in Re: John Calce

ACCEPTED 05-18-00647-CV 05-18-00647-cv Part 1 of 5 FIFTH COURT OF APPEALS DALLAS, TEXAS 6/4/2018 2:25 PM 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 2:25:47 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  FILED DALLAS COUNTY 7 CT-ATTY 6/27/2016 11:01:53 AM FELICIA PITRE DISTRICT CLERK DC-16-07706 Freeney Anita CAUSE NO. - CENTURION LOGISTICS LLC, § IN THE DISTRICT COURT OF individually and derivatively on behalf of § CENTURION PECOS TERMINAL LLC, § a Texas Limited Liability Company, § DALLAS COUNTY, TEXAS § Plaintiffs § § vs. § § JAMES BALLENGEE, BALLENGEE § INTERESTS, LLC, JOHN CALCE, § STAMPEDE TX ENERGY, LLC, § CENTURION MIDSTREAM GROUP, LLC, § CENTURION TERMINALS, LLC § § Defendants, § B-44TH § JUDICIAL DISTRICT and CENTURION PECOS TERMINAL § LLC, a Texas Limited Liability Company § § Nominal Defendant. § PLAINTIFF’S ORIGINAL PETITION Plaintiff Centurion Logistics LLC (“Centurion Logistics”) files this Original Petition individually and derivatively on behalf of Centurion Pecos Terminals LLC (“Centurion Pecos”) against James Ballengee (“Ballengee”), Ballengee Interests, LLC (“Ballengee Interests”), John Calce (“Calce”), Stampede TX Energy, LLC (“Stampede”), Centurion Midstream Group, LLC (“Centurion Midstream”), and Centurion Terminals, LLC (“Centurion Terminals”), bringing claims directly and derivatively on behalf of Centurion Pecos LLC 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, and declaratory judgment. Accordingly, Plaintiff would respectfully show the Court as follows: PLAINTIFF’S ORIGINAL PETITION Page 1 of 23 307338_1 MR.001  I. DISCOVERY CONTROL PLAN 1. Pursuant to Texas Rules of Civil Procedure 190.1-190.6, Plaintiff hereby designates that discovery will be conducted under Level 3. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, at this time, Plaintiffs seek monetary relief, exclusively in the form of interest, costs, and attorneys’ incurred or to be incurred 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 a member and manager of Centurion Pecos. The members of Centurion Logistics are: Marc Marrocco (“Marrocco”), Antonio Albanese (“Albanese”), and TXC Energy LLC, 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. Centurion Pecos may be served through service on its registered agent, John Calce, at 15851 Dallas North Parkway, Suite 650, Addison, TX 75001. 4. Defendant Ballengee is an individual residing in Dallas County, Texas. He may be personally served at 3838 Oak Lawn Avenue, Suite 1150, Dallas, Texas 75219 or wherever he may be found. Ballengee is a member and manager of Defendant Ballengee Interests. 5. Defendant Ballengee Interests is a Louisiana limited liability company. Ballengee is a managing member of Ballengee Interests. Ballengee Interests may be served by serving its PLAINTIFF’S ORIGINAL PETITION Page 2 of 23 307338_1 MR.002 Texas registered agent, National Registered Agents, Inc., at 1999 Bryan St., Suite 900, Dallas, Texas 75201. 6. Defendant Calce is an individual residing at 5601 Preakness Lane, Plano, TX 75093. He may be served at this residence or wherever he may be found. . 7. 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. Stampede may be served, by serving its registered agent, Blumberg Excelsior Corporate Services, Inc., at 814 San Jacinto Boulevard, Suite 303, Austin, TX 78701. 8. Defendant Centurion Midstream is a Texas limited liability company, formed on October 20, 2015, with its principal place of business in Dallas County, Texas. Calce is the manager of Centurion Midstream. Centurion Midstream may be served, by serving its registered agent, John Calce, at 15851 Dallas North Parkway, Suite 650, Addison, TX 75001. 9. Defendant Centurion Terminals is a Texas limited liability company, with a principal place of business in Dallas County, Texas. By 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. 1 Centurion Terminals may be served, by serving its registered agent, John Calce, at 15851 Dallas North Parkway, Suite 650, Addison, TX 75001. 1 The repeated use of the number 58 in these entities is evidence that they are the creation of Calce: Calce is very proud of having lettered as an offensive lineman on a Football Championship Subdivision team, where his jersey number was 58. PLAINTIFF’S ORIGINAL PETITION Page 3 of 23 307338_1 MR.003  III. JURISDICTION AND VENUE 10. 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. 11. 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 FACTS A. Creation of Centurion Logistics and Centurion Pecos 12. 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. 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. PLAINTIFF’S ORIGINAL PETITION Page 4 of 23 307338_1 MR.004  13 Calce concluded that the geology in the area surrounding Pecos, Texas made it likely that there would be significant demand for a crude shipping terminal there. 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. 14. 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’s company was already trucking crude oil in the vicinity. Centurion Logistics and a predecessor of Stampede (which was an ostensibly unrelated entity Ballengee used as a conduit for his investment, in order to conceal any activities that might appear to compete with his current business) formed Centurion Pecos, on September 11, 2014, and Centurion Logistics assigned to Centurion Pecos the contract to purchase the First Parcel. 15. Ballengee agreed to contribute cash to Centurion Pecos, in order to purchase the First Parcel without any liens or encumbrances. Shortly before the closing of the sale of the First Parcel, however, Ballengee announced to Centurion Logistics that he would not simply contribute cash, as he had represented, but would require that Centurion Pecos grant a deed of trust to Texas Capital Bank (“TCB”), to secure payment of the loan that Ballengee would use to PLAINTIFF’S ORIGINAL PETITION Page 5 of 23 307338_1 MR.005 fund his contribution. Because Centurion Logistics had no other way to fund the purchase of the First Parcel before the required closing date, and because the seller was already threatening to sell to another purchaser, Centurion Logistics had no choice but to grant the deed of trust Ballengee demanded, and the proceeds of the loan by TCB to Ballengee Interests were contributed by Ballengee, through Stampede’s predecessor, and used to purchase the First Parcel on September 19, 2014. 16. Centurion Logistics has since learned that Ballengee’s purpose in having Centurion Pecos grant a deed of trust to TCB, was to create a mechanism by which Ballengee could cause the property to be removed from Centurion Pecos through foreclosure; Ballengee had more than adequate cash to fund the purchase of the First Parcel without taking a loan from TCB. 17. Centurion Logistics 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 Centurion Logistics and Stampede amend and restate the company agreement of Centurion Pecos, in order to remove Calce as the sole manager of Centurion Pecos, as of November, 2014. 18. Under the amended and restated company agreement of Centurion Pecos, Centurion Logistics and Stampede 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. PLAINTIFF’S ORIGINAL PETITION Page 6 of 23 307338_1 MR.006  19. Again, at the closing of the Second Parcel, Ballengee insisted that Centurion Pecos grant a deed of trust to the Second Parcel to TCB to secure a loan to Ballengee, rather than fulfilling his representation to make a contribution of cash to purchase the Second Parcel without liens or encumbrances. Again, Ballengee’s purpose, in causing Centurion Pecos to grant a deed of trust, was to create a mechanism to remove the Second Parcel from Centurion Pecos. 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”. 20. Again, Ballengee did not provide the funds for the Second Parcel directly to Centurion Pecos. Rather, he funneled the funds through Stampede because his participation in the Centurion Pecos venture was circumscribed by a non-compete agreement related to one of his previous businesses. 21. 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. Purportedly, Calce signed both deeds of trust in his capacity as manager of Centurion Pecos, although he was not a manager of Centurion Pecos at the time he signed the deed of trust to the Second Parcel, and had no other authority to sign the second deed of trust for Centurion Pecos. B. Defendants’ Fraudulent Scheme Unfolds 22. 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. In particular, Calce expressed a desire to force Albanese out as a manager of Centurion Logistics, and to require Albanese to sell his membership interest in Centurion Logistics for less than its fair value. Calce threatened that if PLAINTIFF’S ORIGINAL PETITION Page 7 of 23 307338_1 MR.007 Marrocco did not cooperate in removing Albanese from Centurion Logistics, Calce and Ballengee would conspire to exclude Marrocco from participation in the terminal project, as well; namely by removing the Reeves County Property from Centurion Pecos through foreclosure. Marrocco refused to participate in removing Albanese from Centurion Logistics. Calce and Ballengee subsequently asked for a meeting with Marrocco to negotiate a fair price for Marrocco’s interest in Centurion Logistics, but the proposal proved to be a ruse to trick Marrocco into attending an uncalled meeting of the managers of Centurion Pecos to approve an “assignment and assumption agreement” with Ballengee Interests. Marrocco refused to attend the meeting. 23. The actions of Ballengee and Calce demonstrate a scheme to move the Reeves County Property out of Centurion Pecos and into an entity in which Marrocco and Albanese have no interest, in order to deprive Marrocco and Albanese of their interests in the terminal project. In addition to his affiliation with Centurion Logistics, Calce is President of Centurion Midstream, an entity unrelated to either Centurion Logistics or Centurion Pecos. Centurion Midstream, or another entity affiliated with Calce, has attempted to negotiate directly with Union Pacific Railroad (“Union Pacific”) for the establishment of rail service to the Reeves County Property, initially holding itself out as owning or representing the owner of the property and, after Centurion Logistics notified Union Pacific that Centurion Midstream had no affiliation with Centurion Pecos, by telling 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, Centurion Midstream claims to own the property purchased by Centurion Pecos and purports to be creating a terminal at Pecos, Texas. Calce, as President of Centurion Midstream, receives a salary and other benefits. PLAINTIFF’S ORIGINAL PETITION Page 8 of 23 307338_1 MR.008  24. In furtherance of this scheme, Calce, Ballengee and/or Stampede have, in addition to the deeds of trust executed at the closings of the Reeves County Property, created a number of unauthorized and/or fraudulent documents purporting to pledge the Reeves County Property or create obligations of Centurion Pecos. These unauthorized transactions and documents were not only concealed from Plaintiff, but, on information and belief have been created recently and backdated. 25. 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. In order to secure the note, Calce executed a deed of trust to the First Parcel, purportedly on behalf of Centurion Pecos as its manager. 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. Calce was not a manager of Centurion Pecos in January, 2015, and had no other authority to sign the January 6, 2015 deed of trust. The proceeds of the line of credit were not used for any purpose related to the business of Centurion Pecos. Upon information and belief, they were largely used to fund a different terminal project in Brownsville, Texas, owned by Calce. 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. 26. In October, 2015, around the time Calce began expressing a desire to remove Albanese from Centurion Logistics, and shortly after Centurion Midstream was formed, Ballengee Interests extended the term of the note to TCB, and filed an extension of the deed of trust on the First Parcel to secure the note. Again, that extension was signed by Calce, as manager of Centurion Pecos, although he was not a manager of Centurion Pecos at the time, and PLAINTIFF’S ORIGINAL PETITION Page 9 of 23 307338_1 MR.009 had no other authority to act on behalf of Centurion Pecos. 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 preserve the Ballengee Interests note as a means to remove the First Parcel from Centurion Pecos. 27. In April 2016, without authority to act for Centurion Pecos, Stampede and Calce created documents that purported to obligate Centurion Pecos to assume Ballengee Interests’ obligations under the notes from Ballengee Interests to TCB 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. Centurion Pecos was unaware of these documents or the purported unauthorized assumption until it 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 nor Centurion Logistics has ever been provided with copies of the purported assumption agreement and deed of trust. 28. In addition, Calce created a note, dated on or about November 15, 2015, purporting to obligate Centurion Pecos to make payments to Centurion Terminals, another entity controlled by Calce. 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 neither Centurion Logistics nor Centurion Pecos has ever seen this purported note. 29. Ballengee Interests and Calce also created fraudulent notes 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. Neither Centurion Logistics nor Centurion Pecos has ever seen these purported notes. PLAINTIFF’S ORIGINAL PETITION Page 10 of 23 307338_1 MR.010  30. In furtherance of their scheme, Defendants are now threatening to use the unauthorized and fraudulent documents to foreclose on the Reeves County Property. Centurion Pecos has received letters from Ballengee Interests and Centurion Terminals demanding payment of purported obligations that Centurion Pecos never, in fact, agreed to assume. C. Stampede’s Violations of the Company Agreement 31. 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 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. 32. Pursuant to Section 10.1(a) of the Company Agreement, “transfer” includes “a transfer by merger or other business combination.” Stampede’s predecessor, Stampede Energy, LLC, a Louisiana limited liability company (“Stampede Louisiana”) was a member of Centurion Pecos at the time that the Company Agreement was adopted. On January 20, 2016, Stampede Louisiana was converted to Stampede. Stampede then engaged in mergers with Stampede Energy, LLC, a Delaware limited liability company on March 2, 2016, and with Centurion Brownsville Terminal, LLC, a Texas limited liability company, on February 4, 2016. 33. On April 30, 2016 and again on May 4, 2016, Centurion Logistics expressly requested that Stampede and Centurion Brownsville Terminal, LLC provide the information required by Section 10.4 of the Company Agreement. Stampede and Centurion Brownsville Terminal, LLC failed and refused to provide the information required by the Company Agreement. PLAINTIFF’S ORIGINAL PETITION Page 11 of 23 307338_1 MR.011 D. Centurion Pecos Votes to Expel Stampede as Member and Manager 34. In order to address Stampede’s 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 transfer of its membership interest. 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. 35. Subsequently, a meeting of the members of Centurion Pecos met 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. V. CAUSES OF ACTION A. First Cause of Action: Breach of Fiduciary Duty as to Calce 36. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. PLAINTIFF’S ORIGINAL PETITION Page 12 of 23 307338_1 MR.012  37. 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. 38. Calce also had a duty to disclose all important information concerning any transaction, including any matters that might influence them to act in a manner prejudicial to Centurion Logistics. 39. In violation of his fiduciary duties, Calce colluded with Stampede, Ballengee and Ballengee Interests to engage in a series of fraudulent transactions which were contrary to the interests of Centurion Pecos and Centurion Logistics. This pattern of misconduct is intended to further Defendants’ plan, namely, to remove the Reeves County Property from Centurion Pecos for use in their competing development, and to deprive Centurion Logistics of its share of any profits from the terminal project. The entire scheme is an egregious breach of Calce’s duty of loyalty and full disclosure. 40. By secretly encumbering Centurion Pecos’ assets, Calce has damaged the ability of Centurion Logistics to conduct business and impaired the value of those assets. 41. Calce’s breaches of fiduciary duty proximately caused Centurion Logistics to suffered 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 Centurion Midstream. 42. Calce’s breaches of fiduciary duty were intentional and, accordingly, Centurion Logistics seeks, and should recover, exemplary damages against Calce. PLAINTIFF’S ORIGINAL PETITION Page 13 of 23 307338_1 MR.013 B. Second Cause of Action: Breach of Fiduciary Duty as to Stampede 43. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 44, 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. 45. 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. 46. By secretly encumbering Centurion Pecos’ assets, Stampede has damaged the ability of Centurion Pecos to conduct business and has impaired the value of those assets. 47. 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. 48. 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 49. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 50. Centurion Midstream and Centurion Terminals 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 PLAINTIFF’S ORIGINAL PETITION Page 14 of 23 307338_1 MR.014 fiduciary duties to disclose any transactions that would be prejudicial to the chief objectives of Centurion Logistics and Centurion Pecos. 51. 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 assisted in the creation of Centurion Midstream to thwart the efforts of Centurion Logistics and Centurion Pecos and to compete with these companies. Based on the content of the Centurion Midstream website, Centurion Midstream is covertly assisting Calce in his plan to take over the Reeves County Property, and to build the railway terminal for his own benefit and for the benefit of Centurion Midstream. 52. 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 has threatened to enforce it. 53. The breaches of fiduciary duty of Calce and Stampede, committed with the assistance of Centurion Midstream and Centurion Terminals, proximately caused Plaintiff to suffer actual damages in an amount exceeding the minimum jurisdiction of the Court. 54. As Centurion Midstream’s and Centurion Terminals’ participation in the breaches of fiduciary duty were intentional and exemplary damages are recoverable for the breaches of fiduciary duty, Plaintiff prays for exemplary damages against Centurion Midstream and Centurion Terminals. D. Fourth Cause of Action: Money Had and Received (Unjust Enrichment) 55. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. PLAINTIFF’S ORIGINAL PETITION Page 15 of 23 307338_1 MR.015  56. 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. 57. 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. 58. 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. 59. 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. 60. By information and belief, Calce has received a salary and other benefits from Centurion Midstream, in exchange for effectuating his and Ballengee’s plan, namely, to fraudulently obtain ownership of the Reeves County Property. This remuneration constitutes unjust enrichment. PLAINTIFF’S ORIGINAL PETITION Page 16 of 23 307338_1 MR.016  61. Centurion Midstream has developed, or plans to develop, a railway terminal in competition with the terminal planned by Centurion Pecos. In so doing, Centurion Midstream, through its aiding and abetting of breaches of fiduciary duty, has obtained, or will obtain in the future, money that rightfully belongs to Centurion Pecos. These funds should be disgorged and transferred to Centurion Pecos. 62. Centurion Midstream has been—and will be—unjustly enriched by its interference with Plaintiff’s efforts to secure the Reeves County Property and develop the Pecos terminal. 63. In obtaining these benefits, Defendants have acted with fraud and malice. Accordingly, Plaintiff prays that these Defendants be found liable for exemplary damages. E. Fourth Cause of Action: Fraudulent Concealment 64. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 65. Ballengee and Ballengee Interests represented to Centurion Pecos that it 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. Ballengee and Ballengee Interests did not disclose that the purpose of this demand was to eventually force a foreclosure on the Reeves County Property in order to cut off Centurion Pecos’ interest in the terminal project. 66. 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. PLAINTIFF’S ORIGINAL PETITION Page 17 of 23 307338_1 MR.017  67. Ballengee’s and Ballengee Interests’ failure to disclose their true intentions has injured Centurion Logistics and Centurion Pecos, in that Defendants are now attempting to use the TCB deeds of trust, as well as false and unauthorized documents, to complete their scheme to obtain the Reeves County Property for the competing entity, Centurion Midstream. 68. The wrongful fraudulent acts and omissions have proximately caused Centurion Logistics and Centurion Pecos to suffer damages. Because Defendants’ wrongful fraudulent acts and omissions were conducted with intent, Plaintiff seeks both actual and exemplary damages. F. Fifth Cause of Action: Aiding and Abetting Fraudulent Concealment 69. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 70. Defendants Calce and Stampede provided knowing and intentional assistance to the fraud committed by Ballengee and Ballengee Interests. Calce and Stampede 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 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. 71. 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 Ballengee by the non-compete agreement. Moreover, these Defendants, through a series of threatening communications, continue to push the fraudulent plan. PLAINTIFF’S ORIGINAL PETITION Page 18 of 23 307338_1 MR.018  72. Calce’s and Stampede’s participation in the fraudulent scheme has proximately caused Centurion Logistics and Centurion Pecos to suffer damages. Because these Defendants’ participation in the wrongful fraudulent scheme was conducted with knowledge and intent, Plaintiff seeks both actual and exemplary damages. G. Sixth Cause of Action: Declaratory Judgment 73. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. 74. A justiciable controversy exists between Centurion Pecos and Stampede regarding the status, rights, obligations and legal relations between Centurion Pecos and Stampede in 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. 75. 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. 76. Stampede or its predecessor transferred of 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 Terminal, LLC, a Texas limited liability company. PLAINTIFF’S ORIGINAL PETITION Page 19 of 23 307338_1 MR.019  77. 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. 78. 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. 79. 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. 80. In accordance with Tex. Civ. Prac. & Rem. Code § 37.001, et seq., Plaintiff 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. 81. 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 PLAINTIFF’S ORIGINAL PETITION Page 20 of 23 307338_1 MR.020 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. 82. In accordance with Tex. Civ. Prac. & Rem. Code § 37.001, et seq., Plaintiff seeks 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 an obligation of Centurion Pecos to Ballengee Interests is invalid, void and unenforceable; (c) Any promissory note or other documents purported to create obligations between Centurion Pecos to Centurion Terminals is invalid, void and unenforceable. 83. In addition and cumulative of other relief sought herein, Plaintiff is 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. VI. ATTORNEYS’ FEES AND COSTS 84. Plaintiff hereby restates and incorporates by reference the allegations contained in the foregoing paragraphs as if fully set forth herein. PLAINTIFF’S ORIGINAL PETITION Page 21 of 23 307338_1 MR.021  85. As a result of Defendants’ actions, Plaintiff was forced to retain the legal counsel of Shamoun & Norman, LLP (“S&N”) to bring this lawsuit. Plaintiff retained the services of S&N to prosecute these claims and agreed to pay S&N its usual, customary and reasonable attorneys’ fees. Such action and payment is necessary for the enforcement of Plaintiff’s rights. 86. Plaintiff seeks the recovery of attorneys’ fees and costs that it incurs in prosecuting the above-stated claims pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code, or any other applicable law. VII. CONDITIONS PRECEDENT 87. All conditions precedent to Plaintiff’s right to obtain the relief requested herein have been performed or have occurred. VIII. PRAYER WHEREFORE, Plaintiff Centurion Logistics LLC, individually and on behalf of Centurion Pecos Terminal LLC, respectfully requests that upon final trial of this cause the Court enter judgment against James Ballengee, Ballengee Interests, LLC, John Calce, Stampede TX Energy, LLC, Centurion Midstream Group, LLC and Centurion Terminals, LLC as follows: A. Against all Defendants and in favor of Plaintiff for the amount of actual damages sustained by Plaintiff; B. Against all Defendants and in favor of Plaintiff for the disgorgement of unjust enrichment and money had and received; C. Entering a declaratory judgment concerning the status of Stampede under the Company Agreement and the enforceability of certain financial obligations that Calce, without PLAINTIFF’S ORIGINAL PETITION Page 22 of 23 307338_1 MR.022 authority, and in violation of his fiduciary duties, purported to enter into on behalf of Centurion Pecos; D. Awarding to Plaintiff the costs and disbursements of the action, including reasonable attorneys’ fees, accountants’ and experts’ fees, costs, and expenses; and E. Granting such other and further relief as the Court deems just and proper, at law or in equity. Respectfully Submitted, /s/ C. Gregory Shamoun C. GREGORY SHAMOUN State Bar No. 18089650 J. BLAIR NORRIS State Bar No. 24014515 SHAMOUN & NORMAN, LLP 1755 Wittington Place, Suite 200 Dallas, Texas 75234 Phone: (214) 987-1745 Fax: (214) 521-9033 Email: g@snlegal.com Email: bn@snlegal.com ATTORNEYS FOR PLAINTIFF PLAINTIFF’S ORIGINAL PETITION Page 23 of 23 307338_1 MR.023  FILED DALLAS COUNTY 7/31/2017 5:52 PM FELICIA PITRE DISTRICT CLERK Angie Avina 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 DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC John Calce (“Counter-Plaintiff” or “Calce”) files his Original Counterclaim complaining of Centurion Logistics LLC (“Centurion Logistics”) and Centurion Pecos Terminal LLC (“Centurion Pecos”) (collectively, “Counter-Defendants”) and, in support thereof, would respectfully show the Court as follows: I. DISCOVERY LEVEL 1. Discovery in this matter is to be conducted under Texas Rule of Civil Procedure 190.4 (Level 3). DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 1 9190395.1/SP/38371/0105/073117 MR.024  II. MONETARY RELIEF 2. Calce seeks both monetary and non-monetary relief. The monetary relief sought by Calce is, at this time, $100,000 or less. But the monetary relief sought by Calce continues to increase as he is required to incur additional expenses in defending himself against the claims brought against him in this lawsuit. III. PARTIES 3. Plaintiff Calce is an individual residing in Collin County, Texas. 4. Counter-Defendant Centurion Logistics is a limited liability company organized under the laws of the State of Texas with its principal place of business in Dallas, Dallas County, Texas. Centurion Logistics has made an appearance in this matter. 5. Counter-Defendant Centurion Pecos is a limited liability company organized under the laws of the State of Texas with its principal place of business in Dallas, Dallas County, Texas. Centurion Pecos has made an appearance in this matter through Centurion Logistics bringing claims against Calce and the other Defendants derivatively on behalf of Centurion Pecos. IV. JURISDICTION AND VENUE 6. This Court has jurisdiction over this matter because the amount in controversy exceeds the minimum jurisdictional limits of this Court. 7. Calce asserts that Dallas County is not a proper venue for this lawsuit pursuant to Section 15.011 of the Texas Civil Practice and Remedies Code. The bases for such assertion are set forth in Calce’s Motion to Transfer Venue. The Motion to Transfer Venue has been denied and is an interlocutory order. DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 2 9190395.1/SP/38371/0105/073117 MR.025  V. FACTUAL BACKGROUND 8. On June 27, 2016, Centurion Logistics, individually and derivatively on behalf of Centurion Pecos, filed its Original Petition complaining of Calce and the other Defendants. Centurion Logistics has brought claims against Calce for (1) breach of fiduciary duty; (2) unjust enrichment; and (3) aiding and abetting fraudulent concealment. 9. Plaintiff generally claims that Calce and the other Defendants carried out a scheme that resulted in Centurion Pecos and Centurion Logistics losing their interest in the Reeves County Property, thereby allegedly depriving such entities of the opportunity to construct a railway terminal for the shipping of crude oil on the Reeves County Property. 1 Among other things, Plaintiff alleges that Calce breached the fiduciary duties that he allegedly owed Centurion Logistics as a manager of the company. See Pl.’s Orig. Pet. ¶¶ 36 – 42. Plaintiff further claims that Calce took various allegedly unauthorized acts on behalf of Centurion Pecos. See id. ¶ 24. 