EXHIBIT 2.8
AMENDMENT NO. 1
TO ASSET SALES AGREEMENT
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This Amendment No. 1 is made and entered into on July 31, 2007, to be effective
as of January 1, 2007 between Pacific Energy Resources Ltd. ("Pacific") and
Forest Oil Corporation ("Forest").
RECITALS
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WHEREAS, Pacific and Forest are parties to that certain Asset Sales Agreement
dated May 24, 2007, but effective as of January 1, 2007 (the "Agreement");
WHEREAS, among other things, certain inaccuracies and omissions have been
discovered in the Agreement, which Pacific and Forest desire to correct, as
provided herein; and
WHEREAS, Pacific and Forest wish to proceed directly to Closing under the
Agreement;
NOW, THEREFORE, in consideration of the benefits hereunder for each party,
Pacific and Forest hereby amend the Agreement as follows:
1. For purposes of this Amendment No. 1, unless otherwise set forth
herein, capitalized terms or matters of construction deemed or
established in the Agreement shall be applied herein as defined or
established therein.
2. Exhibit A-1 of the Agreement is hereby deleted in its entirety and
replaced with the Corrected Exhibit A-1 attached to this Amendment No.
1 and made a part hereof.
3. Exhibit C of the Agreement is hereby deleted in its entirety and
replaced with the Corrected Exhibit C attached to this Amendment No. 1
and made a part hereof.
4. The transfer to Pacific of Forest's shares in CIPL and the transfer to
Forest of the Stock Consideration by Pacific shall be handled pursuant
to that certain Letter Agreement re: Shares in Xxxx Inlet Pipe Line
Company Purchased from Mobil Pipe Line Company by Forest Corporation
(the "CIPL Side Letter"), which is attached hereto as Annex 1 and
shall be attached to the Agreement as Schedule 3.
5. The text of Section 6 shall be deleted in its entirety and shall be
replaced with the following:
6. CLOSING.
(a) The closing of the transactions contemplated hereby (the
"Closing") shall occur at the Denver office of Seller on August
24, 2007. If the transactions contemplated by the Membership
Interest Purchase Agreement among Buyer, Forest Alaska Holding
LLC, Forest Alaska Operating LLC and Seller have not closed prior
to Closing, for any reason, then Buyer and Seller may each elect
to terminate this Agreement. At the Closing, the following shall
occur:
(i) Buyer shall deliver to the Seller the Preliminary Sum,
either in cash or in the form of a combination of cash and the
Stock Consideration.
(ii) Seller shall execute and deliver such instruments of
assignment, bills of sale and other title transfer documents with
respect to the Assets to Buyer on forms reasonably satisfactory
to Seller and Buyer whereby Seller warrants the title to the
Assets by, through and under Seller, but not otherwise, subject
to the remaining provisions of this Agreement. Seller shall also
deliver to Buyer stock certificates representing the CIPL Shares,
duly endorsed for transfer.
(iii) If Stock Consideration is to be paid to Seller, Buyer
and Seller shall have executed a Share Acquisition and
Registration Rights Agreement.
(iv) Seller shall execute and deliver such other
conveyances, assignments, instruments of transfer or forms
required by governmental agencies or such other instrument
reasonably necessary to accomplish the purposes of this
Agreement.
(b) If the Closing does not occur by August 24, 2007 due to
Buyer's failure to observe all covenants applicable to it or
otherwise to meet its Closing obligations, Seller shall be
entitled to retain the Performance Deposit, together with any
interest earned thereon. This shall be in the nature of
liquidated damages for Buyer's breach, and not a penalty, and
shall be Seller's sole remedy against Buyer. If the Closing does
not occur by August 24, 2007 due to Seller's failure to observe
all covenants applicable to it or otherwise to meet its Closing
obligations, the Performance Deposit, together with any interest
earned thereon, shall be delivered to Buyer. If the Agreement is
terminated by mutual agreement of the parties or if the
Membership Interest Purchase Agreement does not close under
conditions that result in the return of the Deposit under the
Membership Interest Purchase Agreement to Buyer, the Performance
Deposit, together with any interest earned thereon, shall be
delivered to Buyer, unless otherwise agreed by Buyer and Seller.
6. Pacific hereby irrevocably waives any and all rights to postpone
Closing under Section 7 of the Agreement, regardless whether any such
restrictions remain uncured, although Forest agrees to honor all
reasonable requests for assistance from Pacific post-Closing in order
to resolve any such Restrictions. Should any such Restrictions remain
in place nine months following Closing, then the Asset encumbered by
such Restriction shall remain with Forest and Forest shall within 15
days refund to Pacific the amount allocated to such Asset on Exhibit B
to the Agreement.
7. Pacific hereby irrevocably waives any and all title defects affecting
the Assets under Section 8 of the Agreement.
8. Pacific hereby irrevocably waives any and all claims of breach by
Forest of any Representation or Warranty made under Section 10.1 of
the Agreement, except if made under subsections 10.1(d) or the first
sentence of 10.1(c).
9. Forest hereby irrevocably waives any and all claims of breach by
Pacific of any Representation or Warranty made under Sections 10.2
(a), (b) and (f) of the Agreement.
10. Pacific hereby irrevocably acknowledges that it has received all
information it has requested or requires under Section 11 of the
Agreement.
11. To the extent not obtained prior to the Closing, after the Closing,
Forest covenants and agrees to use commercially reasonable best
efforts to obtain releases of all liens and security interests
affecting the Assets. Forest shall indemnify Pacific and Forest Alaska
Operating LLC pursuant to the terms of Section 12.3 of the MIPA from
any Losses (as defined in the MIPA) resulting from the failure to
obtain such releases.
12. Except as expressly provided herein, the Agreement shall remain
unchanged, is hereby ratified and affirmed, and shall continue in full
force and effect. Wherever the terms of this Amendment No. 1 and the
terms of the Agreement conflict, the terms of this Amendment No. 1
shall be deemed to supersede the conflicting terms of the Agreement.
Any violation of an agreement or covenant contained in this Amendment
No. 1 shall be treated in the same manner as a violation of an
agreement or covenant in the Agreement.
13. Any provision of this Amendment No. 1 that is prohibited or otherwise
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provisions in any other
jurisdiction
14. This Amendment No. 1 may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one instrument.
Except as amended herein, the Agreement remains in full force and effect as
originally written.
FOREST OIL CORPORATION PACIFIC ENERGY RESOURCES
LTD.
By: /s/ H. Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
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Name: H. Xxxxx Xxxxx Name: Xxxxxx Xxxxx
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Title: President and Chief Executive Officer Title: President
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Date: July 31, 2007 Date: July 31. 07
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