Exhibit 10.1


DPTS MARKETING LLC


AMENDED AND RESTATED MEMBER CONTROL AGREEMENT


          THIS
AMENDED AND RESTATED MEMBER CONTROL AGREEMENT, (the “Agreement”) is made
effective as of June 1, 2012 (the “Effective Date”), by and between Dakota
Plains Marketing, LLC, a Minnesota limited liability company (“DPM”), Petroleum
Transport Solutions, LLC, a Minnesota limited liability company (“PTS”), and
DPTS Marketing LLC, a Minnesota limited liability company (the “Company”).


RECITALS:


          A.          DPM,
PTS and the Company are parties to that certain DPTS Marketing LLC Member
Control Agreement dated as of April 29, 2011 and amended as of August 17, 2011
(the “Original Agreement”).


          B.          DPM
and PTS constitute all of the Members of the Company.


          C.          DPM,
PTS and the Company desire to amend and restate the Original Agreement in its
entirety as set forth herein and pursuant to Section 10.5 of the Original
Agreement.


          D.          This
Agreement is a Member Control Agreement under Chapter 322B of the Minnesota
Statutes, Section 322B.37.


          E.          The
parties are interested in the growth, development and management of the Company
and in the long-term economic success of the Company and its business, and
mutually desire to make certain agreements relating to the (i) management and
control of the Company and its business, (ii) admission and termination of
Members, and (iii) allocation of income, losses and distributions between the
Members.


AGREEMENTS:


          NOW
THEREFORE, in consideration of the foregoing, the mutual terms, covenants and
conditions contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


ARTICLE 1

FORMATION, NAME AND OFFICE, BUSINESS, 

TERM, AND DEFINITIONS


          1.1)       General.
Except as otherwise provided in this Agreement or the Company’s Operating
Agreement, the rights and responsibilities of the Members shall be as provided
under the LLC Act (defined below). It is intended that the Company be
classified and taxed as a partnership for United States income tax purposes,
and no Member shall take any action not required by law to change the tax
status of the Company under the Code (defined below).


          1.2)       Name
and Principal Office. The name of the Company shall be “DPTS Marketing
LLC.” The Company’s principal office will be 9531 West 78th Street,
Eden Prairie, Minnesota 55344, or such other place as the Board of Governors of
the Company (the “Board”) may from time to time determine. 


          1.3)       Members.
The names and addresses of the Members are set forth in Exhibit A. 






          1.4)       Term.
The Company shall exist perpetually until it is dissolved, wound up, and
terminated in accordance with this Agreement.


          1.5)       Purpose.
The Company shall be authorized to engage in (a) the purchase, sale, storage,
transport and marketing of hydrocarbons produced within North Dakota to or from
refineries and other end-users or Persons, wherever located, and the conduct of
Trading Activities (defined below); and (b) any other lawful activities as the
Board of Governors may determine from time to time.


          1.6)       Definitions.
Unless the context otherwise specifies or requires, the terms defined in this
Section shall have the meanings given them in this Section for purposes of this
Agreement. Certain other capitalized terms used in this Agreement are defined
within this Agreement.


	
  

 	
  

 
	
  

 	
               (a)          Affiliate.
 “Affiliate” means, with respect to any Person, any other Person directly or
 indirectly controlling, controlled by or under common control with such
 Person. For purposes of the immediately preceding sentence, the term
 “control” (including, with correlative meanings, the terms “controlling”,
 “controlled by” and “under common control with”), as used with respect to any
 Person, means the possession, directly or indirectly, of the power to direct
 or cause the direction of the management and policies of such Person, whether
 through ownership of voting securities, by contract or otherwise.

 
	
  

 	
  

 
	
  

 	
               (b)          Agreement.
 “Agreement” means this Member Control Agreement as it may be further amended
 or supplemented from time to time.

 
	
  

 	
  

 
	
  

 	
               (c)          Articles
 of Organization. The “Articles of Organization” means the document filed
 with the Secretary of State of Minnesota by the Organizer as they may be
 further amended or supplemented from time to time. 

 
	
  

 	
  

 
	
  

 	
               (d)          Capital
 Accounts. The “Capital Accounts” means the capital accounts maintained by
 the Company for each Member in respect of such Member’s Company Interest.

 
	
  

 	
  

 
	
  

 	
               (e)          Code.
 The “Code” means the Internal Revenue Code of 1986, as amended. All
 references to a section of the Code or the treasury regulations promulgated
 under the Code shall mean and include any subsequent amendment or replacement
 of that section.

