Exhibit 10.1 


Execution
Version 


 





 



 


ASSET
PURCHASE AGREEMENT 


 


Dated
as of December 19, 2016 


 


By
and Among 


 


BioUrja
Trading, LLC 


 


as
Purchaser, 


 


and


 


Dakota
Plains Holdings, Inc. and Dakota Petroleum Transport Solutions, LLC


 


as
Sellers.


 





 






 




    	 



    	 



    

 


TABLE
OF CONTENTS


 


	 	 	Page
	 	 
	ARTICLE
    I. PURCHASE AND SALE OF THE PURCHASED ASSETS; ASSUMPTION OF ASSUMED LIABILITIES	2
	 	 	 
	1.1	Purchase and Sale
    of the Purchased Assets	2
	1.2	Excluded Assets	4
	1.3	Assumption of Liabilities	5
	1.4	Excluded Liabilities	5
	1.5	Post-Closing Liabilities	7
	1.6	Assumption of Assigned
    Contracts and Permits	7
	1.7	Disclaimer	8
	 	 
	ARTICLE
    II. CONSIDERATION	8
	 	 	 
	2.1	Consideration	8
	2.2	Deposit	9
	2.3	Payments on the
    Closing Date	9
	2.4	Cure Costs	10
	 	 
	ARTICLE
    III. CLOSING AND TERMINATION	10
	 	 	 
	3.1	Closing	10
	3.2	Closing Deliveries
    by Sellers	10
	3.3	Closing Deliveries
    by Purchaser	11
	3.4	Termination of Agreement	12
	3.5	Procedures Upon
    Termination	13
	3.6	Effect of Termination	14
	 	 
	ARTICLE
    IV. REPRESENTATIONS AND WARRANTIES OF THE SELLERS	14
	 	 	 
	4.1	Organization and
    Qualification	14
	4.2	Authorization of
    Agreement	14
	4.3	Conflicts; Consents;
    Compliance with Law	15
	4.4	Brokers and Finders	15
	4.5	Title to Purchased
    Assets	15
	4.6	Real Property	15
	4.7	Litigation	16
	4.8	Permits	16
	4.9	Assigned Contracts	16
	4.10	Environmental Matters	16


 


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TABLE
OF CONTENTS  


(continued)


 


	 	 	Page
	 	 	 
	4.11	Absence of Certain
    Changes	17
	4.12	No Other Representations
    or Warranties	17
	 	 
	ARTICLE
    V. REPRESENTATIONS AND WARRANTIES OF PURCHASER	17
	 	 	 
	5.1	Organization and
    Qualification	17
	5.2	Authority	18
	5.3	No Inconsistent
    Obligations	18
	5.4	Conflicts; Consents	18
	5.5	Brokers	19
	5.6	Adequate Assurances
    Regarding Assigned Contracts	19
	5.7	No Litigation	19
	5.8	AS-IS Sale	19
	 	 
	ARTICLE
    VI. [Reserved]	20
	 	 
	ARTICLE
    VII. BANKRUPTCY COURT MATTERS	20
	 	 	 
	7.1	Approval of Break-Up
    Fee and Overbid Protection	20
	7.2	Competing Bid and
    Other Matters	20
	7.3	Sale Order	21
	7.4	Contracts	21
	7.5	Bankruptcy Filings	22
	7.6	Sale Free and Clear	22
	 	 
	ARTICLE
    VIII. COVENANTS AND AGREEMENTS	22
	 	 	 
	8.1	Conduct of Business
    of Sellers	22
	8.2	Access to Information	23
	8.3	[intentionally omitted]	23
	8.4	Reasonable Efforts;
    Cooperation	23
	8.5	Further Assurances	25
	8.6	Notification of
    Certain Matters	25
	8.7	Confidentiality	25
	8.8	Material Adverse
    Effect	25
	8.9	Casualty Loss	25
	8.10	No Successor Liability	26
	8.11	Delivery of Disclosure
    Schedules; Update of Disclosure Schedules	26


 


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TABLE
OF CONTENTS 


(continued)


 


	 	 	Page
	 	 
	ARTICLE
    IX. CONDITIONS TO CLOSING	27
	 	 	 
	9.1	Conditions Precedent
    to the Obligations of Purchaser and Sellers	27
	9.2	Conditions Precedent
    to the Obligations of Sellers	27
	9.3	Conditions Precedent
    to the Obligations of Purchaser	27
	 	 
	ARTICLE
    X. ADDITIONAL DEFINITIONS	28
	 	 	 
	10.1	Definitions	28
	 	 
	ARTICLE
    XI. TAXES	38
	 	 	 
	11.1	Certain Taxes	38
	11.2	Allocation of Purchase
    Price	38
	11.3	Cooperation on Tax
    Matters	38
	11.4	FIRPTA Certificate	38
	11.5	Tax Refunds	39
	 	 
	ARTICLE
    XII. MISCELLANEOUS	39
	 	 	 
	12.1	Payment of Expenses	39
	12.2	Survival of Representations
    and Warranties; Survival of Confidentiality	39
	12.3	Entire Agreement;
    Amendments and Waivers	39
	12.4	Execution of Agreement;
    Counterparts; Electronic Signatures	39
	12.5	Governing Law	40
	12.6	Jurisdiction, Waiver
    of Jury Trial	40
	12.7	Notices	40
	12.8	Binding Effect;
    Assignment	41
	12.9	Severability	42
	12.10	Post-Closing Access
    to Information	42
	12.11	Post-Closing Access
    to Information	42
	12.12	Bulk Sales Laws	42
	12.13	Purchase Guarantee	42


 


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INDEX
OF EXHIBITS


 


	EXHIBIT A	FORM OF BILL OF SALE
	 	 
	EXHIBIT B	FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
	 	 
	EXHIBIT C	BIDDING PROCEDURES ORDER
	 	 
	EXHIBIT D	SALE ORDER




 






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ASSET
PURCHASE AGREEMENT


 


This
Asset Purchase Agreement (this “Agreement”), dated as of November 18, 2016 (the “Agreement
Date”), by and among BioUrja Trading, LLC, a Delaware limited liability company (“Purchaser”)
and Dakota Plains Holdings, Inc., a Nevada corporation and Dakota Petroleum Transport Solutions, LLC, a Minnesota limited liability
company (jointly, the “Companies” or “Sellers”). Purchaser and the Sellers
are collectively referred to the assets used in and related to herein as the “Parties” and individually
as a “Party”. For the purposes of this Agreement, capitalized terms used herein shall have the meanings
set forth herein or in Article X. Amit Bhandari shall be a party just as to Section 12.13 hereof.


 


RECITALS


 


WHEREAS,
the Sellers intend to file a petition (the “Chapter 11 Petition”) for relief under Chapter 11 of the
United States Bankruptcy Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the
District of Minnesota (the “Bankruptcy Court”) commencing a chapter 11 case (the “Bankruptcy
Case”).


 


WHEREAS,
the Sellers, upon filing the Chapter 11 Petition, intend to manage their assets as “debtor-in-possession”
under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code;


 


WHEREAS,
the Sellers wish to sell the Purchased Assets, as defined hereunder;


 


WHEREAS, Purchaser desires to purchase the Purchased Assets
and assume the Assumed Liabilities from the Sellers and the Sellers desire to sell, convey, assign and transfer to Purchaser the
Purchased Assets together with the Assumed Liabilities, all in the manner and subject to the terms and conditions set forth in
this Agreement and in accordance with Sections 105, 363 and 365 and other applicable provisions of the Bankruptcy Code;


 


WHEREAS,
the Purchased Assets and Assumed Liabilities shall be purchased and assumed by Purchaser pursuant to a Sale Order approving such
sale, free and clear of all Claims and Encumbrances (other than Permitted Encumbrances), pursuant to Sections 105, 363 and 365
of the Bankruptcy Code, and Rules 6004 and 6006 of the Federal Rules of Bankruptcy Procedure, which order will include the authorization
for the assumption by Sellers and assignment to Purchaser of the Assigned Contracts and the assumed liabilities thereunder in
accordance with Section 365 of the Bankruptcy Code, all in the manner and subject to the terms and conditions set forth in this
Agreement and the Sale Order and in accordance with other applicable provisions of the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure and the local rules for the Bankruptcy Court (together, the “Bankruptcy Rules”);
and


 


WHEREAS,
the Board of Directors (or similar governing body) of Sellers has determined that it is advisable and in the best interests of
Sellers and their constituencies to enter into this Agreement and to consummate the transactions provided for herein, subject
to entry of the Sale Order, and has approved the same.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements set forth herein,
and for other good and valuable


 




    	 



    	 



    

 


consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Purchaser and Sellers
hereby agree as follows:


 


ARTICLE
I.


 


PURCHASE
AND SALE OF THE PURCHASED ASSETS;


ASSUMPTION OF ASSUMED LIABILITIES


 


1.1          Purchase
and Sale of the Purchased Assets. Pursuant to Sections 105, 363 and 365 of the Bankruptcy Code
and on the terms and subject to the conditions set forth herein, at the Closing, Sellers shall sell, transfer, assign, convey
and deliver to Purchaser or its designee (“Purchaser Designee”), free and clear of all Encumbrances
other than Permitted Encumbrances, and Purchaser shall purchase, acquire and accept from Sellers all of Sellers’ right,
title and interest in, to and their Pioneer Terminal located at 3889 88th Ave NW, New Town, North Dakota 58763 (the
“Terminal”), including the following, but excluding the Excluded Assets, (the “Purchased
Assets”) as of the Closing:


 


(a)           all of Sellers’ properties,
rights, claims and assets (other than the Excluded Assets) of every kind and description, wherever situated or located, real,
personal or mixed, tangible or intangible, contingent, owned, leased, or licensed, for use in or relating to the Terminal, whether
or not reflected on the books and records of Sellers, as the same shall exist on the Closing Date;


 


(b)           all of Sellers’ rights,
title and interests in any intellectual property, including, but not limited to any copyrights, trades secrets, trademarks, service
marks, patents, or applications therefor;


 


(c)           all
Documents relating to the Purchased Assets or Assumed Liabilities; 


 


(d)           the
Owned Real Property listed on Schedule 1.1(d);


 


(e)           the
improvements on the Owned Real Property;


 


(f)            all tangible assets of Sellers
relating to the Terminal, indicating whether the assets are owned by the Sellers as set forth on Schedule 1.1(f), including,
without limitation, the tangible assets of Sellers located at the Locations listed on Schedule 1.1(f);


 


(g)           any
chattel paper owned or held by Sellers relating to the Purchased Assets
other than the Excluded Assets;


 


(h)           all other or additional assets,
properties, privileges, rights (including prepaid expenses) and interests of Sellers relating to the Purchased Assets other than
the Excluded Assets of every kind and description and wherever located, whether known or unknown, fixed or unfixed, accrued, absolute,
contingent or otherwise, and whether or not specifically referred to in this Agreement;


 


(i)            all
Permits and all pending applications therefor listed on Schedule 1.1(i);


 




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(j)           all express or implied guarantees,
warranties, representations, covenants, indemnities, rights, claims, counterclaims, defenses, credits, causes of action or rights
of set off against third parties relating to the Purchased Assets (including, for the avoidance of doubt, those arising under,
or otherwise relating to the utility services agreements) or Assumed Liabilities, including rights under vendors’ and manufacturers’
warranties, indemnities and guaranties;


 


(k)           the
Sellers’ Documents, and without limiting the foregoing, each of the following: financial accounting and other books and
records, Tax Returns, checkbooks and canceled checks, correspondence, supplier agreements, files, data, software (whether written,
recorded or stored on disk, film, tape or other media, and including all computerized data), drawings, engineering and manufacturing
data and other technical information and data, and all other records, in each case arising under or relating to the Purchased
Assets or the Assumed Liabilities provided, however, that Sellers have the right to retain copies of all of the foregoing at Purchaser’s
expense;


 


(l)            to
the extent transferable, all rights and obligations under or arising out of the insurance policies set forth on Schedule 1.1(l)
relating to the Purchased Assets or Assumed Liabilities (including returns and refunds of any premiums paid, or other amounts
due back to Sellers, with respect to cancelled policies);


 


(m)          All
rights of Sellers under the contracts and agreements set forth on Schedule
1.1(m) hereto (collectively, the “Assigned Contracts”);


 


(n)           all
Tax assets net of any liability (including all state and federal Tax refunds (or the right to such state and federal refunds of
Taxes, whether claimed or unclaimed) for all taxable periods (or portions thereof), whether ending on, prior to, or after the
Closing Date (the “Tax Refunds”));


 


(o)           to
the extent owned by Sellers, all fixed assets and other personal property and interests related to the Purchased Assets, wherever
located, including all vehicles, tools, parts and supplies, fuel, machinery, equipment, furniture, furnishing, appliances, fixtures,
office equipment and supplies, owned and licensed computer hardware and related documentation, stored data, communication equipment,
trade fixtures and leasehold improvements, in each case with any freely transferable warranty and service rights of the applicable
Sellers with respect to such Purchased Assets;


 


(p)           telephone,
fax numbers and email addresses;


 


(q)           all of Sellers’ rights
to receive refunds, payments or overpayments, clawbacks or other amounts in respect of any and all claims, potential claims, purported
claims and similar related items, with the exception of the Excluded Claims;


 


(r)           all
of Sellers’ claims or causes of action under applicable laws relating to the Purchased Assets and/or Assumed Liabilities,
including all actions relating to vendors and service providers, which are collectively listed on Schedule 1.1(r) (the
“Vendor Actions”), which shall not include the Excluded Claims; and


 




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(s)           all
Crude Oil Inventory, wherever located and whether or not obsolete or carried on the Seller’s books of account.


