in Re: John Calce

ACCEPTED 05-18-00647-CV 05-18-00647-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/4/2018 3:01 PM Part 5 of 5 LISA MATZ CLERK No. 05-18-00647-CV In the Court of Appeals FILED IN Fifth District of Texas at Dallas 5th COURT OF APPEALS DALLAS, TEXAS 6/4/2018 3:01:03 PM LISA MATZ Clerk In re JOHN CALCE Relator RECORD FOR PETITION FOR WRIT OF MANDAMUS Relator John Calce submits this record of trial court proceedings in support of his petition for writ of mandamus. Index of Documents # Date Description Record Pages 1 6/26/16 Plaintiff’s Original Petition 001-023 2 7/31/17 John Calce’s Original Counterclaim Against 024-172 Centurion Logistics LLC and Centurion Pecos Terminal LLC 3 11/22/17 John Calce’s First Amended Counterclaim 173-321 Against Centurion Logistics LLC and Centurion Pecos Terminal LLC 4 11/22/17 John Calce’s Amended Motion for Partial 322-393 Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC 10000280.1/SP/38371/0105/060118 5 11/27/17 John Calce’s Supplemental Evidence in 394-405 Support of Calce’s Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC 6 12/8/17 Plaintiff’s Response to John Calce’s Amended 406-858 Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC 7 12/12/17 John Calce’s Reply Brief in Support of 859-865 Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC 8 12/15/17 Notice of Trial Setting 866 9 5/2/18 Plaintiffs’ Second Amended Petition 867-903 10 5/21/18 Order Denying John Calce’s Amended 904-905 Motion for Partial Summary Judgment Regarding Counterclaim Againt Centurion Logistics LLC 10000280.1/SP/38371/0105/060118 Declaration of Chase J. Potter STATE OF TEXAS § COUNTY OF DALLAS § My name is Chase J. Potter. My date of birth is May 12, 1986. My address is 901 Main Street, Suite 6000, Dallas, Texas 75202. I hereby declare under penalty of perjury as follows: 1. I am over eighteen years of age and am fully competent to make this declaration. I am an attorney licensed by the Supreme Court of Texas and am counsel for Relator John Calce in this case. 2. The factual statements contained within this instrument are within my personal knowledge and are true and correct. 3. The copies of pleadings, motions, and other documents included in this Record for Petition for Writ of Mandamus are true and correct copies of these documents as filed in the trial court. Executed in Dallas County, Texas, on June 4, 2018. /s/ Chase J. Potter Chase J. Potter, Declarant 10000280.1/SP/38371/0105/060118 6.3 SEVERABILffY; USVRY SA ViNGS lf any provision in this Note, is held invalid .or unenfotceabl~ by ru.w court -0t competent jurisdiction, the other provisio.us of this Note Will rt.'tnl1iu in fulLforcc and effect Any provision of' tltis Note held uivalid -0r unenforceable only in part or degree will remain in full force ant;! effectto the extent not held. invalid or unenf~m,;eitblc. It is the intention of the MitKer and the Payee to confonti strictly with applicable usury Jiiws. Accordingly, if the transactions contemplated hereby Wt>uld be usti,rious under appllcufile law th~n. in that event, noiwith~tandit1g anything to the c011trnry in any agreement !;1Iit¢reci into in connec;tion ·with or as se0'tlrity for tbis Note, it is. agreed as follows: (a) the .aggregate of all consideration which conStilufes interest und(..'f applicable law that is taken, reserved, contracted for, charged (~r received under this Note or under '!UlY of the other aforesoid agreements or otherwise fu conneq~ion with this Note shall under no circumstances exceed the maximum amount pennisslble under such l11ws, and any excess $ha1l be credited on this N0te py the Payee (or if tlils Note shall have been paid in foll, refunded to the Mrikt..'f)~ (I>) if detennination of the 1'nte of inter~st for detennlning whether th~ loaris heit..-under are usurious shall be inaqe by lllnortizing, prorating, allocating and b>pretidlng, in equal pod:s during the full sta(ed teun n of law. Su~cct ~o the pri:ccding sentence; this Note will be bfoding in nil respects nnd inure to the benefit of Mateer und .Paye~ and their ~uccessors_ and .ussigns, whetbei' by volurttlicy actj~n of.the parties, by operation of law or oth'mvise nnd all penipns claiming. by Uu:ough or under them; G.5 ENTlRE AGREHMb"'NT ·nns NOTE C.ON].'Al.NS THE. FINAL, ENTIRE AGREEMENl~ BETWEEN THE PARTIES HBRBTO RELATING TO THE SUBJECT MAttER HEREOF AND ALL PRIOR AGREEMENTS \VHETHER WRlTTEN OR ORAL Rh"'LATED HERETO WHi:CH ARH NQT CONTAINED HERBIN. ARB SUPERSEDE)) AND TERMINATED HJ~REBY, AN!) THIS NOTE MA y NOT BE CONTRADICTED OR VARIED BY EVIOENCE ()j:; PRIOR, CONTEMPORANrtous, OR 'SUBSEQUENT ORAL AOBEEMEN'fS OR DISCUSSIONS OF l:HE PARTms HERETO. THilRE. ARE NO lJNWRITTEN ORAL AGREBMENTS AMONG nm PARTIES HERETO. IN WITNESS WHgRBOF, Maker, .intending to be legally bol.!lld hereby has executed and delivered this Promis$0ry Note as of the daie first st!lted above. .- ·· 4 MR.707             ([KLELW³7´ MR.708 Centurion Terminals breaks ground at port Staff Report I Posted: Saturday, September 12, 2015 9:38 pm The Port of Brownsville will have a new tenant following the recent groundbreaking for Centurion Terminals. Officials said the Centurion Brownsville Terminal is expected to generate more than 500 jobs while under construction and then create 35 permanent jobs once fully operational in the third quarter of fiscal year 2016. A groundbreaking was held Thursday in Brownsville . Centurion Terminals, LLC is a premier provider of crude Centurion Term inal transportation, storage and processing. With its strategically Ken Douglas, Centurion Executive Vice located crude terminals in the Permian Basin and along the President, Finance; Ralph Cowen, Port Gulf Coast at the Port of Brownsville , Centurion is able to Chairman; Peter Schmarr, Centurion offer a full crude logistics solution, a press release on the new Executive Vice President, Operations; John terminal stated. Calce, Centurion President; Port "Centurion Terminals is excited to be a part of the growth Commissioner John Wood attend the that is going on in the Port of Brownsville and appreciates ground breaking of the new Centurion the community's efforts to make the Port of Brownsville such processing and storage facility at Port of a business friendly environment," said John Calce, Brownsville Friday, Sept. 11, 2015. Centurion's president. "With our investment in the Centurion Brownsville Terminal we seek to not only create local employment opportunities but also to utilize Brownsville 's unique position to access worldwide markets for America 's crude." A more complete version of this story is available on www.myBrownsvilleHerald.com. MR.709 Centurion Terminals breaks ground on processing and storage facility at Port of Brownsville BROWNSVILLE, Texas - The Port of Brownsville welcomed its new tenant. Centurion Terminals (www.CenturionTerminals.com), at the company's groundbreaking Thursday, Sept. 10, 2015. The Centurion Brownsville Terminal is expected to generate more than 500 jobs while under construction and create 35 permanent jobs when fully operational in the 3rd quarter of 2016. Centurion Terminals, LLC is a premier provider of crude transportation, storage and processing. With its strategically located crude terminals in the Permian Basin and along the Gulf Coast at the Port of Brownsville, Centurion is able to offer a full crude logistics solution. The Centurion Brownsville Terminal, currently under construction, will have 1.5+ million barrels of storage capacity with room for expansion. Features include state-of-the-art facilities, automated material handling, liquid cargo dock, three track rail spur and 10 truck LACT skids. Additionally, an initial two processing towers will allow Centurion to process condensate at a rate of up to 50,000 barrels per day to produce products that could be used in the local market or exported. John Calce, Centurion's President, remarked, "Centurion Terminals is excited to be a part of the growth that is going on in the Port of Brownsville and appreciates the community's efforts to make the Port of Brownsville such a business friendly environment. With our investment in the Centurion Brownsville Terminal we seek to not only create local employment opportunities but also to utilize Brownsville's unique position to access worldwide markets for America's crude." The Port of Brownsville is the only deep-water seaport directly on the U.S./Mexico border and the largest land- owning public port authority in the nation with 40,000 acres of land. In 2014, the Port of Brownsville moved 7.6 million metric tons of steel, aluminum , lumber, minerals, gasoline, diesel and windmill components internationally. Port activity adds $926.7 million to the regional economy, and more than $2 billion to the state's economy. More than $134 million in state and local sales tax also is generated through Port business. The Port is also responsible for the creation of 11 ,230 direct and indirect jobs on the regional level, and 21 ,590 jobs statewide. MR.710             ([KLELW³8´ MR.711 ____ r- c....,-....._........, RECOROATION REQUESTED BY: _ "10 Pi eor..w 6 -...... 150 llllllo, lll 1Slllll! EXTENSION of: REAL ESTATE NOTE ANO LIEN 15-10258 FIU:D FOR RECORD REEVES COUNTY, TEXAS Oct 30, 2015 at 03:23:00 PM WHEN RECORDED MAIL TO: lie- T•u • ClplW . - . - - j\tln : l- ~ - ~-.-llllO TX 7ll082 SEND TAX NOTICES TO: c.nn.- - T- llC v 17"0 - Raed. _ 1_ 0 L '!.'lti;- ~!"'"-~""''~~-OOfYNolope~cotneoroorolU..O.("""lndo-...h 1 o.tg1oo1 _ , _ _ .., Doedol Tnm rnh _ . , ,,,aoo,ooo.qo . _ ...,._ 16. 20u . 2 0 1JEli. To ....,,. llW - Gnl!UK !Wdt _....,,, """"'l'Od., lru•t for.,. l>enefll ol lAndof, - A•.. "'-''• 01.r1•1ant lo• 0..0 or Tru51 dslod ~r 10, 20•4 dOllYored 10 l.at>ori .,..... ., .,...ting o....,....,., tne - P - tn r...,..o, l""""' i-i'"''"'"""" 9 10 os ltlo "U0!\1 "1d '""""*' W'l llJO ro.i"""""'1Y """'"1Sol -C.-cy. SIJlle ol T - u follow °' F1IOO.,IM"""'"'11""""'"' 1...09181 "1 '1oOl1ic4al"1Jt4rtflocorctool-Counry. T-00~30.2014 . REAi. l'llOl'l!l!TY DUCRIPllOfl. -I.Ml.....,.. 1111t ·~-_,~ - rn - Councy, s .... ot Tu•: Soee.hlbll"A".wnldllao~101hmElder'*'1~-,,...,• • ,,... ..... _ A Q_ _ aaaM!yoot l0<1hhtfelt1. Thi - Pmpo11y or ILC-il"""""""'y .,,.,,.,, u T , _ o l - - In Sectioil7'(1, - 4, H&GN - . S ~Gurley, - T!(' - ~ p ljin:NllONO!I ..-..,11<* ~. Gran!Orondl..er>Oor....-.OV- "'°'fletw"" mocllylllo Nole-ltlo lioo ufOlfo'f'o; G ~ .......- 1e, 2011, 9'o~ - • hwWJotondo.Uo ........... ,a, 2011 ... ~ .._ .,...., .... ~ YAUlllT't. ,._ • "1q)IH&ly modlod In "''" ~ NI-~ en. ,.,,.., of tne (ll\llrlaJ ' - - """ - 0 1#\Chlr>god.,., rn ru. - .....-.. 11ghl IO requ!J11 &l1d - uNil tne """""""'""'"'""'of'"" ,,__tu .,_, -. °"'-' by c..- 10 Chlo E>dofllion ~ irl thlo enor-. 1og,_.; "'OClgale ~ID-· ony """"' Lien ond ,._ - ""'""'°"' - ""'' , _ , , not-. 0 .-i-., -'llrflW.~~"""'""'1$1IWle1$lllillac:Go11af cno u..,.,.., Note .. -Q'Od~ og--•edllJllMI 8 Uen. It ii Ille 1n1"'1tlon of l - - lo _ , u - 811 fl'll!ieS 10 Iha Lion otwl Ill poortlo8. molcots and endol9ln lo Ille Nole. lnd1Jding 8llCCllMIOdallcn l*lln. ...- a~I• ~'-b1 ~In~. ~..-or-, l n c l l " " ' 1 g - n moJo BEi.NC A l'ART Ol' A CAW.ED 496.76 CRJD (496.87 SURFACE) ACR£ TRACT OF LAND AS DESCRIBED l'N A D[[l) RECORDED IN VOLUM.£ 905. PACt ISS. 01111CIAL P\JllUC RECORDS, R£EvtS COUNTY, TEXAS (O.P.11.R.C.T.), AND DtlNC MOR.£ PARTlqlLARLV !>ESCR0£D AS FOLLOWS: Dtr-1 ROD FOUND WITJI CAP STAMPED "SJS3 TRUJILLO" BEARS S SS"03'46" W, A DISTANCE Of 0.63 FEET, ALSO FROM WHICH A 112" IRON ROD FOUND AT THE NORTHEAST CORNE.It OF SAID SECTION 16, BLOCK •. DEARS N Sl-03'46• E, A 1 DISTANCEOf'26'l9.8S FEET; 2 Tlt£NCt:S J2•os'2J" E, wrntTHE EAST IJNEOFSAID 496.76 ACRE TRACT, A DISTANCE OF 0 l 117 68 FEET TO A Sil" IRON ROD SET WITH CAP STAMPED "TRANS TEXAS SURVEYING" 9 FOR THE SOUTHEAST CORNER OF SAID 496.16 ACRE TRACT BEING 100' NORTH Of THE CENTERLINE OF IHE TEXl\S ~ !'ACIFlC RAILROAD; TlliNCI. S 69"42'11" W, WITH THE SOUTH LINE OF SAID 496.76 ACRE TRACT AND 100' NORTll OF ANO PARALl.El. WITH THE CENTEllLlN!; OF SAID TEXAS &. PACIFIC RAii.ROAD, A DISTANCE OF 269HO FEET TO A POINT IN SAID COUNTY ROAD NO 408, THE WEST LINE OF SAID SECTION 76 AND THE EAST LINB OF SECTION 77, BLOCK 4, FROM WHICH A 600 NAIL FOUND BEARS S 69"42'22" W, A DISTANCE Of 0.37 FEeT, ALSO FROM p WHICH A 112" IRON ROO FOUND FOR THE SOUTHWEST CORJllER OF SAID SECTION 76, BLOCK 4, BEARS S J2'08' IJn£, A DISTANCE OF' 2657.42 FEET; G TH£NC£ N J2°08'll" W, WITH THE WEST LINE OF SAID 496.16 ACRE TRACT AND WITH THE COMMON UNE OF SAID SECTION 76 AND SAID SECTION 77, A DISTANCE OF 26'4329 FEET TO rHE PLACE OF BEGINNING AND CONTAINING 176.6!9 ACRES or LAND. TlllS 0 DESCRJPTlON IS 9ASED ON THE LAND TTTLE SURVEY ANO PLAT MADE BY ROBERT L VOUNO, REOIST£R£D PROFESSIONAL LANO SURVEYOR NO. 5'00 ON JUNE 20, 2014 . ALL 0 BEARINOS RECITED HElWN ARE CORRELATED TO THE TEXAS STATE PLANE COORDINATE SYSTEM, CE."ITRAI.. ZONE (4203). NADU (NA201l~ (\TH~ 9 ACCOMPANYING SURVEY MAI' ATTACHED HERETO ANO MAO[; A PART H E U .......... 1 Inst No. 15-10258 DIANNE 0 . F!.OREZ COUNTY CLERK 2015 Oel 30 at 03;23 PM By: BA~. ~TEXAS , DEPUTY MR.714 BALLENGEE00002069.03             ([KLELW³9´ MR.715 ieENTURION -MIDSTRE.AM-- May 27, 2016 Centurion Terminals J,LC 440 Loul.'4fan11 Street, Suitt! 72.l Houston, TX 77002 Cent\trion P~cos Termirial, lLC Attn: Joht1 Cake, PresiJent 15851 Dallas Parkway, Suite 650 AJdison, TX 75001 Dear Mr. Calce: P tease accept this letter a!I formal notice that (I) Centurion Tem1inals, LLC' oo longer wi~hes to J)ursue a land lease ot construct a crude oil terminal at tile Cent11don Peco$ Tennin.al. LLC property in Reeves Cou11ty. TcX!l:.I and (2) because of recent actions taken by individuals purporting to represent Centur.ion Pecos Tenn.foal, LLC with the Union Pacific Railroad, Ct!nnuion Peco., Tem1lnal, LLC is now in default lUlder section 2.1 (d) l)f th~ Promissory ~ote dated Nov~mber l 5, 20t5 between Centurion Tr:rminals, LLC and <.!enturion Pecos Terminal, LLC. i\~ :;uch, we hereby demand immediate payment of S2'37,975. IOt representing outstamiing principle and interest to Centurion Tem1ioals LLC from Centurion Pecos Terminal. LLC' per (he 1 Promissory )Tote dated November 15, 201.5 . .. Regards, ,/" ./;;f};l'~ Thomas Ramsey / Chief Executive Officcf CALCE00549 MR.716             ([KLELW³:´ MR.717 Centurion Pecos Terminal, LLC 17950 Preston Road, Suite 1080 Oallas, Texas 75252 May23,2016 VIA USPS PRIORITY MAIL AND EMAIL (leehullman@up.com; swmartcb@up.com; akbrowo@up.com; tlanderson@ up.com ;bsmoore@up.com) Un ion Pacific Railroad Company Union Pacific Railroad Company Atth: Lee J_ Hullman Attn: Aaron Brown I 5 150 Blanco Road, Suite 2323 12 12 Corporate Drive, Suite 300 San Antonio, Texas 78232 Irving, Texas 75038 Union Pacific Railroad Company Union Pacific Railroad Company Attn: Steven W. Martchenke Attn: Tammy L. Anderson 101 S. Walson Road I 400 Douglas Street, STOP 1350 Arlington, Texas 760 I 0 Omaha. Nebraska 68179 Union Pacific Railroad Company Union Pacific Railroad Company Attn: Brad Moore Attn: Senior Vice President and General Counsel 1400 Douglas Street, STOP 12 10 1400 Douglas Street, STOP 1580 Omaha, Nebraska 68 179 Omaha, Nebraska 68179 RE: Memorandum of Understanding dated .June 12, 2014 (the "MOU") and Letter Agreement dated February 1 t, 2016 sent by Union Pacific Railroad Company (''UP") to Centurion Logistics, LLC (the .. Letter Agreement") for rail service located in Pecos, Texas, File 2975·07 (the ~P roject") Dear Messrs. and Madam, I was recently made aware by a UP employee assisting on the Project that UP has been contacted by representatives of entities named Centurion Tenninals, LLC and "Centurion Midstream'' (collectively, the "Unaffi liated Entities'') about the develo pment of rai l service located on the same real property that is the site of the Project (the ·'Property"). J am writing to inform you that Centurion Pecos Te rminal , LLC, a manager-managed Texas limited liability company ("Owner"') owns all of the Property, as evidenced by the two General Warranty Deeds attached to this letter. Centurio n Logistics, LLC, a Texas limited liability company, is one of two managers of Owner, and has certain r[ghts ii:i connection with the management and development of the Project. The Unaffiliated Entities do not have and have never had, any right to use any portion of the Property. Further, the Unaffiliated Entities are not and have never been affiliated with Owner or Centurion Logistics, LLC, and neither Owner nor Centurion Logistics. LLC has granted the Unaffiliated Entities any authority whatsoever to act for or on behalf of Owner or Centurion Logistics, LLC for the Project. On June 25. 2014, Tony Albanese, manager of Centurion Logistics. LLC. executed the MOU. a copy of which is attached hereto, which document describes the terms upon which UP agreed to move forward with the track authorization process and provide service to facilities proposed for the Property by Centurion Logistics, LLC. The Letter Agreement, a copy of which is attached hereto, MR.718 confirms UP's acceptance of the proposal made for the Project by Centurion Logistics, LLC. and that, upon the company's payment of $15,000.00 to UP , UP would proceed to design the signal fac ilities necessary for the Project. Centurion Logistics, LLC will be submitting this payment together with an executed Letter Agreement to UP in the very near future. Please be furth er adv ised that the Unaffiliated Entities do not have and have never had any authority to act on behalf of Centurion Logistics, LLC for matters addressed in the MOU or the Letter Agreement and have not been assigned any rights otherwise under these agreements. Centurion Logistics, LLC is not clear what authority the Unaffiliated Entities are claiming in contacting UP and attempting to manage and develop the Project. I respectfully request to be notified of any future communication UP receives from 1he Unaffiliated Entities and to be informed of any delay or interruption caused to the Project by the Unaffiliated Entities to date. Centurion Logistics, LLC and Owner are in contact with che Unaffiliated Entities and are working to resolve these current issues. If you have any questions regarding this letter or matters concerning the Project, please contact me at your earliest convenience at 214-893-4267 or mmarrocco@viacenturion.com. Respectfully, Centurion Logistics, LLC, a Texas limited liability company By: IJf_,a,u llf~~ President and Manager Enclosures: General Warranty Deed for 300 acre Tract of Land filed of record in Reeves County, Texas August 25, 20 15 as fnstrument No. 15-07673 General Warranty Deed for 176 acre Tract of Land filed ofrecord in Reeves County, Texas September 24, 2014 as Instrument No. 14-08864 Union Pacific Memorandum of Understanding dated June 12. 20 14 Union Pacific Letter Agreement dated February 11 , 20 16 cc: Tony Albanese. Manager of Centurion Logistics. LLC via email correspondence to ta lbanese 'a: viac~n tu ri on .corn 2 MR.719 After recording return to: Centurion Logistics, LLC c/o Marc Marrocco J 875 Laws Street Dallas, Texas 75202 NOTICE OF CONFIDENTIALITY RIGHTS: lF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM TIDS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. GENERAL W ARRAND' DEED STATE OF TEXAS § § KNOW ALL MEN BY TIIESE PRESENTS: COUNTY OF REEVES § THAT MONTANE INDUSTRIES, LLC. a Texas limited liability company ("Grantor"), for and in consideration of the sum of TEN AND N0/100 DOLLARS ($10.00) and other good and valuable consideration to the undersigned paid by Grantee (as hereinafter defined), the receipt and sufficiency of which is hereby acknowledged, bas GRANTED, SOLD AND CONVEYED, and by these preseots does hereby GRANT, SELL AND CONVEY, with general warranty covenants, unto CENTURION PECOS TERMINAL LLC, a Texas limited liability company ("Grantee''), whose mailing address is 17950 Preston Roadi Suite 1080~ DaUa.s, Texas 75252, all of that certain lot. tract or parcel of land lying and being situated in Reeves County, Texas, and being more particularly described on Exhibit A attached hereto and incorporated herein (the "Property"), together with all buildings, structures, paving, curbing, trees, plants., shrubs, and other building improvements and landscaping of every kind and nature presently situated on, in, or under, or hereafter erected or installed on the Property, together with all of Grantor's right, title and interest in all rights, tenements, hereditaments, easements, licenses, rights-of-way, privileges, and rights of ingress and egress applicable to the Property, and appurtenances pertaining thereto and strips and gores. • MR.720 Th.is conveyance is made and accepted subject to all matters of recording against the Property. Ad vaJorem real property wes for the current year have been prorated through the date of this instrument, with Grantor and Grantee each paying its pro rata share. Grantee assumes and promises to pay taxes for 2014 and subsequent years. TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, together with all and singular the rights and appurtenances thereto in anywise belonging unto said Grantee, its successors and assigns, forever, and Grantor does hereby bind itself: its successors and assigns to warrant and forever defend all and singular the Property, subject to all matters of record against the Property, wito said Grantee, its successors and 1Wigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. [Signature page immediately follows.] • MR.721 (\ ......L.. ~ W)JNESS WHEREOF, the Grantor has executed the within instrument as of ~~l'J2014. " GRANTOR": ) MONTANE INDUSTRIES, LLC a Texas limited liability company By: TexSand Holdings, LLC a Texas limited liability company, its Manager ~~ Title: Manager STATE OF TEXAS ) ) SS COUNTY orb 1t..~ ) On this I~ day of ~,~oa,be...- . 2014 before me, the undersigned Notary Public in and for said State. personally appeared Farrell Arcenaux known or identified to me co be the Manager of TexSand Holdings, LLC, a Texas limited liability company, the Manager of MONTANE TNDUSTRJES, LLC, a Texas limited liability company, that executed the instrument and acknowledged lo me that he executed the. same for and on behalf of said limited liability company and limited partn hip. ic ission Expires on 7- le.- 2a I ? [NOTARY SEAL} MR.722 Exhibit A BEING a tract of land located in Section 76, Block 4, H&GN Survey, Reeves County, Texas, and being a part of a ca lied 496. 76 GRID (496.87 Surface) acre tract of land as described in a Deed recorded in Volume 905, Page 155, Official Public Records, Reeves County, Texas (O.P.ftR.C.T.), and betng more particularly described as follows: BEG1NNING at a 5/8 Inch iron rod set with cap stamped "TRANS TEXAS SURVEYING" for the Northwest comer of said Section 76, the Southwest corner of said Section 75, the Northeast comer of Section 77 and the Southeast corner of Section 78, said S/8 inch iron rod set also being In the lntersectkm of Count'{ Road No. 408 and County Road No, 404; THENCE North 58 degrees 03 minutes 46 seconds East. with the common line of said Section 76 and Sei:tlon 75, a dlstahce of 2639.85 feet to a point In tile East line of said 496.76 acre tract from which a 1/2 Inch iron rod found with cap stamped "5358 TRUJllLO" bears South 58 degrees 03 minutes 46 seconds West, a distance of 0.63 feet, also from which a 1/2 Inch Iron rod found at the Northeast corner of said Section 76, Block 4, bears North 58 degrees 03 minutes 45 seconds East, a distance of 2639.SS feet; THENCE South 32 degrees 08 minutes 23 seconds East, with the East line of said 496.76 acre tract, a distance of 3187.68 feet to a 5/8 inch iron rod set with cap stamped "TRANS TEXAS SURVEYING" for the .. Southeast corner of said 496.76 acre tract being 100 feet North of the centerline of the Texas & Pacific Railroad; TI-IENCE South 69 degrees 42 minutes 22 seconds West, with the South fine of said 496.76 acre tract and 100 feet North of and parallel with the centerline of said Texas & Pacific Railroad, a distance of 2697.40 feet to a point in said County Road No. 408, the West line of said Section 76 and the East line of Section 77. Block 4, from which a 600 nail found bears South 69 degrees 42 minutes 22 seconds West, a distance of 0.37 feet, also from which a 1/2 lnch iron rod found for the Southwest comer of said Section 76, Block 4, bea~ South 32 degrees 08 minutes 13 seconds East, a distance of 2657.42 feet; THENCE North 32 degrees 08 minutes 13 seconds West, with the West line of said 496. 76 acre trac:t and with the common line of said Section 76 and said Section 77, a distance of 2643.19 feet to the PLACE OF BEGINNING and CONTAINING 176.659 acres of land. hVi.( r.j o. 1.-1..ea11s,1 f.tl ~\\·Jr.I E .;") FLGREJ MR.723 15-07673 fllEO FOR RECORD RE.EVES COU"4TY, ! !:::~S Au g 26, 2615 at 01 :25:00 PM NOTICE O FCONFID E~T I A UTV RI GHTS : I F VOU ARE A ~A TURA L PERSON, YOU l\lAY R.E~10VE OR STRJ KE A.::"JY Of THEFOLLOWlNG f!'JFOR.MATIOf\ FROM T HI:) rNSTRU'.VfENT BEFORE IT JS FIL ED FO R RECORD fN nm PUBLIC RECORDS: YO UR SO C IAL SECURITY NlJ\1BER OR YO UR Df:U VER'S UCENSE Nli!\iB l!.R . v :.) GENERAL WARRANT\' DEED THE STA1 E OF TEXAS § § COl.J'NTY OF REEVES ~ For n v::iluiihle c0nsider11tirm, rhe 1eceip1 of which is hereby :idrnc•wledg~d, Z..\NE Q KlEHNE. TANYA KIEIINE , and Z&T CATTLE COMP:\.N'i'. LLC, ;i. Texus limitt;e.Of lhe Sub.Jed L~ods as may h~ !iirtlwr d~S(nbe.d i111111.-; Gencnl • Warranty Deed ·:fnd- .'.if~rn.1-·~;v~.vari~ (ii) ri!;lm 11r.Jc1 !!<1th Ya!itl a1:d subsisting uil, g:1s mi<:~cc. opel'l\tm. pu1ch~sc1 0r "dler nt prodt1Ltb:1, go,·crnmcmal agency. tn bunol or other port)' w11Jt respc:<:t rn ,iJJ, g:ls umL11 other miner:.-tls prot :i~·tion ·,.1.•ith r..:~11e...t 10 the s111ns rte~cnhc;l in 11cm {i11). MR.724 including without limi tation claims for the underpayment ofaoyalties; and1 (v) any other claims, demands, suits, causes ofaction, obligations, damages, proceeds, settlements and distributions of whatsoever kind or character, known or unknown, relating or attributable to the oil, gas and other minerals. This General Warranty Deed is made and accepted subject to that certain 0 Oil and Gas Lease and Surface Use, Damage Schedule and Right of Way Agreement (collectively hereinafter referred to as the "Lease") dated October 23, 2014 by and between Zane Kiehne and Tanya K.ielme, collectively as Lessor, and KEW Drilling, as Lessee, a memorandum of which Lease was recorded in Volume J 125, Page 564, of the Official Public ,.; Records of Reeves County~ Texas, as ainended by that certain Amendment ,,• '3 to the Lease dated January 26, 2015 (the "Lease Amendment"), a memorandum of which Lease Amendment was recorded on February 20, a 2015 in Volume 1146, Page 306, of the Official Public Records of Reeves County, Texas. Subject to the tenns and conditions set forth in the Lease and Lease Amendment, Grantors and Grantors? heirs, successors and assigns, for a term of five (5) consecutive years from the date of this General Warranty G Deed and hereby grant, sell and convey to Grantee all rights of ingress and egress that the Granto rs may possess or own, if any, to enter upon or use the surface of the Subject Lands for the purposes contemplated by Section Q A{l){i) of this General Warranty Deed or any other purpose incident 7 thereto. Nothing herein shall be construed to prevent Grantors or Grantors' 7 f heirs, successors or assigns from exploring for, developing and/or producing oil, gas and other minerals by pooling or by directional drilling under the Subject Lands from well sites located on property outside of the Subject Lands. Upon the expiration of five (5) years1 Grantors shall resume ownership of rights of ingress and egress to the Subject Lai\ds herein conveyed to Grantee, and all of such rights shalJ revert to Grantors. 2. Commercial Water Rights and Water Rights Appurtenant to the S11rface Estate: All of the commercial water and water rights appurtenant to the surface estate of the Subject Lands, including, without limitation, water running or lying in streams or rivers, water contained in near surface aquifers, and water in lakes, sloughs} ponds or playa lakes (collectively, "Commercial Water Rights"). 3. Water Line Easement: An easement on, over, under and across the Subject Lands for 1.he construction, installation, repair, maintenance, replacement and removal, including ingress and egress to one ( 1} underground water line, which shall be located on that portion of the Subject Lands depicted on Exhibit B attached hereto and made a part hereof, for the sole purpose of transporting water between the Granters' property adjacent to the Subject Lands and sb0\\'11 on Exhibit B. The specifications of the water line, including without limitation the location, size, width and depth, and points of access GENERAL WARRANTY DEED - Kiehne/Z&T Cattle Company, LLC and Centurion Pecos Terminal, LLC MR.725 including without limitation the location, size, width and depth, and points of access (collectively, the ''Water Line Specs"), shall be and remain in compliance with all applicable federal and state laws, ordinances, rules and standards of any governmental agency, including without limitation the Natural Resource Conservation Service practice standards (NRCS) or similar standards as may be required by the United States Department of Agriculture (USDA), and which Water Line Specs, and any future replacement of the ..if water line and future specs, must be approved by Grantee prior to the construction and i) installation thereof. which approval shall not be unreasonably withheld by Grantee. Grantee shall have the right to relocate the Water Line Easement, as may be necessary, prior to installation of the water line by Grantors, and Grantors shall have the duty to maintain, perfonn repairs to, keep clean and at aH times safeguard those portions of the Subject Lands surrounding the Water Line Easement. Grantors shall be obligated, at all times during the ownership and exercise of its Cotnmercial Water JUghts and use of the water line and the Water Line Easement on the Su~ject Lands, to use, maintain, repair and operate the water line in compliance with any and all applicable federal and state laws, statutes, ordinances, codes, regulations, rules and requirements applicable thereto, and the water being transported thereby~ including obtaining any and all pennits as may be necessary and required, and to comply with any rules deveJoped, adopted and promulgated by any ground water conservation district established in or applicable to Reeves County, Texas. 4. Electric Power Line Easement: Grantors hereby reserve an exclusive Power Line Easement over, on and across that certain portion of the Subject Lands, the current 0 general location of which is depicted on Exhibit C attached hereto and made a part hereof, for purposes ofaccess to and use ofthe overhead power line also shown on Exhibit C which r runs vertically along the west bow1dary of that certai11 tract of land identified on Exhibit C as Tract B. Grantee shall have the unrestricted right to relocate the Power Line Easement at any time and from time to time so long as Grantee provides reasonable notice to Grantors of the new location, relocation of the easement does not unreasonably interfere with Granters' ability to access and use the oveti1ead power line, and Grantee pays for all reasonable costs incurred by Grantors, if any, resulting from Grantee's relocation of the Power Line Easement. Grantors shall have the duty to maintain, perform repairs to, keep clean and at al l times safeguard those portions of the Subject Lands surrounding tl1e Power Line Easement. B. Grantee' s interest is sub,iect expressly to all zoning laws, ordinances, covenants, ccmditions, restrictions~ rights-of-way, easements and rights now existing under any oil and gas leases and all royalties, overriding royalties and other burdens presently of record covering and affecting the interests herein conveyed, including, without limitation, the easements, restrictions, • and rights-of-way described on the survey in Exhibit C, and Grantee's interest shall also be subject to the following rights and restrictions: I. Grantee Ri2hts. Grantors' Restrictions: Grantee and Grantee's heirs, assjgns, successors, partners, tenants and tenant employees, and other users, operators and commercial occupants on the Subject Lands (collectively, "Grantee Parties") shall have GENERAL WARRAl-lTY DEED - Kiehne/Z&T Cattle Company, LLC and Centurion Pecos Terminal, LLC 3 -:: 11.... ...:=J · MR.726 and business operations condudted on the Subject Lands free aJ1d clear of any claim of Grantors or their successors and assigns pursuant to Grantors' Commercial Water Rlghts. Grantors, in exercising their Commercial Water Rights, shall not prohibit, unreasonably restrict or adversely or materially affect, Grantee or Grantee Parties' ability to consume, use, access, drill wells for, and constiuct facilities to distribute water on the Subject Lands T. { ':: for the purposes authorized herein. 0 2. Grantee and Grantee Parties' Restrictions: Grantee and Grantee Parties sbalJ be prohibited from constructing any water depot(s} on the Subject Lands for the purpose of engaging in the private sale of water. Grantee and Grantee Parties shall be prohibited from engaging in the saJe of water from Grantee and/or Grantee Parties to any . ., persons or entities outside of the Subject Lands and from transporting water off the Subject Lands for the purpose of selling it. Grantee and Grantee Parties shall be prohibited from competing with Grantors and their successors and assigns in any manner for the private ,...;,. sale of water. Grantee and Grantee Panies shall have no commercial water rights in the Subject Lands. This conveyance is made and accepted subject to anmatters of record for the Su~ject Lands. Granters, for the consideration recited above and subject to the prior Hens and the reservations from and exceptions to conveyance and warranty, grant, sell, and convey the Su~ject p Lands to the Grantee~ together with all and singular the rights and appurtenances thereto in any wise belonging, to have and to hold to the Grantee, and its successors and assigns forever. Grantors bind Grantors and Grantors' successors and assigns to warraut and forever defend all and singular the Subject Lands to Grantee and Grantee' s successors and assigns against every person 0 whomsoever lawfulJy claiming or to claim the same or any part thereof. 