 
	
  

 	
  

 
	
  

 	
               (f)          Company.
 The “Company” means DPTS Marketing LLC, a Minnesota limited liability
 company, formed upon the filing of the Articles of Organization with the
 Secretary of State of Minnesota.

 
	
  

 	
  

 
	
  

 	
               (g)          Company
 Interest. “Company Interest” means all of a Member’s right and interest
 in the Company.

 
	
  

 	
  

 
	
  

 	
               (h)          Damages.
 “Damages” means any and all losses, liabilities, claims, damages,
 deficiencies, fines, payments, assessments, taxes, liens, costs and expenses
 (other than expenses for Labor Overhead), whenever or however arising and whether
 or not resulting from third-party claims (including the reasonable costs and
 expenses of any and all proceedings or other legal matters; all amounts paid
 in connection with any demands, assessments, judgments, settlements and
 compromises relating thereto; interest and penalties with respect thereto;
 and costs and expenses, including reasonable attorneys’, accountants’ and
 other experts’ fees and expenses, incurred in investigating, preparing for or
 defending against any such proceedings or other legal matters or in
 asserting, preserving or enforcing an indemnitee’s rights hereunder).

 


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               (i)           Distribution.
 “Distribution” means a distribution of cash or property to the Members
 pursuant to this Agreement.

 
	
  

 	
  

 
	
  

 	
               (j)           Distribution
 Percentage. “Distribution Percentage” means, with respect to each Member
 as of the end of a calendar quarter, a percentage equal to the Percentage
 Interest of such Member; provided, however, that if a Member has terminated
 its participation in the Trading Activities pursuant to Section 9.3, then
 during all periods of time during which such Member is a Terminating Member,
 the Terminating Member’s Distribution Percentage shall be equal to 15% and
 the Non-Terminating Member’s Distribution Percentage shall be equal to 85%,
 in each case subject to Section 9.3(b)(v). 

 
	
  

 	
  

 
	
  

 	
               (k)          Governor.
 “Governor” means a natural person elected by the Members to serve on the
 Board.

 
	
  

 	
  

 
	
  

 	
               (l)           LLC
 Act. The “LLC Act” means the Minnesota Limited Liability Company Act, as
 amended. All references in this Agreement to a section of the LLC Act shall
 be considered also to include any subsequent amendment or replacement of that
 section.

 
	
  

 	
  

 
	
  

 	
               (m)         Members.
 The Members of the Company are collectively referred to herein as the
 “Members” and individually as a “Member.”

 
	
  

 	
  

 
	
  

 	
               (n)          ND
 Crude Oil. “ND Crude Oil” means crude oil originating from production
 fields anywhere in North Dakota.

 
	
  

 	
  

 
	
  

 	
               (o)          Operating
 Agreement. The “Operating Agreement” means the document adopted by the
 Board of Governors relating to the operation of the Company,

 
	
  

 	
  

 
	
  

 	
               (p)          Organizer.
 “Organizer” means the individual signing and filing the Articles of Organization.

 
	
  

 	
  

 
	
  

 	
               (q)          Percentage
 Interest. “Percentage Interest” of each Member shall be a fraction, the
 numerator of which is the total number of Units held by such Member on the
 date of determination and the denominator of which is the Total Units as of
 such date.

 
	
  

 	
  

 
	
  

 	
               (r)           Profits
 and Losses. “Profits” and “Losses” shall have the meaning set forth in
 Appendix A.

 
	
  

 	
  

 
	
  

 	
               (s)           Person.
 “Person” means any natural person, company (whether general or limited),
 limited liability company, trust, estate, association, corporation, joint
 venture, proprietorship, governmental agency, trust, estate, association,
 custodian, nominee or any other individual or entity, whether acting in an
 individual, fiduciary, representative or other capacity.

 
	
  

 	
  

 
	
  

 	
               (t)           Risk
 Equivalence. “Risk Equivalence” refers to the objective of maintaining
 between Members an equivalent level of risk with respect to their respective
 Units (except as otherwise provided in this Agreement), all as more
 specifically described in Section 10.1 below.

 
	
  

 	
  

 
	
  

 	
               (u)          Termination
 Loss Amount. “Termination Loss Amount” means, with respect to the
 effective date of any Trading Activities Termination, the amount, if any, by
 which the Termination Net Value is less than the aggregate amount of all
 outstanding Member Preferred Contributions by all Members as of the effective
 date of the Trading Activities Termination.

