Commitments and Contingencies | Note 11 — Commitments and Contingencies Contractual Obligations Wood Pellets On May 1, 2013, Rentech’s subsidiary that owns the Wawa Facility (the “Wawa Company”) entered into the Drax Contract with Drax. Under the Drax Contract, the Wawa Company is required to sell to Drax the first 400,000 metric tons of wood pellets per year produced from the Wawa Facility. In the event that it does not deliver wood pellets as required under the Drax Contract, the Wawa Company is required to pay Drax an amount equal to the positive difference, if any, between the contract price for the wood pellets and the price of any wood pellets Drax purchases in replacement. Rentech, Inc. has guaranteed the Wawa Company’s obligation in an amount not to exceed CAD$20 million until May 1, 2018, and thereafter through the term of the Drax Contract for an amount not to exceed CAD$11 million. The Drax Contract was amended in order to adjust required delivery schedules and annual delivery amounts to reflect the delays the Wawa Company was experiencing in production at the Wawa Facility prior to our decision to idle the facility. The amendments resulted in certain contract adjustments, including cash payments to Drax, credits on deliveries in early 2016, and adding 36,000 metric tons of contracted deliveries in each of 2018 and 2019 at pricing levels contracted for 2015, which would be lower than the pricing levels for 2018-19 in the original contract. In particular, in August 2015, the Company entered into an amendment to the Drax Contract pursuant to which the Wawa Company canceled all 2015 wood pellet deliveries and agreed to a total penalty, which encompassed all amendments relating to 2015 shipments to date, of $2.6 million associated with costs for Drax to purchase replacement pellets and to cancel shipping commitments. In 2015, the Company accrued the $2.6 million penalty in operating expenses. The penalty was paid in the form of credits on the first several deliveries to Drax in early 2016. The Wawa Company delivered approximately 134,000 metric tons to Drax in 2016. The Wawa Facility did not incur penalties in 2016 for the shortfall in delivered pellets from originally contracted volumes because the spot market prices for wood pellets were less than the contracted price with Drax. Prior to our decision to idle the facility, the Wawa Company agreed to deliver approximately 336,000 metric tons to Drax in 2017. In January 2017 we shipped 48,000 metric tons of pellets to Drax. In March 2017, Drax and the Wawa Company agreed to cancel the next two shipments of 2017 without any penalties, leaving the Wawa Company with an obligation to deliver approximately 193,000 metric tons to Drax later in the year. In April 2017, the Wawa Company shipped approximately 12,000 metric tons of pellets to Drax pursuant to an amendment to the Drax Contract; this shipment does not affect our delivery obligations for 2017. Further amendments to the delivery schedule under the Drax Contract will most likely occur as a result of the continued idling of the facility. At this time we cannot make a determination if any penalties will be associated with future changes to the Drax Contract. Rentech, Inc. has guaranteed the payment obligations of the Wawa Company under the terms of the Drax Contract up to a maximum amount of CAD$20 million. Rentech’s subsidiary that owns the Atikokan Facility (the “Atikokan Company”) entered into the OPG Contract with OPG under which such subsidiary is required to deliver 45,000 metric tons of wood pellets annually through December 31, 2023. OPG has the option to increase required delivery of wood pellets from the Atikokan Facility to up to 90,000 metric tons annually. Under the OPG Contract, Rentech, Inc. has guaranteed the Atikokan Company’s obligations in an amount not to exceed CAD$1.0 million. The Wawa Company has contracted with Canadian National Railway Company through December 31, 2023 for all rail transportation of wood pellets from the Atikokan Facility and the Wawa Facility to the Port of Quebec (the “Canadian National Contract”). Under the Canadian National Contract, the Wawa Company committed to transport a minimum of 3,600 rail carloads annually for the duration of the long-term contract. Delivery shortfalls would result in a penalty of CAD$1,000 per rail car under the terms of the Canadian National Contract. Due to issues discovered at the Wawa Facility, the Wawa Company did not fully meet its 2015 commitment under the Canadian National Contract. In addition, the Wawa Company incurred additional carload shortfall penalties for 2016 under the Canadian National Contract as a result of the continued delays in ramping up the Wawa Facility and the revised 2016 deliveries scheduled to Drax. During 2015 and 2016, the Wawa Company incurred and either paid or accrued penalties of $3.3 million and $1.4 million, respectively. In addition, we may incur additional carload shortfall penalties for 2017 under the Canadian National Contract as a result of idling the Wawa Facility and the revised 2017 deliveries scheduled to Drax. For the three months ended March 31, 2017, the Company recorded one-fourth of the estimated liability of shortfall penalties for 2017, which resulted in an expense of $0.6 million. The Company is looking at