 


1.2          Excluded Assets. Notwithstanding anything to the contrary in this Agreement, in no event shall Sellers be deemed to sell,
transfer, assign or convey, and Sellers shall retain all right, title and interest to, in and under only the following assets,
properties, interests and rights of Sellers (collectively, the “Excluded Assets”):


 


(a)           copies
of any and all information not relating to the Purchased Assets that is stored on Sellers’ computer systems, data networks
or servers;


 


(b)           all
agreements and contracts of Sellers other than those agreements and contracts included in the Purchased Assets;


 


(c)           all
Documents and all personnel records of Sellers’ employees;


 


(d)           all shares of capital stock or
other equity interests issued by Sellers or securities convertible into, exchangeable or exercisable for any such shares of capital
stock or other equity interests;


 


(e)           any
avoidance claims or causes of action under the Bankruptcy Code or applicable Law (including, without limitation, any preference
or fraudulent conveyance), and all other claims or causes of action under any other provision of the Bankruptcy Code or applicable
laws, including those listed on Schedule 1.2(e) (the “Excluded Claims”);


 


(f)            all Claims that Sellers may have
against any Person solely with respect to any Excluded Assets or any Excluded Liabilities;


 


(g)           Sellers’
rights under this Agreement, the Purchase Price hereunder, any agreement, certificate, instrument or other document executed and
delivered by Purchaser to Sellers in connection with the transactions contemplated hereby, or any side agreement between Sellers
and Purchaser entered into on or after the Agreement Date;


 


(h)           all current and prior director
and officer insurance policies of the Sellers and all rights of any nature with respect thereto, including all insurance recoveries
thereunder and rights to assert claims with respect to any such insurance recoveries;


 


(i)            the
Sellers’ financial accounting books and records, corporate charter, minute and stock record books, income tax returns, corporate
seal, checkbooks and canceled checks that do not constitute Purchased Assets;


 


(j)            the
properties and assets set forth on Schedule 1.2(j);


 


(k)           all
Benefit Plans (including all assets, trusts, insurance policies and administration service contracts related thereto);


 


(l)            all
Pension Plans;


 




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(m)          all
assets of Unimin Corporation or its affiliates located on Sellers’ real property;


 


(n)           all
of Sellers’ Cash and Cash Equivalents; and


 


(o)           any and all claims, deposits,
prepayments, refunds, rebates, causes of action, rights of recovery, rights of set-off and rights of recoupment relating to or
in respect of an Excluded Asset.


 


1.3          Assumption of Liabilities. On the terms and subject to the conditions set forth in this Agreement and the Sale Order, effective
as of the Closing, Purchaser shall assume from the Sellers (and pay, perform, discharge or otherwise satisfy in accordance with
their respective terms), and the Sellers shall irrevocably convey, transfer and assign to Purchaser, the following Liabilities
(and only the following Liabilities) (collectively, the “Assumed Liabilities”):


 


(a)           all
Liabilities of Sellers arising from the ownership of the Purchased Assets,
arising after the Closing Date;


 


(b)           all Liabilities and obligations
of Sellers under the Assigned Contracts, including, without limitation, (i) all pre-petition cure costs required to be paid pursuant
to Section 365 of the Bankruptcy Code in connection with the assumption and assignment of the Assigned Contracts (such pre-petition
cure costs are, collectively, the “Cure Costs”) and (ii) any post-Closing liabilities;


 


The
assumption by Purchaser of the Assumed Liabilities shall not, in any way, enlarge the rights of any third parties relating thereto.


 


1.4          Excluded Liabilities. Notwithstanding any provision in this Agreement to the contrary, Purchaser is assuming only the Assumed
Liabilities and is not assuming, and shall not be deemed to have assumed, any other Liabilities of Sellers of whatever nature
(whether arising prior to, at the time of, or subsequent to Closing), whether absolute, accrued, contingent or otherwise, whether
due or to become due and whether or not assets, and whether or not known or unknown or currently existing or hereafter arising
or matured or unmatured, direct or indirect, and the Sellers shall be solely and exclusively liable for any and all such Liabilities,
including those relating to, arising out of or in connection with the Purchased Assets (including the use and ownership thereof)
at any time prior to the Closing Date, and including, without limitation, those Liabilities set forth below (collectively, the
“Excluded Liabilities”):


 


(a)           all
Liabilities of the Sellers relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection
with, any of the Excluded Assets;


 


(b)           all
guarantees of third party obligations and reimbursement obligations to guarantors of Sellers’ obligations or under letters
of credit;


 


(c)           any
and all (i) Liabilities of the Sellers for any Taxes (including any Taxes owed by Sellers and arising in connection with the consummation
of the transactions contemplated by this Agreement), (ii) any Taxes imposed on any Person that are the responsibility of the Sellers
pursuant to Section 11.1, (iii) Taxes attributable to the Purchased


 




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Assets
or the operation of any related business for any Pre-Closing Tax Period and (iv) any Taxes arising from or in connection with
an Excluded Asset;


 


(d)           any
and all Liabilities of the Sellers in respect of Contracts other than Assigned
Contracts;


 


(e)           all
Liabilities with respect to compensation, severance or benefits of any nature owed to any current or former employee,
officer, director, member, partner or independent contractor of Sellers or any ERISA Affiliate (or any beneficiary or
dependent of any such individual), including, but not limited to those that (A) arise out of or relate to the employment,
service provider or other relationship between Sellers or ERISA Affiliate and any such individual, including the termination
of such relationship, (B) arise out of or relate to any Benefit Plan or (C) arise out of or relates to events or conditions
occurring on, before or after the Closing Date;


 


(f)            draft
or checks outstanding at the Closing;


 


(g)           all Liabilities under any futures
contracts, options on futures, swap agreements or forward sale agreements;


 


(h)           all
Liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Sellers in connection with this
Agreement or the administration of the Bankruptcy Case (including all fees and expenses of professionals engaged by Sellers) and
administrative expenses and priority claims accrued through the Closing Date and specified post-closing administrative wind-down
expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by the Sellers from the proceeds
collected in connection with the Excluded Assets) and all costs and expenses incurred in connection with (i) the negotiation,
execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in
connection herewith, (ii) the preparation and submission of any filing or notice required to be made or given in connection with
any of the transactions contemplated by this Agreement, and the obtaining of any consent required to be obtained in connection
with any of such transactions; (iii) the negotiation, execution and consummation of any DIP financing agreements and use thereof,
and (iv) the consummation of the transactions contemplated by this Agreement, including any retention bonuses, “success”
fees, change of control payments and any other payment obligations of Sellers payable as a result of the consummation of the transactions
contemplated by this Agreement and the documents delivered in connection herewith;


 


(i)            all
Liabilities related to the WARN Act, to the extent applicable, with respect to Employees, and for any action resulting from Employees’
separation of employment prior to, on, or after the Closing Date;


 


(j)            all
Liabilities of Sellers to their equity holders respecting dividends, distributions in liquidation, redemptions of interests, option
payments or otherwise, and any liability of Sellers pursuant to any Affiliate Agreement;


 




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  (k)        all
Liabilities arising out of or relating to any business or property formerly owned or operated by Sellers, any Affiliate or predecessor
thereof, but not presently owned and operated by the Sellers; 


 


  (l)
        all Liabilities relating to claims,
actions, suits, arbitrations, litigation matters, proceedings or investigations (in each case whether involving private parties,
Authorities, or otherwise) involving, against, or affecting any Purchased Asset, Sellers, or any assets or properties of Sellers,
whether commenced, filed, initiated, or threatened before or after the Closing and whether relating to facts, events, or circumstances
arising or occurring before or after the Closing;


 


(m)       all
obligations of the Sellers arising and to be performed prior to the Closing Date arising from or related to the Purchased
Assets; 


 


(n)
       all Environmental Liabilities
and Obligations set forth on Schedule 1.4(n);


 


  (o)
       all Liabilities of Sellers or
their predecessors arising out of any contract, agreement, Permit, franchise or claim that is not transferred to Purchaser as
part of the Purchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-party or governmental
consent required for such transfer; and 


 


(p)        all
Liabilities set forth on Schedule 1.4(p). 


 


  1.5           Post-Closing
Liabilities. Purchaser acknowledges that Purchaser shall be responsible for all Liabilities and obligations relating to
Purchaser’s ownership or use of, or right to use, the Purchased Assets and the Assumed Liabilities after the Closing
Date, including without limitation all Taxes arising out of or related to the Purchased Assets or the operation thereof
acquired pursuant to this Agreement for all Tax periods beginning on or after the Closing Date. 


 


1.6           Assumption
of Assigned Contracts and Permits. 


 


(a)        Assignment
and Assumption at Closing. 


 


(i)       
 Schedule 1.1 (i), and
Schedule 1.1(n) respectively set forth a list of all Permits and Assigned Contracts to which, to the Sellers’ Knowledge,
Sellers are a party and which are to be included in the Purchased Assets. 


 


(ii)
       Sellers shall take all commercially
reasonable actions required to assign the Assigned Contracts and Permits to Purchaser (other than payment of Cure Costs, if so
required), including taking all actions required to facilitate any negotiations with the counterparties to such Assigned Contracts
or Permits and to obtain an Order containing a finding that the proposed assumption and assignment of the Assigned Contracts and
Permits to Purchaser satisfies all applicable requirements of Section 365 of the Bankruptcy Code. To the extent the Sellers have
a good faith dispute regarding the amount of any of the Cure Costs, the Sellers may establish an appropriate reserve for such
amounts pending determination by the Bankruptcy Court with respect to the


 




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appropriate
amount thereof. To the extent the Sellers reserves the appropriate amount of Cure Cost, this shall be deemed paid or cured for
the purposes hereunder. 


 


(iii)
     At Closing, (x) Sellers shall,
pursuant to the Sale Order and the Assignment and Assumption Agreement, assign to Purchaser (the consideration for which is included
in the Purchase Price) each of the Assigned Contracts and Permits that is capable of being assumed and assigned, and (y) Purchaser
shall pay promptly all Cure Costs (if any) in connection with such assumption and assignment (as agreed to among the various counterparties,
Purchaser and Sellers, or as determined by the Bankruptcy Court) and assume and perform and discharge the Assumed Liabilities
(if any) under the Assigned Contracts, pursuant to the Assignment and Assumption Agreement, as applicable. 


 


1.7
           Disclaimer. PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS PROVIDED IN THIS AGREEMENT, THE SELLERS MAKE NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO THE PURCHASED ASSETS. WITHOUT
LIMITING THE FOREGOING, SELLERS HEREBY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE AS TO ANY PORTION OF THE PURCHASED ASSETS. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER HAS CONDUCTED AN INDEPENDENT
INSPECTION AND INVESTIGATION OF THE PHYSICAL CONDITION OF THE PURCHASED ASSETS AND ALL SUCH OTHER MATTERS RELATING TO OR AFFECTING
THE PURCHASED ASSETS AS PURCHASER DEEMED NECESSARY OR APPROPRIATE AND THAT IN PROCEEDING WITH ITS ACQUISITION OF THE PURCHASED
ASSETS, EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, PURCHASER IS DOING SO BASED SOLELY UPON SUCH
INDEPENDENT INSPECTIONS AND INVESTIGATIONS. 


 


ARTICLE
II. 


CONSIDERATION


2.1          Consideration.


 


 (a)         The
aggregate consideration (collectively, the “Purchase Price”) to be paid for the purchase of the Purchased
Assets shall be: (i) the assumption of Assumed Liabilities, and (ii) cash in an amount equal to eight million five hundred and
fifty thousand dollars ($8,550,000) minus the Cure Cost Reduction, if any, and minus the dollar amount of real or
personal property Taxes allocated to Sellers pursuant to Section 11.1(b) (including any real or personal property taxes
for a pre-closing period that Purchaser either pays at Closing or assumes and agrees to pay after Closing); provided, however,
that Purchaser reserves the right to increase the Purchase Price, subject to the Bidding Procedures Order and applicable Law.


 




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(b)        
 Limitation on Purchaser Liability.
For the avoidance of doubt, Purchaser shall have no liability with respect to any costs, fees or expenses of any nature incurred
by the Sellers following the Closing Date.


 


  2.2       
Deposit. Within seven (7) days of execution of this Agreement, Purchaser will make an earnest money deposit (the “Deposit”)
in the amount of $1,710,000 to the Escrow Agent. The Deposit shall be applied against payment of the Purchase Price on the Closing
Date. If this Agreement shall be terminated by any Party hereto pursuant to Sections 3.4(a), (b), (c), (d),
(e), (f), (h), and (j) hereof, or in the event that a party other than Purchaser or an Affiliate of
Purchaser purchases all or a significant portion of the Purchased Assets, then the Deposit shall be returned to Purchaser within
five (5) Business Days after Sellers’ receipt of Purchaser’s written request therefore, except in the case of termination
of this Agreement pursuant to Section 3.4 (h) hereof, in which case Sellers shall return the Deposit to Purchaser immediately
upon the closing of the Alternative Transaction. If this Agreement shall be terminated by the Sellers pursuant to Sections
3.4 (i) hereof or otherwise by reason of the failure of any condition precedent under Section 9.2 hereof resulting
primarily from Purchaser materially breaching any representation, warranty or covenant contained herein, then Sellers shall retain
the Deposit; provided such failure or breach was not caused by a breach of this Agreement by Sellers. The Parties agree that the
Sellers’ right to retain the Deposit, as set forth herein, is not a penalty, but rather is compensatory damages, and Sellers
are (i) expressly waiving their right to seek additional compensatory damages for any breach of this Agreement that was not on
account of Crude Business, but are not (ii) expressly waiving their right to seek additional compensatory damages if such breach
is related to the Crude Business or a Material Adverse Effect related to the Crude Business. Provided that, in no event, shall
Sellers be entitled to any damages in excess of the Purchase Price and reasonable costs and expenses in connection with enforcement
of this Agreement. 


 


2.3          Payments
on the Closing Date.


 


(a)           Not
later than three (3) Business Days prior to the Closing Date, Sellers shall deliver to Purchaser a written statement setting forth
the actual Cure Costs, if any, reasonably satisfactory to Purchaser and signed by an officer of Sellers (the “Closing
Statement”). 


 


 (b)          Not later than three (3) Business
Days prior to the Closing Date, Purchaser shall deliver to Sellers a written statement, reasonably satisfactory to Sellers (“Purchaser
Statement”) setting forth the dollar amount of real and personal property Taxes allocated to Sellers pursuant to
Section 11.1(b). 


 


(c)
          Should Purchaser object to any
of the amounts or calculations in the Closing Statement, or should Sellers object to any of the amounts or calculations in the
Purchaser Statement, Purchaser and Sellers shall cooperate in a diligent good faith manner to resolve such objections prior to
the Closing, and the Closing Statement or Purchaser Statement, as applicable, shall be adjusted prior to the Closing to reflect
any changes agreed to by the Purchaser and Sellers prior to the Closing Date.