 


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               (v)          Termination
 Net Value. “Termination Net Value” means, with respect to the effective
 date of any Trading Activities Termination, whether positive or negative, the
 amount of assets of the Company minus the amount of liabilities of the
 Company (which shall include all accrued and unpaid preferred returns on
 Member Preferred Contributions), in each case as of the effective date of the
 Trading Activities Termination as
 determined by the Trading Member after performing a mark-to-market analysis
 of the assets, liabilities and trading positions of the Company as of the
 effective date of the Trading Activities Termination. For the avoidance of
 doubt, the amount of outstanding Member Preferred Contributions shall not be
 considered liabilities of the Company.

 
	
  

 	
  

 
	
  

 	
               (w)         Total
 Units. “Total Units” means the aggregate outstanding Units issued to all
 Members as of a given date.

 
	
  

 	
  

 
	
  

 	
               (x)          Unit.
 “Unit” means the designation which the Company has established to represent
 the Company Interests of the Members.

 
	
  

 	
  

 
	
  

 	
               (y)          Unrealized
 Termination Profits. “Unrealized Termination Profits” means, with respect
 to the date any Terminating Member resumes participation in the Trading Activities pursuant to Section
 9.3(e), the amount of any unrealized
 profits with respect to assets, liabilities and trading positions of the
 Company as of such date as
 determined by the Trading Member after performing a mark-to-market analysis
 thereof as of such date.

 



ARTICLE 2

MEMBERS


          2.1)       Members. The Members will be those
Persons named in Exhibit A, each assignee of a Company Interest who is
admitted as a Member under this Agreement, and new Members admitted pursuant to
this Agreement.


ARTICLE 3

CAPITAL, SERVICES, MEMBER PREFERRED CONTRIBUTIONS AND VOTING


          3.1)       Capital Accounts. The
following shall apply with respect to the Capital Accounts: A Capital Account
shall be maintained for each Member and determined in accordance with Section 2
of Appendix A. A credit balance in a Member’s Capital Account shall not entitle
such Member to demand any Distribution from the Company, and a debit balance in
a Member’s Capital Account shall not constitute an obligation of such Member to
the Company. No Capital Account maintained for the Members by the Company shall
bear interest.


          3.2)       Capital
Contributions. The following provisions apply with respect to contributions
to the Company


	
  

 	
  

 
	
  

 	
               (a)          The
 capital contribution of each Member shall be the amount of money and fair
 market value of any property (net of liabilities secured by such property
 that the Company is considered to assume or take such property subject to and
 net of any other liabilities of a Member that are assumed by the Company in
 connection with the contribution of such property) contributed by a Member to
 the Company.

 
	
  

 	
  

 
	
  

 	
               (b)          A
 Member shall not be obligated to make additional capital contributions to the
 Company except as the Members may unanimously agree in writing.

 


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               (c)          It
 is specifically intended that no creditor of the Company nor creditor of a
 Member will have any right by virtue of this Section or any other provision
 of this Agreement to obligate any Member to pay funds to such creditor or to
 the Company.

 
	
  

 	
  

 
	
  

 	
               (d)          Each
 Member has made an initial cash capital contribution of One Hundred dollars
 ($100).

 
	
  

 	
  

 
	
  

 	
               (e)          No
 Member shall be required or permitted to make capital contributions of more
 than One Hundred dollars ($100) in the aggregate without the unanimous
 written consent of all Members.

 


          3.3)        Services
to be Performed by the Trading Member. 


	
  

 	
  

 
	
  

 	
               (a)          Trading
 Services. During the Term, one of the Members (the “Trading Member”),
 which shall initially be PTS, acting itself or through one or more of its
 Affiliates, shall perform and be solely responsible for purchasing, selling,
 storing, transporting, marketing and transacting trades in ND Crude Oil, and
 entering into related agreements and conducting related activities, on behalf
 of the Company, subject to the terms contained in this Agreement (the
 “Trading Activities”). All Trading Activities in ND Crude Oil involving
 transportation by rail and requiring transloading shall be required to be
 transloaded at the New Town, North Dakota, facility owned by DPT or its
 affiliate unless otherwise agreed upon by the Members. Trading Activities
 may, without limitation, consist of physical and/or financial transactions,
 including hedging or other financial arrangements not involving the actual
 trading of any physical ND Crude Oil; provided, however, that such financial
 transactions must be entered into for risk management purposes and must not
 involve the assumption of any flat price risk. Counterparties to any individual
 transaction constituting a Trading Activity may be the Company, the Trading
 Member or an Affiliate of the Trading Member, as determined by the Trading
 Member in its sole discretion; provided, that any and all transactions
 constituting Trading Activities to which the Trading Member or an Affiliate
 of the Trading Member is a counterparty shall be segregated from, and not
 commingled with, other transactions and lines of business engaged in by the
 Trading Member and its Affiliates. The Trading Member shall be solely
 responsible for employing and compensating employees that execute
 transactions constituting Trading Activities and for providing office space
 and necessary information technology equipment for such employees to conduct
 the Trading Activities. The Trading Member shall be obligated to use
 commercially reasonable efforts, in the exercise of its reasonable judgment,
 to maximize the profitability to the Company of the Trading Activities,
 considered in the aggregate, over the Term, it being understood that (x) such
 commercially reasonable efforts shall not require the Trading Member to take
 any actions prohibited by this Agreement or to make any contributions or
 advances to the Company not required by this Agreement and (y) the Trading
 Member shall not be in violation of its obligations hereunder in the exercise
 of its judgment in connection with any individual trading transaction except
 as provided in Section 3.3(i).

