YUTANA EXECUTION VERSION
Exhibit 2.2
ASSET PURCHASE AGREEMENT
DATED AS OF JULY 9, 2004
BY AND BETWEEN
XXXXXX XXXXX LINES, LLC
AND
XXXXXXX MARINE SERVICES, INC.
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ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS............................................................................................ 1
1.1 General...................................................................................... 1
1.2 Definitions.................................................................................. 2
1.3 Interpretation............................................................................... 10
ARTICLE II SALE AND PURCHASE..................................................................................... 10
2.1 Sale and Purchase............................................................................ 10
2.2 Payment of the Purchase Price; NWC Adjustment................................................ 11
2.3 Assumed Liabilities.......................................................................... 12
2.4 Retained Assets.............................................................................. 12
2.5 Sales and Transfer Taxes..................................................................... 13
2.6 Allocation of Purchase Price................................................................. 13
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER............................................................. 14
3.1 Limited Liability Company Status; Authority of Seller; Enforceability........................ 14
3.2 Accounts Receivable.......................................................................... 14
3.3 Contracts.................................................................................... 15
3.4 Intellectual Property........................................................................ 15
3.5 Title to Assets; Vessels..................................................................... 15
3.6 Real Property................................................................................ 16
3.7 Litigation................................................................................... 16
3.8 Existing Employment Contracts................................................................ 16
3.9 Employee Benefit Matters..................................................................... 16
3.10 Consents..................................................................................... 17
3.11 Permits...................................................................................... 18
3.12 Compliance with Laws......................................................................... 18
3.13 Brokers' Fees................................................................................ 18
3.14 Accounts Payable............................................................................. 18
3.15 Disclaimer of Warranties..................................................................... 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER........................................................... 19
4.1 Corporate Status............................................................................. 19
4.2 Due Authorization............................................................................ 19
4.3 Authority of Purchaser....................................................................... 19
4.4 Enforceability............................................................................... 19
4.5 Consents..................................................................................... 19
4.6 Financing.................................................................................... 19
ASSET PURCHASE AGREEMENT (YBL)
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ARTICLE V PRE-CLOSING COVENANTS.................................................................................. 20
5.1 Purchaser's Access........................................................................... 20
5.2 Notice of Developments....................................................................... 20
5.3 Governmental Filings and Approvals........................................................... 21
5.4 Commercially Reasonable Efforts to Close..................................................... 21
5.5 Vessel Surveys............................................................................... 21
5.6 Conduct of the Business...................................................................... 22
ARTICLE VI CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS....................................................... 23
6.1 Conditions to be Satisfied On or Prior to Closing Date....................................... 23
6.2 Procedure for Failure to Satisfy Conditions.................................................. 24
ARTICLE VII CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS......................................................... 25
7.1 Conditions to be Satisfied On or Prior to Closing Date....................................... 25
7.2 Procedure for Failure to Satisfy Conditions.................................................. 26
ARTICLE VIII CLOSING............................................................................................. 26
8.1 Time and Place............................................................................... 26
8.2 Closing Transactions......................................................................... 26
8.3 Deliveries by Seller to Purchaser............................................................ 26
8.4 Deliveries by Purchaser to Seller............................................................ 27
ARTICLE IX INDEMNIFICATION....................................................................................... 28
9.1 Seller's Indemnification..................................................................... 28
9.2 Purchaser's Indemnification.................................................................. 28
9.3 Limitations.................................................................................. 29
9.4 Indemnification Notice....................................................................... 31
9.5 Indemnification Procedure.................................................................... 32
9.6 Effect of Indemnity Payments................................................................. 33
ARTICLE X OTHER AGREEMENTS....................................................................................... 33
10.1 Further Assurance............................................................................ 33
10.2 Confidentiality.............................................................................. 33
10.3 Nonassignable Contracts...................................................................... 34
10.4 Tax Matters.................................................................................. 35
10.5 Bulk Sale Waiver............................................................................. 35
10.6 Post-Closing Deliveries...................................................................... 35
10.7 Post-Closing Cooperation and Records Retention............................................... 35
10.8 Payment of MCM Note.......................................................................... 36
ARTICLE XI EMPLOYEE MATTERS...................................................................................... 36
11.1 Obligation to Hire Employees................................................................. 36
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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11.2 Health Care.................................................................................. 37
11.3 Past Service and Vacations................................................................... 37
11.4 Participation in Purchaser's Plans........................................................... 37
11.5 Welfare Plans................................................................................ 37
11.6 No Third Party Beneficiaries................................................................. 38
11.7 401(k) Plan.................................................................................. 38
ARTICLE XII TERMINATION.......................................................................................... 39
12.1 Rights to Terminate.......................................................................... 39
12.2 Effects of Termination....................................................................... 39
ARTICLE XIII MISCELLANEOUS PROVISIONS............................................................................ 40
13.1 Public Announcements......................................................................... 40
13.2 Expenses..................................................................................... 40
13.3 Notices...................................................................................... 40
13.4 Assignment; Successors and Permitted Assigns................................................. 42
13.5 No Third Party Beneficiaries................................................................. 42
13.6 Exhibits and Schedules....................................................................... 42
13.7 Headings..................................................................................... 42
13.8 Entire Agreement............................................................................. 42
13.9 Modifications and Waivers.................................................................... 43
13.10 Counterparts................................................................................. 43
13.11 Severability................................................................................. 43
13.12 GOVERNING LAW................................................................................ 43
13.13 JURISDICTION; CONSENT TO SERVICE............................................................. 43
13.14 Attorneys' Fees.............................................................................. 43
13.15 Effectiveness of this Agreement.............................................................. 44
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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EXHIBITS
Exhibit A Form of Assumption Agreement
Exhibit B Form of Xxxx of Sale and Assignment
SCHEDULES
Schedule 1.2(a) Purchaser's Knowledge
Schedule 1.2(b) Purchased Assets
Schedule 1.2(c) Seller's Knowledge
Schedule 2.2 Calculation of Adjusted NWC
Schedule 2.4 Retained Assets
Schedule 3.3 Material Contracts
Schedule 3.4 Intellectual Property
Schedule 3.5 Title to Assets
Schedule 3.8 Employment Contracts
Schedule 3.9 Employee Benefit Matters
Schedule 3.10 Seller Consents
Schedule 3.11 Permits
Schedule 6.1(c) Required Consents
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into as of July 9, 2004, but not
effective until the Effective Date (as defined below), by and between XXXXXXX
MARINE SERVICES, INC., a Delaware corporation ("Purchaser"), and XXXXXX XXXXX
LINES, LLC, a Delaware limited liability company ("Seller").
RECITALS
A. Yukon Fuel Company, an Alaska corporation (together with any successor
thereto, "YFC"), is engaged in the ownership and operation of a marine and
land-based fuel distribution business in the State of Alaska (the "YFC
Business").
B. Concurrently herewith, Purchaser is entering into a purchase agreement
with YFC, Northland Fuel LLC, a Delaware limited liability company, of which YFC
is a wholly-owned, indirect subsidiary ("Northland Fuel"), and Northland Vessel
Leasing Company LLC, a Delaware limited liability company and a wholly-owned
subsidiary of Northland Fuel ("NVLC") (as it may be amended, modified or
supplemented, the "YFC Purchase Agreement"), pursuant to which, among other
things, Purchaser has agreed to purchase from YFC, and YFC has agreed to sell to
Purchaser, the YFC Business and substantially all of the assets used in the YFC
Business, upon the terms and subject to the conditions set forth therein.
C. Seller owns a vessel and charters from NVLC and other vessel owners a
fleet of other vessels that it mans and time charters to YFC (the "Business").
D. Purchaser desires to purchase from Seller, and Seller desires to sell
to Purchaser, the assets of Seller used in the Business, upon the terms and
subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing Recitals and the
representations, warranties, agreements and covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 General.
Each term defined in the first paragraph of this Agreement and in the
Recitals shall have the meaning set forth above whenever used herein, unless
otherwise expressly provided or unless the context clearly requires otherwise.
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
1.2 Definitions.
As used herein, the following terms shall have the meanings ascribed to
them in this Section 1.2:
Adjusted NWC. The sum of (a) the assets identified on Schedule 2.2
minus (b) the liabilities identified on Schedule 2.2, in each case, as
determined in a manner consistent with past practice and the illustrative
example of Adjusted NWC calculation as of May 31, 2004 that is set forth on
Schedule 2.2. All receivables and payables among YBL, YFC, NVLC and SOG shall be
cancelled as of the Closing.
Adjustment Report. As defined in Section 2.2(b)(iii).
Affiliate. With respect to any Person, a Person that, directly or
indirectly, is controlled by, controls or is under common control with such
Person. "Control" shall mean (a) the ownership of 50% or more of the voting
securities or other voting interests of any Person, or (b) the possession,
directly or indirectly, of the power to direct or cause the direction of
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
Agreement. This Asset Purchase Agreement, together with all Exhibits
and Schedules referred to herein, as amended, modified or supplemented from time
to time in accordance with the terms hereof.
Alaska AG. The Attorney General of the State of Alaska.
Alaska AG Investigation. The investigation of the Transactions by the
Alaska AG, AGO Case No. ###-##-####.
Assumed Liabilities. As defined in Section 2.3(a).
Assumption Agreement. The Assumption Agreement to be entered into on
the Closing Date between Purchaser and Seller, in the form of Exhibit A.
Authority. Any governmental, regulatory or administrative body, agency
or authority, any court of judicial authority, any arbitrator or any public,
private or industry regulatory authority, whether foreign, federal, state or
local.
AVEC Litigation. Alaska Village Electric Cooperative, Inc., et. al vs.
Xxxxxxx Marine Services, Inc., et. al, Case No. 2N0-03-174 CI, currently pending
in the Superior Court for the State of Alaska, Second Judicial District at Nome,
as subsequently amended, modified or supplemented, and any appeal therefrom and
future proceedings related thereto subsequent to any appeal.
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Xxxx of Sale. The Xxxx of Sale and Assignment to be entered into on
the Closing Date between Seller and Purchaser, in the form of Exhibit B.
Business. As defined in the Recitals hereto.
Business Day. Any day other than a Saturday, Sunday or a day on which
banks in Anchorage, Alaska or Oakland, California are not open for business.
CERCLA. Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq.
Closing. The actual sale, transfer, conveyance, assignment and
delivery of the Purchased Assets to Purchaser in exchange for the consideration
payable to Seller on the Closing Date pursuant to this Agreement. The Closing
shall be deemed to occur at 12:01 a.m. on the Closing Date.
Closing Date. The day the "Closing" described in the YFC Purchase
Agreement shall have occurred.
COBRA. As defined in Section 11.2.
Code. Internal Revenue Code of 1986.
Confidential Information. As defined in Section 10.2(a).
Consent Decree. The consent decree entered into on or about the date
hereof among the Alaska AG on behalf of the State of Alaska, Purchaser, Xxxxxxx
Maritime Corporation, Northland Fuel, NVLC, YFC and Seller as a result of the
Alaska AG Investigation, as subsequently amended, modified, restated and
supplemented by the parties thereto and by the trial court with which the
consent decree is filed.
Consent Decree Order. The order of the trial court with which the
Consent Decree is filed approving the Consent Decree.
Contracts. Any or all of the following, whether written or oral: (a)
contracts, leases, subleases, arrangements, commitments and other agreements,
including installation and maintenance agreements, equipment leases, computer
software licenses, hardware lease or rental agreements, and contract claims; (b)
all agreements, contracts and instruments relating to the borrowing of money,
the capital lease or purchase on an installment basis of any property or asset,
or the guaranty of any of the foregoing; (c) all charters, leases, contracts and
other arrangements with respect to vessels, and all contracts, agreements,
commitments, purchase orders or other understandings with respect thereto; (d)
all customer, vendor, franchise, license, agency, sales representative,
distributor, broker and similar agreements; (e) all contracts, agreements and
other understandings or arrangements between a Person and any stockholder,
ASSET PURCHASE AGREEMENT (YBL)
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member, partner, officer, director, manager, Affiliate or agent thereof; (f) all
contracts which purport to restrict business activities or use of information,
including any covenants not to compete or contracts imposing exclusive dealing
obligations; (g) all management, operating, service, membership, joint venture,
partnership and teaming agreements; (h) all contracts and agreements pursuant to
which there is an agreement to indemnify or hold any Person harmless or to pay
liquidated damages of any kind; (i) all collective bargaining agreements; and
(j) all contracts and agreements providing for the acquisition or disposition of
an asset.