 




    9


     


    

 


(d)
        At the Closing, Purchaser shall
pay to Sellers in cash by wire transfer of immediately available funds to the account of Sellers set forth in the Closing Statement
an amount equal to the Cash Consideration minus the Deposit (such amount to be paid to Sellers, the “Closing Date
Payment”). 


 


(e)       
  “Cash Consideration”
means $8,550,000 minus the Cure Cost Reduction, if any and minus the dollar amount of real and personal property Taxes
allocated to Sellers pursuant to Section 11.1(b) (including any real or personal property Taxes for any Pre-Closing Tax
Period that Purchaser either pays at the Closing or assumes and agrees to pay after the Closing). 


 


2.4           Cure
Costs. If the actual Cure Costs (as determined by an order of the Bankruptcy Court) set forth on the Closing Statement
exceed $50,000 in the aggregate, then the Purchase Price shall be reduced by the amount (“Cure Cost
Reduction”) equal to the actual Cure Costs minus $50,000.


 


ARTICLE
III.


 


CLOSING
AND TERMINATION 


 


3.1          Closing.
Subject to the satisfaction or waiver by the appropriate Party of the conditions set forth in Article IX, the closing
of the purchase and sale of the Purchased Assets, the payment of the Purchase Price, the assumption of the Assumed
Liabilities and the consummation of the other transactions contemplated by this Agreement (the
“Closing”) shall occur as soon as practicable following the satisfaction or waiver of all
conditions set forth in this Agreement (other than those conditions that by their terms are to be satisfied at the
Closing, but subject to the satisfaction or waiver of such conditions). The Closing shall take place at the offices of Baker
Hostetler or at such other place as the Parties may agree. Unless otherwise agreed by the Parties in writing, the Closing
shall be deemed effective and all right, title and interest of the Sellers in the Purchased Assets to be acquired by
Purchaser hereunder shall be deemed to have passed to Purchaser and the assumption of all of the Assumed Liabilities shall be
deemed to have occurred as of 12:01 a.m. Eastern Time on the Closing Date. 


 


3.2          Closing
Deliveries by Sellers. At or prior to the Closing, the Sellers shall deliver to Purchaser: 


 


(a)          bill of sale substantially in
the form of Exhibit A (the “Bill of Sale”) selling all of the Purchased Assets, other than any
Owned Real Property or Assigned Contracts, duly executed by the Sellers;


 


(b)          assignment and assumption agreement
substantially in the form of Exhibit B (the “Assignment and Assumption Agreement”) assigning
the Assigned Contracts and Permits to Purchaser, duly executed by the Sellers;


 


(c)          entry
of the Sale Order;


 




    10


     


    

 


(d)          an
officer’s certificate, dated as of the Closing Date, executed by a duly authorized officer of the Sellers certifying
that the conditions set forth in Section 9.3 have been satisfied; 


 


(e)
         a copy of the resolutions adopted
by the Board of Directors of the Sellers evidencing the authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, certified by an authorized officer of Sellers; 


 


(f)           an
irrevocable waiver of Sellers’ and Sellers’ affiliates’ rights to any intellectual property infringement
claims related to the use of any equipment, processes, or designs at the Terminal, regardless of how modified by Purchaser or
its assigns, executed accordingly by the Sellers; 


 


(g)
        possession of each Owned Real
Property, together with duly executed deeds for each Owned Real Property conveying the Owned Real Property, existing surveys,
legal descriptions and title policies that are in the possession of the Sellers, subject only to Permitted Encumbrances; 


 


(h)          possession
of the Purchased Assets;


 


(i)
          certificates executed by Sellers,
in the form prescribed under Treasury Regulation Section 1.1445-2(b), that Sellers are not a foreign person within the meaning
of Section 1445(0)(3) of the Code;


 


(j)
         such other bills of sale, deeds,
endorsements, assignments and other good and sufficient instruments of conveyance and transfer, in form reasonably satisfactory
to Purchaser, as Purchaser may reasonably request to vest in Purchaser all of Sellers’ right, title and interest of Sellers
in, to or under any or all the Purchased Assets, including all Owned Real Property; 


 


(k)
          such ordinary and customary documents
(including any factually accurate affidavits) as may be required by any title company or title insurance underwriter to enable
Purchaser to acquire, at Purchaser’s sole election and Purchaser’s sole cost and expense, one or more owner policies
of title insurance issued by such title company covering any or all of the Owned Real Property; 


 


(l)
         an
updated Phase I environmental assessment report, dated within ninety days of the execution of this Agreement, that demonstrates
that there are no recognized environmental conditions that impact the Terminal, or otherwise meets the satisfaction of Purchaser;
and 


 


(m)          a
duly completed FIRPTA Certificate. 


 


3.3          Closing
Deliveries by Purchaser. At the Closing, Purchaser shall deliver to (or at the direction of) the
Sellers: 


 


(a)          the
Assignment and Assumption Agreement duly executed by Purchaser;


 




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(b) 
        satisfactory
evidence of payment of the Cure Costs or readiness to make such payments; 


 


(c)          an
officer’s certificate, dated as of the Closing Date, executed by a duly authorized officer of Purchaser certifying that
the conditions set forth in Sections 9.2(a) and 9.2(b) have been satisfied; and 


 


(d)         all
other certificates, agreements and other documents required by this Agreement (or as the Sellers may reasonably request that are
customary for a transaction of this nature and necessary to evidence or consummate the transactions contemplated by this Agreement)
to be delivered by Purchaser at or prior to the Closing in connection with the transactions contemplated by this Agreement. 


 


3.4         
Termination of Agreement. This Agreement may be terminated only in accordance with this Section 3.4. This Agreement
may be terminated at any time prior to the Closing, as follows: 


 


(a)          by
the mutual written consent of the Sellers and Purchaser;


 


(b)         by
written notice of either the Sellers or Purchaser to such other Party, if the Closing shall not have been consummated prior to
April 30, 2017 (the “Outside Date”); provided, however, that the Outside Date may be extended
by the mutual written consent of Sellers and Purchaser, for a period up to seven (7) days to the extent that all conditions to
Closing set forth in this Agreement are capable of being satisfied as of such time; provided further, however, that a Party
shall not be permitted to terminate this Agreement pursuant to this Section 3.4(b) if such Party is in material breach
of this Agreement; provided, however, that if the Closing has not occurred by the Outside Date, but on such date
all of the conditions set forth in Article 9 have been satisfied or waived (to the extent such conditions may be waived),
then the Outside Date shall automatically be extended until thirty (30) days after such initial Outside Date (and such extended
date shall be deemed to be the “Outside Date” for all purposes hereunder) unless two (2) Business Days prior to the
end of the second month following the original Outside Date, Purchaser provides written notice to Sellers that it is no longer
extending the Outside Date pursuant to this Section 3.4(b);


 


(c)         by
written notice from Purchaser to the Sellers, if (i) Sellers seeks to have the Bankruptcy Court enter an Order dismissing, or
converting into a case under chapter 7 of the Bankruptcy Code, the Bankruptcy Case, or appointing a trustee in the Bankruptcy
Case or appointing a responsible officer or an examiner with enlarged power relating to the operation, use or ownership of the
Purchased Assets (beyond those set forth in Section 1106(a)(3) or (4) of the Bankruptcy Code) under Bankruptcy Code Section 1106(b),
or (ii) an order of dismissal, conversion or appointment is entered for any reason and is not reversed or vacated within fourteen
(14) days after entry thereof; 


 


(d)         by
written notice from Purchaser, if (i) the Bidding Procedures Order shall not have been approved by the Bankruptcy Court by the
close of business on the date that is 30 days from the Petition Date, (ii) the Bankruptcy Court issues an order granting leave
to any Person to commence an appeal of the Bidding Procedures Order or (iii) following its entry, the


 




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Bidding
Procedures Order shall fail to be in full force and effect or shall have been stayed, reversed, modified or amended in any respect
without the prior written consent of Purchaser; 


 


(e)         by
written notice from Purchaser if (i) the Bankruptcy Court has not entered the Sale Order on or prior to 90 days after the Petition
Date, or (ii) the Sale Order shall have been stayed (and such stay results in the Closing not being consummated prior to the Outside
Date), vacated, modified or supplemented without Purchaser’s prior written consent; 


 


(f)         by written notice from Purchaser,
if (i) the Sale Order has not become a Final Order within fourteen (14) days after the entry thereof and (ii) following its entry,
the Sale Order shall fail to be in full force and effect or shall have been stayed (and such stay results in the Closing not being
consummated prior to the Outside Date), reversed, modified or amended in any respect without the prior written consent of Purchaser; 


 


(g)         [intentionally
omitted]; 


 


(h)         automatically
upon the consummation of an Alternative Transaction;


 


(i)           by
written notice from the Sellers to Purchaser, if Purchaser materially breaches or fails to perform in any respect any of its representations,
warranties or covenants contained in this Agreement and such breach or failure to perform: (i) would give rise to the failure
of a condition set forth in Article IX, (ii) cannot be or has not been cured within thirty (30) days following delivery
of notice to Purchaser of such breach or failure to perform and (iii) has not been waived by the Sellers; or 


 


(j)            by
written notice from Purchaser to the Sellers, if Sellers materially breach or fails to perform in any respect any of its representations,
warranties or covenants contained in this Agreement and such breach or failure to perform: (i) would give rise to the failure
of a condition set forth in Article IX, (ii) cannot be or has not been cured within thirty (30) days following delivery
of notice to the Sellers of such breach or failure to perform and (iii) has not been waived by Purchaser. 


 


Each
condition set forth in this Section 3.4, pursuant to which this Agreement may be terminated shall be considered separate
and distinct from each other such condition. If more than one of the termination conditions set forth in this Section 3.4
is applicable, the applicable Party shall have the right to choose the termination condition pursuant to which this Agreement
is to be terminated. The Parties acknowledge and agree that no notice of termination or extension of the Outside Date provided
pursuant to this Section 3.4 shall become effective until two (2) Business Days after the delivery of such notice to the
other Parties, and only if such notice shall not have been withdrawn during such two (2) Business Day period. 


 


3.5         
Procedures Upon Termination. In the event of termination and abandonment by Purchaser or Sellers, or both such Parties,
pursuant to Section 3.4 hereof, written notice thereof shall forthwith be given to the other Party or Parties, and this
Agreement shall terminate, and the purchase of the Purchased Assets and the assumption of the Assumed Liabilities hereunder shall
be abandoned, without further action by Purchaser or Sellers. If this Agreement is terminated as provided herein, each Party shall
return if requested all documents, work papers and other material of any other Party relating to the transactions contemplated
hereby, whether so obtained


 




    13


     


    

 


before
or after the execution hereof, to the Party furnishing the same. If this Agreement is terminated pursuant to Section 3.4 
(h), Sellers shall pay within 5 business days of such termination to Purchaser the Break-Up Fee, and the Parties shall have no
further obligations to one another except for any obligations that, by their terms, survive the termination of this Agreement,
as described in Section 3.6. 


 


3.6         
Effect of Termination. In the event of termination of this Agreement pursuant to Section 3.4, this Agreement shall
forthwith become null and void and there shall be no liability on the part of any Party or any of its partners, officers, directors
or shareholders; provided, however, that this Section 3.6, Section 3.5, the Sellers’ obligation to
pay the Break-Up Fee pursuant to Section 7.1, Article XII (Miscellaneous), and the Bidding Procedures Order (if entered)
shall survive any such termination. All remedies hereunder are cumulative and are not exclusive of any other remedies provided
by Law. Each Party acknowledges that the agreements contained in this Section 3.6 and in Section 3.5 are an integral
part of the transactions contemplated by this Agreement, that without these agreements such Party would not have entered into
this Agreement, and that any amounts payable pursuant to this Section 3.6 and Section 3.5 do not constitute a penalty. 


 


ARTICLE
IV.


 


REPRESENTATIONS
AND WARRANTIES OF THE SELLERS


 


Subject
to the exceptions noted in the schedules delivered by the Sellers concurrently herewith (the “Disclosure Schedules”),
the Sellers represents and warrants to Purchaser as follows as of the date hereof and as of the Closing Date: 


 


4.1        
Organization and Qualification. Sellers are duly incorporated or organized, validly existing and in good standing under
the Laws of the jurisdiction of their incorporation. Sellers have all requisite power and authority to own, lease and operate
their properties and to carry on their business as it is now being conducted, subject to the provisions of the Bankruptcy Code.
Sellers have previously delivered to Purchaser complete and correct copies of their Organizational Documents, as amended and in
effect on the Agreement Date. Sellers are duly qualified or licensed to do business and are in good standing in each jurisdiction
where the character of their business or the nature of their properties makes such qualification or licensing necessary, except
for such failures to be so qualified or licensed or in good standing as would not, individually or in the aggregate, have a Material
Adverse Effect. 


 


4.2         
Authorization of Agreement. Subject to the entry of the Sale Order, Sellers have all requisite power and authority to execute
and deliver this Agreement and each of the Ancillary Documents to which they are a party, to perform their obligations hereunder
and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement
and each of the Ancillary Documents to which they are a party, the performance by Sellers of their obligations hereunder and thereunder
and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary
company action on the part of Sellers. This Agreement has been, and at or prior to the Closing, each of the Ancillary Documents
to which they are a party will be, duly and validly executed and delivered by Sellers and (assuming the due authorization, execution
and delivery


 




    14


     


    

 


by
the other Party, and the entry of the Sale Order) this Agreement constitutes, and each Ancillary Document to which they are a
party when so executed and delivered (assuming the due authorization, execution and delivery by the other parties thereto) will
constitute, legal, valid and binding obligations of Sellers, enforceable against Sellers in accordance with its terms. Subject
to entry of the Sale Order, except (a) for entry of the Sale Order, (b) for notices, filings and consents required in connection
with the Bankruptcy Case and (c) for the notices, filings and consents set forth on Schedule 4.2, Sellers are not required
to give any notice to, make any registration, declaration or filing with or obtain any consent, waiver or approval from, any Person
(including any Governmental Body) in connection with the execution and delivery of this Agreement and each of the Ancillary Documents
or the consummation or performance of any of the transactions contemplated hereby and thereby, other than such notices, registrations,
declarations, filings, consents, waivers, or approvals, the failure of which to make or obtain would not have a Material Adverse
Effect. 