10. On September 20, 2016, Calce filed his Motion to Transfer Venue and Brief in Support Thereof and, Subject Thereto, Original Answer. Since the time of filing his Original Answer, Calce has incurred significant expenses in defending against the claims that have been brought against him in the lawsuit. CALCE’S RIGHT TO INDEMNIFICATION FROM CENTURION LOGISTICS 11. Calce is a manager of Centurion Logistics. Section 1.1 of the Company Agreement of Centurion Logistics (the “Logistics Agreement”) defines an “Indemnified Person” as follows: “Indemnified Person” means (a) a Member or Assignee; (b) a Manager; (c) a Liquidator (if any); (d) any Affiliate of the Company, a Member or Assignee, a 1 The term “Reeves County Property,” when used herein, should be understood to have the same meaning as the term is used and defined in Plaintiff’s Original Petition. DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 3 9190395.1/SP/38371/0105/073117 MR.026  Manager, or a Liquidator; and (e) any governing person, officer, employee, agent, or owner of the Company, a Member or Assignee, a Manager, a Liquidator, or any Affiliate of any of the foregoing. A person is an Indemnified Person whether or not such person has the status required to be an Indemnified Person at the time any Proceeding is made or maintained as described in Article VI or at the time any amendment to this Agreement is proposed under Section 15.1. See Section 1.1 of the Logistics Agreement (emphasis added). A true and correct copy of the Logistics Agreement is attached hereto as Exhibit A. 12. Section 6.2 of the Logistics Agreement is entitled “Indemnification by Company” and provides as follows: To the fullest extent permitted by applicable law, and subject to Section 6.3, [Centurion Logistics] indemnifies and holds harmless each Indemnified Person from and against any 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 or for any misconduct or negligence on the part of any other person that is an employee or agent of [Centurion Logistics]. An Indemnified Person’s expenses paid or incurred in defending itself against any Proceeding shall be reimbursed as paid or incurred. The right to indemnification conferred in this Article VI is not exclusive of any other right that any person may have or hereafter acquire under any statute, agreement, vote of Members, or otherwise. See Ex. A § 6.2 (emphasis added). 13. Under the terms of the Logistics Agreement, Centurion Logistics is required to reimburse Calce for any and all expenses paid or incurred by Calce in defending himself in this lawsuit—as such expenses are paid or incurred. If it is ultimately determined that Calce is not entitled to indemnification, the Logistics Agreement expressly provides Centurion Logistics with an appropriate remedy. See Ex. A § 6.3(c) (providing that “[a]ny payments made to or on behalf of a person who is later determined not to be entitled to such payments shall be repaid by the person to [Centurion Logistics].”). DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 4 9190395.1/SP/38371/0105/073117 MR.027  14. To date, Centurion Logistics has not reimbursed Calce any amount for the expenses he has paid and incurred in defending himself against the claims brought against him in this lawsuit. CALCE’S RIGHT TO INDEMNIFICATION FROM CENTURION PECOS 15. When Centurion Pecos was initially formed, Calce was the sole manager of the company. See the Company Agreement of Centurion Pecos (the “Pecos Original Agreement”), which is dated effective September 12, 2014, a true and correct copy of which is attached hereto as Exhibit B. Calce was also appointed as the president of Centurion Pecos. Such appointment was effective as of September 11, 2014. 16. In November 2014, the First Amended and Restated Company Agreement of Centurion Pecos (the “Pecos Amended Agreement”) was executed. A true and correct copy of the Pecos Amended Agreement is attached hereto as Exhibit C. The First Amended and Restated Company Agreement removed Calce as a manager of Centurion Pecos, but Calce remained the duly appointed president of the company. 17. Section 1.1 of both the Pecos Original Agreement and the Pecos Amended Agreement defines an “Indemnified Person” as follows: “Indemnified Person” means (a) a Member or Assignee; (b) a Manager; (c) a Liquidator (if any); (d) any Affiliate of the Company, a Member or Assignee, a Manager, or a Liquidator; and (e) any governing person, officer, employee, agent, or owner of the [Centurion Pecos], a Member or Assignee, a Manager, a Liquidator, or any Affiliate of any of the foregoing. A person is an Indemnified Person whether or not such person has the status required to be an Indemnified Person at the time any Proceeding is made or maintained as described in Article VI or at the time any amendment to this Agreement is proposed under Section 15.1, provided such person had the status required to be an Indemnified Person at the time of the relevant actions referenced in the Proceeding. See Ex. B § 1.1 (emphasis added); see also Ex. C § 1.1 (emphasis added). DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 5 9190395.1/SP/38371/0105/073117 MR.028  18. Moreover, Section 6.2 of both the Pecos Original Agreement and the Pecos Amended Agreement is entitled “Indemnification by Company” and provides as follows: To the fullest extent permitted by applicable law and subject to Section 6.3, [Centurion Pecos] indemnifies and holds harmless each Indemnified Person from and against any Damages arising from any Proceeding relating to the conduct of [Centurion Pecos’] business or to any act or omission by such Indemnified Person, including any act or omission constituting negligence, within the scope of the Indemnified Person’s authority in the course of [Centurion Pecos’] business or for any misconduct or negligence on the part of any other person that is an employee or agent of [Centurion Pecos]. An Indemnified Person’s expenses paid or incurred in defending itself against any Proceeding shall be reimbursed as paid or incurred. The right to indemnification conferred in this Article VI is not exclusive of any other right that any person may have or hereafter acquire under any statute, vote of Members, or otherwise. See Ex. B § 6.2 (emphasis added); see also Ex. C § 6.2 (emphasis added). 19. Like the Logistics Agreement, the terms of the Pecos Original Agreement and the Pecos Amended Agreement require Centurion Pecos to reimburse Calce for any and all expenses paid or incurred by Calce in defending himself in this lawsuit, as such expenses are paid or incurred. Furthermore, also like the Logistics Agreement, both the Pecos Original Agreement and the Pecos Amended Agreement provide Centurion Pecos with an adequate remedy if it is ultimately determined that Calce is not entitled to indemnification. See Exs. B and C § 6.3(c) (providing that “[a]ny payments made to or on behalf of a person who is later determined not to be entitled to such payments shall be repaid by the person to [Centurion Pecos].”). 20. To date, Centurion Pecos has not reimbursed Calce any amount for the expenses that he has paid and incurred in defending himself against the claims brought against him in this lawsuit. 21. The Pecos Amended Agreement identifies Centurion Logistics and Defendant Stampede TX Energy, LLC (“Stampede”) as the only members of Centurion Pecos. Pursuant to the Pecos Amended Agreement, Stampede is the majority-in-interest member holding a 60% DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 6 9190395.1/SP/38371/0105/073117 MR.029 membership interest in Centurion Pecos, and Centurion Logistics holds the remaining 40% membership interest. 22. Stampede—on behalf of Centurion Pecos—has already agreed that Centurion Pecos will reimburse Calce for the amount of expenses that he has paid or incurred (or will pay and incur) in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos. But Centurion Logistics claims that Stampede was removed as a manager of Centurion Pecos on June 13, 2016. Stampede disputes the propriety of the alleged removal and does not recognize same. Accordingly, Calce’s claim for contractual indemnification and funding of defense costs against Centurion Pecos is significantly intertwined with and dependent upon the outcome of the competing declaratory judgment claims of Stampede and Centurion Logistics regarding which entity has control of Centurion Pecos. VI. CAUSES OF ACTION COUNT 1: DECLARATORY JUDGMENT 23. Calce restates and incorporates the allegations contained in the preceding paragraphs. 24. As shown by the facts set forth above, Calce is entitled to indemnification from Centurion Logistics and Centurion Pecos pursuant to the terms of such entities’ own company agreements. Calce is further entitled to reimbursement of the expenses he has paid and incurred (and those that he will pay and incur in the future), as such expenses are paid and incurred, in defending himself against the claims brought against him in this lawsuit. 25. Calce therefore seeks a judicial determination that: DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 7 9190395.1/SP/38371/0105/073117 MR.030  (a) Centurion Logistics is required to reimburse Calce the amount of expenses that he has paid or incurred to date in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics; (b) Centurion Logistics is required to reimburse Calce the amount of expenses that he pays or incurs in the future in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics; (c) In the unlikely event that any liability be found on the part of Calce, Centurion Logistics is required to indemnify Calce and hold him harmless from any damages that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics (not including any damages arising from any conduct set forth in Section 6.3(a)(i)-(iv) of the Logistics Agreement); (d) Centurion Pecos is required to reimburse Calce the amount of expenses that he has paid or incurred to date in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos; (e) Centurion Pecos is required to reimburse Calce the amount of expenses that he pays or incurs in the future in defending himself against the claims brought DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 8 9190395.1/SP/38371/0105/073117 MR.031  against him in this lawsuit that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos; and (f) In the unlikely event that any liability be found on the part of Calce, Centurion Pecos is required to indemnify Calce and hold him harmless from any damages that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos (not including any damages arising from any conduct set forth in Section 6.3(a)(i)-(iv) of the Pecos Original Agreement and Pecos Amended Agreement). COUNT 2: BREACH OF CONTRACT (CENTURION LOGISTICS) 26. Calce restates and incorporates the allegations contained in the preceding paragraphs. 27. The Logistics Agreement constitutes a valid and enforceable contract. Centurion Logistics breached the Logistics Agreement by failing to reimburse Calce the amount of expenses he has paid and incurred in defending himself against the claims brought against him in this lawsuit that relate to either (1) the business of Centurion Logistics and/or (2) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics. Calce performed, tendered performance of, or was excused from performing any of his obligations under the Logistics Agreement. 28. As a result of Centurion Logistics’ breach, Calce has suffered actual damages. Calce is entitled to recover such damages from Centurion Logistics. DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 9 9190395.1/SP/38371/0105/073117 MR.032  COUNT 3: BREACH OF CONTRACT (CENTURION PECOS) 29. Calce restates and incorporates the allegations contained in the preceding paragraphs. 30. The Pecos Original Agreement and the Pecos Amended Agreement constitute valid and enforceable contracts. Centurion Pecos breached the Pecos Original Agreement and the Pecos Amended Agreement by failing to reimburse Calce the amount of expenses he has paid and incurred in defending himself against the claims brought against him in this lawsuit that relate to either (1) the business of Centurion Pecos and/or (2) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos or as the president of Centurion Pecos. Calce performed, tendered performance of, or was excused from performing any of his obligations under the Pecos Original Agreement and the Pecos Amended Agreement. 31. As a result of Centurion Pecos’ breach, Calce has suffered actual damages. Calce is entitled to recover such damages from Centurion Pecos. VII. ATTORNEYS’ FEES 32. Calce restates and incorporates the allegations contained in the preceding paragraphs. 33. Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, Calce seeks an award of his reasonable and necessary attorneys’ fees and costs incurred in prosecuting his declaratory judgment claim and for any appeal. 34. Calce is further entitled to and hereby requests judgment for his reasonable and necessary attorneys’ fees incurred in bringing this counterclaim and for any appeal pursuant to Section 38.001 of the Texas Civil Practice and Remedies Code. Calce either has or will present DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 10 9190395.1/SP/38371/0105/073117 MR.033 his claim to Plaintiff or to a duly authorized agent of Plaintiff in accordance with Section 38.002 of the Texas Civil Practice and Remedies Code. VIII. CONDITIONS PRECEDENT 35. All conditions precedent to maintaining this action have occurred and been satisfied or have been excused or waived. IX. PRAYER Counter-Plaintiff John Calce requests that, upon final hearing, Calce have judgment against Counter-Defendants Centurion Logistics LLC and Centurion Pecos Terminal LLC as follows: 1. A declaration that Centurion Logistics is required to reimburse Calce the amount of expenses that he has paid or incurred to date in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics; 2. A declaration that Centurion Logistics is required to reimburse Calce the amount of expenses that he pays or incurs in the future in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics; 3. A declaration that, in the unlikely event that any liability be found on the part of Calce, Centurion Logistics is required to indemnify Calce and hold him harmless from any damages that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics (not including any damages arising from any conduct set forth in Section 6.3(a)(i)-(iv) of the Logistics Agreement); 4. A declaration that Centurion Pecos is required to reimburse Calce the amount of expenses that he has paid or incurred to date in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 11 9190395.1/SP/38371/0105/073117 MR.034  Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos; 5. A declaration that Centurion Pecos is required to reimburse Calce the amount of expenses that he pays or incurs in the future in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos; 6. A declaration that, in the unlikely event that any liability be found on the part of Calce, Centurion Pecos is required to indemnify Calce and hold him harmless from any damages that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos (not including any damages arising from any conduct set forth in Section 6.3(a)(i)-(iv) of the Pecos Original Agreement and Pecos Amended Agreement); 7. Judgment against Centurion Logistics for the amount of expenses, including attorneys’ fees, paid or incurred by Calce in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Logistics and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Logistics; 8. Judgment against Centurion Pecos for the amount of expenses, including attorneys’ fees, paid or incurred by Calce in defending himself against the claims brought against him in this lawsuit that relate to either (i) the business of Centurion Pecos and/or (ii) any alleged acts or omissions that were purportedly taken or made by Calce in his capacity as a manager of Centurion Pecos; 9. Judgment against Counter-Defendants for Calce’s reasonable and necessary attorneys’ fees incurred in pursuing this counterclaim; 10. Judgment against Counter-Defendants for pre- and post-judgment interest as provided by law; 11. Judgment against Counter-Defendants for Calce’s costs of suit; and 12. Such other and further relief to which Calce may be justly entitled. DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 12 9190395.1/SP/38371/0105/073117 MR.035  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 DEFENDANTS JOHN CALCE, CENTURION MIDSTREAM GROUP, LLC, CENTURION TERMINALS, LLC, AND STAMPEDE TX ENERGY, LLC CERTIFICATE OF SERVICE The undersigned counsel certifies that on the 31st day of July, 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 DEFENDANT/COUNTER-PLAINTIFF JOHN CALCE’S ORIGINAL COUNTERCLAIM AGAINST CENTURION LOGISTICS LLC AND CENTURION PECOS TERMINAL LLC PAGE 13 9190395.1/SP/38371/0105/073117 MR.036 EXHIBIT A MR.037  COMPANY AGRF:F:MF:NT OF Centurion Logistics LLC a Texas Limited Liability Com pan~' Effoctivc September· 16, 2013 THE MEMBERSHIP INTERESTS REPRESENTED BY THIS AGREEl\ilENT HAVE NOT BEEN REGISTERED UNDER ANY SECURITrns LA ws AND MAy NOT HE SOLD, PLEDGED OR OTHERWISF: TRANSFERRF.D ABSENT SUCH l~EGISTl~ATION OR AN EXEMPTION THEREFROM. THE TRANSFER OF rvmMBERSIIIP INTERESTS IS FORTHER RESTRICTED B\' ARTICLI~'. x OF THIS AGREl<:MENT. CALCE01478 MR.038  T AHLE OF CONTENTS Page AH.TIC~ LE l DEFINITIONS ........................................................................................................ t 1. l. Delined Tcnns ......................................................................................................... l 1.1. Usage ..................................................................... .................................................. 4 ARTICLE fl ORGANIZATIONAL MATTERS ...................................................................... 5 2.1. Fonnation ................................................................................................................ 5 2.2. Naine ....................................................................................................................... 5 2.3. Registered Office and Agent; Principal Office ....................................................... 5 2.4. Tenn ........................................................................................................................ 5 2.5. Purposes .............................................................. ...... ........................... .................... 5 2.6. Po\vers ..................................................................................................................... 5 2.7. Co1npany Properly ................................................................................................... 5 2.8. Initial l'vlc111bers ............................. .......................................................................... 6 2.9 Options to Acquire Additional Uni1s ....................................................................... 6 2.10 Consent of lvfanagers ............................................................................................... 6 2. l 1. Status of Managers and Members .......................................................................... 6 2.12. Unit Certificates .......................................................................... ,........................... 6 2. l J. No State Law Partnership ........................................................................................ 6 ARTICLE III CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS .............................. 6 J . l. Initial Capital Contributions .................................................................................... 6 3.2. Additional Capital Contributions ............................................................................ 6 3J . Capital Accounts ............................................................................................... ...... 7 3.4. No Right to Return of or Interest on Capit~tl Account ........................................, ... 7 3.5 . Me1nbcr Loans ............................... .................................................................. .. ...... 7 3.6. i\1e1nber Notes ......................................................................... ................................ 7 ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS ....................................................... 8 4.1. Allocation of Profit ()r Loss ..................................................................................... 8 4.2. or Disnibutions Distributable Cash ......................................................................... 8 4.3. \Vithholding ............................................................................................................. 8 4.4 . Limitation on Distributions ..................................................................................... 8 45. No Right to Partition or Distributions in Kind ........................................................ 9 ARTl(~LF. V l\ilANAGEiVIENT............................................................................................... ~ ... 9 5. I . Management and Control of Company Business .................................................... 9 5.2. Delegation of Authority ......................................................................................... I 0 5.3. Limitations on Manager Authority ........................................................................ 10 5.4. Reliance ................................................................................................................. 10 5.5. Co111pens<1tion and Expenses of Members and Managers ................................. .... 10 5.6. Standards of Manager and Member Conduct ........................................................ 10 C0:\11'.\'\\ Al;HH:\IDl OF C•:'>ll HIO:\ Loc;JSTICS LLC P _\(;E i CALCE01479 MR.039  5.7. Resignation, Removal, an' ,\Glu:nH:Sr m CC\j l f!IO;\ l,()(;ISTIC"S LLC F:~llllll'I' A 11 SOK.\S1·2 2-' I 1 '~0 I.\ CALCE01484 MR.044  ··Prohibited Transfer" means any lnmsfcr of a lvfembcrsliip !n1ercst that is not a Perm ilted Transt'er. "Requisite Perccnta~e·· means one or more Members owning more than seventy ~Ive percent ( 75.0%) oC the Percentage Interests owned by all t-.1le111bers entitled to vote on the particular issue. ··substituted M~rnbt!r .. means a person who is admitted as a Nfernher to the Company pursuant to Section 11.1 with respect to the transfer of an existil1g rvkrnbership Interest. ··Units" means units of Membership Interest in the Comp11ny. 1.2. Usag~. In this Agreement. unless a clear contrary intention appears: (a) the singular number includes the plural number and vice versa: (b) refei·cnce to any person includes such person's successors and assigns but, ii. applicable, only if such successors and assigns arc not prohibited by this Agreement, and rdcrencc to a pcr.-;on in a particular capacity excludes such person in any other cupacity or indiv:duatty; (c) reference to any gender includes the othc1· gender and the neuter; (d) rckrencc to any agreement or other document means such agreement or other document as amended or modified and in effect from time to time; (c) relercnce \o any sUHute, regulation. or other legal requirement means such legal requi1·eme11t as amended. modified, codilied, replaced, or reenacted. in whole or in purl, and in cffec~ from time to time. including rules and regulations promulgated thereunder. and refcn:nce Lo any section or other provision of any legal requirement meims !hat provision of »uch legal requirement Crom time to time in effect and constituting the substantive amendment, modltication, codification. replacement, or reenactment of such section ()f other provision: (t) "hereunder." '"hereof:' '"hereto:· and words of similar import refer to this ;\grccment as a whole nls thereto. ARTICLE II ORGAN IZATIONA L MATTERS 2. 1. Formation. rhe Comprul) \HIS formed pursuant lo !he Ccl'liticntc of Formation or the Company filed with the l't!xas Secretary of State effecti ve as oft he Formation Date. 2.2. Name. The Company"s name is as set forth in the Cert ification or Formation. The Managers may change the Company name at any time without the apprnvu l of any Member by liling a Certificate of ;\111cndment. fhe Managers shall provide notice or the change to all Members. -n1c Company's business may be cuntlndcd under its name and/or any other name or names deemed advisable by lhe Managers. The Man<1gers shaU cause to be executed and fi led of record all assumed or fictitious name certificates required by la\\. 1 "· -·-' Registered Office and A!!ent Principal 011ice. (a) The stree t address of the initial registered office o f the Compan) in Texas and the nnme of the initial registered agent or the Compuny are as set l'orth in the Certificate or Formation. The Managers may change the Company's registered oflice m registered agent tlt any time by liling a Change of Registered Agent and/or Registered Office as provided in the Code. The Managers shall pro\'ide notice orthe change to all Members. (b) fhe address or the principal onice of the Company in thl? United States where rt.:cords are to be kept or made avai lable under Section 101.501 of' the Code shall be as determined by the Manag.crs. The Managers may change the Company's principal office in the llnitt:d States at any tline ttpon notice to the Members. The Company shall keep at its registered olfa.:e and make available to a Member on re11so1wble request the street address or the Company's principa l oftic0 in the United States. 2.4. Term. The Company will ex ist pcrpctunlly and will continue until term inated in accordance with Article XIII. 2.5. Purposes. I he purposes of the Co mpan~ are to cngag.c in uny activities that arc permitted under applicable laws. 2.6. Powers. Subject to any limirutions in thi s Agreement. the Company may exercise the power to do any and nil acts reasonably rclat~'d to its purposes. 2.7. Compnnv Property. (a) /\ II Compan) pro pert) shall be O\\ ncd in the name ol" the Compan~ and not in the name of any Member. No Member or Assignee \\ ill hfl\ e an} inleresl in such Company property solel) by reason-ol'the Member' s status as a Member. Ct>\11' \ '\ \ A<;ttU.\I I '\ I m C t·:' 11 KIO'\ LOG ISTIC 'i L LC Ex111u11 1\ 11 50R48' 2 ~1 1 21211 11 CALCE01486 MR.046  (b) The i\-lanagers shall deposit or invest all fonds of the Company in an account or accounts in the name of the Company. No funds other than the funds of the Co111pany ma:y be deposited therein. The funds in such accounts shall be used e,Xclusivcly for the business of the Company (including distributions to the Members) 11nd may be withdrmvn only by persons approved by the Managers. 2.8. Initial Member$.. In connection with the formation of tire Company, the persons executing this Agreement as of the Effective Date ("Initial Members'') arc mimitted to th0 Company as Members. The number of Units held by each of the Initial Members as or the 1--:ffeetivc Date arc set forth next to the Initial Members~ nmncs on Exhibit ..A.'' 2.9. Consent of Members. Each person executing this Agreement consents to the admission as members in the Company all of' the Initial Members and all other persons who are Members as of the date such person executes this Agreement and further consents Lo the issuance of additional U11its as provided in Section 2.9. 2.. l 0 Status of !vlanagers and Members. Lxeept as otherwise provided by this Agreement, the tv1anagers have the status, rights. and obligations of a manager in a lim:ted liability company as set forth in the Code, and each Member has the status, rights, and obligations of a member in a limited liability company as set fo1th in the Code. 2.11 . Unit Certificates. Each Me111bcr"s Units may be represented by a Unit Certificate. If Unit Certificates are issued, each Unit Certificate shall be number<.!d and registered in the records of the Company as they are issued, and signed by any of the Managers. The holder or any Unit Certificate shall promptly 11otit)· the Company of any loss or destruction of the certificate, and the Managers shall cause a replacement certificate to be issued to the holder upmt receipt or satisfactory evidence ol' the kiss. destruction. or mutilation or the certificate and satisfaction of other reasonable conditions. 2.12. 1\o State Lav,' Partnership. The Members inknd that the Company is not a partnership or joint venture,. and that no Manager or Member is a partner or a joinL \·enture1· of any other Manager or Member for any purposes other than income tax purposes. No provision of this Agreement may be construed to suggest otherwise. ARTICLE III CAPITAL CONTJUBlJTIONS; CAPITAL ACCOUNTS 3. I. Initial Capital Contributions. Each Mernber" s Initial Capital ContribLttion is set f(}1th DllEx hi bit A. 3.2. Additional Capital Contributions. A Member is not required lo tnake Additional Capital Contributions to the Company. No Member has the right ot is permitted to make Additional Capital Contributions unless (a) all of the lvfanagers and a Requisite Percentage approves sLtch -Additional Capital Contribution after notice to all Members of (i) the amount ol' \he 1\dditional Capital Contribution to be made and (ii} other material information relevant to the E.:\HHllT A I 151J1l~8\1 ~ 'I ~,1111~ CALCE01487 MR.047 proposed Additional Capital Contribution. and (b) all Members arc afforded an opportunity to participak in the Addi tional Capital Contribution in accordance with their rclath e Percentage Interests. 3.J. Capital Accounts. The Company shall establish a separate Capital Account for each Member and Assignee. The Capita l Accounts shall be maintai ned accord ing to the provisions oi' Ap_pcndix !\. JA. No Right to Return o f or Interest on Capital /\ccouut. No Member may demand or receive lllc return of its Capiwl Contribution or· any portion o f i.ts Capital Account. except as provided in thi s Agreement and lhe Code. The Managers do not bave any personal liability lor the repayment of any Capital Contributions of any t!ember. No interest \Yill accrnc or be paid with respc<.:t to the Capi tal Corltrlhutions or Capital Account o l' any Member. 3.5. Member Loans. Su ~ject lo the approva l of nil ol' the Managers, the Company 11Hl) borrow money from one or mon: Members Lo the extent the Managers deem Hppropriate to the Clilld uct or the Ct)lllpany business 011 tenns that comply wi th the requ irements or Section 5.6(c) (re lating to related party trnnsactions). The amlH111 l of any loan made to the Company by a Member \\ ii I not constitute a Capital Contribution or othern ise affect such Member" s C'npitnl Account or Membershir Lnten::st. 3.6. Member Notes. In connection with the execution or thi s Agreement. the Company expects to issue promissol') 1wtes to certain Members in connection with assets that rile Members have trnnsfcrred 10 the Company or expenses that the Members have incurred on behalr or the Company ("Member Notes"). For Cc:deral income tnx purposes. the Members intend thnt each Member Note be characterized as a preferred membership interest (equity) in the Company. thnt a holder's right to any interest or original issllc discount on the Member 1 ote be charnctcriled as a right to a distributi ve share of Company income and not as a guara111t•ed payment under l.R.C'. Section 707(c ). and th al all payments with respect Lo the Member Note be cha111ctcrized as a distribution \\ ith respect to a membership interest. Allocations of profit or loss and lax items as pro,·ided in Section 4.1 and Section A.5 or Appendix 1\ sha ll be aqjusted as necessary, as determined by lh\! Managers, l o rctkct Lhe preferred membership interest dccmt!d to be held by the holders of the Member Notes. 