Damages. Losses, damages and expenses, including reasonable attorneys'
fees and disbursements and all costs of litigation (including appeals, remands
and retrials) and any judgments and orders entered in any proceedings.
Date of the Notice of Claim. As defined in Section 9.5(c).
Development. As defined in Section 5.2.
Effective Date. As defined in Section 13.15.
Employee Plans. As defined in Section 3.9(a).
Employees. As defined in Section 11.1(a).
Environmental Law(s). Each applicable Law pertaining to (a) the
protection of human health, the environment, natural resources and wildlife,
including surface water, groundwater, rivers and other bodies of water, (b) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, recycling, storage, disposal, Release, threatened Release, abatement,
removal, remediation or handling of, or exposure to, any Hazardous Substance, or
(c) pollution, including CERCLA, RCRA, the Clean Air Act, 42 U.S.C. Section 7401
et seq., and the Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et
seq. (including its Oil Pollution Prevention regulations, 40 CFR Part 112), the
Oil Pollution Act, 33 U.S.C. Section 2701 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq., the Occupational
Safety and Health Act, 29 U.S.C. Section 651 et seq., the State of Alaska's Oil
and Hazardous Substances Pollution Control regulations, 18 AAC ch. 75, and
authorizing laws.
ERISA. Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any corporation, partnership or trade or business
that is a member of a group that includes Seller and is treated as a single
employer within the meaning of Code Section 414.
Final Adjusted NWC. As defined in Section 2.2(b)(ii).
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EXECUTION VERSION
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Final Purchase Price. The sum of (a) the MCM Note Amount plus (b) the
Final Adjusted NWC.
Final Purchase Price Allocation. As defined in Section 2.6(b).
Hazardous Substance. Any substance which is (a) defined as a hazardous
substance, hazardous material, hazardous waste, pollutant or contaminant under
any Environmental Law, (b) a petroleum hydrocarbon, including crude oil or any
fraction thereof, (c) hazardous, toxic, corrosive, flammable, explosive,
infectious, radioactive or carcinogenic, or (d) regulated pursuant to any
Environmental Law.
Hourly Employees. As defined in Section 11.1(a).
Indemnified Party. As defined in Section 9.4.
Indemnifying Party. As defined in Section 9.4.
Independent Auditors. KPMG or, if KPMG is unable or unwilling to be
engaged for the purposes contemplated herein, such other accounting firm
mutually acceptable to Purchaser and Seller and, if Purchaser and Seller are
unable to agree on such a firm within 35 days following Purchaser's receipt of
the Adjustment Report (or if Purchaser and Seller are unable to agree on such a
firm within 50 days following Seller's receipt of Purchaser's proposed Purchase
Price Allocation), an accounting firm of nationally recognized standing, chosen
by lot.
Intellectual Property. Trademarks, service marks, trade names, logos,
slogans, patents and copyrights and their registrations or applications;
inventions and all improvements thereto; licenses with respect to any of the
foregoing; trade secrets and confidential business information, designs,
drawings, specifications, technical data and documentation, pricing and cost
information, business marketing plans and proposals; all computer software
(including data and related documentation); all other proprietary rights; all
copies and tangible embodiments of any and all of the foregoing; customer and
vendor lists and the goodwill associated with any of the foregoing.
IRS. Internal Revenue Service.
Law. Any law, statute, regulation, rule, ordinance, order, decree or
other binding action or requirement of an Authority.
Lien. Any lien (statutory or otherwise), mortgage, pledge, maritime
lien, hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement, restriction, equity, claim or preferential
arrangement of any kind or nature whatsoever (including the interest of a vendor
or lessor under any conditional sale, capitalized lease or other title retention
agreement).
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Material Adverse Change or Material Adverse Effect. Any change in, or
effect on, the Business as currently conducted by Seller, or any loss or damage
to the Purchased Assets, in any case, that is or is reasonably likely to be
materially adverse to the results of operations or financial condition of the
Business, the SOG Business or the YFC Business, after giving effect to the
transactions contemplated by this Agreement; provided that none of the following
shall be deemed to constitute, and none of the following shall be taken into
account in determining whether there has been, a Material Adverse Effect or
Material Adverse Change: (a) any adverse change, event, development or effect
arising from or relating to (1) general business or economic conditions,
including such conditions related to the Business or the YFC Business, (2)
national or international political or social conditions, including the
engagement by the United States in hostilities, whether or not pursuant to the
declaration of a national emergency or war, or the occurrence of any military or
terrorist attack upon the United States or any of its territories, possessions
or diplomatic or consular offices or upon any military installation, equipment
or personnel of the United States (other than any such condition or occurrence
that physically affects any material facility or equipment owned or operated by
Seller) or (3) financial, banking or securities markets (including any
disruption thereof and any decline in the price of any security or any market
index); or (b) any existing event, occurrence or circumstance of which any
officer of Purchaser set forth on Schedule 1.2(a) has actual knowledge as of the
date of this Agreement.
Material Contracts. Any or all of the following: those Contracts to
which Seller is a party or by which Seller is otherwise bound (other than (i)
Contracts which constitute Retained Assets or (ii) the NVLC Vessel Charters) (a)
that, individually, involve the payment by (or to) Seller of more than $50,000
in the aggregate, (b) that include a non-compete or non-solicitation covenant by
Seller or an agreement by Seller to pay liquidated damages, (c) that are vessel
charters, (d) that are for indebtedness for money borrowed, (e) pursuant to
which Seller has guaranteed the obligations of another Person, (f) that have a
remaining term of at least one year, (g) that are collective bargaining
agreements and all employment and compensation agreements (other than for the
Non-Hired Employees), (h) that are licenses of Intellectual Property or (i) that
are with an Affiliate of Seller.
MCM Note. The promissory note dated May 10, 2000 by Marine Capital
Management, LLC, which holds 100% of the membership interest of Seller, to the
order of YFC in the original principal amount of $50,000.
MCM Note Amount. The aggregate amount of principal outstanding and
accrued but unpaid interest, as of the Closing Date, under the MCM Note.
New Employees. Any Employees who are employed by Purchaser on or after
the Closing Date.
Nonassignable Contracts. As defined in Section 10.3(a).
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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Non-Hired Non-Union Employees. As defined in Section 11.1(a).
Non-Hired Union Employees. As defined in Section 11.1(a).
Non-Union Employees. As defined in Section 11.1(a).
Northland Fuel. As defined in the Recitals hereto.
Northland Holdings. Northland Holdings, Inc., a Delaware corporation.
Notice of Claim. As defined in Section 9.4.
NVLC. As defined in the Recitals hereto.
NVLC Vessel Charters. Collectively, the bareboat charters of the NVLC
Vessels between NVLC and Seller and the time charters of the NVLC Vessels
between Seller and YFC or SOG, as in effect on the date hereof or as of the
Closing Date.
NVLC Vessels. The vessels listed on Schedule 3.9(b) of the YFC
Purchase Agreement under the heading "NVLC Vessels", together with each vessel's
engines, machinery, masts, spars, boats, anchors, cables, chains, rigging,
tackle, fittings, tools, pumps, pumping equipment, fuels and lubes, gear,
apparel, furniture, furnishings, logs, manuals, plans, parts lists and other
documents, outfit, appliances, equipment, spares or replacement parts, and all
other appurtenances thereunto appertaining or belonging wherever located and
whether aboard or on shore.
NWC. Net working capital.
Ordinary Course of Business. The ordinary course of business of
Seller, in accordance with past custom and practice.
Past Service. As defined in Section 11.3.
Person. Any natural person, corporation, limited liability company,
partnership, firm, joint venture, joint-stock company, trust, association,
Authority, unincorporated entity or organization of any kind.
Preliminary Adjusted NWC. As defined in Section 2.2(b)(i).
Preliminary Purchase Price. The sum of (a) the MCM Note Amount plus
(b) the Preliminary Adjusted NWC.
Purchase Price Allocation. As defined in Section 2.6(a).
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Purchased Assets. All of the assets, rights and properties owned by
Seller, or in which Seller has an interest, on the Closing Date (except for the
Retained Assets), including the following:
(a) the accounts, notes, contract or other receivables of Seller
reflected in the Final Adjusted NWC;
(b) the deposits and advances, prepaid expenses and other prepaid
items of Seller reflected in the Final Adjusted NWC;
(c) Seller's right, title and interest in, to and under all Contracts
to which it is a party or by which it is bound, including the Material
Contracts; and
(d) the assets, properties, rights and interests of Seller identified
on Schedule 1.2(b).
Purchaser. As defined in the introductory paragraph hereof.
Purchaser Plans. As defined in Section 11.4.
Purchaser Warranty Claim. As defined in Section 9.1(a).
Purchaser's Salaried 401(k) Plan. As defined in Section 11.7.
Purchaser's Threshold. As defined in Section 9.3(b).
Purchaser's Union 401(k) Plan. As defined in Section 11.4.
RCRA. Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq.
Reconciliation. As defined in Section 2.2(b)(ii).
Release. Any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, migrating, dumping or disposing into
the environment (including the abandonment or discarding of barrels, containers
and other receptacles containing any Hazardous Substance).
Retained Assets. The following assets, rights and properties of
Seller, but only to the extent the same are not fully reflected in the
calculation of the Final Adjusted NWC as of the Settlement Date:
(a) the cash and cash equivalents of Seller, including marketable
securities, and bank accounts and deposits;
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(b) all insurance policies of Seller and all rights of Seller of every
nature and description under or arising out of such insurance policies,
including any refunds of premiums (other than any such refunds that are included
as assets in the Final Adjusted NWC);
(c) claims for refunds of taxes paid by or on behalf of Seller;
(d) all past, present and future claims, causes of action, choses in
action, rights of recovery and rights of set-off of any kind, except to the
extent, but only to the extent, such claims or causes of action (i) offset the
Assumed Liabilities or (ii) are not otherwise included in, or necessary for the
use of, the Purchased Assets;
(e) the assets, properties, rights and interests of Seller identified
in Schedule 2.4;
(f) all rights of Seller under this Agreement and the other
Transaction Documents to which Seller is a party;
(g) Seller's corporate seal, minute books and stock record books, the
general ledgers and books of original entry, all income tax returns and other
income tax records, reports, data, files and documents; and
(h) the NVLC Vessel Charters.
Retained Liabilities. As defined in Section 2.3(b).
Schedules. Collectively, the Schedules to this Agreement.
Seller. As defined in the introductory paragraph hereof.
Seller Warranty Claim. As defined in Section 9.2(a).
Seller's 401(k) Plan. As defined in Section 11.7.
Seller's Knowledge. The actual knowledge of either of the persons
listed on Schedule 1.2(c).
Seller's Threshold. As defined in Section 9.3(c).
Settlement Date. As defined in Section 2.2(b)(v).
SOG Business. The business of Service Oil & Gas, Inc., an Alaska
corporation.
Transaction Documents. This Agreement, the Xxxx of Sale, the USCG
Bills of Sale, the Assumption Agreement and any and all other agreements entered
into at the Closing between Purchaser and Seller, as any such agreement or
instrument may be amended, modified or supplemented from time to time.
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Transactions. The transactions contemplated by this Agreement and the
YFC Purchase Agreement.
USCG Xxxx of Sale. A United States Coast Guard Form CG 1340 Xxxx of
Sale to be executed on the Closing Date by Seller in favor of Purchaser for each
YBL Vessel.
Welfare Plan. A "welfare plan" as defined in ERISA Section 3(1).
YBL Vessels. The vessels owned by Seller and included in the Purchased
Assets.
YFC. As defined in the Recitals hereto.
YFC Business. As defined in the Recitals hereto.
