EXHIBIT 2.8
AMENDMENT NO. 5 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 TO PURCHASE AGREEMENT (this "Amendment") is made and
entered into as of January 28, 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, and Amendment No. 4 to Purchase Agreement, dated as of January 21,
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:
(a) Section 12.1(a)(viii) is hereby amended by replacing the date "January
28, 2005" with the date "February 4, 2005".
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. 5 to
Purchase Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
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Title: Attorney-in-fact
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NORTHLAND FUEL LLC
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: V.P. - Assist. Sec.
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YUKON FUEL COMPANY
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
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Title: President
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NORTHLAND VESSEL LEASING COMPANY LLC
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
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Title: Senior V.P. - Assist. Sec.
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