 
	
  

 	
  

 
	
  

 	
               (b)          Charges.
 Commencing with the first calendar month during which the Company takes
 physical delivery of ND Crude Oil, the Company shall pay to the Trading
 Member an amount equal to $0.08 per barrel (the “Charge”) of ND Crude Oil
 subject to Trading Activities during such month; provided, that from and
 after such time the Trading Member shall be entitled to receive a minimum
 monthly Charge calculated assuming a minimum volume of five thousand (5,000)
 barrels per day in Trading Activities; provided, further that in the event
 the Trading Member does not engage in any Trading Activities for three (3)
 consecutive months, then such minimum monthly Charge shall be suspended
 commencing in the month following such three (3) consecutive month period
 until the next succeeding month in which the Trading Member engages 

 


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 in any
 Trading Activities. The Charge for each month shall be paid to the Trading
 Member within five (5) days after the end of such month. The Trading Member
 shall be solely responsible for the Trading Member’s direct cost of salary,
 office space, information technology equipment and related overhead incurred
 in its employment of employees that execute transactions constituting Trading
 Activities (“Labor Overhead”). Other than for Labor Overhead, the Company
 (and not the Trading Member) shall be responsible and liable for all (i)
 out-of-pocket and other costs and expenses incurred by the Company or the
 Trading Member or any of its Affiliates in connection with conducting Trading
 Activities, including all commissions (including commissions on physical and
 financial Trading Activities), brokerage fees, insurance fees, transport
 fees, shrinkage fees, inspection fees and other fees and expenses, and (ii)
 losses incurred by the Company or the Trading Member or any of its Affiliates
 as a result of transactions constituting Trading Activities (it being
 understood that allocations of Profits and Losses to each Member will be
 effected in accordance with the terms of this Agreement).

 
	
  

 	
  

 
	
  

 	
               (c)          Rail
 Cars. During the term of the Company’s operations under this Agreement,
 the Trading Member will continue to sublease to the Company rail cars under
 the subleases identified on Exhibit B, which exhibit may be amended,
 from time to time by unanimous action of the Board. Each such sublease,
 including the rent payments thereunder, shall be deemed Member Transactions
 for purposes of this Agreement.

 
	
  

 	
  

 
	
  

 	
               (d)          Limitations.
 Unless otherwise approved by each Member, the Trading Member’s ability to
 engage in Trading Activities shall be subject to the following limitations:

 






	
  

 	
  

 
	
  

 	
                (i)            each
 individual transaction shall be subject to a maximum volume of five thousand
 (5,000) barrels per day and a maximum term of twelve (12) months; provided
 that such maximum volume may be increased to ten thousand (10,000) barrels
 per day and such maximum term may be increased to twenty-four (24) months for
 any individual transaction with the approval of each Member’s Authorized
 Person (defined below);

 
	
  

 	
  

 
	
  

 	
                (ii)           the
 aggregate portfolio limit in respect of Trading Activities shall be
 twenty-five thousand (25,000) barrels per day of purchases and/or sales;

 
	
  

 	
  

 
	
  

 	
                (iii)          the
 maximum outright flat price volume exposure in respect of Trading Activities
 at any time shall be twenty-five thousand (25,000) barrels, either long or
 short; and

 
	
  

 	
  

 
	
  

 	
                (iv)          all
 Trading Activities shall be transacted through segregated sub-accounts
 reviewed by independent auditors on a quarterly basis. The Trading Member
 also agrees to provide such documents and information as are reasonably
 requested to allow all Members to complete quarterly financial reviews and
 annual audits of all Trading Activities for their own financial reporting
 purposes;

 






	
  

 	
  

 
	
  

 	
 provided,
 however, the approval of any Member who has terminated its participation in
 the Trading Activities pursuant to Section 9.3 shall not be required in
 connection with the foregoing activities during all periods of time during
 which such Member is a Terminating Member.

