TABLE OF CONTENTS

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ARTICLE I		DEFINITIONS		1
1.01		Definitions		1
1.02		Interpretation		4
1.03		Deposit		4
ARTICLE II		PURCHASE AND SALE OF PROPERTY		5
2.01		Purchase and Sale of Property		5
2.02		Payment of Purchase Price		6
2.03		Current Liens		6
2.04		Non-Assumed Obligations		6
ARTICLE III		DELIVERY		8
3.01		Delivery of the Property		8
3.02		Risk of Loss		8
3.03		Conduct of Business		10
3.04		Negative Covenants		10
3.05		Consents		11
3.06		No Solicitation		11
ARTICLE IV		REIMBURSEMENTS		11
4.01		Closing Reimbursements		11
ARTICLE V		INSPECTIONS, DUE DILIGENCE REVIEW		11
5.01		Initial Inspection		11
5.02		Access and Information; Inspections		12
5.03		Final Inspection Certificate		13
ARTICLE VI		CLOSING		13
6.01		Closing Date		13
6.02		Place of Closing		15
6.03		Delivery by Buyer		15
6.04		Delivery by Seller		15
6.05		Insurance Agreement		17
6.06		Taxes and Fees		17
6.07		Cooperation		17
ARTICLE VII		SELLER’S REPRESENTATIONS AND WARRANTIES		17
7.01		Seller’s Representations and Warranties		17
7.02		Survival		23
7.03		CONDITION OF PROPERTY		24
ARTICLE VIII		BUYER’S REPRESENTATIONS AND WARRANTIES		24
8.01		Buyer’s Representations and Warranties		24
8.02		Survival		26

 

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ARTICLE IX		CONDITIONS TO CLOSING APPLICABLE TO BUYER		26
9.01		No Termination		26
9.02		Bring-Down of Seller Warranties		26
9.03		Changes from the Vessel Reports		27
9.04		Document Delivery		27
ARTICLE X		CONDITIONS TO CLOSING APPLICABLE TO SELLER		27
10.01		No Termination		27
10.02		Bring-Down of Buyer Warranties		27
10.03		Document Delivery		28
ARTICLE XI		TERMINATION		28
11.01		Termination		28
ARTICLE XII		EMPLOYEES		29
12.01		Seller’s Retained Employee Liability		29
12.02		Assumed Employees		29
12.03		No Third-Party Beneficiary		30
ARTICLE XIII		INDEMNIFICATION AND RELATED MATTERS		30
13.01		Indemnification		30
13.02		Indemnification Notice		32
13.03		Indemnification Procedure		32
ARTICLE XIV		POST-CLOSING		34
14.01		Diligence and Further Assurances		34
14.02		Books and Records		34
ARTICLE XV		NOTICES		34
15.01		Notices		34
ARTICLE XVI		MISCELLANEOUS PROVISIONS		35
16.01		Cost and Expenses		35
16.02		Counterparts		36
16.03		Headings		36
16.04		Entire Agreement		36
16.05		Amendment, Assignment		36
16.06		Press Releases		36
16.07		Binding Agreement; No Third Party Rights		37
16.08		Time is of the Essence		37
16.09		Governing Law and Jurisdiction and Consent to Service		37
16.10		Waiver		37
16.11		Severability		38
16.12		Strict Performance		38
16.13		Agreement Preparation		38

 

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement”) is entered into as of the 10th day of April, 2007 between BEAN DREDGING L.L.C., a Louisiana limited liability company (“Seller”), and GREAT LAKES DREDGE & DOCK COMPANY, LLC, a Delaware limited liability company (“Buyer”) who agree as follows:

ARTICLE I
DEFINITIONS

1.01         Definitions .  The following words have the following meanings when used in this Agreement:

“Bill of Sale” means the various bills of sale to be signed and delivered on the Closing Date and to be in the form and contain all the terms and conditions as shown in Exhibits A-1 and A-2.

“CERCLA” is defined in Section 7.01(k)(i) hereof.

“Closing” is defined in Section 6.01(a) hereof.

“Closing Date” is defined in Section 6.01(a) hereof.

“Damages” is defined in Section 13.01(a) hereof.

“Delay Damages” is defined in Section 6.01(a) hereof.

