Vessels ” shall mean the American Diver, American Star, American Liberty, American Victory, American Constitution, American Triumph and Seaway Defender, all as more particularly described in Exhibit A .
“ SEAWAY KESTREL ” shall mean the vessel of that name as such vessel is more particularly described in Exhibit A .
“ SEAWAY KESTREL Closing ” shall mean the closing of the sale of the SEAWAY KESTREL.
“ Vessels ” shall mean the vessels described in Exhibit A and Defender ROV described in Exhibit A-1; provided, however, that when the context of the Agreement imposes obligations with respect to the Vessels, e.g., Section 5.6 and Section 9.2(d), and such obligations are not customarily imposed with respect to a remote operated vehicle (“ ROV ”), then such obligations shall not apply to the Defender ROV.
4. Section 2.1 of the Asset Purchase Agreement is hereby amended and restated in its entirety as follows:
2.1 There shall be three separate and independent Closings: the IMR Closing; the SEAWAY KESTREL Closing; and the DLB 801 Closing. At each such Closing, Sellers shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept from Sellers, all of Sellers’ rights, title and interests in and to the following described Subject Assets:
(a)
IMR Closing: the IMR Vessels together with the Vessel-Related Equipment for the IMR Vessels described in Exhibit B and Exhibit B-1 ; the diving equipment including the portable SAT diving system described in Exhibit C ; the real property and leases (the “ Assigned Leases ”) described in Exhibit D ; and the machinery, apparatus, furniture and fixtures, materials, supplies, inventory, and other equipment described in Exhibit E .
Amendment to
Asset Purchase Agreement
2
--------------------------------------------------------------------------------
(b)
SEAWAY KESTREL Closing: the SEAWAY KESTREL together with the Vessel-Related Equipment for the SEAWAY KESTREL described in Exhibit B and Exhibit B-1 .
(c)
DLB 801 Closing: the DLB 801 together with the Vessel-Related Equipment for the SEAWAY KESTREL described in Exhibit B and Exhibit B-1 .
5. Section 4.1 of the Asset Purchase Agreement is hereby deleted in its entirety and the following substituted in lieu thereof:
4.1 (a) The total purchase price (“ Purchase Price ”) to be paid to Sellers by Buyer for the Subject Assets shall be One Hundred Twenty-Two Million Nine Hundred Twenty-Seven Thousand and No/100 United States Dollars ($122,927,000 USD), as adjusted pursuant to Section 4.2 below, which Purchase Price will be allocated and paid in accordance with Schedule 4.5.
(b) The Purchase Price shall be adjusted pursuant to Section 4.2. Such Purchase Price adjustment shall be made for each respective Closing; provided, however, that it is understood and agreed that the foregoing Purchase Price has already been adjusted with respect to the Subject Assets sold and conveyed at the IMR Closing.
(c) As part of the settlement with the Antitrust Division of the Department of Justice pursuant to the HSR Act, Buyer has agreed to sell the Seaway Defender. With respect to the net proceeds from the sale of the Seaway DEFENDER (and its Vessel-Related Equipment), it is understood and agreed that Buyer shall retain the first $7,000,000 USD of such net sales proceeds and the proceeds in excess of $7,000,000 USD shall be shared equally between Buyer and Sellers; provided, however, that if the SEAWAY DEFENDER is sold with the Defender ROV, this sharing of proceeds shall not apply as to that part of the purchase price allocated in good faith by the purchaser to the Defender ROV and related equipment. If the Defender ROV is sold separately from the SEAWAY DEFENDER, this Section 4.1(c) shall likewise not apply to such sale. Buyer will pay any such amount to Sellers within one business day of Buyer’s receipt of such proceeds.
6. Section 4.2 of the Asset Purchase Agreement is hereby deleted in its entirety and the following substituted in lieu thereof:
4.2 The Purchase Price shall be adjusted based upon the condition of the Subject Assets made a part of the DLB 801 Closing and the SEAWAY KESTREL Closing from the date this Agreement is executed through each respective Closing Date. The baseline for the condition of the SEAWAY KESTREL shall be the report of Matthews Daniels, a copy of which is attached hereto as Exhibit 4.2B , and for the DLB 801 shall be the report of Poseidon
Amendment to
Asset Purchase Agreement
3
--------------------------------------------------------------------------------
Maritime, a copy of which is attached hereto as Exhibit 4.2C . Buyer and Sellers shall cause these reports to be updated within seven (7) days of the DLB 801 Closing Date or the SEAWAY KESTREL Closing Date, as the case may be, by Buyer personnel and if on the respective Closing Date there are any Subject Assets (made a part of such Closing) that are damaged, missing, or otherwise inoperable (ordinary wear and tear excepted, and excluding matters covered by Section 4.4), which were not damaged, missing, or otherwise inoperable (ordinary wear and tear excepted) on the date of the relevant report (an “ Adjustment Item ”), and which, with respect to the Subject Assets made a part of the SEAWAY KESTREL Closing and/or the DLB 801 Closing, in aggregate exceed Five Hundred Thousand and No/100 United States Dollars ($500,000 USD), then the Purchase Price shall be adjusted downward dollar for dollar based on the value of such Adjustment Items from the first dollar, provided th