7 -I 3 [Remainder o_(page intentionally left hlank. Signature page to follow. ] GENERAL W ARR.ANTY DEED · KiehneJZ&T Cartle Company, LLC and Cenrurion Peco~ Terminal, LLC MR.727 EXECUTED this i / I 7tY i tli- _.- - day of August., 2015, to be effective as of the -1.L_ day of August, 2015. GRANTO RS: a I p G 0 ! 7 GENERAL WARRANTY DEED - Kiehne/Z&T Cattle Company. lLC and Centution Pecos Terminal, LLC 5 •:1_/<- ci MR.728 • EXECUTED this ____day of August, 2015. to be effecrive a<: of lhc ___ day of Augusl. 201 S. (} GRANTORS: i '• • Zane Kiehne Tanya Kiehne p Z&T CATTLE COMPANY. LLC: a Texas limited liability company G By: ·- - - - - - -- - - 0 Zane Kiehne. Manager 7 i' < GRANTEE: 5 CENTURJON PECOS TERMTNAL LLC a Texas limited liability company By: Centurion Logistics, 1-LC, a Texas limited liab1liry com pany. its Ma'-n...-.;>C, _ Title: Manager GENERAL WARRA.Nl Y DEED· l<\eh11e'Z& T Can le Company. LLC and Cen1urion P~tos Terminal. l 1 C: 5 MR.729 STATE OF TEXAS § !(E£'JE5 § COUNTY OF MIDLAND § This foregoing instrument was acknowledged before me this / 1 day of August, 2015 by Zane Kiehne, individually, and on behalf of Z&T Cattle Company, as its Manager. V Notary Seal : § 12.~v E'S § COUNTY OF MIDLAND § This foregoing instrument was acknowledged before me this / 7 day of August, 2015 by Tanya Kiehne. Notary Seal: p KATHY KELTON Notary Public STAff Of TEXAS My Comm Exp May 8, 2017 ? T STATE OF TEXAS § § COUNTY OF DALLAS S ~ . ~ /) This f9\~going instrument was acknowledged before me this~ day of August, 2015 hy l"t~.DJ QtzX.r:(J on behalf of Centurion Pecos Terminal, LLC, a Texas limited liability company, as Tt;M.anager. Notary Seal: ~~- ANNE M.. -GROSS ll''ilrY1 ~~ Corn Nmary Public State of TeJ, ur::.. ~,,,.. !· ~ \ I, ~ \ SEL.EIN'ltTA:NEC' \ · 11 w ..cr '+-< I\ ·. \ 1; • \ .;JJC'UES . \' 0 -\\ ·- -- --·-·- . .. . . ...... ·-'- ·:----, - ... . - \ .\ \ \ \ .\ \' -~ 0 \\ -.1,l. :t;..-~• . .-; - ~.__;;;_r~_. -;_.-._- -·=--~!.:::~···-= ·w_~·:. . . ;:..:..·_-_.,;_~- - ---:-=...-:- -.- ---~#:-:-,,7' -..:: - .d L ·. . .. ·~ ' - - -:;:--; :: - - - - - - - - - -- - - - - . .:--:-:--:: "'7 ,~ ·.· -U. _ - ----- Q.. ~ /. .--· ~c ".\\ ' ' ~ "tvVABAll. Jl'~4)~.flC ..,.,.. W.ARHINGI FIUR OPTIC CABU: ON RAILROAD R.0-W ..."""' !•;;_i.c;,; ~ •.f:l1lh1il~ .y.. f+.. •.. . ..• ~H~~ 1- ".I (=! • .,~II fl~' • ,, c~=r u ~ • MR.735 EXHJBITC to General Warranty Deed (From Zane Kiehne, Tanya Kiehne and Z &T Cattle Cmnpany, LLC to Centurion Pecos Terminal, LLC) POWER LINE EASEMENT f '· [Attached hereto] i 9 p G • EXHIBIT C to GENERAL WARRANTY DE.ED Kiehne/Z.&T Caule: Co., L.LC and Centurion Pecos Terminal. LLC MR.736 EXHIBITC ~· I 0 7 8 3 MR.737 Centurion Logistics Pecos,TX 611212014 UNION PACIFIC RAIL ACCESS MEMORANDUM OF UNDERSTANDING Union Pacific Railroad Company ("UP") has reviewed Centurion Logistics ("Company") request for rail service in Pecos, TX as depicted on the conceptual plan dated 4/17/2014. UP Is pleased to notify you that we are looking forward to working with you on developing new rall service to Centurion Logistics Pecos. TX location. Based on the conceptual plan and representations made to UP, UP agrees to move forward with Its track aulhorlzatlon process subject to Company satisfying the condilions detailed below. This memorandum \MOU") Is being provided to Company to oulline the Infrastructure elements that UP requires to efficiently and safely provide rail service to Company's new facllfty (the "Facility") and to establlsh an understanding of UP's track authorization process. The criteria outlined below are consistent with Union Pacific's Guidelines for Rail Service and Union Pacific's Industry Track Standards, a link to which can be found at http://www.uprr.com/customers/attachments/induslry_guidelines.pdf. In addition to lhe requirements of Union Pacific's Guidelines for Rail Service and Union Pacific's Industry Track Standards, the foll(:>wing terms and conditions must be met prior to Company proceeding wllh Its new construction: • This MOU is based upon the commodities, traffic volumes, and metho(ls of opemlio11 Co111µa11y represented in its conceptual plan do1ec received by Company upon arrival (i.e., spot 011 anivAI). Railca(s will not l>c held or slored in mil yords or 01her Union Pncific owned or co1ilrollcd 1rnckugc. • Compnny shnll monngc the invc1ilory of inbound nod oulhound tailcors nl the Fncility sons nol lo ndvcrscly offect Union Pllcific operntions, ond shnlf coopcrnle with Unicm Pacific opcratio1111I rcq11ircmc11ts rog11rdi11g inventory management. • l\11y third party use of trncks in the Focility, including request for new rail service, is. subjcc< lo prior Union Pricific review and opprovnl. • Company will flerfonn all intrapfant switchi11g ot the Fncility. • Based on Company's concept uni plan dnle<.I April 17th, 2014, only unit train service is 11\)pr~wccl nt the Facil ily. • Company will c1\sure that all outbound rnilcnrs arc coupled wilh air hoses h1ceJau dated Ap1il 17th, 2014, will accommodate inbound llnd outbound operations coming from nnd going lo the cnsl of the facility. If Company desires trnin OJ)Crntions from origins west of the focility, Industry must bear all costs or installing n west focing connection with power switches nnd power derails. Once Company has satisfied Iha aforementioned terms and conditions, the next steps in UP's track authorization process are as folows: 1. Company must prepare the Facllity's Switch Location Plan (30% drawing) and svbmlt to UP via the Engineering Document Exchange (web applicatfon) to initiate UP's design of the signal system associated with Company's project. 2. Company will work with Its UP Marketing and Salas representative to prepare a Customer Service Plan, If applicable, and determine the rail service Company would receive and the corresponding rates. Addltlonally, the UP MarkeUng and Sales representative will coordinate with other UP departments to determine any other requirements necessary for UP to provide service to Customer. 3. Company must prepare the Facility's track design/construction drawings and submit them to UP via the Engineering Document Exchange (web appllcatlon) for approval. 4. Company must execute an Industrial Track Agreement with UP. UP shall only authorize construction of the industry trnck upon the execution of a lndustrlal Track Agreement. UP shall keep confidential all design/construction drawings, plans and other materials related to the new or expanded Facility that Company gives UP during lhe track construction process. Union Pacific's offer of conditional acceptance shall expire if Cotnpany does not execute and return this MOU to Shanker Chalekode at Union Pacific Company, 1212 Corporate Drive, Ste 300, Irving.TX 75038, wilhln 90 days from the date of this MOU. Once executed, this MOU shall terminate twelve (12) months after execution unless Company has requested an extension of Iha MOU. The extension must be requested in writing and approved by Union Pacific. Company understands that Union Paclflc wlll not authorlu construction of the planned Industry tracks until the entire track authorization process ls complete. Company understands that at no time prior to authorization of track construction Is UP agreeing to provide rall service at Faclllty. Further, Company understands that Union Pacific will not operate on Industry owned tracks until UP has approved the FacHity track design/construction drawings and Company has fully executed an Industrial Track Agreement with Union Pacific. Addltlonally 1 Company unders•ands thRt all of UP's approvals and authorizations are based on Company's representation of particular volumes and commodities that will be shipped to and/or from the Faclllty. Any changes In volumes or commodlUes may change UP's requirements to pro1Jlde service to the Facility. Consequently, If volumes or commodities change after rail service has begun, MR.739 Centurion Loglsl,ics Pecos, TX 6112/2014 UP may not be able to meet Company's expectation for Increased or addltlonal rall service without Company making modlflcatlons to the Infrastructure or constructing addltlonal Infrastructure. ACKNOWLEDGEMENT: I HAVE READ ANO UNDERSTAND UP' S REQUIREMENTS FOR NEW SERVICE AS SET FORTH ABOVE: Union Pacific Railroad Company By: ._£3,.c$~~ Printed ~~ID~tanfViri: P~sf'd~i' -- r1ua: Industrial Products Date: 7/7/.2-e>.:t_1 • MR.740 Centurion Logistics Pecos, TX 6/12/2014 UNION PACIFIC RAfL ACCESS Track Construction Profeot Contacts Prepared for: Centurion Logistics Track Construction Project Location: Pecos, TX 6/12/14 Marketing and Sales Representative Shanker Chafekode Business Director 1212 Corporate Dr, STE 300 Irving .TX 75038 402-871-9164 Fax: 402-997-4947 skchalok@up.com Manager of Industry & Public Projects Steven W. Martchenke 101 S Watson Rd, Arlington.TX 76010 617-353-7625 402-501-2616 swmartch@up.com Regional Manager Industrial Development Aaron Brown Regional Industrial Development Manager 1212 Corporate Dr. Ste 300. Irving, T X 75038 469 262 7059 402 233 3453 akbrown@up.com Tract< Agreement Contact Tammy Anderson Sr Mgr Industry Track Construction 1400 Douglas St Stop 1350, Omaha, NE 66179 402 544 2305 402 233 2187 tfanderson@up.com MR.741 UNION PACIFIC RAILROAD Mark.ting & Sal&a - Network and 1400 Douglas Street Omaha. Nebraska 68179 lnduairlal O.vetopment February 11, 2016 VIA EMAIL ONLY Centurion Logistics LLC Marc Marrocco, Principal 8150 North Central Expressway, Suite 1435 Dallas, TX 75206-1815 mmarrocco@viacenturion.com Re: Request tor New Rail Service Location on Union Pacific al Pecos, Texas - File 2975-07 Dear Mr. Marrocco: As you are aware, Union Pacific has accepted your proposal to establish a new rail service location for Centurion Logistics at Pecos, Texas. Your engineering consultant should now be preparing detailed construction drawings and an "Exhibit A· for our final review and approval. Any track operated by Union Pacific must be covered by an Industry Track Agreement (IT A). Included with this letter is a draft of Union Pacific's standard form ITA for your project. which includes terms tor construction, maintenance and operation of the new tracks and our contract insurance requirements (Exhibit B). Once Construction Drawings and an Exhibit A for your project have been approved and the design for Union Pacific's work is complete a final version of the ITA will be provided for signature. A lso at that time you will receive a Land Lease agreement to secure Union Pacific property for installation of a culvert (as identified on current concept prints). Your proposal involves signalized switch{es). and we expect the cost for Union Pacific's signal work to exceed $1,000,000. Before we can determine the final cost or our signal work , we need to design the signal facilities. A $15,000 deposit from Centurion Logistics w ill allow the design process to begin. You will receive credit for this deposit in the "Construction Cost; Payment'' section of the ITA. In the event Centurion Logistics decides not to proceed with track construction, or if the construction is delayed until 2017 or beyond, upon written notification to me concerning your decision to cancel or delay the project, we will refund your deposit less any expense incurred on your project up to the time of cancellation. Please sign and return a copy of this Letter Agreement to me via email or fax, This Agreement will be accepted by Union Pacific upon receipt of the indicated deposit. If you require formal billing, you may consider this letter as a formal bill. Payment can be made by wire transfer (preferred) or by check according to the following payment instructions: To pay by wire transfer, provide the following information to your financial institution to ensure proper electronic transfer of funds: Bank: Bank of America ABA Routing : 0260-0959-3 Account No .: 3752021457 AIC Name: Union Pacific Railroad Miscellaneous Receivables OBI : 85259--0040 for PIO 88198, Folder 2975..07 ""WW up.com • BUILDING AMERICA• MR.742 - 2- To pay by check, make your check payable to UNION PACIFIC RAILROAD COMPANY, include reference to PIO 88198, Folder 2975-07, and forward to the following address: Union Pacific Railroad Company 12567 Collection Center Drive Chicago, IL 60693 Union Pacific's final signal design process, depending on the prOJect's complexity, can take between 90 and 180 ~ays. In order to avoid delays, please respond to this request within 30 days. Do not hesitate to contact me if you have any questions concerning this request or the draft ITA. I loo~ forward to working with you. Sincerely, c~~~~u TAMMY t.:4.NDERSON Sr. Business Manager - Industrial Track Construction Network & Industrial Development Telephone (402) 544-2305 Fax (402) 233-2187 E-mail: tlanderson@up.com ACCEPTED ON BEHALF O~ CENTURION LOGISTICS LLC By_ _ _ _ _ _ _ _ __ _ __ _ _ _ _ _ __ Title_ _ _ _ _ _ _ _ _ _ _ __ __ _ _ __ Date Signed _ _ _ _ _ _ __ _ __ _ _ _ __ • MR.743             ([KLELW³;´ MR.744 8/8/2017 Centurion Termfnals ~ Crude Storage, Transportation & Processing - Centurion Terminals - Crude Storage, Transportation & Processing t~1Ct~ l 1 A I C~IYl ~lh~ttp~:_Hwww ~_._ce_n_tu_n_ ·o_nt_e_ rm_fn_a_ls_.c_o_m_:BO~/~~~~~~~~~~~~~~' ~ ' I "" ,- • .- ,i I 7 captures l Oci 201~ · 2 Oct 20 16 Contact · ~ • Operations • Mana~ement • Brownsville • Pecos • News Centurion Terminals is a premier provider of crude/condensate transportation, storage and processing. With its str11tegically located crude terminals in the Delaware Basin and along the Gulf Coast, and in conjunction with Its crude marketing partnerships, Centurion is able to offer a full crude logistics solution. The Company's terminal in Orla, TX is designed to serve as a header facility with initial operational storage capacity of 300,000 barrels with batching capabilities. The terminal will connect to Centurion's rail transload terminal in Pecos, Texas via a 24-inch condensate/crude pipeline. centurion's 500 acre Pecos Terminal is located approximately 5 miles west of Pecos, TX with road frontage on US Interstate 20 and track frontage on the Union Pacific Rail Road. At full operational capacity, the Pecos Terminal is designed to enable the daily movement of up to 2 outbound unit trains or approximately 160,000 barrels per day of crude/condensate by rail from the Delaware Basin to the Company's Gulf Coast storage and processing tenninal. The Brownsville TenninaJ, cUITently under construction, is designed to have 1.5+ million barrels of storage capacity (plus additionaJ expansion space). Features include state-of-the-art facilities. automated material handling, liquid cargo dock, three track rail spur and I 0 truck LACT sk.ids. fnitinlly, three processing towers wi ll allow Centurion to process condensate at a rate of up to 50,000 barrels per 17950 Presron Rd.. Picture day into products that can be used in the local market or exported. Sullc 1080 DaU.s, TX 75252 Web Hosting by FatCow https://web.archive.org/web/20151221181613/http://www.centurionterminals.com:80/ 1/1 MR.745 8/8/2017 Brownsville Terminal - Centurion Terminals - Cn.Jde Storage, Transportation & Processing lhttp://www.csnturionterminals.com:SO/brownsville.html ~~~~~~~~~~~~~~~~~~~~~~~~~~~ I~ 5 captures z Oct 20tS - 24 Feb 201t> I II Contact · ~ • Operations • Manai ement • Brownsville · ~ • News IPicture I Web Hosting by FatCow ht1nl':·//web .::irchive.oro/web/20151 204111848/htto://www.centurionterminals .com:80/brownsvilfe.html 1/1 MR.746 8/8/2017 Pecos Terminal - Centurion Terminals - Crude Storage, Transportation & Processing -- IN "UIU1U 41 Cl!IV I Contact 6 captures 3 Oct 2015 -26Fe!)1016 ·~ • Operations • Manai'.ement • Brownsvi lle • Pecos • News IPicture I Web Hostin~ by FatCow nttnc:·//wah ~rr-hiv.1 nrn/wAh/?01fi11?40f\'.U4!i/httn·//www.r.enturionterminafs.com;80/oecos.html 1/1 MR.747 8/8/2017 News - Centurion Terminals - Crude Storage, Transportation & Processing l~h~ tlp~:/_/www ~_·_ce_n_tu_r_io_n_te_rm_i_n_al_s._co_m ~:e_o1_n_ ews ~._htm~l~~~~~~~~~~-'I~ 6 captures 3 Oci 2015 - 26 Feb 2016 Contact · ~ • Operations • Mana2ement • BrownsviJle • Pecos • News News October 28, 2015 Centurion Names Chief Executive Ofliccr October 12, 2015 Centurion Secures Commitment from Anchor Shipper September 10, 2015 Brownsville Tenninal Groundbreaking Augost 24, 2015 Pecos Acreage Acquisition Web Hosting by FatCow 1 /1 MR.748 8/8/2017 Centurion Termfnals - Crude Storage, Transportation & Processing - Centurion Terminals - Crude Storage, Transportation & Processing INflRIHf OI ClllH ~lh_ttp~;_llwww ~~·c_e_ntu~rio_n_te_r~ m in_a_ls_.co ~m_.:a_o_ro~pe~ra_tio_._ns_._htm~l~~~~~~~~--'I~ - .. • !. JI . I I ' 7 captures 3 Oct 2015 -31 Mar 2016 Contact - ~ • Operations • Manaiement • Brownsville • Pecos · ~ Picture Web Hostin2 by FatCow ht1 os://web .archive .oro/web/20151103080128/htto;//www.centurionterminals.com :80/ooerations.html 1/1 MR.749 818/2017 Management - Centunon Tennmats - Crude Storage. Transportation & Processi ng jhttp:l/www.centuriontenninals.com:BO/managementhtml ~~~~~~~~~~~~~~~~~~~~~~~ I~ 5 captures 3 Oct 2015 - 21 Feb 2016 I Contact • li.mlll; • Operations • Manaaement • Brownsville • Pecos • News Executive Management Tom Ramsey Chief Executive Officer Mr. Ramsey was formerly Head of North American Crude Oil Marketing and Midstream at Vitol, Inc .. the world's largest independent oil trader with 2014 revenues of $270 billion. He has 24 years of energy and finance experience managing a wide range of businesses in crude oil, refined products, natural gas, NGLs and olefins and financial and physical commodity supply and trading. Previously, he served as Chief Operating Officer of Gavilon's energy segment where he led the development and growth of a startup midstream business that was later sold to NGL Energy Partners for almost $900 million. Mr. Ramsey has also led crude oil, natural gas liquids and olefins businesses at BP. He holds a B.S. in Finance from the University of lllinois and an M.B.A. from Northwestern University. He is also a Certified Public Accountant. John V. Calce P r esident Mr. Calce brings over a decade of experience in creating, funding and managing early and development stage companies. Mr. Calce has played a role in the successful founding, development and sale of more than seven different exploration and production and oilfield service companies in the Barnett Shale, Marcellus Shale and Bakken Shale plays. Mr. Cake has supervised or coordinated land transactions totaling more than 200,000 gross acres in the Williston, Appalachian and Permian Basins since 2010. Mr. Ca lee has assisted in the investment of more than $250 million of principal capital since 2005. He served as a Director of the Petro CapitalffHL Energy Fund I, LP as well as a member of the Fund's LP advisory board. Mr. Calce is also a founder ofTritaurian Capital, Inc., a FTNRA registered broker-dealer and neads the firm's oil and gas practice. He holds Series 6, 7, 24, 26, 63, 65, and 79 licenses, Mr. Calce is a graduate of Yale University. Peter Schmar Executive Vice President, Operations Mr. Scbmar beads project management, including permitting, engineering, construction and Port Authority negotiations at Centurion. Prior to Centurion, Mr. Schmar created and headed all oil trading for LMS in Nortb Dakota where he successfully raised over $100 million u1 trade credit and bought and sold cmde oil. He has served as director of crude oil supply for a terminal in Green River, Utah where he developed and managed producer relationships within a 250 mile radius. Mr. Schmar has also served as VP of Operations for a Gulf Coast crude terminal wbere he oversaw daily operations, company permitting, construction, USCG compliance and Homeland Security. Mr. Schmar began his career in Sales and Risk Management with Liberty Mutual where he served for over 25 years progressing into management over Oklahoma, Texas, Arkansas and Louisiana. Mr. Schmar graduated from Wichita State University witb a bachelors in business management and psychology. Ken D. Douglas Executive Vice P resident, Finnnce Mr. Douglas has over a decade of experience in investment banking and private equity, all within the energy sector. Mr. MR.750 8/8/2017 Management - Centurion Terminals - Crude Storage, Transportation & Processing INTl . .l l f U(MIVI l._h-'ttp_:l_IWWW __ .ce_n_t_un_ .co_m_:_SO_/m_a_n_ag=-e_m_e_nt_.h_tm_l_ _ _ _ _ _~I @£] ·o_nt_erm_in_a_ts_ I I< I - • ,. • I .... 1 : I 5 captures 3 Oct 20 15 - 21 F'et> 20\Q involved in over a dozen principal investments, comprised of oilfield services and E&P companies. Prior to Centurion, he was principally focused on structuring and arranging venture capital and mezzanine financing for early and development stage oil and gas companies in the Bakken, Barnett, Permian, Eagle Ford, Haynesville, Montney, Horn River, Marcellus and Utica Shales. This includes the start-up and interim financing of numerous E&P and oilfield service companies, whose services include coiled tubing, fishing and rental tools, fluid pumping, drilling, specialty bauling, oilfield accommodations, snubbing and weU servicing. He has served as a Director and Observor on numerous Board of Directors, earned Series 7, 24, 63 and 79 Licenses and graduated cum laude with a B.B.A. in Financial Consulting and B.A. in Economics from Southern Methodist University. Brian Jeans Executive Vice President, Midstream Development Mr. Jeans was most recently the North American Midstream Business Development Manager for BHP Billiton, a multi- billion dollar exploration & production company, where he was responsible for the creation and implementation of midstream asset strategies, business development opportunities, and A&D and market development. He was responsible for leading joint ventures, defining and executing midstream asset strategies, leading I supporting midstream A&D opportunities and identifying I capturing midstream business development opportunities in 3 key areas: the Eagle Ford, Permian & Fayetteville/Haynesville. Previously, he worked as midstream and pipeline business development specialist for Hess, British Petroleum, DCP Midstream and GDF Suez. He earned a bachelors in Business from Louisiana State University and a Masters of Science in Oil and Gas Enterprise Management from the University of Aberdeen. Web Hosting by FatCow ?I? MR.751 8/8/2017 Centurion Terminals · Crude Storage, Transportation & Processing - Centurion Terminals · Crude Storage, Transportation & Processin_g ., ' ~ "' !I ' .... ' 1 captures 3 Oct 20 T5 • 2 Oct 201€ Contact · ~ • Operations • Mana2ement • Brownsville · ~ • News Centurion Terminals is a premier provider of orude/condeosate trd.llsportation, storage and processing. With its strategically located crude terminals in the Delaware Basin and along the Gulf Coast, and in conjunction with its crude marketing partnerships, Centurion is able to offer a full crude logistics solution. The Company's terminal in Orla, TX is designed to serve as a header facility with initial operational storage capacity of 300,000 barrels with batching capabilities. The tenninal will connect to Centurion's rail transload terminal in Pecos, Texas via a 24-incb condensate/crude pipeline. Centurion's 500 acre Pecos Terminal is located approximately 5 miles west of Pecos, TX with road frontage on US Interstate 20 and track frontage on the Union Pacific Rail Road. At full operational capacity, the Pecos Terminal is designed to enable the daily movement of up to 2 outbound unit trains or approximately 160,000 barrels per day of crude/condensate by rail from the Delaware Basin to the Company's Gulf Coast storage and processing terminal. The Brownsville Terminal, currently under construc\ion, is designed to have 1.5+ million barrels of storage capacity (plus additional expansiorL ~pace) . features include state-of~the-an facilities, automated roaterinl handling, liquid cargo dock, three track rail spur and 10 truck LACT skids. Initially, three processing Lowen; 17950 Preston Rd. will alJow Centurion to process condensate at a rate of up to 50,000 barrels per Picture day Into products that can be used in the local market or exported. S ult~ 1080 Dllilat, TX 7SlS2 Web Hosting by FatCow https://web.archive.org/web/20160222124700/http://1t1WW.oenturionterminafs.oom:BO/ 1/1 MR.752 81812017 Management - Centunon Terminals - Crude Stora.ge,. Transportation & Processing ihttp://www.centurionterminals.com:80/management.html ~~~~~~~~~~~~~~~~~~~~~~ ]~ 5 captures 3 OC120 IS -2 1 FeO 20 16 I Contact ·~ • Operations • Mana2em11114949/htto:/WWW.centuriontermlnals.com:BOlmanagement.html 1/2 MR.753 B/8/2017 Management - Centurion Terminals - Crude Storage, Transportation & Processing lhttp://www.centuriontermfnals.com:80/management.html ~~~~~~~~~~~~~~~~~~~~~~~~ I~ .. f" • I: ~ M'I'I I 5 captures 3 OCt zo·1s . 21 Feo 2016 involved in over a dozen principal investments, comprised of oilfield services and E&P companies. Prior to Centwion, he was principally focused on structuring and arranging venture capital and mezzanine financing for early and development stage oil and gas companies in the Bakken, Barnett, Permian, Eagle Ford, Haynesville, Montney, Hom River, Marcellus and Utica Shales. This includes the start-up and interim financing of numerous E&P and oilfield service companies, whose services include coiled tubing, fishing and rental tools, fluid pumping, drilling, specialty hauling, oilfield accommodations, snubbing and well servicing. He has served as a Director and Observor on numerous Board of Directors, earned Series 7, 24, 63 and 79 licenses and graduated cum laude with a B.B.A. in Financial Consulting and B.A. in Economics from Southern Methodist University. Brian Jeans Executive Vice President, Midstream Development Mr. Jeans was most recently the North American Midstream Business Development Manager for BHP Billiton, a multi- billion dollar exploration & production company, where he was responsible for the creation and implementation of midstream asset strategies, business development opportunities, and A&D and market development. He was responsible for leading joint ventures; defining and executing midstream asset strategies, leading I supporting midstream A&D opportunities and identifying I capturing midstream business development opportunities in 3 key areas: the Eagle Ford, Permian & Fayetteville/Haynesville. Previously, he worked as midstream and pipeline business development specialist for Hess, British Petroleum, DCP Midstream and GDF Suez. He earned a bachelors in Business from Louisiana State University and a Masters of Science in Oil and Gas Enterprise Management from the University of Aberdeen. Web Hosting by FatCow httn1>·//w<>h ~mhivA om/web/201 fl0121114949/htto:/www.centurionterminals.com:80/manaqement.html 212 MR.754 8/8/2017 Centurion Terminals - Crude Storage, Transportatio n & Processing - Centurion Terminals- Crude S1orage, Transportation & Processing ~lh_ttp~:_ llwww ~_-_ce_n_ru_n_·o_nt_e_ rm_in_a_ls_.co~m-:B_O_l~~~~~~~~~~~~~~I~ 7 captures 3 Oct W1S -2 Oct2016 Contact ·~ • Operations • Manaiement • Brownsville · ~ • News Centurion Terminals is a premier provider of crude/condensate transportation, storage and processing. With its strategically located crude terminals in the Delaware Basin and along the Gulf Coast, and in conjunction with its crude marketing partnerships, Centurion is able to offer a full crude logistics solution. The Company's terminal in Otla, TX is designed to serve as a header facility with initial operational storage capacity of 300,000 barrels with batching capabilities. The terminal will connect to Centurion's rail transload terminal in Pecos, Texas via a 24-inch condensate/crude pipeline. centurion's 500 acre Pecos Terminal is located approximately 5 miles west of Pecos, TX with road frontage on US Interstate 20 and track frontage on the Union Pacific Rail Road. At full operational capacity, the Pecos Terminal is designed to enable the daily movement of up to 2 ou1bound unit trains or approximately 160,000 barrels per day of crude/condensate by rail from the Delaware Basin to the Company's Gulf Coast storage and processing terminal. The Brownsvi lle Tenninal, currently under construction, is designed to have I .5+ million barrels of storage capacity (plus additional expansion space). Featw-es include state-of-the-art facilities, automated material handling, liquid cargo dock, three track rail spur and 10 truck LACT skids. Initially, three processing towers will allow Centurion to process condensate at a rate of up to 50,000 barrels per 17950 Preston Rd. Picture day into products that can be used in the local market or exported. Suitt 1080 l)olJ#S, TX 75252 Web Hosting by FatCow https://web.archive.org/web/20160121114733/httpJ/www.centurionterminals.com:80/ 1/1 MR.755 8/8/2017 Management - Centurion Terminals - Crude Storage, Transportation & Processing ._lh_.ttp_:J_lwww __ .ce_nt _u_r_ io_ nt_ er_m_ln_al_s._co_m_:_eo_lm _a_n_ag.....e_m_e_nt_ .h_tm_l_ __ _ __ ~I [fil 5 captures 3 Oct 2015 · 21 Feu 2016 I Contact ·~ •Operatjons • Maoai:emeot • Brownsville • Pecos • News Executive Management Tom Ramsey Chief EJecutive Officer Mr. Ramsey was formerly Head of North American Crude Oil Marketing and Midstream at Vitol, Inc., the world's largest independent oil trader with 2014 revenues of $270 billion. He has 24 years of energy and finance experience managing a wide range of businesses in crude oil, refined products, natural gas, NGLs and olefins and financial and physical commodity supply and trading. Previously, he served as Chief Operating Officer of Gavilon 's energy segment where he led the development and growth of a startup midstream business that was later sold to NGL Energy Partners for almost $900 million. Mr. Ramsey has also led crude oil, natural gas liquids and olefins businesses at BP. He holds a B.S. in Finance from the University of Illinois and an M.B .A. from Northwestern University. He is also a Certified Public Accountant John V. Calce President Mr. Calce brings over a decade of experience in creating, funding and managing early and development stage companies. Mr. Calce bas played a role in the successful founding, development and sale of more than seven different exploration and production and oilfield service companies in the Barnett Shale, Marcellus Shale and Bakken Shale plays. Mr. Calce has supervised or coordinated land transactions totaling more than 200,000 gross acres in the Williston, Appalachian and Permian Basins since 201 O. Mr. Calce has assisted in the investment of more than $250 million of principal capital since 2005. He served as a Director of the Petro CapitaltrHL Energy Fund I , LP as well as a member of the Fund's LP advisory board. Mr. Cake is also a founder ofTritaurian Capital, Inc., a FINRA registered broker-dealer and heads the firm's oi l and gas practice. He holds Series 6, 7, 24, 26, 63, 65, and 79 licenses. Mr. Calce is a graduate of Yale University. Peter Scbmar Executive Vice President, Op~rations 1V1r. Schmar heads project management, including permitting, engineering, construction and Port Authority negotiations at Centurion. Prior to Centurion, Mr. Schmar created and headed all oil trading for LMS in North Dakota where he successfully raised over $100 million in trade credit and bought and sold crude oil. He has served as director of crude oil supply for a terminal in Green River, Utah where he developed and managed producer relationships within a 250 mile radius. Mr. Schmar has also served as VP of Operations for a Gulf Coast crude terminal where he oversaw daily operations, company permitting, construction, USCG compliance and Homeland Security. Mr. Schmar began his career in Sales and Risk Management with Liberty Mutual where he served for over 25 years progressing into management over Oklahoma, Texas, Arkansas and Louisiana. Mr. Schmar graduated from Wichita State University with a bachelors in business mam:igement and psychology. Ken D. Douglas Executive Vice President, Finance Mr. Douglas has over a decade of experience in investment banking and private equity, all within the energy sector. Mr. https://web .archiVe.org/web/20160221154248/http://Www.cenlurionterminals.com:80/management.html 112 MR.756 8/8/2017 Management - Centurion Terminals - Crude Storage, Transportation & Processing ._lhtt-'p_:l_Jwww _ _.ce _ n_tu_n_·o_nte _ rrn _ in_a_ls_.co_m_:_80_lm_a_n_ag=-e_m_e_n1_.h_1m_1_ _ __ _ _ _,I ~ 5 captures l 0c1201!> -71 F"eb201 6 involved in over a dozen principal investments, comprised of oilfield services and E&P companies. Prior to Centurion1 be was principally focused on structuring and arranging venture capital and mezzarune financing for early and development stage oil and gas companies in the Bakken, Barnett, Permian, Eagle Ford, Haynesville, Montney, Hom River, Marcellus and Utica Shales. This includes the start-up and interim financing of numerous E&P and oilfield service companies, whose services include coiled tubing, fishing and rental tools, fluid pumping, drilling, spedalty hauling, oilfield accommodations, snubbing and well servicing. He has served as a Director and Observor on numerous Board of DirectOTs, earned Series 7, 24, 63 and 79 licenses and graduated cum laude with a B.B.A. in Financial Consulting and B.A. in Economics from Southern Methodist University. Brian Jeans Executive Vice President, Midstream Development Mr. Jeans was most recently the North American Midstream Business Development Manager for BHP Billiton, a multi- billion dollar exploration & production company, where he was responsible for the creation and implementation of midstream asset strategies, business development opportunities, and A&D and market development. He was responsible for leading joint ventures, defining and executing midstream asset strategies, leading I supporting midstream A&D opportunities and identifying I capturing midstream business development opportunities in 3 key areas: the Eagle Ford, Permian & Fayetteville/Haynesville. Previously, he worked as midstream and pipeline business development specialist for Hess, British Petroleum, DCP Midstream and GDF Suez. He earned a bachelors in Business from Louisiana State University and a Masters of Science in Oil and Gas Enterprise Management from the University of Aberdeen. Web Hosting by FatCow https://web.archive.org/web/20160221154248/http://www.centurionterminals.com:80/management.html 212 MR.757 8/8/2017 Centurion Terminals - Crude Storage, Transportation & Processing - Centurion Terminals - Crude Storage, Transportation & Processing ~'h~t~~:l_lwww~_·_ce_n_tu_n_ ·o_nt_e_rm_m_a_ls_.co~m-:80~/~~~~~~~~~~~~~~l~ ~I .. f" • ,,.!. N ' I I 7 captures 3 Oct 2015 . 