“Deposit” is defined in Section 1.03(a) hereof.

“Designated Employees” means those certain employees of Seller (or its affiliates) who work on the Vessel identified in writing by Buyer to Seller as those employees Buyer intends to offer to employ in the operation of the Property.

“Drop Dead Date” is defined in Section 11.01(c) hereof.

“Effective Date” is the date of execution of this Agreement.

“Environmental Laws” is defined in Section 7.01(k)(v) hereof.

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“Escrow Agent” is defined in Section 1.03(a) hereof.

“Escrow Agreement” is defined in Section 1.03(a) hereof.

“Excluded Items” means the property of Seller described in Exhibit B which shall not be part of the Property sold to Buyer.

“Final Inspection Certificate” is defined in Section 5.03 hereof.

“Governmental Action” is defined in Section 11.01(g).

“Hazardous Materials” is defined in Section 7.01(k)(i) hereof.

“Indemnified Party” is defined in Section 13.02 hereof.

“Indemnifying Party” is defined in Section 13.02 hereof.

“Insurance Agreement” is defined in Section 6.05 hereof.

“Inventories” means those spare parts, manuals, blue prints, supplies, tools, stores, lubricants, potable water and fuel aboard the Vessel at the time of delivery.

“Lien” shall mean any mortgage, lien charge, restriction, pledge, security interests, option, lease or sublease, claim, right of any third party, encumbrance or other charges or rights of others of any kind or nature.

“Lien Release Documents” is defined in Section 2.03(b) hereof.

“Miscellaneous Property” means the items of equipment described in Exhibit C.

“Non-Assumed Obligations” is defined in Section 2.05 hereof.

“Notice of Claim” is defined in Section 13.02 hereof.

“PCBs” is defined in Section 7.01(k)(i) hereof.

“Person” means an individual, corporation, partnership, trust, limited liability company, association, joint venture, government (or an agency or political subdivision thereof) or other entity of any kind.

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“Property” means the Vessel, the Spare Parts, the Miscellaneous Property, the Inventories and the Related Property.

“Purchase Price” means Twenty Five Million Five Hundred Thousand Dollars ($25,500,000.00), plus the Delay Damages, if any, as provided in Section 6.01(a).

“Related Property” means (a) to the extent transferable by Seller, all of Seller’s rights under warranties, guarantees and the like, if any, of manufacturers, suppliers or other third parties which pertain to any of the rest of the Property, (b) the records, maintenance records, itemization of spare parts, data and other written information, if any, related to any of the rest of the Property, including, without limitation, any and all plans, drawings (including as built and proposed) engineering calculations, regulatory correspondence and documentation, vendor information, drawings and correspondence, and (c) to the extent transferable by Seller, all governmental and other licenses, certificates and permits related to the use and operation of any of the rest of the Property that are currently in force or issued in the name of Seller and which Buyer elects to maintain in connection with Buyer’s operations.

“Spare Parts” means the various equipment, inventory and other items described in Exhibit D.

“Substances” is defined in Section 7.01(k)(i) hereof.

“Target Date” is defined in Section 6.01(a) hereof.

“Third Party Action” is defined in Section 11.01(g).

“Transaction Documents” means this Agreement and all documents, instruments and agreements executed and delivered in connection with this Agreement.

“Vessel” means that vessel described in Exhibit E, together with such Vessel’s engines, machinery, masts, spars, boats, anchors, cables, chains, rigging tackle, fittings, tools,

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pumps, pumping equipment, gear, apparel, furniture, furnishing, outfit, appliances, equipment, spares or replacement parts, and all other appurtenances thereto appertaining or belonging.

“Vessel Reports” is defined in Section 5.01 hereof.

1.02         Interpretation .  Unless the context of this Agreement otherwise requires, (i) words of any gender shall be deemed to include each other gender, (ii) words using the singular or plural number shall also include the plural or singular number, respectively, and (iii) references to “hereof,” “herein,” “hereby” and similar terms shall refer to the entire Agreement.

1.03         Deposit .

(a)           On the Effective Date, (i) Buyer and Seller shall enter into an escrow agreement in the form of Exhibit F and made a part hereof (the “Escrow Agreement”) with LaSalle Bank National Association, as escrow agent (the “Escrow Agent”); and (ii) Purchaser shall deliver to the Escrow Agent $2,550,000.00 as a good faith deposit (the “Deposit”).