 







	
  

 	
  

 	
  

 
	
  

 	
               (e)         Authorized
 Person. Each Member shall designate an authorized person (such Member’s
 “Authorized Person”) who shall have authority to approve Trading Activities
 that would otherwise be limited without such Member’s approval pursuant to
 Section 3.3(c)(i).

 


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                (f)          Trading
 Member Discretion. The Members hereby acknowledge
 and agree that except to the extent provided in Section 3.3(c), the Trading
 Member shall have sole discretion in conducting the Trading Activities, and
 that such discretion shall include whether or not to engage in any Trading
 Activities, the selection of Trading Activities to engage in, the evaluation
 of risks related thereto, the timing of Trading Activities and the
 establishment of cash flows, revenues and margins to be derived from Trading
 Activities.

 
	
  

 	
  

 
	
  

 	
                (g)          Internal
 Controls. The Trading Member shall implement
 internal controls and financial reporting procedures to (i) enable any and
 all transactions constituting Trading Activities to be segregated from, and
 not commingled with, other transactions and lines of business engaged in by
 the Trading Member and its Affiliates and (ii) enable the Trading Activities
 to be tracked and reported.

 
	
  

 	
  

 
	
  

 	
                (h)          Summary
 Reports. Within twenty (20) days after the end of
 each month during which any Trading Activities occur, the Trading Member
 shall provide to each other Member (to such Person as such other Member shall
 designate) a summary report describing Trading Activities that occurred
 during such month along with the following backup details in respect of
 Trading Activities occurring during the month covered by such report:

 






	
  

 	
  

 
	
  

 	
                (i)          account
 statements concerning the initiation or closing of futures hedge positions;

 
	
  

 	
  

 
	
  

 	
                (ii)         trade
 confirmations, periodic statements and other similar documentation relating
 to Trading Activities, including Trading Activities constituting futures
 hedge positions; and

 
	
  

 	
  

 
	
  

 	
                (iii)        to
 the extent not otherwise provided pursuant to clauses (i) or (ii) above,
 written documentation entered into with third parties concerning the firm
 purchase, sale, storage, transportation, transloading or other activities
 impacting the Trading Activities.

 






	
  

 	
  

 
	
  

 	
                (i)          Financial
 Reports. Within twenty (20) days after the end of each month during which
 any Trading Activities occur, the Trading Member shall provide each other
 Member with unaudited financial statements for such month prepared in
 conformance with accounting principles generally accepted in the United
 States (except for the absence of footnotes and as otherwise set forth
 therein) reporting the financial results of the Trading Activities during
 such month, which shall consist of an income statement, cash flow statement and
 balance sheet (as of the end of the month). 

 
	
  

 	
  

 
	
  

 	
                (j)          Limitations
 on Liability. Notwithstanding anything else contained in this Agreement,
 in no event will the Trading Member or any of its Affiliates be liable for
 any action, error or omission in transacting any Trading Activities or
 declining to transact any Trading Activities, or any defect in the
 transaction of the Trading Activities, except to the extent such action,
 error, omission or defect is directly attributable to the gross negligence or
 willful misconduct of such Trading Member in the transaction of the Trading
 Activities pursuant to this Agreement. Notwithstanding anything to the
 contrary contained in this Agreement and without limiting the generality of
 the foregoing, the Trading Member shall be excused from its obligations under
 this Agreement, and shall have no liability for any resulting loss or damage,
 in the event and to the extent that its performance is delayed or prevented
 by any circumstance reasonably beyond its control, including earthquake,
 fire, flood, epidemic, explosion, act of any government in its sovereign
 capacity, act of God or of the public enemy, strike, walkout or other labor
 dispute, riot or
 civil disturbance, disruption or unavailability of storage or transportation
 facilities, inability to obtain production from intended sources and
 production breakdowns.

 


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               (k)          Indemnification.
 

 






	
  

 	
  

 
	
  

 	
                (i)          The
 Company will indemnify, defend and hold harmless the Trading Member and its
 Affiliates and their respective directors, officers, employees, agents and
 representatives from and against, and pay or reimburse, as the case may be,
 the Trading Member and such Affiliates, directors, officers, employees,
 agents and representatives for, all Damages, as incurred, suffered by any
 such Person based upon, arising out of or relating to the transaction of the
 Trading Activities or acting as the Trading Member hereunder, except to the
 extent such Damages are based upon, arise out of or relate to the gross
 negligence or willful misconduct of the Trading Member in the transaction of
 the Trading Activities pursuant to this Agreement.

