Membership Purchase Agreement | 13. Membership Interest Purchase Agreement On December 5, 2014, the Company entered into a Membership Interest Purchase Agreement with DPT, Dakota Plains Sand, LLC, DPM and PTS. Pursuant to the Membership Interest Purchase Agreement, in exchange for $43 million in cash and an Operational Override (as defined below), DPT acquired all of the limited liability company membership interests of DPTS owned by PTS, Dakota Plains Sand, LLC acquired all of the limited liability company membership interests of DPTS Sand, LLC owned by PTS, and DPM acquired all of the limited liability company membership interests of DPTSM owned by PTS. As a result of the transactions, through ownership of its wholly owned subsidiaries, the Company became the sole member of DPTS, DPTS Sand, LLC and DPTSM. In addition to $ 43 0.225 80,000 10 At any time, the Company may pay PTS an amount equal to the then-present value (using a nine The Membership Interest Purchase Agreement contains certain representations, warranties, covenants and indemnification obligations of the parties. In connection with the Membership Interest Purchase Agreement, the Company entered into an Indemnification and Release Agreement dated December 5, 2014 with World Fuel Services Corporation ("WFS") (the "Indemnification and Release Agreement"). Pursuant to the Indemnification and Release Agreement, WFS, on behalf of itself and its direct and indirect subsidiaries, agreed to indemnify the Company, DPTS, DPTSM, and each of their respective officers, managers, directors, employees, affiliates, members, and stockholders, for third party claims in connection with, relating to, or otherwise arising from the train car derailment that occurred in Lac-Mégantic, Quebec, on July 6, 2013 (the "Derailment"). In addition, the Company, DPT and DPM, on behalf of itself and each such entity's direct and indirect subsidiaries, agreed to indemnify WFS and WFS's officers, managers, directors, employees, affiliates, members, and stockholders for (i) fifty fifty 10 3 In connection with the indemnification, each of the Company and WFS, on its behalf and on behalf of its affiliates, released the other party and its affiliates from any claims arising in connection with the Derailment, other than those for which indemnification is provided under the Indemnification and Release Agreement. Pursuant to a Guaranty and Security Agreement, dated December 5, 2014 (the "Seller Guaranty and Security Agreement"), made by DPT, Dakota Plains Sand, LLC, DPM, the Company and certain subsidiaries of the Company, the Company's obligations under Section 2.2(b) of the Membership Interest Purchase Agreement in respect of the Operational Override, the Company's obligations in the Indemnification and Release Agreement and the obligations of DPTSM under five Amended and Restated Railcar Sublease Agreements between DPTSM and Western Petroleum Company are guaranteed by DPT, Dakota Plains Sand, LLC, DPM, the Company and certain subsidiaries of the Company, and are secured by a second priority lien on all of the assets of such parties. In connection with the Membership Interest Purchase Agreement, the following agreements were terminated: (a) that certain Member Control Agreement of DPTS Sand, LLC, effective as of June 1, 2014, by and among Dakota Plains Sand, LLC, PTS, and DPTS Sand, LLC; (b) that certain Second Amended and Restated Member Control Agreement of DPTS effective as of December 31, 2013, by and among DPT, PTS and DPTS; and (c) that certain Second Amended and Restated Member Control Agreement of DPTSM, effective as of December 31, 2013, by and among DPM, PTS, and DPTSM; provided DPM and its affiliates will remain subject to the restrictions against purchasing, selling, storing, transporting or marketing crude oil originating from production fields anywhere in North Dakota, or conducting any trading activities related thereto, until June 5, 2015, but shall be permitted to sublease and lease-for-trip railcars to transport crude oil, and transport any other materials (including crude oil) by road. Operational Override As part of the Membership Interest Purchase Agreement, the Company agreed to pay a quarterly Operational Override payment to PTS through December 31, 2026. The payments are due within 45 days of the end of each calendar quarter. In the event such Operational Override payments, in the aggregate, are less than $10 million, then the Company is obligated to pay PTS the difference on or before January 31, 2027. In December 2014, the Company calculated an initial liability of $45.3 million related to the Operational Override. The initial Operational Override was calculated based on the Company's estimated daily