Exhibit 2.2.11
AMENDMENT NO. 10 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 10 TO PURCHASE AGREEMENT (this "Amendment") is made and
entered into as of January 18, 2006 by and between XXXXXXX MARINE SERVICES,
INC., a Delaware corporation ("Purchaser"), and FUEL HOLDING COMPANY LLC (f/k/a
Northland Fuel LLC), a Delaware limited liability company ("Northland Fuel"), YF
LLC (f/k/a Yukon Fuel Company LLC, successor by conversion to Yukon Fuel
Company), an Alaska limited liability company ("YFC"), and NV FUEL LLC (f/k/a
Northland Vessel Leasing Company LLC), a Delaware limited liability company
("NVLC"; collectively with Northland Fuel and YFC, "Sellers"). Purchaser and
Sellers are sometimes referred to herein collectively as the "Parties" and
individually as a "Party."
RECITALS
WHEREAS, Purchaser and Sellers are parties to a Purchase Agreement,
dated as of July 9, 2004, as amended by Amendment No. 1 to Purchase Agreement,
dated as of October 13, 2004, Amendment No. 2 to Purchase Agreement, dated as
of November 22, 2004, Amendment No. 3 to Purchase Agreement, dated as of
January 14, 2005, Amendment No. 4 to Purchase Agreement, dated as of January 21,
2005, Amendment No. 5 to Purchase Agreement, dated as of January 28, 2005,
Amendment No. 6 to Purchase Agreement, dated as of February 4, 2005, Amendment
No. 7 to Purchase Agreement, dated as of February 10, 2005, and Amendment No. 8
to Purchase Agreement, dated as of September 6, 2005, and Amendment No. 9 to
Purchase Agreement, dated as of December 5, 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)(iii) of such
Section in its entirety and inserting in lieu thereof the following:
"(iii) No later than the close of business on January 25, 2006,
Purchaser shall provide Sellers with Purchaser's response to Sellers'
comments (dated January 6, 2006) on the calculations of the Final SOG
Adjusted NWC and the Final YFC Adjusted NWC, other than the calculation of
"Income Tax Payable" liabilities. No later than the close of business on
February 3, 2006, Sellers shall deliver to Purchaser a written report
setting forth in reasonable detail both its calculation of "Income Tax
Payable" liabilities and its
proposed adjustments, taking into account such "Income Tax Payable"
liabilities, to its prior calculation of the Final SOG Adjusted NWC or
the Final YFC Adjusted NWC (the "Adjustment Report"). No later than the
close of business on February 13, 2006, Purchaser shall deliver to Sellers
a written response to the Adjustment Report."
(b) Section 2.2 is hereby amended by deleting subsection (b)(iv) of such
Section in its entirety and inserting in lieu thereof the following:
"(iv) In the event that Sellers and Purchaser fail to agree (A) on
the Final SOG Adjusted NWC and the Final YFC Adjusted NWC, other than the
calculation of "Income Tax Payable" liabilities, by the close of business
on February 1, 2006, or (B) the Adjustment Report by the close of business
on February 17, 2006, Sellers and Purchaser agree that the Independent
Auditors shall, within the 60-day period immediately following February 1,
2006, taking into account when available the Adjustment Report and
Purchaser's response to the Adjustment Report as set forth in Section
2.2(b)(iii), or February 17, 2006, as applicable, make the final
determination of the Final SOG Adjusted NWC and the Final YFC Adjusted NWC.
Within five (5) days after the beginning of such 60-day period, Purchaser
and Sellers each shall provide the Independent Auditors with their
respective versions of the Final SOG Adjusted NWC and the Final YFC
Adjusted NWC calculations, together with all supporting documentation and
supplemented when available by the Adjustment Report and Purchaser's
response to the Adjustment Report, and shall, within three (3) days
following any request by the Independent Auditors, provide the Independent
Auditors with any working papers, calculations, supporting documentation or
additional information that the Independent Auditors may request. The
Independent Auditors shall determine the Final SOG Adjusted NWC and the
Final YFC Adjusted NWC. The decision of the Independent Auditors shall be
final and binding on Sellers and Purchaser. The fees, costs and expenses of
the Independent Auditors shall be paid by the party whose determination of
the Final SOG Adjusted NWC and the Final YFC Adjusted NWC is, in the
aggregate, furthest from the determination of the same by the Independent
Auditors; provided that if such party's determination is within 10% of the
Independent Auditor's determination, such fees, costs and expenses shall be
shared equally by Sellers and Purchaser."
Section 2. Effective Date; No Implied Amendments. Each of the Parties
agrees that the amendment to the Purchase Agreement contained herein shall be
effective upon execution of this Amendment by each Party. Except as specifically
amended by this Amendment, the Purchase Agreement shall remain in full force and
effect in accordance with its respective terms and is hereby ratified and
confirmed. This Amendment shall not be deemed to constitute a waiver of, or
consent to, or a modification or amendment of, any other provision of the
Purchase Agreement except as expressly provided herein or to prejudice any other
right or rights which any Party may now have or may have in the future under or
in connection with the Purchase Agreement. This Amendment shall not constitute
an agreement or obligation of any Party to consent to, waive, modify or amend
any other term, condition, subsection or section of the Purchase Agreement.
Section 3. Benefit of the Agreement. This Amendment shall be binding upon
and inure to the benefit of the Parties and their respective successors and
permitted assigns. This 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.
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Section 4. Headings. The headings used in this Amendment are for
convenience of reference only and shall not be deemed to limit, characterize or
in any way affect the interpretation of any provision of this Amendment.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO ITS CONFLICT OF LAW PRINCIPLES.
Section 6. Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 7. References to Agreement. On and after the date hereof, each
reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof"
or words of like import referring to the Purchase Agreement shall mean the
Purchase Agreement as amended by this Amendment.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Amendment No. 10 to
Purchase Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Assist Treasurer
FUEL HOLDING COMPANY LLC (f/k/a NORTHLAND FUEL LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
YF LLC (f/k/a YUKON FUEL COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
NV FUEL LLC (f/k/a NORTHLAND VESSEL
LEASING COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President of Fuel Holding Company LLC,
sole member of NV Fuel LLC