(b)           In the event after Buyer deposits the Deposit, the purchase and sale contemplated by this Agreement is terminated (i) by Buyer pursuant to either Section 11.01(b) or (c) because the conditions set forth in Article IX are not capable of being satisfied by the Drop Dead Date; (ii) by Buyer pursuant to Section 11.01(d); (iii) by either Buyer or Seller pursuant to either Section 11.01(e) or Section 11.01(f) hereof; or (iv) by either Buyer or Seller pursuant to Section 11.01(g) hereof resulting from a Governmental Action or a Third Party Action which relates to the ownership or operation of the Property by Seller or its affiliates or which might result in a Lien on the Property, then Buyer shall be entitled to the Deposit, and the Escrow Agent shall promptly deliver the Deposit to Buyer.  Except in the case the Agreement is terminated by either Buyer or Seller pursuant to Section 11.01(e), Section 11.01(f) or Section 11.01(g) hereof, the delivery of the Deposit to Buyer pursuant to this Section 1.03(b) shall not in

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any way limit any legal recourse for damages, excluding any incidental or consequential damages, specific performance or any other rights or remedies available to Buyer resulting therefrom.

(c)           In the event the Agreement is terminated after Buyer deposits the Deposit for any reason other than as set forth in Section 1.03(b), then Seller shall be entitled to the delivery of the Deposit and the Escrow Agent shall promptly deliver the Deposit to Seller.  The delivery of the Deposit to Seller pursuant to this Section 1.03(c) and the payment of Delay Damages, if any, pursuant to Section 6.01(c) shall constitute liquidated damages and shall be paid in lieu of any additional legal recourse for any damages, specific performance or any other rights or remedies available to Seller resulting therefrom.

(d)           Buyer and Seller covenant and agree to furnish and deliver the appropriate instructions to the Escrow Agent as required by Sections 1.03(b) and (c) of this Agreement and the terms of the Escrow Agreement.

(e)           At the Closing, the Deposit shall be returned to Buyer unless Buyer gives written direction to the Escrow Agent to deliver the Deposit to Seller as partial payment of the Purchase Price.

ARTICLE II
PURCHASE AND SALE OF PROPERTY

2.01         Purchase and Sale of Property .  In consideration of the Purchase Price and upon and subject to the terms, provisions and conditions hereinafter set forth, Seller agrees to assign, sell and convey to Buyer free and clear of any Liens and Buyer agrees to purchase and accept from Seller at the Closing on the Closing Date all of the rights, title and interests of Seller in and to the Property.  The Excluded Items do not form a part of the Property.

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2.02         Payment of Purchase Price .  Subject to Section 2.03 hereof, the Purchase Price, less the Deposit if previously paid to Seller pursuant to Section 1.03(e), plus the Delay Damages, if any, shall be paid by Buyer to Seller on the Closing Date by wire transfer of immediately available funds for credit to Seller to an account designated by Seller in a letter of direction to be delivered to Buyer prior to the Closing under Section 2.03(c).

2.03         Current Liens .

(a)           Attached hereto as Exhibit G are the Liens currently against the Property.

(b)           At least one (1) day prior to Closing, Seller shall cause each Lien holder to deliver to Seller’s counsel, (i) pay-off letters as of the Closing; and (ii) executed mortgage releases, Lien releases, termination statements and other appropriate documents to release or terminate the Liens, all of which shall have been approved as to form and sufficiency by Buyer, (collectively, “Lien Release Documents”).

(c)           At the Closing on the Closing Date, Seller shall furnish Buyer with a written letter of direction for the payment of the Purchase Price which shall include instructions to directly pay the Lien holders the amounts due pursuant to the pay-off letters previously delivered.

(d)           If Seller’s lenders object to the procedure set forth in Section 2.03(b) hereof, the Buyer agrees to change the procedure to one satisfactory to the lenders; provided, Buyer receives the Lien Release Documents simultaneously with payment of the Purchase Price.