1:or thi s purpose. the fvkmbers intend that only net profit or nel loss. and onl) net taxable income or loss (rather than items thereof). for an) all ocation period wil l be nllrn:ated with res pect to the Member otes. fo r exampk, irthere is net \frxable income fo r the period from Lhe issue date o f the Member Notes through the end ol' 2009. it is intenckd that such net wxnble income \\"ill be nllocated to the Member Notes holders to the extent or nny accrued interest or original issue discoum on the Member Notes. und If there is a 11 ~t taxable loss for s uch period, it is intended that such net taxable loss will be ul locmed first to the Members to the extent ol' their Capital Contdfrntions fi nd then 10 the holders or the Member Notes. ( ' 0 \1 PA"\\ /\(;nn . \11."\ I Of. CF"\ 11 !U0:-1 LO<: ' " I IC'S LLC F::-; 1m11 1 A I l~IJ~~l!11 2 l l1ll l l~ CALCE01488 MR.048  ARTICLE IV ALLOCATIONS AND lllSTRIBUTIONS 4. l . ~!location of Profit or Loss. Subject to Section_~Q. Company profits and losses shall be allocated among the l'vkmbcrs and Assignees in accordance with the provisions of Appendix A or as is determined by the Managers. The l\ilembcrs are aware of the income tax conscq uences 0 r the allocul i(.rns. 4.2 . Distributions of Distributable Cash . (a) Except as otherwise provided in Section 4.3 (rdating to \Vithholding), Section 4.4 (relating to Einitatiolls on distributions). or Section 13.4 (relating to liquidating distributions). any Distributable Cash shall be: distributed not later than the 3011' day after the end of each fiscal ((L1arter to the Members and Assignees according to their Percentage Interests unless othcnvise determined by the Managers. The Managers may provide for a record date with respect m distributions. (b) To Lhe extent it may lawfully do so. the Company shall make distributions to Members and Assignees in accordance with Section 4.2(a) and Section ! 3.4(a)(iii) at such times and in such nrnounts as the ivfanagers determine is sufficient to enable Members and Assignees t<) make payments of tax due (including any applicable interest and penalties) with respect to their allocable shares ol' the Company's taxable income. Unless the Managet's determine otherwise. the taxes due ti..w each Member and Assignee shall be calculated by assu111ing that the Jvfember or Assignee is an individual taxed at the highest lax rate other Indenmi lied Person for an) Damages arising from an) Proceeding rela1ing to the conduct of the Company·s business or rdating to nny at:l or omission by the Indemnified Person within the scope or the Indemnified Person's ;;1uthority in the course of th\'! Company's business, including any breach or any fiduciary duties. or for any misconduct M negligence on the part or any other person who is an e111ployee or agent or the Company. 6.2. lndc111nification by Cornpan\ . ·1Cl the fu llest extent permitted by applicable la\ . and subject Lo Section 6.3. the Company indemnifies and holds hnnnkss each lndenrnilied Person from and against any Damages arising from any Proceeding rclnting lo the conduct or the Company·s business or to any act or omission b. such Indemnified Person within the scope or the Indemnified Pcrson·s authority in the course of the Compan>·s business or for an} misconduct or negligence on the part or any other person that is an employee or agent of the Company. An Indemn ified Person· s expenses paid or in(;urred in defend ing itself against an) Proceeding shall be reilllbmsed as paid or incurred. The right to inde11111ifi1.:atio11 confe rred in this Article VI is not exclusive or any other right that any person may have or hereafter acquire under any statute, agreement. vote of Members, or otherwise. 6.J. Conduct Not Protected. (a) This Article V I does not operate to limit liability or lo indcmnif) a person to thl' extent the person is found liable pursuant to a final j udgmcnl of a courl of <.:Ompetent jurisdiction l ~)r: (i) an ad or omission that involves gross negligence, intentiona l misconduct, or a knowi ng violHtion of law: (ii ) o tmnsfer or attempted transfer or all or a porlion of n Membership Interest in a Prohibited Tran fer. a Manager's resignation in Yiolation of' Section 5. 7(a}. or a Member ceasing to be a Member in' iolauon or Section I?. I(a): (ii i) a willful or reckless material breach of this Agreement or any oLht:r agreement rcluting to the Company's business; or (iv) un act or omission for which i11de11111ification is prohibited by law. (b) No provision of this Agreement requi res 1he Company lO puy or incur any amount !'or which indcmnilication is not permitted under this Article VL ( c) t\11r payments made to or Otl bd mlr or H person who is Inter determined not lo be emit led to such payments shall be repaid by t'h<:: person to the Compan). The Company mny C0\11'.\ " ' A1an:r.,n::-. 1 m C t ~ 11 IHO\ L oG1s 11c'\ LLC E.'\111Bn A I 1 508~ .~12 21 1 ~12011 CALCE01494 MR.054 requi re. as n cond ition tn the paymt'.!111 nf' any amounts pu rsuant to Section 6.2. that thL' Indemnified Person proviue to the Cornp(lny (i) a wriuen affi rmation by the Indemnified Person of !he person·s good faith belier that the person has met the standard of conduct necessary for indemnification under this Section 6.J: and (i i) a \Hillen umlertnl-.ing b) or on behal f of the Inde111ni fkd Person to repay the amount paid or reimbursed i !" the person has not met that standurd or if indemnitication is otherwise prohibited by law. 6.4. Insurance. rl1c Company may maintain insurance to protect any person ngain 1 any expense, liability. or loss. \\ hether or not the Company would ha\·e the power IO indemnil) such person against such expense, liabi li ty, or loss under the Code. 6.5. Sun ival. The indemnities provided for in this Agl'ccment survive the transfer ul' itn Indemnified Pcrson· s Membership Interest. the ten11ina1ion of 1he pel'son· ::. status as a tvkm ber or other status giving rise lO classification as an Imkmni lied Person. and the termination of thi s Agreement nnd the Company. ARTICLE VII BO OKS AN O R ECORDS; RlW OlffS 7.1 . Ma intenance or and Access to Books unu Record s. The Compnny shall mainta in such books and records regarding the Company's business and properties as is reasonabk includ ing all books and record:; 1~qu i !'ed under the Code. Each Member shall ha\ c access th~reto during ordinary business hours lo tbe extent and under the conditions provided in thl.! Code. 7.2. Fiscal Year. ·1he Company shall adopt the cn lendnr year as ils fiscal yenr !'or linanc ial and tax accounting purposes. 7.3. Financ ial and Operating Reports. As soon as practicable after the end or euch liscnl year. but in any event nol later lhun 90 days nftcr the end ol' the fiscal year, the Managers shall dcli\·er lo each Member Rn annual report containin~ the fo ll owi ng: (n) a Company balance sheet as of the encl of such liscnl year. and Compa ny statements or income. cash !lows. and changes in Members· equity fo r such fisca l year. each in reasonable detail and [Jrepnrcd according to United Slates generally accepted accounting. pri111.:iples: (b) a general description of the Compan; ·s ac tivities during such fiscal year and business plans for the succeeding year; and (c) a stmement of clmnges in the Member's Capital Accoum (sho\\1ng the balance in tlH: Mernber·s Capi tal !\ccnl!nl as l)I' the beginning of the t'lscHI year. contributions or distributions dt1ring the yccll'. allocations of prolits and losses during the year, any other ~1dj u s1ments to the Capital J\ i:c:ount bala1ices during the year. and the balance in the C11 pita l Account as of the end of Lhc ycor). C0\1 1' \ ;\;\ ACltl.:•. "'':,~r OF C l·., 111t10' LO!:is 11 ('~ LLC E.x 1111111 A (l~UR~R' l~ 1110 1l CALCE01495 MR.055  7.4. rax Reports. (!\) Not later 1ha11 the date (including extt:nsions) for Jiling 1he Con\pany" s tax return with the Internal Revenue Service (form I065 ), the Managers shall del iver to each person who was a Member or Assignee at any time during the period covered by the return all information necessary ror the preparation of such person· s United States fCJcrnl income tax returns. including a Form 1065 Schedule K- 1 (if applicable). (b) Upon the \\l'illen req uest of any Member or /\ ·signee, the Managers shall delivcl' to such person information necessary !'or the preparat ion of' any tax returns tlrnt must be ti led hy such person. including i11km11a1ion necessa ry lo r estimating and paying estimated t11xes. 7.5. Transmission orCommunications. Each person who holds n J\krnbership Interest on behalf or. or fr>r the benefit of. another person or persons shall be responsible fo r coll\·eying any report. notice. or other communi cation received concerning the Company' s nffairs to such other person or persons. ARTICLE vnr TAX MAT TERS 8.1. Tax Classilication. The Members intend th<1l lhl! Company be classi fied HS a partnersh ip fo r federal inl'omc tax purposes. The Managers shall lake all actions as are or may be reasonably necessary or appropriate to ensure the Co111 po11y is so classi lied (including the filing or l!lcct ions or tax returns). No Manager, officer. or Member sh alI take any action inconsistc111 with the t:lassilication or the Company as a partnership for lcdcrnl income tax purposes. 8.2. Company Returns. The Managers shall cause the Compan) lo file such tax returns ns may be req uired by law. 8.3. Tax Elections, (a) General. Except as othcrn ise provided in this Agreement. the Managers shall cause thi:! Company 10 timely make or revoke all elections, and take all ta:< reporting positions. necessary or desirable for the Company and l o maxim ize the tax benefits 10 the Members. No elec tion shall be made to have lite Compa1i.. exc luded from the applicatilm of any provision ur Subchaptcr K or Lhe I. R.C. or any equivalent tax provision in any other ta:-; jurisdiction. ( b) Section 75·1 l~kction. The Co111pnny shal1 make the election rclc m;d to in £.R.C:. Secti on 75..i. upon the request of any Ml!mber in connection with a transfer or the Member· s Mem bcrshi p Interest. (c} S11fe I !arbor Election for Conrnensatorv Ml!tnbcrship Interests. If Proposed T reastir) Regulation 1.83-3( I) is adopted as a temporary or ll11al regulation. the Company shall make the safe harbor election descri bed in such regulations. nncl the Company and each Member E:x1111111 i\ 11 508~8\22/ l.:?'21ll I CALCE01496 MR.056 (including anr person to whom an intere t in the Compan) is lransll!t'l'ccl in connection with the perfornu1111.:c of ser\ ices) shall comp!) "ith all requirements ol'the safe harbor with respect to all Membership lnterc:sls transferred in cc11mectio11 'vvith the pcrlormance or services while tile dection remains effective. The Managers shall prepare. execute, and tile any requi red docu1nentarion to cause the election to bt: effecti,·c. Ille Managers may terminate the safe hnrbor election nt any time if it determines in ~ood faith that it is in the best interests or the CO IUf>Hll~ and the Members to do so. 8.-1. Consistent Reporting. Each J\rfember shall, on the Member· s ta:-. returns. treat ench partnership item (as delined in l.R.C. Section 623 1{a)(3)) in a manner consistent wi th the treatmem or the item on the Company's return in all res pect~. including 1he amount, timing, and character of the item. No Member shall file a request !or an administrative Cldjusunenl of partnershi p items under l.R.C. Section 6227(a) if such request would cause 1he Member"s treatment orthe item to be im:onsistent with the treatment or the item 011 the Company 's return . 8.5. Ta-: Proceedini:ts. (u) The Managers shnll be the Compnny·s tax matters partner as dclinetl in l.R.C. Section 623 1. and shall take such actions as are required to be designated lhe ta~x matters partner under applicable ·1rcasury Regulntions. The tax mallers partner shall n:presem the Company in connect ion with all exami11<1tions o f the Company's tax returns by tax authorit ies. includ ing adm inistrati ve and judicial proceed ings to contest any proposed adjustments. Subject to Section 8.5(c). the tax mn1te1·s partner has the exclusi vi.: right to conduct Proceedings relating lo C'ompa11:, taxes and to determine whether the Company (either on its own bcha lr or on bchall' of the Members) will contest or continue to contest a11y lnx dt:liciencics assessed or proposed to be assessed by any taxing authority. The tax mailers partner shall keep 1he Members informed on a timely basis or all material developments with respect lo an) such Proceeding. Each Memhcr shall cooperate with the tax malters partner and do or refrain fro m doing all things reasonably requested by tJ1e tax niatters pnrlner with respect to lhe conduct or any Company tax Proceeding. (bl The tax mailers partner may not bind any other ~ ! e mber Ill n selllerncnt agreement rd,1ting. to laxes without obtaining the written concurrence ot\ uch Member. (c) A n~ dclicienc) for taxes imposed on a Memb~r (including penalties. additions Lo tax or interest impo~ed with respect to such Laxes) shall be pnid by such Member nnd. if paid or required lo be p<1 id by the Campany. is rel':overnblc l'n:>1n such Me mber pursuant to Section 4.3 ur by other legal means. (d) This Section 8.5 and Section 8.6 Sll r\' i\' C' the termination nr Lhe Company and the termination of any Member's interest in the Company and r~· main bincling for a period or lime necessary Lo resolve all tax mailers with applicable taxi ng authorities. 8.6. Information and Documents lo Company. Each Member shall timdy pro\'ick to 1h1: Company all information and documents thnt such Member is required to provide by nµplic nblc tnx requi rements. and shall also pro\'idc to the Co111pa11: upon request such additio11al CU\11' " ' AC IU: E.\11.:'\ I °" C.::-.- I t IHO'I L oc:1s rn :-. LLC Cx11rn1 I' A I 151J848\'2 1' I 11.:W I~ CALCE01497 MR.057 inrormation and documents as the Managers may n:asonably request in co11ncction with the Cotnpany's cotnpli ance with appl icable l!\X req uirements or fil i11 g of nny permitted tax e l ecti on~. ARTICLE IX MEETINGS ANO VOTI NG OF MEMUF.l~S 9. 1. Meetings. (a) Meetings of the Members mny be calletl nt any 1i1ne by the Monogers or b) one or more Members holding at least 75.0% or the Percentage Interest held by Members. Meeting~ slHl ll be held al the Compa ny's principnl place of business or at suuh other reasonable plat:e set forth in the notice of the meeting. (b) A ny action lhat may be wkcn at a Members' meeti ng may be taken \\ ithout holding a meeting if Members having al least the Requisite Percentage interc:;l that would be necessary to lake the action al a meeting. in which em:h Member entitled to vok on the action is present and votes. ·ign a \Hillen consent or consents stating the action taken. (c) Except as otherwise prO\ idcd in this /\grcement, meeting notices nnd procedurt:s. including procedures for obtnining written consents in lieu of'a 1111.:cting. shall be in conformity with Chaplers 6 and 10 I ( 11) of the Code. Sections l 0 l.353 through J 01.356 or the Codi.: (relating to quorum and minimum voting requirements) shall not apply 10 the extent such provisions are inconsistent wi th this Agreement. The Managers ~re solely responsible for conveni ng and conducting meetings of the Members. conducting. the solicitati on of consents. or determ ining the vnlidity and effect of responses to any solicitation consents. and determining 01hc1· matters regarding meetings. voting. and consents. (d) Notke of 1hc results of any vote taken at a meeting. or the results or any solicitation of consents in li0u of a mt:eling. shall be given to the Members not later than ' vi th the delivery of the nex t fo llmvi ng report of tinaneial information given pursuant to Section 7.3. <>.2. Voting. A Member may vote at a meeting in person. or by a proxy executed in writing by the Member and received by the Managers prior to the time when the votes or Members are to be counted. The provisions or the Code pertai ning to the vnlidity and use or proxies by shareholders or i] corporation govern the validi ty and use or pro~ies given by Members. Only Members of record on the date of the meeting (or if the vote is conduc1cd withou1 a meeting then on the dalt: of the notice soliciting the Member consents) may vote. ARTICLE X TRANSFER OF MEMBERSlllP INTim ESTS l 0. 1. Li111i1ation 011 Transfers. (a) The term "transfer:· when used in rcl'erenct to a lranster of a Membershi p l rncrest. means un assignment (whether \Oluntat'ily. in,·oluntmily. ur by operation uf la\\ un with hold approval fo r the transfer or a Membersh ip Interest. a transfer shnll not be a P~ nnittcd Transfer un less the \ilam1gcrs determi n~ tlun ull of the following conditions are smistied: (a) The transfer complies with all applicable laws. including uny applicable securities ( b) rhc transfer \\ii l not cause the C\1rn1x111) to be 1reMed as other than a partnership for United States ledernl income tax: purposes. (c) The trnnsl'cr will not cause the Company to be subject to regulation under the Investment Compa ny /\ct of 1940. as nrnendeJ. (d) The translcr \\ill not cause any as'>ets of the Company to be deemed ..plan assets'· under the Einplo) ce Retirement Income Security 1\cl of 197-l. (e) The trnnsrer will not result in <1 tern1inalion or the Compn11) under l.R.C. Section 708. unless the Managers determine that such lcnninution wi ll not have nn adverse impact on the Mt:mbers. ( I) The trans for will not cause the application or the Lax-exempt use property rules or l.ltC. Sections t68(g)( I )( H) and 168(h) lo the Company or its Members. unless the Managers determine that such rules wi ll not have an adverse impact on the Members. (g) fhc transferor and transferee ha\'c delivered to the Compnny a1\)' documents thul tile Managers request to confirm that the transfer satis lies the requirements orthis Agreement. to gi\'e effect to the trunsle r. and to conlirm the transteree· s agreement lo be bound by this Agreement ns nn Assignee. (h) If requested by the Managers. thl' Company has received a tnms le r lee in a11 amount determined b) the Mmrngers to be S\ll'liCil.!nt to reimburse the Company for the estimated expenses like!) to be incurred by the Company in connection with such trnn ·ter. I 0.-l. Effective Date: Distributions. (a) 1\ Perm itted Trnnsfer or a Membership Interest is effcctiv1.: as ol' the lirst day or the calendar month fol lo\ving the calendar rnuntli during \\-hich the Mamtgers receive notice M such transfer (in such fo rm and manner as the Managers may require) unless the Managers determine that the transfer should be ef't'cctivC' as of an earlier or later date ( l~ir example. on an) date 1he1ranslcr is clli:cti ve as a matter ofs1arc la\\. or wherethe notic~ ()ftransfer specilies thm the tt"ansfer is to be effective on a future date}. C m11•\'\\ AG1u.1·.W .'\ 1 w C 1·.'\111HO'\ Loms n ('s LLC E Xllllll I A I l'lllSIX\ 2 ~1 1 21'.:!11 1 4 CALCE01500 MR.060  (b) Distributions with respect to a transrerrcd Membership rntercst tbot arc made be l'orc lhe effective dale o r the lransrer shall be paid l tl the trans feror. aml uis1ributio11s mad1: nlh:r such date shull be paid lo lhe Assignee. tc) Effecti ve as or the effective date of n mrnsfer or a Membership Interest. the Munagcrs shall amend Exhibit A lo reflect the reducti on in the trnnsteror' s Percentage Interest ancl tl) re fl eel the Assignee· s l'~rcen tage Intercsl. (d) Neither the Company nor the Managers have any liability for making allocations and distribut ions to the Members dctcrmi ned in acCl>1'dnnce with thi s Section I0.4. whether or not the Company or the Managers have knowledge ol' uny transler of any Membership Interest. I 0.5. Transferor" s Obliuations. !11e transferor or a Membership I ntcrcst \'vho ceases lo bl.! n Member continues to be obligated wi th respect to its Membership Interest or its status as n l(rn11er Member ns provided in the Code and appli cable lnw. 10.6. Assignee·s Ri~hts and Obliltations. Unless an Assignee becomes a Member pursunnt lo Article XL such Assignee shal l not be entitled to any or the rights granted lti n Member. other than the rights to receive al locatio11:" or profit. and losses and distributions as ir such Assignee were a Member. to transfer the Assignee·s Membership Interest (subject to the conditions of this Article X). and to receiYe reports and inlo rmation as specilied in Article VII. An Assignee or a Membership Interest shall succeed to the Capita l Contribution or the transferor to the extent or the Membership Interest transfened. An Assignee is bound by this Agreement irrespective of\ hether lhL" Assignee has signed or otherwise adopted this Agreement. An Assignee's Membership Jntcrest may be redeemed at the option or the Managers as provided in S1.:ction 12.3. 10.7. Ef'tcct and Conseq uences of' Prohibited Transfer. (a) Except as otherwise required by la\\. the Company and the Managers shall trem a Pr~)hibitedTransfer ns void and shall reeogniLe 1hc tra nsferor as conti nuing 10 be the owner or the Membership Interest purported to be transfern:d , If the Company is required by law to recognize a Prohibited Transfer. the trans force sha ll be treated as on Assignee \\ ith respect to the kmbership Interest transferred nnd mn) not be treutcd as <1 Member wil h respect to th..: ivkmbership 1ntercst transferred unkss admitted as a ~1kmber in accordance with Article XI. (b) The Company may remove the tram;l"eror and Assignee with respect to a Prohibited Transrer as pro\ ided in Artick x_t I. (c) Tht' trans!e ror und trnnslercc '"iLh respect 10 a Prohibited Transfer shall bejoi ntl) and severally liable to the Company for, and shall indemni ty and hold the Company hann kss against. any expense. liability. or loss incmred by the Company (i11cl11ding reasonable legal fees and C'\penses) as a result or such Iranster. their remo\ al and liquidation ol' their Membership !ntNcsis (if applicabte). and the efforts to ~nforce the indcrnnit) grnntcd in this Section 10.7C c ). Ex111111I i\ 115()g4g,.! 211.!•.!0I I CALCE01501 MR.061  I 0.8. Agreements of Spouse: Sole Manugcment Conununil) Prnpert\ . (fl) Execution of Spousal .loinder and Consent. The spouse of each Member shall cxec11 tc anhip Interest on the date on which all or the following conditions are satislled: (a ) The Managers ha,·c approved in \vriting the ad111ission of the Substituted Mcni bcr. (b) The Assignee has de livered lo the Company any agreements and other docu111c11Ls that the Managers request to confirm such Ass ignee as a Member in the Company and such A ss ig n ~c · s agreement to be bound by this Agree111ent as n Member. E\ 11 rnn f\ 115Ull4X 1 1~l ll/2iil 1 CALCE01502 MR.062  (c) If requested by the ;-,fanagers, the Comp~ny has received un admission fee in an amount determined by the rvlanagers to be sufficient to reimburse the Company lo.f the estimated expenses likely to be incurred by the Company in connection with the admission of the Assignee as a Sltbstitutcd Member. I 1.2. 6dditional ivlernbers. (11) ln Genen1l. The. Mtmag<..:rs may cm1se the Company tu ad111il a person as an Additional Member and issue Additional Units to such Additional Member upon satisfaction of all of the fol!O\ving conditions. (i) /\. Requisite Percentage l:as approved the admission uf the Additional Member alter notice to all Members of (i) the Initial Capitnl Contriblltion to be made by the proposed Additional Member, (ii) the effect of the admission on each Partner's Percentage Interest. and (iii) other materiaJ information relevant to the proposed admission. (ii) The admission of the proposed Additional Member satisfies the applicable ..:onditions of Section 10.3. (iii) The proposed Additional Member has delivered to the Company any agreements and other documents that the Managers request to confirm the person as a Member ln the Company and the person's agreement to be bound by this Agreement as a Member. ARTICLE XU WITllDRAWAL OR Irn~IOVAL OF MF.MBERS 12.1 . \Vithdrawal of Members. (a) No Member may withdraw from the Company or otherwise cease to be a Member except upon the following events: (i) receipt by tht.: Company of a notice of such ~vternbcr's withdrawal fron~ the Company: (ii) a transfer of all or the Member's Membership Interest in a Permitted Transfer: or (iii) removal or the \1ember as a Member as pruvided in this t\gn:1:111enl. (b) A Member shall be deemed !() withdraw from the Company upon the following events: (i) an event specified in Section 12. [{u): Co.'111' \ ,,. A limitntions 011 distributions). l he Managers, or, ii' there is no Manager. a Requisite Percentag~, in~1) cause the Compuny to redeem the Membership Interest of an Assignee by pay ing the Assignee the Fair Vnluc of its Membership lnten.:st ns of the redemption date or the actual value or the Members Capital Account. Interest will ac:true al the Index Rate ~rn the amount o\\·cd under this Section 12.3 frnm the 30111 day after the redemption dale to the date the payment is made. The rcdcrn rit ion date shall be tlxed b) the Managers in accordance with the principles of Section IOA. Except a:; otherwise required by the l.R.C.. amounts paid in redemption of an Assignee's Membershi p Interest shall be treated as made in exchange for the interest or lite Assignee in Company property pursuant lo 1.R.C. Section 7J6(b)(I ). including the interest or such Assignee in Company goodwi ll. 12.4. Status or Fonner Member. A tvlember who withdraws or has been removed rrom the Company or otherwise ceases to be a Member has the status of an As ignec with respect to any Membership Interest held by such former 1cmber. Except as provided in Section 12.J (relating to optional redemption of a Membcr·s Membership Interest) or Article XIII (relating to winding up and term ination). such former Memher is not entitled to recl.'ive any payments under Sect ion 101.205 ol'thc Ccide. ARTICLE XIII WINDING lJP ANU T E RMIN ATION 13.1. Events Requiring Winding Up. The Company shall commence winding up procedures in accordnnce with this Agreement and the Code upon the l'irsl to occur of any or thl' lhlltm ing events: (a) a Requisite Percentage vote to wind up and terminate the Company: (b) a dl.'crce by a court requir ing the windi ng up of the Compnny; (c) the 1ermi11ation of membership nl'thc last remaining Member: or (d} the re ·ignation or removal ot' all 1 lanagers if the 1 kmbers lbil to elect a replacement Manager as provided in Section 5. 7(1). 13.2. Windim!. Up Prm:edures. (a) On the occurrence of an event rl:quiring winding up of the Company, nnless there is an action to continue the Company without wind ing up in accordance with Secti on 13.3. the Managers (or othcu Liqnidator as pro,,idcd bckrn) shal I. as soon as reasonabl y practicable. wind up the Company's business and affairs (including disposing of the Company's assets and npplying the proceeds as pro\'ided in Section 13.-t ) and tenui nate the Company in accorclan~t: \\ith this Agreement ond the Code. The Company shall cease to ctm) on its business (except to the extent neccssur) to "ind up its business). collect and sell ib property lo the extent the \0 \11',\ ~ \ Ac..au:1·: \H,' " ' 01· C' I·.' I I, ltlO' LOGIS I I C., LLC E:x11mn A 1 1 5\)8~8\2 2112•2011 CALCE01505 MR.065 property is not to be translCrr~d or distributed in kind. and µc rfomi any other act required to'' incl up its busit1ess and affai rs. (b) If the Mu11Hgers have wrongfully caused the windi ng up or the Company or if there is 110 Manager, (i) a Requ isi te Percentage may vote to elect a person or persons to accomplish the w inding up or the Company. or (ii) if the Members foi l to \!led a person to accomplish winding up the Company. then an) Member or Assignee may petition a court tL> wind up the Compan) as provided in Section I 1.054 of the Code. The pcl'son or persons winJing up !he Cu111pa11). \\hcthtr Lht: Mam1gers ur an dcctt'd ur 1.:uun appointed persun ut persons. is referred lo in thi s Agreement us the .. Liquidator.'· (c) The Liquidator may determine the time. manner. and terms of any sn le or sales ol' Company properly pursuant to such winding up. The Liquidator (if not the M u1mgers) is entitled to receive rensonablc compcnsmion for its ser\'ices: may exercise all or the powers conforrl;!d upon. the Managers under this Agreement Lo the extent nccessar) or desirable in the good faith judgment ol' the Liqu idator to perform its duties: and with respect to ae ts 1nkc11 or omitted w hile acting in such capacity on behalf or the Company, is entitled to the limi tatio11 o l' liability a11d indem11i [it.:ation rights set lorth in Article VI. (d} The Liquidator shall pro\•ide quarterly report · to the Members and Assignees during the \\inding up procedure showing the assets and liabilities of the Company. providing information and docu1m:11ts requ ired by the Members and 1\ssignces lo comply with thei r lax reporting obligations. and such other inCornrntion as the Liquidmor deems appropriate. W ith in u reasonable ti me after completing the windi ng 11p. the Liquidator shall give cuch Member and Assignee a linal statement setting forth the assets. liabi lities. and reserves or the Company ns or the date orcompletion of winding up. IJJ, Cominuation Without Wi11ding Up. (n) If there is a decision lo wind up and lerminak the Company ns described i11 Section 13.J Ca). the Compan) may be continued as provided in cction I 01.552 of the Code. ( b} ff there is a ccrmination o f the continued membership of the last remaining Member as described in Section lJ. I(c). then prior to completion of the wincling up process but not later than 90 days alter the event of termina tion. the Manngers may continue the Company by admi lling one or more M!.!mbers cftective as () I' the occurrence or the event or termination. 1\ny Assignee whose Percentage lnterest \\'OUld be diminished by reason or the admission or n11 Addi tional Member under the circumstances described in this ection 13.J(b) must apprO\c the admission of the Addit ional Member. 13.4. Liquidation ol' Assets and Application and Distribution of PrOL'.t.:i.:ds. (uJ 111 General. On winding up the Cornpan) . the Liquidator shnll tlisposc ot' Lhe Company·s properties and apply and tlis1ributt: the proceeds. or trans(er the C'o111pft11) prope11ics. in the following order orp1fori t~ : C0\11' \:'I y /\C ll EE \l t.'1 1 0 1· C F\' I l'l\10' Loc as·11c'" LLC E\'1111111 /\ H511~~8'21 ' 1! '101 I CALCE01506 MR.066  (i) to credi tors (i ncluding Members who are creditors) in accordance with their relati' c rights and priorities to satisfy the liabilities or the Company. including expenses associated with the " inding up and termination or the Compan}. but excluding any Company liability for nny unpaid Mandat01) Distributions: (i i) to Members. Assignees. nnd ronner Members to sntist'y the Company's liability for any unpaid tamlatory Distributions: and (iii) ro tvlcmbers and Assignees as provided in Sc1.:tion -l.2. (b) No Member Deficit Resto1·atio11 Obli gation. No Member is liable to the Company. to another Mcmbe1·. or lo n third party. ror the repayment or any ueficit II\ the Member· s Capital /\ccounl. C:'(cept as provided in Section 10 1.206 or the Code. (c) Rcserves. 