YFC Purchase Agreement. As defined in the Recitals hereto.
1.3 Interpretation.
Unless otherwise expressly provided or unless the context requires
otherwise, (a) all references in this Agreement to Articles, Sections, Schedules
and Exhibits shall mean and refer to Articles, Sections, Schedules and Exhibits
of this Agreement; (b) all references to statutes and related regulations shall
include all amendments of the same and any successor or replacement statutes and
regulations; (c) words using the singular or plural number also shall include
the plural and singular number, respectively; (d) references to "hereof",
"herein", "hereby" and similar terms shall refer to this entire Agreement
(including the Schedules and Exhibits hereto); (e) references to any Person
shall be deemed to mean and include the successors and permitted assigns of such
Person (or, in the case of an Authority, Persons succeeding to the relevant
functions of such Person); and (f) the term "including" (and correlative terms)
shall be deemed to mean "including, without limitation."
ARTICLE II
SALE AND PURCHASE
2.1 Sale and Purchase.
Upon the terms and subject to the conditions hereof, and in reliance upon
the representations, warranties, covenants and agreements made herein by Seller
and Purchaser, on the Closing Date, Purchaser shall purchase and accept from
Seller, and Seller shall sell, transfer, convey, assign and deliver to
Purchaser, the Purchased Assets.
ASSET PURCHASE AGREEMENT (YBL)
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2.2 Payment of the Purchase Price; NWC Adjustment.
(a) On the Closing Date, Purchaser shall pay the Preliminary Purchase
Price in exchange for the Purchased Assets in cash to Seller by wire transfer of
immediately available funds to an account designated by Seller.
(b) (i) At least one (1) day prior to the Closing Date, Seller shall
prepare and deliver to Purchaser a calculation of Seller's Adjusted NWC (the
"Preliminary Adjusted NWC") as of the Closing. Seller and Purchaser acknowledge
and agree that for convenience of reference, the Preliminary Adjusted NWC may be
prepared and delivered, in consolidating form, with the "Preliminary YFC
Adjusted NWC" and "Preliminary SOG Adjusted NWC" under the YFC Purchase
Agreement.
(ii) Purchaser shall prepare and deliver to Seller within ninety
(90) days after the Closing Date (A) a calculation of Seller's Adjusted
NWC (the "Final Adjusted NWC") as of the Closing, and (B) a reconciliation
of the Preliminary Adjusted NWC calculation to the Final Adjusted NWC
calculation, together with all supporting documentation and computations
(collectively, the "Reconciliation"). Purchaser shall promptly make
available to Seller all personnel, books, records and documents reasonably
requested by Seller for purposes of its review of Purchaser's calculation
of the Final Adjusted NWC.
(iii) Within thirty (30) days after the Final Adjusted NWC and the
Reconciliation are delivered to Seller pursuant to Section 2.2(b)(ii),
Seller shall deliver to Purchaser either (A) a written acknowledgment
accepting the Final Adjusted NWC or (B) a written report setting forth in
reasonable detail any proposed adjustments to the Final Adjusted NWC (the
"Adjustment Report"). If Seller fails to deliver such acknowledgment or
report to Purchaser within such 30-day period, Seller shall be deemed to
have accepted and agreed to the Final Adjusted NWC as delivered pursuant
to Section 2.2(b)(ii).
(iv) In the event that Seller and Purchaser fail to agree on all of
Seller's proposed adjustments set forth in the Adjustment Report within
thirty (30) days after Purchaser receives the Adjustment Report, Seller
and Purchaser agree that the Independent Auditors shall, within the 60-day
period immediately following such 30-day period, make the final
determination of the Final Adjusted NWC. Within five (5) days after the
beginning of such 60-day period, Purchaser and Seller each shall provide
the Independent Auditors with their respective versions of the Final
Adjusted NWC calculation, 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 Adjusted NWC. The decision of the Independent Auditors shall be
ASSET PURCHASE AGREEMENT (YBL)
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final and binding on Seller and Purchaser. The fees, costs and expenses of
the Independent Auditors shall be paid by the party whose determination of
the Final Adjusted NWC is 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 Seller and Purchaser.
(v) The date on which the Final Adjusted NWC is finally determined
pursuant to this Section 2.2(b) shall hereinafter be referred to as the
"Settlement Date".
(vi) No later than ten (10) days after the Settlement Date, (A)
Purchaser shall pay to Seller an amount equal to the excess, if any, of
the Final Adjusted NWC over the Preliminary Adjusted NWC or (B) Seller
shall pay to Purchaser an amount equal to the excess, if any, of the
Preliminary Adjusted NWC over the Final Adjusted NWC.
(vii) Any payment required pursuant to Section 2.2(b)(vi) shall be
by wire transfer of immediately available federal funds for credit to the
recipient at a bank account designated by such recipient in writing.
(c) To the extent the same are not reflected in the Adjusted NWC
calculation, items such as property taxes, bond installments, rentals and other
similar ongoing items of expense shall be prorated as of the Closing.
2.3 Assumed Liabilities.
(a) Purchaser shall, at the Closing by execution and delivery of the
Assumption Agreement, assume, agree to perform, and, when due, pay and
discharge, the following obligations and liabilities of Seller (the "Assumed
Liabilities"):
(i) the obligations and liabilities of Seller under the Contracts
included in the Purchased Assets (but (A) only to the extent such
obligations and liabilities are not attributable to any breach or default,
or permit violation, by Seller or any employee, agent or contractor of
Seller and (B) not including any such obligations and liabilities to the
extent Seller has a Retained Asset that may be properly applied in
reduction thereof); and
(ii) Seller's accounts payable or other liabilities or expenses
accrued in the Ordinary Course of Business, but only to the extent
included in the Final Adjusted NWC.
(b) Purchaser shall not assume or pay any, and Seller shall continue
to be responsible for all, liabilities of Seller not expressly assumed by
Purchaser pursuant to Section 2.3(a) (the "Retained Liabilities").
2.4 Retained Assets.
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Seller shall not sell, transfer, convey, assign or deliver to Purchaser,
and Purchaser shall not purchase from Seller, any Retained Assets.
2.5 Sales and Transfer Taxes.
Purchaser shall pay the cost of all transfer, sales, purchase, use, value
added, excise or similar taxes imposed by any Authority which arises out of the
transfer by Seller to Purchaser of any of the Purchased Assets. Seller will
cooperate in good faith and take all appropriate actions reasonably requested by
Purchaser to minimize any transfer or similar taxes that may apply to the
Transactions.
2.6 Allocation of Purchase Price.
(a) As soon as practicable following the Closing Date, but in no
event later than the 120th day following the Closing Date, Purchaser shall
prepare and deliver to Seller, at Purchaser's expense, a schedule setting forth
the allocation of the Final Purchase Price (and all Assumed Liabilities) among
the Purchased Assets as of the Closing Date (the "Purchase Price Allocation").
(b) In the event Seller does not raise any objection to Purchaser's
schedule within thirty (30) days of Seller's receipt thereof, the schedule shall
be binding and shall become the final Purchase Price Allocation (the "Final
Purchase Price Allocation"). In the event Seller has any objections to
Purchaser's schedule, and Seller raises such concerns in writing to Purchaser
within thirty (30) days of Seller's receipt, Purchaser and Seller shall
cooperate in good faith to resolve their differences and mutually agree upon a
Final Purchase Price Allocation. In the event that Purchaser and Seller are
unable to agree upon the Final Purchase Price Allocation within forty-five (45)
days following the receipt of the schedule by Seller, the Independent Auditors
shall determine the Final Purchase Price Allocation. Within fifteen (15) days of
engaging the Independent Auditors for such purpose, Purchaser and Seller shall
each provide the Independent Auditors with their respective determinations (and
any relevant supporting material) of the Purchase Price Allocation and the
Independent Auditors shall select either Purchaser's or Seller's determination
as the Final Purchase Price Allocation. Such decision shall be based on which
schedule better satisfies the requirements of Treasury Regulation section
1.1060-1(c). The decision of the Independent Auditors of the Final Purchase
Price Allocation shall be final and binding on Purchaser and Seller. The fees,
costs and expenses of the Independent Auditors for their services rendered
pursuant to this Section 2.6 shall be paid by the non-prevailing party.
(c) The parties hereto shall file all federal, state and local tax
returns consistent with the Final Purchase Price Allocation. Each party agrees
to complete IRS Form 8594 consistently with such allocation and to cooperate
with the other party in the preparation of Form 8594 and to furnish the other
party with a copy of such form prepared in draft form, within a reasonable
period before the filing due date of such form. Neither party hereto shall have
any liability to the other arising out of any challenge to such tax allocation
by any federal, state or
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local taxing Authority so long as the party does not take a position
inconsistent with the Final Purchase Price Allocation in any tax filing or
administrative or judicial proceeding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into and perform its obligations
under this Agreement, and in consideration of the covenants of Purchaser
contained herein, Seller represents and warrants to Purchaser as follows:
3.1 Limited Liability Company Status; Authority of Seller; Enforceability.
(a) Seller is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified and in good standing in each other jurisdiction where it is
required to be qualified. Seller has the limited liability company power and
authority necessary to own, lease, operate or otherwise hold its properties and
assets and to carry on its business as presently conducted.
(b) Seller has the limited liability company power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by Seller of this Agreement, and the performance by
Seller of its obligations hereunder, have been duly and validly authorized and
approved by all necessary limited liability company action on the part of
Seller. This Agreement is binding upon, and enforceable against, Seller in
accordance with its terms, subject to bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally and by general principles of
equity (whether in a proceeding at law or in equity).
(c) Neither the execution or delivery of this Agreement by Seller
nor the performance by Seller of its obligations under this Agreement will
(assuming the receipt of all consents expressly described herein) conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any Contract to which Seller is a party or is bound, the
certificate of formation or Limited Liability Company Agreement of Seller or any
applicable Law to which Seller is a party or by which Seller is bound.
3.2 Accounts Receivable.
The accounts receivable and the notes receivable of the Business: (a) were
acquired by Seller in the Ordinary Course of Business and represent fully
completed bona fide transactions that require no further act on the part of
Seller to make such accounts receivable payable by the account debtors; (b)
represent valid obligations owing to Seller by account debtors, which are
enforceable in accordance with their respective terms (subject to any reserves
for doubtful accounts reflected in the books and records of the Business, which
reserves have been calculated
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in the Ordinary Course of Business); and (c) are owned by Seller free and clear
of all Liens (other than Liens to be released at or before the Closing).
3.3 Contracts.
Schedule 3.3 contains a true and complete list of all Material Contracts
and true and complete copies of written Material Contracts (other than charters
between Seller and either YFC or NVLC, which shall be terminated at the Closing)
have been made available to Purchaser. Seller is not a party to (or otherwise
bound by) any Contract not entered into in the Ordinary Course of Business. All
Material Contracts are valid and binding upon Seller and, to Seller's Knowledge,
the other parties thereto, except as limited by bankruptcy and insolvency laws
and by other laws affecting the rights of creditors generally. There is no
default or event that with notice or lapse of time, or both, would (a)
constitute a default by Seller or, to Seller's Knowledge, any other party to any
of the Material Contracts or (b) impose a Lien on any YBL Vessel. Seller has not
received notice that any party to any of the Material Contracts intends to
cancel or terminate any of such agreements or to exercise or not exercise any
options under any of such agreements.
3.4 Intellectual Property.
Schedule 3.4 contains a true and complete list of all material trademarks,
service marks, trade names, logos, slogans, patents and copyrights and their
registrations or applications, if any, owned by Seller or in which Seller has
any rights or licenses. Seller has not alleged any infringement by any Person on
any Intellectual Property. To Seller's Knowledge, Seller is not infringing, or
has been alleged to be infringing, on any Intellectual Property owned by any
other Person. Seller has no obligation to pay royalties or other burdens to any
Person for the use of any of the items listed on Schedule 3.4.
3.5 Title to Assets; Vessels.
(a) Except as otherwise disclosed on Schedule 3.5, Seller has good
title to, or with respect to leased property included in the Purchased Assets,
an enforceable right under a Contract to use, all of the Purchased Assets, free
and clear of all Liens (other than Liens to be released at or before the
Closing).