2.04         Non-Assumed Obligations .  Except as provided in Section 6.01(c), Buyer shall not assume or pay and Seller shall continue to be responsible for any debt, obligation or liability, of any kind or nature (fixed or contingent, known or unknown) of Seller whether or not relating to the Property (“Non-Assumed Obligations”).  Buyer is not and shall not be deemed a

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successor of Seller.  Without limiting the generality of the foregoing, Buyer shall not assume any Non-Assumed Obligations of Seller, which shall include without limitation, the following debts, obligations or liabilities:

(a)           any liability of Seller for any federal, state, local or foreign taxes whether or not relating to the Property;

(b)           any claim, action, suit or proceeding, whether known or unknown, and whether pending as of the Closing Date or arising thereafter, resulting from the ownership or operation of any of the Property by Seller or any of its employees, agents, subcontractors or affiliates prior to the Closing Date, including, without limitation, any maritime torts;

(c)           any liabilities or obligations of Seller to any of its employees, former employees, agents or benefited third party, whether under an employment contract or otherwise;

(d)           any liabilities or obligations arising out of, resulting from or relating to any collective bargaining agreement to which Seller or any of its affiliates is or was a party, or any breach thereof by Seller or any of its affiliates;

(e)           any liabilities or obligations of Seller or any of its affiliates to any of its employees or former employees for any amounts due under any policy, plan, procedure, or other commitment of Seller or any of its affiliates, either written or oral, or implied, including but not limited to obligations for the payment of severance pay, holiday pay, sick pay, educational allowances, workmen’s compensation, health and welfare benefits, and/or any retroactive salary or wage increases;

(f)            any obligations by Seller or any of its affiliates for any amounts due to employees for failure to comply with the overtime pay requirements of the Fair Labor Standards Act or any penalties assessed as a result of such failure;

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(g)           any liability of Seller or any of its affiliates for any other payment which may be due to Seller’s employees from Seller or any of its affiliates by reason of their discharge, layoff or other separation of employment with Seller; and

(h)           any liabilities or obligations arising from claims, proceedings or causes of action resulting from property damage or personal injuries (including death) caused by Seller or services rendered by Seller.

ARTICLE III
DELIVERY

3.01         Delivery of the Property .  On the Closing Date, Buyer shall take possession of the Property.  Seller agrees to cooperate with Buyer in making any necessary arrangements, as Buyer reasonably requests, to allow Buyer, at Buyer’s risk and expense, to keep the Property located or docked, as the case may be, wherever such Property was located or docked prior to the Closing Date for such reasonable period of time to allow the removal thereof by Buyer.  On the Closing Date, Buyer shall cause its employees to be stationed on board the Vessel and Seller shall cause all of its employees and agents to be removed from the Vessel and other Property, excluding the Designated Employees.

3.02         Risk of Loss .

(a)           Until the Closing, the Property shall be at the sole risk and loss of Seller.  Upon the Closing, title and all risk of loss shall transfer to Buyer.  Seller shall keep the Property insured against loss or damage in accordance with its existing insurance coverage until the Closing.  If before the Closing any loss or other casualty or any governmental taking affects some or all of the Property, Buyer, at its sole option, may elect any of the following options:

(i)            if prior to Closing, the Property can be repaired, replaced or restored to the condition the Property was in prior to the loss or casualty, the Closing

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shall be deferred for a reasonable time (in no event longer than the Drop Dead Date) so that Seller may repair, replace or restore the Property to the condition it was in prior to the loss or casualty;

(ii)           if prior to Closing, the Property can be repaired, replaced or restored to the condition the Property was in prior to the loss or casualty, the Closing shall proceed and all condemnation or insurance proceeds paid or to be paid as a result of the loss to such Property shall be used to pay expenses of repairing, replacing, and restoring the loss and any remaining condemnation or insurance proceeds shall be remitted to Seller;

(iii)          subject to Section 3.02(b) hereof, if before Closing such loss or taking cannot be totally repaired, replaced or restored to the condition the Property was in prior to the loss or casualty, or there is a taking by a governmental authority Buyer may (by written notice to Seller within five (5) days after receipt of notice from Seller of such loss, casualty or taking) chose to exclude the Property which has been so damaged, destroyed or taken and receive a credit against the Purchase Price in the amount reflected in Exhibit H for such Property, or if its not listed in Exhibit H then the Purchase Price shall be reduced by the fair market value of such Property as determined by a mutually acceptable appraiser; or

(b)           If prior to Closing, the Vessel suffers a loss or casualty such that it is determined to be either (i) a total loss for insurance purposes or (ii) the loss or casualty is such that the Vessel would not be operational prior to the Drop Dead Date, then either Buyer or Seller may terminate this Agreement.