2 Oct :1Ql6 Contact · ~ • Operations • Manaiement • Brownsville • Pecos • News Centurion Terminals is a premier provider of crude/condensate transportation, storage and processing. With its strategically located crude tennina.ls in the Delaware Basin and along the Gulf Coast, and in conjunction with its crude marketing partnerships, Centurion is able to offer a full crude logistics solution. The Company's terminal in Orta, TX is designed to serve as a header facility with initial operational storage capacity of300,000 barrels with batching capabilities. The terminal will connect to Centurion's rail transload terminal in Pecos, Texas via a 24-inch condensate/crude pipeline. centurion's 500 acre Pecos Terminal is located approximately 5 miles west of Pecos, TX with road frontage on US Interstate 20 and track frontage on the Union Paci.fie Rail Road. At full operational capacity, the Pecos Terminal is designed to enable the daily movement of up to 2 outbound unit trains or approximately 160,000 barrels per day of crude/condensate by rail from the Delaware Basin to the Company's Gulf Coast storage and processing terminal. The Brownsville Terminal, currently under construction, is designed to have 1.5+ million barrels of storage capacity (plus additional expansion space). features include state-of-the-art facilities, automated material handling, liquid cargo dock, three track rail spur and 10 truck LACT skids. Initial1y, three processing towers will allow Centurion to process condensate at a rate of up to 50,000 barrels per 17950 P·re..too Rd. Picture day into products that can be used in the local market or exported. Sultel080 Dallos, TX 75252 Web Hosting by FatCow https://web:archive.org/web/20160222124700/http://www.centuriontermfnals ..com:80/ 1/1 MR.758 8/8/2017 Management - Centurion Terminals - Crude Storage. Transportation & Processing l._htt"""p_:l_lwww __ .ce _n_lu_r_io_nt_er_m_in_al_s._co_m_:S_O_lrn_a_n-'agem'--_e_ nt_.h_tm_l_ _ _ _ _ _ ___,I [fil .. ,. ·• ;i11·.'I''! I 5 captures J O<:t 201 5 -21 F•b 20 15 J I 1 I Contact · ~ • Qperations • Mana~ment • Brownsville -~ • News Executive Management Tom Ramsey Chief Executive Officer Mr. Ramsey was formerly Head of North American Crude Oil Marketing and Midstream at Vitol, Inc., the world's largest independent oil trader with 2014 revenues of $270 billion. He has 24 years of energy and finance experience managing a wide range of businesses in crude oil, refined products, natural gas, NG Ls and olefi.ns and financial and physical commodity supply and trading_ Previously, he served as Chief Operating Officer of Gavilon's energy segment where he led the development and growth of a startup midstream business that was later sold to NGL Energy Partners for almost $900 million. Mr. Ramsey has also led crude oil, natural gas liquids and olefins businesses at BP. He holds a B.S. in Finance from the University of Illinois and an M.B.A. from Northwestern University. He is also a Certified Public Accountant. John V. Cake P r esident Mr. Calce brings over a decade of experience in creating, funding and managing early and development stage companies. Mr. Calce has played a role in the successful founding, development and sale of more than seven different exploration and production and oilfield service companies in the Barnett Shale, Marcellus Shale and Bakken Shale plays. Mr. Cake has supervised or coordinated land transactions totaling more than 200,000 gross acres in the Williston, Appalachian and Permian Basins since 2010. Mr. Ca lee has assisted in the investment of more than $250 million of principal capital since 2005. He served as a Director of the Petro Capital!rHL Energy Fund I, LP as well as a member of the Fund's LP advisory board. Mr. Calce is also a founder ofTritaurian Capital, Inc.~ a FINRA registered broker-dealer and heads the firm's oil and gas practice. He holds Series 6, 7, 24, 26, 63, 65 , and 79 licenses. Mr. Calce is a graduate of Yale University. Peter Schmar Executive Vice President, Operations Mr. Scbmar heads project management, including pem1itting, engineering, construction and Port Authority negotiations at Centurion. Prior to Centurion , Mr. Schmar created and headed all oil trading for LMS in North Dakota where he successfully raised over $100 million in trade credit and bought and sold crude oil. He has served as director of crude oil supply for a terminal in Green Rjver, Utah where he developed and managed producer relationships within a 250 mile radius. Mr. Schmar has also served as VP of Operations for a Gulf Coast crude terminal where he oversaw daily operations, company permitting, construction, USCG compliance and Homeland Security. Mr. Schmru: began his career in Sales and Risk Management with Liberty Mutual where he served for over 25 years progressing into management over Oklahoma, Texas, Arkansas and Louisiana. Mr. Schmar graduated from Wichita State University with a bachelors in business management and psychology. Ken D. Douglas Executive Vice President, Finance Mr. Douglas has over a decade of experience in investment banking and private equity, all within the energy sector. Mr. https://web.arcflive.org/webl20151221181618/http://www.centurionterminals.com:80/managemenlhtml 112 MR.759 8/8/2017 Management - Centurion Terminals - Crude Storage, Transportation & Processing -- l ' I H l l l t r AICMIVl ._lh-'ttp_:J_twww _ _.ce_n_tu_n_ ·o_nt_erm_1n_a_ls,_co_m_:_ 80l_ma _ n_ag=-e_m_e_nt_.h_tm_1_ _ __ _ _ __.I [fil 5 captures 3 Ocr 20 15 -21 Feb 2016 involved in over a dozen principal investments, comprised of oilfield services and E&P companies. Prior to Centurion, be was principally focused on structuring and arranging venture capital and mezzanine financing for early and development stage oil and gas companies in the Bakken, Barnett, Pennian, Eagle Ford, Haynesville, Montney, Hom River, Marcellus and Utica Shales. This includes the start-up and interim financing of numerous E&P and oilfield service companies, whose services include coiled tubing, fishing and rental tools, fluid pumping, drilling, specialty hauling, oilfield accommodations, snubbing and well servicing. He has served as a Director and Observor on numerous Board of Directors, earned Series 7, 24, 63 and 79 licenses and graduated cum laude with a B .B.A. in Financial Consulting and B.A_ in Economics from Southern Methodist University. Brian Jeans Executive Vice President, Midstream Development Mt. Jeans was most recently the North American Midstream Business Development Manager for BHP Billiton, a multi- billion dollar exploration & production company, where he was responsible for the creation and implementation of midstream asset strategies, business development opportunities, and A&D and market development. He was responsible for leading joint ventures, defining and executing midstream asset strategies, leading I supporting midstream A&D opportunities and identifying I capturing midstream business development opportunities in 3 key areas: the Eagle Ford, Pennian & Fayetteville/Haynesville. Previously, he worked as midstream and pipeline business development specialist for Hess, British Petroleum, DCP Midstream and GDF Suez. He earned a bachelors in Business from Louisiana State University and a Masters of Science in Oil and Gas Enterprise Management from the University of Aberdeen . Web Hosting by FatCow https://web.archive.org/web/20151221181618/http://www.centurionterminals.com:80/management.html 2/2 MR.760             ([KLELW³<´ MR.761 I ~ 'Return to: ? 5 & 16-04401 Republic Title of Texatt Inc. -..,,.,~"~ii FllEO FOR RECORD REEVES COUNTY TEXAS 2626 Howell Street, 10th Roor ''. Apr 11, 201~ at 04:~.tJ:OO PM Dallas TX 75204 ~c:\5- ~ Deed of Trust to Secure Assumption Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the followi~g information from any instrument that transfers an interest in real v property before it is filed for record in the public records: your Social Security number or 0 your driver's license number. L Basic Information Date: /J.p,...I \ b ,2016 1 Grantor: CEN'{iJRION PECOS TERMINAL LLC, a Texas limited liability company 2 5 ! Grantor's Mailing Address: 17950 Preston Road, Suite 1080, Dallas, Texas 75252 9 I Trustee: David W. Tomek Trustee's Mailing Address: 325 N. St. Paul Street, Suite 3300, Dallas, Texas 75201 Beneficiary: BALLENGEE INTERESTS, LLC, a Louisiana limited liability company p G Beneficiary's Mailing Address: Two Turtle Creek, 3838 Oak Lawn Avenue, Suite 1150, Dallas, Texas 75219 0 Note Assumed ':> J Date: September 16, 2014 6 4 Oi;iginal principal amount: $1,500,000.00 Borrower: Ballengee Interests, LLC Lender: Texas Capital Bank, National Association Secured by: Deed of Trust recorded as Instrument No. 14-09181 in the Real Property Records of Reeves County, Texas, as extended by Extension of Real Estate Note and Lien recorded as Instrument No. 15-10258 in the Real Property Records of Reeves County, Texas (as extended, the TCB Deed of Trust) Guarantor: James H. Ballengee Property (including any improvements): See Exhibit A attached hereto. Prior Lien: Other than the TCB Deed of Trust, none. Other Exceptions to Conveyance and Warranty: All matters of record affecting the Property. Consideration: For $10 and other good and valuable consideration, Grantor has assumed EXHIBIT I lo MR.762 payment of the Note Assumed pursuant to an assumption agreement of even date herewith. A. Granting Clause For value received and to secure Grantor's assumption of the Note Assumed, Grantor v conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the 0 Property, subject to the Other Exceptions to Conveyance and Warranty. If Grantor performs all L the covenants of the Note Assumed and if Beneficiary has not filed ofrecord a notice of advancement (see paragraph C.3. below), a release of the TCB Deed of Trust will release this deed of.trust to secure assumption. 1 B. Grantor's Obligations 2 5 Grantor agrees to- 9 B.l. perform all the covenants of the Note Assumed; and B.2. notify Beneficiary and Lender of any change of address. C. Beneficiary's Rights p G C. l. Beneficiary may appoint in writing a substitute trustee, succeeding to all rights and responsibilities of Trustee. C. 2. If Grantor fails to perform any of Grantor's obligations under the Note Assumed, 0 i Beneficiary or Guarantor may perform those obligations, advance funds required, and then be 3 ! I reimbursed by Granter on demand for any amounts so advanced, including attorney's fees, plus 6 I interest on those amounts from the dates of payment at the highest legal rate. The amount to be 5 ·1 reimbursed will be secured by this deed of trust to secure assumption. i C.3. Beneficiary may file a sworn notice of such advancement in the office of the county clerk in the county in which the Property is located. The notice wm detail the dates, amounts, and purposes of the amounts advanced to perform Grantor's obligations under the Note Assumed and will include the legal description of the Property. C. 4. If Grantor fails on demand to reimburse Beneficiary or Guarantor for the amounts advanced and such failure continues after Beneficiary gives Grantor notice of the failure and the time within which it must be cured, to the extent required by law or by written agreement, Beneficiary may- a. exercise Beneficiary's rights with respect to rent under the Texas Property Code as then in effect; b. direct Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's agent will cause notice of the foreclosure sale to be given as provided by the Texas Property Code as then in effect; and c. purchase the Property at any foreclosure sale by offering the highest bid 2 MR.763 I l and then have the bid credited to 1he amount owed to Beneficiary. D. Trustee's Rights and Duties If directed by Beneficiary to foreclose this lien, Trustee will- v 0 D.1. either personally or by agent give notice of the foreclosure sale as required by this L deed of trust to secure assumption and the Texas Property Code as then in effect; D.2. sell and convey all or part of the Property "AS IS" to the highest bidder for cash with a general warranty binding Granter, subject to the Prior Lien and to the Other Exceptions to 1 Conveyance and Warranty and without representation or warranty, express or implied, by 2 Trustee; 5 9 D.3. from the proceeds of the sale, pay, in this order- a. expenses of foreclosure, including a reasonable commission to Trustee; b. to Beneficiary, the full amount advanced, attorney's fees, and other charges due and unpaid; p c. G any amounts required by law to be paid before payment to Grantor; and d. to Granter, any balance; and 0 D.4. be indemnified, held harmless, and defended by Beneficiary against all costs, 3 expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the 6 trust created by this deed of trust to secure assumption, which includes all court and other costs, 6 including attorney's fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. E. General Provisions E.1. If any of the Property is sold under this deed of trust to secure assumption, Grantor must immediately surrender possession to the purchaser. If Granter does not, Grantor will be a tenant at sufferance of the purchaser, subject to an action for forcible detainer. E.2. Recitals in any trustee's deed conveying the Property will be presumed to be true. E.3. Proceeding under this deed of trust to secure assumption, filing~uit for foreclosure, or pursuing any other remedy will not constitute an election of remedies. E.4. This lien will be superior to liens later created even if Beneficiary has made no advancements when later liens are created. E.5. If any portion·ofthe advancements cannot be lawfully secured by this deed of trust to secure assumption, payments will be applied first to discharge that portion. 3 MR.764 I 1 I ' I I ' E.6. A sale of the Property under this deed of trust to secure assumption- a. is subject to Grantor's continuing obligation to make all payments owing on the Note Assumed; and v b. does not extinguish Trustee's right to conduct subsequent sales of the 0 Property for future Grantor defaults under this deed of trust to secure L assumption. E. 7. Grantor collaterally assigns to Beneficiary all present and future rent from the Property and its proceeds. Grantor warrants the validity and enforceability ofthe assignment. 1 Grantor will apply all rent to payment of the Note Assumed, but if the rent exceeds the amount 2 due with-respect to the Note Assumed, Grantor may retain the excess. If a default exists in 5 payment of the Note Assumed or performance of this deed of trust to secure assumption, 9 Beneficiary may exercise Beneficiary's rights with respect to rent under the Texas Property Code as then in effect. Beneficiary neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the Property. Beneficiary may exercise Beneficiary's rights and remedies under this paragraph without taking possession of the Property. Beneficiary will apply all rent collected under this paragraph as required by the Texas Property Code as then in effect. Beneficiary is not required to act under this paragraph, and acting under this paragraph does not p waive any of Beneficiary's other rights or remedies. G E.8. Interest on the debt secured by this deed of trust to secure assumption will not exceed the maximum amount of nonl,lsurious interest that may be contracted for, taken, reserved, 0 charged, or received under law. Any interest in excess of that maximum amount will be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or 3 permitted prepayment, any such excess will be canceled automatically as of the acceleration or 6 prepayment or, if already paid, credited on the principal of the debt or if the principal of the debt 7 1 has been paid, refunded. This provision overrides any conflicting provisions in this and all other instruments concerning the debt. E;9. Any action taken under this deed of trust to secure assumption will not extinguish the rights of Beneficiaiy or Guarantor to proceed against Grantor under the indemnity contained in the assumption agreement by which Borrower assumed the Note Assumed. E.10. The term Beneficiary includes any mortgage servicer for Beneficiary. E.11. When the context requires, singular nouns and pronouns include the plural. E.12. This deed of trust to secure assumption binds, benefits, and may be enforced by the succe.ssors in interest of all parties. E.13. Grantor waives and surrenders to Lender (a) Grantor's power to authorize anyone (other than Lender or Grantor) to pay ad valorem taxes on the Property and (b) Grantor's power to authorize a taxing entity to transfer its tax lien on the Property to anyone other than Lender. Grantor agrees and declares that any authorization from Grantor to another (other than Lender) to pay the taxes and transfer a tax lien on the Property is void. 4 MR.765 GRANTOR: CENTURION PECOS TERMINAL LLC, a Texas limited li bilit v 0 L Title: J'r~ 1~\:- 1 ACKNOWLEDGEMENT 2 5 THE STATE OF TEXAS § 9 COUNTY OF DALLAS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Hl>Gf'.. UAro<..a, of Centurion Pecos Terminal LLC, a Texas limited liability company, known to me to be the person whose p name is subscribed to the foregoing instrument, and acknowledged to me that s/he executed the G same for the purposes and consideration expressed therein and on behalf of such company. 2016. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ~day of Ar~ ( 0 ~~~~~~~ 3 ·t~~"f.t'11,, MARY KILPATRICK /i.~'fi.t Notary Public. State of Texos 6 ! ..~,~).. j MY Commission Expires 8 ~;#'ol'{~~ July 14, 2019 ~uun''" My Commission Expires: 1/14-/ 1tii . 5 MR.766 I i I , I Ij Exhibit A BEING a tract ofland located in Section 76, Block 4, H&GN Survey, Reeves County, Texas, and being a part of a.called 496.76 GRID (496.87 Surface) acre tract of land as described in a Deed recorded in·Volume 905, Page 155, Official Public Records, Reeves County, Te~as v (0.P.R.R.C. T.), and being more particularly described as follows: 0 L BEGINNING at a 5/8 inch iron rod set with cap stamped "TRANS TEXAS SURVEYING" for the Northwest comer of said Section 76, the Southwest comer of said Section 75, the Northeast comer of Section 77 and the Southeast comer of Section 78, said 5/8 inch iron rod set also being 1 in the intersection of County Road No. 408 and County Road No. 404; 2 5 TIIENCE North 58 degrees 03 minutes 46 seconds East, with the common line of said Section 9 76 and Section 75, a distance of2639.85 feet to a point in the East line of said 496.76 acre tract from which a 1/2 inch iron rod found with cap stamped "5358 TRUJILLO" bears South 58 degrees 03 minutes 46 seconds West, a distance of 0.63 feet, also from which a 1/2 inch iron rod found.at the Northeast comer of said Section 76, Block 4, bears North 58 degrees 03 minutes 46 seconds East, a distance of2639.85 feet; p THENCE Bouth 32 degrees 08 minutes 23 seconds East, with the East line of said 496. 76 acre G tract, a distance of 3187.68 feet to a 5/8 inch iron rod set with cap stamped HTRANS TEXAS SURVEYING" for the Southeast comer of said 496. 76 acre tract being 100 feet North of the 0 centerline of the Texas & Pacific Railroad; 3. THENCE South 69 degrees 42 minutes 22 seconds West, with the South line of said 496.76 acre 6 tract and'l00 feet North of and parallel with the centerline of said Texas & Pacific Railroad, a 9 distance of 2697.40 feet to a point in said County Road No. 408, the West line of said Section 76 and the East line of Section 77, Block 4, from which a 60D nail found bears South 69 degrees 42 minutes 22 seconds West, a distance of 0.37 feet, also from which a 1/2 inch iron rod found for the Southwest comer of said Section 76, Block 4, bears South 32 degrees 08 minutes 13 seconds East, a distance of2657.42 feet; THENCE North 32 degrees OS minutes 13 seconds West, with the West line of said 496.76 acre . tract and with the common line of said Section 76 and said. Section 77, a distance of 2643.29 feet to the PLACE OF BEGINNING and CONTAINING 176.659 acres of land. 6 MR.767             ([KLELW³=´ MR.768 "'iC QdAn.--i, Return fo: ·73&- I U-i_ •PH.I~ Republic Title of Texas, Inc. FR.ED FOR RECORD 2626 Howell Street, 10th Floor , REEVES C.O\jr.ffY, TE;t.AS Dallas TX 75204 1"\pr H, 2016 at 0-4.:;~U:Oti PM ~53·1ID Deed of Trust to Secure Assumption Notice of confidentiality rights: If you are a natural persont you may remove or strike any · or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or v your driver's license number. 0 L Basic Information Date: /dqr; I ~ , 2016 1 Grantor: CENTURION PECOS IBRMINAL LLC, a Texas limited liability company 1. 5 Grantor's Mailing Address: 17950 Preston Road, Suite 1080, Dallas, Texas 75252 9 Trustee: David W. Tomek Trustee's Mailing Address: 325 N. St. Paul Street, Suite 3300, Dallas, Texas 75201 Beneficiary: BALLENGEE INTERESTS, LLC, a Louisiana limited liability company p G Beneficiary's Mailing Address: Two Turtle Creek, 3838 Oak Lawn Avenue, Suite 1150, Dallas, Texas 75219 Note Assumed 0 3 Date: August 17, 2015 7 ..., 0 Original principal amount: $1,500,000.00 Borrower: Ballengee Interests, LLC Lender: T,exas Capital Bank, National Association Secured by: Deed of Trust recorded as Instrument No. 15-07672 in the Real Property Records of Reeves County, Texas (the TCB Deed of Trust) Guarantor: James H. Ballengee Property (including any improvements): See Exhibit A attached hereto. Prior Lien: Other than the TCB Deed of Trust, none. Other Exceptions to Conveyance and Warranty: All matters of record affecting the Property. Consideration: For $10 and other good and valuable consideration, Grantor has assumed payment of the Note Assumed pursuant to an assumption agreement of even date herewith. EXHIBIT I I MR.769 A. Granting Clause For value received and to secure Grantor's assumption of the Note Assumed, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property, subject to the Other Exceptions to Conveyance and Warranty. If Grantor performs all v the covenants of the Note Assumed and if Beneficiary has not filed of record a notice of 0 advancement (see paragraph C.3. below), a release of the TCB Deed of Trust will release this L deed of trust to secure assumption. B. Grantor's Obligations 1 Grantor agrees to-- 1 5 B.1. perform all the covenants of the Note Assumed; and 9 B.2. notify Beneficiary and Lender of any change of address. C. Beneficiary's Rights C. I. Beneficiary may appoint in writing a substitute trustee, succeeding to all rights p and responsibilities of Trustee. G C.2. If Grantor fails to perform any of Grantor's obligations under the Note Assumed, Beneficiary or Guarantor may perform those obligations, advance funds required, and then be reimbursed by Grantor on demand for any amounts so advanced, including attorney's fees, plus 0 interest on those amounts from the dates of payment at the highest legal rate. The amount to be 3 reimbursed will be secured by this deed of trust to secure assumption. 7 1 C.3. Beneficiary may file a sworn notice of such advancement iri the office of the county clerk in the county in which the Property is located. The notice will detail the dates, amounts, and purposes of the amounts advanced to perform Grantor's obligations under the Note Assumed and will include the legal description of the Property. C.4. If Grantor fails on demand to reimburse Beneficiary or Guarantor for the amounts advanced and such failure continues after Beneficiary gives Grantor notice of the failure and the time within which it must be.cured, to the extent required by law or by written agreement, Beneficiary may- a. exercise Beneficiary's rights with respect to rent under the Texas Property Code as then in effect; b. direct Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's agent will cause notice of the foreclosure sale to be given as provided by the Texas Property Code as then in effect; and c. purchase the Property at any foreclosure sale by offering the highest bid and then have the bid credited to the amount owed to Beneficiary. 2 MR.770 . i ',. D. Trustee's Rights and Duties If directed by Beneficiary to foreclose this lien, Trustee will- D.J. either personally or by agent give notice of the foreclosure sale as required by this v deed of trust to secure assumption -and the Texas Property Code as then in effect; 0 D.2. sell and convey all or part of the Property "AS IS" to the highest bidder for cash L with a general warranty binding Granter, subject to the Prior Lien and. to the Other Exceptions to Conveyance and Warranty and without representation or warranty, express or implied, by Trust~e; 1 2 D.3. from the proceeds of the sale, pay, in this order- 5 a. expenses of foreclosure, including a reasonable commission to Trustee; 9 b. to Beneficiary, the full amount advanced, attorney's fees, and other charges due and unpaid; c. any amounts required by law to be paid before payment to Grantor; and p d. to Granter, any balance; and G ,,.. D.4. be indemnified, held harmless, and defended by Beneficiary against all costs, expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the 0 trust created by this deed of trust to secure assumption, which includes all court and other costs, 3 including attorney's fees, incurred by Trustee in defense of any action or proceeding taken 7 against Trustee in that capacity. ..2 E. General Provisions E.1. If any of the Property is sold under this deed of trust to secure assumption, Grantor must immediately surrender possession to the purchaser. lfGrantor does not, Grantor will be a tenant at sufferance of the purchaser, subject to an action for forcible detainer. E.2. Recitals in any trustee's deed conveying the Property will be presumed to be true. E.3. Proceeding under this deed of trust to secure assumption, filing suit for foreclosure, or pursuing any other remedy will not constitute an election of remedies. E.4. This lien will be superior to liens later created even if Beneficiary has made no advancements when later liens are created. E. 5. If any portion of the advancements cannot be lawfully secured by this deed of trust to secure assumption, payments will be applied first to discharge that portion. E. 6.· A sale of the Property under this deed of trust to secure assumption- 3 MR.771 a. is subject to Grantor's continuing obligation to make all payments owing on the Note Assumed; and b. does not extinguish Trustee's right to conduct subsequent sales of the Property for futtire Grantor defaults under this deed of trust to secure v assumption. 0 L E. 7. Grantor collaterally assigns to Beneficiary all present and future rent from the Property and its proceeds. Grantor warrants the validity and enforceability of the assignment. Grantor will apply all rent to payment of the Note Assumed, but ifthe rent exceeds the amount due with respect to the Note Assumed, Grantor may retain the excess. If a default exists in 1 payment of the Note Assumed or performance of this deed of trust to secure assumption, 2 Beneficiary may exercise Beneficiary's rights with respect to rent under the Texas Property Code 5 as then in effect. Beneficiary neither has nor assumes any obligations as lessor or landlord with 9 respect to any occupant of the Property. Beneficiary may exercise Beneficiary's rights and remedies under this paragraph without taking possession of the Property. Beneficiary will apply all rent collected under this paragraph as required by the Texas Property Code as then in effect. Beneficiary is not required to act under this paragraph, and acting under this paragraph does not waive any of Beneficiary's other rights or remedies. p E. 8. Interest on the debt secured by this deed of trust to secure assumption will not G exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or 0 permit;ted prepayment, any such excess will be canceled automatically as of the acceleration or 3. prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt 1 has been paid, refunded. This provision overrides any conflicting provisions in this and all other 3 instruments concerning the debt. E.9. Any action taken under this deed of trust to secure assumption will not extinguish the rights of Beneficiary or Guarantor to proceed against Grantor under the indemnity contained in the assumption agreement by which Borrower assumed the Note Assumed. E.10. The term Beneficiary includes any mortgage servicer for Beneficiary. E.11. When the context requires, singular nouns and pronouns include the plural. E.12. This deed of trust to secure assumption binds, benefits, and may be enforced by the successors in interest of all parties. E.13. Grantor waives and surrenders to Lender (a) Grantor's power to authorize anyone (other than Lender or Granter) to pay ad valorem taxes on the Property and (b) Grantor's power to authorize a taxing entity to transfer its tax lien on the Property to anyone other than Lender. Granter agrees and declares that any authorization from Grantor to another (other than Lender) to pay the taxes and transfer a tax lien on the Property is void. 4 MR.772 GRANTOR: CENTURION PECOS TERMINAL LLC, a Texas limited li b' ,.itY company v By: 0 L Name:-"""'......_,=--....._~""4"::...._~~~~~~~ Title: Yrc.-~ =---'· Title: -------"S..-J~~f..y:.@------ .. NEW BORROWER: CENTURION PECOS TBRMJNAL LLC, · 1.?itompany {//" ORIGINAL HORROWBR: ASSUMPTION AGREEMENT- Page S-1 MR.784 STATE OF 'rEXAS § § COUNTY OF I)ALLAS § '!'his ina~ment wq,AC~N?WLEOG£D IA/ft. before me on th.1 e /}p_t/ / _.. day of 2016. by . k&;btl b.5rn fLlt_ ....---···----'. the ,::417!r _ · or TEXAS CAPITAL BANK, NATIONAL ASSOCIATI_ON, a national banking association, on behalf ofthe bank. [SEAL] STATE OF TEXAS §.' :·\ YVONNE' EATON , l•j My No~ry ID# 11355892 COUNTY OF DALLAS § § '.~ • Ex I $ . 1· b 1s· 20 Pres ep em er ' 18 . This irtstrtnnen:t wa\GCKNOWLEDGED before me on t~e ittn· day of Apt.;11 _L 2016; by . .J't\ffll~ (JI.,, . ----~--~---···-~---· the r t5 - ····--·-- " . of CENTURION J>ECOS TtRMINAL LLC, a ' rexas limited liability company, on behalf of the company. [S E AL] M~r;r;q .,,,.a, STATg OF TEXAS § § COUNTY OF DALLAS § 'this iristrum~nt wa.~ ACKNOWLEDGED before me on the l~ day Qf ftptii I _ , 2016; by James H. Ballengee, the Manager of UALLENGl~E INTERES1l'S, ILC, a Louisiarta limited liability company, l-in behalf of the compruiy. [SEAL] My Commissfon:Expires: __J~fJ.~J~--- [SEAL] ASSUMPTION AGREEMENT - Page S-2 MR.785 EXHIBIT "A" Property Descrii>tion BEING a tract of land located in Section 76, Block 4, H&GN Survey, Reeves County, Texas, and being a part ofa called 496.76 GRID (496.87 Surface) acre tract ofland as described in a Deed recorded in Volume 905, Page 155, Official Public Records, Reeves County, Texas (O.P,R.R.C.T.), and being more particularly described as follows: BEGINNING at a 5/8 inch iron rod set with cap stamped "TRANS TEXAS SURVEYING" for the Notthwest corner of said Section 76, the Southwest corner of said Section 75, the Northeast corner of Section 77 and the Southeast corner of Section 78, said 5/8 inch iron rod set also being in the intersection of County Road No. 408 and County Road No. 404; THENCE North 58 degrees 03 minutes 46 seconds East, with the common line of said Section 76 and Section 75, a distance of 2639.85 feet to a point in the East line of said 496.76 acre tract from which a 112 inch iron rod found with cap stamped "5358 TRUJILLO" bears South 58 degrees 03 minutes 46 seconds West, a distance of 0.63 feet, also from which a 1/2 inch iron rod found at the Northeast corner of said Section 76, Block 4, bears North 58 degrees 03 minutes 46 seconds East, a distance of2639.85 feet; THENCE South 32 degrees 08 minutes 23 seconds East, with the East line of said 496.76 acre tract, a distance of 3187 .68 feet to a 5/8 inch iron rnd set with cap stamped "TRANS TEXAS SURVEYING" for the Southeast corner of said 496.76 acre tract being 100 feet North of the centerline of the Texa~ & Pacific Railroad; THENCE South 69 degrees 42 minutes 22 seconds West, with the South line of said 496.76 acre tract and 100 feet North of and parallel with the centerline of said Texas & Pacific Railroad, a distance of2697.40 feet to a point in said County Road No. 408, the West line of said Section 76 and the East 1ine of Section 77, Block 4, from which a 60D nail found bears South 69 degrees 42 minutes 22 seconds West, a distance of0.37 feet, also from which a 1/2 inch iron rod found for the Southwest corner of said Section 76, Block 4, bears South 32 degrees 08 minutes 13 seconds East, a distance of2657.42 feet; of THENCE No1th 32 degrees 08 minutes 13 seconds West, with the West line said 496~ 76 acre tract and with the common line of said Section 76 and said Section 77, a distance of2643.29 feet to the PLACE OF BEGINNING and CONTAINING 176.659 acres of land. EXHIBIT "A", Property Description - Solo Page MR.786             ([KLELW³%%´ MR.787 ASSUMPTION AGREEMENT This ASSUMPTION AGREEMENT ("Agreement11 ) is made as of 2016 (the "Effective Date") by and among TEXAS CAPITAL BANK, NATIONAL {o,.f _.,:\ , ASSOCIATION, a national banking association ("Lender"), BALLENGEE INTERESTS, LLC, a Louisiana limited liability company ("Original Borrower"), and CENTURION PECOS TERMINAL LLC, a Texas limited liability company ("New Borrower"). RECITALS A. On August 17, 2015, Lender made a loan ("Loan11 ) to Original Borrower, in the amount of $1,500,000.00) ("Loan Amount"); B. Lender and Original Borrower executed a Business Loan Agreement ("Loan Agreement") dated August 17, 2015 pertaining to the Loan; C. Original Borrower executed and delivered to Lender a Promissory Note (the "Note") dated August 17, 2015, payable to the order of Lender in the amount of and evidencing the Loan; D. New Borrower executed and delivered a Deed of Trust dated of even date with the Note to John Hudgens, as trustee, for the benefit of the Lender, recorded as Instrument No. 15- 07672 in the Real Property Records of Reeves County, Texas (as same may have been heretofore amended or extended, the "Deed of Trust") covering the land described in Exhibit ''A" attached hereto and incorporated in this Agreement for all purposes, together with all improvements, appmtenances, other properties (whether real or personal), rights and interests described in and encumbered by the Deed of Trust ("Mortgaged Property"), to secure the payment of the Note and performance by Original BotTOwer of the other obligations set forth in the Note and the Loan Agreement; and E. Original Borrower caused James Ballengee ("Guarantor") to execute and deliver to Lender a Commercial Guaranty (the ''Guarnnty") of even date with the Note; F. New Borrower wishes to assume all of Original Borrower's obligations, responsibilities, duties, liabilities and costs under the Note and the Loan Agreement. NOW, THEREFORE, for and in consideration ofthe premises and the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Lender, New Borrower and Original Borrower agree as follows: l. Assumption and Indemnity by New Borrower; No Release of Original Borrower or Guarantor. New Borrower assumes and agrees to pay to Lender when due all sums now due and owing or which hereafter become due and owing under the Note and the Loan Agreement and agrees to petform all of Original Borrower's obligations under and be bound by all of the provisions of the Note and the Loat:i Agreement as if New Borrower was the original obligor thereunder (the 11 Assumption 11 ). New Borrower will indemnify Original Borrower or Guarantor, EXHIBIT ASSUMPTION AGREEMENT - Page t 3 MR.788 as the case may be, for and against any amounts required by Lender to be paid by Original Borrower or Guarantor, as the case may be, under the Note or the Loan Agreement from and after the Effective Date. Original Borrnwer is expressly not released from any liability under the Note or the Loan Agreement and Guarantor is expressly not released from any liability under the Guaranty as a result of the Assumption. 