various alternatives related to the Wawa Facility and may need to record additional liabilities for the Canadian National Contract. As facts and circumstances change, the Company will review its estimated liability and adjust the liability, if needed. Under the Canadian National Contract, Rentech, Inc. has guaranteed the Wawa Company’s obligations in an amount not to exceed CAD$1.5 million. We are currently in litigation with Canadian National regarding the payment of penalties related to the Canadian National Contract. In November 2013, the Wawa Company entered into a lease agreement through April 30, 2024 (the “TrinityRail Lease”) with TrinityRail Canada, Inc. (“Trinity”) under which it committed to lease the required rail cars (258 rail cars per full calendar year) needed to satisfy its delivery requirements under the Drax Contract. The TrinityRail Lease was terminated on March 31, 2017. Due to the lease termination, the Company recorded an estimated remaining liability of $1.3 million that represents the Company’s liability for the remainder of the term of the TrinityRail Lease reduced by an estimate for sublease rental of the rail cars. As facts and circumstances change, the Company will review its estimated liability and adjust the liability, if needed. Litigation The Company is party to litigation from time to time in the normal course of business. The Company accrues liabilities related to litigation only when it concludes that it is probable that it will incur costs related to such litigation, and can reasonably estimate the amount of such costs. In cases where the Company determines that it is not probable, but reasonably possible that it has a material obligation, it discloses such obligations and the possible loss or range of loss, if such estimate can be made. The outcome of the Company’s current litigation matters is not estimable or probable. The Company maintains insurance to cover certain actions and believes that resolution of its current litigation matters will not have a material adverse effect on the Company’s financial statements. Litigation Relating to the Atikokan and Wawa Facilities In June of 2015, RDR Industrial Contractors, Inc. (“RDR”) recorded liens against both the Atikokan Facility and Wawa Facility. RDR performed work at both of the facilities as a subcontractor to Agrirecycle, Inc. (“Agrirecycle”) and asserted that Agrirecycle had failed to pay RDR according to the terms of its subcontract. In September of 2015, EAD Control Systems, Inc. (“EAD Controls”) similarly filed liens against both pellet facilities alleging Agrirecycle’s failure to pay EAD Controls for work performed at both facilities as a subcontractor to Agrirecycle. In October of 2015, Agrirecycle filed liens against both facilities asserting that (i) it had not been paid for services performed as subcontractor for EAD Engineering, Inc. (“EAD Engineering”) and (ii) it had not been paid for work performed under direct contracts with certain wholly owned subsidiaries of the Company (the “RTK Parties”). In December of 2015 and January of 2016, the RTK Parties filed statements of defense denying the allegations set forth by RDR, EAD Controls and Agrirecycle and seeking over $40.2 million in the aggregate by way of counterclaims and cross-claims against EAD Engineering, EAD Controls, Agrirecycle and RDR for damages incurred due to defective engineering, design, equipment supply and construction at our pellet facilities, including the cost to remedy and replace defective work as well as penalties, schedule delays and lost profits. In late August of 2016, EAD Engineering filed crossclaims against the RTK Parties, within Agrirecycle’s lien actions for amounts allegedly owing by the RTK Parties to EAD Engineering. Specifically, EAD Engineering alleges that it is owed unpaid contract amounts and amounts for extra work completed at both pellet facilities for the RTK Parties. EAD Engineering did not register any liens against the facilities for the amounts it now claims are allegedly owed. The amounts claimed by RDR, EAD Controls, EAD Engineering and Agrirecycle in the separate causes of action in Ontario Superior Court naming the RTK Parties and the Company as defendants is approximately $6.5 million. This includes claims for amounts allegedly due under contracts with the RTK Parties and claims by subcontractors against our direct contractors. The Company will continue to vigorously defend itself against the allegations made by EAD Engineering, EAD Controls, Agrirecycle and RDR and vigorously pursue recovery from EAD Engineering, EAD Controls, Agrirecycle and RDR. Given that this litigation is in the pleadings stage and discovery has yet to begin, the Company is unable to estimate at this time the likelihood or the amount of any judgments which may be rendered either in favor of or against it or the RTK Parties. On February 20, 2017 Canadian National Railway Company (“CN”) filed claims against Rentech, Inc. and RTK WP in Superior Court in the Province of Quebec, District of Montreal for CAD$2,391,858 plus costs relating to penalties for volume shortfalls under the Canadian National Contract, freight services and demurrage charges in calendar year 2016. Further, CN has requested that for CAD$1,500,000 of the aforementioned amount, Rentech, Inc. be ordered to