 


4.3          
Conflicts; Consents; Compliance with Law. If any other section of Article IV deals expressly with respect to a specific
Law, then that section shall contain the sole and exclusive representations and warranties relating to such Law. 


 


(a)          Except as set forth on Schedule
4.3(a) and subject to entry of the Sale Order, the execution, delivery and performance by Sellers of this Agreement or any
Ancillary Document to which they are a party, the compliance by Sellers with any of the provisions hereof or thereof, the consummation
of the transactions contemplated hereby or thereby and the taking by Sellers of any other action contemplated hereby or thereby,
do not and will not contravene, violate or conflict with any term or provision of their Organizational Documents. 


 


(b)
         Sellers are in compliance, in
all material respects with all applicable Laws. Except as set forth on Schedule 4.3(b), Sellers have not received any written
notice from any Governmental Body regarding any actual or possible material violation of, or failure to comply in any material
respect with, any Law the subject of which remains outstanding or unresolved. Sellers are not in default in any material respect
of any order, writ, injunction, judgment or decree applicable to the Purchased Assets. 


 


4.4         
Brokers and Finders. Except as set forth on Schedule 4.4, no Person has acted, directly or indirectly, as a broker,
finder or financial advisor for Sellers in connection with the transactions contemplated by this Agreement and Purchaser is not
or will not become obligated to pay any fee or commission or like payment to any broker, finder or financial advisor as a result
of the consummation of the transactions contemplated by this Agreement based upon any arrangement made by or on behalf of Sellers. 


 


4.5         
Title to Purchased Assets. Other than the Permitted Encumbrances and as set forth on Schedule 4.5, Sellers has good
title to the Purchased Assets and, at the Closing, Purchaser, pursuant to and subject to entry of the Sale Order, shall acquire
good and marketable title in, and under all of such Purchased Assets, in each case free and clear of all Encumbrances to the fullest
extent permissible under Section 363(f) of the Bankruptcy Code. 


 


4.6          Real Property.
Schedule 1.1(d) sets forth a true, correct and complete list of all Owned Real Property, specifying the street address, the
current owner and the current use of


 




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each
parcel of Owned Real Property in which Sellers have any title interest and which is related to, used, useful or held for use in
connection with the Terminal (the “Owned Real Property”). Except for Permitted Encumbrances and as set
forth on Section 4.5, Sellers have good and marketable title in the Owned Real Property set forth on Schedule 1.1(d). To
Sellers’ Knowledge, other than as noted on Schedules 1.1(d) and 4.5, none of the Owned Real Property is subject to
any lease or grant to any Person of any right to the use, purchase, occupancy or enjoyment of such Owned Real Property or any
portion thereof required to operate or use the Purchased Assets. Except for Permitted Encumbrances and as set forth on Schedule
4.5, the Owned Real Property is not subject to any Encumbrances or to any use restrictions, exceptions, reservations or limitations.
There are no pending or, to Sellers’ Knowledge, threatened condemnation proceedings relating to any of the Owned Real Property. 


 


4.7         
Litigation. Except as set forth on Schedule 4.7 and other than in connection with the Bankruptcy Case, there is
no suit, action, litigation, intellectual property infringement actions, arbitration proceeding or governmental proceeding or
audit, including appeals and applications for review, in progress, pending or, to the best of Sellers’ Knowledge, threatened
against or relating to Sellers or any judgment, decree, injunction, deficiency, rule or order of any court, governmental department,
commission, agency, instrumentality or arbitrator which, in any case, might adversely affect the ability of Sellers to enter into
this Agreement or to consummate the transactions contemplated hereby and Sellers has no Knowledge of any existing ground on which
any such action, suit or proceeding may be commenced with any reasonable likelihood of success. 


 


4.8         
Permits. Sellers are in compliance with the material terms of all issued Permits listed in Schedule 1.1(i), and
all such Permits are valid and in full force and effect, and no proceeding is pending or, to the Knowledge of Sellers, threatened,
the object of which is to revoke, limit or otherwise affect any such Permit. 


 


4.9         
Assigned Contracts. Except as set forth on Schedule 4.9, Sellers have not, and, to Sellers’ Knowledge, no
other party to any Assigned Contract has, commenced any action against any of the parties to any Assigned Contract or given or
received any written notice of any default or violation under any Assigned Contract that has not been withdrawn or dismissed except
to the extent such default or violation will be cured as a result of the payment of the applicable Cure Costs. Assuming payment
of the Cure Costs, each Assigned Contract is, or will be upon the Closing, valid, binding and in full force and effect in accordance
with its terms. 


 


4.10         
Environmental Matters. The representations and warranties contained in this Section 4.10 are the sole and exclusive
representations and warranties of the Sellers pertaining to or relating to any environmental matters, including any matter arising
under any Environmental Laws. Except as set forth on Schedule 4.10 and except for facts, circumstances or conditions that
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) with respect to the
Purchased Assets, there is no Order with any Governmental Body nor has Sellers received any verbal or written notice, complaint
or inquiry from a Governmental Body respecting Environmental Laws, (b) with respect to the Purchased Assets, there is no investigation,
action or proceeding pending, or, to the Knowledge of Sellers, threatened that could reasonably be expected to result in Sellers
or Purchaser incurring any Environmental Liabilities or Obligations, (c) Sellers are not aware of and has not caused or


 




    16


     


    

 


allowed
the Release of Hazardous Materials at, on or under the Owned Real Property and (d) Sellers maintains, has obtained, and has complied
in all material respects with all Permits, and all Permits remain effective as are required under or pursuant to Environmental
Laws for the operation of the Purchased Assets. Sellers have delivered or made available to Purchaser copies of all Permits, Permit
applications, reports, assessments or tests with respect to compliance of the Purchased Assets with any Environmental Laws or
the presence of Hazardous Material which are in the Sellers’ possession, custody or control or available to it from an Affiliate,
including the following records: (i) reports concerning the removal of underground storage tanks from the Owned Real Property
and Remedial Actions (ii) correspondence from Governmental Bodies informing Sellers that no further action is required to address
Releases which have been the subject of Remedial Action conducted by or on behalf of Sellers; (iii) the most recent final Phase
I Environmental Site Assessment reports for the Owned Real Property; (v) Permits, Permit applications, and Permit disapprovals;
and (iv) inventories of asbestos and asbestos-containing materials, if any, for the Purchased Assets. 


 


4.11         
Absence of Certain Changes.


 


(a)          Since
the date of this Agreement, there has not been a Material Adverse Effect.


 


(b)          Since
November 18, 2016 and the date of this Agreement, there has not been a Material Adverse Effect. 


 


4.12         
No Other Representations or Warranties. Except for the representations, warranties and covenants of Sellers expressly contained
herein, neither Sellers nor their representatives, nor any other Person, makes any other express or implied warranty (including,
without limitation, any implied warranty of merchantability or fitness for a particular purpose) on behalf of Sellers, including,
without limitation, (a) the probable success or profitability of ownership, use or operation of the Purchased Assets by Purchaser
after the Closing, (b) the probable success or results in connection with the Bankruptcy Court and the Sale Order, or (c) the
value, use or condition of the Purchased Assets, which are being conveyed hereby on an “As Is”, “Where Is”
condition at the Closing Date, without any warranty whatsoever (including, without limitation, any implied warranty of merchantability
or fitness for a particular purpose). 


 


ARTICLE
V.


 


REPRESENTATIONS
AND WARRANTIES OF PURCHASER 


 


Subject
to the exceptions noted in the schedules delivered by Purchaser concurrently herewith, Purchaser represents and warrants to the
Sellers as follows as of the date hereof and as of the Closing Date: 


 


5.1         
Organization and Qualification. Purchaser is duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization. Purchaser has all requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted, except as would not reasonably be expected to have, individually or in the


 




    17


     


    

 


aggregate,
a Material Adverse Effect on the Purchaser’s ability to consummate the transactions contemplated hereby. 


 


5.2         
Authority. Purchaser has the requisite power and authority to execute and deliver this Agreement and each of the Ancillary
Documents to which it is a party, to perform its obligations hereunder and thereunder, to consummate the transactions contemplated
hereby and thereby and to assume and perform the Assumed Liabilities. The execution and delivery of this Agreement by Purchaser
and each of the Ancillary Documents to which it is a party, the performance by Purchaser of its obligations hereunder and thereunder,
the consummation of the transactions contemplated hereby and thereby and the assumption and performance of the Assumed Liabilities
have been duly and validly authorized by all necessary actions on the part of Purchaser. This Agreement has been, and at or prior
to the Closing, each of the Ancillary Documents to which it is a party will be, duly and validly executed and delivered by Purchaser.
Assuming the due authorization, execution and delivery of this Agreement and the Ancillary Documents by the Sellers and subject
to the effectiveness of the Sale Order, this Agreement constitutes, and each Ancillary Document to which Purchaser is a party
when so executed and delivered will constitute, legal, valid and binding obligations of Purchaser, enforceable against Purchaser
in accordance with its terms. Purchaser has sufficient funds to pay the Purchase Price and perform its obligations under this
Agreement. 


 


5.3         
No Inconsistent Obligations. Neither the execution and delivery of this Agreement or any other documents contemplated hereby,
nor the consummation of the transactions contemplated herein or therein in accordance with the Sale Order, will, to Purchaser’s
knowledge, result in a violation or breach of, or constitute a default under, (a) the certificate of incorporation, as amended,
the bylaws, or other organizational instruments of Purchaser, (b) any applicable ruling or order of any Governmental Authority,
(c) any term or provision of any contract or agreement, (d) any writ, order, judgment, decree, law, rule, regulation or ordinance,
(e) any other commitment or restriction to which Purchaser is a party, nor will such actions result in the creation of an Encumbrance. 


 


5.4          Conflicts;
Consents. 


 


(a)         
 The execution, delivery and performance
by Purchaser of this Agreement or any Ancillary Document to which it is a party, the compliance by Purchaser with any of the provisions
hereof or thereof, the consummation of the transactions contemplated hereby or thereby and the taking by Purchaser of any other
action contemplated hereby or thereby, do not and will not contravene, violate or conflict with any term or provision of its Organizational
Documents. 


 


(b)         
 Except for obtaining Sellers’
and third party consents related to the Assigned Contracts, no consent, waiver, approval, order or authorization of, or registration,
qualification, designation or filing with any Person or Governmental Body is required in connection with the execution, delivery
and performance by Purchaser of this Agreement or the Ancillary Documents to which it is a party, the compliance by Purchaser
with any of the provisions hereof or thereof, the consummation of the transactions contemplated hereby or thereby, the assumption
and performance of the Assumed Liabilities or the taking by Purchaser of any other action contemplated hereby or thereby, other
than such filings, notices or consents,


 




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the
failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect on Purchaser’s ability to perform its obligations under this Agreement and the Ancillary Documents to which it is
a party, to assume and perform the Assumed Liabilities or to consummate on a timely basis the transactions contemplated hereby
or thereby. 


 


5.5         
Brokers. No Person has acted, directly or indirectly, as a broker, finder or advisor for Purchaser. Sellers are not and
will not become obligated to pay any fee or commission or like payment to any broker, finder or advisor as a result of the consummation
of the transactions contemplated by this Agreement based upon any arrangement made by or on behalf of Purchaser. 


 


5.6          Adequate
Assurances Regarding Assigned Contracts. As of the Closing, Purchaser will be capable of satisfying the
conditions contained in Sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to the Assigned
Contracts. 


 


5.7         
No Litigation. To Purchaser’s knowledge, there are no material actions, suits, claims, investigations, hearings,
or proceedings of any type pending (or, to the knowledge of Purchaser, threatened) instituted against Purchaser challenging the
legality of the transactions contemplated in this Agreement (other than with respect to any objection which may be filed in connection
with the Bankruptcy Case). 


 


5.8          AS-IS
Sale. 


 


(a)          AS-IS WHERE-IS SALE; DISCLAIMERS;
RELEASE. EXCEPT AS OTHERWISE PROVIDED IN ARTICLE IV OR ELSEWHERE IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT, UNLESS
EXPRESSLY STATED HEREIN, SELLERS ARE NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PURCHASED ASSETS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS
AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 


 


(b)          EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON THE CLOSING, SELLERS SHALL SELL AND CONVEY TO PURCHASER,
AND PURCHASER SHALL ACCEPT, THE PURCHASED ASSETS “AS IS, WHERE IS, WITH ALL FAULTS.” PURCHASER HAS NOT RELIED
AND WILL NOT RELY ON, AND SELLERS ARE NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE PURCHASED ASSETS OR RELATING THERETO MADE OR FURNISHED BY SELLERS OR THEIR REPRESENTATIVES, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS EXPRESSLY STATED HEREIN. PURCHASER ALSO ACKNOWLEDGES
THAT THE TOTAL PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PURCHASED ASSETS ARE BEING SOLD “AS IS, WHERE IS,
WITH ALL FAULTS.”


 




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 (c)         WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SUBJECT TO OBTAINING THE SALE ORDER, PURCHASER WAIVES ANY CLAIM ARISING OUT OF OR IN
CONNECTION WITH THE VALIDITY AND CONDITION OF THE PURCHASED ASSETS AS OF THE CLOSING.


 


ARTICLE
VI.

[Reserved] 


ARTICLE
VII.


BANKRUPTCY
COURT MATTERS 


                7.1          Approval
of Break-Up Fee and Overbid Protection. Subject to the entry of the Bidding Procedures Order, in consideration for
Purchaser having expended considerable time and expense in connection with this Agreement and the negotiation hereof and the
identification and quantification of assets of Sellers, Sellers shall pay to Purchaser promptly upon the effective date of
termination of this Agreement in accordance with, and only to the extent provided in, the provisions of Section 3.5,
the payment of a break-up fee of 3.5% of the total cash Purchase Price (the “Break-Up Fee”). In
addition, the Bidding Procedures Order shall provide for an initial overbid protection in the amount of one hundred thousand
dollars ($100,000) over and above the aggregate of the Purchase Price and the Break-Up Fee, and minimum bid increments
thereafter of Fifty Thousand Dollars ($50,000) (the “Overbid Protection”). The obligations of
Sellers to pay the Break-Up Fee (i) shall be entitled to administrative expense claim status under Sections 503(b)(1)(A) and
507(a)(2) of the Bankruptcy Code, (ii) shall not be subordinate to any other administrative expense claim against the
Sellers, other than as provided by any administrative expense claims to which SunTrust Bank, N.A. is entitled pursuant to any
Bankruptcy Court order or otherwise and any other adequate protection order in existence at the time the Break-Up Fee are
approved, and (iii) shall survive the termination of this Agreement in accordance with Section 3.6. The Bidding
Procedures Order shall approve the Break-Up Fee as set forth in this paragraph.