111 the discretion or the Liquidator. a pro rata portion of the distributions LJiat wou ld otherwise be made pursuant lo Section 13 A(a)( ii ) and J.ilil may be withheld 10 provide a reasonable reserve for Company liabilities (contingent or othen;o,•1se) and future expenses. including N reasonable reserve for any clai ms Lbr indemnification under Art icle Yl and for any future expenses associated with any tax aud it or othc1· Proceeding that is pe11di11g OI' may arise. (tl) Pa\ ments anti Distributions to Members in Kind. f hc Liquidator ma~ not make any payments or distributions to Members or Assignees pursuant to Section 13.-i{a)( ii) or (ifil other than in easiJ unless all Members and Assignees receivi ng the property approve the transfrr in kind. The Liquidator shall determine the Fair Market Value or any property transferred lo Members or Assignees in kind according to the val uation procedures set fort h in Article XIV. (e) Churacter of Liguidating Distributions. Except ns otherwise ri;:quired by the l.R.C.. amounts pnid to Members pursuant to this Section 13.4 shall be !rented as made in exchange for the interest of' the Member in Company proper!) pllrSllant to l.R.C. Section 7J6(b)( l ). includ ing the interest of such Member in Company goo \\ ith the approval of a Rcquisitecl Percentage. (b) Exceptions and Limitations. The Managers may <1mend Exhi bit A from ti me to time to retlect the admission and withdrawa l or Members, and challges lO nny Member's Percentage Interest. in accorda nce with this .1\ gn.:ement. The Managers may use the power ur a llorney granted in St:ction 15. 12 to make mm-~ubstmHi ve amendments that do not adversely impact the rights or obli gations or any Manager or Member. No amenclrncnt of the Agreement may adversely affect any Mt:mber" s rights or obl igations under this Agreement (determi ned without taking into m:count the light or other Members lO am~ml the 1\grecment) without the adversely affected Member's approval. No amendment o r Article VI (relating to li ability and indemni fication) mny adversely affect !he rights or obligations or any Indemnified Person \Vithnut the Indemni tied Person's apprOvl't l. No amendment of I his Agreement may change the requirements under this Agreement f'or approving any action without the approval or the Members holding an aggregate Percentage Interest requi red to approve the action. 15.2. Notice. Any notice, report, or other communication req uired or permitted to be made lo nny person by this Agreement shall be in writing nnd is deemed given when (al deli vered to the person by hand. (b) the third business day after delivery to the United States Posltll Service (or other designated deli\·ery sen ice as defined in l.R.C. Se<.:tion 7502( f)). postage prepaid. in an envelope properly adJresscd lo 1he person at the person·s address set forth in the Company's records as of the date ol' deli\·ery. or (c) successfu lly transmitted b} facsimile or elei.: cronic message lo the Cacsimi le phone number or e-mail address (as appl icable ) set forth in the Company's records as or the date or transmission. Any commun ication lo tht! Manu~.:rs or the Company may be clclh·ercd to the Company·s registered office designated pursuant to Section 2.3. E:\111 1111 /\ 1150818, ! ~I~ 2111 1 CALCE01509 MR.069  15.3. GO\·ernin~ Lu\\': Consent to Jurisdiction. This Agreement i:; go,·crne execute. certi I)'. acknowledge. swear to. lile. publish. and record: (i ) any certificate or other document that may be required to be filed by the Comptll1) or the Members in order to qualify the Compflny to do business in any jurisdiction. except that no such Ii ling shall include a consent by any Member to service or process in any jurisdiction withom the Member's approval; (ii) any amendment to the Certi!icutc or Fornmtion. to this Agreement, or lo an) other· agreement or document as required or permitted by this Agreement: (iii) any ccrti licate of tennination and other documents that ma) be required w cffcctutttc the termination of the Company pursuant Lo the provisions () f this Agrec)llent: and (i\') any document required of the Company to cnrry out the nc1ions 1ho1 the Managers are authorized Lo take under this Agreement. (b} rhe foregoi ng appointment or the Managers and Liqu idator as a Membet's al1orney-in-foc1 does not granl such attorney-in-fact any po,vcr or authori t) lo approve. consent. or or agree to the substantive terms of any agreement or other document on behalr such Member. (cl flw power orattorney grankd pursuant to this Section 15.12 (i) is a spec ial power or attorne) coupled with an interest and is irrevucnblc. and (ii l sun i\'es the withdrawal or remorn l o f a Member or the assignment or its Membership lnterc. t. !T his Page Inten tion ally Left Blank. Signatu re Page l'ollows. I C.:0.\ 11' \ " ' A t, nU: \H:~ I OF Ct,, 11 IUO;>. L OG IS'l I( 'i L L C E~\1111111 A 1 1SI/~ 18'11112· J l)I ~ CALCE01511 MR.071  Ext.:cuted as or the Effec tiv~ Date set fo rth above, b) and among the persons sig11i11g belo\\. MEtvH3ER ': Marc Marrocco, an individual Antonio Albanese. an individual CCl\11'.\ ' \ Ar:REE\I E'\ T OF CF:'\ rt lllO'\ LOGISTll S LLC EXllllll r A I 151J8~R\l l · 1 :!'101~ CALCE01512 MR.072  EXHIBlT A Effecfive as of September 18, 2013 Number of MEMBF.H. NAME AND ADDRESS Initial Capital Contribution Units TXC Energy LLC 560 l J>rcakness Ln 300 $300.00 Plam), Texas 75093 Marc Manocco 3602 Binkley Ave 300 $300.00 Dallas. Texas 75205 Antonio Albanese 6605 Gentle Wind Ln 300 $300.00 Dallas. Texas 75248 CO:\IP.\ :"\\ ' AG1u:n1f:XT IW CE'\Tl 'IUO'\ Lses at the beginning of such taxable year. Deprc<:iation is an amount \vhich bears the same ratio to such beginning Cross Asset Value as the federal income tax dcprecimion. amortization. or other cost tecovery deductio11 fot· such ta:- new or existing Meinber in cxclrnnge for more than a cle mi11i111is CapilHI Contribution: (13) the distribution by the Company to a Member of more than a de 111inimis amount of property as consideration for an interest in the Company; (C) the liquid01ion of the Company \Ni thin !he meaning o f Treasury Regulations Section 1. 704- l(b)(2)( ii )(g): a nd (D) in connection with the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of scr\'ices to or for the benefit of the Company by a Member acti ng in a mc.;mber capacity or in anticipation or being a Member. Atljustments pursuant to clauses (A), (B) and (C) above are requ ired only if the Managers determ ine thut such adj ustments arc necessary lo accurately re nccl the,; relative economic interests of the Members in the Company. (iii) rhc Gross Asset Value of a Company asset distributed ton Member shall * be a{ijusled to equal the gross Fair Value (taking l.R.C. 770 l (g) into accmmt) of such ussct on the date of distribution as determined by the distributce and the Managers. (iv) l'hc Gross Asset Values of Company assets shall be increased (tW decreased) to rellcct any adjustmen ts lo lhe adjusted basis of such nssels pmsuant lo l.R.C. Section 734(b) or l.R.C. 'cction 743(b). but only to the extent that such adjustments arc taken into account in determining Capital Accounts pursuant to Treasur) Regulations Section I. 704- l (b){~)(iv)(mJ. Gross Asset Values shall not be adjusted pursuant to thi s parngraph ( iv) to the ex tent that an adj ustment is requi red pursuant lo paragraph (ii). Ir the Gross Asset Value of an asset has been determined or adjusted pursuant to subparngraphs {i). Cii) or (iv) of this defini tion. the asset's Gross Asset Value . hall thereafter he adj usted by the Depreciation taken into account wi th respect to such asset for purposes or computing Net Profit mid Net Loss. "Ne t Pro liC and "Net Loss·· mean. for each taxable year or other re levant period, ,111 amount equal lo the Compan) ·s taxable income or loss for such taxable year or other relevmlt period. determined in accorartncrship Minimum Gain" has the meaning set forth in Treasury Regulations Section 1. 704-2(b)(2) and shall be determined in accordance with Treasury Regulations Section I. 704- 2( d). A.3 Capital Accounts. The Company shall ~letennine and maintain Capital Accounts. ··Capital Account" means an account of each Member deterrni ned and maintained throughoul the full term of the Company in accordance with the capital accounting rules of Treasury Regulations Section 1.704-1 (b)(2)(iv). Without limiting the generality of the l'oregoing, thL· following rules apply: (a) The Capital Account of each ivlcmber shall be credited with ( i) an amount cqtial to such Member's Capital Contributions and the Fair Value of property contributed (if permitted hereunder) to the Coll1pany by such Member, (ii) such Member"s share of the Company'~ Net Profit. and (iii) the amount of any Compd evl'!nts ( lor example. the acquisition by the Compnny or oil or gas properties) might othern ise cause this Agreement not to comply '' ith rrt'asury Regulations Section L. 704- 1(b). (g) n1e pro\•isions or the propo.sed Tn.:asury Regulations published Oil Januat) 22. 2003 (68 F0tl. Reg. 2930), as they may subsequent I) be mo

. Company Net Profil and Net Loss shall be allocated to the Members as fo llows; (a) Net Profit. Net Pro fit for any period (t:>.:<.:lud i11g tt1x items nlkicated pmsuant to Sections A .4.2 and A .4.3) shall be al located as lollows: First, Nel Profit sha ll be al located to the Members to the extent of and in (i) proportion to Lhe excess. jf any. of (i) the cunrnlali\'e Net Loss allocated pursuant to 'cction A.4.1 (b) for nil prior periods, over t ii) Lhc cumulative Net Pro tit allocated pursuant to this Section J\4. 1(a) for all prior periods. (ii) Set:ond. an) remaining Net Prolit shall be- allocated to the Members pro rata in accordance with their respect ive Percentage l ntcrcs1s. (b) Net Loss. Net Loss for an) period (excluding tax items allocated pursuant to Sections 1\.4.2 and A.4J) shall be allocated as follows: ( i) Net Loss shall be allocated to the Members pro rnta in accordance with thei r res pee ti,.e Percentage Interests, subject lo tile Ii mitation in Section A.4. L(b )(ii). C0\ 11 1 \\ \ i\(;111:1:.\ n.\ I OF Cl<\ H IHO;\ LOG I ST I C~L LC- p \ C li A·5 CALCE01519 MR.079  (ii) No Member may rl:!ceive an allocation or Net Loss rhat wuu ld cause the Member Lo lwve an Adjusted Capi tal Account Deficit at lhc end o f the taxable year. Net Loss not allocated Lo n Member pursuant Lo this subparagraph (ii) shall be allocalt'd to other Members according to their relative positive Capi tal Account balances (cakulutcd taking into account the adjustments described in the defin ition of Adjusted Capitul Account Deficit). /\.4.2 Regulatory Allocations. The following special allo<.·ations shall he applied in lhL' order in which they are listed. Such onkring is in tended 10 com ply wi th the ordering rules in Treasury Regule1tions Section I .704-2(j ) and shal l be applied consistently therewith. (a) Minimum Guin Chargeback. Except as otherwise provided in Treasu1) Regulations Section 1.704-2( f). not" ilhswnding anything to the contrary in this Section t\.-l. if there is a net decrease in Partnership Minimum Gain during any taxable year. each Member shnll be all ocated item~ of income and gain for llu:1t taxable year (and, ir necessary. subsequent taxable years) eq ual to that Member·s share or the net decrease in Partnership Minimum Ga in. detcnnined in accordru1ce \\ ith Treasury Regulations Section I.704-2(g)(2 }. rhis Section A.4.2(a) is intended lo comply with the minimum guin chargebac.:k requirement in T reasur~ Regul ations Section 1.704-2(1) and shall be interpreted consistently therewith, including that 110 chm·geback sha ll be required to the extent the requirements for requesting a wa iver describcJ iii Treasury Regulations Section 1.704-2(1){4) arc met or the requirements for an) other exception prescribed by or pursuanr Lo Treasury Regulations Section l.70.t-2(1) are met. (b) Partner Nonrccourse Debt Minim um Gain Chargeback. Except as otherwise provided in Treasury Regulations Section l.704-2(i )( 4). notwithstanding anything to the contrary in this Section. i r there is H net decreas~ in Partner Nonrecoursc Debt Minimum Gain during a mxable year, then, in addition 10 the amounts. if any. allocated pursuant to pnrngrnph 4.2(a). any Member with a share of" that Partner Nonrecourse Debt Minimum Gain (determined i11 aecordancc with Treasury Regulations Section l. 704-2(i)(5 )) as or the beginning of the taxabk year shal I be allocated items of Com pan} income and gain for that taxable year (and, ir necessary. for subseq uent taxable years) equa l to that Member's share of the net decrease in the Partner No11recourse Debt Minimum Gai n. determined in accordance with Treasu1y Regulati ons Section l.704-2(i)(4). This Section L\.4.2(b) is intended to compl y with 1h1: clrnrgebm.:k or partne1· nonrecourse debt minimum gain required by Treasury Regulations Section I .704-2( i )(4) and shnll be interpreted consistent!) there\\ ith. incl uding that no chargeback shall be required lo the extent the requirements !or any exceptions provided in Treasury Reglllation Section I .704- 2(i)( 4) are met. (c) Ouc1lilied Income O ffset. I( any Memb1.:r unexp1:ctcdly receives 1111) adjustment. allocmion, or distribution described in rreaslll') Regulntions Seclions I .704-l (b)('.2){ ii)(d)l-l). (5). or (6). items or CompaJly i11c1.1me and gai n shall be specially allocated 10 such Member i11 on amount and mnnner sufficient lo eliminate. to the extent required by lhe Treasury Regulati ons, the Adjusted Capital Account Deficit of such Member us quickly as possible. i\n allocation pursuant 10 the fo regoing senLence shall be nrnde onl) to the extent that such Member "1.1uld C mll'.\:"o\' AGlH,l·:\11: \ r OF 0 ::-. 11 Hill\ Loc;1s 11( ~ LLC P \ ing any com·enlio11s permitted by law anJ selected by the Managl'rs. (c) All allocations pmsuant to this Appendix shall. except as otherwise proYidcd in th is Agreement. bl.! cli\'ided among the Membe r~ in proportion 10 the Pen:cntagc Interests held b) each. (d) For pmposcs of determining a Member's share of Compuny ··c.xcess nonrecou rse liabil ities'· withi n the meaning, of Treasury Regulations Section 1.752-J(a}(J). the Members· shares of Compan) profits shall be deemed to be in proportion Lo their respective Perceniagc Interests. (e) To the extent perm illed by Trcnstll) Regulations Section I. 704-2(h)(3 ). the Mmrngers may treat nny distribution of the proceeds of a Nonrccourse LifS ............................................................................................................. 1 1.1 . Defil\ed Te1·111s ........................................................................................... .......... .... 1 1.2. CoJ:struction ................................ ............................... ............ ................................5 Al'<.T.lCI.:E ll OROANlZATlONAL MATfERS ........................................................................... 6 2.1. Formation ..................................... ............................................................................6 2.2, 7-.Jt\me ..... ,...... ,,,.,,,., .. >··tr·· ~ ··•···· · ···· · ··~···•· • ·· · · · ·········· I · ·· ... ,........................................ ..... 6 2.:i . . Rcgir-1tcrcd Ofticc ml211-157. jl~P.'J.IO~ll(lll!llMI IM MR.086 CALCE01434  6. t. or 1.:1nbi lity ................................... ........................................................ 14 f..,ilnit1.1tio~ 6.2. lndcmnilicntion by. Cornpnny .................. .. ...... .............. ....................................... 14 6.3. Conduct Nol P1·01ecied .................... .... ........ ... ............. ...... ..... ........ ........................ 14 . 6.4. 1nsUrflflce ........................... .......... ..... .......... ...... .... .......... ..... ............ ... .. ................. 15 6.5. Sti1·\ 1Jvn) .,,,,,,,, ..•.. J , j , . • . • • , . , , . , t5 • • • , . . . . . . . . . . . . . . . . . . "' • • • • \ , • • • • • • . • • • . • • • , •• , . , , • • • • • • . • • • • • • • • • • • • • • • • • • ••• , . , • • • • • , . • . J\RTtCLF: Vil BOOKS AND RECORDS: REPORTS ................................................................ 15 7.1. Maintcm1::ce of and Access tc Bool~s nnd Records ............................................... 15 · 7.2. . F isca l Year ... :.... ............... . ............ ., .......................... .. ....................................... 15 7.3. Financial and Opcruting Rcporls .... .............. ......... ... .... ...... ........ ... .... ................... 15 7.4. TnxRcporls .................................................. ............. ............................ ................ 16 · 1.5. Trnnsmission of'Comml1nlcntiom: .................................................... ............. .. ,... 16 ART!Cl.E Vlll ·rAX MATTRRS ....................... .. ............. .. ......................................................... 16 8.".I. Tct;< Clt1ssiric<1li()n ... ,................... ,.......................................................................... 16 8.2. Con1pnny Retui·ns ................................................................................ ................. 16 8.3.· Tax Ek~tions ................................................................................................ ........ 16 8.4. · Consistent Reporting... ............... ............. ............... ................. ........................ ..... ; 7 8.5. ··· Tux Proceedings ......................... ,. ...........,........... ,............................... ............. .. .... : 7 8.6. Information nnd Doc;.;mcnls lo Cornpany ............................... .............................. : 7 · 8.7.. Survival ........................................................... ...... .... ............. .......................... .... !7 AR:l'ICLE·iX MCTETlNGS ANO VOTING OF Mf.tMBERS .................................. ................... 17 9. 1. l\tleetin[;s .. ................................................ ........................................... ................... 17 · 9.2.~ Voting .................................... ..................................................... .......................... 18 AR'l'ICLE x "f'RANsh:m. OF MEMBERS! llP INTERR8T8 ................... .......... .. ... ... ................ I 8 I 0.1 . . l.. imilalion on Trnrn:den; .......................................... ............ .................................. 18 1O.?.. Permitted Tr:.msfor of Mcmbzrship Intcrcsl ........................ ................................. 18 I 0.3, Righi of First Rel\1s1d; Tag-Aloht-; Righ ts; 'l"riggcril\f:l Evc11ts ..............................19 l 0.4. Conditions to Permitted Tnms!Crs oi' Membor.ship lnterc!lts ................................. 20 I0.5. Effective Date; Dislribulions ....,....................................... ................................... 21 I0.6. TrnnsreJ'or's Oblig'°1tion:; .....,. .................................................................... ........... 21 I 0. 7. /\ssignc<::':i Rig!mi .., Stntus \If fl orml!r ;\1le111ber ... ........................ ... . ,....... ,................. .. ,.. ,............ ,,.. ..... .23 ·-··). A~TJCLE Xlll WINDING UP AND Tnt~M!NA'l' I ON ...... ,............,........................................L4 co~u•,\NY AGm:~;.~11,N r OF Ci.;N'!TlUO;'li Pf.COS Ti'.llMl~.\J , LLC PAGE I hi !w~IJ.1~7 f•l)i>,'J .I0.11/lllt>l /0-~l MR.087 CALCE01435  13.J. Events Rcqu i1'iiig Winding Up ................................................................. .............211. 13.2. Winding Up Procedl;res ............................................... .. .......................................24 13.3. Continuation Wilhvljl Winding l.lp ........................................................................ 25 · t 3 .4. Liqukfotion of Assets nnd Application and Drntribution or Proccccb. ................... 25 13.5. Ce1tilicH:e ofTem1im1tion ................................. .................................................... 26 ·· 13.6. Reinstatcmcnt....... ..................................................................................................26 ART!CL.E x:r\1 ·\'ALU ATION :;................................................................................................... 26 14.1. f'ail' Vnlueof(;oir1pnny Property ...........................................................................26 ... 14.2. Purchase Price ol' Membcrsbip lntcrcsl ............................... ,............................... ?.6 ·. 14.3. Vnluotion ofMembe:·~hip Interest<> ............... ............................................ ..,.........26 • . 'AR;ncLJS xv GltN8RAI,.; PROVISIONS .. ,............................,. ..................................................26 r 5. 1. A t1H~ ridme11 ts .......... , ...................................... .. ........... ... , ....... ............. ... ... ,...... .. ... 26 15.2.. Notice............................. ............. .............. .........................................................27 I5.3.. Gover~ing Luw; Consent 1<1 .lurisdiclion ............................................................... 27 15,4. Waiver.,, ....... ,...... ,, ...... ,., ...,.,, .... ,., .... ,..,,..,.. ,.,,., ....... ,,................. ,.. ,.............. ,, .... 27 l 5.5. · En!lre .1\grcement ........................ .......................................................................... 27 15.6. Succ<:ssors and Assigng· ........................................................ ................................27 15.7. Third Parties .............................. ....................................................... .............. ....27 4 15 .8. Severtll)ility I•" ,, .. ......... · ~·····• 1•1•• · . ••" ........ .. "' ••••••••••. ..••..•... .. , . , , , .... ....... ,. , ~····· · .• .•. , ... .. 2'7 15.9 . . Constniction ...........................................................................................................28 15 , I 0. Excculion of J\g1·ccrncnt ............................................................. .. .. .......................28 15.1l .· fo\1rthe1· Assurance.:s .................................. .................................. ,....................,...... 28 CliOJOl'IOill I l-l MR.088 CALCE01436  COMPANYAGREEM~NT OF Cli:NTUfUON Pli~COS TE~MfNAL LLC This Company Ag:-eement or C .?nturion Pecos Tem1im1! LLC' (this "J\gres:ment") ISentered mto 1 elrcdivc 1'.IS of Septt<;mbcr l2, 2014 (the ·'Effb.::lv1:: Date"), hy the per:;on:: identified on the !>i~iHlll1re . pnge(sj bet'eoC \VJ lEREAS. the Company w;i~ fot·med pursu11nt w t1 Cel'tificat~ or Fornrntio11 Ii led with the Secretnry ot'Slwlr.: or tho St:;tc of' Texas ([he "t~1·riticqtt_Q.(fprmqtiou") effo:tive on Sep:t:mb<~i· 1'2, '.l{) 14 (the ''FornllllJ.Q.:J..Qptc"); nnd WM EREA.S, the pnrtic~ dc~f!·c 10 provide fo1•the r·cgulmion ond mt1nnge111em or th<:: nflhirs of lh~ Company according 10 thii-; Agl'e~ment nnd 1he Code (a:; her~in de!im:d); N<'.>W, THEREFORi~. lhe partles agree HS 17ollows: AlfflCLE I DEFINITIONS l .1. pefincg Terrns. The following definitions. und the definitions set forth in 1\12p~ndix .I\ !1.1 tllis·Agrcement. apply lo the terms ust~d in thi!il Agreement for ull purpo!-!es. · "'AdclilioJ1al Cruilinl ·cpntriblltion'' means the sum (1f cnsh un(I the F:1ir Vt1t~1c o!" un>' pmp~rty ~onlrilrntcd to the Compnny with 1·cspcct t·o u Mcnucr.ship l1Hc1·cst ns permitted under this /\g,·cc1rnml, lrn\ l!oes not include un !nilin: Capiteetl tr:insferred by u Member or As~ign~e in v. Pcrmm~d 'l'f·r.ns1'cr, or :1~ 11 f>rohibitcd Tnmsfcr 1lwt the Compnny i~ r~q uired by !nw H1 tecognize, but who hus 11ol become a Member•. i111d (b) H forrner Me111b~r us dest:ribud ln 1k~Ji.~1.11 . 1.u. 1 'CAlvl .. 1111::nns CAM Oil nnd N:1,w·<1l Uus. L '.,l'. n LnuisiH~!U limited linbi lity co 111puny. '·~opital C9ntnbtitic11" 111enns 1he st1rn of lhe lnitinl Copilul CnntribtttltHl u11d Ac:~lithmol Ct1plwl Ccmtribulions, ifnny. with respect lo t1 Membership l mcrcsl. COMPANY AGRer=Mt:NT OF C~:.NTtlltlON Pf:C'OS TEH!)lf,~/lf. LLC PAGE 1 3ii1457.1/SP/~3032/ll'10110911~ ~ MR.089 CALCE01437  •·ccr'llurion'' mcuns c~mnil'loll t.ogi$tics LLC, ~1 'l'~:-:us li1~:itc~I lktbility c0mp11n); nml u Mcmhcr of I he C1mipnny m; of !he ~ffoctiv(.o Dute. "(ertlticnt~ or Fq1·1nmiill!." means ltrn Certili~111e of Formation ld>::nti!ied !11 Lhe rei.:itnls to this Agrec1m·nt, as snch ccrtificat~ may bt! cnm-:ctcd, rn~'i::11clect, or rcstntcd. "Ce1'1i-licme of MeJJ,tbersl:WiJnteJ'est'' menns ti cet·ti lieu!~ l'eJ.)resenllug « Member':; M~rnbc!'shif' lfl1Cl'Cs1 in a fom1 approved by the Boal'cl or Mrt11Hgcrs. ··f;Q.U\R.fl!1Y.°' n1cans tiie limited linbility co1:1r:~n>· formei.I pur$i1mH to the Ccrtifa:nte ol' Fmmat~on. •;Chn11g~ of; Con1rnf'' menns ;.vilh relipec\ 1~1 a tv!embet» l hnl the owner~ ol suGh Member (as e,xisting as or 1hc d111c hereof) shnll (i) cemst: 10 ow11. direi;tly or indirec\1y, 51.0% of lhe out.stnnding ownership intcrvsts 1} f st1ch Member, o:· (ii) ccn~;,~ to ()Wl't or cxe1'Cisc voting con!rol over 51.0% or the 01lls1m1din~ voting inlCl'l!!i\S of sui~h f\1lember. "~'ontrol" t11 Clll1S 1hC pOSSCSSt011, clir<~c!ly Or indirectly. of the power lo dirCt~l nt· t:\11d uller establishment .111d muintemmce' of s11ch cash r~set'ves 11s the Boal'd or Mrinugc"s dctcltl1incs· shollld be rewinccl lbr the rensonabk C\lt'renl and l't1tul'e ncecl11 or the Company's husinc.. CAM. whelht:r pul'Slrnnt lo ~cctio~1 tl.2( b) M this Ag1-cemcnl or olhe•·wisc. ·'CAM Prderred RetUrn B11ltclb:Ted Roh..11'~' 13alancc. no ded,1crion shall be mi1dc for any tax ~lisl1 ibt1tions 111acc to CAM, whether pursuant tn Section il.2(b) of this Agreement or otherwise. "E1Ui1i' means ;my geni:nll par111c-rsl11r. li1111ted purtne1·s::l p, t1milcd linbdlty Pi0110G 11 lnt or uny other nght rc:-icrvcd ~rndcr this Agrl!cmcnt 01 tht.: Cod~ \:1;1;hisivcl;v 10 u ~1fomber. ~'Perci;nmge lni~r~~f' means,. ' ihreutened, pending, or completed nci\011 or other prot.:ccding, wh~~1hcr civil, ci·iminal. administrative. al'bitrnti vc, or invcstignt i vc; (b) un nppcc of uny. such proccctllt1g; and tc) an inquiry or invcstig<\li(>n thnt could le;.1d 10 any swch p1ucecding. "'Prohibi!cd Ttrmsfci·" means imy Lrnnsf'cr uf a McrnJcn:hip Int~rcsl thM i$ not n Pc:-inilted Trn11s!cr. ''Rcdcmplion Nol'i;;e'' is detincd in Section 10.3(c)(i). .. Req§motion QpliQ;~'' is clctined m Sectio11J.03(c)(j). 1 '~Bbstltuted ft1£JID2£t° means a person who is atlmiltcd illi tt Me111bcr pu1·Huanl lo ~££!l!J.!Ll.Ll With 1·e~pecl LO the tronsfer o!"~n existing Membet•ship Interest. ' Tretl'sun Regy.!.f!.!it)ns'' meat:s the Treas111')' n.:g11!ntions p1·onltitgalcd under the !. R.C. 1 ' "Ir.iggeri11g H.vent" l1,e:ms the nrsl lo OC«~tll' or (a) the clnte of a Prohib ited Translcr, incltJdillg ony trahsfcr to('.) a Member's lrustoe in ::.111nkn1ptcy, (ii) n purchiiscr til 1my t:r~ditor's or court st1lc, {iij) n Mcmhcl''s spouse purs111111t to a decree or n n third party (as a going concem nnd not n!i n liquidshon) fot· ·foj r· market ·10l~1e ancl the application of the proceeds (lf th~~ snlc uc.:cording t(I Section 13.4. Tl1e Triggering Evc111 Purchusti Price will be del'ermined (a) if there ls in effect as of ti1c date cf '.:1e Triggering Eve11t l1 vnlj(I Certif'iciltC of Fair Markel Vulue in s.;bst11ntinlly the Jl)t'l'n allr.:ched m; Schedule fl executed by all Members, IJ_v retb"1;:11cc to the folr rm1rket v"luc lbr such Membership tmcresl HWl\,\I. LLC PAGE4 G:114!l7,11S1'13l032101Gf/O!l111~ MR.092 CALCE01440  Mr.rkcl Valli\~, timl (b) if lhere is no such Ccrtilic~1t() of Fhir M'irscl Value e/'J'cctivi: with n:spci::t to lh1~ Triggeri ng l\vcnt, (i) b;t ugreemcnt or the Co111pnny m1d the Offl!nng M:;mbcr or the Offering Member's succ1!ssor in interest. us rpplick1ole. or (ii) ir no stu"h ~tgreenicmt hi rc;;~~ lwi.! wilhin 30 days e1Hcr the iSHllHm:c or 1he Reclcrnprion ~Joth~c, by QI\ independent uppl'~liSCI' d1os"n 11'1\IWf'lllY by lhe Cvided. lli,~. thnL in I' dec1-e<1!;1; Triggering l~v<::nl P\11·c.:h1.1:.~~ Prir:': r.i' cuch Member·:~ Mc.:rnbcrshrp h~lerest accordingly. Any fair rn1.1rkc: valnc ilgrcl!d by tile Menibcf::i i~1 n Ce1 ldiculc ul' Fuir Mu:·kl'.'.t Vul~:r; :-;ha ll be effective until .he earlier of (A) 90 days from the date set f()l'th in any s1a.:h Certificate ul' r.iir 1Vli.11·ket Vtdt:~. m (A) th~ t it~ purt, w1d 111 crtl~ct from lime lo time, including rnles Md regulations p1·omulga1t:d thercundcl', a11d reference lo any section or other pro~·tsion of uny !egul req11ircincnt ntc::cms 1;1nt provision of such lcgul r~q u ircment lhlrn U"I:! lo time in effect und cc:nsriMing lhc &ubswnlivc Ctm1mcl111cnt, modilic~Hinr.~ 1:odifki1tion. rcplnccmcnt, or rci!riactment of Sl!ch $ec:icrn m oth1;r provisio1\.:. (I) 1 ''hereunder," ' hereol~ ''ht!reto~" iind vvords of' similar import rckr to 11 ~'.1i:; J\grcement a~ a whole ~md nol to ~my partictilar· Article, Secti011, :w othel' proviSillll h{:ruti!'; (g) 1 'inc:Jding1' (and with it:; cor;'::!lfltivc meaning ·~inclu:l cl>) mc~ins including without limiting 1hc generalily of any description preceding such term; (h) "or" is used in lh.:: inclusive '\c:1sc or··mld/or": (i) with rc!ipcc1 10 lh.: detci·mimllion t)!' rniy period or tim~... from'' 111en11s --rrnm nnd inclHding'' und ··to" means ''lo hlll excluding.. : nnd (i) rc:fon:rH.:e:> to ngr~~mentu or olhCI' do1;umcn\s refer os well \o nil uc.:dcmla. c.~hihit~. sch~dul~~ 1 or umondmcnts Lhcn~to. COMFAN'f A<3RJ?.~MENT OF C:!~N'l'tlltlf>N PF:co:i TtH1,l1Nr\I f..,l,C PAGt;li 621i4li7 i/SP/330J2JOi01/0g1114 MR.093 CALCE01441  ARTICt..E ll O!tGANJZATJONAL MATTERS 2.1 For111a1io1t 'i'hc Cnmpany wmi formed pu~uruH rn the Cfrti f'icatc nf Fot"~ntio11 cl'fcuti v·e us ofthe fonT,~ Dni°e. 2.:2. N11mc. The Company's !inmc is us sci torth i:~ the Cert i·f;c;-itc;: of r:·ot·rnMion. '!'he Board ol' Manngers may change. the Company m:me Ht any lime without the npprov.:I or nny Mcmhcr by filing .:1 ccrtilic.:nte or mrnmdment to the Certific:.1le elf Form<1tion. The 13oard of Vh1;,nge1·s shn!l pmvidc notice: ol' ony such ~h;'lnge to oll Mcmbcnt Tho Company's business mny be c' i11 the IJ11ik~(I St'atcs where rucord!; ure to be kepi or mad~ avai lab I~ under Section ! 0 l .50 I of ihe Code shal I be ns determined by the Bonni bf Managers. The 13oard of Managers may change i·he Company's p1focipr.! ol'lice in tl1c United States at tmy time 1..:pon notke to 01e M~~mbers. The Co:npuny shall keep m its reg1~te1·cd of;i;;G m1d mnke available lo a Member on rcosonabk 1"'.:;qucst 1he slrc~t Hcklre~s of the Co111pnny•s prindpal nnic0 in the Llni1ed Srn11!S. 2.4. T~J.!!1, The Cumpm~y will ~ontin11e uri1:11ermim11ed in accord:: the poweJ' to do any nnd all acts t'eHr;onably rel11tecl lo iis pw·pnl1es. 2. 