2. Consent to Deed of Trust to Secure Assumption. In order to secure the Assumption, New Borrower will grant in favor of Original Borrower a deed of trust ("CPT Deed of Trust") covering the Mortgaged Property and securing New Borrower's obligations under the Assumption, which CPT Deed of Trust will be expressly subordinate to the Deed of Trust. Lender consents to the grant by New Borrower of the CPT Deed of Trust and Lender expressly acknowledges that no Event of Default (as defined in the Loan Agreement) will arise as a result of the grant by New Borrower of the CPT Deed of Trust. 3. Release of Lender by Original Borrower. Original Borrower does, by its execution of this Agreement, RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE Lender and its agents, servants, officers, directors, shareholders, partners, representatives, attorneys, and all other persons, natural or corporate, in privity with it from any and all claims, damages, demands, actions, causes of action and liability which Original Borrower has or may have against Lender, known or unknown, now existing or that may hereafter arise, directly or indirectly, of every kind and character, and liability (i) arising out of or in relation to the Loan, the documents evidencing and securing the Loan (collectively, the "Loan Documents"), or the Mortgaged Property whether now or hereafter existing; (ii) arising out of or in relation to the Loan, the Loan Documents, or the Mortgaged Property under or pursuant to common or statutory law, rules or regulations including, but not limited to, state and/or federal law (including but not limited to all usury and environmental laws); (iii) for or because of any and all acts, matters or things done or omitted prior to the Effective Date that relate to any and all claims of any kind or character relating to both the Loan, the Loan Documents, or the Mortgaged Property, or otherwise, growing out of or in any way connected with or resulting from conduct, representations, acts. actions, or omissions in connection with any breach of fiduciary duty, sole or concurrent negligence, bad faith, malpractice, intentional or negligent infliction of mental distress, tortious interference with contractual relations, tortious interference with corporate or partnership governance or prospective business advantage, breach of contract, deceptive trade practices, injury to any person or entity of whatever nature, and libel or slander (without admitting or implying that any such claim exists or has any validity); and (iv) arising out of or attributable to any and all conduct, representations, acts, matters, or things done, omitted, or supposed to be done by Lender prior to the Effective Date. 4. Current Note Balance. Original Borrower and New Borrower acknowledge and agree that the current outstanding principal balance of the Note is $1,500.000.00. 5. Representations and Consideration. Original Borrower and New Borrower each represent and warrant to Lender that no Event of Default, breach or failure of condition has occurred, or would exist with notice or the lapse of time or both, under any of the Loan Documents, and that all of their respective representations and warranties in this Agreement and in the other Loan Documents (as applicable) are true and correct as of the Effective Date (after giving effect to this Agreement). Without in any way limiting any other provision of this ASSUMPTION AGREEMENT - Page 2 MR.789 Agreement, New Borrower expressly represents and warrants that, as of the Effective Date and continuing hereafter, each and every representation and warranty in all of the Loan Documents as it relates to the "borrower" are true, correct and complete as it relates to New Borrower from and after the Effective Date. Original Borrower, New Borrower and Guarantor each agree, acknowledge and represent that (a) they have requested that Lender enter into this Agreement for their mutual benefit and financial accommodations, (b) Guarantor is a direct or indirect owner of Original Borrower and New Borrower, (c) Lender's entering into this Agreement is of value to Original Borrower, New Borrower and Guarantor, (d) in the absence of Original Borrower's, New Borrower's and Guarantor's agreements and undertakings under this Agreement, Lender would not enter into this Agreement, and (e) Original Borrower, New Borrower and Guarantor are receiving good and valuable consideration, the receipt, adequacy and sufficiency of which is acknowledged, as a result of and in exchange for Lender's entering into this Agreement. 6. Knowledge. New Borrower warrants that New Borrower has personal knowledge of all terms and conditions of the Note and the Loan Agreement, and further agrees that Lender has no obligation or duty to provide any information to New Borrower regarding the terms and conditions of those documents. 7. Conditions Precedent. As a condition precedent to the effectiveness of the terms and provisions of this Agreement, the following conditions must have been satisfied to the reasonable satisfaction of Lender: (a) Lender has received: (i) the executed original of this Agreement; and (ii) any other documents and agreements that are required pursuant to this Agreement or that Lender has requested pursuant to this Agreement or the Loan Documents. (b) Reimbursement to Lender of Lender's costs and expenses incurred in connection with this Agreement and the transactions contemplated by this· Agreement, including, without limitation, title insurance costs, recording fees, attorneys' fees, appraisal, and documentation costs and charges, whether such services are furnished by Lenderis employees or agents or independent contractors. 8. Acknowledgment by New Borrower. Except as otherwise specified in this Agreement, the terms and provisions of this Agreement in no manner impair, limit, restrict or otherwise affect the obligations of New Borrower or any third party to Lender, as evidenced by the Loan Documents. New Borrower acknowledges, agrees and represents that from and after the Effective Date (i) New Borrower is indebted to Lender pursuant to the terms of the Note; (ii) the liens, security interests and assignments created and evidenced by the Loan Documents are, respectively, valid and subsisting liens, security interests and assignments of the respective dignity and priority recited in the Loan Documents; (iii) there are no claims or offsets against, or defenses or counterclaims to, the terms or provisions of the Loan Documents, and the other obligations created or evidenced by the Loan Documents; (iv) New Borrower has no claims, offsets, defenses or counterclaims arising from any of Lender's acts or omissions with respect to the Mortgaged Property, the Loan Documents or Lender's performance under the Loan Documents or with respect to the Mortgaged Property; and (v) Lender is not in default and no event has occurred which, with the passage of time, giving of notice, or both, would constitute a ASSUMPTION AGREEMENT- Page 3 MR.790 default by Lender of Lender's obligations under the terms and provisions of the Loan Documents. 9. Joinder of Guarantor. By his execution of this Agreement, Guarantor (i) acknowledges and consents to the terms and provisions of this Agreement, (ii) ratifies and confirms the Guaranty, including all interest and costs of collection, to and for the benefit of Lender, (iii) agrees that the Guaranty is and remains in full force and effect, (iv) acknowledges that there are no claims or offsets against, or defenses or counterclaims to, the terms and provisions of and the obligations created and evidenced by the Guaranty (v) certifies that the representations and warranties contained in the Guaranty remain true and correct representations and warranties of Guarantor as of the Effective Date, and (vi) acknowledges that Lender has satisfied and performed its covenants and obligations under the Loan Documents (if any), and that no prior action or failure to act by or on behalf of Lender has or will give rise to any cause of action or other claim against Lender for breach of the Loan Documents or otherwise. 10. No Waiver of Remedies. Except as may be expressly set forth in this Agreement, nothing contained in this Agreement will prejudice, act as, or be deemed to be a waiver of any right or remedy available to Lender by reason of the occurrence or existence of any fact, circumstance or event constituting an Event of Default under the Loan Documents. 11. Notices. Any notices or other communications required or permitted under this Agreement or the Loan Documents must be provided in accordance with the requirements therefor as set forth in the Loan Documents; provided, however, from and after the Effective Date the addresses of Original Borrower and New Borrower are as follows: Original Borrower: Two Turtle Creek 3838 Oak Lawn Avenue, Suite 1150 Dallas, Texas 75219 New Borrower: 17950 Preston Road, Suite 1080 Dallas, Texas 75252 12. Additional Documentation. From time to time, New Borrower will execute or procure and deliver to Lender such other and further documents and instruments evidencing, securing or pertaining to the Loan or the Loan Documents as shall be reasonably requested by Lender so as to evidence or effect the terms and provisions of this Agreement. New Borrower and/or Original Borrower will furnish to Lender a true and correct copy of the recorded CPT Deed of Trust within three (3) days of execution of same, and will furnish Lender with the recording reference for the CPT Deed of Trust within three (3) days of the recording of same. In addition, Original Borrower will immediately notify Lender of any steps or actions that it may take to (a) accelerate any indebtedness which is owed by New Borrower to Original Borrower and secured by the CPT Deed of Trust or (b) foreclose the lien evidenced by the CPT Deed of Trust. 13. Effectiveness of the Loan Documents. Each of the terms and provisions of the Loan, Loan Documents, Deed of Trust and Guaranty are ratified and confirmed by each of the parties hereto, and shall remain in full force and effect. i' ; ASSUMPTlON AGREEMENT - Page 4 MR.791 14. Governing Law, Venue, Waiver of Jury and Waiver of Certain Damages. THE TERMS AND PROVISIONS OF THIS AGREEMENT ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS BEING EXECUTED AND DELIVERED, AND IS INTENDED TO BE PERFORMED, IN THE STATE OF TEXAS, AND THE LAWS OF SUCH STATE AND OF THE UNITED STATES SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES HERETO AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT, EXCEPT TO THE EXTENT OTHERWISE SPECIFIED HEREIN. THIS AGREEMENT IS PERFORMABLE IN DALLAS COUNTY, TEXAS. VENUE OF ANY LITIGATION INVOLVING THIS AGREEMENT SHALL BE MAINTAINED IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN DALLAS COUNTY, TEXAS, TO THE EXCLUSION OF ALL OTHER VENUES. NOTHING HEREIN SHALL AFFECT OR LIMIT THE RIGHT OF BANK TO BRING ANY ACTION OR PROCEEDING AGAINST ORIGINAL BORROWER, NEW BORROWER OR GUARANTOR WITH RESPECT TO ANY OF ORIGINAL BORROWER'S OR NEW BORROWER'S OR GUARANTOR'S PROPERTY IN COURTS IN OTHER JURISDICTIONS. ORIGINAL BORROWER, NEW BORROWER AND GUARANTOR ACKNOWLEDGE THAT THESE WAIVERS ARE A MATERIAL INDUCEMENT TO BANK'S AGREEMENT TO ENTER INTO THIS AGREEMENT, THAT BANK IS RELYING ON THESE WAIVERS AND WILL CONTINUE TO RELY ON EACH OF THESE WAIVERS IN RELATED FUTURE DEALINGS. THE WAIVERS IN THIS SECTION ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS APPLY TO ANY FUTURE RENEWALS, EXTENSIONS, AMENDMENTS, MODIFICATIONS, OR REPLACEMENTS IN RESPECT OF THE APPLICABLE LOAN DOCUMENTS. IN CONNECTION WITH ANY LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ORIGINAL BORROWER, NEW BORROWER AND GUARANTOR HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF BANK IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF. BORROWER AND BANK AGREE THAT, IN CONNECTION WITH ANY ACTION~ SUIT OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, EACH MUTUALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECULATIVE DAMAGES. 15. Time. Time is of the essence in the performance of the covenants contained in this Agreement and in the Loan Documents. 16. Binding Agreement. This Agreement is binding upon the successors and assigns of the parties; provided, however, the foregoing will not be deemed or construed to (i) permit, sanction, authorize or condone the assignment of all or any part of the Mortgaged Property or any of New Borrower's rights, titles or interests in and to the Mortgaged Property or any rights, titles or interests in and to New Borrower, except as expressly authorized in the Loan Documents, or (ii) confer any right, title, benefit, cause of action or remedy upon any person or entity not a party hereto, which such party would not or did not otherwise possess. ASSUMPTION AGREEMENT - Page 5 MR.792 l 7. Headings. The section headings of this Agreement are inserted for convenience of reference only and in no way alter, amend, define or be used in the construction or interpretation of the text of such section. 18. Construction. Whenever the context of this Agreement so requires, reference to the singular includes the plural and likewise, the plural includes the singular; words denoting gender will be construed to mean the masculine, feminine or neuter, as appropriate; and specific enumeration will not exclude the general, but will be construed as cumulative of the general recitation. 19. Severability. If any clause or provision of this Agreement is or should ever be held to be illegal, invalid or unenfor~eable under any present or future law applicable to the terms of this Agreement, then and in that event, it is the intention of the parties that the remainder of this Agreement not be affected thereby, and that in lieu of each such clause or provision of this Agreement that is illegal, invalid or unenforceable, such clause or provision will be judicially construed and interpreted to be as similar in substance and content to such illegal, invalid or unenforceable clause or provision, as the context of this Agreement would reasonably suggest, so as to thereafter be legal, valid an·d enforceable. 20, Counterparts. To facilitate execution, this Agreement may be executed in as many counterparts as may be convenient or required. It is not necessary that the signature and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts collectively constitute a single instrument. It is not necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of, each of the parties. Any signature and acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another cmmterpart identical thereto except having attached to · it - additional ·signature and · acknowledgment pages. 21. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER DOCUMENTS, IF ANY, HEREIN REQUIRED TO BE EXECUTED REPRESENT THE FINAL AGREEMENT OR AGREEMENTS BETWEEN THE PARTIES AS TO THE SUBJECT MATTER OF THIS AGREEMENT AND THEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES~ THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS INSTRUMENT MAY BE AMENDED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY THE PARTIES. [Signatures on following page.] ASSUMPTION AGREEMENT - Page 6 MR.793 EXECUTED as of the date first above written. LENDER: TEXAS CAPITAL BANK, NATIONAL ASSOCIATION, a national banking association ~;;,,,, Title: 4'j,. ~llf f. jj!!J.ft NEW BORROWER: By:+-4"--::-.-+--"-- -T+---t.,,------ Nan~·~""'-""'-'-"""""<"'"-+--'-J.l<..;:o:;.:..,_ _ _ _ __ Title: -4-1-M2....l.6ij,!,,""'+-~~----- ASSUMPTION AGREEMENT~ Pi1gc S· l MR.794 STATE OF TEXAS § § COUNTY OF DALLAS § This ins~n cnt was A '!(NOV{LEDGED before me on theA.,._/j; day of JfJ/lL!____,. 1016, hy -··-·-·-·-· .eJ.til.f.. .:. · : ~ ~'f the _ci~ , . --.-·--of TEXAS CAPl AL BANK, NATIONAL ASSOCIATION, a national banking association, on behalf of the bank. (SEAL] My Commission Expires: (.6¥f/ft?Ol?.___ STATE OF TEXAS § § COUNTY OF DALLAS § This instrument before inc on the'l~h~KNOWLEDGED of ~day Ap~· l , 2016, by~.-..--~--..,----- the .. .PYts . -·- . of CENTURION PECOS TERMINAL LLC, a Texas limited liability company, 011 behalf of the company~ [SEAL] MyC[mJmtion Expires: _]__, _l~~.-.I~------·- -·- STATE OF TEXAS § § COUNTY OF DALLAS § This instrli1rtei1t was ACKNOWLEDGED h1Jforc me 011 the. day of I~- A:pttj I , 2016, by James H. Bal IC1Jgec, the. Manager of BAL.LENGEE INTERESTS, LLC, a Louisiana limitcdJiability c01npatty, on hehalfofthe company. !SEAL] :i~fiq Expire' MARY KILPATRICK Notary Public, Slate of Texas STATE OF TEXAS § My Commission Expires § July 14, 2019 COUNTY OF DALLAS § ;.;;. . •~;;;;;;;;;o;;iiii"'iii;;;;;;;;;;;;:iiiimj~ This instrument was ACKNOWLEDQED before me on the 2016, by JAM'ESH. BALLENGEE. .L. ____,day of~-+--~-+- [SEAL] My f'°'"'!~on Expire><. 1·•14' ·. •. .......-- .. ....... . .. .....·-·- --·--·•-""'"' 1 ~1LPATIUCK \ Notary Public. Stole of Texas = My Commission Exphes July 14,2019 ASSUMPTION AGREEMENT - Page S-2 MR.795 EXHIBIT "A" P1·operty Desc1·i.,tion BEING A TRACT OF LAND LOCATED IN SECTIONS 73 AND 76, BLOCK 4, H&GN RAILROAD COMPANY SURVEY, REEVES COUNTY, TEXAS, AND BEING COMPOSED OF THE FOLLOWING: A PART OF A CALLED 84.2 ACRE TRACT OF LAND AS DESCRIBED IN A DEED RECORDED IN VOLUME 860, PAGE 82, OFFICIAL PUBLIC RECORDS, REEVES COUNTY, TEXAS (O.P.R.R.C.T.); A PART OF THE NORTHWEST QUARTER OF SAID SECTION 73 AS DESCRIBED IN A DEED RECORDED IN VOLUME 825, PAGE 784 OF SAID 0.P.R.R.C.T.; AND ALL OF A CALLED 109.58 ACRE TRACT OF LAND AS DESCRIBED IN A DEED RECORDED IN VOLUME 1080, PAGE 17 OF SAID O.P.R.R.C.T., AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A 5/8" IRON ROD FOUND WITH CAP STAMPED "TRANS TEXAS SURVEYING" IN THE NORTH LINE OF THE T&P RAILROAD COMPANY RfGHT-OF- WAY AT THE SOUTHWEST CORNER OF THE SAID 109.58 ACRE TRACT AND THE SOUTHEAST CORNER OF THAT 176.659 ACRE TRACT OF LAND AS DESCRIBED IN A DEED RECORDED IN INST. No. 14-03664 OF SAID O.P.R.R.C.T. FOR THE SOUTHWEST CORNER OF THE HEREIN DESCRIBED TRACT; THENCE N 32°08'23" W, WITH THE WEST LINE OF THE SAID 109.58 ACRE TRACT AND THE EAST LINE OF THE SAID 176.659 ACRE TRACT, A DISTANCE OF 1537.04 FEET TO A POINT FOR THE NORTHWEST CORNER OF THE SAID 109.58 ACRE TRACT AND THE SOUTHWEST CORNER OF THAT 100.00 ACRE TRACT OF LAND DESCRIBED AS A SA VE AND EXCEPT TRACT IN A DEED RECORDED IN VOLUME 1006, PAGE l OF SAID 0.P.R.R.C.T. FOR THE MOST SOUTHERLY NORTHWEST CORNER OF THE HEREIN DESCRIBED TRACT FROM WHICH A 1/2" IRON ROD FOUND WITH CAP STAMPED "TRUJlLLO RPLS 5358" BEARS S 58°03'30" W A DISTANCE OF 0.91 FEET; THENCE N 58°03'30" E, WITH THE NORTH LINE OF THE SAID 109.58 ACRE TRACT AND THE SOUTH OF THE SAID 100.00 ACRE TRACT, AT A DISTANCE OF 2639.42 FEET PASSING A 1/2" IRON ROD FOUND WITH CAP STAMPED "TRUJILLO RPLS 5358", IN ALL A TOTAL DISTANCE OF 2639.92 FEET TO A POINT IN THE COMMON LINE ·OF SAID SECTION 76 AND SAID SECTlON 73 FOR THE NORTHEAST CORNER ·OF THE SAID 109.58 ACRE TRACT AND THI~ SOUTHEAST CORNER OF THE SAID l00.00 ACRE TRACT, BEING ALSO THE SOUTHWEST CORNER OF A 20.000 ACRE TRACT OF LAND TI-llS DATE SURVEYED; THENCE CROSSING THE NORTHWEST QUARTER OF SAlD SECTION 73 WlTH THE SOUTH AND EAST LINE OF THE SAID 20.000 ACRE TRACT OF LAND THIS DATE SURVEYED, THE FOLLOWING BEARING AND DISTANCES: N 58°03'30" E, A DISTANCE OF 527.87 FEET TO A 5/8" IRON ROD SET WITH CAP STAMPED "TRANS TEXAS SURVEYING" FOR THE SOUTHEAST CORNER OF THE SAID 20.000 ACRE TRACT AND AN INTERIOR CORNER OF THE HEREIN DESCRIBED TRACT; N 32°08'32" W, A DISTANCE OF 1650.40 FEET TO A 5/8" IRON ROD SET WITH CAP STAMPED 'TRANS TEXAS SURVEYING" lN THE COMMON LINE OF SAID SECTION 73 AND SECTION 74 OF SAID BLOCK 4, H&GN RAlLROAD COMPANY SURVEY AND THE SOUTH LINE OF COUNTY ROAD NO. 404 FOR THE NORTHEAST CORNER OF THE SAID 20.000 ACRE TRACT AND THE MOST NORTHERLY NORTHWEST CORNER OF THE HERBIN DESCRIBED TRACT; THENCE N 58°03'46" E, WITH THE COMMON LINE OF SAID SECTION 73 AND SAID SECT10N 74 AND THE SOUTH LINE OF SAID COUNTY ROAD NO. 404, PASSING AT A DISTANCE OF 2034.62 FEET A 5/8" IRON ROD SET WITH CAP STAMPED "TRANS TEXAS SURVEYING" IN THE WEST RIGHT-OF-WAY LINE OF F.M. HIGHWAY NO. 2119, IN ALL A TOTAL DISTANCE OF 2117.21 FEET TO A POINT FOR THE NORTHEAST CORNER OF SAID NORTHWEST QUARTER AND THE NORTHWEST EXHIBIT "A", Property Description MR.796 CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 73 AND FOR THE NORTHEAST CORNER OF THE HEREIN DESCRIBED TRACT, FROM WHICH A 112" IRON ROD FOUND WITH CAP AT THE NORTHEAST CORNER OF SAID SECTION 73 BEARS N 58°03'46'' E, A DISTANCE OF 2645.08 FEET; THENCE S 32°08'42" E, WITH THE EAST LINE OF THE SAID NORTHWEST QUARTER AND THE WEST LINE OF THE SAID NORTHEAST QUARTER OF SAID SECTION 73, A DISTANCE OF 2645.36 FEET TO A POINT FOR THE FOR THE SOUTHEAST CORNER OF THE SAID NORTHWEST QUARTER AND THE SOUTHWEST CORNER OF THE SAID SOUTHEAST QUARTER OF SAID SECTION 73 AND BEING IN THE NORTH LlNE OF THE SOUTH HALF OF SAID SECTION 73 AND THE NORTH LINE OF A CALLED 120 ACRE TRACT OF LAND DESCRrBED IN A DEED RECORDED IN VOLUME 122, PAGE 52 1, DEED RECORDS OF REEVES COUNTY, TEXAS FOR THE MOST NORTHERLY SOUTHEAST CORNER OF THE HEREIN DESCRIBED TRACT; THENCE S 58°01'36" W, WITH THE SOUTH LINE OF THE SAID NORTHWEST QUARTER AND THE NORTH LINE OF THE SAID 120 ACRE TRACT, A DISTANCE OF 13 .20 FEET TO A POINT FOR THE NORTHEAST CORNER OF THE SAID 84.2 ACRE TRACT AND THE NORTHWEST CORNER OF THE SAID 120 ACRE TRACT FOR AN INTERIOR CORNER OF THE HEREIN DESCRIBED TRACT; THENCE S 32°08 '42" E, WITH THE EAST LINE OF THE SAID 84.2 ACRE TRACT AND THE WEST LINE OF THE SAID 120 ACRE TRACT A DISTANCE OF 1.61 FEET TO A · POlNT FOR THE NORTHEAST CORNER OF A 33.000 ACRE TRACT THJS DATE SURVEYED. AND A SOUTHEAST CORNER OF THE HEREIN DESCRIBED TRACT; THENCE CROSSING THE SAID 84.2 ACRE TRACT WITH THE NORTH AND WEST LINE OF THE SAID 33.000 ACRE TRACT OF LAND THIS DATE SURVEYED, THE FOLLOWING BEARING AND DISTANCES: S 58°03'32" W, AT A DISTANCE OF 61.35 FEET PASSING A 1/2" IRON ROD FOUND WCT'H CAP STAMPED "TRUJILLO RPLS 5358", AT A DISTANCE or: 61.5 1 FEET PASSING THE WEST RIGHT-OF-WAY LINE OF SAID F.M. HIGHWAY NO. 2119, IN ALL A TOTAL DISTANCE OF 933.83 FEET TO A 5/8' IRON ROD SET FOR THE NORTHWEST CORNER OF THE SAID 33 .000 ACRE TRACT AND AN INTERIOR CORNER OF THE i-IERElN DESCRIBED TRACT; S 31°43'00" E, A DISTANCE OF 1432.68 P'EET TO-A 5/8" IRON ROD SET IN THE NORTH LINE OF THE SAID T&P RAILROAD RIGHT-OF-WAY FOR THE SOUTHWEST CORNER OF THE SAID 33.000 ACRE TRACT AND THE MOST SOUTHERLY SOUTHEAST CORNER OF THE HEREIN DESCRIBED TRACT; THENCE S 69°42'07" W, WITH THE NORTH LINE OF THE SAID T&P RAILROAD COMPANY RIGHT-OF-WAY, A DISTANCE OF 4421.63 FEET TO THE PLACE OF BEGINNING AND CONTAINING 299.325 ACRES OF LAND. EXI-HBIT "A", Property Description MR.797             ([KLELW³&&´ MR.798 Ballengee Interests; LLC 3838 Oak lawn Avenue, Suite 1150 Dallas, Texas 75219 May 25, 2016 Centurion Pecos Terminal LLC 17950 Preston Road, Suite 1080 Dallas, Texas 75252 Via Hand Delivery RE: Unsecured Promissory Note dated September 16, 2014 (the ';Note") in the amount of $1,500,000.00, issued by Centurion Pecos Terminal LLC(''CPT") to Ballengee Interests, LLC (the "Company") Dear Sirs: The Company hereby delivers th is notice of acceleration of the unpaid principal balance of the Note, together With all accrued interest thereon and all other amounts payable under the Note (collectively, the "Indebtedness"), due to CPT's breach of the cpvenant set forth in Section 3(d) of the Note, Specifically, the breach by CPT arises out of CPT'sfa!lure to timely perform its obligation to make interest payments due on April 16th and May 16th of this year on the Promissory Note dated September 16, 2014 in the amount of$1,500,000.00, issued by the . Company to Texas Capital Bank; National Association, the breach of Which obligation. is . expressly an Event of Default under the Note pursuant to Sectimi 2.l(d). As a result of the foregoing acceleration, the entire Indebtedness is immediately due and payable. Very truly yours, EE INIE RESTS, LLC ~ James Ballengee, its Manager MR.799             ([KLELW³''´ MR.800 Ballengee Interests, LLC 3838 Oak lawn Avenue, Suite 1150 Dallas,·Texas75219 May 25, 2016 Centurion Pecos Terminal LLC 17950 Preston Road, Suite 1080 Dallas, Texas 75252 Via Hand Delivery RE: Unsecured Promissory Note dated August 17, 2015 (the ''Note>') in the amount of $1,5001000.00, issued by Centurion Pecos Terminal LLCC~CPT") to Ballengee Interests, LLC (the "Company") Dear Sirs: The. Company hereby deHversthis notice of acceleration of the Unpaid principal balance of the Note, together With all accrued interest thereon and all other amounts payable under the Note {collectively, the 111ndebtedness"), due to CPT's breach of the ~oven ant set forth in Section 3(d) of the Note. Specifically, the breach by CPT arises out of CPT'sf~ilure to timely perform its obligation to make interest payments due on April 15th and May 16th of this year on the Promissory Note dated August 17, 2015 in the amount of $1,500,000.00, issued by the Company to Texas Capital Bank, National Association, the breach of which obligation is expressly an Event of Default under the Note pursuant to Section 2.l(d). As a result of the foregoing acceleration, the entire Indebtedness is immediately due and payable. Very truly yours, .EXHIBIT I J3 MR.801             ([KLELW³((´ MR.802 -NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER' S LICENSE NUMBER. 16-06584 fllEO FOR RECORO SPECIAL WARRANTY DEED REEVES COUNTY, TEXAS v May 31, 2016 at m :40:00 PM 0 STATE OF TEXAS § L § COUNTY OF REEVES § 1 CENTURION PECOS TERMINAL LLC, a Texas limited liability company 2 ("Grantor"), ·for good and valuable consideration, the receipt and sufficiency of which 1 consideration are hereby acknowledged, has Granted, Sold, and Conveyed, and by these presents 5 does Grant, Sell, and Convey, unto BALLENGEE INTERESTS, LLC, a Louisiana liniited liability company ("Grantee"), having an address of Two Turtle Creek, 3838 Oak Lawn Avenue, Suite 1150, Dallas, Texas 75219, (a) all that certain real property situated in the County of Reeves, State of Texas~ and more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, (b) together with all buildings and improvements now or hereafter situated thereon, and the lessor's or landlord' s interest in all space leases or occupancy p agreements covering all or any portion thereof and the buildings and improvements situated G thereon, and (c) together with all of the right, title and interest in and to the easements in anywise appertaining or belonging thereto (collectively, the "Property"). 0 This Deed is made and accepted expressly subject to the validly existing and enforceable 4 rights of third parties in connection with the matters set forth in Exhibit B attached hereto and · made a part hereof for all purposes. 1 8 This deed is intended as an absolute conveyance rather than as security for any obligation, and Grantor expressly waives any statutory, equitable or other right to redeem any interest in the Property; this deed does not result in the merger of the liens described in Exhibit B with the title conveyed hereby, or in the subordination or extinguishrrient of any such liens in favor of any other lien or encumbrance; and the interest of the beneficiary of each of the liens described in Exhibit B, on the one hand, and Grantee's title to the Property, on the other hand, are and will remain separate and distinct. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances belonging in any way to the Property, unto Grantee, its successors and assigns forever, and Grantor binds itself and its successors and assigns to warrant and forever defend all and singular the Property, subject to the validly existing and enforceable rights of third parties in connection with the matters set forth in Exhibit B, to Grantee, its successors and assigns; against every person lawfully claiming or to claim all or any part of the Property, by, through, or under Grantor, but not otherwise. Return to: \>56- Republic Title of Texas, Inc. ··-.,.,."'''.~ 2626 Howell Street, loth Floor ; EXHIBIT 1 Dallas TX 75204 d(·H· 6Zl i 8 ----=~-..,.. MR.803 IN WITNESS WHEREOF, Grantor has executed this Deed on May 26, 2016. GRANTOR: v LLC, 0 L (6 1 Name: 2 Title: 7 5 THE STATE OF TEXAS § COUNTY OF DALLAS § p BEFORE ME, the undersi~ed authority, a Notary Public in ~d for the State of Texas, on this G day personally appeared unnn CiA\ct; ' PYffil4cnf- of Centurion Pecos Terminal ILC, a Texas limited liability company, known to me to be the person whose name is subscribed to th~ foregoing instrument, and acknowledged to me that s/he executed the 0 same for the purposes and consideration expressed therein and on behalf of such company. 4 1 GIVEN UNDER MY HAND AND SEAL OF OFFICE this7.lo~ay of_tv\_tt_tvt.._..__~ 9 2016. .>'~~~";:::,,,_ MARY KILPATRICK iP,t:K;;;,~ Notarv Public, Stale of Texas J ~J:l~~·l.,§ MV Commission Expires ~i·c,;\~~l JUIV l 4, 2019 ,•on''°' ;,1 My Co7)jl±fsion Expires: M~ l~M\l¥-- . 11 1q Typed~tedN~ of Notary Exhibit A-Legal'Description Exhibit B - Permitted Exceptions 2 MR.804 Exhibit A To Special Warranty Deed BEING a tract of land located in Section 76, Block 4, H&GN Survey, Reeves County, Texas, and being a part of a called 496.76 GRID (496.87 Surface) acre tract of land as described in a v Deed recorded in Volume 905, Page 155, Official Public Records, Reeves County, Texas 0 L (O.P.R.R.C.T.), and being more particularly described as follows: BEGINNING at a 'S/8 inch iron rod set with cap stamped "TRANS TEXAS SURVEYlNG" for the Northwest comer of said Section 76, the Southwest comer of said -Section 75, the Northeast 1 comer of Section 77 and the Southeast comer of Section 78, said "S/8 inch iron rod set also being 2 in the intersection of County Road No. 408 ,and Cotinty Road No. 404; 7 5 THENCE North 58 degrees 03 minutes 46 seconds East, with the common line of said Section 76 and Section 75,' a distance of 2639.85 feet to a point in the East line of said 496.76 acre tract from which a 1/2 inch iron rod found with cap· stamped "53"58 TRUJILLO" bears South 58 degrees 03 minutes 46 seconds West, a distance of0.63 feet, also from which a 1/2"inch iron rod p found at the Northeast comer of said Section 76, Block 4, bears North 58 .degrees 03 minutes 46 seconds East; a distance of 2639.85 feet; G THENCE -South 32 degrees 08 minutes 23 seconds East, with the East line of said 496.76 acre tract, a distance of 3187.68 feet to a 5/8 inch iron rod set with·cap stamped "'IR.ANS TEXAS 0 SURVEYING" for the Southeast comer of said 496.76 acre tract being 100 feet North of the 4 centerline of the Texas & Pacific Railroad; 2 0 THENC.Ei South .69 degrees 42 minutes 22 seconds West., With the South line of said 496. 76 acre tract and 100 feet North of and parallel with the centerline of said Texas & Pacific Railroad, a distance of2697.40 feet to apoint in said Coµnty Road No. 408, the West line of said Section 76 and the East line of Section 77, Block 4, .from which a 60D nail found bears South 69 degrees 42 minutes 22 seconds West, a distance of 0.37 feet, also from which a 112 inch iron rod found for the Southwest comer of said Section 76, Block 4, bears South 32 degrees 08 minutes 13 seconds East, a distance of 2657.42 feet~ THENCE North 32 degrees 08 minutes 13 seconds West, with the West line of said 496. 76 acre tract and with the common line of said Section 76 and said Section 77, a distance of 2643 .29 feet to the PLACE OF BEGINNING and CONTAINING 176.659 acres of land. 3 MR.805 ExhibitB To Special Warranty Deed v 1. Deed of Trust dated September 16, 2014, executed by CPT and recorded as 0 Document No. 14-09181 of the R-.eal Property Records of Reeves County, Texas and L encumbering the Project (the "TCB Deed of Trust>'). 2. Deed of Trust to Secure Assumption against the Project dated April 6, 2016 that is expressly subordinate to the TCB Deed of Trust and is recorded in Volume 1259, Page 364 of 1 the Real Property Records of Reeves County, Texas. 2 1 3. 