Exhibit 2.2.14
POST-CLOSING AGREEMENT
THIS POST-CLOSING AGREEMENT (this "Agreement") is made and entered into as
of February 22, 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"), NV FUEL LLC (f/k/a Northland Vessel
Leasing Company LLC), a Delaware limited liability company ("NVLC"), and BARGE
LINES, LLC (f/k/a Xxxxxx Xxxxx Lines, LLC), a Delaware limited liability company
("YBL"; collectively with Northland Fuel, YFC and NVLC, "Sellers"). Purchaser
and Sellers are sometimes referred to herein collectively as the "Parties" and
individually as a "Party."
RECITALS
WHEREAS, Purchaser and Sellers are party to that certain Purchase Agreement
dated as of July 9, 2004 (as amended, the "Purchase Agreement"; terms defined in
the Purchase Agreement and not otherwise defined herein are being used herein as
therein defined) among Northland Fuel, YFC, NVLC and Purchaser, and the YBL
Purchase Agreement referenced therein, pursuant to which Purchaser has purchased
from Sellers the fuel distribution business of Northland Fuel and its
subsidiaries; and
WHEREAS, the Parties have, pursuant to Section 2.2(b) of the Purchase
Agreement and Section 2.2(b) of the YBL Purchase Agreement, agreed on the final
calculation of net working capital with respect to taxes, and desire to set
forth certain agreements with respect to such calculation.
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. Calculation of "Income Tax Payable" Liabilities. The
undersigned hereby acknowledge that the Parties have agreed on the calculation
of "Income Tax Payable" liabilities as provided in Section 2.2(b)(iii) and (iv)
of the Purchase Agreement, and the final calculation of the Final SOG Adjusted
NWC, the Final YFC Adjusted NWC and the "Adjusted NWC" (as defined in the YBL
Purchase Agreement). The undersigned hereby agree that the estimate of "Income
Tax Payable" liabilities at Closing included in the calculations of the
Preliminary SOG Adjusted NWC, Preliminary YFC Adjusted NWC and the "Preliminary
Adjusted NWC" (as defined in the YBL Purchase Agreement) was equal to
$1,514,158, and the final calculation of "Income Tax Payable" liabilities is
equal to $1,385,184. Notwithstanding any provision of the Purchase Agreement or
the YBL Purchase Agreement to the contrary, the undersigned hereby agree that
payment of $128,974 is due from Purchaser to Northland Fuel, pursuant to Section
2.2(b)(vi) of the Purchase Agreement, with respect to the agreed calculation of
"Income Tax Payable" liabilities. Payment shall be made by Purchaser to
Northland Fuel no later than ten (10)
days after the date hereof. The Parties agree that such payment is in full
satisfaction of, and each Party releases each other Party from, any claim for
payment pursuant to Section 2.2(b) of the Purchase Agreement or Section 2.2(b)
of the YBL Purchase Agreement.
Section 2. Headings. The headings used in this Agreement 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 Agreement.
Section 3. GOVERNING LAW. THIS AGREEMENT 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 4. Counterparts. This Agreement 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.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X.Xxxxxxx
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Title: Ass't Treasurer
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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: VP & Secretary
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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: VP of Fuel Holding Company LLC, its sole member
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BARGE LINES, LLC (f/k/a XXXXXX XXXXX LINES, LLC)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Manager
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