(b) Each YBL Vessel is designed to meet in all material respects and,
on the Closing Date, shall meet in all material respects, the requirements under
all laws, treaties and conventions applicable to such vessel in its current use,
and all rules and regulations promulgated under such laws, treaties and
conventions. YBL maintains for the YBL Vessels such U.S. Coast Guard
Certificates of Inspection and other certificates as may be required under
applicable Federal, state and local laws and regulations for the YBL Vessels'
current use in the Business, and all such certificates are valid and in full
force and effect with no recommendations or
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outstanding requirements and, to Seller's Knowledge, kept in the respective
locations required by law.
(c) Seller is a "citizen of the United States" within the meaning of
Section 2 of the Shipping Xxx, 0000, as amended, and 46 U.S.C. Section 12102.
Each YBL Vessel is properly documented under the laws of the United States. Each
YBL Vessel and Seller is qualified to engage in the coastwise trade of the
United States.
3.6 Real Property.
Seller has no ownership, leasehold or subleasehold interest in any real
property.
3.7 Litigation.
There are no suits, actions, arbitrations, and legal, administrative and
other proceedings and governmental investigations pending or, to Seller's
Knowledge, threatened against or affecting Seller or the Business (other than
the AVEC Litigation and the Alaska AG Investigation). Seller is not presently
engaged in any legal action to recover moneys due to it or damages sustained by
it.
3.8 Existing Employment Contracts.
Seller has no employment contracts, consulting agreements, collective
bargaining agreements or similar arrangements except those identified on
Schedule 3.8. All such contracts and arrangements are in full force and effect,
and to Seller's Knowledge, no Person is in default under any such contract or
arrangement. There is no pending or, to Seller's Knowledge, threatened labor
dispute, strike or work stoppage affecting its Business. There is no organized
labor strike, dispute, slowdown or stoppage, or collective bargaining or unfair
labor practice claim pending or, to Seller's Knowledge, threatened against or
affecting the Business that would constitute a Material Adverse Effect.
3.9 Employee Benefit Matters.
(a) Schedule 3.9 lists all pension, profit sharing, incentive,
bonus, deferred compensation, retirement, stock option, stock purchase,
severance, medical and hospitalization, insurance, vacation, salary
continuation, sick pay, welfare, fringe benefit, and other employee benefit
plans, contracts, programs, policies and arrangements which Seller maintains or
under which Seller has any obligations with respect to any employee or former
employee of its Business (collectively, "Employee Plans").
(b) All contributions, premium payments and other payments due as of
the Closing Date from Seller to or under its Employee Plans have been paid.
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(c) No Employee Plan is (i) an "employee pension benefit plan" (as
defined in ERISA Section 3(2)) that is subject to Title IV of ERISA or (ii) a
"multiemployer plan" (as defined in ERISA Section 3(37)). There has been no
termination of any "employee pension benefit plan" (as defined in ERISA Section
3(2)) under which Seller or any ERISA Affiliate has or had any obligation to
make a contribution, and no proceedings to terminate any such plan have been
initiated. Neither Seller nor any ERISA Affiliate has incurred or has any
accrued or contingent withdrawal liability with respect to any "multiemployer
plan" (as defined in ERISA Section 3(37)) that has not been fully paid.
(d) Each Employee Plan has been maintained in accordance with its
governing documents and all applicable provisions of ERISA, the Code and other
applicable Laws. All required disclosures to employees and all required filings
and other reports relating to each Employee Plan have been timely made.
(e) There is no litigation, disputed claim (other than routine
claims for benefits), governmental proceedings, audit or inquiry pending or, to
Seller's Knowledge, threatened, with respect to any Employee Plan. There have
been no "prohibited transactions" (as defined in ERISA Section 406 or Code
Section 4975) with respect to any Employee Plan for which no individual or class
exemption exists.
(f) For each Employee Plan, Seller has made available to Purchaser
copies of the following: the current plan documents, any amendments thereto, and
the related summary plan description, if any; each trust or custodial agreement
and each deposit administration, group annuity, insurance, or other funding
agreement, if any; the latest financial reports and actuarial reports; the most
recent determination letter issued by the IRS, if any; and the most recent
Annual Report Form 5500, if any.
(g) Each Employee Plan which is a Welfare Plan has complied with the
applicable requirements of Title I of ERISA, including Parts 6 and 7 of Subtitle
B, with Code Section 4980B and with Code Sections 9801-9833.
(h) Each Employee Plan which is intended to qualify as a
tax-qualified retirement plan under Code Section 401(a) has received, or has
timely applied for, a favorable determination letter from the IRS that applies
to the requirements of the group of four statutes commonly referred to as
"GUST". To Seller's Knowledge, nothing has occurred since the date of that
letter (or the application for such a letter) which would prevent any such
Employee Plan from remaining so qualified.
3.10 Consents.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any Authority or any other Person is required to be
obtained or made by Seller in connection with the execution and delivery of this
Agreement or the performance by Seller of its obligations hereunder.
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EXECUTION VERSION
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3.11 Permits.
Except as disclosed on Schedule 3.11, Seller has no qualifications,
registrations, filings, privileges, franchises, immunities, licenses, permits,
authorizations or approvals of Authorities which are used or required in order
for Seller to own and operate the Business, the YBL Vessels or the other vessels
operated by YBL, other than any thereof that Seller's failure to possess would
not have a Material Adverse Effect.
3.12 Compliance with Laws.
Seller has complied in all material respects with all, and is not in
violation of any, applicable Laws (including Environmental Laws) affecting its
properties or Business, other than (a) Laws applicable to the Employee Plans,
which are addressed separately in Section 3.9 and (b) violations which would not
singly, or in the aggregate, constitute a Material Adverse Effect. There is
currently pending no notification to Seller that it is in violation in any
material respect of any Law (including any Environmental Law).
3.13 Brokers' Fees.
Seller has not dealt with any broker, finder or consultant in connection
with the transactions contemplated by this Agreement, and no Person acting on
behalf of or at the direction of Seller is entitled to any commission or
finder's fee in connection with the sale of the Purchased Assets to Purchaser.
3.14 Accounts Payable.
All accounts and notes payable and accrued expenses of the Business have
been incurred or have arisen only in the Ordinary Course of Business. Except
disputes that do not exceed $10,000 in the aggregate, there is no dispute
between the Business and any payee with respect to any such payable.
3.15 Disclaimer of Warranties.
EXCEPT WITH RESPECT TO THE WARRANTIES AND REPRESENTATIONS SPECIFICALLY SET
FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER
OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR QUALITY
AS TO THE BUSINESS, THE PURCHASED ASSETS, OR ANY PART THEREOF, OR AS TO THE
CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER
LATENT OR PATENT, IT BEING UNDERSTOOD THAT, SUBJECT TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT, THE PURCHASED ASSETS ARE TO BE CONVEYED HEREUNDER "AS IS" AND
"WHERE IS" ON THE CLOSING DATE, AND IN THEIR THEN PRESENT CONDITION. PURCHASER
SHALL RELY UPON ITS OWN EXAMINATION THEREOF.
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EXECUTION VERSION
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into and perform its obligations under
this Agreement, and in consideration of the covenants of Seller contained
herein, Purchaser represents and warrants to Seller as follows:
4.1 Corporate Status.
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
4.2 Due Authorization.
The execution and delivery by Purchaser of this Agreement, and the
performance by Purchaser of its obligations hereunder, have been duly and
validly authorized and approved by all necessary corporate action on the part of
Purchaser.
4.3 Authority of Purchaser.
Purchaser has the corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. Neither the execution
or delivery of this Agreement by Purchaser nor the performance by Purchaser of
its obligations under this Agreement will conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any contract,
lease, indenture, mortgage, deed of trust, note agreement or other agreement or
instrument to which Purchaser is a party or by which it is bound, or its
certificate of incorporation, bylaws or any applicable Law to which Purchaser is
a party or by which Purchaser is bound.
4.4 Enforceability.
This Agreement is binding upon, and enforceable against, Purchaser in
accordance with its terms, subject to bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally and by general principles of
equity (whether in a proceeding at law or in equity).
4.5 Consents.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any Authority or any other Person is required to be
obtained or made by Purchaser in connection with its execution and delivery of
this Agreement or the performance by it of its obligations hereunder.
4.6 Financing.
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EXECUTION VERSION
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Purchaser has the funds necessary to consummate the transactions
contemplated by this Agreement and acknowledges that its obligations hereunder
are not subject to a financing contingency.
ARTICLE V
PRE-CLOSING COVENANTS
From the date hereof through and including the Closing:
5.1 Purchaser's Access.
(a) Seller shall afford to Purchaser and its officers, employees,
auditors and agents the right, at any time prior to the Closing during normal
business hours and following reasonable prior notice, access to such books and
records of Seller relevant to the Purchased Assets as Purchaser may reasonably
require. Seller shall permit Purchaser and its representatives to have access,
upon reasonable notice and during normal business hours, throughout the period
prior to the Closing, to the Purchased Assets, and to any key officers of Seller
and its Affiliates, and shall furnish, and shall cause its Affiliates to
furnish, Purchaser during such period with such other information concerning the
Business as Purchaser or such representatives may reasonably request.
(b) All fees and expenses of any kind incurred by Purchaser relating
to the inspection referred to in Section 5.1(a) will be solely at Purchaser's
expense. Purchaser shall indemnify, defend and hold harmless Seller and its
Affiliates, officers, directors, employees and agents from and against any
personal injury or property damage suffered in connection with any investigation
contemplated by this Section 5.1.
5.2 Notice of Developments.
Seller shall promptly notify Purchaser of any event or occurrence that has
as its basis an event or occurrence that arose after the date hereof (a
"Development") which would cause a breach at the Closing of any of the
representations and warranties in Article III or constitutes a Material Adverse
Change or a Material Adverse Effect. Unless Purchaser terminates this Agreement
in accordance with Section 12.1(a)(iii)(A) by reason of a Development, the
written notice pursuant to this Section 5.2 will be deemed to have amended the
Schedules, to have qualified the representations and warranties contained in
Article III, and to have cured any misrepresentation or breach of warranty that
otherwise might have existed hereunder by reason of the Development. Purchaser
acknowledges and agrees that Seller has disclosed to it in writing an employee
bonus plan and compensation schedule that Seller intends to implement at or
prior to the Closing and that Purchaser has consented thereto; provided, that
Seller shall have sole responsibility for making any payments contemplated by
such employee bonus plan and Purchaser shall have no responsibility therefor.
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EXECUTION VERSION
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5.3 Governmental Filings and Approvals.
(a) Seller and Purchaser agree to (i) promptly file, or cause to be
promptly filed, with all appropriate Authorities any and all notices,
registrations, declarations, applications and other documents as required by Law
to consummate the transactions contemplated hereby and (ii) thereafter
diligently pursue all consents, approvals and authorizations from such
Authorities as required by Law to consummate the transactions contemplated
hereby.
(b) Notwithstanding anything to the contrary in Section 5.3(a), no
party shall be obligated to restructure in any material respect the Transactions
or waive any material rights or agree to any material limitations on its
operations or to dispose of any material asset or collection of assets prior to,
at or after the Closing in order to satisfy any requirement of an Authority as a
condition for granting its consent, authorization or approval.
5.4 Commercially Reasonable Efforts to Close.
(a) Subject to the terms and conditions hereof, each of the parties
hereto agrees to use all commercially reasonable efforts in good faith to
diligently take, or cause to be taken, all appropriate action, and to do or
cause to be done, all things necessary, proper or advisable to consummate and
make effective by September 15, 2004 the Transactions and will cooperate fully
with the other parties for such purpose.
(b) Purchaser agrees to promptly notify Seller if it becomes aware
of any event, fact or circumstance that could reasonably be expected to result
in the failure of a condition set forth in Section 6.1 to be satisfied on or
prior to September 15, 2004 and, if such failure is curable, to allow Seller a
reasonable opportunity to satisfy such condition.