5 b. Mineral reserv~tion In coal, lignite, oil, gas and other minerals togethe~ with all rights, privileges and immunities incident thereto contained In Deed from Jimmy o. Mc:Nell and wife, Bobbie Ann McNeil, to Fred Hammond, dated 11/19/1984, recorded In Volume 4501 Page 304, Real Property Records, Reeves County, Texas. Title to said interest not checked subsequent to the data ther~f. c. Right of Way Grant granted by R.H. Brown, to Pecos Growers'TCB :Loan'"), as evidenced and/or·secu~d in part by that CO Business Loan Agr~(3rnent: .d~ted September i6, 2014 between Bl LLC and TGB. (the '~Loan Atretn1enf'.1); (2)Promissory Note dated September 16; 2014 in the stated principal amount of ${500,00d,ob, executed by BI LLC; bearing interest.and being payable to~~ prder of TCB ~s therein provided (th~ "TCB Note~'), (3) Deed of Trust dated September 16, :io14, executed by CPT and recorded as Document No, 14--0918-1 qf the.Real Property Records ~f Reeves County, Texas and e11cumb¢ring th~ Project (the ;,Ten D.eecf;or Trusft and (4) Commercial Guaranty dated September 16, 2014 executed. by Ballengee. .. . . . C. .I11 ord()r t() pn>vide that, as between Ci>T, on t}ie one himq; and BI ttc and Ball~ngee (together ''II LJdQlBallengt•f), on the other.hand, CPT would be ultimately liable for the purchase money financitig foi the Project; CPT issued to BI LLC an Unsecured Promjssory Note on September 16, 2014 fo the stated princip~l amountcW$+,.500;000.oo, bearing interest and:being pa.yalileto the order of Bl LLC as therein pr9vided (the ...lT.nsect1~dfN"ote"'). D. Clause (dkof Section 3 of the Unsecured Note contemplates that C:Pt would malce timely payrnents.ofintere$t due on the:TCB Loan. E. On April 6, 2016, BI LLC/Ballengee, CPT, a~d TCB entered into·an Assumption Agteem.ent (herein Sb called) related to the TcB Lo~. wher~n, airiong other things, CPT (i) assumed the.obligation to' pay·artcf perform all ofthe obligations ofBI LLP uncier tl:ie TCB.Note andt~eLoanAgreem¢nt and (ii}agreed to indemnify BlLLQ or Ballengee, as the case may t)e, for an)' amounts reqwred by TCB 'tb be paid by Bl LLC or t)y Ballengee, as the case may ·b~, under the TCB Note odhe Loan Agreement from and after the.effective date of the Assµmptjon Agreement. F. In order to secure CPT' s obligations· described in Clauses (i) and (ii) of the fol'.egoing Recital paragraph E (collectivety, tlie ·~Assumj!tiOJi Qbli!ationsn, CPT executed a .---~--.. EXHIBIT 1 I - -' -l - - MR.817 D~ed of Jru~t to Secure Assumption against the Project dated April 6, 2016 that is expressly subordlnate to the TCB Deed of Tru$t and is recorded in Volume 1259, Page 364 of the Real Property Records ofRewes County, Texas (the "Deed·of T.-ust to Secute1\s'sumptian~) . G; CPT failed to make. the requisite interest paymen~s· on the TCB Loan for the months of April and May 2016 and, as a result, BI LLC sent written notice to CPT on May 25, 2016 that the entire unpaid principal balance or the. Unsecured Note, together with interest· accrued_and unpai4 thereon (together; the '~lJlisecurM Not~ Ind@btedn·ess"), was immediately due and payable. ·· · ·· · ·· · · H. As of the Effective Date, tije amourtt of ·the Unsecured Note Indebtedness is $1,703,178.08. L CP't has tilade ~ analysis 0£ inark¢t conditions affecting the Project and of its own financial condition and ability and has determined (1) that the oW1lership, operation; and deyelopment ofthe Project is not economically viable and will not be economJcaUy viable for CPT within the foreseeable futy.re, (2) that CPT is not finam~~ally abl.e tp continue to own, operate, an.d develop the Project or to· continJ,te .to pay ipterest on the TCB Loan as it b~comes payable, and (3) the value of the Project is less thah the amount of the Unsecured Note Indebtedness as of the Effective D~te. J. CPT and Bl LJ,C have inifa~ted discussions concerning (1) the release ofCPT and ,assomptiqn by Bl LLC from and after the Effective Date of the .·eiisting respons~bliities, obligations, ·am(liabilities of owning, operating, and developing the Project and (2) the release of CPT ~Y BI LLC/Ballengee from the Assumption: Obligations, the obligations of CPT under the Deed of Trust to ~ecµre Assumption, and the Unsecured Note Indebtedness (collectively; the "CPTOb.ligati~ll$'1 ), subject to. certainRetainedLiabilities(defined below). K. · Bl LLCIB~llerigee and OPT (collectively, the ·::Parties:i') haye entered into ·this Agre,ement to provide for the conveyance of the Project to ijIJ XC fo. c.on.sideration for the release of CPT by al LLC an~ by ];lallengee (but by Ballengee qnly to the extent of the Assumption Obligations) from ihe CPT Obligations and the.indemnity of CPI in Seciio1\ 2(d) herein) all subje~fto 'aildinaccord~nce with the terms and conditions hereinafter ~et forth. . AGREEMENTS: NOW, TBEREFO:RB, for the mutual premises herein and for other good and vitluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:· · l. ·€n~~~;ance:ofthePtojeciito IU LLC, (a) Convetan(:e, Contemporaneously herewith, CPT will cot).vey all legal and equitable. title and.interest in and to the Project to Ill LLC;, subject only to the permitted exceptions set forth in Exhibit B to the Deed (defined beJow)~ by executing and delivering to BI LLC th~ following:: · 2 MR.818 (1) Special Warranty Deed (the "Deed") in substantially the s~e form:attached hereto as ~xhibit B; and · (2) . .t\ssignment of Personal Property, Warranties, and Leases (the "Qenerai 4!$iJ!dlttenfi) in substantiajJy the same fonn as the form attached hereto as ,EXb\bif .C· assigning and transferring to BI LLC aH personal property, contracts, imd warranties comprising the Project and the lessor's interest in any and all leases •of the Project (or any portion thereof). The Deed and.the General Assignment, and·the qonveyances:to BlLLC therein (collectively, the ''Gflnve?;allc~'), are subject to the TCB Loan and the TCB Deed of Trust and to the Deed of Trust t6 ·s~cure Assumption. Further, the Conveyance constitutes an absolute conveyance of the Project{and not.a deed of tru$t;·~ecurity agreement pr other security interf?st qfwhatever nature), thereby t}Xpr~ssly waiving any right, claim; or interest .o f CPT in arty profits thal may thereafter accrue or be pay~ble from the.ownership, use, ltiase; saie,or other disposition of the Project. The D~ed, the Gen~ralAssignnient, ~nd all otlt~r clocurnents or i1Jsirllments executed or delivered in connection with this Agreement (including without Hmitation any .nort,,foreign tax affidavits or titl~ affigavits nece$Saty or reasonably appropriate tp consummate the Conveyance) are hereinaft~r collectively citlled the·'J~()Dve:f!!rtc~ Documents.;, (b) Furthet··!H11rattces.. At BI .LLC'S: request, CPT will cooperate with SI LLC and execute such further documents or instruments as re~sonably may be required by BI LLC ·consistent with thi~: Agreement to ·ensure the orderly Conveyance and transfer of the Project a~ of tlie.Effectlve Date. . 2. . l!D.:Obligations or.·e 1 LLC:t ti Third ·parties; C.PT1s· IMlin@d.·Liabilities; R$leas~ofQ1'~y :~1:t~llMlle11g~e. ·· ·· · · ·· · · · · · ··· · · · · · · ·(a} No:ObUgatlonsiotBILLC"to Tliitd Parties~ Theacpeptance by BILLC of title to the Prqjectpursuant to thfa Aifeemenfand tiie Conveyance Document~ dC?es not create any obligatfons on th~ pattof :Bl LLC to thf.td parties that )lave claims of any kind whatsoever against CPT With ,respect to the Project or with respect to CPT;s acquisition, ownership or operation of the Project. BI LLC does not assume or a:gr~e to discharge any lial)ilities .pertaini~g to the Project that accrued prior to the Effective Date, NO' person not a party to this Agreement has any 'third-party bene.ficiary; or otherrlghts-underthis Agreement. · (b) Retai'ned Liabilities, Notwithstan9ing anything- to the contrary in this Agreement, Ci>T' remain$ liable, for, and is not r~leased from its obligations related to, the following -matters (coll~ctively, the·'~Bemintd blabilities~J: (1) any wammty of title to the Project c~mtained in the Conveyance Docu.rnen,ts; (2) any obligations and liabilities of CPT arising under, or any breach of any represent~tion, w~rranty, covenant of CPT contained in, this Agreement;.and (3) :any and all claims of third parties described in Se.ction 2(a). 3 MR.819 The Retained Liabilities expressly survive the execution and delivery of this Agreement and the Conveyance Documents. · (c} Release of CPT by BI. LLC/Ballengee. ·Effective on· the Effective Date, subject in an respects to CPT having execlited and delivered to 131 LLC on or before the Effective Date all of the Conveyance Documents, and without waiving any of the Retained Liabilities, each of. BI LLC and Ballengee (but by Ballengee only to the extent of the Assumption Obligations} hereby release, acquit, and foreverdischarge CPT and its direct or indirect beneficial owners, directors, officers, agents, servants, employees, attorneys, and .representatives (collectively, the "CPT Releases! Parties~') of and from any ·and all of the. CPT Obligations and any and all claims; d.elilands, damages, costs, .losses, expenses, commissions: actions and causes of action ofwhatever nature in connection with or arising or to arise from or resulting or to result from orrelatingto the CPT Obligations. Further, except with respect to any Retained Liabilities, BI LLC will not bringot institute any action or suit in connection with any of the CPT Obligations against any of the CPTReleased Parties. Notwithstanding the foregoing; nothing contained in this Agreement releases, reduces, limits, impairs or .adversely affects the rights or remedies of BI• LtC •under the· Conveyance Documents or with. respect to the Retained Liabilities, including without Hmitationthe rightto institute any .action or suit against any person other thari the CPT Released Parties. This release inures to the benefit of CPT and the other CPT Rele~sed Parties and their respective successors· and assigrts and is binding· on BI tLC/Ballengee and thtlir respective heirs, successots, and assigns. (d) . Jndeannity;. Effective· on· the Effective Date, BI LLC agrees to indemnify, defend and protect the CPt Released Parties from any and all claims of TCB arising out of breach or discharge of the Assumption· Obligations. 3. ..Release hy CPT. Effective on the Effective Date, CPT, for itself and the other !. CPT Released Parties, hereby releases, (tCquits and. forever discharges· Bl LLC and its ·direct or indirect beneficial owners, . diiectors~ ()fficers, agents,. servants, employees, . attorneys, and representatives (collectively, the ")JlL£C·]telea§ed ~af.tiei'} of and from any and all· claims, demands, damages, costs, losses; expenses; commissions, actions and causes of action of whatever natuiein connection with or arising or to arise from or resulting ofto result from or relating to the TCB Loan, the Unsecured Note, the Assumption Agreement, the Deed ofTrust to Secure ASsumption or the Project, specifically including any claim of usury. Further, neither CPr nor any ·of the other CPT Relea&ed Partie$ will institute. any• action or. suit. against any of the BI LLC ReleasedParties in connection with any of the matters tor which the Bl LLC Released Parties 11re released pursuant to this Section 3. · No promise or inducement for this release· has bee!l offered exceptas may be expressly set forth in.this Agreement, and this release is executed without reliance upon any statement or representation of ariy person or parties released, or.their representatives, concerning the .nature •arid. extent .of the. damages and/or· the legal• liability therefor. This releas.einures to the benefit ofBltLCIBallengee and the other BI LLC Released Parties and their respective heirs, successors, and assigns and is binding on the CPT Released Parties and their respective successors and assigns. · 4. .CPT's Represent11.tion!• ,\Varrauties and ~()ven~nts, .As. a material inducement for BI LLC/BaJ.Jengee to•enter into.this Agreement and in recognitionthatBI LLC/Ballengee are 4 MR.820 relying on the accuracy of the following, CPT represents, warrants and covenants to BJ LLCIB&Ilengee that: (a) CPT is entering into this Agreement of its own free will and accord, upon knowledge of the facts; and with the advice of legal counsel of CPT;s selection; (b) The statements contained in the Recitals to this Agreement are true and correct. (c) CJ,>T acknowledges that, upon the delivery ,of the Deed to BILLC, CPT will have waived, @d does herel;>y waive, any rec{emption and cµre rights with .respect to the 'ProJect, and CPT acknowledges th_at the releases granted·to CPT by aTLLC and by Ballengee and the 1nd~mnlty provided for in Section 2(d) in this Agreement constitute new, fair, and adequate consideration for CPT'·s waiver,of sucfi ri~ts. (d) CPT owns the Project in 'fee· simple absolute and, except for the permitted eX:cep:tlons set forth in Exhi~it B to the Deed, there are no existing Hens, security interests, encumbrances, agreements, encroachments, spedal assessments, claims, leases, tenancies, ofhttr adverse interests or defects on or affectii1g the Project. (e) The transactions described in this Agreement anci in the Conveyance Documents (colfoctively, the "Conv.nce/Itansattio~'') benefit and are in the best interests of CPTand are being entered foto by CPT voluntarily and Without undue influence or duress; (t) The consideration to be received by CPT in connection with ·the constunmation of the Conveyance Transactions, including payment by BI LLC of ad valorem taxes on the Proje·c t through the Effective Date;: equals or exceeds the value pf the Project as of the Effective Pate, and CPT will not take a.contrary position in a court oflaw or otherwise. (g) CPTis a limited liability company duly organized, vali~ly existing,. and in. good standing undet the laws of the .State of:Tekas, ht1ving all powers required to carry on its busin.ess and 'to enter into and carry putthe Conveyance Transactions. - (hJ CPT has duly taken all action rtecessacy to authorize the execution and deliyery by CPT of this Agreement ~md the Conveyance D~uments and to authorize the consummation of the. transactions contemplated th¢reby and the performance of its obligatioQs thereunder. (i) The execution, ge}ivery and perfonnanc:e by CPT of this Agreement and the Conveyance Documents, and the cons4mmation by CPT of the Convey~nce Transactions, do not and wHi not conflict with any provision of (A)_ to GPT' s cwrent actuSp and Ei(i!n§~. BI LLC will pay all costs and expenses relating to this Agreement and the consutnmlltion of the transactions contemplated in this Agreement, including but not limited fo recording costs, title Search fees and C()StS, and any Other matters arisingin connection herewith; provided; however, that each of BI LLC/Ballengee and CPT will bear arid pay the fees and expenses of its own legal counsel.. (e) AfpLlC:AB[.}t' _L~. TlllS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH TIIE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THEUNITED STATES APPLICABLE TO TRANSACTIONS WITIIIN TIIE STATE OF TEXAS. (f) ~uece5sor~fa'nd Assigns. The covenants and ob1igations contained in this Agreement bind, and the benefits and advantages inure to, the respective heirs, personal representatives, successors, and assigns of BI LLC, Ballengee, and CPT. · (g} Exltiljits. The following exhibits to this Agreement are incorporated herein and made a part hereof: A Legal Description B -·.. Deed · C General Assignment (h) . l\'111ltij>Je Cgunterf!QHs. This Agreement may be ex;ecuted in multiple counterparts, each of whfoh constitutes an original, but all of which together constitute one agreement. ·[REMAfNDER OF PAGE INTENTIONALLY LEFT BLANK.] 8 MR.824 CPT: ·CENTU~ONPE~S TERMINAL LLC, a ~ limitediiabwfy ¢ ··ntpa . ·~ By: ~~" Name: Jt)V b~ (% Title: e~ erl./ e ttZ('; [Signature Page - Conveyance Agreement] MR.825 EXECUTED as of the Effective Date. BILLC: BALLENGEE INTERESTS, LLC, a Louisiana limited ~iability compan [Signature Page - Conveyance Agreement] MR.826 EXHIBIT A. LEGAL DESCRIPTION BElNG a tract of hind lOcated in Section 76, Block 4, H&GN Survey, Reeves County, Texas, and being a part ·of a c~led 496.76 GRID (496.87 Surface) acre tract of land as described in a Deed recorded in Volume 905, Page 155., Official Public Records, Reeves County, Texas (O.P.RR.C.T.), and being more particlilarly described a~ follows: B.Ed-INl\fJl\lQ at a5f8 inch iron rod set with cap stamped "TRANS TEXAS SURVEYING" for the Northwest comer ofsaid Section 76, the Southwest comer of said Section 7-S, the Northeast comer ofSection 71 and the Southeast corner ofSection 78, said 5/8 inch iron rod set also being in the intersection of County Road No~ 408 and County Road No~ 404; !HENCE North 58 degre~s. 03 mim.ttes 46 seconds East, with the common line of said Secti'on 76 and Section 75, a di$ta11ce of2$.J9..85 fe~ to a point in the Ea~t tine of said 496.76 aqre tract from which a 1/2 inch iron rpd found with cap stamped "535& TRUJILLO" beats Sc)uth 58 degrees 03 minutes 46 seconds West, a distance of 0:63 feet, a1so froui which a 1/2 inch. fr011 rod found at the Northeast comer of said Section j q, Block 4, bears North 58 degrees 03 minutes 46 seconds East, a distance of 2639.85 feet; THENCE South 32 degrees Q8 minutes 23 seconds East, with the East line of said496.76. acre tract, a distance of 3187.6$ feet to & 5/8 inch iron rod -s~ With cap stamped 'ehv~en- JllLLC and Tc:B (the ·~te»§n Amemsnt~), (2) Promissory Not¢ ci~te(i Aµgus~ 17, 2015 in the stated principal atnQtmfof $1,500,000.00, execQted by ~I .LLC; hearing interest and being payable to th,e Qrder of TCB as therei11 provided (the "TCB :Notlf1)i (3) Deed of Tnist dated August 17, 2015, executed by CPT and recorded as Document No. 15.;07672 of the R_eal Propeity Records of Reeves County; Texas and encumbering the Prqject (the "1-'~!f .D~~ ·of.''fiust''), and (4) Commercial Guaranty dated August I7, 2015 executed by Ballengee. ··· · · ·· · · · · ..,, · C. In order to provide that, as between CPT, on the one hand, and Bl LLC a11d Ballengee·{together "BI .~C/JJaitengee'~); on tlte other. hand, CPT would be uhimately liable f9r the · purchase money financing for· the Project; . CPT issued. to Bl LLC an ·unsecured Promissory Nerte on August 17, 2015 in the stated principal amount of $1,500;000.00, bearing a intet¢st artd. being payable to the order of I LLC as therein provided (the "Unsetured Nt>te1'). D. Cl~use (d) of Se.Ction 3 of the Unsecured Note contemplates that CP'f would make timely paym~nts ofinterest due on tbe TCJ3 Loan. E. On April 6, 2016, In LLC/Ballengee, CPf, anci TCB entered into an Assumption Agreement (hett}in .so called) reJat~d to the TC:l:l LQ~m wherein, among other thin.gs, CPT (i) a.ssumed the obljgation to pay and petform.all of the obligati011s of BfLLCunder the TCB Note and theLoanAgre~mertt and {ii) agreed to indemnify BI LLC or Ballengee, as the case may be, for any arnounts. required ~y TCB to be paid by BI "LLC or by B~1¢ngee, as tJte case may be, -under the T¢B Note orth,e L.oan Agreement from and after th~ effective date.of the. Assuiliptio11 Agreement. F. In order to secure CPT's obligations described in clauses (i) and (ii) of the foregoing Recital p¥agniph E (collectively, the '.'AjSumptiOn Obligatioij~'), QPT execut~d a J:XHlBIT 1 °lMR.829 Deed ()f Trust tQ Secure Assumption againstthe Project dated April 6, 2016 that is expressly subordinate to the TCB Deed ofTrustand is recorded in Volume 1259, Page 370 of the Real .Property Records ofReeves•County, Texas (the "DeedofTrust to•SecureAssummton"). G. CPT failed to make the requisite interest payments on the TCB Loan for the months of April and May 2016 and, as a resuH, BI LLC sent written notice tO CPT on May 25, 2016 that the entire unpaid principal. balance of the Unsecured Note, together with interest accrued and unpaid thereon (together, the ''Ilnse2ured Note Illdeb!edness"), was immediately due and payable. . . . . . . . . .. . H. As of the Effective Date, the amount of' the Unsecured Note Indebtedness is $1,593,041.•10, L CPT has made an analysis of n1arketconditions affecting the Project and offrs own financial condition and ability and has determined (l) that the ownership, operation, and development of the Projectis not economically viable and will not be economically viable for CPT ·within the foreseeable future, (2) that .CPT is not financially able to. continue to own; operate, and. develop the Projector to c()ntinue to pay interest on the TCB Loan as it becomes payable, and (3) the valQe of the Project is less than T npr any of the .other CPT R~lea$ed Parties will insti,tute arty action or suit against any of the BI LLC Released Parties in connection with any of the matters for wlifo~ the BI LLC Released Parties are released putsu!lnt ttdhis Section 3. No promise·or inducement for this release has been offered except as may be expressly set forth in this Agreement, and this release is executed without refomce upon any .statement or representation of any pet;son or parties teleas~d, or their representat~ves,_ concerning the- nature _and extent of th,e damages and/or the legai Habiiity therefor: Thts· rel~se inures .to .th~ benefitofBILLC/Ballengee and the other BI.LLC Released Parties .and their respective heirs, successors, and assigns and is binding on t'1e CPT Released Parties and their respective successors and assi·gns. - 4. CPT's:Representatibns,.:Watrinties aild Covenants, As a material inducement for BI LLC/Ballerigee tO enter•irito tht~ A,greemenfarid·in.recogrutiort that :SI L:LC/Ballengee are 4 MR.832 relyin~on the accuracy of the following, CPT reptes~nts, warrants and covenants to BI LLC/Ba11engee that (a) CPT is entering irtto this Agreement of its own free will and accord, upon knowledge.of the facts; and With the advice of legal courtsel ofCPT's selection. (b) The statement~ contained in the Recit~s to tllis A~~ement are tn.ie and correct. ( c) CPT ac_knowl¢clges that, upon the delivery of the Deed to BI LLC, CPT will have waived; a~d does hereby w~ve, cmY redemption and c1,1re rights with respect to the Project, and CPT acknowledges that the teleiises granted t9 CPT by BI LLC and by Ballengee and the· indemnify provided for in Section 2(d) in this Agreement constitute new, fair, an9 adequate consideration for CJ>T' s waiver of such rightS. (d) CPTmvns the Project in fee simpl_e .absolute and, except fodhe permitted exceptions set forth in Exhibit 13 to the Deed, there are ho exis~ng liens, s¢qurity interests, encumbrances, agreements, encroachments,. speciai assessments~ claims, leases, tenancies, other adverseiqterests 9rdefects on or affecting the Project. (e) . -The transactions described in this Agre.ement and in the Conveyance· Documents (collectively, the ' 1 (i~~Vt!i1'~(? ·'f~ansa~tio•s"} benefit and are-in the best interests of CPT and are being entered into by CPT volqntarily and without Undue influence or duress. (£) The consideration to be receive4 by CPT in connecpon with the consummation of the Conveyance Transactions, including paymentby Bl LLC of ad vatorem taxes on. the Pr:pject: through the E(fective Date, equals Qr exceeds the value of the Pr:oj.e.¢t as of the Effective Date; iirtd CPT will not take a contrary position in a .court of law or otherwise. · (g) CPT is.a Lim,ited liability company duly organized; validly existing, and in good standing 1.lnder the laws of the ~tate of Texas• .having all powers required to carry on its business and to enter into and carry out the Conveyance Transaction's. (Ji) CPT has duly taken all action necessary to authori;l;e the exegitiori arid delivery by C:i?t of this Agreement and .the Conveyance Documents and t() authorize the consummation of the transactions contemplated thereby and the perfonnance of its obligations thereunder. · . (i) The execution, deliveiY and performance _by CPT of this Agreem.ent and the Conveyance Documents, and the consummation by CPT of the Conveyance Transactions, do not and will notc:Onflictwith anY p:tovi~ion of(A}to CPT'·S'Cl)rtent actual knowledge, anyfaw; statute, rule or regulation, (B) the organizational documents govemirtg CPT, or (C} any n; delivery oi: perfotmanc~ by CPT .o f this Agreement or any Conveyance Document or to consurtnilate any of the Conveyance Transactions. 5 MR.833 (j) This Agreement and the Conveyance Pocuments are legal, valid and binding obligations of CPT, enforceable in accordance with their respective terms. CPT will indemnify and hold Bl LLC harmless from and against any loss, damage, cost or expense, including without limitation attorneys'· fees. and expenses, incurred· by BI· LLC as a direct or• indirect ·result of• any breach .by CPT of any representations, warranties or covenants contained in this Agreement or in any of the Conveyance Documents, all of Which survive the execution and delivery ofthis Agreement and the Conveyance Documents, 5, :01 LLC's &f!r~5e'1tations "rid Warranties. BI LLC represents and warrants to C:PTthat:. (a} BI LLC is alimited liability company duly organiZed, validly existing, and in good· standing under the. laws of the State ofLouisiana,. having all powers required to carry on its business and to enter intO and carry outthe transactions contemplated by this Agreement. (b) BI LLC has taken all action necessary to authorize the execution and delivery of this Agreemertt and to authorize the consummation of the transactions contemplated hereby and the performance of its obligations hereunder~ (c) This Agreement imposes legal alld binding obligil.tions on BI LLC, enforceable in accordance with its terms. 6. 1No E¥tinau~hm~nt ot Mergeri Subses114'n~ ~orecl9sure. ·. (a) . .It Extinguisnment. Notwithstanding the releases granted by BI LLC/Batlengee in Section 2(c) and the other transactions contemplated by this Agreement, the 1Jnsecured Note and the Deed of Trust to Secure.· Assumption are to remain in full. force and effect afterthe Conveyance transil.ctions have been conslJ1l11Uated. (b) NO ;Merger. The interest of BI LLC in the Project after the Conveyance Transactions have been. consummated· do not merge with the interest .of Bl LL.¢ •in the. Project under the Deed of Trust to· Secure.Assumption. It is the express intention of each.of the Parties (and the Conveyance Documents So recite) that the interest of BI LLC in the Project under the Deed of Trust to Secure Assumption, on the.one.hand, and the interest of 81 LLC in the Project underthe Conveyance Documents, on the other hand, do not merge, butare and will remain at all times ®'131111¢ .i\WQ diSJj;UQ$ and that the liens and the security interests of BI LLC in the Project created by .the Deed of Trusno Secure Assumption remain atall times valid and continuous liens and security interests oh the Project. (c) Sul>seguent foreclosure. Nothing in this Agreement will be deemed to waive or release any rights to void the Deed thatBI LLC may have under Texas Property Code §51.006 (''§51~0061 '). BlLLC is relying ort CPTto disclosetoBll,LC all liens or encumbrances affecting the Project that may exist as of the Effective Date an.d BILLC would not have entered into this Agreement if ifcould riot so rely upon QPT. · To the extent that BI LLC, in its sole discretioµ, elects to exercise its rights under §51.006, .• CPT will execute anyinstniment rteces$ary or appropriate, as determined by• BI LLC in its .sole discretion, to· effect a· foreclosure under the Deed ofTrusqo Secure Assumption as contemplated in §51.006. 6 MR.834 7. Reinstatement If at any time this Agreement or the conveyance and transfer of the Project to BI LLC under the Conveyance Documents are restrained, enjoined, set aside, avoided or held to be invruid or l.lnenforceable for any reason, in a bankruptcy proceeding or otherwise, the11 the CPT Obligations automatically will be reinstated and all of the respective rights, privileges and duties of each of CPT and BI LLC/Ballengee related to the CPT Obligations willbe reinstated. CPT will not seek to restrain, enjoin, upset, disturb, set aside, avoid, or otherwise overturn any portion of this· Agreement or the conveyance and transfer of the Project to BILLC under the Conveyance Documents, and CPT hereby waives any rights it may have to restrain, enjoin, upset, disturb, set a8ide, avoid or otherwise overturn this Agreementor the conveyance and transfer of the ProjecttoBlLLC under the~ortveyance Doruments. .s. Miscellaneous. (~) Notices. Any notices or requests hereunder mus.t be in writing and mai.led by certified or registered m~l, return receipt requested, postage prepaid, or delivered by Federal Express or any similar overnight air courier service, addressed to BI LLC/Ballengee or CPT as follows: Ifto BI LLClBallengee: Two Turtle Creek 3838 Oa!tLawnAvenue, Suite 1150 Dallas, Texas 75219 IftoCPT:. 17950 Preston Road, Suite 1080 Dallas,.Texas 75252 or to such other addresses as may be designated from time to time by BI LLC/Ballengee or CPT in accordance with these provisions. Any such notice or request sentin accordance with these prqvisions ·wUl be .deemed. to• have been validly.and effectively delivered on the third• business day following deposifin United States mail or the first business day following deposit with · Federal Ex:press or other similar overnight air courier service. For purposes of this Agreement "business. day" means any day on which national banking associations are required and authorized to be open for ~usiness. (b) · EDtite Agreement; Nt .Rgrl!etttadons. This Agreement and the Conveyance Documents, a$ executed or amended in accordance with this Agreement, constitute the.entire under-standing and agreement among·BI LLC, Ballengee, and CPT With tespectto the matters addressed herein and therein and supersede.all.prior written or oral understandings and agreements of In LLC, Ballengee, and CPT i11 connection therewith. None of BI LLC, Ballengee or CPT are relying on any representation. warranty, indemnity or assurance, except for the represen~tions expressed in this Agreement or in any Conveyance Document, in entering into this Agreement and consummating the transactions contemplated hereby. This Agreement, ineluding with()ut limitation all representations, warranties and agreements made herein, will survive and continue to be in full force and effect following the execution of the Conveyance :Documents, any modifications and amendments thereto and any other instruments necessary to effectuate the transaction.s contemplated in this Agreement. 7 MR.835 (c) SeverabilifX. Except as set forth in Section 7 of this Agreement, in case any of the provisions ()fthis Agreement are for any reason by held to be invalid, illegal, or unenforceable; such invalidity, illegality or unenforceability will notaffect any other provision of this Agreement, and this Agreement is to be construed as if such invalid, illegal, or unenforceable provision had never been included. ·· (d) CDsg and ExQef!~D· BI LLC will pay all costs and expenses relating to this Agreement and the consummation of the transactions contemplated in this Agreement; including but. not limited· W •recording costs, title search fees and costs, and any other matters arising in connection herewith; provided, however, that each of BlLLC/Ballengee and CPT will bear alld paythe fees and eXpenses ofits own legal counsel. · (e) . APPLICABLE LAW, THIS AGREEMENT JS GOVERNED BY·AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STA'fE OF TEXAS AND THE LAWS OF THE UNITED STATES APPLICABLE TO TRANSACTIONS WITHIN THE .... ' - . - - -· ·- - - ·- ' .. ' . .. ... . STATE OF TEXAS. (:t) Sll91ess9rs and Asslgus, The ce>Venants and obligations contained in this Agreement birtd, an4 the benefits and advantages ihure to, the respective heirs, personal representatives, successors, and assigns ofBI LLC,13allengee, and CPT. . (g) Exhibits. ·The foHowirtg exhibits to this Agreement are incorporated hereifi and made a part heiOOf: A Legal Description B Deed C General Assignment (h) MultiPle CmmterPartS. This Agreement may be executed· in multiple counterparts, each of which constitutes all. original, but all of which together constitute one agreement. (REMAINDER OF PAGE INTENTIONALLY LEFTBLANK.] 8 MR.836 EXECUTED as of the Effective Date. BILLC: BALLENGEE INTERESTS, LLC, a Louisiana limited liability com .any ;k . [Signature Page - Conveyance Agreement] MR.837 [Signature Page - Conveyance Agreement] MR.838 EXHIBIT A LEGALDESCRIPTIQN BEING A TRACT OF LAND LOCATED IN SECTIONS 73 AND 76, BLOCK 4, H&GN RAILROAD COMP ANY SURVEY, REEVES COUNTY, TEXAS, AND BEING COMPOSED OF THE f'OLLOWING: A PART OF A CALLED 84.2 ACRE TRACT OF LAND AS DESCRIBED IN A.DEED RECORDED IN VOLUME 860, PAGE 8Z, OFFICIAL PUBLIC RECORDS, REEVES COtJNTY, TEXAS (0.P,R.R.C.T.); A PART OF THE NORTIIWI!:ST QUARTER OF SAil) SECTION 73 AS DESCRIBED IN A DEED RECORDED IN VOLUME> 825, PAGE 784 OF SAID O.P.R.R.C.T.; AND ALL OFA CALLED 109.SS ACRETRACT OF LAND AS DESCI@ED IN A DEED RECORDED IN VOLUME 1080, PAGE 17 OF SAID O.P.R.R.C.T., AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A 5/8" IRON ROD FOUND WITH CAP STAMPED "TRANS TEXAS SURVEYING'' IN THE NORTII LINE OF THE T&P RAILROAD COMPANY RIGHT-OF- WAY AT THE SOUTHWEST CORNER OF TIIB SAID 109.58 ACRE TRAC'I' AND THE SOUTHEAST CORNER OF THAT 176.659 ACRETRACT.OFl.;AND AS DESCRIBED INA DEED RECORDED IN INST. No. 14-03664 OF SAID O.P.R.R.C.T. FORTHE SOUTHWEST CORNER OF 'THE HEREIN DESCRIBED TRACT··' .. .- - ' . - - THEN(;E N 3~00S'23'' W, WITII TFIEWEST LJNE OFTHE SAID 109.58 ACRE TRACT AND THE EAST.LINE OF THE SAID 176.659.ACRE 1.'RACT, A DISTANCE OF 1537.04 FEET TO A POINJFORTFIE NORTIIWEST CORNER OF THE SAID 109.S8ACRE TRACT AND THE SOOTFIWEST .CORNER OF THAT 100.00 ACRE TRACT OF LAND DESCRIBED AS A SAVE AND EXCEPT TR.ACT IN A DEED RECORDED IN VOLUME 1006, PAGE l. OF SAID .OJ>,RR.C.T. FOR THE MOST SOUTHERLY NORTHWEST CORNER OF THE HEREIN DESCRIBED TRACT FROM• WHICH .A 1/2" IRON ROD FOUND WITH CAP STAMPED ''TRUJILLO RPLS .5358'' BEARS s .58(>03'30" w A DISTANCEOF 0.91 FEET; THENCEN 58(>03'30" E, Willi THE NORTH LINE OF THE SAID 109.58 ACRE TRACT AND THE SOUTH QF THE SAID 100.00 ACRE TRACT, AT A DISTANCE OF 2639,.42 FEET PASSING A 1/2" IRON ROD FOUND WITH CAP ST AMPED '''I'RU.Tit,t,() RPLS 5358", IN ALL A TOTAL DISTANCE OF 2639:92 .FEET TO A POINT IN THE COMMON LINE OF SAID SECTION 76 AND SAID SECTION 73 FOR THE NORTHEAST CORNER OF THE SAID 10958 ACRE TRACT AND THE SOUTHEAST CORNER OF THE SAID 100.00 ACRE TRACT; BEING ALSO THE SOUTHWEST CORNER OF A 20.000 ACRE TRACT 0}' LAND uns ])ATE SURVEYED; THENCE CROSSING Tiffi NORTHWEST QUARTER OF SAID SECTION 73 WITH THE SOUTH AND EAST LINE QF 1'flE SAID 20.000 ACRE TRACT OF LAND THIS DATE SURVEYED, THE FQLLOWINGBEARING AND DISTANCES: N 58°03'30" E, A DISTANCE OF 527.87 FEET TO A 5/8"JRON ROD SET WITII CAP STAMPED "TRANS TEXAS SURVEYING" FOR THE SOUTHEAST CORNER OF THE A-1 MR.839 SAID 20.000 ACRE TRACT AND AN INTERIOR CORNER OF THE HEREIN DESCRIBED TRACT; N 32°.08'32" W, ADISTANCE OF 1650.40 FEET TO A5/8" IRON ROD SET WITH CAP STAMPED "'I'RANS TEXAS SURVEYING" IN THE COMMONLINE OF SAID SECTION 73 AND SECTION 74 OF SAID BLOCK 4, H&GN RAILROAD COMPANY SURVEY AND THE SOUTH LINE OF COuNTY ROAD NO, 404 FOR TIIB NORTHEAST CORNER OF THE SAJI)20.000 A.CRE TRACT AND THE MOST NORTHERLY NORTHWEST CORNER OF TIIE HEREIN DESCRIBED TRACT; 'fHENCE N 58°03'46" E, .WITH THE COMMON LINE OF SAID SECTION 73 AND SAID SECTION74 AND THE SOUTHLJ:NE OF SAID COUNTYROAIJ NO. 404, PASSING AT A DISTANCE OF 2034.62 FEET A 518'; IRON ROD SET WITH CAP STAMPED "TRANS TEXAS SURVEYING'' IN 'I'HE WEST RIGHT-OF-WAY LINE OF F.M. HIGHWAY NO. 2ll9, IN ALL A TOTAL DISTANCE OF 2117.21 FEET TO A POINT FOR THE NORTIIEA.ST CORNER OF SAID N()RTHWEST QUARTER AND THE NORTHWEST CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 73 AND FOR THE NORTHEAST COR.