Exhibit 2.2.13
POST-CLOSING AGREEMENT
THIS POST-CLOSING AGREEMENT (this "Agreement") is made and entered into as
of January 30, 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
calculations of net working capital, other than with respect to taxes, and
desire to set forth certain agreements with respect to such calculations.
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. Net Working Capital. The undersigned hereby acknowledge that the
Parties have agreed on the calculation of the Final SOG Adjusted NWC, the Final
YFC Adjusted NWC and the "Adjusted NWC" (as defined in the YBL Purchase
Agreement), other than with respect to the calculation of "Income Tax Payable"
liabilities as provided in Section 2.2(b)(iii) and (iv) of the Purchase
Agreement. Notwithstanding any provision of the Purchase Agreement or the YBL
Purchase Agreement to the contrary, the undersigned hereby agree that, solely
with respect to the agreed calculation of the Final SOG Adjusted NWC, the Final
YFC Adjusted NWC and the "Adjusted NWC" (as defined in the YBL Purchase
Agreement), other than the calculation of "Income Tax Payable" liabilities, no
payments shall be due (A) from Purchaser to Northland Fuel, nor from Northland
Fuel to Purchaser, pursuant to Section 2.2(b)(vi) of the Purchase Agreement, (B)
from Purchaser to YFC, nor from YFC to Purchaser, pursuant to Section
2.2(b)(vii) of the Purchase Agreement, or (C) from Purchaser to YBL, nor from
YBL to Purchaser, pursuant to Section 2.2(b)(vi) of the YBL Purchase Agreement.
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 except with
respect to "Income Tax Payable" liabilities.
Section 2. Fuel Tax Receivable. The undersigned hereby agree that that
certain excise fuel tax receivable due from the U.S. federal government related
to periods prior to the Closing (the "Receivable") and shown on YFC's books in
the amount of $198,615 shall be property of YFC and retained by YFC as an asset.
Purchaser agrees, at its sole cost and expense, to prepare or cause to be
prepared, on behalf of YFC, no later than March 31, 2006, any and all Tax
returns and reports, amended or otherwise, necessary in order for YFC to collect
the Receivable. If Purchaser receives any refund with respect to such
Receivable, Purchaser shall pay such amount to YFC promptly upon receipt.
Purchaser disclaims any warranty as to the collectability of the Receivable or
as to the consequences of filing such Tax returns and reports.
Section 3. 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 4. 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 5. 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 Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
FUEL HOLDING COMPANY LLC (f/k/a NORTHLAND
FUEL LLC)
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
YF LLC (f/k/a YUKON FUEL COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
NV FUEL LLC (f/k/a NORTHLAND VESSEL LEASING
COMPANY LLC)
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President of Fuel Holding
Company LLC, its sole member
BARGE LINES, LLC (f/k/a XXXXXX XXXXX
LINES, LLC)
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Manager of Marine Capital
Management, LLC, its sole member
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