(c) Seller agrees to promptly notify Purchaser if it becomes aware
of any event, fact or circumstance that could reasonably be expected to result
in the failure of a condition set forth in Section 7.1 to be satisfied prior to
September 15, 2004 and, if such condition is curable, to allow Purchaser a
reasonable opportunity to satisfy such condition.
5.5 Vessel Surveys.
Seller shall obtain and deliver to Purchaser the following:
(a) At least twenty (20) days prior to the Closing Date, (i) with
respect to each YBL Vessel, an abstract of title as of a date subsequent to the
date hereof showing that such YBL Vessel is owned by Seller free of any Liens of
record and (ii) with respect to the vessels "Salcha" and "NPI 180", an abstract
of title as of a date subsequent to the date hereof showing that such vessels
are owned by E.S. Marine, L.L.C. and Newport Petroleum, Inc., respectively.
(b) At least twenty (20) days prior to the Closing, all surveys of
the YBL Vessels to which Seller has access (the "Surveys").
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(c) At least two (2) days prior to the Closing Date, copies of all
of the certificates referred to in Section 3.5(b), as well as any classification
certificates or confirmation of class certificates of the YBL Vessels, free of
outstanding requirements.
5.6 Conduct of the Business.
(a) Except as otherwise contemplated by this Agreement, the YFC
Purchase Agreement or consented to by Purchaser, Seller shall: (i) conduct its
operations in the Ordinary Course of Business; (ii) use commercially reasonable
efforts to preserve the goodwill of and maintain satisfactory relationships with
its customers, suppliers, lessors, creditors, debtors, employees, consultants,
agents and other Persons having business relationships with it (provided, that
Seller shall have no obligation to implement any stay or retention bonus program
or agreements); and (iii) maintain in full force and effect with respect to the
Business, policies of insurance of the same type, character and coverage as the
policies currently carried. Without limiting the generality of the foregoing,
during the period from the date hereof through and including the Closing, Seller
shall not:
(i) declare, set aside, make or pay any dividend or other
distribution (other than of Retained Assets);
(ii) except in the Ordinary Course of Business, (A) make or offer to
make any acquisition of any interest in any assets or securities of any
Person (whether by merger, stock purchase, asset purchase, lease, license
or otherwise), (B) make or offer to make any sale or other disposition or
encumbrance of any of its assets or securities (whether by merger, stock
sale, asset sale, lease, license or otherwise) (other than Retained
Assets), or (C) commit to incur any capital expenditures in excess of
$50,000 in the aggregate;
(iii) except in the Ordinary Course of Business: enter into any
Material Contract or amend or cause the termination of any Material
Contract, or grant any release or relinquishment of any rights under any
Material Contract;
(iv) make any loans, advances or capital contributions to, or
investments in, any other Person;
(v) change any of the accounting principles or practices used by it
(including changes in reserve or accrual policies) in a manner that would
have a Material Adverse Effect;
(vi) forgive any loans to any directors, officers or employees of
the Business or any Affiliates of Seller;
(vii) except in the Ordinary Course of Business or any salary
increases disclosed in writing to Purchaser (including via e-mail), (A)
enter into any new, or amend any existing, employment, consulting,
severance payment, termination payment, salary
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continuation, change of control or deferred compensation agreements or
similar contracts with any of its directors, officers or employees (other
than any Non-Hired Union Employees or Non-Hired Non-Union Employees), (B)
make any changes in the compensation or benefits payable to any of its
directors, officers or employees (other than any Non-Hired Union Employees
or Non-Hired Non-Union Employees) or (C) grant any performance or similar
awards or bonuses to any of its directors, officers or employees (other
than cash bonuses);
(viii) adopt, approve or enter into any new, or materially amend or
modify, or terminate any existing, Employee Plan or other employee benefit
plan or contract, except as required by Law;
(ix) hire or terminate any management level employees, other than
with Purchaser's consent, which may not be unreasonably withheld; or
(x) agree to do any of the items prohibited by this Section 5.6(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
6.1 Conditions to be Satisfied On or Prior to Closing Date.
The obligation of Purchaser to purchase the Purchased Assets under this
Agreement is subject to the satisfaction (or waiver by Purchaser), on or prior
to the Closing Date, of the following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties made by Seller in this Agreement shall be true and complete in
all material respects on the Closing Date as though made on such date, except to
the extent the failure of such representations and warranties to be true and
complete has not had a Material Adverse Effect.
(b) Compliance with Agreement. Seller shall have performed or
complied in all material respects with the covenants, agreements and obligations
required by this Agreement to be performed or complied with by Seller on or
prior to the Closing Date, except to the extent the failure to so perform or
comply has not had a Material Adverse Effect.
(c) Consents. All consents required under those Material Contracts
identified on Schedule 6.1(c), if any, shall have been obtained.
(d) No Adverse Proceedings.
(i) No order shall have been entered in the AVEC Litigation
prohibiting Purchaser and Seller from consummating the Transactions.
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(ii) The Consent Decree Order shall have been entered; provided,
that if the Consent Decree Order includes any modification to, or
amendment of, the Consent Decree as originally filed with the trial
court, such modification or amendment shall be in form and substance
satisfactory to the Purchaser in its sole discretion.
(iii) No action, suit or proceeding (other than the AVEC
Litigation, the Alaska AG Investigation or any action, suit or
proceeding by or on behalf of the State of Alaska or the City of
Bethel, Alaska (or any political subdivision thereof)) shall have
been instituted or overtly threatened by an Authority, or instituted
by any other Person, (A) challenging the acquisition by Purchaser of
the Purchased Assets or otherwise seeking to restrain, materially
delay or prohibit the consummation of the Transactions or seeking
damages that could make the Transactions materially more costly to
Purchaser or (B) seeking to prohibit or limit in any material
respect the ownership or operation by Purchaser of all or a material
portion of the Business or any of its other material businesses or
to compel Purchaser to dispose of or hold separate all or a material
portion of the Purchased Assets or any of its other businesses.
(e) No Material Adverse Change or Effect. There shall have occurred
no Material Adverse Change or Material Adverse Effect.
(f) Closing Documents. Seller shall have delivered all agreements,
certificates, instruments and other documents required to be delivered by Seller
on the Closing Date pursuant to Section 8.3, and the form and substance of all
such agreements, certificates, instruments and other documents shall be
reasonably satisfactory to Purchaser.
(g) Acquisition of YFC Assets. The YFC Purchase Agreement shall have
been executed and delivered by each of Northland Fuel, YFC and NVLC and all of
the conditions set forth in Section 6.1 of the YFC Purchase Agreement shall have
been satisfied (or waived by Purchaser).
6.2 Procedure for Failure to Satisfy Conditions.
In the event that, in Purchaser's reasonable judgment, any of the
conditions precedent set forth in Section 6.1 have not been satisfied as of the
intended Closing Date, Purchaser shall notify Seller in writing indicating its
election to (a) waive such conditions precedent or (b) terminate this Agreement
pursuant to Section 12.1.
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ARTICLE VII
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
7.1 Conditions to be Satisfied On or Prior to Closing Date.
The obligations of Seller to sell the Purchased Assets under this
Agreement are subject to the satisfaction (or waiver by Seller), on or prior to
the Closing Date, of the following conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties made by Purchaser in this Agreement shall be true and complete in
all material respects on the Closing Date as though made on such date.
(b) Compliance with Agreement. Purchaser shall have performed or
complied in all material respects with the covenants, agreements and obligations
required by this Agreement to be performed or complied with by it on or prior to
the Closing Date.
(c) No Adverse Proceedings.
(i) No action, suit or proceeding (other than the Alaska AG
Investigation and the AVEC Litigation) shall have been instituted or
overtly threatened by an Authority, or instituted by any other
Person, challenging the acquisition by Purchaser of the Purchased
Assets or otherwise seeking to restrain, materially delay or
prohibit the consummation of the Transactions or seeking damages
that could make the Transactions materially more costly to Seller.
(ii) No order shall have been entered in the AVEC Litigation
prohibiting Purchaser and Seller from consummating the Transactions.
(iii) The Consent Decrees Order shall have been entered;
provided, that if the Consent Decree Order includes any modification
to, or amendment of, the Consent Decree as originally filed with the
trial court that adversely affects Seller, such modification or
amendment shall be in form and substance satisfactory to Seller in
its sole discretion.
(d) Closing Documents. Purchaser shall have delivered all
agreements, certificates, instruments and other documents required to be
delivered by it on the Closing Date pursuant to Section 8.4, and the form and
substance of all such agreements, certificates, instruments and other documents
shall be reasonably satisfactory to Seller.
(e) Acquisition of YFC Assets. The YFC Purchase Agreement shall have
been executed and delivered by Purchaser and all of the conditions set forth in
Section 7.1 of the YFC Purchase Agreement shall have been satisfied (or waived
by Northland Fuel, YFC and NVLC).
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7.2 Procedure for Failure to Satisfy Conditions.
In the event that, in Seller's reasonable judgment, any of the conditions
precedent set forth in Section 7.1 have not been satisfied as of the intended
Closing Date, Seller shall notify Purchaser in writing indicating Seller's
election to (a) waive such conditions precedent or (b) terminate this Agreement
pursuant to Section 12.1.
ARTICLE VIII
CLOSING
8.1 Time and Place.
The Closing shall take place at 10:00 a.m. (local time) on the Closing
Date at the offices of Xxxxxx Xxxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxx, or at such other time and place as Seller and Purchaser may
mutually agree.
8.2 Closing Transactions.
All documents and other instruments required to be delivered at the
Closing shall be regarded as having been delivered simultaneously, and no
document or other instrument shall be regarded as having been delivered until
all have been delivered.
8.3 Deliveries by Seller to Purchaser.
At the Closing, Seller shall deliver or cause to be delivered to
Purchaser:
(a) the Xxxx of Sale as duly executed by Seller, together with all
such other documents and instruments of sale, assignment, conveyance and
transfer, as Purchaser reasonably may deem necessary for the conveyance of the
Purchased Assets to Purchaser;
(b) the certificate of formation of Seller certified by the
Secretary of State of the State of Delaware as of a date not earlier than twenty
(20) days prior to the Closing Date;
(c) a USCG Xxxx of Sale as duly executed by Seller for each YBL
Vessel;
(d) the Assumption Agreement as duly executed by Seller;
(e) a certificate of good standing for Seller from the States of
Alaska and Delaware;
(f) a certificate of the manager of Seller, dated as of the Closing
Date, certifying to (i) the certificate of formation and Limited Liability
Company Agreement of Seller; (ii) resolutions of the sole member of Seller
approving the execution, delivery and performance of the Transaction Documents
to which it is a party and the consummation of the Transactions;
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and (iii) incumbency and signatures of the officers of Seller executing the
Transaction Documents delivered by Seller in connection herewith;
(g) a certificate executed by the manager of Seller, dated as of the
Closing Date, certifying (i) updated copies of each of the Schedules referred to
in Article III and (ii) that all representations and warranties of Seller herein
contained are true and complete in all material respects as of the Closing Date
as if made thereon and that Seller has performed or complied in all material
respects with the covenants, agreements and obligations required by this
Agreement to be performed or complied with by Seller on or prior to the Closing
Date;
(h) each consent obtained pursuant to Section 10.3(b);
(i) all releases necessary to terminate and discharge any and all
Liens on the Purchased Assets;
(j) terminations of the NVLC Vessel Charters, including a waiver by
each of the parties thereto of any rights it may have thereunder against
Purchaser;
(k) a certificate, pursuant to Section 1445 of the Code, dated the
Closing Date in form reasonably acceptable to Purchaser; and
(l) such other instruments and documents as are: (i) required by any
other provisions of this Agreement to be delivered on or before the Closing Date
by Seller to Purchaser; or (ii) reasonably necessary, in the opinion of
Purchaser, to evidence the performance by Seller of its obligations under this
Agreement.