7 Company Proper lj:'.. M All Co111pt11~y rrop<~rl)' :;hnll ho owncci 111 the nmnc of tho Cnrnpm1)1 nnd nol i11 1hc oun1e of uny M~mbtl'. No Mt~mber 01' AMsignt:c will huvc uny i11ten:s1 in sue:~ Co1npt111)~ propi..:!'ly-sull.'ly by ri::nso11 of the f\'lcmbcr's sta~us as u Member. (b) The Board of tvbnag~rn shaH cause all funds ol' thi;: Compimy to be d(c.;pmritcl.l 01· inveslc-d in u11 nccmmt or accounts m the narnc of the Compa1~y. No fund~ other thnn 1·he funds of ~nc Cornpnny may be deposited 1he1·ein. Thn runds in such n<;-.elusively lor tbt: business or the Colilpuny (i11ch1dl11g distribution~ to the Men·,be1 s) i1l~d m,1y be w;thdrnwn ouly by· persons approver uriy pttrposG5 nthcr lh.un income: tu:.; purposes No provision of thi~ Agreement rn.1y be uon,sl t'tt..Jd to !')Lt!J.gcst othe1·wisc. ARTICLE HI C1.\.1°1TAL CONTIUUU'fJONS: CAPrTAL ACCOUl'\TS 3.1. .l11itinl C.apitit! Con'tribuli9pe. Each M~111bc1 ·s Initinl Cnpitul Con1ribi1ti11S u1· Cupirul J\l'C{iUnl ol uny Member. COl\WANY AGREEMeNT oi:- C1·:N'l l•Ht0.'< PK<:O!' 1'1m~11N1\I , LLC PAG!::7 lll,145T.11$PtJ30J210 J01/09111rl MR.095 CALCE01443  :1 .5. .M~ru.ber L2an~. '1110 Compmiy· may bon·ow money from one or more Members lo lhc cxten1 the Bor.rcl of Mmwgcrs deems appror;·intc to the contluct of the; Company bus i nc~s on lcrms llrnt comply witb lhc 1·cquircme1H$ of Section S,S{b)[iii} (rclnting 10 related pnrty l1'H11S()Ctio11s) The wnount cfimy loim mmlc to the Comprn1y by n Member wi'l 1101 consti1~:tc u c~1pilal Contributwn or uthc:rwisl.! 11ffoc1 s11ch :vfom!Jer's Cnpitnl Account rn· tv.fembcr.-hip Jn len:sl. ART1C'LE 1\t l)ISTt~rnurmNS 1 1U.LOC/\ l'!ONR ANO 4.1. Allocnllbn ol' Profit or Loss. Compm1y prolits . For t:1'.s purpose. o Mcrnt/e1· or /\ssigni:c i:i dl!cmed to huv~ on unltJ111.lcd t~l< liability for a li.1:-< yer.r to th\'! extent (i) the crnnulative nmo~1J1l 1jistribulct: lt' the MfJmbcr or Assigncl.:.'. tmi.Je;· Section 4.2(a'j 1mcl advanced Lo 11tc Mcr1bcl' or Assignee Lmder this ~~Qn 1.2(b.} (and 1101 previously r~covori!ltnl ~he Membci' or Assigi!e<: \\\11t.ld otherwiso be cnli tkd w receiw under s~~1.:1icm 4.:2{n,l, he tri::ti;ed as nn advm1cc i:gai 11st~ und slmlt be 1\:cMc1·cd froni. 1unnu111s .subseque11rl)· di.:;tribumb:e umlcr ~ctio.u 4.2(a). No interest shall be chmgccl on :my st1d1 t.l;:c.:oin<.' tu.I\ wilhholding) , All. amou;1ts Sl\ witlthdtl ·from cii::itributions are deemed to hnve bec11 distriblltecl 10 th~ person othc·,wisc entitled t<> 1·ecdve the timounl so withheld. Tci the extent un am\1,ml ili paid l>y ,he: Co111pn11y·on behall'ol' ·a Member or Assig1\ec but nol withheld from a clistriblttion, the amou111 1n1icl con:-;titutc~ 11 1001~ to such Memb~r or Assig1lee. Such loan beat·s inlerf.ll\ <11 lhe Index Rt11" a11d is rnpay~1blc~ on dernanci or. t'l the electinu of the Board or Mmrnge1·s, ls 1·epnyuble out ol' distributlons tn which such Memb·~r 01· As!:ilgncc wou1~1 othl~rwise be entitled. 4.4. U111itnti(l11 ·oi' Distribution~. · (n) The C.\H1Jj1m ·y may 11ol 11n1ke o clb:l'ribul'i:m lo <1 Member m· As5ignr.c if il wo-:ld 1cndcr lhc C,-:impnny insolwnl. dc1cl'mincd in nccorclanl:c wilh Sc\;tion 101.206or1l1c l'mk. A Mc111''>c1 or i\ssi~llC(I who l'l.'!l!eivcs n uistribution in violoti~·ll o!' St::.!ion 1Ol.206 DI the Code is 1101 rcqui1\.'d lo rctum lh·~ cJislrib~ttion CXt;<.:pt ru; required in s~clion I() 1..206 of the C0ctc, · · ·(b) The Mc1i1bers shuP look sGlcly lo lhc 11ss~ls of the Comprn1y !'or ~my distribution$, including li Mcmb<;;1· h~s ~my recou1·sc ogainsl thc scp111·11tc 11;;sets or n11y 01hc1· Member. 4.5. lio Rig.ht to Partition :w Dis1ributjo.o~ ill ](JQQ.. No Membci- lta;; Oil)' right, nnd wuiv~s .:m)" right'l hal it might "therwise hnve, to couse nny Compa11y proper~y to be p~1r~iti<1nctl und/or dislribt1lcd in kh1d, E·:\CCpt. us provided in Section l JA!.!.D (rduting. to liqiiidaung dis1;ib:..!tir.ns), lhe Compnny m~y not nwke uny distrib~aio11s iu kind. 4;6. .!Wco.yer;,.;_cil~.ruJ.§.Jlli;1db1.1liomi. .If the Company hrs, purswml l~> lll'Y clcnr nnd imtnifosl m:t:'ounting ot' similar errnr, diS:tributcd to ::t!1)' Member un nmm:nl in excess o!' the mnmml. to which lhe Member is entitled put'sunnt to this ,6,grcemtnt 1 the Member shnl! reimburse the Co111rnny ln the l!)l!enl or such excess, without interest/ Wlihln JO days aner dcmrn'd by tl1e Cor:1pony AH.TiCLE V l\'f/\NAGEMF.NT~ ACTrVfflES Of MANAGF.RS AND MEMl3f.RS 5.1. Manags.me11l und Control o!'Comm111y (~us inc~s . (a) Subjec.:I \ti ihe Jimilatiuns sel '.hrllt in thi:> Agn:1:rnc11l, tl 1 1~ Fhnin.I ol' Managers has t~Xclt:!dve mnhol'ily lo manuge und co11duct the Compuny's business. The 13oard of Managers sh,)11 do ull thir1gs approprl~1te to carry out the Compuny"s purpose and tJ1c.; t1•;1ns11t.:lionll 1.:1111tc111plntcd ty this Agreement. Except .-i~ otherwise prov1c:cd ill this Agreemenl, nl l uclioris thut the l30<1rd ol' M1.Hrngcrs mny lake ,\J, l1LC e2114M.1/SPl~~032/0~ 01/001 1 1~ MR.097 CALCE01445  (b) ·!:'.txcept us pl'OVided in S&.filions &~5(n} (reh1ting lo tax molters), the Mcmbcm; mny· l1ot take purl in the mtmagemenl or control ol' the Company business er bind the Comrmny in their cap~Jcily a:; Members. The Members shall not have the right lo vote 01 otherwise co'1set1l ur withhold 1.:0i1SCl't 10 i:ln)' klctionS taken by the l3t1Ul'd of \ll:i1~uge;1•s ~XCCj)t wilh fCSj).!CI lo SLtCh liillltCI"$ tlS UI'~ <;.)(pre~sly ~!nted In ;h1,') Agree111e11t. 5.2. . &.~i~m1tio_11,· R~mgval, and R~ruru;£ment ol Mnml'J&r~. (H) JTu.?.jgnulion.. J\ny Mu1rnge1· mny l'esign ns n 111:111nger of the Compnny upon notice lo :'Ill M~mbc1'<>, which resignation shall be cl'fcc~ive im1ncdiHt'cly 11pon delivery of such notice. A Manager is deemed 10 have resigned ns ti mn111;gc1· ffi' the.: Comr>any cffoc1ivcly. imml.ldralviy uron 1hc lollowing eve!1l!I: (i) U11)i· CVe111 ~pccdkd l :1 Section 153.l.55(l1)(4) or Scct1011 15:3.155(n)(5) oJ' the Code (relating to bankrnptcy Oi' insolvt:n~r pn.)cei::dingg with rc!!p1.;c1 lu r r1::1novnl u Mqjority-in-incrcs! mny c:ecl l:l replncetnent Man unanimous vote or written consent of the Mm1agers slrnlt be rcqui1ed l0 ap1wovc any action by the Board of Managers. In the event nn ;iction i~ t1pp1'rnt,k l1S !l pt1rl 11cr$ilip r'or l'edcrnl 111:.:ome ta~ purposes, \lr (ii) take a pc1silion inconsislent with .such lreatmcnt. '(d) cause the Cor11fla11y to (i) muke l.l gcnertd as.slg,11me11t li1r lht! be11clil orcmditor~. {ii) ·me f-1' \loiuntnry b~111krnptcy petilio11, tJI' (iii) $ei..!k <111 oriJer for rel kl" o~· c.l~e l m•nti:m er it1soh1i:ncy in my M~mb~r !ilhcr tlrnn pt1rsl1nnl to .S.£,;;.tip11..f,,~ or Article XI; (!':) c:.lllse the Company lo lU.:qlJire .tny equity ()J' debl ~t:clil'itk::; or t:ny j\'fcmb1~!' ur uny Affiliiltc or n Mcmbc1., 01• ori1crwisc make lt~ans tt.11111y. Mc111l>;::f or My/.\ l'filiatc ol' a Member; · O cause lhQ Company to Ol:quirc from t111y p'!rson uny eqt1il) ur debt ~~clir:!iei: or 1 ;issets· oi" any corporntion,!imilt'tl li part iciput~ i:; m1y merger, consol ioat'ion, lrunsfor, continuMce, or conve1·sion of the Compuny with 01· rnto any c1thcl' pcrnott: (k~ cwse the Company lo pa1'tkipi:itc in any 1·co1·gimiznt'ion in which Membership !merest": 11rc exchungecl fo,· or ccin vcncd i::tn Ci.\Sh. securi!1c!:: ol nny nth~r f)l!rscw1. m othc1· prnpcr;y; or (lj sell or orherwise di~;posi.: of u: J or· substt:ntinlly nll of lh~ Cw1~pt'l11y properly, except in e1mncc1inn with winding np lhe Comp~tn)' us permitled in 1hi:o; f\gr~<;1m:11l. (u) The Board nf Mmrngcrs may 1)Ull5C the Compnny u:i hire such cmp loycc!S und ag:.:l'lls ms the Boi1rcl of J'vlam1g~rs dee.·ms t.tppropriHlt: IO; the C:Ol'IC:tlCl or th~' Compnny's.business. (b) The Benni or Mtlr1iJgcrs lllclj' CS\ubfo;:~ t1rficc:; ;111•.: •IPfXlil11 officers 1~r the Compmly, Mcl mny clckgatc to sLtch olfo..:cns uny ol' its· 1.1~1thonly lwrei.tnckr. as ihc Bomd or Murmgcrs deems upprn11ri;:te. The 0Hicers m;iy be Hppointl"tnnd~nls of condw;t us Apply lo u i'vlum1g1~1· as de~<.:ribed ir1 Sec:jon 5.9. 5,7. Reliance.. Persons dealing with the Company n•ny rely co11dusiv11ly 011 the uuthori1y or th~ Bom·d of Mum1gt:rs m; ~li!l for~!; 1r. this Agn:rn1cnl. l!vct)' do .'11ment ::xec~11t:d by tiny Mli under Arlicl~-YL find doc:; not limit lh·.: Compi:ccling shrill be reimbur:.t·d u::. paid •.: r in~urred . 'l'ht right to imh::mnilicalkir: t.lmforred in 1h i~ Aili_clc VI is not e-"'cl usivc ot' 1111y othc1· 1·iglH that any pe:1·so11 1m1y h11vc 01· hcrcalk t acqun·c ur:cl~1· an)' sfututl.!, · ~·l~treemc!ll, vote or Member~. l) I' otl11!rWJS\.!. (<1) "J'hls A;'tii,;le VJ docii 11ot opc1~.itc 10 lli11lt linDllit)' ~11· m indem11iJ)1 a rers~rn to th(.: ex1e111 Llie pl.!rso11 is found liahk pt11'!HHll1l to a li11al judgment 01'~1 court of c:o111ptlcnljt1risdic.:ti<11' t(w: (i) an m:t 01' omis~ion th«l involves gr\ls!'.> ncglig;;ncc. i11lclllio1ml 111isc1.1mlut:t. tW u knowing viol111wn of l;1w.: (ii) <1 trmU:fol' Ol' ~\liemptt>:.l l1'l'l iOll of ti fvlt;Olbernli1p hllCl'cSl in Prohibited Trnnsl'cr. iii iVlanagcr•s resignation in violation ol' Section 5.2(u}, tl ~1 r u l'vlembcr c1.;u~ing to be i1 !Vhm1b~r in vio:11ti1.1n l1t'kQ!J.M..l.2J.UU; (iii) H will ful or reckless nrntc1'iol ti1·ench of ~!1is /\ercc111cn1 oi· nny other agr~cment rc!nting to the Com!)fmy's business; nr (iv) ;..in act or omission for \vhich indemniflcation i:; prnhib 1 ~ed by law. CciMr>ANY AGRI:l?f"lleNT or- Cl,i'i·rvmo.'I Pl:( ·os 'fl·;in11rt,\ 1.. LL(' PACE: ·14 4211G47. 1iS?/:l~C)l~/0101/0$1i1A MR.102 CALCE01450  (b) Nu rmwision or t his Ag1'Cc:mc·1f rcqui1·cs the Compm1y lo p pc1wc1· to indemnil'v snch 1jc1·.son n1,wi11st· such e?ipen:;e, liability, or loss u11dc1· the Code. 6.5. $lll'vivi.1!. The indc111nitk::; pmvidcd lh l' in this i\gr1;<:111crn SW'\'JVt: thi.:: lr£\11l>l~r or WI h1dcnmified Pot'!\silicncion as un lndeinniliec: i>erson. trncl the: 1~~rminn1.nn of th:s Agr~ement t1nd the C.:0111pa11y, ARTICLE VU tlOOKS AND RttCORDS; lU~PORTS 7.1. .[vlninLcmmcc of and Access 1:0 Books and R~•!ord:;. ' l'h..' Compony sltnJI m11inl11in ~uch bo~)ks ·and 1·ecords regnrcling ih~ Cu1i1p1my's business ~tnd propertir,;s as is 1·cmi1.111al>k, mdudmg utl brn!k~ ttrtd 1-cccw· equity. for sue-Ii r•'iscnl Yeiw. e<1ch in 1-e:iso1rnble dcl

:ovc:·ies dul'lng the fisc!ll q11nrtcr1 irntl n dcscl'iption ol'm'I)' Prncecdi11gs involving th~~ Compnny; um; {(") (I ~U1te111i::nt or chungi.::s in tliC~ f\'lt~mbt~r'~: Cupilul .l\<,:count (llhi.lW il1g Lhc l1ulunce in 1hc :\lh:m1h1;r':1 Cnpltul Accou:1 1 ns or the bcginn 1'.1g of' the J'i::;c~il Year, eontl'ihutio1is u:• dbi1·il'nll iuns drn·ing lh~ year, ulkJculions 0:1 profits a11d losses du:·ing lh<.: yc:ar. any othc:: <1djust01cnls lu Lhc Capita! Account bolanccs during the Y!:.!HI'., slw! I dcliwr l'.1 Cl1Ch pc1·~011 who wns 11 .'vtemlicJ or A~~ignec 01 uny time during the p~~rloJ coven~igne<:. th~ Bonn.l M Mui~ag~rN ~hall delivcl' to such person· inform<1t'ior1neces~rn1·y lht· the preparn1ion of' My tax ren1 rns thm mus: be liled by s~1ch per~on, including information 1 1ec~ssrn·y for cstirnnting uncl pr.yi11g estit11r1iccl 'ICl'lt'Hth·c adjustment of' pa:·tnl'.rship ·items under l.R.C. !'iccrion 6227(n) if such rcquc~\t would cmt'.'lc the: Ml•rnbcr"!i lrc<,tment ot' th~! item to be im:om>i:-itenl with lhe trenlmenl o:· d1e ilt!m nn the Compm1y':> retllrn. ·· S.5. JitX P1·ocecdi11gs. (a) John V. Cflkc ·shn!J be the Company's tu,x mnttcrs pmtncr ns defined in l.!~.C. Section 623 l, nnc.J shnll take such actions 11s uri:: requirc~1 to be dcsignutcd thi::: lnx mm,crs pnrlncr u:;de1 r.pplicnble Tre<~$) slwll llc pnildi11g nt lc:H>i 15% o!'thc l>cn:crHuge:: !nrerest hckl by lilt: Memb(tr:;. M1:•.:tlngs sl1t1ll be ht!ld nt the Comptllly' 1S pnneipul pktcc or hu!'il\<.'!!S [)l' lil .~llt:h \1\l;er rcasonublc pla::1~ set forth 111 the noti(:c of lhe meeting. COMPANY ACReeMENT Of' Ct:N'l'l l HJON P~:co:; n:a(lrt'i;\l.J.i ,(' Pt.GI: 17 U?11457.1/SP/33032/Q10i/091114 MR.105 CALCE01453  (h) Any: ur.:tion lhul :rn1y bc lnkcn 1.11 H M:!mbcrs· meeti ng mu)' be t:1kcn without· !1 o ldin1~::1 111•~eting il'M..imb1::1·s howing.11! lcilsl the minimum Pe1c;::ntuge l111.er1o:st !hat would bl! m~::essa;·y lo l~ ihc Ul:lio11 ut (\ mc1;:ting, in which ca,;h Member entitk:d to V' V(ll<.! tak<.:11 .11 ll 111t:l'!ti11g, 01" lhL' J<.!8Ultx nl' llrl,Y solkitbers not h1ter ti··an with the deliver)! of'lhc> 1J1.::~l fhllciwin!,.:. n~port of' linancinl inlbrmntion given pursunm 10 SectiqJl.Z.J. . 9.2. Vg(iJJS: A Member 1m1y vote at a 111eeling in person, or by fl pr0)\y executed in writing by lhe Member •ind received by the Board of' Mtu1ngc1s pd or lo the li rnc wlwn 1hc \'oles ()f Mcmbt:rs :.ire to be counted. The provisions er il1c Code pcrLai11ing to the validity l.tnd llSC <11' pt•o.xics b)• shareholders or a corporotio1~ govtrn the vll!idity and use of proxies t:iivr.:n b,r ivlemlie1·s. On:y Mcmhe1s nl' iec:Md on 1l;c :-fol<: of' the meeting (0r ii' the vote is concb\!tcd without cl mec:ing rlwn on the dtitc of lhc 11\)tice soi iciting ll\\J Member consents) may vole. ARTtCLF. X TRANSFER ()Ii' ivmMnEH.SHff' INTERESTS IO. l, Limitation or. T111!1sfoi·s; '(ft) The 1cnn "trunsfor," when us~, m dl~lti1. •tnd miy pledge, hypu\hecatio11, 01· uthei' encl11'11b111!iCl:. (b) N!i Mi:-mbcr may m1m1tb· till or any rmrlion ~1 1 · its Mt¢ ·•~bersh!µ ln;eres1 t111les8 the tr l; membci· or' !lie Member's oflllimcd g1·m1p (as dcl'i11ed in l.R.C, Section IS04(a)); (iv) ii' the Member i!i n trLtJllCC of one OI' more employee •:cncfit pion~. lhc lfa!'1sll:'r is lb n co-lnislce· or i.t sue~cssor trw the Mcmb~t pmsuant le 1<1c d~ath Mthe Member's spousf 01· 1er111imuion oflhe :~.nritnl i·elutionship or lhe Member imd the ~pcusc. (b) Upon 11 · Pel'mitted Trnnslcr by ~\ Memhe1 of all orits Membershit' Jnter~~l. the Mnmbci· ce?.ses lo be E\ Mernbc.1· ns of the cffccliVC dote: or lbe lninsfot· determined ~\CC Mcmbi:•rsbip lnl~1\;::1I l'o mirifhc;• P'crl')Oll, the :;citing f\lkinhcl' shuJI lirst tlf1cr to sell stwh interest to tilt: Nher Mr!mbcr~ nn the terms on which it is pt'era!'ed w sell such lnte1·cs1 1<~ such P~rson by sending wriltt:n notice ro each other Memher describing the o/l'er and its (erms. Additio1mlly, upon receipt of an offur fh~rn u t'1ird P•ll'lY lo pmdiuse all or any po11ion or o Member's inlefcst ;n th(z Company. whkh such M~~mbcr dc:sirc::i lti nc1~cpt, such Mcinber shull promptly ~lcl i vcr a c(lp,Y oJ' the third ptirty o!'ll.:r· lo cuch other Mcmbc!'. End1 olhcr Mt!111bcr will have 15 bush1e::;~ ~bys from the dtilc of' 1·cc.cirt nf 11oth:c of the proposed ~ale of 11 Menibcr•s Member~llip lnicrcst or the third party offer, us the .:ase may be, lo notify 1he selling Mcmbci· in writing H1 ~1 such other Member elects to (i) purchase the selling Member's M~inbt::nihip inter<:(';l upon the rcnmi and conditions oJ· the proposed i-nl<= or third purly ofter, or {i1 l sell in the contempl ro be sokl in tf1e conrcmplnted lrMl'>ter. as the cnse may be. If the olhci Mcmbccs foil to gi'-•c n•Jlt flcntloll within 15 business c1~1ys or nn e1~Cli~)!1 to purchn!!e lhe selling f\lkmber's Meniber.ship lnli.:!rest or p<1rticipnlc in tlw contcmplEkd 1ra1:sfor, then lhe selli ng Member shull (I(! pern1iHcd. 101· ti pi th, l!~ird par1y upon th~ terms >ind ~I' the pl'opos~1 d snit! or 1hi1·d puc'ly nllcr, ::-r 1nnJ.:cs an r.::lcetio11 lo ptu·i.:h.isc till. ~.:!ling tvkmber'!! M'!01bersl11p I111\:!rc~n unclc1 §~Cl.!Q!l.) 0.3(nll,iJ. each ~if the pim.:lmsing Members :;hull purchnsc :1 portion of rhc "cl ling Mcn1ber's tvlemb<.~r~hip lntcresl tint! is proporliumd to lh(ll M~mhiJI'<$ Ptr\!\::nlllc,;1' lnLcrr::)l. (c) (i ) Upon rhc occtn'i·cncr t~f n T "iggcrlng Event with respect to '111)" Member (th~ "Qjforin1.t. l'vfomber'·), Coinpuny sh;il l lwvo tlw rig.ht but nol llw obligution tQ p~u·~·.lrnsi: ull of 1he Olforing Member's Mcmbe1·ship Interest in the Co1npnny at the ti111t Dt' tlH:: Triggc1fog Evtmt (the ·'Rt;dcmp litrn .Qblli~,tG"). Witlli11 60 days nfk1· !hi~ Company receivt'!l written nut ice o l' the occurrcncr or (11nd date of) lhc Triggering Event, the Company slrnll provicle wri1:1:'.n notice ofiJs ckctiOll of'lhe R~~dcmptk11 Optir.;n COMPANY Acm~EMF.NT OF C.~:NTllHION f'E('OS TElli\llNAI. LLC PAGE '19 6211 tG7.1/SPl~JD3U01B1/0~1'114 MR.107 CALCE01455  lo the Ofler!11g Membet• m• the Offel'ing M~:mbel"s ~uccessor lu intcrc:!'L, u$ u('lplicnblc (tht: '"RcdcmJ;)lion Notice'} in the even\ th~ CompHny e:ects r~1 exercise the Redemption Option, the Comptmy s l1uli pL11't.:lrni11;.~. nnd the Oflering Member 01' lhc onering Member's successor intcrcsi, t\S applicable, shnll sell, all of' the Membership tntcl'est owned by the O(rering Member al th1: t.1111e or lhe l"rigg~ring Event at n price et1unl 10 the TriggcriJ1g Evi::nt"Purchasc Price. (ii) . A closing (~ "Iri.ti.!l&ci.UR Evfil1t C.19.~illl:l") slrn11 b~ held 60 clnys ol'tl?r the lulu of' the' dntc of th: Rcdcm1>tio11 Notice or the d,11c thi1t \'he Triggcl'ing Gvcrn Pun.:hn!-ic Price !ms been tstab!,shed. . (11i) /\t th~ Tl'igg.eri 1;g E\•em Cl~>si1,g, the Of'H::ri11g Memb~1· or Offodng Mcmb1:r's successor in interest, as applicable, sh:ill deliver to th1.: Company r.11 f!Ssigomcnt ol' Membership !11tcrcst nwnc~i by the Offoring Mc111her, duly cntkirf.lccl for :rnnstbr lo the Com puny. (l~) At !he rl'iggod11g Evt.:nt Cie~in~, 11w Ccmpany sh,11! P th~: Ollen11g Mcmb1;:· ()l' lhe Ol'!crl11g Mi.:mlx: t".~ .$l1C1.:c:m11 in i111~rc:>I, ,1;; cipplic~1b 1 c, in irn::·;ediatc!y availabi1: li.111rs (b}' wire; ccrti licd or bnnl c:'· applicHhlc sccuril ics lt1wi;. (b) ·1he rranslCr will not ~11usc- Lhr Compa11y lo be trcutcd as other lhnn a por:1:c!'si1ip for United ~ Lmcs lodcrnl inconu! tax 1rnrpoi;cs. (<::) Tho transi'er will not i.::iuse t11c Comp:my to b~ S\1bj<~c1 lo regulation u11Ge1· the fnve~tmcuL Comprmy Ac: oi' 19,10. (d) ·111e mrnsfor will not cnusc nny nssc:Ls of the Comp ht: sllt'licicnl tl> reimburse the Compniiy !Or the el!l i111atcd r..::q>cr::;C:'i likely lo be in(;Uff'<:d by 1.hc Cwnrm11y ;n conncctilll'I with :;t11,;h u·mn;ll:r. I 0.5. . fillcctiv.:? Date: Distribut:ons, (v.) /\ Penri:tted Tn,1·nsfor oJ' ,, Membership lnl~rcsl is ~ff~ctivc i:1s uf th\J lit-st uay ()I' the calc:mlnr :11onth following the calendar month d11ring whi<;h the 13onrd of Mtm~gers recdvci; notice or such transfer (in such form and manner Ul> the BMrd oJ' Manngers may rcqwre) uu : .~ss 1hc Bm11d ol' Mm1a,gers M lo the Members· dctcnnin<:d m nccon.huR~ ~ with this Seel ion I0.5. wbt)lh;;:r or nol the l3oarc.l ~ii' Managers 01· t '~c Cu111pt1ny h<1:; knowk:dgc of !In} trnnsfoi- ()j' *~;iy Mc1nh~rslilp lnt~rosl. 10,6. 'f'nmsforor's Oblig:.ilio,;~: The lt'nll$fol'OI' or l1 Membership inrereSI who l:e111>1!S to be ii Member conlimtr:s lo be ohf igittcd with rc1!pcct 10 ill! Mt~m be:rsn it~ lntcn:sl or its stt1 ~ ;.is il!> a fbnrt:r Me111be1· ns provided in th<:' Code and ~ipplicablc lnw. l 0.7, A~sigoel:!'s Ri1;1hts !1ml Qbliga.i1Qns. Unlt:!Ss nn Assignee b~comcs a Member pursunnt tt) b.Jticlc_XJ_, sL1ch Assignee shall 1101 be entilled lo <1ny ot lht~ rights gronli;:d I<, u Member (cHhQt' •ntin us 1·cq 1.1ired by !he Codi'::), and shnll h ol' :ne Cree wiLh l'i;:sp~<.:l to ~l Prollibl ti.:d Trnnsti::J :shull be jointly t:mf scvcrnlly linblt.. 10 the Cc1111pHn.I' !b'.'1 und slnill !ndcmnily Md il o!cl the Compnny h1nnkss ugainst, <~ny cxp<.m:;~. flatislktl: . (H) Ttie Boal'mpnny for the estimated t'~pcnse$ likely h> be incurn: PAGE 22 !i1.1 ~ 4S7.11Sl'/~~ llJ2/v1G11!i91114 MR.110 CALCE01458  ARTICLE XU WITJ40RAWAL OR RF.l\ilOVAL OF MEMIU:RS . (ti) . f\io f\Ac111bcr muy withdrnw frm11 lhc Ct~ mpun)" or otherwise ccnsc w l~c u Member e:-.:ccp1 ui;on· the following events: '(i) n trml!lfor tlf nil of the• Mcmbe!"s Membership Interest in ll Pcrmillcd (ii) removal of the Member ns a Meir,ber m; provided in .S..9..~.t.i..9.!J~ oi" this Agreement. (b) A Member'slrnll be deemed Lo withN PECO~ Ti:HMtX;\ I, t.l..C PAGE 23 U 111157 'llSPl3303210101I001Hll MR.111 CALCE01459  ARTICJ .I~ xm WINDJNC lll' AND 'rii:nMINATfON i'1. I. Events R~..rn1Mng Wi11din1]. U1). The Compn11y slia!l coinmenci,:1 winding ur prnc1~lw·1:rn in w.ico1:cla11ce with this AgrccmMi {.lnd the Code up1)n the tirnl lti QCcur ol' the (01 l cai·1·y on its business (cxc:,.;pt tu the cxlt:;1I nccicssary lo wind up i•i> ~:n1siness), collect Hrt in this 1\grccmcnl as lhc "l.l!luid9ll,1,r.' (c) 'The Liquid910r mny dctcnmnc the time, m<1nne1·, and lcrms of any Sf! lc or sales or Compnny pror:erty pursuant to ~ ·.1cli winding up. The Liquidator (i r nut the 13ourd ol' Marn1gers} Is c11titkd to receive 1·cas.·onubk con-q:>M:>Mian li:ll' its services; rm1y exe1'Cise ull ilion (1i' linbi11ty and inclcm11illcatio11 right~ Si.'l furth ii1 Artii;le VI. (d) Tl1e L;quidc1101· slmll pmvid~ qlml'lcrly !·cports to 1hc Mc111bcrs uud /\ssignee!:i during the winding (lp pJ'ocedure .showing the t1ss~1s unl) linbllltics ol' tile Co111;1a11y, provid:11g i11fo11nnrion ;ind documents reqt1ired by the Members and Assignees lo C()nply wllh the:;· tax. 1·ero1·ti ng 'Jbligntions, and :;uch other informlutc1111::nt selling J01lh tlie us~t:ts, li~1l>i l itios, und reserves of d1t1 Compnny as of llie diile of c.:on1pk:tion or wiqding L:p. COMPANY AGnE€MENT OF C1•:NTllHIO~ 1'1:c1 >,-:·TKlti\llNr\l , l.t<; tll!H441. l/$P/J~03210101/0S1114 MR.112 CALCE01460  13.3. ConlinunJ..on Wllhou,Ll~iJ)dini{ Up. (tt) Jf tht:•'C is U decision tu Wind Llfl tl!ld lc:·11iimllc the ( l11l1J.ltlil)I' US dCScr:tJ~d in Section 13.1{<1), lhc Con'lpan~ mll.y.bc continued o~ provided :n Section I 0 ! .552 the Code. or (b) If thct'l'! •$ u rc1·m inaliM or ii !C! CO!~limu;d lllGtnbc:·ship of the lasl rcmnrnmg Mern be!' ~ls ckscrlbctl in Sec: ti en 13. I(c ), then pi ior to <.:omplelion of the winding up prcce!>!'; blll not le.~ tcr than 90 days nllcr' the cv\!nt or t1;;nnim11io11, :Ile Bmml of Mtmul!crs may contim;r; lht: Compuny by. 1:1dmitting one or more M~111be rs el'fccl.ive as of 1hc occiirrenc.:~ or 1hc 1!v~nl or tc1'111in~ttion. Any. Assignee whose Pert~enhtge Interest wou ld be diuiiHh;lied by rr.f.\sm1 of the utlmiss1on of un Additiorial Membe1· u11de1 the circumstances described in this Section mus; uppmvt: lhe Hdmis~ion ol tlte Addi tional Member. (a) In Oenernl. On wiuding up the Company, th\! Liq .. iclalol shall dispO!lt nl' u1e Comp11.ny'~ properties nnd r.pply ~in} in ;1ci.:ordu11tl:! with 1hei1· 1·~lutive righ!S t'ncl !;rioritie:.; 10 sutisi'y th~ liubl li1je:i (11' 1hc Co1np~1ny, including 1.!Xp~nse;\ · associatt;d with thc ·winding up um:I lcnnillr.Uon of the Co111pn11y, ht;t excluding nny Comp::)ll)' liflbility flit any unp:iid lvfandmory Dislributio:1s; (ii) to Members. i\!;signc:cs, l1nd former \llcmbcrs In sutisl'y the Compi.my':-i liability for m'\y. unpaid M~rndiitory Dis~l'ibutions: and (iii) · to M1:111o~rs i111d As">igm;c:; ;1;5 provjtlcd in Sc<.:tio11 4.2(al. (b) Jjo Me~11bcr Dclk: t Rcstorati~)ll Obli,gotion. No Member is linb:c 10 the Company or S.fi1;t!9n 13 14Cnl'fl.U:ai~d (i.ill mny b~ wltht\eid lo pro,iide " 1-eu:;11m1ble res~rve fo1· Company linbilit ies (contingent· 01· othc1 wise) w1d future expenses, includmg a :easonnble reserve for uny t.:hiiim: for in~Y.mcnt:i and llli!ffu.!lion!-; lo Mcn1pcrs in !SJ.mi. The l.,1q1.1id~k):- m:1y 1101 1m1ke u11y payments M distribuW:ns to Mcmhcrs o~ t\~/\"Jg11cc.S pw·sw.lt\~ \'O S~Qlfon I JAfJUtiJ) 01· {ill) ci1her lhM tn ct1sh u11lcss ~:I! Members tmd A~signees rccciv i n~ the property approv~ tile tr1111sfrr in kind. The Llquid' the l.ltl!., amo\tnl:; i.wld lo Members purnu~:n1 to ihis ~.!)011 ! ;).4 ;,;h:;lll be INnli.::t! I' Tc1·mi1rntion of n O<>mcstic Emity (Jn th!! corn1~l~1ic1 n l'..ll''he winding op ol'lht: Cor:1puny. I:3.6, RcJ.rstalc.m.~ll· If the CGmruny is terminated, it may be r'·111:1tutcd in the 11ii1Jt11t:r pro11idf<:d in lbc Code. AH.TlCLt XIV VALLATJON . J4. l . [i'air Vnlye ol Compmw P1\11Jertv. The f.'ai1· Vnlue of property contriouted to th(; Compnny by l1 Member us ptll'l of such Mcmb~r's Initial C1:1pital C:tmtrilnnion iR the amount or such Member' !: lt11[laJ Cnpilnl Con1ribu1iont as set fon!1 on H~.P.ili!l.!.'\: 1ni11t1s the amount of m1y c:n~h contri buted to the Compony ns part of s;,:ch Member's lnitinl c,1pi10 I Conti ibu1ion. 111 nll other cnst's, lhc ft::1ir V nloe of ~111 (tssct as of uny d~1te is it:; foi1· mnrkcl l'lil"c as dc\ermined by the: 13oc1•·d or Managers in good fo ith usin~ l 111 y fcnsllll(i!Ction with <1 Trigge1 ing Hvcnt, the foir mnrket v11! t1e or the \/lcmhcrshfp I nterest~ Rhal l he dclcrmincd by rhc Mtmugcr.s r.msur.tnl 10 'm ind.::pc11Jcnl thi rtl purty apprahrnl of the HSs1:1:.; ol' the Compimy. ','hL· lfourcl of M~nagcrs shull 110 Jess 1lw11 ar:11ually. cause tht: mrn~ls ol' the Compwi)' !"be uppraiscd b}' ;111 1ndcpcnllc11! third pnrty. ARTICLE XV GLNElV\L PllOVlSl ONS (a) In General. Sub,1ecl to the followi nB exceptions Hnd !imltt1tions, this Agrccmcm ffUI)' be Agrcc:."11~11t. No umend111c111 l'i. Ar1klc "..1 (1·~1t11i11g to liabili ty Md !t'-dc11111IJ'icatilpprnv.il. CCM!'ANY AGREEMENT or: CJ,,'i n RION p~;(.'()S 'flill,\1111'1\I, LLC l'AGe 26 tr.ll 14!l1. 'l/SP/3303~ro·o·JI0'.11114 MR.114 CALCE01462  I5.2. NQJlf.st An>' notlct', 1·eporL or 011:c1· co111111t1nicution rc([lti1•ccl m permitted lo be mode H:l nny person by· this /\gr1;erncnt shall b~ in wriling tind is 1S oJ' ihc d;11e ol dc;lvcry. or (<.') suc1.:c~.sf1.11ly tn1m;mi1ted by lllcsirn ilc 01· 1.: ~cctro11 ic mes~H~(~ I<.> tlic person's li1ci;ilnik· phone number or e-mail <1ddress {as 11pplicuble) seL forth in lht Comp,1ny's wcords 11 or tile luw of any olhcl' jurisdiction. Any Proc~cd i ng c1r1~i11g uul ol or 1·elutin~ In thi.:: Agreement the Compnny's acrivities or properties mny bi: brought .:~ the sttlte COLlrlS of Dnllas 01 Coi1nt)(, Ti~:-cas or, if it h th~! !.),'\\\lu!-!ivc jurisdii.:1io11 ol' eutli such cowl io nny .such f'l'oceed!ng, wn i v~s uny objci.:1100 h ll'l<•Y 1H>1\' 01· hen.'t11i·e,. ht:vc 10 vc11t1c (i i ' tl1 co1wcnlc11:.:c or' fon1m. ngrecs lh£t! ni l <:1<1ims i;, rcspl.'.ct ol' t·hc P"r c~indition ;.1:· uny brem.:i1 lhen.."01'. ~\ purly will 1101 be u~emcd to have wa.ivccl uny right oi· remedy tmdi;;r this l\µr•~cmcnt unless ihlll party l1ns signed n wr:tl'Cm clocume;1t lo that eftect, and <1ny :such waiver is· u~r1 l i~n~. 1e only with 1·esp1:::ct ln the specit!c provision one! insrnnc~ for which it Is given. I S.5. Enllrc Aurecn1e!~I. ·1his J\greeme111 ~t1pc1·scdcs ~II priOI' ngrccmenrs, wh~thc1· wrincn or ornl, berwe(rn the 1n1rtics with respect to ils :$llbje<.:\ mHHcr Hl\d t:on:stitL1t~~s a l;Olnplclc b1igntions undc1· lhi~ /\gr1.:e111t..:nl cxccpl lt)< c,'artics. Othc1· than >IS pro\'iC.:cd in Scctiop 5.7 (rdnting lP relirna:c 011 nuthorily ol' the Bm1rd cl' Munag.ers) nnd Articlt> YI (re l ulm~ lo rights 01· I ndenrni lied l'erson~ ), none ol' : ' 1c pl'Ovisions o!' this 1\grccmcn1 t'!l'e for the bcnctit of Cir cnforccublc by any creditors or th~ Company or orht:r persons n~)l tl pnrly to this Agn.:~:11c1u. cxi,;ept such bcnclits m; i11ure to a sw~c~~sm m' pcrn~i'.:cd assign in Hccnrdi:ncc with .Scc! io.u.J 5.6. 15.8. ~~~L~.n1Q.i!Jl!~. 11' ml)' provision ur lhig Agn.'tJment is lidd ill valid or u11cnlon:cobl<.: by uny emu t or r:o111p<:lc11i jurisdicl(o1i, lhe olhcr provisions or this f\grccmenl will rcrn11i11 in l\dl lt>t'i.:t.: und efii.!ct, 1\ny pn:ivisiQn ul' this Agreement held lnvorid or 1,menlorceable on ly in ptlr1 onlcgr~e will 1·~mnin 111 ti.d· !C.m.'c aud effect to tht:! ~>L u:iy party. Nolh ing i11 this Ag:~cmcnt is lo be const!'l!Cd ns outhori.zing o~ l'cquiri11g nny ;lction thnt is prohibited by the Code or other npplicablc l11w, or as pl'Ohibiting uny nctio11 •!rnt is ri:quircd by !/1t) Code or u~licl' ;1pplk<1blt: !aw. · . 15.1O. )*csutjon 9f 1\j,;rec111~1'1. This Agret?mcnl mti)I' be <::xect1i!!d in coun 1.erparts, ench or \vhich will be deemed lo be an original copy of th ls Agreemet:I, Hild ull oJ' which logeilw coristitlJIC one . agreement. Any signnlmc to this Agreement evidenced by n facsimile or othc1· electronic 1n111smissio11 of such signnlure ~hH!l be binding on the p.tEE INTEREST P,\Y. N~ . 313-429-1103 P. 0 ~2 CENTURION 1,0GlST!C.S 'lLC .... ., ,• . ... . .. ~ . j' MAN'AGER: . ' " . . ~ /, lo COMPANY AcRl!ltM'EN1. 01" ommuoN:Ptcos'.l.'E.nl 11NALLLC t11ft-.t.14~ • 1Vt"lt'l.,,l\"1' 'Jf"l.lf'\,lflU\•""' 4 I' l· l MR.117 CALCE0146~  COMPANY AGREfi:Ml!.:NT Ofi' CENTURION PECOS TILll.MiNAL LLC ..... . . EXH101T A M.E_MBEfil.:_CONTIUDUTlONS AND P~RC.J~NTAG ll;J NTll:IU!:STS ... Kl'foctivc us ot' 1'hc li:l'fccHvc B}ltc . . M 'E MUER'NAM'E ANI) Al)ORESS lnitinl Cnpitnl lnitinl Percf:nt~gc Contrihution I ntcrcst Cc1~ t llrion L'Ggi;stics' LI .C $400.00 40.00~1(, 17950 Pl'esro11 Rond .. ,. Suite 1080 · D<1llt1s Tc.1 P1;co!{'fr.m11;11,\1.·1,1,c G211~.ll 'l, 11SP/33<13210•1(11/09' 114 MR.118 CALCE01466  COMPANY .\.GRF.li:MI?NT 1 OF CENTt;R!ON PCCOS TERMINAL LLC APPEi'; HIX A ......_... PRlNCIPUl:S OF ALLf)CATION __ A. l lt111·odu<:tiqu. This Aj)pendix se;s forlh pri1wiplcs undui· which items of income, gain. loss.: deductioll nncl crcdil sh:tll be allocated nmong th1:: Memliers. This /\pp1.111dix •ll~o ;)rovides f:.)!' th(: dcterrn inntion Hcd mnintennnce of C11;)ilal Accounts , generally it\ m.:cordancc wit h ·l'l'emn1ry Rcuuhulons promulgated tllld~r !, R,C. S~lkm 704(b ), lhr pt1qmse~ or detamin1 ng !!llch altm:utior1s. For purpo!!<'!!> o I' this Appendix, 2111 Assignee shnl I be '. rc111cd in 1bc same munm:r i1s n lvkmbt::-. A.2 e Dl:linitiOll!'.i. Cnpitnlized tk:rms used in lhi~ l\r>P1!. 11 di~ htt\'C lhi: mcunings !:lel ri.1rlh below or in the Agrcc:1"cn1. ;,Adjt1~tcd Cuphnl A'<.:coH;1t Dtli5iil" tn~atw tiny dclic!t bnlmicc 111 ti Member's Cnpitul Acco.int ns . of the end ni«t lllxable yeiir. cil1er giving. ~·lfoct to lhi.: lbilowi11g <1tijus1111c111s: · C1•cdi1 ro the Capiwl /\ccount '~~ar bems lo sut.:h begi1mi11g ndjuslc)d t~1.~ b.isis. Jr the adjus1~d lx1sis ro:· fodcral in..:ome tnx purpose~ (') r l111 t1~1Scl !ll thi:l 1i~.:gi 1111 l 11g (i I' ~\li!h !t\Xttblc )'CHI' is r.ero. fkpr>·!(Hiable lilelhod selet..:ted by the F:kH11·ci of \Vbmigers. ''Gro:-;s A:s:>yl Vu I tie" means c11l 1•ssct's <1tl]u!lh:d bnsis for l;.:!dernl im:rrrm: tux purr><1~es, r.::-.1:cpl us follows: CCMPANY AGREeM!?.NT OF C!::NTUIUON Plt<.'Oe\Tt:H1\ll1~\L Lt.C e2114!i7.1/SPl33032i01\l11091114 MR.119 CALCE01467  (i) "!'he- iniliul Clr11ss A:-1~c:t Vntuc of nn ns:;¢1 contributed bv u Member to the Coinp1my is the gross rair Value of such n:,ii;c1.· a:< dc1c1·111incd by 1he l!Olll!~ibll!fn~ Member and the.: Bo~ll'tl 0J'M11nt1gers ulid u~ llt!t ftent 1hat un nqjustmcnl is required pun!uunt to pnrngraph (H). . 11' the Gros.!\ i\.ss~t Yalt1c <.11' an uss1~1· lrns b1.:1rn dctcr"t'111cd 01· adjusted p1.: 1·sua1:t· to subpnrl'lgt·aph$ (i). (ii)7 ~ll' t)v) or tllis delinilit111, the usset's Gwss ..