compensate CN pursuant to the terms of the Rentech, Inc. parent company guaranty. Both the Company and RTK WP are reviewing these claims, and intends to defend against them vigorously. On February 22, 2017, Juan Las Heras, a purported shareholder of the Company, filed a federal securities class action complaint on behalf of other shareholders of Rentech similarly situated to Mr. Heras, against Rentech, Inc., Jeffrey R. Spain, and Keith Forman in the U.S. District Court for the Eastern District of New York (the “Heras Lawsuit”). On February 23, 2017, Cheng Jiangchen , a purported shareholder of the Company, filed a federal securities class action complaint on behalf of other shareholders of Rentech, Inc. similarly situated to Mr. Jiangchen, against Rentech, Inc. and Keith Forman in the U.S. District Court for the Central District of California (the “Jiangchen Lawsuit”). On March 7, 2017, Carlos Raul Cuadra, a purported shareholder of Rentech, filed a federal securities class action complaint on behalf of other shareholders of Rentech similarly situated to Mr. Cuadra, against Rentech, Inc., Jeffrey R. Spain, and Keith Forman in the U.S. District Court for the Eastern District of New York (the “Cuadra Lawsuit”, and together with the Heras Lawsuit and the Jiangchen Lawsuit, the “Lawsuits”). The Lawsuits allege, among other things, that in the Company’s disclosure related to third quarter earnings and financial results in November 2016, the Company made false and misleading statements because they failed to disclose certain material facts regarding Canadian operations which facts were later disclosed in a press release issued by Rentech on February 21, 2017 (the “Press Release”). The Lawsuits also allege that Company officers named in the respective Lawsuits knowingly and substantially participated or acquiesced in the issuance or dissemination of materially false and misleading statements. The Lawsuits seek compensation for losses resulting from fluctuations in stock price of the Company in the period from November 2016 through February 2017, as well as attorney fees, expert fees and costs. The Lawsuits are each at a preliminary stage. The Company believes the Lawsuits are without merit and intends to defend against these claims vigorously. On March 24, 2017, Jingwen Fu, derivatively on behalf of Rentech, Inc., filed a shareholder derivative complaint against Keith Forman, Jeffrey R. Spain, Paul Summers and the members of the Rentech, Inc. board of directors (the “Derivative Defendants”) in the Superior Court of the District of Columbia (the “Fu Lawsuit”). On May 8, 2017, Anton Shaigne, derivatively on behalf of Rentech, Inc., filed a shareholder derivative complaint against the Derivative Defendants in the Superior Court of the District of Columbia (the “Shaigne Lawsuit”, and together with the Fu Lawsuit, the “Derivative Lawsuits”). The Derivative Lawsuits allege, among other things, that the Derivative Defendants breached their fiduciary duties by failing to maintain proper disclosure controls and making false and/or misleading statements and/or omissions concerning the Company’s business in the period from November 9, 2016 through the present, and in the case of the Shaigne Lawsuit also in calendar year 2016 related to the Company’s restatement of financial statements for the three and six months ended June 30, 2016 and the three and nine months ended September 30, 2016. The Derivative Lawsuits also allege unjust enrichment, abuse of control, gross mismanagement and waste of corporate assets by the Derivative Defendants. The Derivative Lawsuits seek to change certain corporate governance policies of the Company, to nominate at least four members for election to the Company Board of Directors and restitution from each of the Derivative Defendants, as well as attorney fees, expert fees and costs. The Derivative Lawsuits are at a preliminary stage. The Company believes the Derivative Lawsuits are without merit and intends to defend against them vigorously. Regulation The Company’s business is subject to extensive and frequently changing federal, provincial, state and local, environmental, health and safety regulations governing a wide range of matters, including the emission of air pollutants, the release of hazardous substances into the environment, the treatment and discharge of waste water and the storage, handling, use and transportation of the Company’s products, wood fibre feedstock, and other substances that are part of our operations. These laws include the Clean Air Act (the “CAA”), the federal Water Pollution Control Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and various other federal, provincial, state and local laws and regulations. The laws and regulations to which the Company is subject are complex, change frequently and have tended to become more stringent over time. The ultimate impact on the Company’s business of complying with existing laws and regulations is not always clearly known or determinable due in part to the fact that the Company’s operations may change over time and certain implementing regulations for laws, such as the CAA, have not yet been finalized, are under governmental or judicial review or are being revised. These laws and regulations could result in increased capital, operating and compliance costs. |