$R OF THE HEREIN PESCR!BED TRACT, FROM WHICH A 1/2'' illON ROD FOuND WITH CAP AT THE NORTHEAST CORNEJl OF SAID SECTION 73 BEARS N 58°03'46" E,A DISTANCE OF 2645.08 FEET; THENCE S 32°08;42'' E, WITH THEEASTLINE OF THESAID NORTHWEST QUARTER AND THE WEST LINE OF THE SAID NORTHEAST QUARTER OF SAID. SECTION 73, A DISTANCE OF 2645.36 FEET to A POINT FOR TIIE FOR THE SOUTHEAST CORNER OF.THE SAID N()RTliWEST QUARTER AND 1HE soUfHWEST CORNER OF Tf{E SAID SOUTHEAST QUARTER OF SAID SECTION 73 AND BEING IN THE NORTH LINE OF TIIE SOUTH HALF OF SAID SECTION 73 AND THE NORTH LINE OF A CALLEO 120 ACRE iRAC'f OF LAND DESCRlBED INA DEED RECORDED IN VOLUME 122~ PAGE 521.,_,: DEED RECORDS· OF REEVES COUNTY' TEXAS FOR THE MOST NORTHERLY : . ': ' ' :· ... :: . ·: : :· _- :. . : .:: - ' ·: - - .: ' ' ' ·:. - - - .. _.. .. -;· ' . ' - : SOUTI!EAST CORNER OF TIIE HEREIN DESCRIBED TRACT; THENCE S 58°01 '36'' W, WITH THE SOUTH LINE OF rIIE SAID NORTHWEST QUARTER AND THE NORTH LINE OFTHE SAID 120 ACRE TRACT, A DISTANCE OF 13.20FEET TOA POINT FOR TBE NORTIIEAST CORNER OF THE SAID 84.2 ACRE TRACT AND THE NORTHWEST QOkNER; OF THE SAID 120 ACRE TRACT FOR AN INTERIOR CORNER OF 1'HE HEREIN DESCRIBED TRACT·'' . : . . . ' ' ' - ' - - -- - . '.__ . ' ' ' THENCES 32°08'42'' E, WITH THE EAST LINE OF TI.IE SAID 84.2 ACRE 1RACT AND THE WEST LINEOF THE SAID 120 ACRE TRACT A DISTANCE OF 1.61 FEET TO A P()INT FOR; tHE NORTHEAST CORNER OF A 33.QOO ACllE TRACT TIDS DATE SURVEYED AND A SOtJTFffiASt CORNER OF THE HEREIN DESCRIBED TRACT; THENCE CROSSING THE SAID 84.2 AC.RE TR.ACT WITH THE NORTH AND WEST LINE OF THE SAID 33.000 ACRE TRACT OF LAND TIIlS DATE SURVEYED, tHE FOLLOWING BEARINGAND DISTANCES: A-2 MR.840 S 58°03'32" W; AT ADISTANCE OF 61.35 FEET PASSING A 112" IRON ROD FOUND WITH. CAP STAMPED "TRUJILLO RPLS 5358"; AT A .DISTANCE OF 61.51 FEET PASSING THE WEST RIGHT-OF-WAY LINE OF SAID F,M. HIGHWAY NO. 2119, IN ALL A TOTAL DISTANCE OF933 .83 FEET TO A 5/8; IRON ROD SET FOR THE NORTHWEST CORNER OF . THE . SAID . .. ' 33.000 ACRE TRACT AND AN INTERIOR CORNER OF THE HEREIN DESCRIBED.TRACT; $31°43'00" E, ADlStANCEOF 1432.68 FEET TOA 5/8" IRON ROD SET IN THE NOR.TI! LINE OFTHE SA.ID T&P RAILROAD RIGHT-OF-WAY FOR THE SOUTHWEST CORNER OF THE :-: :··- : ·: SA.II) :-:· _. :: 33.000. ACRE - . . ·: ... ._- - __ TRACT .. .. '·_ AND :·' ' .THE MOST SOUTHERLY ' . .. . . .. . SOUTIIEAST . . . . . .. ' ' CORNER OF THE HEREIN DESCRIBED TRACT; THENCE S 699 42'07" W, WITH THE NORTH LINE OF THE SAID T&:P RAJLROA.D COMPANY RIGHT..OF..WAY, A DISTANCE OF 4421.63 FEET TO THE PLACE OF BEGINNil~U ANIJ CONTAINING 299.325 ACRES OF LAND. A-3 MR.841             ([KLELW³,,´ MR.842 ASSIGNMENT OF PERSONAL.PROPEftT\'\. . WARRANTIES AND LEASES STATE OF TEXAS § § COUNTY OF REEVES § CENTURION PECOS TERMINAL.LLC, a Texas limited liability company (''Grantor"), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, has Granted, Sold, Assigned~ Transferred, Conveyed, and Delivered and does:by th.ese presents Grant~ Sell, A~sign, Transfer, Convey and Deliver l;lilto BALLENGEE INTERESTS, LtC, a Louisiana limited Jiability company (''Gr3n!AA~'), all of Grantor's rights, titles, andinterests in'and to the following descdbed properties located cm, affixed to; and/or arising or used ih connection with the·tract of land 'in Reeves County, Texas that is more particularly described QI1 ~~W~~tA attached hereto and made a part hereof for alLpurposes·(the "Land"): l. All fixtures, equipment;.machinery, building materials, furniture, furnishings, and otherpersonal property~ tangible or intangible, owned by Grantor (the ·~Pe[ional.Proue&tt''), and located on, attached·to, or used in connection with the operation and maintenance qfth~ Land; 2. Ajiy leases fot a11 or any portion, of~e Land (the ~'Leases"'), together with security and other deposits owned ot held by Grantor pursuant to the Leases; and 3. Any assignable warranties and guaranties relating to the Land and/or the Personal Prop~rty (collectively, the ''W.arrantie5''). · · · This Assignnient may be executed in multiple counterparts, each of which constitutes an original. but all ofwhich together constitute one agteement IN WITNESS, WHEREOF, Gtantor ijtld Grantee have executed this Assigmnent of Personal .Property~ Wan-arities a.tid L®.ses as of May 26, 2016.. [Remainder ofpage intentionally left blank] EXHIBIT :l )J__ MR.843 GRANTOR~ GRANTEE: BALLENGEE INTERESTS, LLC, a Louisi.ana limited liability company By: .,....._.~-.-.---....................~~~~---.-..,...,.,.,. James H. Ballengee, Manager Exhibit A - Legal Description of the Land 2 MR.844 GRANTOR: CENTURION PECOS TERMINAL LLC, a Texas limited liability company Name: -----~---c:-------, Title:-------..------~-- GRANTEE: BALLENGEE INTERESTS, LLC, a Louisiana limited liability comp~· y . ' Ex ibit A - Legal Description of the Land 2 MR.845 Exhibit A To General Assignment BEING a tract ofland located in Section 76, Block 4, H&GN Survey, Reeves County, Texas, and being a part ()fa called 496.76 GRID(496.87 Surface) acre tract of land as described in a Deed recorded in Vohu11e 905, Page 155, Official Public Records; Reeves County, Texas (0,P;R.R.C.T.), and being more particularly described as follows: BEGINNING ata 5/8 inch iron rod set with cap stamped "TRANS TEXAS SURVEYING" for the Northwest corner of saidSection 76; the Southwest comer of said Section 75~ the Northeast corner of Section 77 !ill.d the Southeast corner of Section 78, said 5/8 inch iron rod set also being in the intersectio11ofCounty Road No. 408 and County Road No. 404; THENCE North 58 degrees 03 minutes 46 seconds East, with the commo11 Hne of said Section 76 and Section75; a distance of2639.85 feet to apointin the East line of said 496.76 acre tract from which a 1/2 inchiron ro<.i found with cap stamped '"5358 TRUJILLO» bears South 58 degrees 03 minutes 46.secortds West, a distance of0;63 feet, also froinwhich a 1/2 irich iron rod found at the .·Northeast comer of said Section 76, Block 4, .bears North 58 degrees 03 •minutes 46 seconds East,. a distance of2639.85 feet; THENCE South 32 degrees 08 minutes 23 seconds East, with the East line of said 496.76 acre tract, a distance of3187.68 feet to a 5/8 inch iron rod set with cap stamped ''TRANS TEXAS ·SURVEYING'? for the Southeast corner of said 496.76 acre tractheing 100 feet North Clfthe centerline ofthe·Texas•& Pacific Railroad; THENCE. South 69 degrees 42 minutes 22. seconds West, with the· South line of said 496. 76 acre tract.and 100 feet North of and parallel with the centerline of said Texas & ·Pacific Railroad, a distance of2697AO feetto a pohlt in said County Road NoA08, the West line of said Section 16 and the East line of Section 77, Bfock 4, from which a 600 nail found bears South 69 degrees 42 minutes 22 seconds West, a distance of0.37 feet, also .from 'Which a 1/2 inch iron rod found for the Southwest comer of said Section 76, Block 4, bears South32 degrees 08 minutes 13 seconds East, a distance of 2657.42 feet; THENCE North 32 degrees 08 minutes 13 ·seconds West, with the West line ofsaid 496.76 acre tract and with the· coIIlJ.)lon line of said Section 76 and said. Section 77, a distance of 2643.29 feet to the PLACE OF BEGI~'NING and CONTAINING 176.659 acres ofland. MR.846             ([KLELW³--´ MR.847 :ASSIONNIEN'f•.·OF·.P~1lSO:NAL.PlOJ!~llTYi . . . .WAJlRANTIES ANDL:EAa:E§ STATE OF TEXAS § § COUNTY OF REEVES § CENTORlO'N" PECOS·TERMINAL LLC, a Texas limited liability col.llpany ("n with the tract ofland in Reeves County, Texas that is mo!e particularly described on §~J~ibit A.attach.ed.hereto and m~de apiU't }teteoffot ali purposes (the "Land''): · 1. All fixtures, equipment, machinery, building materials, .furniture, furnishings,.and other p~rsonalproj>erty; tangible odnta'Q.gible, owrted l)y Grantor (the '~Petsonai Probeffl?')i and located on; a~ched to,.or u$~ in connection withtli~ operati()ll and maintenance ofthe Land; 2.. Ariy leases,for .afi.01' anY poi;tion of the.Land (the ''Leases"), together With secµrity and other deposits owned·or held'. by Grantor pursuant to the Leases;.and 3~ Any assignable warranties and guaranties :relating to the:Lan4 and/or the Personal Property (colleetively. the ''~ari~an~ies''). This Assignm,ent may he executed in multiple Col.Ulterparts> ea~h of whfoh con$ti'tutes an original, 'but all of' which together constitute one agreemeµt. rN WtrN'.ESS WJIEREOF) (tnmtor· (Uld Gtantee .ha:ve executed tllls Assignn:teilt .uf Personal 'Property1 Wan;arities and teases as of May 26, iOlB. [:Remainder ofpage 1nt~ntionallyl~f1 blank] .EXHIBIT I. Jo MR.848 GRANTOR: CENTURIQNPECOS TBBM~AL LLC, aT~iJY¢Q ' y ' " J By:~--., . .·. . ;.,,.._·' . ·... ·.. ··.· .. /''· ' Name: _-·_ J:il$z/ .&tz .ex•_ Title: ~~·tjk. W~ __ GRANTEE: BALLENGEE INTERESTS, LLC, a Louisiana limited liability company By:__,,,--~~~--.~,__-,-_,.,.,..,.....__,~~ James H. Ballengee, Manager Exhibit A -Legal Description of the Land 2 MR.849 GRANTOR! CENTURION PECOS TERMINAL LLC, a Texas limited liability company By: ·----------~--- Title: -------------~-- GRANTEE: BALLENGEE INTERESTS, LLC, • LouIBWna 1imired;b, 7 y By: a ~~ J es It: allengE:b "·T. RUJILLORPLS53,58'~BEARS-8 . . . . . . . 58°03'30''W .. ADISTANCEOF0.91 . . . FEET· . . . . . ~ THENCE N58°03'30" E~ WI'ttt. THE NO,RTHLINE OF THE'SA.ID 10~'.58AQRETRA(T .AND THE .. - SOUTHOF .... - THE SAID 100;00ACRETRACT ' . , _ATADISTANCEOF - .: . . .. - 2639.42 FEET - ··- - .. · .-,. . . . , .· ,· .. ' -- - -. . . - - ' ., ' , ,, ' '' ,,. ,, _, , .. · . - ' . - ,, •, , ,.· . __ . - ,.· _ , _, ._ ' PASSING .... ·.: . A l/2"IR.ON -- - ROD FOUND WITH: ' CAP STAMPED- - "TRUJILLO RPI.$ ~--. 5:358'' '" '. IN ·. .-. .. -. :· . •. .. : . .. . . ·- ' . _: .· . . . . -· . . - ,.. - ; . ·.: . . _ . ·-: . ALL A TOTAL DISTANCE OF 2()39.n FEET TO A POINT IN THE COMM.ON LINE OF SAID SECTION 76 AND SAID SECTION 73 FOR THE NORTHEAST CORNER OF THE -sAID 109.58 ACRE TRACTAND THE SOUTHEAST CORNER OF THE SAID 100;00 ACRE -TRAC'!\ BEINGALSOTHESOUTITTVEST CORNER OF A20.000 ACRETRACT OF LAND THIS~ DATE SURVEYED' " . ·' . . . _ _, . THENC:t;: CROSSING Tl!E NC)l{'[HWEST QU.ARTER OF SAID SECTION 73: \VItH THE SbUtH AND EAST LINE OF THE SAID .20.000 ACRE TRACT OF LAND THIS DATE SURVEYED, THE FOLLOWING BEARING ANP DJSTA.NCES: N $8°03'30'' ~~. A QIS)'ANCE OF 521;81 FEET TUA 5/8;, IRON ROD SET WITH CA1? STAMPED "TRANS TEXAS SORVEYINO" FOR THE SOUTHEAST CORNER QF THE SAID 20,000 ACRE •'·:. ... . TRACT AND AN INTERIOR CORNER OF THE ' •. .. HEREINDESCRIBED : :.· . . -·- .. - . ·· ' - . ·- ·-.- . ·.· • · • · . ''''' . ' . . ' .. · . . . - . . . . .. TR.ACT; MR.851 N 32°08'3i' w. A:DISTANCE OF 1650.40 FEET TO A 5/8'' IRON ROD SET WitH CAP STAMPED "TRANS TEXAS SURVEYING'' iN THE:COMMONLINE OF SAID SECTION73 AND SECTION 740F. SAID . BLOCK -· 4' H&GNRAILROAD COMPANY SURVEY AND THE . . .. .. . ' ' ' . - ' . . - - . . .. . " SOUTifLINEOFCOUNTYROADN0.404FORTHENORTHEASTCORNEROFTHiJSAID 20.000ACRETRAQT A,NO THE MOST NORTHERLY NORTHWEST CORNER OF THE HEREIN DESCRIBED .. . . tllACT· .. . ' .. .. . ' ' · -~ THENCE N 58 9 03' 46'' E, WITH TfIE COMMON LINE OF SAID SECTION 73 :AND SAID SECTION 74 ~D THE SQl]J:H LINEOF SAID couNtY ROAD NO. 404, PA$S!NGAT A DISTANCE: OF .2034;62 .FEET A 5/8'·' IRON ROD SET WITH CAP .STAMPED ''TRANS rExAs suRvEYING" IN T:HE WEsT ruGI-lr~ov-WAY LJ'NnoF:F.M,.H1GHwAYNO, 2119, IN ALLA TOTAL DISTANCE OF 2117.21 FEET TO A POINT FOR THE NORTHEAST CORNER OF sA.IDNPRTHWEST QUA.:RTER AND THE NOR1ltWEST CORNER OF THE NORTHEAST QUARTER OF SA.IO SECTION 73 AND FOR TH~ NORTHEAST CORNER OF TH:E HE~IN DESC.RIBED TRACT, FROM Wf!ICH A 1/2" .IRON ROD FOUND WITH CAP AT THE NORTHEAST CORNER OF SAID SECTION 73 BEARS N 58°03'46": E, A DISTANCEOF2645~Q8 FEET~ THENCE.s 326Q8'42'' E, wrra THE·EA.ST LINE oF tttE sAlIJNORTHwEsT QUARTER AND THE WEST LINE OF THE S.AID NORTHEAST QUARTER OF SAIJJ .SECTI()N 73, A OISTANCE OF 2645.36 FEETTO A POINT FOR THE FOR ·tHE·soUTHEAST COJWER OF THE S.AJD NORTHWEST QUARTER AND THE SOUTHWEST CORNER OF THE SA.ID SOUJHEASTQUARTER OF SAI)) &ECTION. 73 ;\ND 8EING IN THENORTH LINEOF TIIE SOUTfI }{ALF ()F SAJP SECTION 73 AND Tl!E>NOR.Tl;I LINE OF A CALLED 120 .ACRE TRACT QF LAND _DESCRJB·ED· IN A DEED REGOR.DEP IN VOLUrvrE 122, ~AGE 521 - ' DEED RECORDS . ' · OF :. REEVES . . -· COUNTY ·. " ·' TEXAS FOR THE MOST ..· . . NORTHERLY - -. - . . ·. . . . .. ;. . . ' . ' ' " ·, . . . ' '- · .· · ..· . . . . . ~ ··SOUTHEAST CORNER ()FTHE HEREIN DESCRIBED TRACT; THENCES.58°0l'36''W; WITfltEESOUTHLINEOF-THESAIDNORTHWESTQUAR:'J1ER AND TI-IE NORTH LINE OF THE SAID 120 i\CRETRACT, A DISTANCE OF 13.20 FEET to A POlNTFORTHENbi.tf'HEAST CORNER OF THE SAID 84.2 ACRE TRACT AND THE NORTHWEST COWER OF 1'1-IE SAID 1io ACRE TR;ACT FOR AN INTERlOR CORNER OF THE HEREINI?ESGRIBED TRACT;- THENCE s·32°08'42" E; WITH THE EAST L!NE OF THE SAID 84.2 ACRE TRACT AND THE WEST LINE OFTHE SAID 120 ACRE.TRACT A DISTANCE OF l.61 FEET TO A P.OINT FOR THE NORTHEAST CORNER OF A 33.000 .ACRE TRACT THIS DATE SUR:VEYBDAND - - . ASOUTHEASTCORNEROF . -. .- - THE HEREIN . . DESCRIBED - TRACT'. . . ' .. .~ ' " - ' . . . :. . .·. . . THENCE : .. CROSSiNG THE SAID 84.2 ACRE TRACT WITH THE NORTH AND WEST LINE - .: ' ·: - . --- _. - . -.·· · .· · " ·. . - -. - - - ·• . .. ' · ·- - -. . -- - : : ·· . . .. ' .... ,. - . - . ,- OF TI-IE SAID 33;000 ACRE TRACT OF LAND THIS DATE SURVEYED, THE-FOLLOWING BEARING AND DISTANCES: S- 58°03.'32" . . :.· W ATA .::· ' <: -:: .' DISTANCE - · -· . - ''. ·: OF . 61.35 ·: FEET : ·. PASSING - : -: A 112" ' .· -. ·. IRON ROD . . FOUND : WITH . CAP STAMPED '!TRUJILLO RPLS 5358'~, AT A OISTANCE OF 61.51 FEET PASSING THE MR.852 WEST R.l(THT-QF-WAY LINE OF -SAID F.M. HIGHWAY NO; 2119~ IN ALL A TOTAL DISTANCEOF 933.$3 FEETTO AS/8' IRONROD SET FOR THE NORTHWEST CORNER OF THE SAID 33.000 ACRE TRACT AND AN IN:IBRIOR CORNER OF THE HEREIN' DESCRIBED TRACT· ' . .· .. ' ' .. . S 31°43' 00"-E, Al)ISTANCE OF 1432.68 FEET TOA 5/8" IRON ROD SET IN THE NORTH LINEOF THE SAID T&P RAILROAD RIGHT-OF-WAY FOR THE SOUTHWEST CORNER OF THIE SAID 33-.000 ACRE TRACT AND THE -MOST SOUTHERLY SOUTHEAST CORNER ·. . OF THE HEREIN DESCRIBED- TRACT· .. · - . . . ' ' ·' .. - . .- . . .· . . THENCE-S ·. .·. : 69~42'{!7" W,• WITH ' THE NORTH .. ·. . . LINE OF THE SAID T&P RAILROAD : : : -- - · .. . .. _ : . . ' . . ' . ' ' ., . ·. COMPANYRIGHT'-Of;.WAY,ADISTANCROF 4421.63 FEET TO THEPLACE OF BEGINNING AND CONTAINING 299.325 ACRES OF LAND. MR.853             ([KLELW³..´ MR.854 10/19/2017 Jup1terMLP H( ·~ 11 JUPITER MLP The Premier High Gravity Solution Mission To provide our customers with the best crude oil marketing, logistics. and processing solutions. Jup1terMLP LLC is a privale company that provides crude oil producers and gas plants with off take and logistics solutions. Jupiter's strategically located terminals in the Permian Basin connect to Gull Coast relining markets by utilizing our trucks and third.party pipelines. with our primary focus being in the https://www.1up1termlp.com/ MR.855 1/4 10/19/2017 JupiterMLP Delaware Basin. OPERATIONS ;· .......... l,.,......_._-.,.,. '"'"'-:::::\#~ · ~ ~ •; Click Image to Enlarge Clitk Image to Enlarge WEST TEXAS & NEW MEXICO JUPITER JUPITER CRUDE MARKETING & LOGISTICS PIPELINE UPGRADING, PROCESSING & EXPORT TERMINAL Jup1ter 1s an active first purchaser of both Jupiter Is constructing a 670+ mile. high & low gravity crude and plant dedicated high gravity crude oil pipeline Jupiter 1s constructing a crude condensate in New Mexico and West that originates in Orta, Texas, upgrading, processing and export Texas. Through acquisitions of Permian with additional inject and offtake points at terminal on approximately 270 acres of Crude Transport (PCT), based In Pecos and Three Rivers. Texas. The land located in the Pon of Brownsville, Midland, TX, & Remuda Energy pipeline terminates 1n the Port of Texas. This facility 1s designed Transportation. based in Artesia, NM, Brownsv'ille at the Jupiter specifically to process and upgrade high Jupiter Transport owns and operate~ a Crude Upgrading, Processing and gravity crude (46+ API). fteet of crude oi l. NGL and water trucks . Export Terminal. Key Features: Jupiter owns 10 propnetary pipeline • Expected start-up In 40 2019 • Capable of producing Ultra low inJechon stations, and the Company has • 46+ API Gravity Sulfur Diesel (ULSD). gasoline & access to an additional 25+ leased • Batch Capable Atmospheric Gas Oil (AGO ) pipeline injection stations that provide • Direct connection in to the Kinder • Up to 1O million barrels of storage injection capabilfty to all maJOt pipelines Morgan's Double Eagle & Kinde1 • Deep water dock access (42 lt draft) 1n the Permian Basfn. Morgan Crude & Condensate • Fully intermodal solution Pipeline Systems o Pipeline served Beyond the Permian Basin, Jupiter • This is the only Permian pipeline with o Ocean going vessels Markeung & Trading buys crude oil and direct access to all three maier Texas a Unit tram & manifest rail refi ned products which are sold in both deep water ports (Houston Corpus o Truck loading domestic and international markets. Christi, Brownsville ) https://www.jupitermlp.com/ MR.856 2/4 10/19/2017 JupiterMLP Projected ln-st.lQ. flr~upiter Pipeline c:ZtQ & Jupiter Crude Upgrading, Processing & Export Terminal NEWS There are no 11ems 1n this t1s1 CONTACT Addlso11 Airµort Jup1terMLP y Mus~um ... -I ~, ''l ' <.J . ·-..;.. e l,;i I =i,if'_t I '<'; ;, ,, 'r '.J ·-. fl.!A'MCAR .~ ;o· ?" ·~ SQOAf!> ·' ..[,. '·i.o ~ "' ~"' t~4 _ ..... .; '•. .: ~ soom Map . Report a map en or Inquiries Dallas Office For any inquiries. fill out the following form: 15851 Dallas Parkway Suite 650 Addison , TX 75001 Name Houston Office EmaII 440 Lou1s1ana Street Suite 700 Sub1ect Houston. TX 77002 Message Midland Office 200 W Illinois Street Suite 200 Midland. TX 79701 S:-11d https://www.jupitermlp.com/ MR.857 3/4 10/19/2017 Jup1terMLP htlps·//www 1up1termlp.com/ MR.858 414 FILED DALLAS COUNTY 12/12/2017 6:59 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-16-07706 CENTURION LOGISTICS LLC, § IN THE DISTRICT COURT OF individually and derivatively on behalf of § CENTURION PECOS TERMINAL LLC, § a Texas Limited Liability Company, § § Plaintiffs, § § v. § § JAMES BALLENGEE, BALLENGEE § INTERESTS, LLC, JOHN CALCE, § DALLAS COUNTY, TEXAS STAMPEDE TX ENERGY, LLC, § CENTURION MIDSTREAM GROUP, § LLC, CENTURION TERMINALS, LLC § § Defendants, § § and CENTURION PECOS TERMINAL § LLC, a Texas Limited Liability Company § § Nominal Defendant. § 44th JUDICIAL DISTRICT 1 JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC TO THE HONORABLE COURT: Defendant/Counter-Plaintiff John Calce (“Calce”) files this Reply Brief in support of Calce’s Amended Motion for Partial Summary Judgment (the “Motion”) regarding his Counterclaim against Plaintiff/Counter-Defendant Centurion Logistics LLC (“Centurion Logistics”) and, in support thereof, would respectfully show the Court as follows: 1 On November 8, 2017, after the deadline to add additional parties, Centurion Logistics filed its Motion for Leave to File Amended Petition seeking to add six additional defendants (the “Potential Defendants”). To Calce’s knowledge, the Court has not granted Centurion Logistics’ request. Notwithstanding the lack of an order granting leave, in its Response, Centurion Logistics added the Potential Defendants to the style of the case. It appears that Centurion Logistics has also caused citation to be issued for the Potential Defendants. Calce objects to Centurion Logistics adding any additional parties without first obtaining leave of Court in accordance with the Scheduling Order. JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 1 9569942.1/SP/40086/0102/121217 MR.859 SUMMARY OF REPLY In an effort to cloud a simple issue, Centurion Logistics filed a lengthy Response accompanied by a legion of irrelevant exhibits. The Motion, on the other hand, is straight- forward and supports Calce’s right to advancement/reimbursement of his defense costs. The purpose of this Reply is to refocus the issues and clarify some of the misstatements set forth in Centurion Logistics’ Response. ARGUMENT AND AUTHORITIES 1. Calce does not have to show that he is entitled to indemnification to establish his right to advancement/reimbursement of defense costs. The right to advancement/reimbursement of expenses and the right to indemnification are separate and distinct legal concepts. See the Motion § A; see also In re Aguilar, 344 S.W.3d 41, 46 (Tex. App.—El Paso 2011, orig. proceeding) (providing that “[a]lthough the right to indemnification and advancement are correlative, they are separate and distinct legal actions”). In its Response, Centurion Logistics badly conflates the two concepts—specifically with respect to the applicable standards for each. 2 Centurion Logistics correctly notes that Calce is only entitled to indemnification for “Damages arising from any Proceeding relating to the conduct of [Centurion Logistics’] business or to any act or omission by such Indemnified Person within the scope of the Indemnified Person’s authority in the course of [Centurion Logistics’] business . . . .” 3 That is the standard 2 Centurion Logistics instructs the Court to employ a duty to defend analysis when determining the Motion. See, e.g., Pl.’s Response ¶ 34. Any discussion regarding the duty to defend is a red herring. Calce is not asking Centurion Logistics to assume his defense. He is seeking enforcement of his contractual entitlement to advancement/reimbursement of his defense costs. The Aguilar court did not perform a duty to defend analysis when determining the same issue that is now before the Court. That concept is equally inapplicable here. 3 See the Company Agreement of Centurion Logistics (the “Agreement”), which is attached to the Motion as Exhibit A-1, at Section 6.2. JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 2 9569942.1/SP/40086/0102/121217 MR.860 for indemnification. But it is not the standard for advancement/reimbursement of defense costs. Section 6.2 of the Agreement addresses advancement/reimbursement by providing that “[a]n Indemnified Person’s expenses paid or incurred in defending itself against any Proceeding shall be reimbursed as paid or incurred.” 4 Calce is therefore entitled to reimbursement/advancement of the “expenses” he pays or incurs in defending himself so long as he is an “Indemnified Person” and this lawsuit constitutes a “Proceeding” (as those terms are defined in the Agreement). 5 Centurion Logistics does not dispute that Calce is an “Indemnified Person” and that this lawsuit constitutes a “Proceeding” under the Agreement. 6 Accordingly, there should be no dispute that Calce is entitled to advancement/reimbursement of the “expenses” he pays or incurs in defending himself in this lawsuit. Centurion Logistics contends, however, that Calce must prove his right to indemnification in order to establish his entitlement to advancement/reimbursement of defense costs. That is simply wrong. See Aguilar, 344 S.W.3d at 46 (providing that “[t]he right to advancement is not dependent on the right to indemnification”) (emphasis added). Requiring Calce to establish his right to indemnification before granting his contractual entitlement to reimbursement of defense costs (as such costs are paid or incurred) would eliminate the purpose/benefit of his right to advancement/reimbursement. See id. at 55 (providing that [b]y its very nature, advancement of 4 See Ex. A-1 to the Motion at Section 6.2. 5 See Ex. A-1 to the Motion at Section 6.2. 6 See Ex. C to the Motion at 2. JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 3 9569942.1/SP/40086/0102/121217 MR.861 expenses can occur only during the course of the trial court proceedings” and that “[i]t is indemnification of expenses that occurs at the conclusion of the case”). 7 2. Calce’s “expenses” include his attorneys’ fees. Centurion Logistics claims that the term “expenses,” as used in Section 6.2 of the Agreement does not include attorneys’ fees. Aguilar squarely addressed and rejected this argument. See Aguilar, 344 S.W.3d at 51. Moreover, Centurion Logistics completely ignores the fact that Section 8.001 of the TBOC defines the term “expenses” to include “reasonable attorney’s fees.” See TEX. BUS. ORGS. CODE § 8.001(3)(B). As stated in Aguilar, Centurion Logistics’ interpretation would render the relevant language in Section 6.2 “insignificant and practically useless.” See Aguilar, 344 S.W.3d at 51. Such an interpretation cannot stand under Texas law. See Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 668 n.27 (Tex. 2008) (providing that “[w]e cannot adopt a construction that renders any portion of a policy meaningless, useless, or inexplicable.”) 3. Centurion Logistics’ attempt to distinguish Aguilar is unpersuasive. Centurion Logistics urges the Court to ignore Aguilar, which is directly on-point and supports Calce’s entitlement to advancement/reimbursement of defense costs. Centurion Logistics claims that Aguilar is inapplicable because the Aguilar court was tasked with interpreting bylaws and, therefore, did not apply rules of contract interpretation. See Pl.’s Resp. ¶ 37. This contention is false. 7 Centurion Logistics argues that following Aguilar “would generate some absurd outcomes, namely, that Centurion Logistics would owe Calce reimbursement for a host of potential lawsuits that are entirely unrelated to Centurion Logistics.” See Pl.’s Response ¶ 60. This hypothetical fear need not be addressed here as it is undisputed that this lawsuit constitutes a “Proceeding” under the Agreement. Moreover, this is the exact type of case—one in which the corporation is suing an official for breach of fiduciary duty— where “the right to advancement attaches most strongly.” See Aguilar, 344 S.W.3d at 47; see also Pl.’s Orig. Pet ¶¶ 36 – 42. JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 4 9569942.1/SP/40086/0102/121217 MR.862 Aguilar explicitly states that “[i]n construing the bylaws, we apply the rules that govern the interpretation of contracts.” See Aguilar, 344 S.W.3d at 49. Multiple appellate courts have cited Aguilar for this exact proposition. See, e.g., Arch Ins. Co. v. U.S. Youth Soccer Ass’n, No. 05-12-00596-CV, 2014 Tex. App. LEXIS 5068, at *13 (Tex. App.—Dallas May 12, 2014, no pet.); Evans v. Davis, No. 14-12-01053-CV, 2013 Tex. App. LEXIS 14122, at *9 (Tex. App.— Houston [14th Dist.] Nov. 19, 2013, no pet.). This transparently weak attempt to distinguish and cast doubt on the validity/applicability of the Aguilar holding should be ignored. 4. The Affidavits of Marrocco and Albanese are irrelevant and the legal opinions set forth therein are inadmissible. In support of its Response, Centurion Logistics submitted the Amended Affidavit of Marc Marrocco (the “Marrocco Affidavit”) and the Amended Affidavit of Antonio Albanese (the “Albanese Affidavit”). 8 Both affidavits include the following statement: It was never my intent in negotiating and executing the Centurion Logistics LLC Company Agreement to indemnify or pay the expenses, defense costs, or attorney fees of the Managers of Centurion Logistics LLC that breached fiduciary duties to the Centurion Logistics LLC, nor was it my intent in negotiating and executing the Centurion Logistics LLC Company Agreement to agree to reimburse or advance the expenses, defense costs, or attorney fees of a Manager for conduct that is not related to the business of Centurion Logistics LLC or conduct that is outside the scope of that Manager’s authority. See the Marrocco Affidavit ¶ 7; see also the Albanese Affidavit ¶ 7. These self-serving statements are irrelevant and should not be considered because the pertinent language of Section 6.2 of the Agreement is unambiguous—i.e., its interpretation is a question of law for the court. See Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex. 2014) (citing MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999)); see also Peterson v. Farmers Tex. Cnty. Mut. Ins. Co., No. 05-15-00678-CV, 2016 Tex. 8 The Marrocco Affidavit is attached to Plaintiff’s Response as Exhibit B and the Albanese Affidavit is attached to Plaintiff’s Response as Exhibit C. JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 5 9569942.1/SP/40086/0102/121217 MR.863 App. LEXIS 6586, at *9 (Tex. App.—Dallas June 22, 2016, no pet.) (providing that “[a]bsent a finding of ambiguity, a court must interpret the meaning and intent of a contract from the four corners of the document without the aid of extrinsic evidence”). The mere fact that the parties advance different interpretations does not render the provision ambiguous. PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 707 (Tex. App.—Dallas 2011, pet. denied). The Marrocco and Albanese Affidavits also try to tell this Court what the Agreement means. See the Marrocco Affidavit ¶ 7 (“[t]he indemnification language in the Centurion Logistics LLC Company Agreement does not mean, and has never meant . . . .”); see also the Albanese Affidavit ¶ 7 (same). Even legal experts (Marrocco and Albanese are not lawyers) are not allowed to offer legal opinions regarding contract interpretation. See Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)) (providing that “the construction or interpretation of an unambiguous contract is a question of law for the court” and that “[e]xpert testimony regarding the legal interpretation of an unambiguous agreement encroaches upon the trial court’s province to determine the correct legal interpretation”). The Court has the ability to construe the meaning of Section 6.2 of the Agreement without the aid of the inadmissible legal opinions from non-lawyers. Calce objects to such portions of the Marrocco and Albanese Affidavits and requests that same be stricken. CONCLUSION Section 6.2 of the Agreement provides that “[a]n Indemnified Person’s expenses paid or incurred in defending itself against any Proceeding shall be reimbursed as paid or incurred.” 9 The applicable language is mandatory and unambiguous. Moreover, it is undisputed that (1) 9 See Ex. A-1 to the Motion at Section 6.2 (emphasis added). JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 6 9569942.1/SP/40086/0102/121217 MR.864 Calce is an “Indemnified Person”; and (2) this lawsuit constitutes a “Proceeding.” This issue is simple. Calce is entitled to reimbursement as a matter of law. The Court should not be distracted by Centurion Logistics’ efforts to create the illusion of a fact issue. Calce respectfully requests that the Court grant his Amended Motion for Partial Summary Judgment in its entirety and award him the relief requested therein. Calce further requests that the Court strike the impermissible portions of the Marrocco and Albanese Affidavits described above. Calce further requests such other and further relief to which he shows himself justly entitled. Respectfully submitted, /s/ David N. Kitner DAVID N. KITNER State Bar No. 11541500 david.kitner@strasburger.com CHASE J. POTTER State Bar No. 24088245 chase.potter@strasburger.com STRASBURGER & PRICE, LLP 901 Main Street, Suite 6000 Dallas, TX 75202-3794 (214) 651-4300 (214) 651-4330 Fax ATTORNEYS FOR JOHN CALCE, CENTURION MIDSTREAM GROUP, LLC, CENTURION TERMINALS, LLC, AND STAMPEDE TX ENERGY, LLC CERTIFICATE OF SERVICE The undersigned counsel certifies that on the 12th day of December, 2017, a true and correct copy of the foregoing was forwarded to all known counsel in compliance with the Texas Rules of Civil Procedure. /s/ Chase J. Potter Chase J. Potter JOHN CALCE’S REPLY BRIEF IN SUPPORT OF AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC PAGE 7 9569942.1/SP/40086/0102/121217 MR.865 44TH DIST RICT COURT GEORGE L. ALLEN, SR. COURTS BUILDING 600 COMMERCE STREET DALLAS, TEXAS 75202-4604 December 15, 2017 DAVID N KITNER 901 MAIN STREET SUITE 6000 DALLAS TX 75202 DC-16-07706 CENTURION LOGISTICS LLC vs. JAMES BALLENGEE, et al ALL COUNSEL OF RECORD/PRO SE LITIGANTS: PLEASE TAKE NOTE OF THE FOLLOWING SETTINGS: JURY TR.IAL: 12/10/2018@9:00 AM TRIAL ANNOUNCEMENTS MUST BE MADE IN ACCORDANCE WITH RULE 3 .02, LOCAL RULES OF THE CIVIL COUR.T OF DALLAS COUNTY, TEXAS. WHEN NO ANNOUNCEMENT IS MADE FOR DEFENDANT, DEFENDANT WILL BE PRESUMED READY. IF NO PLAINTIFF FAILS TO ANNOUNCE OR TO APPEAR AT TRIAL, THE CASE WILL BE DISMISSED FOR WANT OF PROSECUTION IN ACCORDANCE WITH RULE I65a, TEXAS RULES OF CIVIL PROCEDURE. COMPLETlON OF DISCOVERY, PRESENTATION OF PRETRIAL MOTIONS AND OTHER MATTERS RELATING TO PREPARATION FOR TRJAL ARE GOVERNED BY THE TEXAS RULES OF CIVIL PROCEDURE. PLEASE FORWARD A COPY OF THIS NOTICE TO COUNSEL OF RECORD FOR EACH PARTY AND ALL PRO SE PARTIES BY A METHOD APPROVED IN TEXAS RULES OF CIVIL PROCEDURE 21a. SZ·L~ BONNIE LEE GOLDSTEIN JUDGE, 44TH DISTRICT COURT DALLAS COUNTY, TEXAS Cc: JAMES HOCK, CHRIS MO'rr; ROBERT MCNIEL, CENTURION PECOS TERMINAL LLC; TOM RAMSEY: VISPI JILLA; C GREGORY SHAMOUN. CENTURION BROWNSVILLE TERMINAL. LLC. DAVID N KITNER; JUPITER MLP. LLC; STAMPEDE TX ENERGY LLC MR.866 FILED DALLAS COUNTY 5/2/2018 9:24 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-16-07706 CENTURION LOGISTICS LLC, § IN THE DISTRICT COURT OF individually and derivatively on behalf of § CENTURION PECOS TERMINAL LLC, § a Texas Limited Liability Company; and § MARC MARROCCO and ANTONIO § ALBANESE, individually and derivatively § on behalf of CENTURION LOGISTICS, LLC § § Plaintiffs § § vs. § DALLAS COUNTY, TEXAS § JAMES BALLENGEE; BALLENGEE § INTERESTS, LLC; JOHN CALCE, § CHRIS A. MOTT; TOM RAMSEY, § STAMPEDE TX ENERGY, LLC; § CENTURION MIDSTREAM GROUP, LLC; § CENTURION TERMINALS, LLC; § CENTURION BROWNSVILLE § TERMINAL, LLC; JAMES HOCK; VISPI § JILLA; and JUPITERMLP, LLC § § Defendants, § § B-44th JUDICIAL DISTRICT and CENTURION PECOS TERMINAL § LLC, a Texas Limited Liability Company § § Nominal Defendant. § PLAINTIFF’S SECOND AMENDED PETITION Plaintiffs Centurion Logistics LLC (“Centurion Logistics”) individually and derivatively on behalf of Centurion Pecos Terminal LLC (“Centurion Pecos”); and Marc Marrocco and Antonio Albanese, individually and derivatively on behalf of Centurion Logistics, file this Second Amended Petition against James Ballengee (“Ballengee”), Ballengee Interests, LLC (“Ballengee Interests”), John Calce (“Calce”), Chris A. Mott (“Mott”), Stampede TX Energy, LLC (“Stampede”), Tom Ramsey (“Ramsey”), Centurion Midstream Group, LLC (“Centurion Midstream”), Centurion Terminals, LLC (“Centurion Terminals”), Centurion Brownsville PLAINTIFFS’ SECOND AMENDED PETITION Page 1 MR.867 Terminal, LLC (“Centurion Brownsville”), James Hock (“Hock”), Vispi Jilla (“Jilla”), and JupiterMLP, LLC (“JupiterMLP”), bringing claims directly and derivatively on behalf of Centurion Pecos and directly and derivatively on behalf of Centurion Logistics for: breach of fiduciary duty, aiding and abetting breaches of fiduciary duty, money had and received (unjust enrichment), fraudulent concealment, aiding and abetting fraudulent concealment, violation of the Theft Liability Act, Tex. Civ. Code §§ 134.001-134.005, tortious interference with contract, fraudulent inducement, promissory estoppel, declaratory judgment and fraudulent transfer. Accordingly, Plaintiffs would respectfully show the Court as follows: I. DISCOVERY CONTROL PLAN 1. Pursuant to Texas Rules of Civil Procedure 190.1-190.6, Plaintiffs hereby designate that discovery will be conducted under Level 3. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, at this time, Plaintiffs seeks monetary relief in excess of $1,000,000. II. PARTIES 2. Plaintiff Centurion Logistics is a Texas limited liability company, with its principal office in Dallas, Texas. Centurion Logistics is the sole member and the sole manager of Centurion Pecos. The members of Centurion Logistics are: Marc Marrocco (“Marrocco”), Antonio Albanese (“Albanese”), and TXC Energy LLC (“TXC Energy”), an affiliate of Calce. 3. Nominal Defendant Centurion Pecos is a Texas limited liability company, with its principal office in Dallas, Texas. The current member and manager of Centurion Pecos is Centurion Logistics. Stampede was a member and manager of Centurion Pecos until June 13, 2016. 4. Plaintiff Marrocco is an individual residing in Dallas County, Texas. PLAINTIFFS’ SECOND AMENDED PETITION Page 2 MR.868 5. Plaintiff Albanese is an individual residing in Dallas County, Texas. 6. Defendant Ballengee is an individual residing in Dallas County, Texas. Ballengee has already entered an appearance in this matter. Ballengee is a member and manager of Defendant Ballengee Interests. Ballengee has already entered an appearance in this matter. 7. Defendant Ballengee Interests is a Louisiana limited liability company. Ballengee is a managing member of Ballengee Interests. Ballengee Interests has already entered an appearance in this matter. 8. Defendant Calce is an individual residing at 5601 Preakness Lane, Plano, TX 75093. Calce has already entered an appearance in this matter. 9. Defendant Stampede is a Texas limited liability company, with its principal place of business in Dallas, Texas. Stampede was a manager and member of Centurion Pecos, but was removed as a manager and member on June 13, 2016. Mott is the managing member of Stampede. Stampede has already entered an appearance in this matter. 10. Defendant Mott is an individual residing at 631 Milam Street, Shreveport Louisiana 71101. Mott (as detailed below), engages in business in Texas, but does not maintain a regular place of business in the State or a designated agent for service of process. Hence, the Texas Secretary of State is an agent for service of process for Mott, and service of process can be made pursuant to Texas Civil Practice and Remedies Code § 17.044. 11. Defendant Ramsey resides in the Houston, Texas area. He may be served at his residence or wherever he may be found. Ramsey is the Chief Executive Officer of Centurion Midstream, Centurion Terminals, and JupiterMLP. Ramsey has already entered an appearance in this matter. PLAINTIFFS’ SECOND AMENDED PETITION Page 3 MR.869 12. Defendant Centurion Midstream is a Texas limited liability company, formed on October 20, 2015, with its principal place of business in Dallas, Texas. Calce is the manager of Centurion Midstream. Centurion Midstream has already entered an appearance in this matter. 13. Defendant Centurion Terminals is a Texas limited liability company, with a principal place of business in Dallas, Texas. On information and belief, Centurion Terminals is an entity controlled by Defendant Calce. The manager of Centurion Terminals is 58C, LLC, a Texas limited liability company, whose manager is LV III, LLC, whose manager is Calce. Centurion Terminals has already entered an appearance in this matter. 14. Defendant Centurion Brownsville is a Texas limited liability company, with its principal place of business in Dallas, TX. The manager of Centurion Brownsville is Centurion Terminals. Centurion Brownsville may be served by serving its registered agent, John Calce, at 15851 Dallas North Parkway, Suite 650, Addison, Texas 75001. Centurion Brownsville has already entered an appearance in this matter. 15. Defendant Hock resides in the Houston, Texas area. He may be served at his residence or wherever he may be found. Hock is the former President of Stampede Louisiana and Stampede. Hock has already entered an appearance in this matter. 16. Defendant Jilla is an individual residing at 5719 Twin Brooks, Drive, Dallas, Texas 75252. He may be served at his residence or wherever he may be found. Jilla is the former designated representative of Stampede Louisiana and Stampede. Jilla has already entered an appearance in this matter. 17. Defendant JupiterMLP is a Delaware limited liability company, with its principal place of business in Dallas, Texas. Jupiter MLP may be served by serving its registered agent, PLAINTIFFS’ SECOND AMENDED PETITION Page 4 MR.870 Capitol Services, Inc., 1675 S. State Street, Suite B, Delaware 19901. JupiterMLP has already entered an appearance in this matter. III. JURISDICTION AND VENUE 18. This Court has jurisdiction over this case because the amount in controversy is in excess of the Court’s minimum jurisdictional limits. Moreover, Defendants have engaged in sufficient conduct in the State of Texas to confer jurisdiction over them. The Court has jurisdiction over the subject matter of the action because a substantial portion of the events giving rise to Plaintiffs’ claims occurred in Dallas County, Texas. 19. Venue is proper in Dallas County, Texas, pursuant to Texas Civil Practice and Remedies Code Sections 15.002-15.007, because it is the county where all or a substantial part of the events or omissions giving rise to the claims occurred as detailed in the following paragraphs. IV. BACKGROUND 20. Who can you trust? Apparently, when large potential profits are at issue, trust and honesty are in short supply. Here, a project to create a rail terminal in Pecos, Texas to service the oil and gas industry became the lynchpin of a grand scheme to steal the ideas, capital, business and opportunities of Centurion Logistics and Centurion Pecos, by any means necessary. Moreover, Defendants, by means of fraudulent activity and use of corrupt insiders, stole and fraudulently utilized Centurion Pecos’ looted assets to pursue a much-expanded grand scheme – creating a complex project stretching at least from the oilfields of West Texas all the way to the Port of Brownsville, while cutting Centurion Logistics and Centurion Pecos out of the entire operation. PLAINTIFFS’ SECOND AMENDED PETITION Page 5 MR.871 A. Creation of Centurion Logistics and Centurion Pecos 21. Several years ago, Marrocco and Albanese were looking for ways to use their expertise in real estate to invest in projects related to the booming oil and gas industry. During their investigations, Marrocco became better acquainted with Calce, who worked in the oil and gas industry, and whom Albanese happened to know from outside his business dealings. After some investigation, Marrocco, Albanese and Calce decided to pursue a project to purchase real estate and to develop a railway terminal for the shipping of crude oil and related materials. In order to pursue that project, Marrocco, Albanese and Calce formed Centurion Logistics on September 16, 2013. Centurion Logistics is manager-managed and its managers are Marrocco, Albanese and Calce. Under the company agreement of Centurion Logistics, a majority of the managers are required to take any action. 22. Initially, the Centurion Logistics managers utilized their skills to the benefit of the company. Albanese used his connections to obtain the interest of a possible anchor tenant who might want to ship hydraulic-fracturing sand through a terminal in that area, as a way to build Centurion Logistics’ credibility with oil companies and the railroad. Marrocco identified, and placed under contract, an approximately 177-acre parcel in Reeves County, Texas (the “First Parcel”) to use for the terminal, and obtained a contract for Centurion Logistics to purchase it. 23. In order to obtain funds to purchase the First Parcel, Calce, Marrocco and Albanese discussed bringing an equity partner into the Pecos project to contribute cash. Calce offered two potential investors from the oil and gas industry with whom he was acquainted. Because Marrocco had already begun to hear rumors that Calce had a reputation for self-dealing, Marrocco proposed that Centurion Logistics work with the investor to whom he believed Calce had fewer ties, namely Ballengee. Additionally, Ballengee was already involved with a company PLAINTIFFS’ SECOND AMENDED PETITION Page 6 MR.872 that was trucking crude oil in the vicinity, Bridger Logistics. Ballengee agreed to contribute cash to the project, in order to purchase the First Parcel without any liens or encumbrances. However, unbeknownst to Marrocco and Albanese, Ballengee was in the process of selling his interest in Bridger Logistics and would then be subject to a non-compete agreement, which would not allow his personal involvement with this type of endeavor. Therefore, in order to conceal his activities, Ballengee insisted on using an ostensibly unrelated entity, CAM Oil and Natural Gas, LLC (“CAM”) as the funnel for his cash contributions. This came as a surprise to Marrocco and Albanese, who had believed that Ballengee would use Bridger Logistics as the entity for his cash contributions. Hence, Centurion Logistics and CAM formed Centurion Pecos, on September 12, 2014, with Calce as the sole manager, and Centurion Logistics assigned the contract to purchase the First Parcel to Centurion Pecos on September 15, 2014. 24. Shortly before the closing of the sale of the First Parcel, Ballengee announced to Centurion Logistics and (and Marrocco and Albanese) that he would not simply contribute cash (through CAM), as he had represented, even though he had more than adequate cash to fund the purchase of the First Parcel. Instead, Ballengee announced that he would use his existing line of credit at Texas Capital Bank (“TCB”). Then, less than 48 hours before the closing of the First Parcel purchase, Ballengee informed Marrocco and Albanese that TCB was requiring a deed of trust on the property to secure the extension of credit to Ballengee. Because of the last-minute nature of this announcement, Centurion Logistics (and Centurion Pecos) had no other way to fund the purchase of the First Parcel before the required closing date, it being too late to look for other funding sources. Moreover, there was a real risk that Centurion Logistics (and Centurion Pecos) would lose the ability to purchase the First Parcel, since the seller was already threatening to sell to another purchaser. Having no other choice, Centurion Pecos acceded to Ballinger’s PLAINTIFFS’ SECOND AMENDED PETITION Page 7 MR.873 demands and granted the deed of trust to TCB. The proceeds of the loan by TCB to Ballengee Interests were then contributed by Ballengee, through CAM Oil and Natural Gas, and used to purchase the First Parcel on September 19, 2014. 25. What Centurion Logistics, Marrocco and Albanese did not know at that time, was that Calce and Ballengee had a plan to create a mechanism by which they could cause control of the property to be involuntarily removed from Centurion Pecos through foreclosure, with the first step of the plan being to force Centurion Pecos to grant the deed of trust to TCB, thereby encumbering the First Parcel. 26. Centurion Logistics next determined that the terminal project could be expanded by acquiring an approximately 300-acre parcel adjacent to the First Parcel (the “Second Parcel”). Marrocco obtained a contract for an entity he controlled, in order to purchase the Second Parcel. Marrocco was increasingly concerned about Calce’s reputation for underhandedness, and, as a condition to assigning the purchase agreement to Centurion Pecos, insisted that the company agreement of Centurion Pecos be amended in order to remove Calce as the sole manager of Centurion Pecos, as of November 2014. By this time, unbeknownst to Marrocco or Albanese, Ballengee had sold his interest in Bridger Logistics, and had become subject to a non-compete agreement which would prohibit his involvement in Centurion Pecos. Since CAM was too closely associated with Ballengee, and its continued participation in Centurion Pecos could cause Bridger Logistics to discover Ballengee’s violation of his non-compete agreement, Ballengee or Calce caused CAM Oil and Natural Gas to be removed as a member of Centurion Pecos, and be replaced by Stampede Energy, LLC (“Stampede Louisiana” – a predecessor Stampede TX Energy, LLC), a company unlikely to be identified by Bridger Logistics as being associated with Ballengee. PLAINTIFFS’ SECOND AMENDED PETITION Page 8 MR.874 27. Under the amended and restated company agreement of Centurion Pecos, Centurion Logistics and Stampede Louisiana were the members and managers of Centurion Pecos. Centurion Pecos is manager-managed, and, under the amended and restated company agreement, any action requires the consent of all managers. 28. At the closing of the Second Parcel, Ballengee again insisted that rather than fulfilling his representation to contribute his cash to fund the purchase of the Second Parcel free of any liens or encumbrances, he would instead take out another loan from TCB. Once again, Ballengee insisted that Centurion Pecos grant a deed of trust to the Second Parcel to TCB to secure this second loan. As with Ballengee’s First Parcel scam, his pattern here was part of his plan to create a mechanism to remove control of the Second Parcel from Centurion Pecos through foreclosure, making sure it was encumbered by the deed of trust. The purchase of the Second Parcel closed on August 21, 2015. The First Parcel and the Second Parcel are collectively referred to as the “Reeves County Property.” 29. As with the purchase of the First Parcel, Ballengee did not provide the funds for the Second Parcel directly to Centurion Pecos. Rather, he funneled the funds through Stampede Louisiana because his participation in the Centurion Pecos venture was circumscribed by his non-compete. 30. Both deeds of trust, granted at the closings of the Reeves County Property, contain a cross-collateralization clause pledging the Reeves County Property as collateral for all obligations of Ballengee Interests to TCB, even obligations not involving Centurion Pecos. Calce signed both deeds of trust, purportedly in his capacity as manager of Centurion Pecos, although he was no longer a manager of Centurion Pecos at the time he signed the deed of trust PLAINTIFFS’ SECOND AMENDED PETITION Page 9 MR.875 to the Second Parcel, and had no other authority to sign the second deed of trust for Centurion Pecos. B. Calce and Ballengee Hatch Their Grand Scheme 31. While Centurion Pecos was purchasing the parcels for the Pecos railroad terminal, Calce and Ballengee realized that the Pecos terminal idea was an incredible idea, and could be the nexus of an extremely profitable and much more extensive project. They began using the planned Pecos terminal (and its assets) as the focus point of a connection to the Port of Brownsville. This would involve building a terminal at the Port of Brownsville, along with storage facilities and fractioning towers for processing condensate. They realized that the Pecos terminal in Reeves County was the key to a huge money-making opportunity, but first, they needed absolute control over Centurion Pecos and its Reeves County Property. Since Calce and Ballengee had already set up a way to steal Centurion Pecos’ assets, they realized that they had the opportunity to cut Marrocco, Albanese and Centurion Logistics (and Centurion Pecos) completely out of this opportunity if they chose. To conceal activities related to this incredible opportunity from Marrocco and Albanese, Calce created a new entity, Centurion Terminals (and designated himself manager) on August 27, 2015. By September 11, 2015, Centurion Terminals was breaking ground on a Brownsville terminal. C. Defendants’ Fraudulent Scheme Begins to Unfold 32. As Calce and Ballengee’s grand scheme began to progress in late 2015, Calce began communicating to Marrocco that Calce and Ballengee wanted to bring other participants into the project, and wanted Marrocco and Albanese to take a more passive role and a reduced share of the profits. Calce then had a private meeting with Marrocco, expressing his desire to force Albanese out as a manager of Centurion Logistics, and to require Albanese to sell his PLAINTIFFS’ SECOND AMENDED PETITION Page 10 MR.876 membership interest in Centurion Logistics for less than its fair value. Calce claimed that the Pecos terminal was just a small part of an overall project that Ballengee was putting together. Calce threatened that if Marrocco did not cooperate in removing Albanese from Centurion Logistics and agree to turn over the Pecos terminal project to Calce and Ballengee for a very small percentage of the “new” project, Calce and Ballengee would exclude Marrocco from participation in the entire project, including the Pecos terminal. Calce told Marrocco that they could do this by removing the Reeves County Property from Centurion Pecos through the foreclosure scheme Ballengee and Calce had set up during the two purchases constituting the Reeves County Property. However, if Calce could get Albanese out, his plans could go forward unhindered, since without Albanese, Marrocco could not outvote Calce, and would have no way to stop Calce and Ballengee from taking complete control of the Reeves County Property – without the necessity of foreclosure. Although Marrocco agreed to consider taking a smaller percentage in the grand scheme, he refused to participate in removing Albanese from Centurion Logistics. 33. Ballengee subsequently met with Marrocco and Albanese, again trying to induce them into agreeing to take a small percentage of the much larger project, and agreeing that it was Centurion Logistics that had the original idea. At that meeting, Marrocco informed Ballengee that Calce had threatened to foreclose on the Reeves County Property and take it from Centurion Pecos if Marrocco did not agree to cut Albanese out. Ballengee then indicated that they were willing to buy Marrocco and Albanese out if they did not agree to trade control of the Pecos terminal for a very small piece of the larger project. 34. Calce and Ballengee then demanded a meeting with Marrocco to negotiate a fair price for Marrocco’s interest in Centurion Logistics. However, this proposal was actually a ruse PLAINTIFFS’ SECOND AMENDED PETITION Page 11 MR.877 to trick Marrocco into attending an uncalled meeting of the managers of Centurion Pecos to approve an “assignment and assumption agreement,” handing the Reeves County Property over to Ballengee Interests. Marrocco refused to attend the meeting. 35. Before Marrocco could give an answer as to whether he and Albanese were willing to agree to a significantly reduced percentage of the “new” opportunity or to take a buy- out of their interest, Calce and Ballengee decided to go forward with the “new” opportunity and began to execute on their plan to strip Centurion Pecos of its assets. 36. The actions of Ballengee and Calce were a part of their grand scheme to move the Reeves County Property out of Centurion Pecos and into an entity in which Marrocco and Albanese have no interest, depriving Marrocco and Albanese of their entire interests in the terminal project. To these ends, Calce and Ballengee began negotiating with Union Pacific to establish rail service to the Reeves County Property through Centurion Midstream, an entity unrelated to Centurion Logistics or Centurion Pecos – an entity with Calce as President and Ramsey as CEO. Centurion Midstream represented to Union Pacific that it was the owner of the Reeves County Property. After Centurion Logistics notified Union Pacific that Centurion Midstream had no affiliation with Centurion Pecos, Calce, Ballengee and Ramsey told Union Pacific that Marrocco and Centurion Logistics were no longer involved in the project, and that Centurion Midstream would own the Reeves County Property “within a few weeks.” On its website at this time, Centurion Midstream claimed to own the property purchased by Centurion Pecos and purported to be creating a terminal at Pecos, Texas. 37. In furtherance of this grand scheme, Calce, Ballengee and/or Mott and Stampede (or its predecessor, Stampede Louisiana), created a number of unauthorized and/or fraudulent documents purporting to pledge the Reeves County Property or create unauthorized obligations PLAINTIFFS’ SECOND AMENDED PETITION Page 12 MR.878 of Centurion Pecos. These unauthorized transactions and documents were not only concealed from Plaintiffs, but, on information and belief, were actually backdated. 38. As noted above, the grand scheme to cut Marrocco, Albanese, Centurion Logistics and Centurion Pecos out of the “new” opportunity went far beyond just the Reeves County Property, and had begun months before. In a transaction unrelated to the purchase of the Reeves County Property, Ballengee Interests granted a promissory note to TCB dated January 6, 2015 for a line of credit in the amount of $750,000. Unbeknownst to Marrocco and Albanese, in order to secure the Ballengee Interests line of credit, Calce executed a deed of trust to the First Parcel, purportedly on behalf of Centurion Pecos as its manager – this was at a time when Calce was no longer a manager of Centurion Pecos. The January 6, 2015 deed of trust also contained a cross- collateralization clause pledging the First Parcel as collateral for all obligations of Ballengee Interests to TCB, even obligations not involving Centurion Pecos. The proceeds of the line of credit were not used for any purpose related to the business of Centurion Pecos. Rather, Calce, Ballengee and Ramsey used the proceeds from the unauthorized loan and deed of trust to fund other projects, including the Brownsville terminal. That is, the $750,000 was either spent directly on other projects, or allowed Defendants to divert other resources to those projects. Centurion Logistics was unaware of the January 6, 2015 deed of trust, and only discovered it during a record search of Reeves County conducted in May 2016. 39. On October 30, 2015, after Calce had openly expressed the desire to remove Albanese from Centurion Logistics, and shortly after Centurion Midstream was formed, Ballengee Interests extended the term of the First Parcel note to TCB, and filed an extension of the deed of trust on the First Parcel to secure that note. Again, that extension was surreptitiously signed by Calce, as “manager of Centurion Pecos,” although he was not a manager of Centurion PLAINTIFFS’ SECOND AMENDED PETITION Page 13 MR.879 Pecos at the time, and had no other authority to act on behalf of Centurion Pecos. Again, Marrocco, Albanese, Centurion Logistics and Centurion Pecos were not aware of the extension of the deed of trust on the First Parcel, and only discovered it during a record search of Reeves County conducted in May 2016. Ballengee’s and Calce’s purpose in extending the deed of trust was to support their grand scheme and their fraudulent efforts to preserve the Ballengee Interests note as a means of removing the First Parcel from Centurion Pecos. 40. In April 2016, without authority to act for Centurion Pecos, Stampede1 and Calce forged documents that purported to obligate Centurion Pecos to assume Ballengee Interests’ obligations under the notes Ballengee Interests owed TCB (which had been used to obtain the funds contributed to purchase the Reeves County Property), and to grant Ballengee Interests a deed of trust to secure the assumption. Marrocco, Albanese, Centurion Logistics and Centurion Pecos were unaware of these documents or the unauthorized assumption until Centurion Pecos received a “notice of default” dated April 28, 2016 from Ballengee Interests for its purported failure to make interest payments under the assumption agreement. Neither Centurion Pecos, Centurion Logistics, Marrocco nor Albanese were provided with copies of the purported assumption agreement and deed of trust until after the Original Petition was filed in this matter. 41. In addition, Calce and Ramsey created a note, dated on or about November 15, 2015, purporting to obligate Centurion Pecos to make payments to Centurion Terminals, which was controlled by Calce and Ramsey. Centurion Pecos first learned of this note in a demand letter dated May 27, 2016. No note of this description was ever authorized by Centurion Pecos, and to date, neither Centurion Pecos, Centurion Logistics, Marrocco nor Albanese have ever seen this purported note.  1 By this time, Stampede Louisiana had become Stampede, as detailed in Section F, below. PLAINTIFFS’ SECOND AMENDED PETITION Page 14 MR.880 42. Ballengee Interests and Calce also created fraudulent notes ostensibly by Centurion Pecos to Ballengee Interests, dated September 16, 2014 and August 17, 2015. Centurion Pecos first learned of these notes in demand letters dated May 25, 2016. Again, neither Centurion Pecos, Centurion Logistics, Marrocco nor Albanese had ever seen these purported notes until after the filing of the Original Petition. When Centurion Logistics originally agreed to providing the Reeves County Property as collateral for the Ballengee Loans, it did not realize that such could be parlayed into circumstances that would obligate Centurion Pecos (as opposed to Ballengee) to repay the purchase price. 43. In furtherance of their grand scheme and their fraudulent plans, Defendants threatened to use the unauthorized, forged and fraudulent documents to foreclose on the Reeves County Property. Centurion Pecos received letters from Ballengee Interests and Centurion Terminals demanding payment of purported obligations that Centurion Pecos never, in fact, agreed to assume. D. The Grand Scheme Begins to Come Together: Calce “Transfers” the Reeves County Property to Ballengee Interests 44. On May 26, 2016, Calce signed Special Warranty Deeds purporting to transfer both parcels of the Reeves County Property to Ballengee Interests. However, those purported transfers were legally invalid, as they were done without the authorization of Centurion Pecos. According to documents executed by Calce and Ballengee, the purported transfer of the Reeves County Property was made because Centurion Pecos was unable to make payments under the unauthorized financial obligations fraudulently entered into by Calce and Ballengee. The transfer of the Reeves County Property was an invalid and illegitimate transaction, fraudulently made as a part of the grand scheme of cutting Marrocco and Albanese out of the Pecos terminal project, and excluding them from additional opportunities (as explained below). PLAINTIFFS’ SECOND AMENDED PETITION Page 15 MR.881 E. Calce, Ballengee and Ramsey Expand the Grand Scheme Using Centurion Pecos Funds and Property 45. As set forth above, Calce fraudulently granted a deed of trust in Centurion Pecos’ name to TCB to procure a $750,000 loan to Ballengee Interests – a transaction made without any authorization from Centurion Pecos. Calce, Ballengee and Ramsey, together with their related entity Defendants, used this $750,000 as seed capital to fund and expand their grand scheme by constructing other projects in Reeves County, Texas and in Brownsville, Texas. The $750,000 was either spent directly on these projects or the influx of the $750,000 allowed Defendants to use other resources on these projects. 46. For example, Centurion Midstream and Centurion Terminals used these funds to begin constructing their own railway terminal next door to the site of the original proposed Centurion Pecos terminal. Calce, Ballengee and Ramsey also used the funds as seed capital to begin construction of the related railway terminal and refinery in Brownsville, Texas. Eventually, the grand scheme involved every aspect from West Texas to the Gulf Coast, gathering and transporting crude oil from the Delaware Basin, through the Pecos Terminal, and then on to Brownsville, where it would be stored, processed, and blended, and subsequently be sold or exported. 47. In a further attempt to conceal their fraudulent scheme, Defendants created JupiterMLP (with Tom Ramsey as CEO, in addition to his CEO duties for Centurion Midstream and Centurion Terminals), and transferred some or all of these projects to that entity. JupiterMLP continues pursuit of this grand scheme to this day. 48. While Defendants used the wrongfully-obtained funds to commence and pursue these projects, Centurion Logistics and Centurion Pecos have not only been defrauded of their assets and excluded from participation in the original project, but have also been deprived of the PLAINTIFFS’ SECOND AMENDED PETITION Page 16 MR.882 lucrative business opportunity to participate in the broader Brownsville terminal, storage, and refining project and the profits flowing therefrom – even though it was Centurion Logistics and Centurion Pecos’ own assets that helped fund and construct these additional projects. In other words the Defendants formulated and executed this fraudulent method of financing the broader project for a huge payoff, using Centurion Logistics and Centurion Pecos as the source of financing and funds since they had the only hard asset, the Reeves County Property), all the while cutting them off from any participation or profits therefrom. F. Stampede Violates the Company Agreement 49. Section 10 of the First Amended and Restated Company Agreement of Centurion Pecos Terminal LLC (“Company Agreement”) sets forth the conditions under which a member may transfer its membership interest. Section 10.4 states that a transfer shall not be permitted unless: [t]he transferor and transferee have delivered to the Company [Centurion Pecos] any documents that the Board of Managers request to confirm that the transfer satisfies the requirements of this Agreement to give effect to the transfer, and to confirm the transferee’s agreement to be bound by this Agreement as Assignee. 50. Pursuant to Section 10.1(a) of the Company Agreement, “transfer” includes “a transfer by merger or other business combination.” Stampede Louisiana (a Louisiana limited liability company) was a member of Centurion Pecos at the time that the Company Agreement was adopted, and was bound thereby. On January 20, 2016, Stampede Louisiana was converted to Stampede. Stampede then engaged in a series of mergers, first with Centurion Brownsville Terminal, LLC, a Texas limited liability company, on February 4, 2016, and then with Stampede Energy, LLC, a Delaware limited liability company on March 2, 2016. 51. On April 30, 2016 and again on May 4, 2016, Centurion Logistics expressly requested that Stampede and Centurion Brownsville provide the information required by Section PLAINTIFFS’ SECOND AMENDED PETITION Page 17 MR.883 10.4 of the Company Agreement. Stampede, at Mott’s direction, and Centurion Brownsville failed and refused to provide the information required by the Company Agreement. G. Centurion Pecos Expels Stampede as Member and Manager 52. In response to Stampede’s blatant violations of the Company Agreement, Centurion Logistics, on behalf of Centurion Pecos, on May 31, 2016, called a meeting of managers and members of Centurion Pecos, which was held on June 13, 2016. At the meeting, Centurion Logistics moved to remove Stampede as a member of Centurion Pecos based on Stampede’s prohibited transfers of its membership interest and refusal to provide related and required information. Because the motion involved removing Stampede as a member, Stampede was an interested manager and not eligible to vote. Centurion Logistics, the only manager eligible to vote on the motion, voted to remove Stampede as a member. This left Centurion Logistics as the sole member of Centurion Pecos. 53. Subsequently, the remaining member of Centurion Pecos called a meeting to determine whether Stampede should be removed as a manager because it had transferred its membership interest in a prohibited transfer and engaged in other wrongful conduct that materially affected the business of Centurion Pecos and its members, and had also engaged in conduct that had made it not reasonably practicable to carry on the company business with Stampede. Centurion Logistics, the only remaining member, voted to remove Stampede as a manager of Centurion Pecos. This left Centurion Logistics as the sole manager of Centurion Pecos. V. THE CENTURION PECOS COMPANY AGREEMENT 54. Article X of the Company Agreement for Centurion Pecos provides for removal of a Member under certain conditions, including when a Member makes a “Prohibited Transfer” PLAINTIFFS’ SECOND AMENDED PETITION Page 18 MR.884 of all or any part of its Membership Interest. Article I of the Company Agreement provides that the Board of Managers is comprised of Centurion Logistics and “Stampede”, and further defines “Stampede” as “Stampede Energy, LLC, a Louisiana limited liability company.” Although the Company Agreement does not specify what Managers are eligible to vote on removal of a Member that violates the Company Agreement, allowing a designated Manager to be a voting member of the Board for purposes of determining whether it should be removed as a Member for violations of the Company Agreement would lead to an absurd result, and render large portions of the Company Agreement superfluous and meaningless, specifically including all of Article X, all references to a “Permitted Transfer” or a “Prohibited Transfer”, and the provisions of Article 12 regarding removal of a Member. 