\~SCI Value shnll Hie1•ei;iler· be: tidjus!ed by the f)cprc1:iuli11n tuken into accoun: with 1·cspccr lCI such nssc:l fol' pu~·1~oscs of Gl,mpuring Net Profit un" mean, fi.)r 1~tcl1 l1~oo~Tt;1t'llN;\l. l.1I,{ G11HS7 1/SP/l30J2!0'1!)110!l1114 MR.120 CALCE01468  (i;i) I!' thr. G1•oss Asset Value of ~111Y Company ussct is ncljustc'd pmsurul! lo :ntbp gain m· loss lhim dlspl)siti(m <)J' the nssc.:1 li..;r 1rn11,os~!s c;f'c~m1puling N~:t Prnnt nml Net Loss. (ivj . Otiir:• ()I' loss i·csulling lh1111 r:ny disposil ion or Co:~:p111 1 y propc:rly with rcsp(:Cl lo wh ich gHin or leis:; 1s recognized for leckMl incrll))I.! tunl lbr pi:rposcs of compl1ling Net Profil er ".'Jct J.oss. ··Non1·ecnw·se Oedu~tions'' hns the meaning, !iel thrtb IH Trc•1sury Rcg11latil .. 1 re<1s\1ry Rcgu lulions Scclio1t 1.704-2(1.:). "Nonre,comsc l,.1nhll.iJ.x'' hn:; 'the mcnning :;1~ L fortr in Tr~a:nll'y Rcgi.ilations Section : .704-· 2(b)(J ). ''.,&1rtncr 1'1011rccoqrs~••P.~" hm; the inern~ing ~t !Orth in Tre,1sury R1;!g~1lutions S;:ction I .704- 7.(b)(4} ''Part.ner Nonrecoui·sc Debt Minimum Gain'' hns the mco1i:11g set for!h 111Trcasll~·y Rcgult1lions Sec1 :on L'704·2(i)(:!) n11d ~hnll he del'crrni;;cd in nccortluncc wilh Treasury Rcgul:ilinns "lcation I.'7CM- 2{i)l3 ). ·'f>artne~ Non1:gco11r;;;~ Deductions" hm; 1hc m1:aning set l.brth in frcr1Slll)' Rcguhttions &-c1io11 J. 704-';:(i )( l) ~llld sl1t11l be det~rminei.::r dcto.:1·n·.i11cd und 1nttint<1incd lh1'ol1ghnt11 th~ i'ull lc:ln 1>1' the Conmiioy i11 ~iccordance wilh the C•'1pi l1.1l <1<.:cl11mling ru les 01· Tt·c~i:-;111 y Regulations Section I.'704-1 (b}(:?.)(iv) Withotl! limiting t he g~nernlity ol the lorcguing. 1l1c fbllowing mies apply: l C[lSh anti the Fnir Value of property distributed lu such tvkmb~I', (ii) su~h Mt'mrer·s shrm! of the Company's Net Loss, and (iii) the am(1t11it of iln)' lh.ibiltties (lf st;ch Member assum1ed by lh•~ Company O!' thut ure S'~cured by any property cont1·ibt11ed by sttch Member to the (\rnlpnny. (c) Upo11 the trm1slbr :Jy n tvicmber or nl I or pol'l of an in1eres1 in the Company tt 1\cr thti.JIH. ('.)) Except t1S ot!1erwisc rnquircd by Tn.1<1smy Regulntio11s Section l."/04·1tb")(2)(iv),. E1cl;lcstme111 to C;ipital Ac<::ounts in l'cspect ol' Comp;1ny income, gain, loss. dcdui::tion. nnd l.R.C. Sec lion 705(n)(2){13) cxpcnditu1·es (or items thereoJ) shnll be: macle with rdc1·<:11cc w lhe fod<~rtd 'ux trcillnwnt of such ilems (nnd, in lhe tn!SC of book items. \Vilh rcforc1H:c: lo lht !eden.ii las 11·e.atn1co1 of the c:orrcspondit1g ll1:-. items) a: the Con:pa11y level, without rcgtml lo any :-:~nnd~tlliry or c:lective Ill:< trcr.1;;ie111 (lf ~uth ilem~ 111 rhe Member kvel. (i) "l'he prnvisi(.n:; C>l lhi!:i Appendix nnd or the A~rt1(:1mi.:nt l't'iHLl!1g (() lhc m;1imc.:nancc of Capital Accounts arc i111.e11clcd to 1::omply with Treasury Regulmion:s Section l.704-1 (b)(2)(iv), ;,md shall be interpreted mid applied il1 a manner consistf~nt with such TJ'cusury R~gL1ln!ions. 11' the Board of tvhlnagci·.s detel'mincs thut it is prndent 10 modify the 111a1111e1· 111 which the Cupil911N MR.122 CALCE01470  any period ·shnll be illlocmellitic:s» till (lu l igntions (ifuny) of Members to comribu\e udditk1!·1\ll <.:;:ipitul to 1he Crnnp<1n)' were Sf.ttisticd, und uny rcm11ining- cush was clistributed to the Memncrs 11nd~l' Section 4.2 us of the li1s1 day r.!' sucl1 period, m11111$ (ii) the Member's share . A.4.2 IM.\llln.LQ.t.Y...611oct!lion:i. The !hllnwq~ sp~ciilt allocHt ions i;h.i:l lw flpplbl in lhc order in whith they nrc listed. Such tmle::l'f11g is Intended to c0111ply with the orderi11g rult:s in Tr<~~1sury Hcg11lmions Section ! . 704-2(j) ond sholl be uppH~d consist~mly thel'ewiih. (n) l'vri11i11mn\.,..Q~lmrg,:b~. E>'~O:'. 1h0n1 iil Hcld :rion 10 the a1Mt\ttts, 1f'My, oll<)Catcd p~irsuivt 11; pnrugruph 4.2(n), m;y Me1nbcr wil'l u s!HU'e or lh:H P~ll'tne r NcmrecOUl'Se Dt:bt t-.-1iuilm11J) Onin (dcwm1inod in ;iccordoncc with Tt'Oll~ Ul'Y Regultnionr, S('Cli<\n 1.704-2(i)(5)) OS of the D~gi nnin~ or the 1nxub lc )'Cat' shell! be <1llocu1cd itc111s fll Com puny income ~ind g~1in for 1ha1 tnxabk: yenr (huil be inl~rprctt:d conl'i:;ti;:n:!y therewith, ind•1d1ng lluit 110 <.:lrnrgcbm.:k shull l>c rc:quir~d ro 1ho c~lcnt 1hc rcqufr~~mcnts lor 11ny ~,'\c.:i:: ptioni; prnvitkcJ in °1'('(:<1su1·y lh.:t+ulution St::ction I .704-2(i)(4) 1u·e 11wt. (c) Q<1flliJ:e<11ru:;mll£..Pfljg_L II uny Member wwxpcctediy rc<:civ..:s u;:y ndjusum;nt, allot:alion, or distribt1tioi1 de~cribed in Treasu1-y R::g1tlalions Scut:0ns I,704· I(b)(2)(ii)(L'.)(4), (5). M (6), it'~ms of Company income nnd guin slrnll be: sptdd!y allocated to sm:li Men1ber in rm nmoi111l ii11~! mmmer !iUl'!i<:ient to ~jjminme, to the extent ruquil'cd by !he Treasur;1 Re~ulalions, th<: /\dj\lsted Cupitnl Account D<~licit· of' sm:h Member !l:.i ttllicldy ns p(lssihle. An nlloc;1tion p•:r!i11ttn1 to the for1;1goi11;,: sentence slmll be mt1de only ~o the extent thnt such Member wculcl hav~ :m Adjusted C:1pil1tion. 1;· Member hu~ un r'\d,iu;-;t~xi C11pi~~1l Ac1;(lu1tl D<:li~! il nl lhe 1:.nd or tuty tnxuble yenr, each s11ch M~mbcr s11111l be spc<.:iully ;:illoc,1!..:d item~ of' C'rnnpu11y im:o1m: und gain in the.: mnoun~ of such Adjustt::d Capital Account Oclkit a~ qui<.:lJdurtfons ure t11tdbutahlc in nccorc.lnnr.:e wl;b Tre~1~ury Regulnli(Jns Sc(,;itr1s. A.4.3 Ci.1rnlive Allot:ntions. The allllc::nions ~ct Jbrth in Section A.4.2 hcrcol· (the "Rcg;1lntory Allocr.tiotis'!) .we lim~nded to comply with certnin 1-eqL1il'emems ot' the T1·~as1.11·y Rcgulmions. Tile Members inter1d that, lo tile extem possible, all Regul~1tory Allocalious slw.I be offset either with ntbe1· Regulatory Al!ccations or with special allocations or other items of Company incc.1mt , gain, loss, or deduction pllrsuum te> this ~cction A.4.3. Tho:-efore, imy other prnvis ions ()f thli: SectiM AA (orhel' ~han tl1~: .Re~tdulory Alloc~Hions) notwithsmnditig. !he Board (1f lVhrnagers ~h;1ll make :rnch offo~:llin!>, ~pcci~1I allocnli(H!S' or Co1npnny incorne, gtiin, loss. or dcduclion in whatl'.:Vt:I' lllllllllCI' the Bn:ll'd o'f Mn1111gc1·s detonninc:-; appropt•intc su thEJI. alhH' such olfse11ing t1llvt..'t'llio1is •m: made. e<1d1 Mcmb~r·s C:ipltl-11 /\cco1ml hul~mi.:e 1s, lei thl' cxicnl p1rnsihlc, cqrn1l t•1 tin.: Cupilctl Acl:ollnl bt'ding to their v11rying inicrcslS anti UtC.:. 8ection 706(ti>. using imy: ct111vcntion~ 1~ermlt1ed b>• inw ~ml s~lectcc.J by lhc Board of Mu1rngcrs. (1,;) Fo1· pul'pO:!i\.'S of' dc(crmining hni! bo deemed 10 cc in prnponiun lo their rc:o:pectivc l'ca;unlage Interests '(d) To the ex lent pcrmilled by Trcasur)' Hcgula!icins S~c1 ion I. 7(14 ..2(h)(J ), the l3rn1rilal Accou:il D('ficit for a1\)· Me111bc1-. A.S · ' T_.Px Allocqtj.QM (n) . 'In Geneh'tl. E:-wept ns othe:·wise prnvided in !his Section I'd, <:Heh item of i11c:orr1e, gttin, loss~ nnd ck(uction of the Compnriy !Or tederal income lnx purposes slmll be allocnted among the Members iu the san\e mnnner ns st.ch Items nrc :1l l0l:lltcd !or honk purpu;,e~ under lh~~ Agreement and 1hi!1' Appendix. (b) · k~~n~·Tu!!~~.!;l.Qt.Ji~.'~W'id J.lrppc(lx. In «1<.:<.:cn.ltm(:;,: with J R.C. Scc!i,ln 704(c) a11d the rclmci:J Trcri.sw·y Rcguluuo11s, inccme, guin. IM::;. nml dcdllction w~th 1·cspcot t11 lHlY p1·or>1;:1'l,)' i;011tri!:iui1.xl to lhc c;:ipitnl ol' the C()rnpany shall, solely rui tax pllrf>O!'IC1;i, be ul!m:n:ed Vil'iOn or llii:-: Ap('l1:!11dix nncl tho /\gn:cr;1~ml. COMPANY AGREEMENT Of' CrXl'lllt!ON Pll.('(l.'> Tf:1n11~1\l LLC \;211<16'i'.11SPll303li0101i\l0l t 14 MR.125 CALCE01473  . In uccm dance with th1:. provision~ (Ir lilt dcllni1im t or ''Triggcri11g 6\1cnl Purdm~~ P1•i~i)" ol' l!w CompOSCS ... ......................................................... ......... .................... ............................. 7 2.6. 11 owcrs ........................................................................................ ,................................ 7 2. 7. Cornpnny Properly ................................................................................................... 7 2.8. Consent to Ad1nission of Members ......................................................................... 7 2.9. Status of Managers and Mcmbcrs ............................................................................7 2.10. Cerlificates of Membership lntcrcsts ....................................................................... 7 2.11. No State Law Partnership ........................................................................................ 8 ARTICLE Ill CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS ...................................... 8 3.1. Initial Capital Conlributions .................................................................................... 8 3.2. Additional Capital Contributions .............................................................................8 3.3. Capila) Accounts ................................................................................................... ,.....8 3.4. No Right to Return of or Interest on Capital Account .............................................8 3. 5. Member Loans ............................................................................................................ 8 ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS.............................................................8 4.1. Allocation of Profit or Loss ..................................................................................... 8 4.2. Distributions of Distributable Cash ......................................................................... 8 4.3. Withl1oldi11g ······················••t·•··················································································9 4.4. Limitnlion on Distributions......................................................................................9 4.S. No rught to Partition or Distributions in Kind ...................................................... 10 4.6. Recovery of Erroneous Distributions .................................................................... 10 ARTICLE V MANAGEMENT; ACTIVITIES OF MANAGERS AND MEMBERS ................ 10 5.1. Management and Control of Company Business .................................................. 10 5.2. Resignation, Removal, and Replacement of Managers ......................................... 1O 5.3. Actions of the Board of Managers ......................................................................... 12 5.4. Limitations on Board ofMnnugers' Authority ...................................................... 12 5.5. Dclcgntion of Authority; Officers .......................................................................... 13 5.6. Reliance ................................................................................................................. 13 S. 7. Compensation and .Expenses of Members and Managers ..................................... 1J 5.8. Standards of Manager and Member Conduct ........................................................ 14 ARTICLE VJ LIABILITY AND 1NDEMJ\'JF1CATION ......................................... .................... 14 FIRST AJ\lf.Nl>lm AND RESTATEU COMP/\N\' AGnt;t:r.n:NT1Dli0721J5 MR.130  6.1 . L..imitntion of Liability .... ,,., .................................................................................... 14 6.2. lnden1nificatio11 by Company ................................................................................ J 5 6.3. Conduct Not Protcctcd ..................................... ...................................................... 15 6.4. lnst1rance ................................................. ,.............................................................. l S 6.5. St1rvival ................................................................................................. ..................... 15 ARTICLE vn BOOKS AND RECORDS; REPORTS ................................................................ 16 7.1. Mni nlenance of cmd Access to Books and Records ............................................... t 6 7.2. Fiscal Year ............................................................................................................. 16 7.3. Financial and Operating Reports ............... ............................................................ 16 7.4. 'fax Rcports ............................................................................................................ 16 7.5. 'fransmission of Com1nunications ......................................................................... 16 ARTICLE VIII TAX. MA·rrERS ................................................................................................. 17 8.1. 'J·ax Classification ............................... ,.................................................................. I7 8.2. Company Returns ..................................................................................................... 17 8.3. Tax Elections .. ,. .......................................................................................................... 17 8.4. Consistent Reporting ......................................................................................... ...... .... 17 8.5. Tax Proceedings ........................................................................................................ 17 8.6. lnfonnation and Documents to Company .............................................................. I8 8. 7. Su.rvival .................................................................................................................. 18 ARTICLE IX MEETINGS AND VOTING OF MEMBERS ...................................................... 18 9. I. Mcetings ............................................................................................................ ,....... 18 9.2. Voting ......................................................................................................................... 19 ARTICLE X TRANSFER OF MEMBERSI UP INTERESTS ..................................................... 19 10.1 . Limitation on Transfers ......................................................................................... 19 10.2. Permitted Transfer of Membership Interest. .......................................................... 19 10.3. Right of First Refusal; Tag-Along Right.c1; Triggering Events ..............................20 l 0.4. Conditions lo Permitted Tnmsters of Membership lnterests .................................21 10.5. Eflective Date; Distributions ................................................................................. 21 10.6. Transferor's Obligntions ........................................................................................22 10.7. Assignee's Rights und Obligations ........................................................................22 I 0.8. Effect and Consequences of Prohibited Transfer ..................................................22 ARTICLE XI ADMISSION OF NEW MEMBERS ....................................................................23 11. I. Substituted Me1nbers ...................................... .......................................................23 J1.2. Additional Mc1nbers ..............................................................................................23 11.3. No Required Capital Contributions .......................................................................23 ARTICLE XJI WITHDRAWAL OR REMOVAL OF MEMBERS ............................................23 12.J. Wit11draWc1I of"Mcml1era ...............................................................................,, .... ,....23 12.2. Rc1novnl ofMembers........ ............................................................................ 24 4 •••••• • • • 12.3. St.illus of Fonner Membei· ........................................................................................24 ARTICLE XJJI WfNDING UP AND TERMINATION ................... ........................................... 24 FIRST AAr£NDF.D AND RESTATED Cmll'AN\' AGREEMENT OF CENTURION PECOS 'l'ERMJ:'JAL LLC PAGE 62l l457.aid or incurred in connccliun with or us a consequence of any Proceeding, net of any in.surunce or other recoveries received by the Indemnified Person with respect to the foregoing. "Distributable Cash" means the cash and cash equivalents held by the Company from operations rcasonnbly detcm1incd by the Board of Managers to be available for distribution to the Members after payment of the Company's debts, expenses, und other obligations, und aficr establishment and maintenance of such cash reserves ns the Board of Managers dctennines should be rctnined for the reusonablc current und future needs of the Company's business. ..E1foclivc Dute'' is defined in the introduction to this Agreement. "Entjty" mcnns any gcncrnJ partnership, limited partnership, limited liability partnership, limited liability company, corporation, joint venture, trust, business trus~ cooperative, association, foreign trust. foreign business organization, or other business entity. "Fair Value'' means, wirh respect to an !:ll)Set, its Fair Value delem1ined according to Section "Fiscal Year" is defined in Section 7.2. "Fonnntion Date" is defined in the recitals to this Agreement. ..Indemnified Person" means (a) a Member or Assignee; {b) n Mnnnger, (c) a Liquidator (if any}; (d) nny Affiliate of the Company. u Member or Assignee, a Manager, or a Liquidator; and (c) any governing person, ollicer, employee, ugent, or owner of the Company, u Member or Assignee, u Manager, u Liquidator, or any Affiliate of any of the foregoing. A person is an Indemnified Person whether or not such person has the status required to be an Indemnified Person at the time ony Proceeding is made or maintained as described in Article VI or al the time any amendment to this Agreement is proposer.J under Sectfon 15. l. provided such person had the status required to be an [ndemnified Person at the time of the relevant actions referenced in the Proceeding. "Index Rate" means the rate specified in Section 302.002 oflhc Texas Finance Code. "Initial Cupjtul Con1ribution'' means the sum of any cash and the Fnir Value of any pmperty contributed to the Company by a Member with respect to a Membership Interest in connection with the original issuance of the Membership lntercst by the Company as set forth on Exhibit A. "J.R.C." means the lnternaJ Revenue Code of J986. "Liquidator" is defined in Section 1J.2(b). "'Majority-in-Interest" means one or more Members owning collectively more than 50% of the Percentage Intere~1S owned by all Members entitled to vote 011 the pnrticuJnr issue. "Manager'' means the person or persons designated ns manager of the Company in the Certificate of Formation and any person or persons who become a rcpJoccmenl Manager pursuant tu Section 5.3. FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF C!o:"l lllllON Pl-.:COS Tlo:K,\.111\'AI, LLC PAGE3 ll211.t57.CISPl3303ZI01Ot1072115 MR.135  "Mandatory Distribution'' means nny distribution tlmt a Member is entitled to receive und as to which the Member has attained the slnttlS of n creditor under Section l 01.207 of the Code. ·~Member" meuns any person identified as n member on Exhibit A, and any other person who becomes a mcmher of the Company pursuant to this Agreement, who has not ceased tu be u Member. "Members" mcnns nil pt!rsons that arc Members, collectively. "Membership Jntercst0 means n Member's or Assignee's economic inlc1·cst in the Company. The tcnn includes the Member's or Assignee•s right to receive allocations of profits and losses and distributions as described in Article IV, and other rights and obligations under this Agreement or the Code of an Assignee who has not been admitted as a Member, but docs not include any right to participate in management or any other right reserved under this Agrcemenl or lhe Code exclusively to a Member. ·•otrcnng Member" is defined in Section 1O.J(cl(i). ••Percentage Interest" means, os to nny Member or Assignee, the percentage interest set fm1h on Exhibit A. "Pcm1ined TranslCr'' means any transfor of a Membership Interest that is described in Section "Person" or "person" means any individual or Entity, and the heirs, executors, administrnlors, legal representntives, successors, nnd assigns of such "Person," as and where the context so pcm1its or requires. ''Proceeding" means (o) any threatened, pending, or completed action or other proceeding, whether civil, criminnl, administrative, arbitrcitive, or investigative; (b) an nppcaJ of any such proceeding; and (c) an inquiry or investigation that could lend to any such proceeding. ''Prohibited Transfer" me~ms any transfer of n Membership Interest that is not a Pcnnined Transfer. ''Redemption Notice" is defined in Section I 0.3(c){i}. "Redemption Option·• is defined in Section 10.3(c)(i). "Stampede" means Stampede Energy, LLC, a Louisiana limited liability company. "Stampede Capital Conlribulion Balunce" means, with respect to Stampede, the total Cnpitul Contribution of Stampede less the cumulative distributions of cash by the Company to Stampede in return of Stampede's Cupital Contribution pursuant to Section 4.2Cu)(ii). For purposes of calculating the Stampede Capital Contribution Balance, no deduction shall be made for any tax distributions made to Stnmpede, whether pursuant to Section 4.2(bl of this Agreement or otherwise. "Stampede Preferred Return" means, with respect Lo Stampede an nmount equal to nn 8% cumulative compounded annual relum on the amount of Stampede's unreturned tolol Capital Contribulion accrued as of any date of determination. The Stampede Preferred Return will be calculuted by treating all distributions of the Stampede Preferred Return pursunnt to Section 4.2(a) as first being a FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CEN'TURJON PECOS Tf.'. HMINAI. l.LC PAGE4 8Z1 t457.41SP13l03ZI010tl012115 MR.136  payment of any undistributed nccumulntcd aruuml 1'Cturn as of the distribution date and then being a repayment of any and nil of Stampede's Capital Contributions as of the distribution dnte. "Stampede Preferrcd Return Bnlnnce" ml!uns. wilh respect lo Stampede, the cumulative nccrued Stampede Preferred Return less the cumulative distributions of cash by the Company to Stampede in payment of the Stampede Preferred Return pursuant to Section 4.2CnlCi). For purposes of calculating the Stampede Prcforred Return Balance, no deduction shall be made lbr any tux disuibutions mndc to Stampede, whether pursuant lo Section 4.2Cb) of this A!:,rreement or olherwise. "Substituted Member" means a person who is ndmittcd as a Member puJ·suant to Section 11.1 with respect to the transfer of nn existing Membership Interest. 0 Trcasury Regulations" means the Treasury regulations promulgated undcl' the l.R.C. "'Triggering Event" means the first to occur of (a) the date of a Prohibited Trnnsfer, incluc.Jing nny transfer to (i) a Member's trustee in bankruptcy, (ii) a purchaser at nny creditor's or court sale, {iii) a Member's spouse pursuant to a decree of u divorce court, or (iv) the guardian of an incompetent Member, (b) the date of denth of an individual Member, (c) the dale of' a Change or Control or tenninution of a Member that is no1 an individual; (d) the removal of u Member pursuant to Section 12.2; or (c) the voluntary election of a Member that is not an individual to liquidate oil or substantially all of its assets and/or dissolve. "Triggering Event Closing•· is defined in Section 1O.J(c)(ii}. "Triggering Event Purchase Price" means, in the case of a Membership Interest to be purchused pursuant to Section 10.3(c), the urair market value" (as defined in this paragraph) of the Membership Interest as of the date of the Tdggcring Event, dctennincd assuming an onns length snle of nil of the Company's assets ton third party (ns n going concern und not as a Hquidation) for fair murket value and the application of the proceeds of the sale according to Section 13.4. The Triggering Event Purchase Price will be detennined (a) if there is in effect as of the date of the Triggering Event a valid Certi licate of Fair Market Value in substantially the form attached as Schedule A executed by all Members, by relerencc to the fair market valuc for such Membership Interest as set forth in such Certificate of Fair Markel VuJue, and (b) if there is no such Certificate of Pair Market Value effective with respect to the Triggering EventJ (i) by agreement of the Company and U1c Offering Member or the Offering Member's successor in interest, as applicable, or (ii) if no such agrccmeat is reached within 30 days aOcr the issuance of the Redemption Notice, by ru1 Independent appraiser chosen mutually by the Company and the Offering Member or the Offering Member's successor in interest, as applicable; provided. however, thul in detennining the fair market vulue of a Member's Membership Inlerest, such appraiser shall take into account the Stampcde~s Capital Contribution Balance nnd the Stampede Preferred Return Balance and shall increase or decrease Triggering Event Purchase Price of each Member's Membership Interest occordingly. Any foir market value agreed by the Members in a Certificate of Fair Murkel Vulue shall be elTcctive until the earlier of (A) 90 days from the date set forth in any such Certificate of Fnir Market Vnlu~, or (A) the date that a new Certificate of fair Market Value hns been executed by all of the Members. 1.2. Construction. In this Agreement, unless n clear contrary intention appears: (a) the singular number includes the plural number and vice versa; FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CJ~NTUIUO~ P•:cos Tf:H!\11"11/\I. LLC PAGES 6211~5".419P/33032J0101/07211 fi MR.137  (b) reference to any per!'nn includes such person's successors nm! ussigns but, if tipplicuble, only if such successors and nssigns arc not prohibited by this Agreement, and reference to a person in o particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes the other gender and the neuter; (d) reference to any agreement or other document mcnns such agreement or other document as nmcnclcd or modified and in effect from time to time; (e) reference to any statute, rcgulotion, or other legal requirement means such legal requirement as amended, mm.lilied, codified, replaced, or reenacted. in whole or in pnrt, und in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any legal requirement menns that provision of such legal requirement from time to time in cITccl and constituting the substantive amendment, modification, codiliculion, replacement, or reenactment of such section or other provision; (r) '"hereunder," "hereof:•· ~'hereto~·' and words of similur import refer tu this Agreement us u whole nnd not to any particulur Article. Section, or other provision hereof; (g) "including" (and with its correlotive meaning "include'') means including without limiting the genernlily of any description preceding such tcm1; (h) 0 or" is used in the inclusive sense of''and/or''; (i) with respect lo the determinution of aoy period of time, "from" means ''from and including" nnd "to" mcnns "to but excluding"; und (j) references to ngreemenl.s or other documents re for us well to all addenda, e;'l(hibits, schedules, or amendments thereto. ARTICLE II ORGANIZATIONAL MATTERS 2.1. f'ormation. The Company was formed pursuant to the Certificate of formation effective us of the Fonnation Date. 2.2. Name. The Company's name is as set forth in the Ce11ificatc of Fonnation. The Donrcl or Managers may change the Company name at any time without the approval of any Member by filing a certificate of amendment to the Certificate of Formation. The Board of Managers shall provide notice of nny such change lo alJ Members. The Company's business may be conducted under its name and/or nny other nume or names deemed advisable by lhe Board of Managers. The Board of Managers shall cause ro be executed and fiJcd of record all assumed or .fictitious name certificates for the Company as are required by law. 2.3. Registered Office nnd Agent; Principal OJTice. (n) The street address of the initial registered office of the Company in Texas and the name of lhe initial registered agent of the Company are as set forth in t11e Certificate of Formation. The Board of Managers may change the Company's registered office or registered agenL ut uny time by filing FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF C•:NTlllU01" rEcos 'l'ERMINAI. l.LC PAGE6 1211'4!i7,41SP/33032/0101/0121115 MR.138  a Chunge of Registered Agent and/or Registered Office os provided in the Code. The Board of Managers shull provide notice of the chunge to nil Members. (b) ·n1c address of the principal office of the Company in the United States where records arc to be kcpl or made available under Section 101.501 of Lhe Code shall be as dctcnnined by the Board of Managers. The Board of Managers may change the Compnny's principal ollice in the United Stntcs at any time upon notice to the Members. ·n1c Company shall keep at its registered office and make available ton Memher on reasonable request the street address of the Company's principal office in U1c United Slates. 2.4. Tenn. The Company wiJl continue until terminated in accordance with Article XIIT. 2.5. Pumoses. The purpose for which the Company is organized is for the development aml opcrntion of the Projecl and the transaction of any and nil lawful business for which limited liability companies may be organized under the Code. 2.6. Powers. Subject to nny limitations in lhis Agreement, the Company may exercise the power to do any and nil acts reasonnbly related to its purposes. 2.7. Company Property. (a) AJI Company property shall be 0V\11ed in the name or the Company and not in the name of any Member. No Member or Assignee wH1 have any interest in such Company property solely by reason of the Member's stalUN as a Member. (b) The Board of Managers shnJJ cause all funds of the Company to be deposited or invested in an account or uccounts in the nwne or the Company. No funds other than the funds of the Company may be deposited therein. TI1e funds in such accounts shall be used exclusively for the business of the Company (including distributions to the Members) and muy he \vithdrawn only by persons approv~d by the Board of Managers. 