 


7.2          Competing
Bid and Other Matters. 


 


(a)         
 Within seven days of the Agreement
Date, Sellers shall file with the Bankruptcy Court an application or motion seeking approval of (i) the Bidding Procedures Order
and (ii) the form of this Agreement (a true and complete copy of which shall be attached to such application or motion without
schedules) and the Sellers’ authority to enter into this Agreement (the “Sale and Bidding Procedures Motion”);
provided, that such application or motion and all exhibits thereto shall be in form and substance acceptable to Purchaser,
in its sole discretion. 


 


(b)         
 This Agreement and the transactions
contemplated hereby are subject to Sellers’ absolute right and ability to consider higher or better competing bids with
respect to Sellers’ assets and a material portion of the Purchased Assets pursuant to the Bidding Procedures Order (each
a “Competing Bid”). Following completion of the Auction, if Purchaser is the Prevailing Bidder, Sellers
shall not initiate contact with, solicit or encourage submission of any


 




    20


     


    

 


inquiries,
proposals or offers by, any Person in connection with any sale or other disposition of the Purchased Assets. In addition, unless
otherwise directed by the Bankruptcy Court, Sellers shall not after completion of the Auction respond to or pursue any proposed
Alternative Transaction or perform any other acts related thereto. 


 


(c)
          If an Auction is conducted, and
Purchaser is not the prevailing party at the conclusion of such Auction (such prevailing party, the “Prevailing Bidder”),
Purchaser shall, if its bid is determined to be the next highest bid serve as a back-up bidder (the “Back-up Bidder”)
and keep Purchaser’s bid to consummate the transactions contemplated by this Agreement on the terms and conditions set forth
in this Agreement (as the same may be improved upon in the Auction) open and irrevocable until the earlier of (i) 5:00 p.m. (prevailing
Eastern time) on the date which is 14 days after the date of the Sale Hearing (the “Outside Back-up Date”);
provided, however, that notwithstanding the foregoing, in no event shall the Outside Back-up Date be later than April 30, 2017.
Following the Sale Hearing and prior to the Outside Back-up Date, if the Prevailing Bidder fails to consummate the applicable
Alternative Transaction as a result of a breach or failure to perform on the part of such Prevailing Bidder, the Back-up Bidder
will be deemed to have the new prevailing bid, and Sellers will be authorized, without further order of the Bankruptcy Court,
to consummate the transactions contemplated by this Agreement on the terms and conditions set forth in this Agreement (as the
same may be improved upon in the Auction) with the Back-up Bidder. 


 


(d)
          The Sellers shall promptly serve
true and correct copies of the Sale and Bidding Procedures Motion and all related pleadings in accordance with the Bidding Procedures
Order, the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Rules for the United States Bankruptcy Court
for the District of Minnesota and any other applicable order of the Bankruptcy Court. 


 


7.3         
Sale Order. The Sale Order shall be entered by the Bankruptcy Court. The Sale Order shall, among other things, (i) approve,
pursuant to Sections 105, 363 and 365 of the Bankruptcy Code, (A) the execution, delivery and performance by Sellers of this Agreement,
(B) the sale of the Purchased Assets to Purchaser on the terms set forth herein and free and clear of all Encumbrances (other
than Encumbrances included in the Assumed Liabilities and Permitted Encumbrances), and (C) the performance by Sellers of their
obligations under this Agreement; (ii) authorize and empower Sellers to assume and assign to Purchaser the Assigned Contracts;
and (iii) find that Purchaser is a “good faith” buyer within the meaning of Section 363(m) of the Bankruptcy Code,
not a successor to Sellers and grant Purchaser the protections of Section 363(m) of the Bankruptcy Code. Purchaser agrees that
it will promptly take such actions as are reasonably requested by Sellers to assist in obtaining Bankruptcy Court approval of
the Sale Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes,
among others, of (a) demonstrating that Purchaser is a “good faith” purchaser under Section 363(m) of the Bankruptcy
Code, and (b) establishing adequate assurance of future performance within the meaning of Section 365 of the Bankruptcy Code. 


 


7.4
         Contracts. Sellers shall serve on all non-Sellers counterparties to all of their Assigned Contracts a notice specifically
stating that Sellers are or may be seeking the assumption and assignment of such contracts and shall notify such non-Sellers counterparties
of the deadline


 




    21


     


    

 


for
objecting to the Cure Costs, if any, which deadline shall not be less than three (3) Business Days prior to the Sale Hearing. 


 


7.5         
Bankruptcy Filings. From and after the Agreement Date and until the Closing Date, Sellers shall deliver to Purchaser drafts
of any and all material pleadings, motions, notices, statements, schedules, applications, reports and other papers to be filed
or submitted in connection with this Agreement for Purchaser’s prior review and comment, including any Tax motions, and
such filings shall be acceptable to Purchaser in its sole discretion to the extent they relate to the Purchased Assets, any Assumed
Liabilities or any of Purchaser’s obligations hereunder. Seller agrees to diligently prosecute the entry of the Bidding
Procedures Order and the Sale Order. In the event the entry of the Bidding Procedures Order or the Sale Order shall be appealed,
Sellers shall use their best efforts to defend such appeal. Sellers shall comply with all notice requirements (i) of the Bankruptcy
Code and the Federal Rules of Bankruptcy Procedure, or (ii) imposed by the Sale Order, in each case, in connection with any pleading,
notice or motion to be filed in connection herewith. 


 


7.6         
Sale Free and Clear. Sellers acknowledges and agrees, and the Sale Order shall provide that, on the Closing Date and concurrently
with the Closing, all then existing or thereafter arising obligations, Liabilities and Encumbrances of, against or created by
Sellers or their bankruptcy estate, to the fullest extent permitted by Section 363 of the Bankruptcy Code, shall be fully released
from and with respect to the Purchased Assets. On the Closing Date, the Purchased Assets shall be transferred to Purchaser free
and clear of all obligations, Liabilities and Encumbrances, other than Permitted Encumbrances and the Assumed Liabilities to the
fullest extent permitted by Section 363 of the Bankruptcy Code. 


 


ARTICLE
VIII. 


COVENANTS
AND AGREEMENTS 


       8.1          Conduct
of Business of Sellers. During the Pre-Closing Period, Sellers shall use commercially reasonable efforts, except as
otherwise required, authorized or restricted pursuant to the Bankruptcy Code or an Order of the Bankruptcy Court, to: (A)
maintain the Purchased Assets (normal wear and tear excepted), (B) pay all of their post-petition obligations in the Ordinary
Course of Business, and (C) continue to use or maintain the Purchased Assets in all material respects in compliance with all
applicable Laws. Without limiting the generality of the foregoing, and except (i) as otherwise expressly provided in or
contemplated by this Agreement, or (ii) required, authorized or restricted pursuant to the Bankruptcy Code or an Order of the
Bankruptcy Court, on or prior to the Closing Date, Sellers may not, without the prior written consent of Purchaser, take any
of the following actions with respect to the Purchased Assets: 


 


(a)          except
as set forth in Schedule 8.1(a), remove or permit to be removed from any building, facility, real property or any
asset other than Excluded Assets; 


 


(b)          sell,
lease or otherwise dispose of, mortgage, hypothecate or otherwise encumber any asset;


 




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(c)         
 fail to use commercially reasonable
efforts to maintain all insurance policies, utility services agreements or Permits of Sellers, listed on any schedules hereto; 


 


(d)         
 file any Tax Return (other than
consistent with past practice and applicable Law) or make, change or rescind any Tax election or file any amended Tax Return or
change their fiscal year or financial or Tax accounting methods, policies or practices or settle any Tax Liability, except in
each case as would not reasonably be expected to result in any Liability to, or have any adverse effect on, the Purchaser or the
Purchased Assets;


 


(e)          agree,
whether in writing or otherwise, to do any of the foregoing. 


 


8.2         
Access to Information. Sellers agrees that, between the Agreement Date and the earlier of the Closing Date and the date
on which this Agreement is terminated in accordance with Section 3.4, Purchaser shall be entitled, through its officers,
employees, legal counsel, accountants and other authorized representatives, agents and contractors (“Representatives”),
to have such reasonable access to and make such reasonable investigation and examination of the books and records, properties,
assets, Employees, accountants, auditors, counsel and operations of Sellers related to the Purchased Assets as Purchaser’s
Representatives may reasonably request, but such information shall not include any information subject to the attorney-client
privilege or any other applicable privilege. Any such investigations and examinations shall be conducted during regular business
hours upon reasonable advance notice and under reasonable circumstances. Sellers shall use commercially reasonable efforts to
cause its Representatives to reasonably cooperate with Purchaser and Purchaser’s Representatives in connection with such
investigations and examinations, and Purchaser shall, and use its commercially reasonably efforts to cause its Representatives
to, reasonably cooperate with the Sellers and their Representatives, and shall use its commercially reasonable efforts to minimize
any disruption to the use or operation of the Purchased Assets. 


 


8.3          [intentionally
omitted]. 


 


8.4          Reasonable
Efforts; Cooperation.


 


(a)         
 Subject to the other provisions
hereof, each Party shall use its commercially reasonable efforts to perform its obligations hereunder and to take, or cause to
be taken, and do, or cause to be done, all things necessary, proper or advisable under applicable Law to cause the transactions
contemplated herein to be effected as soon as practicable, but in any event on or prior to the Outside Date, in accordance with
the terms hereof and shall cooperate in a commercially reasonable manner with each other Party and its Representatives in connection
with any step required to be taken as a part of its obligations hereunder.


 


(b)         
 In the event that any of the
Parties to this Agreement discovers a Contract related to the Purchased Assets or the Assumed Liabilities during the period from
and after the Agreement Date, and such Contract (i) was unknown as of the Agreement Date, and (ii) is a Contract that Purchaser
wishes to assume the rights and obligations of, then Purchaser and Sellers shall execute, acknowledge and deliver such other instruments
and take such further actions as are reasonably practicable for Purchaser to assume the rights and obligations under such Contract.


 




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(c)         
 The obligations of Sellers pursuant
to this Section 8.4 shall be subject to any orders entered, or approvals or authorizations granted or required, by or under
the Bankruptcy Court or the Bankruptcy Code (including in connection with the Bankruptcy Case), and Sellers’ obligations
as a debtor-in-possession to comply with any order of the Bankruptcy Court (including the Bidding Procedures Order and the Sale
Order) and Sellers’ duty to seek and obtain the highest or otherwise best price for the assets required by the Bankruptcy
Code.


 


(d)         
Sellers, on the one hand, and
Purchaser, on the other hand, will provide each other with such cooperation and information as either of them may reasonably request
of the other in connection with filing any Tax Return, amended Tax Return or claim for refund, determining a liability for Taxes
or a right to a refund of Taxes, or participating in or conducting any audit or other proceeding in respect of Taxes (such cooperation
and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules,
related work papers and documents relating to rulings and other determinations by Tax authorities). In addition, Purchaser shall
make available to Sellers, without charge to Sellers, such office space and employee support reasonably necessary to assist Sellers
to wind up Sellers’ operations following the Closing, resolve the Bankruptcy Case, dissolve any or all of the Sellers and
prepare and file the Tax Returns; provided Sellers follows Purchaser’s reasonable instructions while using Purchaser’s
premises. Any information obtained under this Section 8.4(d) shall be kept confidential except as may be otherwise necessary
in connection with the filing of Tax Returns or claims for refund or in conducting any audit or other proceeding.


 


(e)
         Sellers,
on the one hand, and Purchaser, on the other hand, (i) shall promptly inform each other of any communication from any Governmental
Body concerning this Agreement, the transactions contemplated hereby, and any filing, notification or request for approval and
(ii) shall permit the other to review in advance any proposed written or material oral communication or information submitted
to any such Governmental Body in response thereto. In addition, none of Parties shall agree to participate in any meeting with
any Governmental Body in respect of any filings, investigation or other inquiry with respect to this Agreement or the transactions
contemplated hereby, unless such Party consults with the other Parties in advance and, to the extent permitted by any such Governmental
Body, gives the other Parties the opportunity to attend and participate thereat, in each case to the maximum extent practicable.
Subject to restrictions under any Law, each of Purchaser, on the one hand, and Sellers, on the other hand, shall furnish the other
with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and
its Affiliates and their respective Representatives on the one hand, and the Governmental Body or members of its staff on the
other hand, with respect to this Agreement, the transactions contemplated hereby (excluding documents and communications which
are subject to preexisting confidentiality agreements or to the attorney-client privilege or work product doctrine or which refer
to valuation of the Purchased Assets) or any such filing, notification or request for approval. Each Party shall also furnish
the other Party with such necessary information and assistance as such other Party and its Affiliates may reasonably request in
connection with their preparation of necessary filings, registration or submissions of information to the Governmental Body in
connection with this Agreement, the transactions contemplated hereby and any such filing, notification or request for approval.


 




    24


     


    






(f)       
  In the event that any of the
Updating Information discloses a Contract, Permit, required notice or consent related to the Purchased Assets or the Assumed Liabilities
during the period from and after the Agreement Date, and such Contract, Permit, required notice or consent (i) is a Contract,
Permit, required notice or consent that Purchaser wishes, or that affects the assignability or ability of Purchaser, to assume
the rights and obligations of and (ii) would not be deemed an Excluded Asset or Excluded Liability, as the case may be, Purchaser
and Sellers shall execute, acknowledge and deliver such other documents, agreements and instruments and take such further actions
as are reasonably required by Purchaser in order to assume the rights and obligations under such Contract or Permit, or to deliver
such required notice or obtain such consent.


 


8.5         
Further Assurances. Each Party shall execute and cause to be delivered to each other Party such instruments and other documents,
and shall take such other actions, as such other Party may reasonably request (prior to, at or after the Closing) for the purpose
of carrying out or evidencing any of the transactions contemplated by this Agreement. After the Closing, Sellers shall promptly
transfer or deliver to Purchaser cash, checks (which shall be properly endorsed) or other property that Sellers may receive in
respect of any deposit, prepaid expense, receivable or other item that constitutes part of the Purchased Assets or relates to
the Assumed Liabilities.