 
	
  

 	
  

 
	
  

 	
                (ii)         In
 the event the Company does not have sufficient funds to indemnify, defend and
 hold harmless the Trading Member and its Affiliates and their respective
 directors, officers, employees, agents and representatives as set forth in
 clause (i) above, then the other Member will indemnify, defend and hold
 harmless the Trading Member and its Affiliates and their respective
 directors, officers, employees, agents and representatives from and against,
 and pay or reimburse, as the case may be, the Trading Member and such
 Affiliates, directors, officers, employees, agents and representatives for,
 an amount equal to the other Member’s Distribution Percentage at the time the
 events giving rise to such obligation occurred of all Damages not indemnified
 by the Company, as incurred, suffered by any such Person based upon, arising
 out of or relating to the transaction of the Trading Activities or acting as
 the Trading Member hereunder, except to the extent such Damages are based
 upon, arise out of or relate to the gross negligence or willful misconduct of
 the Trading Member in the transaction of the Trading Activities pursuant to
 this Agreement.

 
	
  

 	
  

 
	
  

 	
                (iii)        The
 indemnification provided for in this Section 3.3(k) will survive the
 termination of the Trading Activities and this Agreement.

 






	
  

 	
  

 	
  

 
	
  

 	
               (l)           PTS
 Trading Activity Termination. In the event PTS terminates its
 participation in the Trading Activities pursuant to Section 9.3, PTS shall
 thereafter immediately cease to be the Trading Member, at which point DPM
 shall become the Trading Member. If, after DPM so becomes the Trading Member,
 PTS resumes its participation in the Trading Activities and DPM terminates
 its participation in the Trading Activities, then PTS shall become the
 Trading Member again.

 
	
  

 	
  

 
	
  

 	
               (m)         Removal
 of Trading Member. Except as provided in Section 3.3(k), PTS may not be
 removed as the Trading Member without the written approval of all Members.

 


          3.4)        [Intentionally
Omitted].


          3.5)        Preferred
Contributions. In order to support and fund the Trading Activities, the
Members shall make preferred contributions (the “Member Preferred
Contributions”) to the Company as follows:


	
  

 	
  

 
	
  

 	
               (a)          Initial
 Contribution. Upon formation of the Company, each Member made an initial
 Member Preferred Contribution to the Company in the amount of Ten Million
 dollars ($10,000,000).
 Each Member of the Company has provided the cash proceeds of its respective
 Member Preferred Contribution.

 


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               (b)          Additional
 Contributions. Upon the written agreement of all the Members, the Members
 will make such additional Member Preferred Contributions to the Company as
 are agreed upon in writing by all of the Members on such terms as they shall
 so agree (including such terms as shall be contained in an amendment to the
 Agreement). No Member shall be required to make Member Preferred
 Contributions of more than Ten Million dollars ($10,000,000) in the aggregate
 without the unanimous written consent of all Members. Notwithstanding
 anything in this Agreement to the contrary, either Member may make additional
 Member Preferred Contributions to the Company in excess of Ten Million
 dollars ($10,000,000) without the agreement of the other Member but only to
 the extent necessary to effectively conduct Trading Activities in accordance
 with this Agreement; provided, that (x) such additional Member Preferred
 Contributions made without the agreement of the other Member shall not result
 in any adjustment to the Members’ Distribution Percentages or to the relative
 amounts of distributions to be made to the Members pursuant to Section 5.1(b)(iv) or Section 9.2(b)(v) or impact the ownership
 of Units by the Members and (y) the terms of such additional Member Preferred
 Contributions shall be negotiated in good faith by all the Members.

 
	
  

 	
  

 
	
  

 	
               (c)          Preferred
 Returns. All Member Preferred Contributions made to the Company shall
 entitle the Member who made such Member Preferred Contributions to receive a
 cumulative preferred return on such Member Preferred Contributions of 5% per
 annum, which preferred return will be paid in cash on a quarterly basis
 subject to there being cash available to be distributed therefor pursuant to
 Section 5.1(b)(i). The parties acknowledge that it shall not be a default
 hereunder if preferred returns on any Member Preferred Contribution are not
 paid at any time if funds are not available to pay the same pursuant to
 Section 5.1(b)(i) (it being understood that such preferred returns will
 continue to be due and owing and will be payable when cash is next available
 therefor pursuant to Section 5.1(b)(i)). Distributions of preferred returns
 on Member Preferred Contributions must be made to each Member simultaneously
 pro rata based on each Member’s respective proportion of outstanding Member
 Preferred Contributions. Members shall begin to receive distributions in
 respect of their outstanding Member Preferred Contributions on a quarterly
 basis promptly following the quarter ended December 31, 2021 pursuant to
 Section 5.1(b)(ii). The parties acknowledge that it shall not be a default
 hereunder if distributions in respect of outstanding Member Preferred
 Contributions are not paid at any time after December 31, 2021 if funds are
 not available to pay the same pursuant to Section 5.1(b)(ii) (it being
 understood that such outstanding Member Preferred Contributions will continue
 to be due and owing and will be payable when cash is next available therefor
 pursuant to Section 5.1(b)(ii)). 