2.8. Consent to Admission of Members. Each person executing this Agreement consents to the admission as members in the Company all of the other persons who are Members as of the date such person executes this AgreemenL 2.9. Status of Managers and Members. Except as otherwise provided by this Agreement, each Manager has the status, rights. and obligations of n monuger in a limited liability company us set forth in the Codt:, and each Member has the s1atus, rights, and obligations of u member in a limited liability company as set forth in the Code. 2. I 0. Certificates of Membership Jntercsts. If provided by the Board of Managers, ench Member's Membership Interest may be represented by n Certificate of Membership Interest. Each such Certificate of Membership Interest, if any, shall be numbered and registered in the records of the Company as lhcy are issued, nnd shall be signed by two oOicers of the Company. The holder of any Certificate of Membership Interest shall promptly notify the Company of any loss or destruction of the certificale, and the Company shall cause a replacement certificate to be issued to the holder upon receipt of satisfactory evidence of the loss, destruction, or mutilation or the ccrtificmc and snlisfoction of other reasonable conditions esUiblished by tht! Bourd of Mnnogers. FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CENTURION PECOS TERMl~AL LLC PAGE7 11211"457.41SP/3Jo:J2/010~/D72115 MR.139  2.11. No Slate Lnw Pa11ncrship. The Members intend that the Company is not a partnership or joint venture, and thnt no Manager or Member is a pnrtncr or a joint venturer of any other Manuger or Member. for any purposes other than income tax purposes. No provision of this Agreement may be construed Lo suggest otherwise. ARTICLE Ill CAPlTAL CONTIUllUTIONS; CAPlTAL ACCOUNTS 3.1. Initial Capital Contributions. Euch Member's Initial Cupit.al Contribution is set forth on Exhibit A. 3.2. Additional Capital Contributions. No Member shull be required to muke Additional Capital Contributions. No Member has t.he right or is permitted to make any other Additional Cnpitul Contributions unless (a) the Board of Munugers approves such AdditionuJ Capital Contribution after notice to all Members of (i) the amount of the Additional Capital Contribution to be made, (ii) the effect of the Additional Capital Contribution on each Member's Percentage Interest, and (iii) other material information relevant to the proposed Additional Capital ConlribuLion, and (b) nil Members are afforded an opportunity to participate in the Additional Capital Contribution according lo their relative Percentage Interests. 3.3. Capital Accounts. The Company shall establish a sepurule Cupitnl Account for each Member and Assignee. The Cnpitnl Accounts shall be maintained according to the provisions of Appendix A. 3.4. No Right to Return of or Interest on Capital Account No Member may demand or receive the retum orits Capital Contribution or any portion of its Capital Account, except as provided in this Agreement imd the Code. Neither any Manager nor any Member has any personal liability for the repayment of any CnpitaJ Contributions of any Member. No interest will accrue or be puid with respect to the Capital Contributions or Capitol Account of any Member. 3.5. Member Loans. The Company may borrow money from one or more Members ro the extent the Board of Mnnagers deems appropriate to the conduct of the Company business on tcnns thnt comply with the requir~ments of Section 5.8(b)(iii) (relating to related pnrty transactions). The amount of any loun made to the Company by a Member will not constitute a Capital Contribution or otherwise affect such Member's Capital Account or Membership Interest. ARTICLE JV ALLOCATIONS AND DISTRIBUTIONS 4.1. AIJocntion of Profit or Loss. Cumpuny profits and losses shnB be allocnted among the Members nnd Assignees in accordance with the provisions of Appendix A. The Members are awnre of the income tax consequences of the allocations made by Appendix A and agree to be bound by the provisions of Appendix A in reporting their shares of Company income and loss for income tax purposes. 4 .2. Distributions of Distributable Cash. (a) Except os otherwise provided in Section 4.2(b) (relat.ing to distributions lo pay truces), Section 4.3 (relating to withholding), Section 4.4 (relating to limitations on distributions), or FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CEl\TURION PECOS TERMJNAL LLC PAGES 8211•57.4fSPIJ3032!0101/072111i MR.140  Section 13.4 (relating to liquidnling distributions), Distributable Cash shall be distributed to ll1c Members as follows: (i) first, lo Slumpede in payment of the Stampede Preforrcd Return until the Stampede Prefcn·ed Return Baluncc has been reduced to zero; (ii) next, to Stampede in payment of Stampede's Capitnl Contribution until the Stumpcde Capital Contribution Balance has been reduced to zero; and (iii) finally, to the Members according to their Percentage Interests. The Board ofMonngers may provide for a record date with respect to distributions. (b) To the extent Lhe Board of Managers determines that any Member or Assignee has an unfunded tax liability as a result of allocations of Company lax items for any tax year. then, to the extent the Compnny has fonds JcgaUy available for the payment of distributions to Members, the Bourd of Managers .shall make a special tax distribution to all such Members and Assignees pro rntn accnrding lo their relative unfunded tax liabilities in the minimum amount necessary lo pay any .such unfonded tax liabilities. For this purpose, a Member or Assignee is deemed lo have an unfunded tax liabilily for a tax year to the extent (i) the cumulative umount distributed lo the Member or Assignee under Section 4.2{a) nnd advanced to the Member or Assignee under this Section 4.2(b} (nnd not previously recovered) rrom the inception of the Company thJ'ough the end of the such tax yeur exceeds (ii) the Member's or Assignee's tax liability with respect to such Member's or Assit,rnee's cumulative aJlocablc share of Company tax items for ull periods from the inception of the Company through the end of such tax year. Unless the Board of Managers dctcnnines otherwise, the taxes due for each Member and Assignee shall be calculated by assuming that the Member or Assignee is an individuaJ taxed nt the highest tux rate applicable to tJ1c type of income involved. A.ny such tax distribution shall, to the extent it exceeds the amount tlte Member or Assignee would otherwise be entitled to receive under Section 4.2(ll), be Lrentcd as an n Interest or admit nny Member other lhnn pursuant to Section 2.8 or Article XI; (h) cause the Compm1y Lo ~tcquire uny equity or debt securities uf nny Member or any Affiliate of a Member, or otherwise make loans to uny Member or any Alliliute of a Member; (i) cause the Company to acquire from any person nny equity or debt s~curities or assets of any corporation, limited liability company, partnership, associolion, business. or business division, whether by stock purchase. asset purchase. contribution, or other business combinntion (excluding invcsuncnts and asset ncquisitions in the ordimtry cour.sc of the Company's business and lrummclions contemplated by this Agreement)~ (j) cause the Company to participate in any merger, consolidution, transfer, continuance, or conversion of the Company with or into uny other person; (k) cnuse the Company to participate in nny reorganization in which Membership Interests are exchanged for or converted into cash, securities of uny other person, or other property; or (I) sell or otherwise dispose or all or subs1anLially all of the Company property, except in connection with winding up the Compnny as pennitted in this Agreement. 5.6. Delegation of Authority; Officers. (a) The Board of Mnnngcrs mny cause the Company 10 hire such employees and agents us the Board of Managers deems appropriute for the cone.fuel of the Company's business. (b) The Board of Managers may establish offices nnd uppoint officers of the Company, and may delegate to such uflicers any of its nuthority hereunder, us the Board of Managers deems appropriate. The oflicers muy be appointed for such terms and may exercise such powers and nuthority and perfonn such duties as detennined by the Board of Manager. An officer need not be a Member of the Company. Any two or more offices may be held by the same person. An officer may be removed, with or without cause, at any time by chc Bourd of Managers. Each officer will hold office until his successor is chosen and is qualified in his stead, or until his deuth, resignationt or rcmovul from office. Any vacwicy in an oflice because of death, resignation, removal, or otherwise may be filled by a person appointed by the Board of Managers. An officer is subject to the snme standards of conduct as apply lo a Munnger as described in Section 5.9. 5.1. Reliance. Persons dealing with the Company may rely conclusively on lhe authority of lhe Board of Managers as set forth in tflis Agreement. Every document executed by uny Manager with respect to nny business or properly of Lhe Company is conclusive evidence in favor of any person relying on the document that (a) at the time of the execution nnd delivery of the document this Agreement wmi effective, (b) the document was executed in accordance with this Agreement and is binding on the Company, and (c) the Manager was nuthori7..ed lo execute and deliver the document on behnl f of the Company. 5.8. Compensation and Expenses of Members and Managers. Members and Munngcrs are not entitled to any salary. fee, or other remuneration (other than distributions with respect to the Member's Membership Interest) for providing property or services or other consideration to or for the bcnent of the Company in their capacity us a Member or Manager, except that each Manager is enlittcd lo FIRST AMENDED ANO RESTATED COMPANY AGREEMENT OF Cfo:,Vl"llRION Pt!COS Tt.;H.,\UNAI, LLC PAGE 13 621101.41SPl33032/01011072115 MR.145  reimbursement from the Company for rcLLc;onablc out-of-pocket expenses paid or incurred on behalf of the Company, including rcusonahle charges for services pl'Ovided by employees of the Manuger nnd overhead expenses. The Company shall pay ull oul-ot:.pockct costs incurred in orgnnizing the Company. This Section 5.8 docs not limit or enlarge a Mw1ager's or a Member's rights lo liability protection or indemnification under Article Vl, and docs not limit the Company's ability to ~nler into transactions with Members in their capacities other than os Members in accordance with Seel ion 5.9(iiil. 5.9. Standards of Manager and Member Conduct. (a) In General. 1l1e Board of Managers shall manuge und conduct the Company~s business in good faith and in n manner the Managers reasonably believe to be in the Company's best interest. A Manager does not violate this Section 5.8(a) unJess the Manager engages in conduct described in Section 6.3{o) (relating to improper conduct). (b) Oucside Activities of Mnnagcr and Members: Noncompetilion Covenants. Each Manager shall devote to the Company's affairs only such time nnd (i) resources as the Manager dcoms necessary for the conduct and winding up of the Company business. (ii) Except as provided herein, the Managers and Members or their Assignees may engage in or have an interest in other business ventures of every nature und description, independently or with others, including the ownership and operation of businesses similar to or in compeCition with, directly or indirectly, the Company, and neither the Company nor any Member or Assignee has, solely as n result of such penmn's interest in the Company, any right to acquire any rights in or to nny such other business venture or to the income or profits derived from any such other business venture. A Manager or Member or Assignee has no duty to disclose any such similar or competing business venture to the Company or any Member or Assignee, or to offer to the Company or any Member or Assignee any prior opportunity to acquire an interest in such other business venture. Related Pnrtv Transactions. Except us otherwise provided in this (iii) Agreement, the Board of Managers, when accing on behalf of the Company, may purchase property from, sell property to, or otherwise deal with any Manager, Member, or Assignee, acting on its own behalf. or any Affiliate of uny Munuger, Member, or Assignee, but nny such transaction shall be on tcnns that are no Jess favorable to the Company chan if the transaction had been entered into with nn independent third party. No provision of this Agreement requires disclosure of any lrnnsaction to, and approval of the transaction by, uny disinterested governing pt!rsons oflhe Company or the Members as provided in Section 101.255 of the Code. ARTICLE VI LIABILITY AND INDEMNlFlCATION 6.1. Limitation of Liability. No Member or Manager is liable for any debts, obligations, or liabilities of the Company. Subject to Section 6.3, an Indemnified Person is oot liable lo the Company or any other Indemnified Person for any Damages arising from any Proceeding relating to the conduct of the Company's business or relating to any act or omission by the Indemnified Person, including any act or omission constituting negligence, within the scopt! of the Jndcmrufied Person's authority in the course FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CENTl'RION PECOS TERMINAL l.. LC PAGE14 6211..57.WP/3303210101/07211 S MR.146  of the Company's business, or for uny miscom.Jucl or negligence on the parl of any other person who is an employee or agenl of the Company. 6.2. lndernnillcalion by Compuny. To l11e f'ullcst extcm permitted by applicable law and subject to Seclion 6.3, the Company indemnifies and holds hannless ench Jndemnified Person from and against uny Dumnges arising from any Proceeding reluting to the conduct of the Company's business or lo any uct or omission by such Indemnified Person, including uny uct or omission constituting negligence, within the scope of the lndemnificd Person's nuthority in the course of the Company's business or for nny misconduct or negligence on the part of any other person that is an employee or agent of the Company. An Indemnified Person's expenses paid or incurred in defending itself against any Proceeding shoU be reimbursed as pnid or incurred. The right to indemnification conferred in this Article VI is not exclusive of any other right that nny person may have or hercufier acquire under any statute, agreement, vote of Members, or otherwi~e. 6.3. Conduct Not Protected. (n) This Article VJ docs not operate to limil liability or lo indenmify n person to the extent the person is found liable pursuant to a final judgment of a court of competent jurisdiction for: (i) an act or omission tlmt involves gros:-; negligence, intcotionnl misconduct, or a knowing violation of law; a transfer or attempted transfer of all or u porlion or a Membership Jntercst (ii) in a Prohibited Transfer, a Manager's resignation in violation of Section 5.2(u), or a \1cmber ceasing to be a Member in violation of Section 12.1 (n); (iii) u willful or reckless mntcriol brcnch of this Agreement or nny other ugreement relating to the Company's business; or (iv) an act or omission for which indemnification is prohibited by law. (b) No provision of this Agreement requires the Company to pay or incur any amount for which indemnificulion is not penniuec.l under this Article VI. (c) Any payments mHde lo or on bchulf ofa person who is Inter determined not to be entitled to such payments shall be repaid by the person to tbe Company. The Company may require, ns n condition to the payment of any amounts pursuant to Section 6.2, that the Indemnified Person provide to the Compnny (i) a written affinnntion by the Indemnified Person of the person's good faith belief thnl the person ha.~ met the standard of conduct necessary for indemnification under this Section; and (ii) a written undertaking by or on behalf of the fndemnified Person to repay the amount paid or reimbursed if the person has not met that standard or if indemnification is otherwise prohibited by Jaw. 6.4. Insurance. The Company may maintain insurance lo prolt!Ct any person uguinst nny expense, liability, or loss, whether or not the Company would have the power lo indemnify such person against such expense, liability, or loss under t.hc Code. 6.5. Survival. The indemnities provided for in this Agreement survive the transfer of an Indemnified Person's Membership Interest, the tcm1ination of the person's status as u Member or other status giving rise to classitication n.~ an Indemnified Person, and the termination of this Agreement and the Company. FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CENTURION PECOS TER.\llNAL LLC PAGE 15 62t1457.~SP/33032101011072t15 MR.147  ARTJCLE VU BOOKS AND RECORDS; REPORTS 7.1. Maintenance of and Access tn Books and Records. 111e Compnny shall maintain such books and records regurding the Company's business and properties as is rensonablc, including all books nnd records required under the Code. Each Member shall have access thereto during ordinary business hours to the extenl und under the conditions provided in the Code. 7.2. Fiscal Year. The Compuny shall adopt the calendar yearns its fiscal year for financial and tax accounting purposes (such liscaJ year of the Company being referred to as the uFiscnl Yenr"). 7.3. Financial and Operating Reports. As soon as practicable atler the end of each Fiscal YcRr, but in any event not later than 90 days after the end of the Fiscru Year, the Board of Managers shall deliver to each Member an annual report containing the following: (a) o. Company balance sheet ns of the end of such Fiscal Year, and Company statements of income, cash flows, uncl changes in Memhcrs• equily for such Fiscal Year, euch in reasonable detail und prepared according to United States generally uccepted accounting principles; (b) u general description of the Company's activities during such Fiscnl Year. including a description of the amount and circumstances of nny indemnification paymcnL'i paid or requested pursuant to Section 6.2. a description of any material insurance claims or recoveries during the fiscal quarter. nnd a description of nny Proceedings involving the Company; nnd (c) a statement of changes in the Member's Capital Account (showing the balance in the Member's Capital Account os of the beghming of the Fiscal Year, contributions or distributions during the year. allocations of profits and losses during the year, any other adjustments to the Cupital Account balances during the year, and the balance in lhe Capital Account ns of the end of the year). 7.4. Tax Reports. (a) Not later than the date (including exten.c;ions) for filing the Company's tax return with the Internal Revenue Service (Form I065), the Board of Managers shall deliver to each person who was n Member or Assignee at any time during the period covered by the return nil infonnation nt!ccssary for the preparation of such person's United States federal income lax returns, including n Fonn 1065 Schedule K-1 (if npplicahle). (b) Upon the written request of any Member or Assignee, the Board of Managers shall deliver lo such person infonnalion necessury for lhe preparation of any tax returns that must be lilecl by such person, including information necessary for estimating unc.l paying estimated taxes. 7.5. Transmission of Communicalions. Each person who holds u Membership Interest on behalf of, or for the benefit of, anoU1cr person or persons shall be responsible for conveying any report, notice, or other communication received concerning the Compwiy's affairs to such other person or persons. FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF C•:NTllRION P1~c:os n.HMll\AI. LLC PAGE 18 &211.Cll7.4/SP/3303210101I07211 II MR.148  ARTICLE Vlll TAX MA·f,'ERS 8.1. Tux Clussiticalion. The Members intend that the Company be classified as n partnership for federal income tnx purposes. The Board of Mnnagcrs shall take nil actions rensonubfy necessary or appropriate lo ensure the Company is so cfussiflcd (including the filing of elections or tax rt!lurns). No Manager, oflicer, or Member shnll tuke uny action incom.;slent with the clnssificntion of the Company as a parUtership for fedl!ral income tax purposes. 8.2. Company Returns. The Board of Managers shall cause the Compnny to file such tax returns as may be required by law. 8.3. Tax Elections. (a) General. Except as otherwise provided in this Agreement, the Board ol' Managers shall cause the Company to timely make or revoke nil elections, and tnke all tux reporting positions, necessary or desirable for the Compuny as determined by the Board of Mnnugers. Nu election shnll be made lo have the Company exclude such winding up. The Liquidator (if not the Board of Managers) is entitled to receive reasonable compensation for its services; mny exercise ull of lhe powers conforred upon the Board of Managers under this Agreement to tl1e extent necessary or desirable in the goud faith judgment of the Liquidator to perfonn its duties; and ~~th respect to acts taken or omitted while acting in such cupacily on behalf of the Company, is entitled to the limitation of liability and indemnification rights set forth in Article VI. (d) The Liquidator shall provide quarterly reports to the Members und Assignees during the winding up procedure showing the assets and liabilities of lhe Company, providing information aml documents required by the Members and Assignees to comply with their tax reporting obligations, nnd such other infonnation as the Liquidutor deems appropriate. Within a reasonable time ufler completing the winding up, the Liquidator shall give each Member and Assignee a final statement setting forth the assets, liabilities, and reserves of the Compw1y as of the dale of completion of winding up. 13.3. Continuation Without Winding Up. (a) ff there is u decision to wind up and terminate the Company ns described in Section 13. )(a), the Company may be continued as provided in Section I 01.552 oflhe Code. (b) If lhere is a termination of tbc continued membership of Lhe last remammg Member as described in Section 13.l{c}, then prior to completion of the v.inding up process but not later than 90 days ufier the event of termination, the Board of Managers moy continue the Company by admitting one or more Members effective as of the occurrence of the event of termination. Any Assignee whose Percentage Interest would be diminished by reason of the admission of an Additional Member under the circumstances described in this Section must approve the admission or lhc Additional Member. FIRST AMENDED ANO RESTATED COMPANY AGREEMENT OF Cf.l"n'URION PECOS 'l'l-:R.\llNAI. LLC PAGE 25 8211"57-41SP/330S2/010110721t5 MR.157  IJ.4. Liquidation of AsscL.; and Application nnd lJisrribution of Proceeds. (a) In General. On winding up the Company, tl1e Liquidator shall di:-;posc of the Company's properties und apply and distribute the proceeds, or transfer the CompW1y properties, in the following order of priority: (i) lo creditors {including Members who are creditors) in accordance with their relative rights and priol'itics to satisfy the liabilities of the Company. including expenses associated with the winding up nnd termination of the Company, but excluding uny Company linbility for any unpaid Mandatory Distributions; {ii) to Members, Assignees, and former Members to satisfy the Company's liability for any unpaid Mandatory Distributions; und (iH} to Members and Assignees as provided in Section 4.2(a). (b) No Member Deficit Restoration Obligation. No Member is liuble to the Company or MY other person for the rcpaymenr of any deficit in the Member's Capital Account, except as provided in Section l 01.206 of the Code. (c) Reserves. Tn the discretion of the Liquidator, a pro rata portion of the distributions tbat would otherwise be made pursuant to Section 13.4CalCiil and (iii) may be withheld to provide a reasonable reserve for Company liabilities (contingent or otherwise) nnd future expenses, including a reasonable reserve for any claims for indemnification under Article VI and for uny future expenses ussocintcd with nny tax audit or other Proceeding lhnt is pending or may arise. (d) Payments and Qistributions to Members in Kind. The Liquidator may not make nny payments or distributions lo Members or Assignees pursuant to Section I 3.4(a)(ii} or (iii) other than in cash unless all Members and Assignees receiving the property approve the transfor in kind. The Liquidator shall detennine the Fair Market Vulue of uny property transferred l<> Members or Assignees in kind according to the valuation proceuures set forth in Article XIV. (e) Character of Liquidating Distribution~. Except as otherwise required by the J.R.C., amounts paid to Members pursuant lo this Section 13.4 shall be treated as made in exchange for the interest of the Member in Compnny property pursuant to J.R.C. Section 736(b)(l), including lhe interest of such Member in Company goodwiU. 13.5. Certificate of Tenninution. The Liquidntor shall tile a Certificate of Tcnnination of a Domestic ~ntity on the completion of the winding up of the Company. I3.6. Reinstatement. Jf the Company is tcnninntens Section 1. 704-1 (b)(2)(ii)(c) (relating to obligations to pay partner promissory notes nntl other obligations to mnke contributions lo the Company), or (b) the penultimate sentences of Treasury Regulations Sections 1.704-2(g)( I) (relaring lo partnership minimum gain) and 1. 704- 2(i)(5) (relating lo partner nonrecourse debt minimum gain); und (ii) Debit to such Capital Account the items described in Treasury Regulations Sections l. 704-l(b)(2)(ii)(d)( 4), 1. 704-J (b)(2)(ii)(d)(5), and 1. 704-1 (b)(2)(ii}(d)(6). The foregoing definition is intended to comply with Treasury Regulations Section l.704·l(b)(2){ii)(d) and shall be interpreted consistently thel'cwith. ucapital Accow1t" has the meaning set forth in Section A.3. "Depreciation'' means. for each taxable year, an amount equal to the depreciution, amo11ization, or other cost recovery deduction allowable with respect to an asset for such tnxable year, except that if' the Gross Asset Value of an asset di ffors from its adjusted basis for federal income tax purposes ul the beginning or such taxable yeur, Depreciation is un umount which bears the snmc ratio to such beginning Gross Asset Value as the federal income tax depreciation, umortizulion, or other cost recovery deduction for such taxable year bears to such beginning adjusted tax basis. If lhe adjusted basis for t'Cderal income tax purposes of an asset at the beginning or such taxable year is zero, Depreciation shnll be determined with reference to such beginning Gross Asset Value using uny reasonable method selected by the Board of Managers. "Gross Asset Value" means an asset's adjusted busis for federal income lax PllllX>Ses, except as follows: FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF C.:N"l'l:IUON PECOS Tl-'. ltMINAI. LLC Pl\GEA-2 9211451.4/SPl3l032'0101I072115 MR.164  (i) The initiul Gross Asset Value of an asset conlributeuch Member's Capital Contributions and the Fair Value of property contributed (ff permitted hereunder) to the Company by such Member, (ii) such Member's share of the Company's Net Profit, FIRST AMENDED AND RESTATED COMPANY AGREEMENT OF CF."T\JRION PECOS TERMl~At. LLC rAGf; A-4 G211«57,41SP/n03210101/072115 MR.166  and (iii) the amount of any Company liabilities assumed by .such Member or that arc secured by property distributed to such Member. (b) The Capital Account of each Member shall be debited by (i) the nn1otml of cash and the Fair Value of pl'Opcrty distributed to such Member. (ii) such Member's share of the Compnny's Net Loss, and (iii) the amount of any liabilities of such Member assumed by the Company or that arc secured by nny property contributed by such Member to the Company. (c) Upon the transfer by a Member of all or part of an interest in the Company ofter the Effective Dale, the Capital Account of the transferor that is attributable to the transferred interest carries over to the transferee and the Capital Accounts of the Members shall be aqjustcd to the extent provided in Treasury Regulations Section l.704-l(b)(2)(iv)(m). (d) Jn dctennining the amount of nny liability for purposes of Sections A.3(a) and A.3(b), I.R.C. Section 752(c) and any other applicable provisions of the I.R.C. and the Treasury Regulations shall be taken into account. (e) Except as otherwise required by Trcnsury Rcgulntions Section l.704-1(b)(2)(iv), adjustment to Cnpitnl Accounts in respect of Company income, guin, loss, deduction, und T.R.C. Section 705(a)(2)(B) expenditures (or items thereof) slmll be made wilh reference to the Jell HIO:\ Loc;JSTICS LLC P _\(;E i CALCE01479 MR.188  5.7. Resignation, Removal, an' ,\Glu:nH:Sr m CC\j l f!IO;\ l,()(;ISTIC"S LLC F:~llllll'I' A 11 SOK.\S1·2 2-' I 1 '~0 I.\ CALCE01484 MR.193  ··Prohibited Transfer" means any lnmsfcr of a lvfembcrsliip !n1ercst that is not a Perm ilted Transt'er. "Requisite Perccnta~e·· means one or more Members owning more than seventy ~Ive percent ( 75.0%) oC the Percentage Interests owned by all t-.1le111bers entitled to vote on the particular issue. ··substituted M~rnbt!r .. means a person who is admitted as a Nfernher to the Company pursuant to Section 11.1 with respect to the transfer of an existil1g rvkrnbership Interest. ··Units" means units of Membership Interest in the Comp11ny. 1.2. Usag~. In this Agreement. unless a clear contrary intention appears: (a) the singular number includes the plural number and vice versa: (b) refei·cnce to any person includes such person's successors and assigns but, ii. applicable, only if such successors and assigns arc not prohibited by this Agreement, and rdcrencc to a pcr.-;on in a particular capacity excludes such person in any other cupacity or indiv:duatty; (c) reference to any gender includes the othc1· gender and the neuter; (d) rckrencc to any agreement or other document means such agreement or other document as amended or modified and in effect from time to time; (c) relercnce \o any sUHute, regulation. or other legal requirement means such legal requi1·eme11t as amended. modified, codilied, replaced, or reenacted. in whole or in purl, and in cffec~ from time to time. including rules and regulations promulgated thereunder. and refcn:nce Lo any section or other provision of any legal requirement meims !hat provision of »uch legal requirement Crom time to time in effect and constituting the substantive amendment, modltication, codification. replacement, or reenactment of such section ()f other provision: (t) "hereunder." '"hereof:' '"hereto:· and words of similar import refer to this ;\grccment as a whole nls thereto. ARTICLE II ORGAN IZATIONA L MATTERS 2. 1. Formation. rhe Comprul) \HIS formed pursuant lo !he Ccl'liticntc of Formation or the Company filed with the l't!xas Secretary of State effecti ve as oft he Formation Date. 2.2. Name. The Company"s name is as set forth in the Cert ification or Formation. The Managers may change the Company name at any time without the apprnvu l of any Member by liling a Certificate of ;\111cndment. fhe Managers shall provide notice or the change to all Members. -n1c Company's business may be cuntlndcd under its name and/or any other name or names deemed advisable by lhe Managers. The Man<1gers shaU cause to be executed and fi led of record all assumed or fictitious name certificates required by la\\. 1 "· -·-' Registered Office and A!!ent Principal 011ice. (a) The stree t address of the initial registered office o f the Compan) in Texas and the nnme of the initial registered agent or the Compuny are as set l'orth in the Certificate or Formation. The Managers may change the Company's registered oflice m registered agent tlt any time by liling a Change of Registered Agent and/or Registered Office as provided in the Code. The Managers shall pro\'ide notice orthe change to all Members. (b) fhe address or the principal onice of the Company in thl? United States where rt.:cords are to be kept or made avai lable under Section 101.501 of' the Code shall be as determined by the Manag.crs. The Managers may change the Company's principal office in the llnitt:d States at any tline ttpon notice to the Members. The Company shall keep at its registered olfa.:e and make available to a Member on re11so1wble request the street address or the Company's principa l oftic0 in the United States. 