 


8.6
         Notification of Certain Matters. Sellers shall give prompt notice to Purchaser, and Purchaser shall give prompt notice
to Sellers, of (i) any notice or other communication from any Person alleging that the consent of such Person which is or may
be required in connection with the transactions contemplated by this Agreement or the Ancillary Documents is not likely to be
obtained prior to Closing, (ii) any written objection or proceeding that challenges the transactions contemplated hereby or the
entry of the approval of the Bankruptcy Court and (iii) the status of matters relating to the completion of the transactions contemplated
hereby, including promptly furnishing the other with copies of notices or other communications received by Sellers or Purchaser
or by any of their respective Affiliates (as the case may be), from any third party and/or any Governmental Body with respect
to the transactions contemplated by this Agreement.


 


8.7         
Confidentiality. Purchaser acknowledges that the confidential information provided to them in connection with this Agreement,
and the consummation of the transactions contemplated hereby, is subject to the terms and conditions of the Confidentiality Agreement.


 


8.8         
Material Adverse Effect. Sellers shall promptly inform Purchaser in writing of the occurrence of any event that has had,
or is reasonably expected to have, a Material Adverse Effect. Notwithstanding anything herein, any reduction in the Sellers’
crude-by-rail revenue shall not be considered a default, Material Adverse Effect or reason for termination of any kind.


 


8.9         
Casualty Loss. Notwithstanding any provision of this Agreement to the contrary, if, before the Closing, all or any portion
of the Purchased Assets is (a) condemned or taken by eminent domain, or (b) is damaged or destroyed by fire, flood or other casualty,
Sellers shall notify Purchaser promptly in writing of such fact, (i) in the case of condemnation or taking, Sellers shall assign
or pay, as the case may be, any proceeds thereof to Purchaser at the Closing, and (ii) in the case of fire, flood or other casualty,
Sellers shall assign the insurance proceeds therefrom to Purchaser at Closing. Notwithstanding the foregoing, the provisions of
this Section


 






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8.9
shall not in any way modify Purchaser’s other rights under this Agreement, including any applicable right to
terminate the Agreement if any condemnation, taking, damage or other destruction resulted in a Material Adverse
Effect.


 


8.10       
No Successor Liability. The Parties intend that, except where expressly prohibited under applicable Law, upon the Closing,
Purchaser shall not be deemed to: (i) be the successor of Sellers, (ii) have, de facto, or otherwise, merged with or into
Sellers, (iii) be a mere continuation or substantial continuation of Sellers or the enterprise(s) of Sellers, or (iv) be liable
for any acts or omissions of Sellers in the conduct of any business or arising under or related to the Purchased Assets other
than as set forth in this Agreement. Without limiting the generality of the foregoing, and except as otherwise provided in this
Agreement, the Parties intend that Purchaser shall not be liable for any Encumbrance (other than Assumed Liabilities and Permitted
Encumbrances) against Sellers or any of Sellers’ predecessors or Affiliates, and Purchaser shall have no successor or vicarious
liability of any kind or character whether known or unknown as of the Closing Date, whether now existing or hereafter arising,
or whether fixed or contingent, with respect to the Purchased Assets or any Liabilities of Sellers arising prior to the Closing
Date. The Parties agree that the provisions substantially in the form of this Section 8.10 shall be reflected in the Sale
Order.


 


8.11       
Delivery of Disclosure Schedules; Update of Disclosure Schedules.


 


(a)
         Except
as otherwise provided herein, Sellers shall provide Purchaser with the Disclosure Schedules within 7 days after the Agreement
Date; and until 10 days before the Auction or such later date as the parties may otherwise agree, each Party has the continuing
right and obligation (i) to supplement, modify, reject or amend, with respect to any matter hereafter arising or events or conditions
arising after the date hereof and prior to the Closing, the information required to be set forth on the Disclosure Schedules as
to representations made by such Party with respect to any matter hereafter arising or discovered which, if existing or known at
the Agreement Date, would have been required to have been set forth on such Disclosure Schedules, and (ii) if necessary or appropriate
to correct any inaccuracy in a representation made by such Party, to add a schedule to the Disclosure Schedules with a corresponding
reference in this Agreement (such information and additional schedules collectively being called the “Updating Information”);


 


(b)
         To the extent Updating Information
(i) contains Liabilities in excess of $25,000
in the aggregate, all such Liabilities in excess of that amount shall be Excluded Liabilities and Purchaser shall not assume nor
be deemed to have assumed such excess Liabilities and (ii) discloses in the reasonable commercial opinion of Purchaser, a material
impediment to the ownership or operations of the Purchased Assets, Purchaser shall acquire the Purchased Assets free of such material
impediment; and


 


(c)
         Notwithstanding anything to the
contrary contained herein, the Purchaser shall be entitled to remove and leave behind with Sellers, in its sole discretion, any
asset that would constitute a Purchased Asset (and associated liabilities therewith) so long as no reduction in Purchase Price
is made as a result of such removal. Purchaser shall deliver notice to the Sellers of any such removal promptly after making such
determination, but in any event, at least 2 Business
Days prior to Closing Date.


 






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ARTICLE
IX. 


 


CONDITIONS
TO CLOSING


 


9.1         
Conditions Precedent to the Obligations of Purchaser and Sellers. The respective obligations of each Party to this Agreement
to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law,
written waiver by each of the Sellers and Purchaser) on or prior to the Closing Date, of each of the following conditions:


 


(a)
       there shall not be in effect
any order, writ, injunction, judgment or decree entered by a Governmental Body of competent jurisdiction, or any Law preventing,
enjoining, restraining, making illegal or otherwise prohibiting the consummation of the transactions contemplated by this Agreement
or the Ancillary Documents; and


 


(b)
         the Bankruptcy Court shall have
entered the Bidding Procedures Order and the Sale Order (as provided in Article VII) and each of such orders shall be a
Final Order and in form and substance reasonably satisfactory to Sellers and Purchaser, which orders shall not have been reversed,
modified, amended or stayed.


 


9.2         
Conditions Precedent to the Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, any of
which may be waived in writing by Sellers in their sole discretion:


 


(a)        
 the representations and warranties
made by Purchaser in this Agreement or in any Ancillary Document shall be true and correct in all material respects (without giving
effect to any materiality or similar qualification contained therein), in each case as of the Agreement Date and as of the Closing
Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other
than representations and warranties that by their terms address matters only as of another specified date, which shall be so true
and correct only as of such other specified date), except where the failure of such representations or warranties to be so true
and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
on Purchaser’s ability to consummate the transactions contemplated hereby;


 


(b)        
 Purchaser shall have performed
and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied
with by Purchaser on or prior to the Closing Date; and


 


(c)
          Purchaser shall have delivered,
or caused to be delivered, to Sellers all of the items set forth in Section 3.3.


 


9.3
         Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, any of
which may be waived in writing by Purchaser in its sole discretion:


 






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(a)        
 Sellers shall have (i) obtained
entry of the Sale Order (which shall contain the terms described in Section 7.3, reasonably reflect the terms set forth
in this Agreement, and be in a form reasonably acceptable to Purchaser) and (ii) provided to Purchaser copies of all affidavits
of service of the Sale and Bidding Procedures Motion or notice of such motion filed by or on behalf of Sellers (which service
shall comply with Section 7.2(d));


 


(b)        
 the representations and warranties
made by Sellers in this Agreement or in any Ancillary Document shall be true and correct in all material respects (provided that
any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall
be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and
as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the
Closing Date (other than representations and warranties that by their terms address matters only as of another specified date,
which shall be so true and correct only as of such other specified date);


 


(c)        
 Sellers shall have performed
and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied
with by it on or prior to the Closing Date;


 


(d)        
 Sellers shall have delivered,
or caused to be delivered, to Purchaser, all of the items set forth in Section 3.2;


 


(e)          

Sellers shall have complied with
the sale process deadlines set forth in the Bidding
Procedures Order; and


 


(f)
        
 Sellers shall have delivered
such other documents, agreements and instruments as may be required or reasonably requested by Purchaser as a result of any Updating
Information; and


 


(g)
        Purchaser shall have received
binding commitments from certain key employees of Sellers, as determined by Purchaser, to be employed by Purchaser subsequent
to Closing, on terms and conditions reasonably acceptable to Sellers; and


 


(h)
       Purchaser shall have entered
into a rail services agreement with the Canada
Pacific Railway for servicing the Terminal prior to Closing.


 


(i)          
Purchaser shall have received a binding commitment from Unimin Corporation to thruput frac sand at the Terminal on terms and conditions
that are materially and substantially similar to those that are provided under the Terminal Operating Contract by and between
Seller and Unimin Corporation dated on or about July 31, 2013, or have received an assignment of said Terminal Operating Contract.


 


ARTICLE
X. 


 


ADDITIONAL
DEFINITIONS


 


10.1        
Definitions. As used herein:


 






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(a)
       “Affiliate” means,
with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled
by” and “under common control with”) means (i) the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract
or otherwise or (ii) an officer, director, or any Person that has the power, directly or indirectly, to vote 5% or more of the
securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person.


 


(b)
      “Affiliate
Agreement” means any agreement or contract between any director, officer, employee or greater than five percent
(5%) stockholder of Sellers or Affiliate of any such Person, on one hand, and Sellers, on the other hand, related to the Purchased
Assets, including any contract providing for the employment of, furnishing of services by, rental of real or personal property
from or otherwise requiring payments to any such Person or firm, other than employment-at-will arrangements in the ordinary course
of business.


 


(c)
       “Agreement”
shall have the meaning set forth in the preamble.


 


(d)        “Agreement
Date” shall have the meaning set forth in the preamble. 


 


(e)        “Allocation”
shall have the meaning set forth in Section 11.2.


 


(f)
       “Alternative Transaction”
means (i) the approval by the Bankruptcy Court of a sale or sales of a material portion of the Purchased Assets to a Person
other than Purchaser, or (ii) the filing of a plan of reorganization that does not contemplate the sale of the Purchased Assets
to Purchaser in accordance with the terms hereof.


 


(g)
       “Ancillary
Documents” means any certificate, agreement, document or other instrument (other than this Agreement) to be executed
and delivered by a Party in connection with the consummation of the transactions contemplated this Agreement.


 


(h)
       “Assigned Contracts”
shall have the meaning set forth in Section 1.1(m).


 


(i)        “Assignment
and Assumption Agreement” shall have the meaning set forth in Section 3.2(b).


 


(j)        “Assumed
Liabilities” shall have the meaning set forth in Section 1.3.


 


(k)
       “Auction”
has that meaning ascribed to such term by the Bidding Procedures
Order.


 


(l)        “Avoidance
Actions” shall have the meaning set forth in Section 1.1(r).


 


(m)       “Back-up Bidder”
shall have the meaning set forth in Section 7.2(c).


 


(n)
       “Bankruptcy Case”
shall have the meaning set forth in the Recitals.


 






    29


     


    

 


(o)
        “Bankruptcy Code”
shall have the meaning set forth in the Recitals.


 


(p)
        “Bankruptcy Court”
shall have the meaning set forth in the Recitals. 


 


(q)
        “Bankruptcy Rules”
shall have the meaning set forth in the Recitals.


 


(r)
        “Benefit
Plan” means, to the extent related to the Sellers or the Purchased Assets, (i) all “employee benefit
plans” (including, without limitation, as defined in Section 3(3) of ERISA), including all employee benefit plans
which are “Pension Plans” (including, without limitation, as defined in Section 3(2) of ERISA) and any
other employee benefit arrangements or payroll practices (including severance pay, vacation pay, company awards, salary continuation
for disability, sick leave, death benefit, hospitalization, welfare benefit, group or individual health, dental, medical, life,
insurance, fringe benefit, deferred compensation, profit sharing, retirement, retiree medical, supplemental retirement, bonus
or other incentive compensation, stock purchase, equity-based, stock option, stock appreciation rights, restricted stock and phantom
stock arrangements or policies) and (ii) all other employment, termination, bonus, severance, change in control, collective bargaining
or other similar plans, programs, contracts, or arrangements (whether written or unwritten), in each case, maintained, contributed
to, or required to be contributed to by Sellers or any ERISA Affiliate for the benefit of any current or former employee, director,
officer or independent contractor of Sellers or under which Sellers or any ERISA Affiliate has any liability.


 


(s)
        “Bidding Procedures
Order” means an order substantially in the form attached hereto as Exhibit E and otherwise in form and substance
reasonably satisfactory to Sellers and Purchaser.


 


(t)
          “Bill of Sale”
shall have the meaning set forth in Section 3.2(a).


 


(u)
         “Break-Up Fee”
shall have the meaning set forth in Section 7.1.


 


(v)
        “Business Day”
means any day other than a Saturday, Sunday or other day on which banks in New York City, New York are authorized or required
by Law to be closed.


 


(w)
       “Cash and Cash Equivalents”
means all of Sellers’ cash (including petty cash and checks received prior to the close of business on the Closing
Date), checking account balances, marketable securities, certificates of deposits, time deposits, bankers’ acceptances,
commercial paper, security entitlements, securities accounts, commodity Contracts, commodity accounts, government securities and
any other cash equivalents, whether on hand, in transit, in banks or other financial institutions, or otherwise held (but specifically
excluding any cash payable by Purchaser to Sellers pursuant to this Agreement, and any customer deposits, advances or prepayments
deposited, made or paid to Sellers).


 


(x)
          “Cash Consideration”
shall have the meaning set forth in Section 2.3(e).


 


(y)
         “Chapter 11 Petition”
shall have the meaning set forth in the Recitals.


 






    30


     


    

 


(z)
        “Claim”
has the meaning given that term in Section 101(5) of the Bankruptcy Code and includes, inter alia,
all rights, claims, causes of action, defenses, debts, demands, damages, offset rights, setoff rights, recoupment right, obligations,
and liabilities of any kind or nature under contract, at law or in equity, known or unknown, contingent or matured, liquidated
or unliquidated, and all rights and remedies with respect thereto.


 


(aa)
       “Closing” shall
have the meaning set forth in Section 3.1.


