AMENDMENT NO. 8 TO PURCHASE AGREEMENT
Exhibit 2.11
AMENDMENT NO. 8 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 8 TO PURCHASE AGREEMENT (this “Amendment”) is made and entered into
as of September 6, 2005 by and between XXXXXXX MARINE SERVICES, INC., a Delaware corporation
(“Purchaser”), and NORTHLAND FUEL LLC, a Delaware limited liability company (“Northland
Fuel”), YUKON FUEL COMPANY, an Alaska corporation (“YFC”), and 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, and Amendment No. 7 to Purchase Agreement, dated as of
February 10, 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
will purchase 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:
Section 7.1 is hereby amended by deleting subsection (h) of such Section in its entirety and
inserting in lieu thereof the following:
“(h) Release of Certain Northland Holdings’ and Northland Fuel’s Guarantees.
The guarantee of Northland Holdings or Northland Fuel, as applicable, on each of the
contracts identified on Schedule 7.1(h) as being guaranteed by Northland Holdings or
Northland Fuel, as applicable, shall have been released or otherwise terminated.”
Section 8.3 is hereby amended by deleting subsection (p) of such Section in its entirety and
inserting in lieu thereof the following:
“(p) from each of Northland Fuel and SOG a certificate, pursuant to Section 1445
of the Code, dated the Closing Date in form reasonably satisfactory to Purchaser; and”
Section 9.1 is hereby amended by changing the period at the end of clause (d) to “; and” and
by adding the following clause (e) at the end thereof:
“(e) SOG’s and YFC’s credit facility with LaSalle, which is to be paid-off in full at
the Closing as contemplated by Section 2.2(a).”
Section 11.7 is hereby amended by deleting the fourth and fifth sentences of such Section in
their entirety and inserting in lieu thereof the following:
“Such New Employees who are non-union employees and SOG employees (other than the
Non-Retained SOG Employees) may elect to make a rollover contribution of such distribution
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 of such distribution 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. With respect to such New Employees and SOG employees who have outstanding loans under
Sellers’ 401(k) Plan, Purchaser and Northland Fuel agree that each of these employees may
elect to rollover their benefits under Sellers’ 401(k) Plan in the following steps: (a) the
employee may elect to rollover the balance of the employee’s account under Sellers’ 401(k)
Plan, less the amount of the employee’s outstanding loan, to Purchaser’s Salaried 401(k)
Plan or Purchaser’s Union 401(k) Plan, as applicable, (b) the employee may apply for a loan
from Purchaser’s Salaried 401(k) Plan or Purchaser’s Union 401(k) Plan, as applicable, and
Purchaser shall cause such loan to be approved as soon as administratively practicable
thereafter, and (c) the employee may use the proceeds of such loan to repay the employee’s
loan under Sellers’ 401(k) Plan and then elect to rollover the remaining balance of the
employee’s account under Sellers’ 401(k) Plan to Purchaser’s Salaried 401(k) Plan or
Purchaser’s Union 401(k) Plan, as applicable.”
Schedule 2.4 (“Retained Assets”) is hereby amended by adding the following to the list of YFC
Retained Assets:
| “5. | Contribution Agreement, dated as of April 6, 2004, between Northland Holdings and YFC. | ||
| 6. | Indemnification Agreement, dated as of April 8, 2004, by and between Northland Holdings, Northland Fuel and YFC.” |
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Schedule 5.7 (“Significant Real Property”) is hereby amended by deleting such Schedule in its
entirety and inserting in lieu thereof the attached Schedule 5.7.
Schedule 5.10 (“Estoppel Certificates”) is hereby amended by deleting such Schedule in its
entirety and inserting in lieu thereof the attached Schedule 5.10.
Schedule 6.1(c) (“Required Consents”) is hereby amended by deleting such Schedule in its
entirety and inserting in lieu thereof the attached Schedule 6.1(c).
Schedule 7.1(h) (“Contracts Guaranteed by Northland Holdings and Northland Fuel”) is hereby
amended by deleting such Schedule in its entirety and inserting in lieu thereof the attached
Schedule 7.1(h).
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]
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IN WITNESS WHEREOF, the Parties have executed this Amendment No. 8 to Purchase Agreement as of
the date first written above.
| XXXXXXX MARINE SERVICES, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| NORTHLAND FUEL LLC | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: Vice President | ||||
| YUKON FUEL COMPANY | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: President | ||||
| NORTHLAND VESSEL LEASING COMPANY LLC | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: Vice President | ||||
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