EXHIBIT 2.3
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO PURCHASE AGREEMENT (this "Amendment") is made and
entered into as of October 13, 2004 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 (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 2.3(a)(i) is hereby amended by deleting clause (A) of such
Section in its entirety and inserting in lieu thereof the following:
"(A) notwithstanding any other agreement between Purchaser and YFC,
including any letter agreements entered into for the purpose of soliciting
third party consents to the assignment of Contracts, only to the extent
such obligations and liabilities are not attributable to any breach or
default, or permit violation, by YFC or any employee, agent or contractor
of YFC".
(b) Section 5.5(a) is hereby amended by deleting the words "the tenth
Business Day following the date hereof" in subsection (i) thereto and inserting
in lieu thereof the words "August 12, 2004".
(c) Section 5.8 is hereby amended by replacing the date "September 15,
2004" with the words "the date scheduled for the hearing contemplated by Section
XVI of the Consent Decree" in each place that it appears in such Section.
(d) Section 5.11 is hereby amended by deleting such Section in its
entirety and inserting in lieu thereof the following:
"YFC Conversion. Prior to the Closing Date, YFC shall convert (the
"Conversion") from an Alaska corporation into an Alaska limited liability
company ("YFC LLC"). The parties hereto agree that after the Conversion,
all references in this Agreement to YFC are with respect to YFC LLC."
(e) Article V is hereby amended by adding the following Section 5.14 to
the end of such Article:
"Section 5.14 SOG's Xxxxxx Kwik Kard Location.
Notwithstanding anything herein to the contrary, Purchaser and
Sellers acknowledge and agree that, prior to the Closing, (i) SOG's
lease of the land upon which its Kwik Kard facility in Palmer,
Alaska (the "Kwik Kard Facility") is located has expired and that
Xxxx X. Xxxxxxxx (the "Xxxxxx Land Seller"), who is the owner of
such land and the landlord under such lease, has indicated that he
is not willing to extend or renew the lease, but that he is willing
to sell the Xxxxxx Land to SOG, provided that SOG also acquires the
adjoining six acres, (ii) SOG may enter into that certain Agreement
For Purchase And Sale, which shall be substantially in the form of
Exhibit H hereto (the "Xxxxxx Purchase Agreement"), with the Xxxxxx
Land Seller, pursuant to which SOG may acquire from the Xxxxxx Land
Seller the real property on which the Kwik Kard Facility currently
is located, together with the adjoining six acres (together, the
"Xxxxxx Land"), (iii) SOG may pay the purchase price for the Xxxxxx
Land partially with a promissory note to the Xxxxxx Land Seller,
substantially in the form attached as an exhibit to the Xxxxxx
Purchase Agreement (the "Xxxxxx Promissory Note"), in an original
principal amount not to exceed $600,000, payable as set forth in the
Xxxxxx Purchase Agreement, including the provisions thereof that
require an acceleration of all amounts due under the Xxxxxx
Promissory Note in certain circumstances, (iv) SOG may grant to the
Xxxxxx Land Seller a mortgage on the Xxxxxx Land in the form of a
deed of trust, substantially in the form attached as an exhibit to
the Xxxxxx Purchase Agreement, as security for SOG's obligations
under the Xxxxxx Purchase Agreement and the Xxxxxx Promissory Note,
(v) as a result of SOG's acquisition of the Xxxxxx Land, SOG may
terminate its lease of the Xxxxxx Land, (vi) the indebtedness
evidenced by the Xxxxxx Promissory Note will not be included in the
calculation of Adjusted NWC or otherwise effect the Purchase Price
and (vii) all applicable Schedules shall be deemed modified to
reflect the parties' agreement with the transactions contemplated by
this Section 5.14."
(f) Section 12.1(a)(viii) is hereby amended by replacing the date "October
15, 2004" with the date "November 19, 2004".
(g) Section 13.8 is hereby amended by adding to the end of such Section
the following sentence:
"The parties hereby agree that, in the event of any conflict or
inconsistency between any Transaction Document and any xxxx of sale and
assignment, assumption agreement, letter agreement, consent letter,
novation agreement, estoppel certificate or
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similar agreement executed by Purchaser and/or any Seller for the purpose
of soliciting third party consents, the provisions of the Transaction
Documents shall govern."
(h) Exhibit H hereto is hereby added to the Purchase Agreement as Exhibit
H thereto.
(i) 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).
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. 1 to
Purchase Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxx Love
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Name: Xxxxx Love
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Title: Corporate Secretary
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NORTHLAND FUEL LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Vice President
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YUKON FUEL COMPANY
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: President
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NORTHLAND VESSEL LEASING COMPANY LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Vice President
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