 


(bb)
       “Closing Date”
means the date on which the Closing occurs.


 


(cc)
       “Closing Date Payment”
shall have the meaning set forth in Section 2.3(d).


 


(dd)
       “Closing Statement”
shall have the meaning set forth in Section 2.3(a).


 


(ee)
       “Code” means
the United States Internal Revenue Code of 1986, as the same may be amended from time to time.


 


(ff)
         “Companies”
shall have the meaning set forth in the preamble.


 


(gg)
       “Competing Bid”
shall have the meaning set forth in Section 7.2(b).


 


(hh)       “Confidentiality
Agreement” means that certain Confidentiality and Non- Disclosure Agreement by and between Purchaser and Dakota
Plains Holdings, Inc, dated __, 2016.


 


(ii)
         “Contract”
means any written or oral contract, purchase order, service order, sales order, indenture, note, bond, lease, sublease,
license, permit, understanding, instrument or other agreement, arrangement or commitment that is binding upon a Person or its
property, whether express or implied.


 


(jj)
         “Crude Business”
means any and all revenue or expected revenue related to the business of crude-by-rail transportation or storage, and any and
all revenue or expected revenue related to or arising out of access to crude oil supply from the Pelican Pipeline or any other
pipeline connected to the Terminal involving crude oil.


 


(kk)
        “Crude Oil Inventory”
means and all crude oil owned by the Sellers but excluding (i) any crude oil held by consignment, (ii) being stored by
the Sellers and not owned, or (ii) otherwise not owned by the Sellers.


 


(ll)
          “Cure Costs”
shall have the meaning set forth in Section 1.3(b).


 


(mm)       “Deposit” shall
have the meaning set forth in Section 2.2.


 


(nn)
       “Disclosure Schedules”
has the meaning set forth in Article IV.


 


(oo)
       “Documents”
means all of Sellers’ written files, documents, instruments, papers, books, reports, records, tapes, microfilms,
photographs, letters, budgets, forecasts, plans,


 






    31


     


    

 


operating
records, safety and environmental plans and reports, data, Permits and Permit applications, studies and documents, Tax Returns,
ledgers, journals, title policies, customer lists, regulatory filings, operating data and plans, research material, technical
documentation (design specifications, engineering information, test results, maintenance schedules, functional requirements, operating
instructions, logic manuals, processes, flow charts, etc.), user documentation (installation guides, user manuals, training materials,
release notes, working papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), and other
similar materials, in each case whether or not in electronic form relating to the Purchased Assets.


 


(pp)
       “Employee”
means an individual who, as of the applicable date, is employed by Sellers.


 


(qq)
      “Encumbrance”
means any lien (as defined in Section 101(37) of the Bankruptcy Code), encumbrance, claim (as defined in Section 101(5)
of the Bankruptcy Code), right, demand, charge, mortgage, deed of trust, option, pledge, security interest or similar interests,
title defects, hypothecations, easements, rights of way, restrictive covenants, encroachments, rights of first refusal, preemptive
rights, judgments, conditional sale or other title retention agreements and other impositions, imperfections or defects of title
or restrictions on transfer or use of any nature whatsoever.


 


(rr)
        “Environmental Law”
means all applicable federal, state and local laws, statutes, codes, ordinances, and any judicial and administrative rules,
regulations, and orders, relating to (i) human health or safety, (ii) the protection of the environment, or (iii) emissions, discharges
or releases of Hazardous Materials or otherwise relating to the treatment, storage, disposal, transport or handling of Hazardous
Materials including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §
9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 321, et seq., the Oil Pollution Act, 33 U.S.C. §
2702, et seq., the Clean Water Act, 33 U.S.C. § 1251, et seq., and the Clean Air Act, 42 U.S.C. § 7401, et seq., and
their state and local counterparts.


 


(ss)
       “Environmental Liabilities
and Obligations” means all Liabilities arising from any actual or threatened impairment, impact or damage to the
environment, health or safety, or any actual or threatened failure to comply with Environmental Law in connection with the prior
or ongoing ownership or operation of the Purchased Assets or the Owned Real Property, including Liabilities related to: (i) the
transportation, storage, use, arrangement for disposal or disposal of Hazardous Materials; (ii) the Release of Hazardous Materials,
including migration onto or from the Owned Property; (iii) any other pollution or contamination of the surface, substrata, soil,
air, ground water, surface water or marine environments; (iv) any other obligations imposed under Environmental Law including
all applicable Permits; (v) Orders, notices to comply, notices of violation, alleged non-compliance and inspection reports; and
(vi) all obligations with respect to personal injury, property damage, wrongful death and other damages and losses arising under
applicable Law as a result of any of the matters identified in clauses (i)-(v) of this definition.


 


(tt)
        “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.


 






    32


     


    

 


(uu)
      “ERISA Affiliate”
means any entity which is a member of (A) a controlled group of corporations (as defined in Section 414(b) of the Code),
(B) a group of trades or businesses under common control (as defined in Section 414(c) of the Code), (C) an affiliated service
group (as defined under Section 414(m) of the Code) or (D) any group specified in Treasury Regulations promulgated under Section
414(o) of the Code, any of which includes or included Sellers.


 


(vv)
      “Escrow Agent”
means a third-party entity approved by the parties hereto, which entity will have fiduciary obligations with respect to
the transfer of funds related to this Agreement and whose actions will be governed by an escrow agreement approved by the parties
hereto.


 


(ww)       “Excluded
Assets” shall have the meaning set forth in Section 1.2.


 


(xx)
        “Excluded Liabilities”
shall have the meaning set forth in Section 1.4.


 


(yy)
       “Expense Reimbursement”
shall mean the reasonable out-of-pocket fees, costs and expenses of the Purchaser, subject to a cap of $150,000.


 


(zz)
        “Final
Order” means an order or judgment of the Bankruptcy Court or any other court of competent jurisdiction entered by
the Clerk of the Bankruptcy Court or such other court on the docket in Sellers’ Bankruptcy Case or the docket of such other
court, which has not been modified, amended, reversed, vacated or stayed and as to which (a) the time to appeal, petition for
certiorari, or move for a new trial, reargument or rehearing has expired and as to which no appeal, petition for certiorari
or motion for new trial, reargument or rehearing shall then be pending or (b) if an appeal, writ of certiorari new
trial, reargument or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court or other court of competent
jurisdiction shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been
denied, or a new trial, reargument or rehearing shall have been denied or resulted in no modification of such order, and the time
to take any further appeal, petition for certiorari or move for a new trial, reargument or rehearing shall have expired,
as a result of which such order shall have become final in accordance with Rule 8002 of the Federal Rules of Bankruptcy Procedure;
provided, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under
the Bankruptcy Rules, may be filed relating to such order, shall not cause such order not to be a Final Order.


 


(aaa)      “FIRPTA
Certificate” shall have the meaning set forth in Section 11.4.


 


(bbb)
    “GAAP”
means United States generally accepted accounting principles as in effect from time to time.


 


(ccc)
     “Governmental Body”
means any government, quasi-governmental entity, or other governmental or regulatory body, agency or political subdivision
thereof of any nature, whether foreign, federal, state or local, or any agency, branch, department, official, entity, instrumentality
or authority thereof, or any court or arbitrator (public or private) of applicable jurisdiction.


 






    33


     


    

 


(ddd)
   “Hazardous Material”
means any substance, material or waste which is regulated by any Governmental Body, including petroleum and its by-products,
asbestos, and any material or substance which is defined or identified as a “hazardous waste,” “hazardous substance,”
“hazardous material,” “restricted hazardous waste,” “industrial waste,” “solid waste,”
“contaminant,” “pollutant,” “toxic waste” or “toxic substance” or otherwise regulated
under or the subject of any provision of Environmental Law.


 


(eee)
     “Inventory”
means all inventory (including crude oil and frac sand) owned by Sellers and stored at the Terminal.


 


(fff)
      “Knowledge”
or (“Knowledge of Sellers” or “Sellers’ Knowledge”) means the
actual knowledge of Sellers’ President/CEO, CFO and VP of Operations, respectively being Gabe Claypool, Jim Thornton, and
James Tate.


 


(ggg)
     “Law”
means any federal, state, local, municipal, foreign or international, multinational or other law, statute, constitution, principle
of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated,
implemented or otherwise put into effect by or under the authority of any Governmental Body, in each case as in effect as of the
Closing Date.


 


(hhh)
    “Liability”
means, as to any Person, any debt, adverse claim, liability (including any liability that results from, relates to or
arises out of tort or any other product liability claim), duty, responsibility, obligation, commitment, assessment, cost, expense,
loss, expenditure, charge, fee, penalty, fine, contribution or premium of any kind or nature whatsoever, whether known or unknown,
asserted or unasserted, absolute or contingent, direct or indirect, accrued or unaccrued, liquidated or unliquidated, or due or
to become due, and regardless of when sustained, incurred or asserted or when the relevant events occurred or circumstances existed.


 


(iii)         “Material
Adverse Effect” means any event, change, occurrence or state of facts that has had, or is reasonably likely to
have, individually or in the aggregate, a material adverse effect on the value or usability of the Purchased Assets or the
Assumed Liabilities, provided, however, that in no event shall any of the following, alone or in combination,
be deemed to constitute, or be taken into account, in determining whether there has been, or would be, a Material Adverse
Effect: (a) changes in the U.S. economy or capital markets in general but that do not have a disproportionate effect on the
Purchased Assets, (b) changes that affect generally the fracking industry but that do not have a disproportionate effect on
the Purchased Assets, (c) changes after the Agreement Date in any applicable Law or GAAP or other applicable accounting
standards or interpretations thereof, (d) national or international political or social actions or conditions, including the
engagement by any country in hostilities, whether commenced before or after the date hereof, and whether or not pursuant to
the declaration of a national emergency or war, or the occurrence of any military or terrorist attack, (e) the operation of
any oil or gas pipeline that connects North Dakota and any other state or location (and which shall expressly include the
pipeline commonly called the “Dakota Access Pipeline”) or material reduction in revenue as a result thereof; (f)
material reduction in revenue of crude-by-rail transportation; (g) any current or expected loss on account of the Crude
Business; or (h) the commencement of the Bankruptcy Case.


 






    34


     


    

 


(jjj)
        “Order”
means any award, writ, injunction, judgment, order, ruling, decision, subpoena, mandate, precept, command, directive, consent,
approval, award, decree or similar determination or finding entered, issued, made or rendered by any Governmental Body.


 


(kkk)
     “Ordinary Course
of Business” means the ordinary and usual course of normal day to day operations of the Business consistent with
past practice.


 


(lll)
        “Organizational Documents”
means, with respect to a particular entity Person, (i) if a corporation, the articles or certificate of incorporation
and bylaws, (ii) if a general partnership, the partnership agreement and any statement of partnership, (iii) if a limited partnership,
the limited partnership agreement and certificate of limited partnership, (iv) if a limited liability company, the articles or
certificate of organization or formation and any limited liability company or operating agreement, (v) if another type of Person,
all other charter and similar documents adopted or filed in connection with the creation, formation or organization of the Person,
and (vi) all amendments or supplements to any of the foregoing.


 


(mmm)    “Outside
Back-up Date” shall have the meaning set forth in Section 7.2(c).


 


(nnn)
    “Outside Date”
shall have the meaning set forth in Section 3.4(b).


 


(ooo)
    “Overbid Protection”
shall have the meaning set forth in Section 7.1.


 


(ppp)
    “Owned Real Property”
shall have the meaning set forth in Section 4.6.


 


(qqq)
    “Party”
shall have the meaning set forth in the preamble.


 


(rrr)
       “Permits”
means to the fullest extent permitted under applicable law, all notifications, licenses, permits (including environmental, construction
and operation permits), franchises, certificates, approvals, consents, waivers, clearances, exemptions, classifications, registrations,
variances, orders, tariffs, rate schedules and other similar documents and authorizations issued by any Governmental Body to any
of the Sellers and used, or held for use, applicable to ownership of the Purchased Assets or assumption of the Assumed Liabilities.


 


(sss)
     “Permitted Encumbrances”
means (i) Encumbrances for utilities and current Taxes not yet due and payable or being contested in good faith; (ii)
easements, rights of way, restrictive covenants, encroachments and similar non-monetary encumbrances or non-monetary impediments
against any of the Purchased Assets which do not, individually or in the aggregate, adversely affect the use or operation of the
Purchased Assets and, in the case of the Owned Real Property, which do not, individually or in the aggregate, adversely affect
the use or occupancy of such Owned Real Property as it relates to the operation or use of the Purchased Assets or materially detract
from the value of the Owned Real Property, (iii) applicable zoning Laws, building codes, land use restrictions and other similar
restrictions imposed by Law, and (iv) such other Encumbrances or title exceptions as Purchaser may approve in writing in its sole
discretion or which do not, individually or in the aggregate, materially and adversely affect the operation or use of the Purchased
Assets.


 






    35


     


    

 


(ttt)
       “Person”
means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization,
labor union, estate, Governmental Body or other entity or group.


 


(uuu)
     “Petition Date”
means the date on which the Sellers commenced the Bankruptcy
Case.


 


(vvv)
     “Pre-Closing Period”
means the period commencing on the Agreement Date and ending on the earlier of the date upon which this Agreement is terminated
pursuant to Section 3.4 or the Closing Date.


 


(www)
   “Pre-Closing Tax
Period” means any taxable period (or portion thereof) ending
on or before the Closing Date.


 


(xxx)
       “Prevailing Bidder”
shall have the meaning set forth in Section 7.2(c).


 


(yyy)
     “Purchase Price”
shall have the meaning set forth in Section 2.1(a).


 


(zzz)        “Purchased
Assets” shall have the meaning set forth in Section 1.1.


 


(aaaa)
    “Purchaser”
shall have the meaning set forth in the preamble.


 


(bbbb)
   “Purchaser Designee”
shall have the meaning set forth in Section 1.1.


 


(cccc)
    “Purchaser Statement”
shall have the meaning set forth in Section 2.3(b).


 


(dddd)
   “Release”
means any actual or threatened release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal
or leaching into the indoor or outdoor environment, or including migration to or from a property, including but not limited to
any Owned Real Property.