55. Article V of the Company Agreement provides for removal of a Manager under certain conditions, including when the Manager has (1) engaged in wrongful conduct described in Section 6.3(a) that adversely and materially affected the Company business of the Members, and (2) engaged in conduct relating to Company business that has made it not reasonably practicable to carry on the Company business with the Manager. Although the Company Agreement does not specify whether a Manager which is subject to removal pursuant the terms of the Company Agreement has a right to vote concerning its own removal, allowing a designated Manager to be a voting member of the Board for purposes of determining whether it should be removed as a Manager for engaging in such wrongful conduct (including any act or omission that involves gross negligence, intentional misconduct or knowing violation of law, transfer or attempted transfer of all or a portion of a Membership Interest in a Prohibited Transfer, of a willful or reckless breach of the Company Agreement) would lead to an absurd PLAINTIFFS’ SECOND AMENDED PETITION Page 19 MR.885 result, and render large portions of the Company Agreement superfluous and meaningless, specifically including, but not limited to, all of Section 5.2(b), 5.5 and 5.9(a). 56. To the extent that the Company Agreement does not specifically provide for the ineligibility of a Manager to vote on removal of a Member, the Company Agreement is vague and ambiguous. Moreover, a fair reading of the Company Agreement demonstrates that the real intention of the parties thereto was to actually have an effective method to remove Members and the only way to effectuate such an intention is to imply a covenant that a Member is ineligible to participate as a Manager for purposes of voting as to whether to remove itself as a Member. 57. To the extent that the Company Agreement does not specifically provide for the ineligibility of a Manager to vote on his own removal for cause, the Company Agreement is vague and ambiguous. Moreover, a fair reading of the Company Agreement demonstrates that the real intention of the parties thereto was to actually have an effective method to remove Managers and the only way to effectuate such an intention is to imply a covenant that a Manager is ineligible to participate as a Manager for purposes of voting as to whether to remove itself as a Manager. VI. CAUSES OF ACTION A. First Cause of Action: Breach of Fiduciary Duty as to Calce 58. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 59. As a manager of Centurion Logistics, Calce had a duty of loyalty to the company. The duty of loyalty requires Calce to act in good faith and not allow personal interests to take precedence over the interests of Centurion Logistics. PLAINTIFFS’ SECOND AMENDED PETITION Page 20 MR.886 60. Calce also had a duty to disclose all important information concerning any transaction, including any matters that might influence him to act in a manner prejudicial to Centurion Logistics. 61. In violation of his fiduciary duties, Calce colluded with the other Defendants to engage in a series of fraudulent transactions which were contrary to the interests of Centurion Logistics and Centurion Pecos. This pattern of misconduct is intended to further Defendants’ grand scheme, namely, to remove the Reeves County Property from Centurion Pecos and pursue a competing development as well as use the resources of Centurion Pecos and Centurion Logistics to deprive Centurion Logistics of its share of any profits from the Pecos terminal project and other projects funded through Centurion Pecos assets. The entire scheme is an egregious breach of Calce’s duty of loyalty and full disclosure. 62. By secretly encumbering Centurion Pecos’ assets and misusing the company’s assets, Calce has damaged the ability of Centurion Logistics to conduct business and impaired the value of those assets. 63. Calce’s breaches of fiduciary duty proximately caused Centurion Logistics (and Marrocco and Albanese) to suffer damage and Calce has obtained benefits, which Calce should be required to forfeit. The benefits Calce should be required to forfeit also include any remuneration he has received from Defendants Centurion Midstream, Centurion Terminals, Centurion Brownsville and JupiterMLP. 64. Calce’s breaches of fiduciary duty were intentional and, accordingly, Centurion Logistics, Marrocco and Albanese seek, and should recover, exemplary damages against Calce. PLAINTIFFS’ SECOND AMENDED PETITION Page 21 MR.887 B. Second Cause of Action: Breach of Fiduciary Duty as to Stampede 65. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 66. As a manager of Centurion Pecos, Stampede owed Centurion Pecos a duty of loyalty. Further, Stampede owed Centurion Pecos a duty of candor, including a duty to disclose information concerning its role in any transaction that would prejudice the interests of Centurion Pecos. 67. Stampede violated its fiduciary duty by covertly engaging in a pattern of transactions designed to deprive Centurion Pecos of the Reeves County Property, as well as Centurion Pecos’ interest in the terminal project. Stampede has also breached its fiduciary duty by using Centurion Pecos’ resources and assets, without authorization, to develop other projects, while excluding Centurion Pecos from any share in the profits of those projects. 68. By secretly encumbering Centurion Pecos’ assets and misusing Centurion Pecos’ assets, Stampede has damaged the ability of Centurion Pecos to conduct business, impaired the value of those assets, and deprived the company of returns which should rightfully belong to the company. 69. Stampede’s breaches of fiduciary duty have proximately caused Centurion Pecos to suffer damage and Stampede has obtained benefits which Stampede should be required to forfeit. 70. Stampede’s breaches of fiduciary duty were intentional and, accordingly, Centurion Pecos seeks, and should recover, exemplary damages against Stampede. C. Third Cause of Action: Aiding and Abetting Breach of Fiduciary Duty PLAINTIFFS’ SECOND AMENDED PETITION Page 22 MR.888 71. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 72. Ballengee, Ballengee Interests, Mott, Hock, Jilla, Ramsey, Centurion Midstream, Centurion Terminals, Centurion Brownsville, and Jupiter MLP assisted with, encouraged and participated in breaches of fiduciary duty by Calce and Stampede. As set forth above, Calce and Stampede had fiduciary duties of loyalty to Centurion Logistics and to Centurion Pecos and fiduciary duties to disclose any transactions that would be prejudicial to the chief objectives of Centurion Logistics and Centurion Pecos. 73. Ballengee, Ballengee Interests, Mott, Hock and Jilla assisted Calce and Stampede to breach their fiduciary duties by participating in the creation of false debt, attempting to strip Centurion Pecos of its chief asset, the Reeves County Property, and using Centurion Pecos’ assets to procure funds for other projects in Reeves County and Brownsville. 74. Centurion Logistics and Centurion Pecos were created chiefly to purchase the Reeves County Property and to develop a railway terminal in order to transport petroleum and petroleum products. Rather than pursue these objectives with loyalty fiduciaries owe, Calce, with Ramsey, assisted in the creation of Centurion Midstream, Centurion Terminals, Centurion Brownsville, and JupiterMLP to thwart the efforts of Centurion Logistics and Centurion Pecos and to compete with Centurion Logistics and Centurion Pecos. 75. Based on the content of the Centurion Midstream and JupiterMLP websites, Centurion Midstream and JupiterMLP covertly assisted Calce in his plan to take over the Reeves County Property, and to build a railway terminal and other projects for his own benefit and for the benefit of Centurion Midstream and JupiterMLP. PLAINTIFFS’ SECOND AMENDED PETITION Page 23 MR.889 76. Based on its affiliation with Calce, Centurion Terminals was aware that Calce was not authorized to undertake any obligation to Centurion Terminals on behalf of Centurion Pecos. Nonetheless, Centurion Terminals entered into the note and threatened to enforce it. 77. Centurion Brownsville accepted the ill-gotten proceeds of Calce’s breach and has used the $750,000 to construct a railway terminal and refinery in Brownsville, Texas without the participation of Centurion Logistics or Centurion Pecos. 78. The breaches of fiduciary duty of Calce and Stampede, committed with the assistance of Ballengee, Ballengee Interests, Mott, Hock, Jilla, Ramsey, Centurion Midstream, Centurion Terminals, Centurion Brownsville, and JupiterMLP, proximately caused Plaintiffs to suffer actual damages in an amount exceeding the minimum jurisdiction of the Court. 79. As Defendants’ participation in the breaches of fiduciary duty were intentional and exemplary damages are recoverable for the breaches of fiduciary duty, Plaintiffs pray for exemplary damages against Ballengee, Ballengee Interests, Mott, Hock, Jilla, Ramsey, Centurion Midstream, Centurion Terminals, Centurion Brownsville and JupiterMLP. D. Fourth Cause of Action: Money Had and Received (Unjust Enrichment) 80. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 81. A claim for money had and received arises when the defendant obtains money or a benefit that in equity and good conscience belongs to the plaintiff. It is an equitable doctrine applied to prevent unjust enrichment. A cause of action for money had and received is not based on wrongdoing but, instead, looks only to the justice of the case and inquires whether the defendant has received money that rightfully belongs to another. A claim for money had and received is based upon the doctrine of unjust enrichment. PLAINTIFFS’ SECOND AMENDED PETITION Page 24 MR.890 82. Further, where a defendant obtains a benefit from the plaintiff by fraud, duress, or taking undue advantage, the plaintiff may recover money or property under the theory of unjust enrichment. 83. Ballengee and Ballengee Interests colluded with Calce to encumber property of Centurion Pecos to secure debts of Ballengee Interests, including the notes to purchase the Reeves County Property and the $750,000 line of credit. These proceeds have been used by Centurion Midstream, JupiterMLP and Centurion Brownsville to develop a competing railway terminal in Reeves County, Texas, as well as a terminal and refinery in Brownsville, Texas. 84. Ballengee and Ballengee Interests have, therefore, been unjustly enriched by pledges of property to secure Ballengee Interests’ debt, including the $750,000 line of credit, and unauthorized assumption of the Ballengee Interests’ obligations to TCB. Indeed, pursuant to the cross-collateralization clauses, the deeds of trust pledged the Reeves County Property to secure all Ballengee Interests’ debts to TCB, not merely those related to Centurion Pecos. Defendants Ballengee and Ballengee Interests should be required to disgorge and to turn over to Centurion Pecos any benefits obtained through these transactions. 85. Centurion Midstream, JupiterMLP and Centurion Brownsville have been unjustly enriched through the use of the proceeds of the unauthorized loan obtained by Calce and Ballengee. These entities should be required to disgorge the $750,000 as well as a share of the profits from the projects that the funds were used to develop. 86. On information and belief, Calce and Ramsey have received a salary and other benefits from Centurion Midstream, Centurion Terminals, Centurion Brownsville, and JupiterMLP, in exchange for effectuating Calce’s and Ballengee’s plan, namely, to fraudulently PLAINTIFFS’ SECOND AMENDED PETITION Page 25 MR.891 obtain ownership of the Reeves County Property and use the assets of Centurion Pecos to fund projects for the benefit of Defendants. This remuneration constitutes unjust enrichment. 87. In obtaining these benefits, Defendants have acted with fraud and malice. Accordingly, Plaintiffs pray that these Defendants be found liable for exemplary damages. E. Fifth Cause of Action: Fraud/Fraudulent Inducement 88. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 89. Ballengee and Ballengee Interests represented to Centurion Pecos that they would make a capital contribution by purchasing the Reeves County Property on behalf of Centurion Pecos. At the 11th hour, Ballengee and Ballengee Interests demanded that Centurion Pecos agree to deeds of trust on the Reeves County Property to secure large loans to Ballengee and Ballengee Interests. Ballengee and Ballengee Interests did not disclose that the purpose of this demand was to eventually surreptitiously shift the payment obligations on those loans to Centurion Pecos and cause a default on the loans so as to ultimately transfer of the Reeves County Property from Centurion Pecos to Ballengee Interests, and to use the Reeves County Property to fund other projects in Reeves County and Brownsville, including development of a competing railway terminal in Reeves County, Texas, and a terminal and refinery in Brownsville, Texas. 90. Centurion Pecos justifiably relied on Ballengee’s and Ballengee Interests’ professions that their purpose was to invest in, and to promote, the Centurion Pecos Terminal project. 91. Ballengee’s and Ballengee Interests’ actions have injured Centurion Logistics (and Marrocco and Albanese) and Centurion Pecos, in that Defendants used the TCB loans and PLAINTIFFS’ SECOND AMENDED PETITION Page 26 MR.892 deeds of trust, as well as unauthorized and fraudulently executed documents, to complete their grand scheme to obtain the Reeves County Property for a competing entity, Centurion Midstream and/or JupiterMLP, and to use the equity in the property to fund other projects from which Centurion Logistics and Centurion Pecos were excluded. 92. The wrongful fraudulent acts and omissions have proximately caused Plaintiffs to suffer damages. Because Defendants’ wrongful fraudulent acts and omissions were conducted with intent, Plaintiffs seek both actual and exemplary damages. F. Sixth Cause of Action: Aiding and Abetting Fraud/Fraudulent Inducement 93. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 94. Defendants Calce, Ramsey, Mott, Hock, Jilla, Stampede, Centurion Midstream, Centurion Terminals, Centurion Brownsville, and JupiterMLP provided knowing and intentional assistance to the fraud committed by Ballengee and Ballengee Interests. Calce and Stampede, including its managing member, Mott, its President, Hock, and its designated representative Jilla, were aware of the fraudulent scheme and Stampede allowed itself to be used as a conduit through which Ballengee Interests made its payments for the Reeves County Property. As fiduciaries, Calce and Stampede, including Mott, had a heightened duty to disclose Ballengee’s true intent, but they remained silent. Indeed, they actively furthered the scheme through their participation in the creation of false and unauthorized transactions and the creation of fraudulent documents. 95. Calce’s and Stampede’s assistance and encouragement constituted a substantial factor in causing the fraud. Without their participation, it is unlikely that Ballengee and Ballengee Interests could have attempted the scheme, given the limitations imposed on PLAINTIFFS’ SECOND AMENDED PETITION Page 27 MR.893 Ballengee by the non-compete agreement. Moreover, these Defendants furthered the plan through a series of threatening communications. 96. Centurion Midstream, Centurion Terminals, Centurion Brownsville, and JupiterMLP were aware of the fraud and provided knowing assistance by accepting funds that were the product of the fraud, using them to construct other projects in Reeves County and Brownsville from which Centurion Logistics and Centurion Pecos were excluded. 97. These other Defendants’ participation in the fraudulent scheme has proximately caused Plaintiffs to suffer damages. Because these Defendants’ participation in the wrongful fraudulent scheme was conducted with knowledge and intent, Plaintiffs seek both actual and exemplary damages. G. Seventh Cause of Acton: Texas Theft Liability Act, Tex. Civ. Prac. &Rem. Code §§134.001-134.005 98. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 99. Defendants Calce, Ballengee, and Ballengee Interests have unlawfully appropriated the Reeves County Property through the unauthorized transfer of the property from Centurion Pecos to Ballengee Interests. 100. Centurion Pecos has suffered actual damages from Defendants’ appropriation, which not only deprived Centurion Pecos of the Reeves County Property, but prevented Centurion Pecos from developing a railway terminal on that property. 101. In addition, Ballengee and Ballengee Interests stole and appropriated the $750,000 obtained from the loan made possible by the unauthorized use of the Reeves County Property as collateral. These funds rightfully belonged to Centurion Pecos. PLAINTIFFS’ SECOND AMENDED PETITION Page 28 MR.894 102. Plaintiffs seek, and should recover, actual damages, including lost profits, as well as exemplary damages for Defendants’ violations of the Texas Theft Liability Act. H. Eighth Cause of Action: Tortious Interference with Contract 103. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 104. Pursuant to the company agreement of Centurion Pecos, Centurion Logistics had a valid and enforceable contract with Stampede. With knowledge of this contract, Defendants, other than Stampede, willfully and intentionally interfered with the performance of the contract. 105. Pursuant to the company agreement of Centurion Logistics, Centurion Logistics was comprised of a valid and enforceable agreement between Marrocco, Albanese and TXC Energy. With knowledge of this contract, Defendants willfully and intentionally interfered with the performance of the contract. 106. The purpose of Centurion Pecos and Centurion Logistics was to purchase the Reeves County Property and build the Centurion Pecos railway terminal on the property. By interfering with the performance of the company agreements of Centurion Pecos and Centurion Logistics, Defendants prevented the development of the railway terminal. 107. Plaintiffs seek, and should recover, actual damages, including lost profits, as well as exemplary damages for Defendants’ tortious interference with contract. I. Ninth Cause of Action: Fraudulent Inducement 108. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 109. Calce, Ballengee and Ballengee Interests represented to Centurion Pecos that they would cooperate with Centurion Pecos to develop the Centurion Pecos terminal. Calce, PLAINTIFFS’ SECOND AMENDED PETITION Page 29 MR.895 Ballengee and Ballengee Interests further represented to Centurion Pecos that Ballengee Interests would provide funds to purchase the Reeves County Property free and clear of any liens or encumbrances. Centurion Pecos relied on these representations when it negotiated to purchase the Reeves County Property and entered into the contract to purchase the Reeves County Property. 110. Calce, Ballengee and Ballengee Interests were aware that the representations made to Centurion Pecos were false. 111. Based on the false representations by Calce, Ballengee and Ballengee Interests, Centurion Pecos was also induced to grant TCB deeds of trust on the Reeves County Property. Calce, Ballengee and Ballengee Interests also falsely represented that Centurion Pecos would receive remuneration from projects developed through the deeds of trust placed on the Reeves County Property. Moreover, neither Centurion Pecos, Centurion Logistics, Marrocco nor Albanese were aware that Centurion Pecos was ultimately going to be responsible to pay the Ballengee loans secured by the Reeves County Property, since it was represented that the property was only collateral for Ballengee’s obligation to pay the loans. 112. Centurion Pecos has been damaged by the fraudulent inducement because Defendants have used the loans and deeds of trust to interfere with Centurion Pecos’ ownership of the Reeves County Property and prevent the development of the Centurion Pecos terminal. Centurion Pecos has also been damaged because it has been denied its share of profits from the projects developed through loans secured by deeds of trust on the Reeves County Property. 113. Defendants’ fraudulent inducement has proximately caused Plaintiffs to suffer actual damages. Furthermore, Plaintiffs seek, and should recover, exemplary damages. PLAINTIFFS’ SECOND AMENDED PETITION Page 30 MR.896 J. Tenth Cause of Action: Promissory Estoppel 114. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 115. Calce, Ballengee and Ballengee Interests promised Centurion Pecos that they intended to cooperate with Centurion Pecos to develop the Centurion Pecos terminal. Centurion Pecos reasonably, foreseeably, substantially and detrimentally relied on Defendants promises when they purchased the Reeves County Property and agreed to place deeds of trust on the Reeves County Property. 116. Calce, Ballengee and Ballengee Interests also promised Centurion Pecos that they would share with Centurion Pecos the profits from any projects that were developed through proceeds obtained by placing deeds of trust on the Reeves County Property, including, but not limited to, the Centurion Pecos terminal. Centurion Pecos reasonably, foreseeably, substantially and detrimentally relied on Defendants’ promises when it agreed to place deeds of trust on the Reeves County Property. 117. To avoid injustice, Defendants should be required to fulfill the promises upon which Centurion Pecos relied and restore Centurion Pecos to the position it was in before it altered its position in reliance on Defendants’ promises. K. Eleventh Cause of Action: Declaratory Judgment 118. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 119. A justiciable controversy exists between Centurion Pecos and Stampede regarding the status, rights, obligations and legal relations between Centurion Pecos and Stampede in PLAINTIFFS’ SECOND AMENDED PETITION Page 31 MR.897 connection with the Company Agreement. The justiciable controversy concerns the right of members and managers of Centurion Pecos to expel Stampede as a member and manager. 120. Pursuant to the terms of the Company Agreement, transfer of membership interests is prohibited unless certain conditions were met. Among the conditions is the obligation of the transferor and transferee to provide information to assure that the transfer comported with the Company Agreement and the transferee agreed to be bound by the Company Agreement. Transfer of a membership interest includes any transfer by merger or business combination. 121. Stampede or its predecessor transferred its membership interest within the definitions of the Company Agreement through one or more of three business transactions. First, Stampede Energy, LLC, a Louisiana limited liability company, converted to Stampede. Second, Stampede merged with Stampede Energy, LLC, a Delaware limited liability company. Third, Stampede divided into two entities, Stampede and Centurion Brownsville. 122. Subsequently, both the transferor and transferee companies expressly refused to provide information about the transactions, as required by the Company Agreement, for any transfer of a membership interest to be permitted. Centurion Pecos duly called a meeting of the managers and members of Centurion Pecos in order to discuss Stampede’s violations and its removal as a member and manager. 123. At the June 13, 2016 meeting, Centurion Logistics, as manager of Centurion Pecos, voted to remove Stampede as a member of Centurion Pecos. As the party whose removal was at issue, Stampede was an interested manager excluded from voting. Accordingly, Stampede was removed as a member of Centurion Pecos. PLAINTIFFS’ SECOND AMENDED PETITION Page 32 MR.898 124. Following the June 13, 2016 managers meeting, a meeting of members was held to determine whether Stampede should be removed as a manager of Centurion Pecos for cause. Centurion Logistics, the only remaining member, voted to expel Stampede, based on its prohibited transfer of membership interest, as well as its other misconduct, as set forth in this Petition. 125. In accordance with Tex. Civ. Prac. & Rem. Code § 37.001, et seq., Plaintiffs seeks a declaratory judgment against Defendant Stampede, wherein the Court declares that following: (a) The June 13, 2016 meeting was a valid meeting under the Company Agreement; (b) The removal of Stampede as a member of Centurion Pecos was a valid, binding and enforceable action of the managers of Centurion Pecos; (c) The removal of Stampede as a manager of Centurion Pecos was a valid, binding and enforceable action of the members of Centurion Pecos. 126. In addition, there is a real and justiciable controversy between Centurion Pecos, on the one hand, and Ballengee, Ballengee Interests, and Centurion Terminals, on the other hand, concerning the enforceability of certain financial obligations that Defendants purport were entered into on behalf of Centurion Pecos. As set forth above, Calce, without authority to act for Centurion Pecos, and in violation of his fiduciary duties, created documents purporting to obligate Centurion Pecos to pay the notes that Ballengee Interests entered into with TCB and to make other payments to Ballengee Interests. Similarly, Calce, again without the authority to act for Centurion Pecos, and in violation of his fiduciary duties, apparently created a promissory note in favor of Centurion Terminals, purportedly obligating Centurion Pecos to make certain payments to Centurion Terminals. PLAINTIFFS’ SECOND AMENDED PETITION Page 33 MR.899 127. In accordance with Tex. Civ. Prac. & Rem. Code § 37.001, et seq., Plaintiffs seek a declaratory judgment against Defendants Ballengee, Ballengee Interests, and Centurion Terminals, wherein the Court declares the following: (a) Any assumption agreement purported to exist between Ballengee Interests and Centurion Pecos is invalid, void and unenforceable; (b) Any agreement that purports to create a financial obligation of Centurion Pecos to Ballengee Interests is invalid, void and unenforceable; and (c) Any promissory note purported to create financial obligations between Centurion Pecos and Centurion Terminals is invalid, void and unenforceable. 128. In addition and cumulative of other relief sought herein, Plaintiffs are entitled to declaratory judgment concerning the status of Stampede under the Company Agreement and the enforceability of certain financial obligations that Calce, without authority, and in violation of his fiduciary duties, purported to create on behalf of Centurion Pecos. L. Twelfth Cause of Action: Fraudulent Transfer 129. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 130. Defendants made transfers of assets, property or business interests that were once held by Centurion Midstream and Centurion Terminals. 131. The transfers were made to an insider, subsidiary or affiliate of Centurion Midstream and Centurion Terminals, including, but not limited to JupiterMLP. 132. The individuals and/or entities that were/are in control of Centurion Midstream and Centurion Terminals retained control over the assets, property or business interests that were transferred from Centurion Midstream and Centurion Terminals to the insiders/affiliates (including JupiterMLP), and concealed the transfers. PLAINTIFFS’ SECOND AMENDED PETITION Page 34 MR.900 133. Prior to the transfers, Centurion Midstream and Centurion Terminals were already involved in litigation with the Plaintiffs, who were seeking significant damages from Centurion Midstream and Centurion Terminals. Prior to the transfers, Centurion Midstream and Centurion Terminals had significant assets that could have been used to satisfy any judgments against them. However, as a result of the transfers, and on information and belief, Centurion Midstream and Centurion Terminals no longer have sufficient assets to satisfy any judgments rendered against them. 134. While this litigation was pending, the individuals and/or entities that were/are in control of Centurion Midstream and Centurion Terminals undertook a pattern and course of conduct to divest Centurion Midstream and Centurion Terminals of their assets, property and business interests so as to make any judgment against them uncollectible. Based upon information and belief, the transfers were completed with inadequate consideration. 135. The transfers were completed with either actual or constructive intent to hinder, delay or defraud any judgment creditors of Centurion Midstream and Centurion Terminals. 136. Hence, this Court should deem the transfers fraudulent. Because Defendants’ participation in the fraudulent transfer scheme was conducted with knowledge, intent and malice, the transfers should be set aside, and Plaintiffs be awarded both actual and exemplary damages. VII. ATTORNEYS’ FEES AND COSTS 137. Plaintiffs hereby restate and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 138. As a result of Defendants’ actions, Plaintiffs were forced to retain the legal counsel of Shamoun & Norman, LLP (“S&N”) to bring this lawsuit. Plaintiffs retained the services of S&N to prosecute these claims and agreed to pay S&N its usual, customary and PLAINTIFFS’ SECOND AMENDED PETITION Page 35 MR.901 reasonable attorneys’ fees. Such action and payment is necessary for the enforcement of Plaintiffs’ rights. 139. Plaintiffs seek the recovery of attorneys’ fees and costs that they incur in prosecuting the above-stated claims pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code, or any other applicable law. VIII. CONDITIONS PRECEDENT 140. All conditions precedent to Plaintiffs’ right to obtain the relief requested herein has been performed or has occurred. IX. PRAYER WHEREFORE, Plaintiffs Centurion Logistics LLC, individually and on behalf of Centurion Pecos Terminal LLC, and Marc Marrocco and Antonio Albanese, individually and derivatively on behalf of Centurion Logistics, respectfully request that upon final trial of this cause the Court enter judgment against James Ballengee, Ballengee Interests, LLC, John Calce, Chris A. Mott, Stampede TX Energy, LLC, Tom Ramsey, Centurion Midstream Group, LLC, Centurion Terminals, LLC, Centurion Brownsville, LLC, and JupiterMLP, LLC as follows: A. Against all Defendants and in favor of Plaintiffs for the amount of actual damages sustained by Plaintiffs; B. Against all Defendants and in favor of Plaintiffs for the disgorgement of unjust enrichment and money had and received; C. Against all Defendants and in favor of Plaintiffs for exemplary damages; D. Entering a declaratory judgment concerning the status of Stampede under the Company Agreement and the enforceability of certain financial obligations that Calce, without PLAINTIFFS’ SECOND AMENDED PETITION Page 36 MR.902 authority, and in violation of his fiduciary duties, purported to enter into on behalf of Centurion Pecos; E. Awarding to Plaintiffs the costs and disbursements of the action, including reasonable attorneys’ fees, accountants’ and experts’ fees, costs, and expenses; and F. Granting such other and further relief as the Court deems just and proper, at law or in equity. Respectfully submitted, SAYLES WERBNER, P.C. /s/ Mark E. Torian_____________ Mark E. Torian State Bar No. 24028051 mtorian@swtriallaw.com Darren P. Nicholson State Bar No. 24032789 dnicholson@swtriallaw.com 4400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Telephone: (214) 939-8700 Facsimile: (214) 939-8787 ATTORNEYS FOR PLAINTIFF CENTURION LOGISTICS LLC INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF CENTURION PECOS TERMINAL LLC CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing document has been served upon the counsel of record on May 2, 2018 in accordance with the Texas Rules of Civil Procedure. /s/ Mark E. Torian Mark E. Torian PLAINTIFFS’ SECOND AMENDED PETITION Page 37 MR.903 CAUSE NO. DC.16..07706 CENTURION LOGISTICS LLC, § IN THE DISTRICT COURT OF individually and derivatively on behalf of § CENTURION PECOS TERMINAL LLC, § a Texas limited liability company, § § Plaintiff, § § vs. § DALLAS COUNTY, TEXAS § JAMES BALLENGEE, BALLENGEE § INTERESTS, LLC; JOHN CA;LCE; § CHRIS A. MOTT; TOM RAMSEY; § STAMPEDE TX ENERGY, LLC, § CENTURION MIDSTREAM GROUP LLC; § CENTURION TERMINALS, LLC; § CENTURION BROWNSVILLE § TERMINAL, LLC; JAMES HOCK; § JUPITERMLP, LLC § § Defendants, § § B-44tb JUDICIAL DISTRICT and CENTURION PECOS TERMINAL § LLC, a Texas limited liability company § § .Nominal Defendant. § ORDER DENYING JOHN CALCE'S AMENDED MOTION FOR PARTIAL, SUMMARY JUDGMENT REGARDING COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC Before the Court is John Calce 's Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC (the "Amended Motion'') filed by Defendant John Calce, ("Defendant") to w11ich Plaintiff Centurion Logistics, LLC ("Centurion Logistics") filed Plaintiff's Response lo John Calce 's Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC (the ''Response") in response thereto. Having considered the Amended Motion, the Response, and arguments of counsel, the Court finds that the Amended Motion should be DENIED. Order Denying John Calce 's Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centµrion Logistics LLC Pagel MR.904 IT rs THEREFORE ORDERED that John Calce 's Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logistics LLC is hereby DENTED. SIGNED this 2'..l!ctay of~ 2oail" Order Denying John Calce 's Amended Motion for Partial Summary Judgment Regarding Counterclaim Against Centurion Logisrics LLC Page 2 MR.905