 
	
  

 	
  

 
	
  

 	
               (d)          Company
 Cash. All cash of the Company, including the proceeds of cash capital
 contributions, loans and Member Preferred Contributions and cash derived from
 Trading Activities, shall be deposited by the Trading Member in one or more
 segregated bank accounts in the name of the Company and shall be controlled
 by the Trading Member and used by the Trading Member in its sole discretion
 to conduct the Trading Activities.

 


          3.6)        Distributions
In Respect Of Contributions. Upon any distribution pursuant to this
Agreement to a Member in respect of outstanding Member Preferred Contributions
(other than distributions in respect of accrued and unpaid preferred returns
thereon), the portion of such Member Preferred Contributions in respect of
which a distribution was made pursuant to this Agreement shall cease to accrue
preferred returns and shall be cancelled and no longer outstanding for any
purpose whatsoever. 


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          3.7)         Voting
Power. Each Unit shall entitle the owner of such Unit to one vote on all
matters submitted to the vote of Members. Member Preferred Contributions shall
not entitle the makers thereof to any voting rights in respect of such Member
Preferred Contributions.


ARTICLE 4

TAX MATTERS AND ALLOCATIONS


          4.1)        Tax
Characterization and Returns. The Members acknowledge that the Company will
be treated as a “partnership” for federal and Minnesota state income tax
purposes. Within ninety (90) days after the end of each fiscal year, the
Company shall deliver to each Person who was a Member at any time during such
fiscal year a Form K-1 and such other information, if any, with respect to the
Company as may be necessary for the preparation of such Member’s federal or
state income tax (or information) returns, including a statement showing each Member’s
share of income, gain, or loss and credits for such fiscal year for federal or
state income tax purposes.


          4.2)        Accounting
Decisions, Tax Elections. All decisions as to accounting matters or tax
elections shall be made by the Board. The Board may make or revoke such
elections as may be allowed pursuant to the Code, including the election
referred to in Section 754 of the Code to adjust the basis of Company property.


          4.3)        Tax
Matters Partner. The Board shall designate a Member to act on behalf of the
Company as the “Tax Matters Partner” within the meaning of Section 6231(a)(7)
of the Code. PTS shall be the initial Tax Matters Partner.


          4.4)        Section
754 Election. Any election by the Company under Section 754 of the Code to
adjust the basis of the Company’s assets pursuant to Section 734 and Section
743 of the Code shall be made in the discretion of the Board. If such election
is made, allocation of items of the Company’s income, gain, loss and deductions
shall otherwise be made in a manner consistent with such allocation of basis in
accordance with Section 734 and/or Section 743 of the Code, as the case may be,
notwithstanding any other provision of this Agreement.


          4.5)        Allocation
of Profits and Losses. After giving effect to the special allocations set
forth in Sections 3 and 4 of Appendix A:


	
  

 	
  

 
	
  

 	
               (a)          Profits
 for any fiscal year of the Company, or part thereof, shall be allocated to
 the Members as follows:

 






	
  

 	
  

 
	
  

 	
                (i)          First,
 to the Members, in proportion to their relative share of Losses allocated to
 the Members pursuant to Section 4.5(b)(vi), until the cumulative Profits
 allocated to the Members pursuant to this Section 4.5(a)(i) equals the cumulative
 Losses allocated to the Members pursuant to Section 4.5(b)(vi);

 
	
  

 	
  

 
	
  

 	
                (ii)         Second,
 to the Terminating Member, if any, in the amount of the Losses allocated to
 the Terminating Member pursuant to Section 4.5(b)(v), until the cumulative
 Profits allocated to the Terminating Member pursuant to this Section
 4.5(a)(ii) equals the cumulative Losses allocated to the Terminating Member
 pursuant to Section 4.5(b)(v);

 
	
  

 	
  

 
	
  

 	
                (iii)        Third,
 to the Members, in proportion to their relative share of Losses allocated to
 the Members pursuant to Section 4.5(b)(iv), until the cumulative Profits
 allocated to the Members pursuant to this Section 4.5(a)(iii) equals the
 cumulative Losses allocated to the Members pursuant to Section 4.5(b)(iv);

 


- 10 -









	
  