 


(eeee)
    “Remedial Action”
means all actions to (i) investigate, clean up, remove, treat or in any other way address any Hazardous Material; (ii)
prevent the Release of any Hazardous Material; (iii) perform pre-remedial studies and investigations or post-remedial monitoring
and care; or (iv) to correct a condition of noncompliance with Environmental Laws.


 


(ffff)
       “Representatives”
shall have the meaning set forth in Section 8.2.


 


(gggg)
   “Sale and Bidding
Procedures Motion” shall have the meaning set forth in Section 7.2(a).


 


(hhhh)
   “Sale Hearing”
means the hearing to approve this Agreement and seeking entry of the Sale Order.


 


(iiii)
        “Sale Motion”
means the motion or motions of Sellers, in form and substance reasonably acceptable to Sellers and Purchaser, seeking
approval and entry of the Bidding Procedures Order and Sale Order.


 






    36


     


    

 




(jjjj)      “Sale
Order” means an order substantially in the form attached hereto as Exhibit D and otherwise in form and substance
reasonably satisfactory to Sellers and Purchaser.


 


(kkkk)
 “Sellers” shall have the meaning set forth in the preamble.


 


(llll)      “Straddle
Period” shall have the meaning set forth in Section 11.1(b).


 


(mmmm)
       “Tax” and “Taxes” mean (a) any and all
taxes, including any federal, state, provincial, local, foreign or other income, gross receipts, sales, value added, use, production,
ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment,
unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property
gains, windfall profits, capital, production, recapture, net worth, surplus, customs, duties, levies, surtaxes or other taxes,
fees, assessments, reassessments or charges of any kind whatsoever, together with any interest, additions, installments or penalties
with respect thereto and any interest in respect of such additions or penalties, (b) any Liability for the payment of any items
described in clause (a) above as a result of being (or ceasing to be) a member of an affiliated, consolidated, combined, unitary
or aggregate group (or being included (or being required to be included)) in any Tax Return related to such group (including any
Liability pursuant to Section 1.1502-6 of the Treasury Regulations, or any similar provision of state, local or non-U.S. law),
and (c) any Liability for the payment of any amounts as a result of any express or implied obligation to indemnify any other Person,
or any successor or transferee liability, by contract or otherwise in respect of any items described in clause (a) or (b) above.


 


(nnnn)
“Tax Proceeding” means any action, suit, investigation, audit, Claim,
investigation, or other action or proceeding with respect to Taxes.


 


(oooo)
“Tax Refunds” shall have the meaning set forth in Section 1.1(n).


 


(pppp)
“Tax Return” means any return, report, information return, declaration,
claim for refund or other document (including any schedule or related or supporting information) supplied or required to be supplied
to any Governmental Body with respect to Taxes, including amendments thereto.


 


(qqqq)
“Treasury Regulations” means the regulations promulgated under the
Code by the United States Department of the Treasury (whether in final, proposed or temporary form), as the same may be amended
from time to time.


 


(rrrr)
    “Updating Information” shall have the meaning set forth in Section
8.11.


 


(ssss)
  “Vendor Actions” shall have the meaning set forth in Section
1.1(r).


 


(tttt)    
“WARN Act” means the United States Worker Adjustment and Retraining
Notification Act, and the rules and regulations promulgated thereunder.


 




    	37 



     


    

 


ARTICLE
XI.


 


TAXES


 



11.1         Certain
Taxes.


 


(a)
       Any sales, use, purchase, transfer, franchise, deed, fixed asset, stamp, documentary stamp,
use or other Taxes and recording charges which may be payable by reason of the sale of the Purchased Assets or the assumption
of the Assumed Liabilities under this Agreement or the transactions contemplated hereby, and that are not exempt under Section
1146(a) of the Bankruptcy Code, shall be borne and timely paid by the Sellers. The Sellers shall, at their own expense, timely
file any Tax Return or other document required to be filed with respect to such Taxes, and Purchaser shall join in the execution
of any such Tax Return if required by Law.


 


(b)      
 In the case of any taxable period that begins before, and ends after, the Closing Date (a
“Straddle Period”), any real property, personal property, ad valorem and similar Taxes allocable to
the portion of such Straddle Period ending with the end of the day on the Closing Date shall be equal to the amount of such Taxes
for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period
that is in the Pre-Closing Tax Period and the denominator of which is the number of days in the entire Straddle Period, which
amount shall be an Excluded Liability.


 


11.2
        Allocation of Purchase Price. As soon as reasonably practicable after the Closing Date, the Purchaser shall determine the
allocation of (a) the Purchase Price, plus (b) the Assumed Liabilities, plus (c) all other items required to be treated as consideration
for federal income Tax purposes, among the Purchased Assets and the agreements provided for herein, for all purposes (including
financial, accounting and Tax) (the “Allocation”). The Purchaser and the Sellers shall each report the
federal, state and local income and other Tax consequences of the transactions contemplated hereby in a manner consistent with
the Allocation, including, if applicable, the preparation and filing of Forms 8594 under Section 1060 of the Code (or any successor
form or successor provision of any future Tax Law) with their respective federal income Tax Returns for the taxable year which
includes the Closing Date, and neither will take any position inconsistent with the Allocation unless otherwise required under
applicable Law. The Sellers shall provide the Purchaser and the Purchaser shall provide Sellers with a copy of any information
required to be furnished to the Secretary of the Treasury under Code Section 1060.


 


11.3        
Cooperation on Tax Matters. The Purchaser and the Sellers agree to provide each other with such information and assistance
as is reasonably necessary, including access to records, Tax Returns and personnel, for the preparation of any Tax Returns or for
the defense of any Tax claim or assessment, whether in connection with a Tax Proceeding or otherwise.


 


11.4        
FIRPTA Certificate. The Sellers shall deliver to the Purchaser on the date hereof a properly executed affidavit of non-foreign
status, reasonably satisfactory to Purchaser, that complies with Section 1445 of the Code and Section 1.1445-2(b)(2) of the Treasury
Regulations (the “FIRPTA Certificate”). If the Purchaser does not so receive a properly executed FIRPTA
Certificate from the Sellers, then the Purchaser shall be permitted to withhold from any payment to be made (or deemed to be made)
pursuant to this Agreement to the Sellers any required withholding Tax under Section 1445 of the Code as determined by the Purchaser.
Any amounts withheld shall be treated for all purposes of this Agreement as having been paid to the Sellers in respect of which
such withholding was made.


 




    	38 



     


    

 


11.5
        Tax Refunds. The Sellers agrees to cooperate with the Purchaser in all respects, and take or cause to be taken any steps
necessary, in order to apply for and obtain any Tax Refunds with respect to the Purchased Assets for any taxable year, provided
that the Purchaser pays all reasonable expenses incurred in connection therewith.


 


ARTICLE
XII.


 



MISCELLANEOUS


 


12.1         Payment of Expenses. Except
as otherwise provided in this Agreement (including, but not limited to Section 3.5 and Section 7.1) and whether
or not the transactions contemplated hereby are consummated, Sellers and the Purchaser shall bear their own expenses incurred
or to be incurred in connection with the negotiation and execution of this Agreement and the Ancillary Documents and the consummation
of the transactions contemplated hereby and thereby.


 


12.2
        Survival of Representations and Warranties; Survival of Confidentiality. The Parties agree that the representations and
warranties contained in this Agreement shall expire upon the Closing Date. The Parties agree that the covenants contained in this
Agreement to be performed at or after the Closing shall survive in accordance with the terms of the particular covenant or until
fully performed.


 


12.3
       Entire Agreement; Amendments and Waivers. This Agreement, together with the Confidentiality Agreement and the Ancillary
Documents, represents the entire understanding and agreement between the Parties with respect to the subject matter hereof. This
Agreement may be amended, supplemented or changed, and any provision hereof may be waived, only by written instrument making specific
reference to this Agreement signed by the Party against whom enforcement of any such amendment, supplement, modification or waiver
is sought, except for in connection with any amendment or updating procedures for schedules as provided for herein. No action taken
pursuant to this Agreement, including any investigation by or on behalf of any Party shall be deemed to constitute a waiver by
the Party taking such action of compliance with any representation, warranty, condition, covenant or agreement contained herein.
The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right,
power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by applicable Law.


 


12.4         Execution
of Agreement; Counterparts; Electronic Signatures. 


 


(a)       This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which
shall constitute one and the same instrument, and shall become effective when counterparts have been signed by each of the
Parties and delivered to the other Parties; it being understood that all Parties need not sign the same
counterparts.


 




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(b)
       The exchange of copies of this Agreement and of signature pages by facsimile transmission
(whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide
web), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic
means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall
constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement
for all purposes. Signatures of the Parties transmitted by facsimile shall be deemed to be their original signatures for all purposes.


 


12.5
       Governing Law. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH FEDERAL BANKRUPTCY LAW, TO THE EXTENT
APPLICABLE, AND WHERE STATE LAW IS IMPLICATED, THE LAWS OF THE STATE OF MINNESOTA SHALL GOVERN, WITHOUT GIVING EFFECT TO THE CHOICE
OF LAW PRINCIPLES THEREOF (EXCEPT FOR ANY LAWS OF THAT STATE WHICH WOULD RENDER SUCH CHOICE OF LAWS INEFFECTIVE), INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.


 


12.6          Jurisdiction,
Waiver of Jury Trial. 


 


(a)        
THE BANKRUPTCY COURT WILL HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN OR AMONG THE PARTIES,
WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT IF THE BANKRUPTCY COURT IS UNWILLING OR UNABLE TO HEAR ANY SUCH DISPUTE, THE COURTS OF THE STATE OF NORTH
DAKOTA AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN NORTH DAKOTA WILL HAVE SOLE JURISDICTION OVER ANY AND
ALL DISPUTES BETWEEN OR AMONG THE PARTIES, WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT
CONTEMPLATED HEREBY.


 


(b)
      EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


12.7        
Notices. Unless otherwise set forth herein, any notices, consents, waivers and other communications required or permitted
by this Agreement shall be in writing and shall be deemed given to a Party when (a) delivered to the appropriate address by hand
or by nationally recognized overnight courier service (costs prepaid), or (b) sent by facsimile or e-mail, in each case, if sent
during the normal business hours of the recipient, with confirmation of transmission by the transmitting equipment confirmed with
a copy delivered as provided in clause (a), in the case of each of clauses (a) and (b), to the following addresses, facsimile numbers
or e-mail addresses and marked to the attention of the person (by name or title) designated below (or to such other address, facsimile
number, e-mail address or person as a Party may designate by notice to the other Parties):


 


If to Sellers, to:


 




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Dakota Plains Holdings, Inc.


Dakota Petroleum Transport Solutions, LLC


294 Grove Lane East


Wayzata, MN 55391


Tel: 1-952-473-9950


Attn: Gabe Claypool, President &
Chief Executive Officer


 


With a copy (which shall not
constitute effective notice) to:


 


BakerHostetler LLP 


200 S Orange Ave suite 2300


Orlando, Florida 32801


Tel: 1-407-649-4036


Fax: 1-407-841-0168


Attn: Elizabeth Green


 


If to Purchaser, to:


 


BioUrja Trading, LLC


Eldridge Oaks I


1080 Eldridge Pkwy, Suite 1175


Houston, TX 77077


Tel: 1-832-775-9000


Fax: 1-281-558-6920


Attn: Amit Bhandari, Chairman &
CEO


 


With a copy (which shall not
constitute effective notice) to:


 


BioUrja Trading, LLC 


Eldridge Oaks I


1080 Eldridge Pkwy, Suite 1175


Houston, TX 77077


Tel: 1-832-775-9000


Fax: 1-281-558-6920


Attn: Shék Jain, COO & General
Counsel


 


12.8
       Binding Effect; Assignment. This Agreement shall be binding upon Purchaser and, subject to entry of the Bidding Procedures
Order (with respect to the matters covered thereby) and the Sale Order, Sellers, and inure to the benefit of the Parties and their
respective successors and permitted assigns, including any trustee or estate representative appointed in the Bankruptcy Case or
any successor Chapter 7 case. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights
in any Person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights
or


 




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obligations
hereunder may be made by Sellers or Purchaser (by operation of law or otherwise) without the prior written consent of the other
Parties and any attempted assignment without such required consents shall be void.


 


12.9
       Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any applicable Law in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction and in lieu of such invalid,
illegal or unenforceable provision or portion of any provision, there will be added automatically as a part of this Agreement a
valid legal and enforceable provision as similar in terms to such invalid, illegal or unenforceable provision as may be possible.


 


12.10      
Post-Closing Access to Information. Notwithstanding anything herein, Purchaser agrees to provide Seller access to such information
as is necessary for the wind-down of the Sellers Chapter 11 case including any information relating to pre-closing business operations
of the Sellers. Sellers, or any assignee thereof, shall provide the Purchaser with reasonable notice of any requests in accordance
with this provision.


 


12.12      
Bulk Sales Laws. Each Party hereby waives compliance by the Parties with the “bulk sales,” “bulk
transfers” or similar Laws and all other similar Laws in all applicable jurisdictions in respect of the transactions
contemplated by this Agreement or any Ancillary Document.


 


12.13      
Purchase Guarantee. To the extent Purchaser breaches any provisions hereunder and Purchaser fails to promptly pay any amounts,
for which Purchaser is determined to be liable by a court of law exercising appropriate jurisdiction, resulting from such breach,
Amit Bhandari hereby agrees to pay such amounts to the Sellers upon demand. Provided that, in no event, shall Amit Bhandari be
liable to pay any amounts in excess of the Purchase Price and reasonable costs and expenses in connection with enforcement of this
Agreement.


 


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IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written.


	 	 	 
	 	BIOURJA TRADING, LLC
	 	 	 
	 	By:	 
	 	 	Name: Shek Jain
	 	 	Title: Chief Operating Officer
	 	 	 
	 	AMIT BHANDARI, AS TO SECTION
    12.13
	 	 	 
	 	By:	 
	 	 	Name: Amit Bhandari
	 	 	Title:
	 	 	 
	 	DAKOTA PLAINS HOLDINGS, INC.
	 	 	 
	 	By:	 
	 	 	Name: Gabriel G. Claypool
	 	 	Title: President, CEO & COO
	 	 	 
	 	DAKOTA PETROLEUM TRANSPORT SOLUTIONS,
    LLC
	 	 	 
	 	By:	 
	 	 	Name: Gabriel G. Claypool
	 	 	Title: President, CEO & COO


 






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