8.4 Deliveries by Purchaser to Seller.
At the Closing, Purchaser shall deliver or cause to be delivered to
Seller:
(a) the Preliminary Purchase Price in accordance with Section 2.2;
(b) the Assumption Agreement as duly executed by Purchaser;
(c) a certificate of the Secretary or an Assistant Secretary of
Purchaser, dated as of the Closing Date, certifying to (i) the certificate of
incorporation and bylaws of Purchaser; (ii) resolutions of the Board of
Directors of Purchaser approving the execution, delivery and performance of the
Transaction Documents to which it is a party and the consummation of the
Transactions; and (iii) incumbency and signatures of the officers of Purchaser
executing this Agreement and any other certificate or document delivered by
Purchaser in connection herewith;
(d) a certificate executed by the President or any Vice President of
Purchaser, dated as of the Closing Date, certifying that all representations and
warranties of Purchaser herein contained are true and complete in all material
respects as of the Closing Date as if made
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thereon and that Purchaser has performed or complied in all material respects
with the covenants, agreements and obligations required by this Agreement to be
performed or complied with by Purchaser on or prior to the Closing Date;
(e) the certificate of incorporation of Purchaser certified by the
Secretary of State of the State of Delaware as of a date not earlier than twenty
(20) days prior to the Closing Date; and
(f) such other instruments and documents as are: (i) required by any
other provisions of this Agreement to be delivered on or before the Closing Date
by Purchaser to Seller; or (ii) reasonably necessary, in the opinion of Seller,
to evidence the performance by Purchaser of its obligations under this
Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 Seller's Indemnification.
Seller agrees to defend, indemnify and hold Purchaser harmless against any
Damages which arise out of or are in respect of any of the following:
(a) the breach of any of the representations or warranties made by
Seller in this Agreement (a "Purchaser Warranty Claim");
(b) the failure by Seller to perform any of its covenants or
agreements in this Agreement;
(c) any and all Retained Liabilities; and
(d) any Retained Asset.
9.2 Purchaser's Indemnification.
Purchaser agrees to defend, indemnify and hold Seller harmless against any
Damages which arise out of or are in respect of any of the following:
(a) the breach of any of the representations or warranties made by
Purchaser in this Agreement (a "Seller Warranty Claim");
(b) the failure of Purchaser to perform any of its covenants or
agreements in this Agreement;
(c) any and all Assumed Liabilities;
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(d) the ownership or operation by Purchaser of the Purchased Assets
after the Closing (except to the extent attributable to events or circumstances
occurring or existing prior to the Closing Date);
(e) the AVEC Litigation, to the extent incurred or arising after the
Closing Date;
(f) the Consent Decree or Consent Decree Order (including any appeal
therefrom and future proceedings subsequent to any appeal), to the extent
incurred after the Closing Date; and
(g) any action, suit or proceeding (other than the AVEC Litigation)
instituted by an Authority or other Person challenging any of the Transactions
or otherwise seeking to rescind, restrain, materially delay or prohibit the
consummation of the Transactions or seeking damages as a result of the
consummation of the Transactions.
9.3 Limitations.
The parties' rights to indemnification pursuant to this Article IX are
subject to the following limitations:
(a) All of the representations and warranties contained in Articles
III and IV shall survive the Closing and shall continue in full force and effect
until the eighteen (18) month anniversary of the Closing Date; provided, that if
at the stated expiration of any representation and warranty there shall be
pending any indemnification claim by an Indemnified Party, such Indemnified
Party shall continue to have the right to seek such indemnification with respect
to such claim notwithstanding such expiration. All covenants set forth in this
Agreement shall survive the Closing without expiration.
(b) Except as provided elsewhere herein, no Purchaser Warranty Claim
may be made against Seller unless and until the sum of (i) the aggregate of all
Damages with respect to Purchaser Warranty Claims plus (ii) the aggregate of all
Damages with respect to "Purchaser Warranty Claims" under the YFC Purchase
Agreement shall exceed $150,000 (the "Purchaser's Threshold"), in which case
Seller shall be required to pay or be liable only for Damages in excess of the
Purchaser's Threshold.
(c) No Seller Warranty Claim may be made against Purchaser unless
and until the sum of (i) the aggregate of all Damages with respect to Seller
Warranty Claims plus (ii) the aggregate of all Damages with respect to "Seller
Warranty Claims" under the YFC Purchase Agreement shall exceed $150,000 (the
"Seller's Threshold"), in which case Purchaser shall be required to pay or be
liable only for Damages in excess of the Seller's Threshold.
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(d) Seller's maximum aggregate liability to Purchaser for Purchaser
Warranty Claims shall not exceed an amount equal to (i) $2,000,000 minus (ii)
the aggregate of all Damages with respect to "Purchaser Warranty Claims" under
the YFC Purchase Agreement.
(e) Purchaser's maximum aggregate liability to Seller for Seller
Warranty Claims shall not exceed an amount equal to (i) $2,000,000 minus (ii)
the aggregate of all Damages with respect to "Seller Warranty Claims" under the
YFC Purchase Agreement.
(f) For purposes of this Article IX, in computing such individual or
aggregate amounts of claims, the amount of each claim shall be deemed to be an
amount (i) net of any tax benefit actually realized by the Indemnified Party or
any Affiliate thereof by reason of the Damage which is the subject of such claim
and (ii) net of any insurance proceeds and any indemnity, contribution or other
similar payment recoverable by the Indemnified Party or any Affiliate from any
third party with respect thereto. If such insurance proceeds or any indemnity,
contribution or other similar payment is received by the Indemnified Party after
the date on which the Indemnifying Party has paid such indemnification claim,
the Indemnified Party shall, no later than five (5) days after the receipt of
such insurance proceeds or any indemnity, contribution or other similar payment,
reimburse the Indemnifying Party in an amount equal to such insurance proceeds
or any indemnity, contribution or other similar payment (but in no event in an
amount greater than the Damages theretofore paid to the Indemnified Party by the
Indemnifying Party).
(g) Each party hereto hereby acknowledges and agrees that its sole
and exclusive remedy with respect to any and all post-Closing claims relating to
the subject matter of this Agreement shall be pursuant to the indemnification
provisions set forth in this Article IX. In furtherance of the foregoing, each
party hereto hereby waives, to the fullest extent permitted under applicable
Law, any and all other post-Closing rights, remedies, claims and causes of
action of any kind or nature it may have against the other parties hereto
arising under or based upon any Law (including any such post-Closing rights,
claims or causes of action arising under or based upon common law or otherwise).
Each party hereto agrees that any and all post-Closing claims by it against any
other party hereto arising out of or related to the breach of any
representation, warranty, covenant or agreement contained herein shall be
limited exclusively to claims made in accordance with, and subject to the
limitations of, this Article IX and that such party's sole remedy shall be money
damages. Notwithstanding the foregoing, each party acknowledges that the
covenants of Section 10.2 are of the essence of this Agreement and that money
damages will be difficult to calculate and may not provide adequate compensation
in connection with an actual or threatened breach of such Section and that the
provision of Section 10.2 are reasonable limitations and necessary to protect
the business interests of the respective parties. Accordingly, the parties agree
that they each shall be entitled to enforce by injunction or other equitable
relief the due and proper performance and observance of the provisions of
Section 10.2 and, in addition, shall be entitled to pursue any allowable
remedies at law or equity, including the recovery of money damages. If any
provisions of Section 10.2 shall for any reason be held to be excessively broad
as to time, duration, geographic scope, activity or subject, it shall
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be enforceable to the maximum extent compatible with then-applicable laws.
Finally, notwithstanding the provisions of this Section 9.3(g) or any other
provisions contained herein to the contrary, Purchaser and Seller shall have the
right to seek specific performance of the obligations of the other under Section
2.1 in addition to any other remedies it may have for money damages or otherwise
at law or in equity.
(h) Notwithstanding anything herein to the contrary, no breach of
any representation, warranty, covenant or agreement contained herein shall give
rise to any right on the part of any party hereto, after the Closing, to rescind
this Agreement or any of the Transactions.
(i) No party hereto shall have any liability under any provision of
this Agreement for any Damages to the extent that such Damages relate to actions
taken or not taken by any other party hereto or its Affiliates after the Closing
or by Northland Holdings or its Affiliates after April 8, 2004. In no event
shall any party hereto be liable for consequential or punitive damages (except
for (i) consequential or punitive damages paid or payable by an Indemnified
Party to a third party and (ii) penalties under any Law). Each party hereto
shall take all reasonable steps to mitigate all Damages upon and after becoming
aware of any event which could reasonably be expected to give rise to such
Damages indemnifiable by any other party hereto.
(j) No Indemnifying Party's liability for fraud or willful
misconduct shall be limited by the provisions of this Section 9.3. No
Indemnifying Party shall be liable to any Person hereunder for Damages
attributable to such Person's fraud or willful misconduct.
(k) Seller's liability for a breach of Section 3.9 (employee benefit
matters) shall not be limited by the provisions of Section 9.3(b).
(l) Notwithstanding any other provision of this Agreement, Purchaser
acknowledges and agrees that it shall have no recourse to any member, manager,
officer, employee or agent of Seller with respect to the indemnification
obligations of Seller under this Article IX.
9.4 Indemnification Notice.
Promptly upon obtaining knowledge of any claim, event, fact or demand
which gives rise to, or could reasonably be expected to give rise to, a claim
for indemnification hereunder, any party seeking indemnification under this
Article IX (an "Indemnified Party") shall give written notice of such claim or
demand ("Notice of Claim") to the party from which indemnification is sought (an
"Indemnifying Party"), setting forth the amount of the claim. The Indemnified
Party shall furnish to the Indemnifying Party, in reasonable detail, such
information as it may have with respect to such indemnification claim (including
copies of any summons, complaint or other pleading which may have been served on
it and any written claim, demand, invoice, billing or
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other document evidencing or asserting the same). No failure or delay by the
Indemnified Party in the performance of the foregoing shall reduce or otherwise
affect the obligation of any Indemnifying Party to indemnify and hold the
Indemnified Party harmless, except to the extent that such failure or delay
shall have adversely affected the Indemnifying Party's ability to defend
against, settle or satisfy any Damage for which the Indemnified Party is
entitled to indemnification hereunder.
9.5 Indemnification Procedure.
(a) If the claim or demand set forth in the Notice of Claim given by
the Indemnified Party pursuant to Section 9.4 of this Agreement is a claim or
demand asserted by a third party, the Indemnifying Party shall have fifteen (15)
days after the Date of the Notice of Claim to notify the Indemnified Party in
writing of its election to defend such third party claim or demand on behalf of
the Indemnified Party; provided, that an Indemnifying Party's election to defend
shall not constitute an acknowledgement of any liability for indemnity of the
claim or prejudice the Indemnifying Party's right to defend against any such
liability. If the Indemnifying Party elects to defend such third party claim or
demand, the Indemnified Party shall make available to the Indemnifying Party and
its agents and representatives all records and other materials which are
reasonably required in the defense of such third party claim or demand and shall
otherwise cooperate with, and assist the Indemnifying Party in the defense of,
such third party claim or demand, and so long as the Indemnifying Party is
defending such third party claim or demand in good faith, the Indemnified Party
shall not pay, settle or compromise such third party claim or demand. If the
Indemnifying Party elects to defend such third party claim or demand, the
Indemnified Party shall have the right to participate in the defense of such
third party claim or demand, at its own expense. If the Indemnifying Party does
not elect to defend such third party claim or demand, or does not defend such
third party claim in good faith, the Indemnified Party shall have the right, in
addition to any other right or remedy it may have hereunder, at the Indemnifying
Party's expense, to defend such third party claim or demand; provided, however,
that (i) the Indemnified Party shall not have any obligation to participate in
the defense of, or defend, any such third party claim or demand; and (ii) the
Indemnified Party's defense of or its participation in the defense of any such
third party claim or demand shall not in any way diminish or lessen the
obligations of the Indemnifying Party under the agreements of indemnification
set forth in this Article IX.
(b) Except for third party claims being defended in good faith, the
Indemnifying Party shall satisfy its obligations hereunder in cash within thirty
(30) days after the Date of the Notice of Claim.
(c) The term "Date of the Notice of Claim" as used in this Article
IX shall mean the date the Notice of Claim is deemed delivered pursuant to
Section 13.3.
