Exhibit 2.2.12
AMENDMENT NO. 11 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 11 TO PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of January 30, 2006 by and between XXXXXXX MARINE SERVICES,
INC., a Delaware corporation ("Purchaser"), and FUEL HOLDING COMPANY LLC
(f/k/a Northland Fuel LLC), a Delaware limited liability company ("Northland
Fuel"), YF LLC (f/k/a Yukon Fuel Company LLC, successor by conversion to Yukon
Fuel Company), an Alaska limited liability company ("YFC"), and NV FUEL LLC
(f/k/a Northland Vessel Leasing Company LLC), a Delaware limited liability
company ("NVLC"; collectively with Northland Fuel and YFC, "Sellers"). Purchaser
and Sellers are sometimes referred to herein collectively as the "Parties" and
individually as a "Party."
RECITALS
WHEREAS, Purchaser and Sellers are parties to a Purchase Agreement, dated
as of July 9, 2004, as amended by Amendment No. 1 to Purchase Agreement, dated
as of October 13, 2004, Amendment No. 2 to Purchase Agreement, dated as of
November 22, 2004, Amendment No. 3 to Purchase Agreement, dated as of January
14, 2005, Amendment No. 4 to Purchase Agreement, dated as of January 21, 2005,
Amendment No. 5 to Purchase Agreement, dated as of January 28, 2005, Amendment
No. 6 to Purchase Agreement, dated as of February 4, 2005, Amendment No. 7 to
Purchase Agreement, dated as of February 10, 2005, Amendment No. 8 to Purchase
Agreement, dated as of September 6, 2005, Amendment No. 9 to Purchase Agreement,
dated as of December 5, 2005, and Amendment No. 10 to Purchase Agreement, dated
as of January 18, 2006 (the "Purchase Agreement"; terms defined in the Purchase
Agreement and not otherwise defined herein are being used herein as therein
defined), pursuant to which Purchaser has purchased from Sellers the fuel
distribution business of Northland Fuel and its subsidiaries; and
WHEREAS, pursuant to that certain "Post-Closing Agreement" dated January
30, 2006, the Parties and Barge Lines, LLC, a Delaware limited liability
company, have agreed on the final calculations of net working capital other than
with respect to "Income Tax Payable" liabilities; and
WHEREAS, Purchaser and Sellers have agreed, pursuant to Section 13.9 of the
Purchase Agreement, to amend the Purchase Agreement on the terms provided
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
Section 1. Amendment. The Purchase Agreement is hereby amended as follows:
(a) Section 2.2 is hereby amended by deleting subsection (b)(iii) of such
Section in its entirety and inserting in lieu thereof the following:
"(iii) No later than the close of business on February 8, 2006,
Sellers shall deliver to Purchaser a written report setting forth in
reasonable detail both its calculation of "Income Tax Payable" liabilities
and its proposed adjustments, taking into account such "Income Tax Payable"
liabilities, to its prior calculation of the Final SOG Adjusted NWC or the
Final YFC Adjusted NWC (the "Adjustment Report"). No later than the close
of business on February 16, 2006, Purchaser shall deliver to Sellers a
written response to the Adjustment Report."
(b) Section 2.2 is hereby amended by deleting subsection (b)(iv) of such
Section in its entirety and inserting in lieu thereof the following:
"(iv) In the event that Sellers and Purchaser fail to agree on the
Adjustment Report by the close of business on February 22, 2006, Sellers
and Purchaser agree that the Independent Auditors shall, within the 60-day
period immediately following February 22, 2006, make the final
determination of the Final SOG Adjusted NWC and the Final YFC Adjusted NWC.
Within five (5) days after the beginning of such 60-day period, Purchaser
and Sellers each shall provide the Independent Auditors with their
respective versions of the Final SOG Adjusted NWC and the Final YFC
Adjusted NWC calculations, together with all supporting documentation, and
shall, within three (3) days following any request by the Independent
Auditors, provide the Independent Auditors with any working papers,
calculations, supporting documentation or additional information that the
Independent Auditors may request. The Independent Auditors shall determine
the Final SOG Adjusted NWC and the Final YFC Adjusted NWC. The decision of
the Independent Auditors shall be final and binding on Sellers and
Purchaser. The fees, costs and expenses of the Independent Auditors shall
be paid by the party whose determination of the Final SOG Adjusted NWC and
the Final YFC Adjusted NWC is, in the aggregate, furthest from the
determination of the same by the Independent Auditors; provided that if
such party's determination is within 10% of the Independent Auditor's
determination, such fees, costs and expenses shall be shared equally by
Sellers and Purchaser."
Section 2. Effective Date; No Implied Amendments. Each of the Parties
agrees that the amendment to the Purchase Agreement contained herein shall be
effective upon execution of this Amendment by each Party. Except as specifically
amended by this Amendment, the Purchase Agreement shall remain in full force and
effect in accordance with its respective terms and is hereby ratified and
confirmed. This Amendment shall not be deemed to constitute a waiver of, or
consent to, or a modification or amendment of, any other provision of the
Purchase Agreement except as expressly provided herein or to prejudice any other
right or rights which any Party may now have or may have in the future under or
in connection with the Purchase Agreement. This Amendment shall not constitute
an agreement or obligation of any Party to consent to, waive, modify or amend
any other term, condition, subsection or section of the Purchase Agreement.
Section 3. Benefit of the Agreement. This Amendment shall be binding
upon and inure to the benefit of the Parties and their respective successors and
permitted assigns. This
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Amendment shall not be construed so as to confer any right, remedy or benefit
upon any Person, other than the Parties and their respective successors and
permitted assigns.
Section 4. Headings. The headings used in this Amendment are for
convenience of reference only and shall not be deemed to limit, characterize or
in any way affect the interpretation of any provision of this Amendment.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS CONFLICT OF LAW PRINCIPLES.
Section 6. Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 7. References to Agreement. On and after the date hereof, each
reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof"
or words of like import referring to the Purchase Agreement shall mean the
Purchase Agreement as amended by this Amendment.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Amendment No. 11 to
Purchase Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
FUEL HOLDING COMPANY LLC (f/k/a NORTHLAND
FUEL LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
YF LLC (f/k/a YUKON FUEL COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
NV FUEL LLC (f/k/a NORTHLAND VESSEL LEASING
COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President of Fuel Holding
Company LLC, sole member of NV Fuel LLC
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