EXHIBIT 2.2.10
AMENDMENT NO. 9 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 9 TO PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of December 5, 2005 by and between XXXXXXX MARINE SERVICES,
INC., a Delaware corporation ("Purchaser"), and FUEL HOLDING COMPANY LLC (f/k/a
Northland Fuel LLC), a Delaware limited liability company ("Northland Fuel"), YF
LLC (f/k/a Yukon Fuel Company LLC, successor by conversion to Yukon Fuel
Company), an Alaska limited liability company ("YFC"), and NV FUEL LLC (f/k/a
Northland Vessel Leasing Company LLC), a Delaware limited liability company
("NVLC"; collectively with Northland Fuel and YFC, "Sellers"). Purchaser and
Sellers are sometimes referred to herein collectively as the "Parties" and
individually as a "Party."
RECITALS
WHEREAS, Purchaser and Sellers are parties to a Purchase Agreement,
dated as of July 9, 2004, as amended by Amendment No. 1 to Purchase Agreement,
dated as of October 13, 2004, Amendment No. 2 to Purchase Agreement, dated as of
November 22, 2004, Amendment No. 3 to Purchase Agreement, dated as of January
14, 2005, Amendment No. 4 to Purchase Agreement, dated as of January 21, 2005,
Amendment No. 5 to Purchase Agreement, dated as of January 28, 2005, Amendment
No. 6 to Purchase Agreement, dated as of February 4, 2005, Amendment No. 7 to
Purchase Agreement, dated as of February 10, 2005, and Amendment No. 8 to
Purchase Agreement, dated as of September 6, 2005 (the "Purchase Agreement";
terms defined in the Purchase Agreement and not otherwise defined herein are
being used herein as therein defined), pursuant to which Purchaser has purchased
from Sellers the fuel distribution business of Northland Fuel and its
subsidiaries; and
WHEREAS, Purchaser and Sellers have agreed, pursuant to Section 13.9 of
the Purchase Agreement, to amend the Purchase Agreement on the terms provided
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
Section 1. Amendment. The Purchase Agreement is hereby amended as
follows:
(a) Section 2.2 is hereby amended by deleting subsection (b)(ii) of
such Section in its entirety and inserting in lieu thereof the following:
"(ii) Purchaser shall prepare and deliver to Sellers within
ninety (90) days after the Closing Date (A) calculations of SOG's
Adjusted NWC (the "Final SOG Adjusted NWC") and YFC's Adjusted NWC (the
"Final YFC Adjusted NWC"), in each case as of the Closing, and (B) a
reconciliation of the Preliminary SOG Adjusted NWC and Preliminary YFC
Adjusted NWC calculations to the Final SOG Adjusted NWC and Final
YFC Adjusted NWC calculations, together with all supporting
documentation and computations (collectively, the "Reconciliation").
The Parties hereby acknowledge and agree that liabilities for "Income
Tax Payable" (as identified as a separate line item in Schedule 2.2)
cannot be calculated by Purchaser, and therefore Purchaser's
calculations of Final SOG Adjusted NWC and Final YFC Adjusted NWC
delivered to Sellers shall each include such liabilities as were
originally provided by Sellers pursuant to Section 2.2(b)(i). Purchaser
shall promptly make available to Sellers all personnel, books, records
and documents reasonably requested by Sellers for purposes of their
review of Purchaser's calculation of the Final YFC Adjusted NWC and the
Final SOG Adjusted NWC."
(b) Section 2.2 is hereby amended by deleting subsection (b)(iii) of
such Section in its entirety and inserting in lieu thereof the following:
"(iii) No later than January 13, 2005, Sellers shall deliver
to Purchaser a written report setting forth in reasonable detail both
its calculation of "Income Tax Payable" liabilities and its proposed
adjustments, taking into account such "Income Tax Payable" liabilities,
to the Final SOG Adjusted NWC or the Final YFC Adjusted NWC (the
"Adjustment Report")."
Section 2. Effective Date; No Implied Amendments. Each of the Parties
agrees that the amendment to the Purchase Agreement contained herein shall be
effective upon execution of this Amendment by each Party. Except as specifically
amended by this Amendment, the Purchase Agreement shall remain in full force and
effect in accordance with its respective terms and is hereby ratified and
confirmed. This Amendment shall not be deemed to constitute a waiver of, or
consent to, or a modification or amendment of, any other provision of the
Purchase Agreement except as expressly provided herein or to prejudice any other
right or rights which any Party may now have or may have in the future under or
in connection with the Purchase Agreement. This Amendment shall not constitute
an agreement or obligation of any Party to consent to, waive, modify or amend
any other term, condition, subsection or section of the Purchase Agreement.
Section 3. Benefit of the Agreement. This Amendment shall be binding
upon and inure to the benefit of the Parties and their respective successors and
permitted assigns. This Amendment shall not be construed so as to confer any
right, remedy or benefit upon any Person, other than the Parties and their
respective successors and permitted assigns.
Section 4. Headings. The headings used in this Amendment are for
convenience of reference only and shall not be deemed to limit, characterize or
in any way affect the interpretation of any provision of this Amendment.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO ITS CONFLICT OF LAW PRINCIPLES.
Section 6. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7. References to Agreement. On and after the date hereof, each
reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof"
or words of like import referring to the Purchase Agreement shall mean the
Purchase Agreement as amended by this Amendment.
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 9 to
Purchase Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Senior V.P. & General Counsel
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FUEL HOLDING COMPANY LLC
(f/k/a NORTHLAND FUEL LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President
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YF LLC (f/k/a YUKON FUEL COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: President
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NV FUEL LLC (f/k/a NORTHLAND VESSEL
LEASING COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President of Fuel Holding
Company LLC, Sole Member of NV
Fuel LLC
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