2.4. Term. The Company will ex ist pcrpctunlly and will continue until term inated in accordance with Article XIII. 2.5. Purposes. I he purposes of the Co mpan~ are to cngag.c in uny activities that arc permitted under applicable laws. 2.6. Powers. Subject to any limirutions in thi s Agreement. the Company may exercise the power to do any and nil acts reasonably rclat~'d to its purposes. 2.7. Compnnv Property. (a) /\ II Compan) pro pert) shall be O\\ ncd in the name ol" the Compan~ and not in the name of any Member. No Member or Assignee \\ ill hfl\ e an} inleresl in such Company property solel) by reason-ol'the Member' s status as a Member. Ct>\11' \ '\ \ A<;ttU.\I I '\ I m C t·:' 11 KIO'\ LOG ISTIC 'i L LC Ex111u11 1\ 11 50R48' 2 ~1 1 21211 11 CALCE01486 MR.195  (b) The i\-lanagers shall deposit or invest all fonds of the Company in an account or accounts in the name of the Company. No funds other than the funds of the Co111pany ma:y be deposited therein. The funds in such accounts shall be used e,Xclusivcly for the business of the Company (including distributions to the Members) 11nd may be withdrmvn only by persons approved by the Managers. 2.8. Initial Member$.. In connection with the formation of tire Company, the persons executing this Agreement as of the Effective Date ("Initial Members'') arc mimitted to th0 Company as Members. The number of Units held by each of the Initial Members as or the 1--:ffeetivc Date arc set forth next to the Initial Members~ nmncs on Exhibit ..A.'' 2.9. Consent of Members. Each person executing this Agreement consents to the admission as members in the Company all of' the Initial Members and all other persons who are Members as of the date such person executes this Agreement and further consents Lo the issuance of additional U11its as provided in Section 2.9. 2.. l 0 Status of !vlanagers and Members. Lxeept as otherwise provided by this Agreement, the tv1anagers have the status, rights. and obligations of a manager in a lim:ted liability company as set forth in the Code, and each Member has the status, rights, and obligations of a member in a limited liability company as set fo1th in the Code. 2.11 . Unit Certificates. Each Me111bcr"s Units may be represented by a Unit Certificate. If Unit Certificates are issued, each Unit Certificate shall be number<.!d and registered in the records of the Company as they are issued, and signed by any of the Managers. The holder or any Unit Certificate shall promptly 11otit)· the Company of any loss or destruction of the certificate, and the Managers shall cause a replacement certificate to be issued to the holder upmt receipt or satisfactory evidence ol' the kiss. destruction. or mutilation or the certificate and satisfaction of other reasonable conditions. 2.12. 1\o State Lav,' Partnership. The Members inknd that the Company is not a partnership or joint venture,. and that no Manager or Member is a partner or a joinL \·enture1· of any other Manager or Member for any purposes other than income tax purposes. No provision of this Agreement may be construed to suggest otherwise. ARTICLE III CAPITAL CONTJUBlJTIONS; CAPITAL ACCOUNTS 3. I. Initial Capital Contributions. Each Mernber" s Initial Capital ContribLttion is set f(}1th DllEx hi bit A. 3.2. Additional Capital Contributions. A Member is not required lo tnake Additional Capital Contributions to the Company. No Member has the right ot is permitted to make Additional Capital Contributions unless (a) all of the lvfanagers and a Requisite Percentage approves sLtch -Additional Capital Contribution after notice to all Members of (i) the amount ol' \he 1\dditional Capital Contribution to be made and (ii} other material information relevant to the E.:\HHllT A I 151J1l~8\1 ~ 'I ~,1111~ CALCE01487 MR.196 proposed Additional Capital Contribution. and (b) all Members arc afforded an opportunity to participak in the Addi tional Capital Contribution in accordance with their rclath e Percentage Interests. 3.J. Capital Accounts. The Company shall establish a separate Capital Account for each Member and Assignee. The Capita l Accounts shall be maintai ned accord ing to the provisions oi' Ap_pcndix !\. JA. No Right to Return o f or Interest on Capital /\ccouut. No Member may demand or receive lllc return of its Capiwl Contribution or· any portion o f i.ts Capital Account. except as provided in thi s Agreement and lhe Code. The Managers do not bave any personal liability lor the repayment of any Capital Contributions of any t!ember. No interest \Yill accrnc or be paid with respc<.:t to the Capi tal Corltrlhutions or Capital Account o l' any Member. 3.5. Member Loans. Su ~ject lo the approva l of nil ol' the Managers, the Company 11Hl) borrow money from one or mon: Members Lo the extent the Managers deem Hppropriate to the Clilld uct or the Ct)lllpany business 011 tenns that comply wi th the requ irements or Section 5.6(c) (re lating to related party trnnsactions). The amlH111 l of any loan made to the Company by a Member \\ ii I not constitute a Capital Contribution or othern ise affect such Member" s C'npitnl Account or Membershir Lnten::st. 3.6. Member Notes. In connection with the execution or thi s Agreement. the Company expects to issue promissol') 1wtes to certain Members in connection with assets that rile Members have trnnsfcrred 10 the Company or expenses that the Members have incurred on behalr or the Company ("Member Notes"). For Cc:deral income tnx purposes. the Members intend thnt each Member Note be characterized as a preferred membership interest (equity) in the Company. thnt a holder's right to any interest or original issllc discount on the Member 1 ote be charnctcriled as a right to a distributi ve share of Company income and not as a guara111t•ed payment under l.R.C'. Section 707(c ). and th al all payments with respect Lo the Member Note be cha111ctcrized as a distribution \\ ith respect to a membership interest. Allocations of profit or loss and lax items as pro,·ided in Section 4.1 and Section A.5 or Appendix 1\ sha ll be aqjusted as necessary, as determined by lh\! Managers, l o rctkct Lhe preferred membership interest dccmt!d to be held by the holders of the Member Notes. 1:or thi s purpose. the fvkmbers intend that only net profit or nel loss. and onl) net taxable income or loss (rather than items thereof). for an) all ocation period wil l be nllrn:ated with res pect to the Member otes. fo r exampk, irthere is net \frxable income fo r the period from Lhe issue date o f the Member Notes through the end ol' 2009. it is intenckd that such net wxnble income \\"ill be nllocated to the Member Notes holders to the extent or nny accrued interest or original issue discoum on the Member Notes. und If there is a 11 ~t taxable loss for s uch period, it is intended that such net taxable loss will be ul locmed first to the Members to the extent ol' their Capital Contdfrntions fi nd then 10 the holders or the Member Notes. ( ' 0 \1 PA"\\ /\(;nn . \11."\ I Of. CF"\ 11 !U0:-1 LO<: ' " I IC'S LLC F::-; 1m11 1 A I l~IJ~~l!11 2 l l1ll l l~ CALCE01488 MR.197  ARTICLE IV ALLOCATIONS AND lllSTRIBUTIONS 4. l . ~!location of Profit or Loss. Subject to Section_~Q. Company profits and losses shall be allocated among the l'vkmbcrs and Assignees in accordance with the provisions of Appendix A or as is determined by the Managers. The l\ilembcrs are aware of the income tax conscq uences 0 r the allocul i(.rns. 4.2 . Distributions of Distributable Cash . (a) Except as otherwise provided in Section 4.3 (rdating to \Vithholding), Section 4.4 (relating to Einitatiolls on distributions). or Section 13.4 (relating to liquidating distributions). any Distributable Cash shall be: distributed not later than the 3011' day after the end of each fiscal ((L1arter to the Members and Assignees according to their Percentage Interests unless othcnvise determined by the Managers. The Managers may provide for a record date with respect m distributions. (b) To Lhe extent it may lawfully do so. the Company shall make distributions to Members and Assignees in accordance with Section 4.2(a) and Section ! 3.4(a)(iii) at such times and in such nrnounts as the ivfanagers determine is sufficient to enable Members and Assignees t<) make payments of tax due (including any applicable interest and penalties) with respect to their allocable shares ol' the Company's taxable income. Unless the Managet's determine otherwise. the taxes due ti..w each Member and Assignee shall be calculated by assu111ing that the Jvfember or Assignee is an individual taxed at the highest lax rate other Indenmi lied Person for an) Damages arising from an) Proceeding rela1ing to the conduct of the Company·s business or rdating to nny at:l or omission by the Indemnified Person within the scope or the Indemnified Person's ;;1uthority in the course of th\'! Company's business, including any breach or any fiduciary duties. or for any misconduct M negligence on the part or any other person who is an e111ployee or agent or the Company. 6.2. lndc111nification by Cornpan\ . ·1Cl the fu llest extent permitted by applicable la\ . and subject Lo Section 6.3. the Company indemnifies and holds hnnnkss each lndenrnilied Person from and against any Damages arising from any Proceeding rclnting lo the conduct or the Company·s business or to any act or omission b. such Indemnified Person within the scope or the Indemnified Pcrson·s authority in the course of the Compan>·s business or for an} misconduct or negligence on the part or any other person that is an employee or agent of the Company. An Indemn ified Person· s expenses paid or in(;urred in defend ing itself against an) Proceeding shall be reilllbmsed as paid or incurred. The right to inde11111ifi1.:atio11 confe rred in this Article VI is not exclusive or any other right that any person may have or hereafter acquire under any statute, agreement. vote of Members, or otherwise. 6.J. Conduct Not Protected. (a) This Article V I does not operate to limit liability or lo indcmnif) a person to thl' extent the person is found liable pursuant to a final j udgmcnl of a courl of <.:Ompetent jurisdiction l ~)r: (i) an ad or omission that involves gross negligence, intentiona l misconduct, or a knowi ng violHtion of law: (ii ) o tmnsfer or attempted transfer or all or a porlion of n Membership Interest in a Prohibited Tran fer. a Manager's resignation in Yiolation of' Section 5. 7(a}. or a Member ceasing to be a Member in' iolauon or Section I?. I(a): (ii i) a willful or reckless material breach of this Agreement or any oLht:r agreement rcluting to the Company's business; or (iv) un act or omission for which i11de11111ification is prohibited by law. (b) No provision of this Agreement requi res 1he Company lO puy or incur any amount !'or which indcmnilication is not permitted under this Article VL ( c) t\11r payments made to or Otl bd mlr or H person who is Inter determined not lo be emit led to such payments shall be repaid by t'h<:: person to the Compan). The Company mny C0\11'.\ " ' A1an:r.,n::-. 1 m C t ~ 11 IHO\ L oG1s 11c'\ LLC E.'\111Bn A I 1 508~ .~12 21 1 ~12011 CALCE01494 MR.203 requi re. as n cond ition tn the paymt'.!111 nf' any amounts pu rsuant to Section 6.2. that thL' Indemnified Person proviue to the Cornp(lny (i) a wriuen affi rmation by the Indemnified Person of !he person·s good faith belier that the person has met the standard of conduct necessary for indemnification under this Section 6.J: and (i i) a \Hillen umlertnl-.ing b) or on behal f of the Inde111ni fkd Person to repay the amount paid or reimbursed i !" the person has not met that standurd or if indemnitication is otherwise prohibited by law. 6.4. Insurance. rl1c Company may maintain insurance to protect any person ngain 1 any expense, liability. or loss. \\ hether or not the Company would ha\·e the power IO indemnil) such person against such expense, liabi li ty, or loss under the Code. 6.5. Sun ival. The indemnities provided for in this Agl'ccment survive the transfer ul' itn Indemnified Pcrson· s Membership Interest. the ten11ina1ion of 1he pel'son· ::. status as a tvkm ber or other status giving rise lO classification as an Imkmni lied Person. and the termination of thi s Agreement nnd the Company. ARTICLE VII BO OKS AN O R ECORDS; RlW OlffS 7.1 . Ma intenance or and Access to Books unu Record s. The Compnny shall mainta in such books and records regarding the Company's business and properties as is reasonabk includ ing all books and record:; 1~qu i !'ed under the Code. Each Member shall ha\ c access th~reto during ordinary business hours lo tbe extent and under the conditions provided in thl.! Code. 7.2. Fiscal Year. ·1he Company shall adopt the cn lendnr year as ils fiscal yenr !'or linanc ial and tax accounting purposes. 7.3. Financ ial and Operating Reports. As soon as practicable after the end or euch liscnl year. but in any event nol later lhun 90 days nftcr the end ol' the fiscal year, the Managers shall dcli\·er lo each Member Rn annual report containin~ the fo ll owi ng: (n) a Company balance sheet as of the encl of such liscnl year. and Compa ny statements or income. cash !lows. and changes in Members· equity fo r such fisca l year. each in reasonable detail and [Jrepnrcd according to United Slates generally accepted accounting. pri111.:iples: (b) a general description of the Compan; ·s ac tivities during such fiscal year and business plans for the succeeding year; and (c) a stmement of clmnges in the Member's Capital Accoum (sho\\1ng the balance in tlH: Mernber·s Capi tal !\ccnl!nl as l)I' the beginning of the t'lscHI year. contributions or distributions dt1ring the yccll'. allocations of prolits and losses during the year, any other ~1dj u s1ments to the Capital J\ i:c:ount bala1ices during the year. and the balance in the C11 pita l Account as of the end of Lhc ycor). C0\1 1' \ ;\;\ ACltl.:•. "'':,~r OF C l·., 111t10' LO!:is 11 ('~ LLC E.x 1111111 A (l~UR~R' l~ 1110 1l CALCE01495 MR.204  7.4. rax Reports. (!\) Not later 1ha11 the date (including extt:nsions) for Jiling 1he Con\pany" s tax return with the Internal Revenue Service (form I065 ), the Managers shall del iver to each person who was a Member or Assignee at any time during the period covered by the return all information necessary ror the preparation of such person· s United States fCJcrnl income tax returns. including a Form 1065 Schedule K- 1 (if applicable). (b) Upon the \\l'illen req uest of any Member or /\ ·signee, the Managers shall delivcl' to such person information necessary !'or the preparat ion of' any tax returns tlrnt must be ti led hy such person. including i11km11a1ion necessa ry lo r estimating and paying estimated t11xes. 7.5. Transmission orCommunications. Each person who holds n J\krnbership Interest on behalf or. or fr>r the benefit of. another person or persons shall be responsible fo r coll\·eying any report. notice. or other communi cation received concerning the Company' s nffairs to such other person or persons. ARTICLE vnr TAX MAT TERS 8.1. Tax Classilication. The Members intend th<1l lhl! Company be classi fied HS a partnersh ip fo r federal inl'omc tax purposes. The Managers shall lake all actions as are or may be reasonably necessary or appropriate to ensure the Co111 po11y is so classi lied (including the filing or l!lcct ions or tax returns). No Manager, officer. or Member sh alI take any action inconsistc111 with the t:lassilication or the Company as a partnership for lcdcrnl income tax purposes. 8.2. Company Returns. The Managers shall cause the Compan) lo file such tax returns ns may be req uired by law. 8.3. Tax Elections, (a) General. Except as othcrn ise provided in this Agreement. the Managers shall cause thi:! Company 10 timely make or revoke all elections, and take all ta:< reporting positions. necessary or desirable for the Company and l o maxim ize the tax benefits 10 the Members. No elec tion shall be made to have lite Compa1i.. exc luded from the applicatilm of any provision ur Subchaptcr K or Lhe I. R.C. or any equivalent tax provision in any other ta:-; jurisdiction. ( b) Section 75·1 l~kction. The Co111pnny shal1 make the election rclc m;d to in £.R.C:. Secti on 75..i. upon the request of any Ml!mber in connection with a transfer or the Member· s Mem bcrshi p Interest. (c} S11fe I !arbor Election for Conrnensatorv Ml!tnbcrship Interests. If Proposed T reastir) Regulation 1.83-3( I) is adopted as a temporary or ll11al regulation. the Company shall make the safe harbor election descri bed in such regulations. nncl the Company and each Member E:x1111111 i\ 11 508~8\22/ l.:?'21ll I CALCE01496 MR.205 (including anr person to whom an intere t in the Compan) is lransll!t'l'ccl in connection with the perfornu1111.:c of ser\ ices) shall comp!) "ith all requirements ol'the safe harbor with respect to all Membership lnterc:sls transferred in cc11mectio11 'vvith the pcrlormance or services while tile dection remains effective. The Managers shall prepare. execute, and tile any requi red docu1nentarion to cause the election to bt: effecti,·c. Ille Managers may terminate the safe hnrbor election nt any time if it determines in ~ood faith that it is in the best interests or the CO IUf>Hll~ and the Members to do so. 8.-1. Consistent Reporting. Each J\rfember shall, on the Member· s ta:-. returns. treat ench partnership item (as delined in l.R.C. Section 623 1{a)(3)) in a manner consistent wi th the treatmem or the item on the Company's return in all res pect~. including 1he amount, timing, and character of the item. No Member shall file a request !or an administrative Cldjusunenl of partnershi p items under l.R.C. Section 6227(a) if such request would cause 1he Member"s treatment orthe item to be im:onsistent with the treatment or the item 011 the Company 's return . 8.5. Ta-: Proceedini:ts. (u) The Managers shnll be the Compnny·s tax matters partner as dclinetl in l.R.C. Section 623 1. and shall take such actions as are required to be designated lhe ta~x matters partner under applicable ·1rcasury Regulntions. The tax mallers partner shall n:presem the Company in connect ion with all exami11<1tions o f the Company's tax returns by tax authorit ies. includ ing adm inistrati ve and judicial proceed ings to contest any proposed adjustments. Subject to Section 8.5(c). the tax mn1te1·s partner has the exclusi vi.: right to conduct Proceedings relating lo C'ompa11:, taxes and to determine whether the Company (either on its own bcha lr or on bchall' of the Members) will contest or continue to contest a11y lnx dt:liciencics assessed or proposed to be assessed by any taxing authority. The tax mailers partner shall keep 1he Members informed on a timely basis or all material developments with respect lo an) such Proceeding. Each Memhcr shall cooperate with the tax malters partner and do or refrain fro m doing all things reasonably requested by tJ1e tax niatters pnrlner with respect to lhe conduct or any Company tax Proceeding. (bl The tax mailers partner may not bind any other ~ ! e mber Ill n selllerncnt agreement rd,1ting. to laxes without obtaining the written concurrence ot\ uch Member. (c) A n~ dclicienc) for taxes imposed on a Memb~r (including penalties. additions Lo tax or interest impo~ed with respect to such Laxes) shall be pnid by such Member nnd. if paid or required lo be p<1 id by the Campany. is rel':overnblc l'n:>1n such Me mber pursuant to Section 4.3 ur by other legal means. (d) This Section 8.5 and Section 8.6 Sll r\' i\' C' the termination nr Lhe Company and the termination of any Member's interest in the Company and r~· main bincling for a period or lime necessary Lo resolve all tax mailers with applicable taxi ng authorities. 8.6. Information and Documents lo Company. Each Member shall timdy pro\'ick to 1h1: Company all information and documents thnt such Member is required to provide by nµplic nblc tnx requi rements. and shall also pro\'idc to the Co111pa11: upon request such additio11al CU\11' " ' AC IU: E.\11.:'\ I °" C.::-.- I t IHO'I L oc:1s rn :-. LLC Cx11rn1 I' A I 151J848\'2 1' I 11.:W I~ CALCE01497 MR.206 inrormation and documents as the Managers may n:asonably request in co11ncction with the Cotnpany's cotnpli ance with appl icable l!\X req uirements or fil i11 g of nny permitted tax e l ecti on~. ARTICLE IX MEETINGS ANO VOTI NG OF MEMUF.l~S 9. 1. Meetings. (a) Meetings of the Members mny be calletl nt any 1i1ne by the Monogers or b) one or more Members holding at least 75.0% or the Percentage Interest held by Members. Meeting~ slHl ll be held al the Compa ny's principnl place of business or at suuh other reasonable plat:e set forth in the notice of the meeting. (b) A ny action lhat may be wkcn at a Members' meeti ng may be taken \\ ithout holding a meeting if Members having al least the Requisite Percentage interc:;l that would be necessary to lake the action al a meeting. in which em:h Member entitled to vok on the action is present and votes. ·ign a \Hillen consent or consents stating the action taken. (c) Except as otherwise prO\ idcd in this /\grcement, meeting notices nnd procedurt:s. including procedures for obtnining written consents in lieu of'a 1111.:cting. shall be in conformity with Chaplers 6 and 10 I ( 11) of the Code. Sections l 0 l.353 through J 01.356 or the Codi.: (relating to quorum and minimum voting requirements) shall not apply 10 the extent such provisions are inconsistent wi th this Agreement. The Managers ~re solely responsible for conveni ng and conducting meetings of the Members. conducting. the solicitati on of consents. or determ ining the vnlidity and effect of responses to any solicitation consents. and determining 01hc1· matters regarding meetings. voting. and consents. (d) Notke of 1hc results of any vote taken at a meeting. or the results or any solicitation of consents in li0u of a mt:eling. shall be given to the Members not later than ' vi th the delivery of the nex t fo llmvi ng report of tinaneial information given pursuant to Section 7.3. <>.2. Voting. A Member may vote at a meeting in person. or by a proxy executed in writing by the Member and received by the Managers prior to the time when the votes or Members are to be counted. The provisions or the Code pertai ning to the vnlidity and use or proxies by shareholders or i] corporation govern the validi ty and use or pro~ies given by Members. Only Members of record on the date of the meeting (or if the vote is conduc1cd withou1 a meeting then on the dalt: of the notice soliciting the Member consents) may vote. ARTICLE X TRANSFER OF MEMBERSlllP INTim ESTS l 0. 1. Li111i1ation 011 Transfers. (a) The term "transfer:· when used in rcl'erenct to a lranster of a Membershi p l rncrest. means un assignment (whether \Oluntat'ily. in,·oluntmily. ur by operation uf la\\ un with hold approval fo r the transfer or a Membersh ip Interest. a transfer shnll not be a P~ nnittcd Transfer un less the \ilam1gcrs determi n~ tlun ull of the following conditions are smistied: (a) The transfer complies with all applicable laws. including uny applicable securities ( b) rhc transfer \\ii l not cause the C\1rn1x111) to be 1reMed as other than a partnership for United States ledernl income tax: purposes. (c) The trnnsl'cr will not cause the Company to be subject to regulation under the Investment Compa ny /\ct of 1940. as nrnendeJ. (d) The translcr \\ill not cause any as'>ets of the Company to be deemed ..plan assets'· under the Einplo) ce Retirement Income Security 1\cl of 197-l. (e) The trnnsrer will not result in <1 tern1inalion or the Compn11) under l.R.C. Section 708. unless the Managers determine that such lcnninution wi ll not have nn adverse impact on the Mt:mbers. ( I) The trans for will not cause the application or the Lax-exempt use property rules or l.ltC. Sections t68(g)( I )( H) and 168(h) lo the Company or its Members. unless the Managers determine that such rules wi ll not have an adverse impact on the Members. (g) fhc transferor and transferee ha\'c delivered to the Compnny a1\)' documents thul tile Managers request to confirm that the transfer satis lies the requirements orthis Agreement. to gi\'e effect to the trunsle r. and to conlirm the transteree· s agreement lo be bound by this Agreement ns nn Assignee. (h) If requested by the Managers. thl' Company has received a tnms le r lee in a11 amount determined b) the Mmrngers to be S\ll'liCil.!nt to reimburse the Company for the estimated expenses like!) to be incurred by the Company in connection with such trnn ·ter. I 0.-l. Effective Date: Distributions. (a) 1\ Perm itted Trnnsfer or a Membership Interest is effcctiv1.: as ol' the lirst day or the calendar month fol lo\ving the calendar rnuntli during \\-hich the Mamtgers receive notice M such transfer (in such fo rm and manner as the Managers may require) unless the Managers determine that the transfer should be ef't'cctivC' as of an earlier or later date ( l~ir example. on an) date 1he1ranslcr is clli:cti ve as a matter ofs1arc la\\. or wherethe notic~ ()ftransfer specilies thm the tt"ansfer is to be effective on a future date}. C m11•\'\\ AG1u.1·.W .'\ 1 w C 1·.'\111HO'\ Loms n ('s LLC E Xllllll I A I l'lllSIX\ 2 ~1 1 21'.:!11 1 4 CALCE01500 MR.209  (b) Distributions with respect to a transrerrcd Membership rntercst tbot arc made be l'orc lhe effective dale o r the lransrer shall be paid l tl the trans feror. aml uis1ributio11s mad1: nlh:r such date shull be paid lo lhe Assignee. tc) Effecti ve as or the effective date of n mrnsfer or a Membership Interest. the Munagcrs shall amend Exhibit A lo reflect the reducti on in the trnnsteror' s Percentage Interest ancl tl) re fl eel the Assignee· s l'~rcen tage Intercsl. (d) Neither the Company nor the Managers have any liability for making allocations and distribut ions to the Members dctcrmi ned in acCl>1'dnnce with thi s Section I0.4. whether or not the Company or the Managers have knowledge ol' uny transler of any Membership Interest. I 0.5. Transferor" s Obliuations. !11e transferor or a Membership I ntcrcst \'vho ceases lo bl.! n Member continues to be obligated wi th respect to its Membership Interest or its status as n l(rn11er Member ns provided in the Code and appli cable lnw. 10.6. Assignee·s Ri~hts and Obliltations. Unless an Assignee becomes a Member pursunnt lo Article XL such Assignee shal l not be entitled to any or the rights granted lti n Member. other than the rights to receive al locatio11:" or profit. and losses and distributions as ir such Assignee were a Member. to transfer the Assignee·s Membership Interest (subject to the conditions of this Article X). and to receiYe reports and inlo rmation as specilied in Article VII. An Assignee or a Membership Interest shall succeed to the Capita l Contribution or the transferor to the extent or the Membership Interest transfened. An Assignee is bound by this Agreement irrespective of\ hether lhL" Assignee has signed or otherwise adopted this Agreement. An Assignee's Membership Jntcrest may be redeemed at the option or the Managers as provided in S1.:ction 12.3. 10.7. Ef'tcct and Conseq uences of' Prohibited Transfer. (a) Except as otherwise required by la\\. the Company and the Managers shall trem a Pr~)hibitedTransfer ns void and shall reeogniLe 1hc tra nsferor as conti nuing 10 be the owner or the Membership Interest purported to be transfern:d , If the Company is required by law to recognize a Prohibited Transfer. the trans force sha ll be treated as on Assignee \\ ith respect to the kmbership Interest transferred nnd mn) not be treutcd as <1 Member wil h respect to th..: ivkmbership 1ntercst transferred unkss admitted as a ~1kmber in accordance with Article XI. (b) The Company may remove the tram;l"eror and Assignee with respect to a Prohibited Transrer as pro\ ided in Artick x_t I. (c) Tht' trans!e ror und trnnslercc '"iLh respect 10 a Prohibited Transfer shall bejoi ntl) and severally liable to the Company for, and shall indemni ty and hold the Company hann kss against. any expense. liability. or loss incmred by the Company (i11cl11ding reasonable legal fees and C'\penses) as a result or such Iranster. their remo\ al and liquidation ol' their Membership !ntNcsis (if applicabte). and the efforts to ~nforce the indcrnnit) grnntcd in this Section 10.7C c ). Ex111111I i\ 115()g4g,.! 211.!•.!0I I CALCE01501 MR.210  I 0.8. Agreements of Spouse: Sole Manugcment Conununil) Prnpert\ . (fl) Execution of Spousal .loinder and Consent. The spouse of each Member shall cxec11 tc anhip Interest on the date on which all or the following conditions are satislled: (a ) The Managers ha,·c approved in \vriting the ad111ission of the Substituted Mcni bcr. (b) The Assignee has de livered lo the Company any agreements and other docu111c11Ls that the Managers request to confirm such Ass ignee as a Member in the Company and such A ss ig n ~c · s agreement to be bound by this Agree111ent as n Member. E\ 11 rnn f\ 115Ull4X 1 1~l ll/2iil 1 CALCE01502 MR.211  (c) If requested by the ;-,fanagers, the Comp~ny has received un admission fee in an amount determined by the rvlanagers to be sufficient to reimburse the Company lo.f the estimated expenses likely to be incurred by the Company in connection with the admission of the Assignee as a Sltbstitutcd Member. I 1.2. 6dditional ivlernbers. (11) ln Genen1l. The. Mtmag<..:rs may cm1se the Company tu ad111il a person as an Additional Member and issue Additional Units to such Additional Member upon satisfaction of all of the fol!O\ving conditions. (i) /\. Requisite Percentage l:as approved the admission uf the Additional Member alter notice to all Members of (i) the Initial Capitnl Contriblltion to be made by the proposed Additional Member, (ii) the effect of the admission on each Partner's Percentage Interest. and (iii) other materiaJ information relevant to the proposed admission. (ii) The admission of the proposed Additional Member satisfies the applicable ..:onditions of Section 10.3. (iii) The proposed Additional Member has delivered to the Company any agreements and other documents that the Managers request to confirm the person as a Member ln the Company and the person's agreement to be bound by this Agreement as a Member. ARTICLE XU WITllDRAWAL OR Irn~IOVAL OF MF.MBERS 12.1 . \Vithdrawal of Members. (a) No Member may withdraw from the Company or otherwise cease to be a Member except upon the following events: (i) receipt by tht.: Company of a notice of such ~vternbcr's withdrawal fron~ the Company: (ii) a transfer of all or the Member's Membership Interest in a Permitted Transfer: or (iii) removal or the \1ember as a Member as pruvided in this t\gn:1:111enl. (b) A Member shall be deemed !() withdraw from the Company upon the following events: (i) an event specified in Section 12. [{u): Co.'111' \ ,,. A