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9.6 Effect of Indemnity Payments.
The parties agree to treat all payments made under the indemnity
provisions of this Article IX as adjustments to the Final Purchase Price for tax
purposes and that such agreed treatment shall govern for purposes hereof.
ARTICLE X
OTHER AGREEMENTS
10.1 Further Assurance.
At any time and from time to time from and after the Closing, Seller and
Purchaser will, at the request and expense of the other party hereto, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and other documents and perform or cause to be performed such
acts and provide such information, as may reasonably be required to evidence or
effectuate the sale, conveyance, transfer, assignment and delivery to Purchaser
of the Purchased Assets, the assumption by Purchaser of the Assumed Liabilities
or the performance by Seller or Purchaser of any of their other respective
obligations under this Agreement.
10.2 Confidentiality.
(a) The parties hereto agree with respect to the Transactions, the
terms and conditions of this Agreement, including the Final or Preliminary
Purchase Price (or any component thereof), and all information that is, or has
been, furnished or disclosed to it by the other party (collectively,
"Confidential Information"), that, subject to Section 13.1, (i) such
Confidential Information is confidential and/or proprietary to the
furnishing/disclosing party and entitled to and shall receive treatment as such
by the receiving party; (ii) the receiving party will hold in confidence and not
disclose nor use (except in respect of the transactions contemplated by this
Agreement) any such Confidential Information, treating such Confidential
Information with the same degree of care and confidentiality as it accords its
own confidential and proprietary information; provided, however, that the
receiving party shall not have any restrictive obligation with respect to any
Confidential Information which (A) is contained in a printed publication
available to the general public, (B) is or becomes publicly known through no
wrongful act or omission of the receiving party or (C) is subject to disclosure
pursuant to any order or regulation of any Authority; and (iii) all such
Confidential Information furnished to either party by the other, unless
otherwise specified in writing, shall remain the property of the
furnishing/disclosing party (until the Closing), and in the event this Agreement
is terminated, shall be returned to it, together with any and all copies made
thereof, upon request for such return by it (except for documents submitted to
an Authority with the consent of the furnishing/disclosing party or upon
subpoena and which cannot be retrieved with reasonable effort).
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(b) From and after the Closing, subject to Section 13.1, Seller will
hold in confidence and not disclose or use (except in respect of the
Transactions) any information that is confidential or proprietary with respect
to the Business as of the Closing (other than the Retained Assets), treating
such information with the same degree of care and confidentiality as it accords
its own confidential and proprietary information; provided, however, that Seller
shall not have any restrictive obligation with respect to any such information
which (i) becomes publicly known through no wrongful act or omission of Seller
or (ii) is subject to disclosure pursuant to any order or regulation of any
Authority.
10.3 Nonassignable Contracts.
(a) Nothing in this Agreement will constitute a transfer or an
attempted transfer of any Contracts which are not capable of being transferred
without the consent, approval, novation or waiver of any Person (including an
Authority), or any Contracts the transfer or attempted transfer of which would
constitute a breach of such Contract or a violation of any Law (collectively,
"Nonassignable Contracts"). Such Nonassignable Contracts are identified in
Schedule 3.10.
(b) Notwithstanding anything contained in this Agreement to the
contrary, Seller will not be obligated to transfer to Purchaser any of its
rights and obligations in and to any Nonassignable Contract without first having
obtained all consents, approvals, novations and waivers necessary for such
transfer. Prior to the Closing and for a period of three months thereafter,
Purchaser and Seller will use all commercially reasonable efforts and cooperate
with each other in obtaining all consents, approvals, novations and waivers
necessary to transfer to Purchaser all Nonassignable Contracts; provided,
however, that, in each such case, neither Purchaser nor Seller will be obligated
to commence any litigation or offer or grant any accommodation (financial or
otherwise) to any Person or incur any other obligation or liability therefor,
and Purchaser and Seller shall each bear its own expenses in connection
therewith.
(c) To the extent that any consents, approvals, novations and
waivers with respect to Nonassignable Contracts are not obtained on or prior to
the Closing Date, Seller will, at Purchaser's request, during the period
commencing with the Closing Date and continuing until the earlier of (i) the
expiration of the original term of the applicable Nonassignable Contract and
(ii) the receipt by Seller of written notice from Purchaser that Purchaser has
obtained an adequate replacement for such Nonassignable Contract, cooperate, in
any reasonable and lawful arrangement designed to provide Purchaser the benefits
of such Nonassignable Contract (including, if necessary, at the reasonable
request and the expense of Purchaser enforcing performance by any third party of
its obligations in respect of such Nonassignable Contract, provided that Seller
may decline in good faith Purchaser's request to enforce such Contract);
provided that, to the extent Seller is successful in providing such remaining
benefits, if any, of such Nonassignable Contract to Purchaser, Purchaser will
pay, honor and discharge when due the corresponding liabilities, obligations and
commitments of Seller arising thereunder which have been approved in advance by
Purchaser with respect to periods after the Closing; and,
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provided, further, that, to the extent Seller is not successful in so providing
such remaining benefits of any Nonassignable Contract to Purchaser or has not
given its prior approval to the same, Purchaser will have no obligation to pay,
honor and discharge when due the corresponding liabilities, obligations and
commitments of Seller arising thereunder with respect to periods after the
Closing, which shall be treated as Retained Liabilities.
(d) Nothing in this Section 10.3 shall be construed to waive, modify
or otherwise limit Purchaser's rights under Sections 6.1(c) and 6.2 of this
Agreement.
10.4 Tax Matters.
With respect to the Purchased Assets, Seller and Purchaser shall provide
each other with such assistance as may reasonably be requested by the others in
connection with the preparation of any return or report of taxes, any audit or
other examination by any taxing authority, or any judicial or administrative
proceedings relating to liabilities for taxes. Such assistance shall include
making employees available on a mutually convenient basis to provide additional
information or explanation of material provided hereunder and shall include
providing copies of relevant tax returns and supporting material. The party
requesting assistance hereunder shall reimburse the assisting party for
reasonable out-of-pocket expenses incurred in providing assistance. Seller and
Purchaser will retain for the full period of any statute of limitations and
provide the others with any records or information which may be relevant to such
preparation, audit, examination, proceeding or determination.
10.5 Bulk Sale Waiver.
The parties hereto acknowledge and agree that no filings with respect to
any bulk sales or similar laws have been made, nor are they intended to be made,
nor are such filings a condition precedent to the Closing.
10.6 Post-Closing Deliveries.
After the Closing, any monies, checks, instruments, invoices, bills,
receipts, notices, mail and other communications received by one party but
directed toward or due to another shall be promptly delivered to the other
party.
10.7 Post-Closing Cooperation and Records Retention.
Each party agrees to provide the others with access to all relevant
documents and other information relating to the Purchased Assets, and to make
its relevant personnel available, to the extent reasonably requested by such
other party for purposes of preparing tax returns or responding to or defending
against any audit, investigation, lawsuit or other proceeding by any Person or
for any other reasonable purpose. Such access and availability will be at the
requesting party's expense and only during normal business hours and following
reasonable prior notice. In furtherance of the foregoing, Purchaser acknowledges
and agrees that, because Seller
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will have few, if any, employees after the Closing, Seller is expressly relying
on Purchaser's agreements herein to make its relevant personnel available for
all purposes stated herein. Purchaser further agrees that it shall not, for any
applicable statute of limitation period(s) following the Closing Date, destroy
or otherwise dispose of any documents or records relating to the Purchased
Assets for the period prior to the Closing Date.
10.8 Payment of MCM Note.
On the Closing Date, Seller shall cause Marine Capital Management, LLC to
pay in full all amounts outstanding under the MCM Note.
ARTICLE XI
EMPLOYEE MATTERS
11.1 Obligation to Hire Employees.
(a) Effective on the Closing Date, Purchaser agrees to offer
employment to all of Seller's salaried and non-union hourly personnel (the
"Non-Union Employees"), other than those employees designated by Purchaser to
Seller in writing prior to the date hereof with reference to this Section 11.1
(the "Non-Hired Non-Union Employees"), at a comparable job and at a comparable
rate of pay (or in the case of those employees with employment agreements,
Purchaser shall assume such agreements), and agrees to offer employment to all
of Seller's unionized hourly personnel (the "Hourly Employees"; together with
the Non-Union Employees, the "Employees"), other than those unionized hourly
personnel designated by Purchaser to Seller in writing prior to the date hereof
(the "Non-Hired Union Employees"), subject to the terms and conditions of the
collective bargaining agreement applicable to such employees. Subject to the
provisions of this Section 11.1, Purchaser agrees to assume all
employment-related obligations with respect to the Employees accruing on and
after the Closing Date. For purposes of this Section 11.1, "employment-related
obligations" shall include compensation for services performed for Purchaser
after the Closing Date (and related employment and withholding taxes), benefits
accrued under any Purchaser-sponsored employee welfare benefit plan or employee
pension benefit plan (as defined under ERISA Section 3(1) or 3(2), respectively)
covering the Employees after the Closing Date and workers compensation benefits
with respect to claims filed after the Closing Date (regardless of when the
injury occurred).
(b) Seller shall be responsible for any claim for severance pay or
other benefits, including any claim that the sale contemplated hereby gives rise
to a right for severance pay or other benefits, of any Non-Hired Non-Union
Employees or Non-Hired Union Employees.
(c) Purchaser understands and acknowledges that Seller is relying on
Purchaser's agreement to hire all the Employees as of the Closing Date, except
as otherwise expressly contemplated in this Section 11.1.
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EXECUTION VERSION
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11.2 Health Care.
Seller shall be responsible for offering and providing, in accordance with
the requirements of the Consolidation Omnibus Reconciliation Act of 1985
("COBRA"), health care continuation coverage with respect to any of its former
employees and their qualified dependents who experienced a "qualifying event,"
as defined under COBRA (a "Qualifying Event"), prior to the Closing Date and who
are receiving, at the time of the Closing Date, continuation of health care
coverage under affected Welfare Plans of Seller. Purchaser shall be responsible
for offering and providing, in accordance with the requirements of COBRA, health
care continuation coverage with respect to any of Seller's employees who
participate in Seller's Welfare Plans and who experience a Qualifying Event as
of or following the Closing Date.
11.3 Past Service and Vacations.
Purchaser shall give New Employees credit for Past Service (as hereinafter
defined) in determining vacation entitlement under Purchaser's applicable
vacation policy. "Past Service" means service (a) as an employee of Seller or of
its subsidiaries or parent corporation and (b) as an employee of predecessor
companies prior to the acquisition of the Business by Seller, but only to the
extent that such service is continuous through the Closing Date. Purchaser
agrees to assume as of the Closing, Seller's liability for accrued vacation and
sick pay to the extent reflected in the Final Adjusted NWC.
11.4 Participation in Purchaser's Plans.
Purchaser agrees that New Employees shall be eligible for participation in
all health coverage, insurance, retirement and other benefit plans, programs or
arrangements (including all "employee benefit plans", as defined by ERISA
Section 3(3)) sponsored or maintained by Purchaser for which similarly situated
employees of Purchaser are eligible ("Purchaser Plans"). Other than with respect
to The Xxxxxxx Maritime Corporation Retirement Stock Plan, The Xxxxxxx Maritime
Corporation Retirement Income System Plan and The Paper, Allied-Industrial
Chemical and Energy Worker (PACE) PACE Industry 401(k) Fund ("Purchaser's Union
401(k) Plan"), Purchaser will give credit for Past Service for purposes of (a)
determining eligibility for participation in the Purchaser Plans, (b)
determining the duration and amount, if any, of short-term disability benefits
due under the Purchaser Plans and (c) vesting (including eligibility for early
retirement, disability and benefit options and forms) under the Purchaser Plans.
Purchaser will waive any pre-existing condition restrictions under the Purchaser
Plans with respect to New Employees.
11.5 Welfare Plans.
(a) Purchaser assumes no obligations under Seller's Welfare Plans.