throughput from December 1, 2014 through December 31, 2026; discounted at an interest rate of 9%. In 2015, the Company recalculated the fair value of the Operational Override due to lower expected volumes. The Operational Override at December 31, 2015 is $34.3 million. Annual maturities of the Operational Override are as follows: Year Ending: Amount December 31, 2016 $ 1,879,607 December 31, 2017 2,093,108 December 31, 2018 2,289,456 December 31, 2019 2,504,223 December 31, 2020 2,753,684 Thereafter 22,785,896 Total 34,305,974 Less: Current Portion 1,879,607 Total Long-Term Portion $ 32,426,367 Railcar Sublease Agreements Concurrent with the Membership Interest Purchase Agreement, the Company, through DPTSM, entered into five Amended and Restated Railcar Sublease Agreements with Western Petroleum Company ("Amended Sublease Agreements"). Under the Amended Sublease Agreements, DPTSM will sublease a total of 872 railcars from Western Petroleum Company subject to the terms, covenants, provisions, conditions, and agreements contained in the master railcar leases between the original lessors and Western Petroleum Company. The term of the Amended Sublease Agreements shall be from December 5, 2014 (the "Effective Date") until the end of the term of the applicable schedule to the respective master railcar lease. The last of the master railcar leases expires in August 2021. Within thirty 30 days after the Effective Date, Western Petroleum Company delivered to DPTSM a certain set of railcars as identified in a schedule included with the Amended Sublease Agreements. For the period (the "Suspension Period") beginning on the Effective Date and ending on June 1, 2015 (the "Suspension Termination Date"), the Amended Sublease Agreements as they relate to certain other railcars identified in an additional schedule (the "Suspended Cars") shall be temporarily suspended to permit Western Petroleum Company to retain the Suspended Cars. No later than 30 days after the Suspension Termination Date, Western Petroleum Company will deliver the Suspended Cars to DPTSM at the Company's transloading facility located in New Town, North Dakota, unless an alternate location is agreed to. The Amended Sublease Agreements are being accounted for as operating leases. DPTSM assumes and accepts the responsibility for any charges incurred between the time of delivery of the railcars to DPTSM under the Amended Sublease Agreements and redelivery of the railcars to Western Petroleum Company at the conclusion of the term, including, but not limited to, charges resulting from demurrage, track storage, switching, detention, freight or empty movements made by the railcars upon each railroad over which the railcars shall move during the term of the Amended Sublease Agreements, as well as any other charges set forth in the master railcar leases. The total net lease expense under the Amended Sublease Agreements recorded to Other Expense on the statement of operations was approximately $ 1.7 0.3 Minimum future base lease payments under the Amended Sublease Agreements are as follows: Year Ending: Amount December 31, 2016 $ 6,295,000 December 31, 2017 3,246,000 December 31, 2018 2,836,000 December 31, 2019 2,350,000 December 31, 2020-2021 2,714,000 Total $ 17,441,000 Equity Transaction There was no value assigned to the Company's purchase of DPTSM. The Company's purchase of PTS's membership interest in DPTS and DPTS Sand, LLC was accounted for as an equity transaction in accordance with FASB ASC 810-45-23. Under ASC 810-45-23, changes in a parent's ownership interest while the parent retains its controlling interest in its subsidiary shall be accounted for as equity transactions. As an equity transaction, the Company reported any difference between the fair value of the consideration paid and the amount by which the non-controlling interest of DPTS and DPTS Sand, LLC was adjusted was recognized in additional paid-in capital. The amount recognized in additional paid-in capital as of December 31, 2014 was calculated as follows: Cash Consideration Paid $ 43,000,000 Direct Cost of Transaction 1,225,953 Fair Value of Contingent Liability 45,310,867 Total Purchase Price 89,536,820 Deferred Tax Asset Recorded 24,114,000 Fair Value of Consideration Paid 65,422,820 Non-Controlling Interest – DPTS 25,982,992 Non-Controlling Interest – DPTS Sand, LLC - Total Adjustment to Additional Paid-In Capital $ 39,439,828 During the year ended December 31, 2015, the Company trued-up the transaction with PTS. As part of the true-up, the Company assumed additional net liabilities and recorded an adjustment to Additional Paid-In Capital of $411,802 during the year ended December 31, 2015 related to these net liabilities. |