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3.03         Conduct of Business .  Prior to the Closing, except as otherwise approved by Buyer in writing, Seller shall operate the Property and its businesses which are presently conducted with the Property in the ordinary course thereof consistent with past practice (including, without limitation, capital expenditures, the acquisition of parts and inventory, keeping of all of the Property in good working order and repair, and replacing any Property which shall be worn out, lost, stolen, damaged or destroyed) and in such a manner that Seller may continue to perform its obligations under the existing contracts and as may be required by any applicable law.  Seller shall give Buyer prompt written notice of any and all material adverse changes in the condition or operation of any of the Property.

3.04         Negative Covenants .  During the period from the Effective Date of this Agreement to the Closing Date, Seller shall not, without Buyer’s prior written consent:

(a)           Sell, lease, mortgage, pledge or otherwise dispose of or transfer any of the Property, except for inventory sold or otherwise disposed of in the ordinary and regular course of Seller’s business; or

(b)           Enter into or extend any employment agreement with any Designated Employee for a term extending beyond the Closing or increase the compensation of any Designated Employee, or increase or otherwise change the rate or nature of the compensation (including wages, salaries, bonuses and benefits under pension, profit sharing, deferred compensation and similar plans or programs) which is paid or payable to any Designated Employee; provided, however, that Seller shall be permitted to make “separation payments” to any of its employees it determines to terminate on or prior to the Closing Date.

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3.05         Consents .  Prior to the Closing Date, Seller shall proceed with all reasonable diligence and use its best efforts to obtain the written consent to the consummation of this Agreement from all necessary Persons.

3.06         No Solicitation .  Prior to the Closing or until the termination of this Agreement, Seller shall not, without the prior approval of Buyer, directly or indirectly, solicit, encourage or initiate inquiries or proposals with respect to, or furnish any information relating to, or participate in any negotiations or discussions concerning any acquisition or purchase of any or any portion of any of the Property, and Seller shall deal exclusively with Buyer with respect to the sale of the Property.

ARTICLE IV
REIMBURSEMENTS

4.01         Closing Reimbursements .  Buyer shall reimburse Seller on the Closing Date for the cost of any fuel and lube which is transferred by Seller to Buyer as part of the Property.  Prior to the Closing, Seller shall prepare and deliver to Buyer a statement for the reimbursement of such fuel and lube costs, which shall be subject to the review and approval of Buyer.

ARTICLE V
INSPECTIONS, DUE DILIGENCE REVIEW

5.01         Initial Inspection .  Prior to the date hereof, Buyer has been granted access to, or provided copies of, the plans, surveys, records, drawings, engineering calculations, correspondence, documentation, reports and other written information relating to the Property identified in Exhibit I (the “Vessel Reports”) and has been given the opportunity to ask questions of the employees of the Seller about the Property.  Buyer has not been granted access to the Property prior to the date hereof.

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5.02         Access and Information; Inspections .

(a)           From the Effective Date (but only after announcement by Seller of execution of this Agreement to its employees which Seller shall do within 24 hours after the issuance of Buyer’s press release) until Closing, Seller shall give to Buyer and its representatives reasonable access during normal business hours to the Property, to Seller’s books and records containing technical information relative to the Property and all other relevant documents and information with respect to the Property as representatives of Buyer may from time to time request, all in such manner as to not unduly disrupt Seller’s normal business activities.  Such access may include consultations with the personnel of Seller.  Buyer shall coordinate all of its inspection activities through Seller’s designated representative or his designee.  If the transaction contemplated by this Agreement does not close, Buyer shall promptly return all information and documents provided by Seller.

(b)           During the term of this Agreement Buyer may physically inspect, and cause one or more engineers or other representatives of Buyer to physically inspect, the Property.  Buyer shall make all inspections in good faith and with due diligence.  All inspection fees, appraisal fees, engineering fees and other expenses of any kind incurred by Buyer relating to the inspection of the Property will be solely at Buyer’s expense.  Seller shall cooperate with Buyer in all reasonable respects in making such inspections.