Claims for expenses incurred by New Employees or their dependents prior to the
Closing shall be covered under Seller's Welfare Plans. The amount and type of
benefits payable in any case shall
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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be determined in accordance with the terms of the applicable Welfare Plan. All
amounts referred to in this Section 11.5 shall be Retained Liabilities.
(b) Except to the extent already included in the Final Adjusted NWC,
Seller will be responsible for payment of any premiums for Seller's Welfare
Plans and group insurance arrangements relating to periods before the Closing
and for any liability for claims, treatments, expenses, including administrative
expenses, that are covered and payable under the terms of Seller's Welfare Plans
and group insurance contracts and that are incurred before the Closing.
(c) Seller will continue on and after the Closing to be solely
responsible for any obligations arising out of any long-term disability plan
maintained by Seller with respect to each Employee who became disabled and
entitled to benefits under that plan on or before the Closing. Purchaser will
have no obligations with respect to payment of disability benefits to such an
employee.
11.6 No Third Party Beneficiaries.
Except as otherwise expressly provided for in this Agreement, nothing in
this Article XI, expressed or implied, is intended or shall be construed to
confer upon or give to any Person other than the parties hereto, any rights,
remedies or other benefits under or by reason of this Article XI.
11.7 401(k) Plan.
Eligible employees of Seller participate in the Marine Capital Management,
LLC Retirement Plan ("Seller's 401(k) Plan"). Those employees of Seller who
participate in Seller's 401(k) Plan and who become New Employees will incur a
severance from employment under Seller's 401(k) Plan on the Closing Date and
will be entitled to receive a distribution of their benefits under Seller's
401(k) Plan. After the Closing Date, and in accordance with current
administrative procedures of Seller's 401(k) Plan, Seller shall cause to be
distributed to such New Employees such notices and forms that are provided to
participants who incur a severance from employment so that such New Employees
who are non-union employees may elect to receive a distribution of their
benefits under Seller's 401(k) Plan. Such New Employees may elect to make a
rollover contribution to The Xxxxxxx Maritime Corporation Retirement Income
System Plan ("Purchaser's Salaried 401(k) Plan"), and Purchaser shall cause, in
accordance with current administrative procedures of Purchaser's Salaried 401(k)
Plan, such rollover contributions to be accepted by Purchaser's Salaried 401(k)
Plan. Such New Employees who are union employees may elect to make a rollover
contribution to Purchaser's Union 401(k) Plan, and Purchaser shall cause, in
accordance with current administrative procedures of Purchaser's Union 401(k)
Plan, such rollover contributions to be accepted by Purchaser's Union 401(k)
Plan.
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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ARTICLE XII
TERMINATION
12.1 Rights to Terminate.
(a) This Agreement may be terminated at any time prior to the Closing only
as follows:
(i) by mutual written consent of Seller and Purchaser;
(ii) by Seller if Purchaser is in material breach of any material
representation, warranty or covenant under this Agreement;
(iii) by Purchaser if (A) Seller has within the then previous ten
(10) Business Days given Purchaser any notice pursuant to Section 5.2
above, and the Development that is the subject of the notice constitutes a
Material Adverse Change, or (B) Seller is in material breach of any
material representation, warranty or covenant under this Agreement;
(iv) by Seller if, at or before the Closing, any condition set forth
in Article VII shall not have been timely met and cannot be met on or
before the Closing Date and has not been waived;
(v) by Purchaser if, at or before the Closing, any condition set
forth in Article VI shall not have been timely met and cannot be met on or
before the Closing Date and has not been waived; or
(vi) automatically, and without any action by Seller or Purchaser,
upon the termination of the YFC Purchase Agreement.
(b) Nothing set forth above shall entitle any party to terminate this
Agreement under this Section 12.1 if such party is in material breach of or has
failed to perform in any material respect any obligation or covenant under this
Agreement or if any of the representations or warranties of such party set forth
in Article III or Article IV, as applicable, is not true in any material
respect.
12.2 Effects of Termination.
(a) Notwithstanding any other provision of this Agreement to the
contrary, no termination of this Agreement shall release (i) either Seller or
Purchaser from such party's obligation to pay the fees, costs and expenses
described in Sections 5.1(b) and 13.2, (ii) any party from any liabilities
arising hereunder for any willful pre-termination breaches hereof or willful
misrepresentations made herein or (iii) any party from its obligations under
Section 10.2.
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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(b) Each party's right of termination hereunder is in addition to
any rights it may have hereunder or otherwise.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Public Announcements.
Purchaser and Seller hereby agree that the initial press release
concerning the Transactions shall be a joint press release in such form agreed
to by the parties and thereafter Purchaser and Seller will consult with each
other before issuing any other press release or otherwise making any public
statements with respect to the Transactions and shall not issue any such press
release or make any such public statement prior to such consultation (and
affording the other party an opportunity to comment thereon); provided, that the
parties shall be free to respond to inquiries from third parties by
disseminating information consistent with any such press releases, subject
however to the confidentiality obligations of Section 10.2. This Section shall
not limit the ability of either Seller or Purchaser, subject to any and all
confidentiality obligations, to make such disclosures as either deems necessary
in connection with its efforts to secure any consents or otherwise to satisfy
any condition to the Closing. Notwithstanding the foregoing, if any such release
or announcement by a party is required by applicable law, including any Reports
on Form 8-K required under the Securities Act of 1933, as amended, such party
may proceed without the approval of the other party but shall give the other
party as much advance notice of the pending release or announcement as
practicable and, to the extent practicable, a reasonable opportunity to review
and comment thereon.
13.2 Expenses.
Except as otherwise expressly provided herein, each party hereto shall pay
all of its own fees, costs and expenses incurred or to be incurred in
negotiating and preparing this Agreement and in closing and carrying out the
Transactions.
13.3 Notices.
All notices or other communications required or permitted by this
Agreement shall be in writing and shall be deemed to have been duly received (a)
if given by telecopier, when transmitted and the appropriate telephonic
confirmation received if transmitted on a business day and during normal
business hours of the recipient, and otherwise on the next business day
following transmission, (b) if given by certified or registered mail, return
receipt requested, postage prepaid, three business days after being deposited in
the U.S. mail and (c) if given by courier or other means, when received or
personally delivered, and, in any such case, addressed as follows:
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
- 40 -
(i) if to Seller:
c/o DRD Capital Management, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Sheppard, Mullin, Xxxxxxx & Hampton LLP
Eleventh Floor East
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
Winston & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
(ii) if to Purchaser:
Xxxxxxx Marine Services, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx. and Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Peabody LLP
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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or to such other addresses as may be specified by any such Person to the other
Person pursuant to notice given by such Person in accordance with the provisions
of this Section 13.3.
13.4 Assignment; Successors and Permitted Assigns.
The respective rights and obligations of the parties hereto shall not be
assignable without the prior written consent of the other parties; provided,
however, that Purchaser may assign all or part of its rights under this
Agreement and delegate all or part of its obligations under this Agreement to
one or more directly or indirectly, wholly-owned subsidiaries of Xxxxxxx
Maritime Corporation, in which event the assigned rights and powers of the
Purchaser and associated remedies available to it under this Agreement shall
extend to and be enforceable by each such subsidiary; provided further, however,
that no such assignment or delegation shall release Purchaser from its
obligations under this Agreement, and Purchaser hereby guarantees to Seller the
performance by each such subsidiary of its obligations under this Agreement. In
the event of any such assignment and delegation, the term "Purchaser" as used in
this Agreement shall be deemed to refer to each such subsidiary of Xxxxxxx
Maritime Corporation as the context requires, and shall be deemed to include
both Purchaser and each such subsidiary where appropriate. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns.
13.5 No Third Party Beneficiaries.
This Agreement shall not be construed so as to confer any right, remedy or
benefit upon any Person, other than the parties hereto and their respective
successors and permitted assigns.
13.6 Exhibits and Schedules.
The Exhibits and Schedules hereto shall be construed with and as an
integral part of this Agreement to the same effect as if the contents thereof
had been set forth verbatim herein.
13.7 Headings.
The headings used in this Agreement 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 Agreement.
13.8 Entire Agreement.
This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter hereof, and no other representations,
promises, agreements or understandings regarding the subject matter hereof shall
be of any force or effect unless in writing, executed by the party to be bound
thereby and dated on or after the date hereof.
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EXECUTION VERSION
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13.9 Modifications and Waivers.
No change, modification or waiver of any provision of this Agreement shall
be valid or binding unless it is in writing, dated subsequent to the date hereof
and signed by Purchaser and Seller. No waiver of any breach, term or condition
of this Agreement by any party shall constitute a subsequent waiver of the same
or any other breach, term or condition.
13.10 Counterparts.
This Agreement 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.
13.11 Severability.
In case any one or more of the provisions contained herein for any reason
shall be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision or provisions had never been contained
herein.
13.12 GOVERNING LAW.
THIS AGREEMENT 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.
13.13 JURISDICTION; CONSENT TO SERVICE.
EACH PARTY HERETO (A) AGREES THAT ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT SHALL BE BROUGHT SOLELY IN THE
STATE OR FEDERAL COURTS OF THE STATE OF WASHINGTON; (B) CONSENTS TO THE
EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING; (C) WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LAYING OF VENUE IN
ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT; AND (D) AGREES THAT
SERVICE OF ANY COURT PAPER MAY BE MADE IN SUCH MANNER AS MAY BE PROVIDED UNDER
APPLICABLE LAWS OR COURT RULES GOVERNING SERVICE OF PROCESS FOR ANY SUCH COURTS.
13.14 Attorneys' Fees.
In any litigation, arbitration, mediation or other proceeding by which one
party either seeks to enforce its rights under any Transaction Document or seeks
a declaration of any rights or obligation under any Transaction Document, the
prevailing party shall be awarded reasonable
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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attorneys' fees, together with any costs and expenses, to resolve the dispute
and to enforce the final judgment.
13.15 Effectiveness of this Agreement. Notwithstanding anything to the
contrary contained herein, this Agreement shall not become, or be deemed,
effective unless and until the date (the "Effective Date") on which the Consent
Decree is filed in the Superior Court for the State of Alaska, Second Judicial
District at Nome.
[signature page follows]
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
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IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase
Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President - Treasurer
XXXXXX XXXXX LINES, LLC
By: MARINE CAPITAL MANAGEMENT, LLC
Its: Sole Member
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Member
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
GUARANTY
Reference is hereby made to that certain Purchase Agreement dated as of
July 9, 2004 (the "YFC Purchase Agreement") among Xxxxxxx Marine Services, Inc.,
a Delaware corporation ("Purchaser"), Northland Fuel LLC, a Delaware limited
liability company ("Northland Fuel"), Yukon Fuel Company, an Alaska corporation,
and Northland Vessel Leasing Company LLC, a Delaware limited liability company.
The consummation of the transactions under the YFC Purchase Agreement are
conditioned upon the satisfaction (or waiver) of the conditions set forth in the
Asset Purchase Agreement dated as of July 9, 2004 (the "Asset Purchase
Agreement") between Xxxxxx Xxxxx Lines, LLC ("Seller") and Purchaser, to which
this Guaranty is attached. Purchaser has required as a condition to the closing
of the transactions contemplated by the Asset Purchase Agreement the execution
by Northland Fuel of this Guaranty. Northland Fuel hereby irrevocably and
unconditionally guarantees the full payment and performance by Seller of each
and every obligation of Seller under the Asset Purchase Agreement and under each
other agreement and instrument executed and delivered by Seller in connection
with the Asset Purchase Agreement. Northland Fuel's obligations under this
Guaranty shall at all times be subject to all defenses, offsets and cross or
counterclaims which may exist in favor of Seller against Purchaser (other than
defenses based on bankruptcy or insolvency). The sole recourse for satisfaction
of Northland Fuel's obligations under this Guaranty (other than with respect to
indemnification claims against Seller pursuant to Section 9.1(d) of the Asset
Purchase Agreement) shall be pursuant to the Escrow Agreement (as defined in the
YFC Purchase Agreement).
NORTHLAND FUEL LLC
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: V.P. - Assistant Secretary
Dated: July 9, 2004
ASSET PURCHASE AGREEMENT (YBL)
EXECUTION VERSION