(c)           Seller shall be entitled to have a representative present at the time of making any physical inspection of the Property.  Buyer shall notify Seller not less than one (1) day in advance of making any such inspection.  In making any inspection hereunder, Buyer will treat, and will cause any representative of Buyer to treat, all information obtained by Buyer

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pursuant to the terms of this Agreement as strictly confidential and shall not disclose any such information except as provided herein.

(d)           All inspection activities are to be at Buyer’s sole cost and risk.  Buyer acknowledges that any information obtained by Buyer during the course of its due diligence shall not constitute any representation or warranty whatsoever, express or implied, by the Seller with respect to the content, completeness or accuracy of the due diligence inspections.

5.03         Final Inspection Certificate .  On April 21, 2007, Buyer shall complete its final inspection of the Property for purposes of determining if the condition set forth in Section 9.03 hereof has been satisfied.  At the Closing, Buyer shall tender to Seller a Final Inspection Certificate in the form of Exhibit J (“Final Inspection Certificate”), setting forth the condition of the Property.  Buyer shall not be entitled to object to the condition of any of the Property should Buyer elect not to conduct a final inspection of such Property.  If as a result of the final inspection the condition set forth in Section 9.03 is not satisfied then either Buyer or Seller may terminate this Agreement pursuant to Section 11.01(f).

ARTICLE VI
CLOSING

6.01         Closing Date .  (a)  The term “Closing” as used herein shall refer to the actual conveyances, transfer, assignment and delivery of the Property to Buyer in exchange for the payment to Seller pursuant to Section 2.02 hereof.  The Closing shall take place at the office specified in Section 6.02 hereof at 10:00 a.m. local time on June 15, 2007 (“Target Date”) provided all of the conditions set forth in Articles IX and X are either satisfied, capable of being satisfied or waived; provided, however, if the conditions set forth in Articles IX and X are not satisfied, capable of being satisfied or waived then the Closing shall be deferred until the next business day following the date on which all of the conditions set forth in Articles IX and X are

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satisfied, or waived subject to (i) Section 11.01(c) hereof; and (ii) Buyer’s right and option to defer the Closing after the conditions set forth in Article IX are satisfied, capable of being satisfied or waived to any date prior to the Drop Dead Date, provided, further, subject to Section 6.01(c) the Purchase Price shall be increased for each day after the later of the Target Date or the date the conditions set forth in Article IX are satisfied, capable of being satisfied or waived (such date is hereinafter referred to as “Initial Date”); by an amount determined in accordance with the following (“Delay Damages”):

(A)          for each of the first ten (10) days after the Initial Date, $10,000, per day; and

(B)           thereafter, $20,000, per day.

For illustration purposes , if the Initial Date is the Target Date and the Closing occurs on the Drop Dead Date, the Purchase Price shall be increased by $500,000 computed as follows:

 

The date of the Closing as determined above is herein referred to as the “Closing Date.”

(b)           On the Target Date, Buyer shall notify Seller in writing as to whether the conditions in Article IX are satisfied, capable of being satisfied or waived, or if not satisfied or waived on the Target Date, then Buyer shall notify Seller in writing when the conditions in Article IX are satisfied, capable of being satisfied or waived.

(c)           If the Vessel is performing work pursuant to a contract on and after the Target Date then no Delay Damages shall be due and payable by Buyer for the period of time

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after the Target Date that the Vessel is working.  If as of the Closing Date the contract remains uncompleted then Buyer agrees to assume the Seller’s obligations under such contract arising after the Closing Date.

(d)           In the event the Closing hereunder does not occur and (i) Seller is entitled to the Deposit under Section 1.03(c) hereof, then Buyer shall also pay to Seller within five (5) days after the date this Agreement is terminated the amount of aggregate Delay Damages which accrued through the date of termination or (ii) Buyer is entitled to the Deposit under Section 1.03(b) hereof, then Buyer shall have no responsibility to pay any Delay Damages to Seller.

6.02         Place of Closing .  The Closing shall occur in the offices of Baldwin Haspel LLC, 2200 Energy Centre, 1100 Poydras Street, New Orleans, Louisiana 70163-2200.

6.03         Delivery by Buyer .&n