 	
  

 
	
  

 	
                (iv)        Fourth,
 to the Members, in proportion to their relative share of preferred return
 (taking into account only preferred returns for which Profits have not
 previously been allocated under this Section 4.5(a)(iv)) accrued on each
 Member’s Member Preferred Contributions since the date of such Member’s
 Member Preferred Contributions until the amount of Profits allocated to each
 Member pursuant to this Section 4.5(a)(iv) for this and all prior years
 (after taking into account any allocation of Losses pursuant to Section
 4.5(b)(iii)) equals the amount of preferred return accrued on such Member’s
 Member Preferred Contributions since the dates of such Member’s Member
 Preferred Contributions;

 
	
  

 	
  

 
	
  

 	
                (v)         Fifth,
 in the event Members are entitled to receive distributions under Section
 5.1(b)(iii) in respect of Unrealized Termination Profits, an amount equal to
 such Unrealized Termination Profits until the cumulative Profits allocated
 pursuant to this Section 4.5(a)(v) (after taking into account any allocation
 of Losses pursuant to Section 4.5(b)(ii)) equals the cumulative distributions
 to which such Member is entitled to receive pursuant to Section 5.1(b)(iii);
 and

 
	
  

 	
  

 
	
  

 	
                (vi)        Sixth,
 to the Members, in proportion to their Distribution Percentages.

 






	
  

 	
  

 
	
  

 	
           (b)          Losses
 for any fiscal year of the Company, or part thereof, shall be allocated to
 the Members as follows:

 






	
  

 	
  

 
	
  

 	
                (i)          First,
 to the Members, in proportion to their relative share of Profits allocated to
 the Members pursuant to Section 4.5(a)(vi), less the cumulative distributions
 paid to the Members pursuant to Section 5.1(b)(iv), until the cumulative
 Losses allocated to the Members pursuant to this Section 4.5(b)(i) equals the
 cumulative Profits allocated to the Members pursuant to Section 4.5(a)(vi);

 
	
  

 	
  

 
	
  

 	
                (ii)         Second,
 to the Members, in proportion to their relative share of Profits allocated to
 the Members pursuant to Section 4.5(a)(v), less the cumulative distributions
 paid to the Members pursuant to Section 5.1(b)(iii), until the cumulative
 Losses allocated to the Members pursuant to this Section 4.5(b)(ii) equals
 the cumulative Profits allocated to the Members pursuant to Section
 4.5(a)(v);

 
	
  

 	
  

 
	
  

 	
                (iii)        Third,
 to the Members, in proportion to their relative share of Profits allocated to
 the Members pursuant to Section 4.5(a)(iv), less the cumulative distributions
 paid to the Members pursuant to Section 5.1(b)(i), until the cumulative
 Losses allocated to the Members pursuant to this Section 4.5(b)(iii) equals
 the cumulative Profits allocated to the Members pursuant to Section
 4.5(a)(iv);

 
	
  

 	
  

 
	
  

 	
                (iv)        Fourth,
 to the Members, in proportion to their relative share of Member Preferred
 Contributions, until the amount of Losses allocated to each Member pursuant
 to this Section 4.5(b)(iv) for this and all prior years (after taking into
 account any allocation of Profits pursuant to Section 4.5(a)(iii)) equals the
 amount of such Member Preferred Contributions less any amounts distributed in
 respect of such Member Preferred Contributions pursuant to Section
 5.1(b)(ii), provided that in the event a Member terminates its participation
 in the Trading Activities pursuant to Section 9.3, then during all periods of
 time during which such Member is a Terminating Member, all of the Losses
 allocated pursuant to this Section 4.5(b)(iv) shall be allocated to the
 Non-Terminating Member;

 


- 11 -









	
  

 	
  

 
	
  

 	
               (v)          Fifth,
 to the Terminating Member, if any, during all periods of time during which
 such Member is a Terminating Member, until the amount of Losses allocated to
 the Terminating Member pursuant to this Section 4.5(b)(v) for this and all
 prior years (after taking into account any allocation of Profits pursuant to
 Section 4.5(a)(ii)) equals the amount of such Member’s Member Preferred
 Contributions less (x) any amounts distributed in respect of such Member’s
 Member Preferred Contributions pursuant to Section 5.1(b)(ii) and (y) amounts
 distributed to such Member pursuant to Section 5.1(b)(iii); and

 
	
  

 	
  

 
	
  

 	
               (vi)         Sixth,
 to the Members, in proportion to and in accordance with their Distribution
 Percentages.

 






	
  

 	
  

 
	
  

 	
 Notwithstanding the foregoing, the allocation of Profits and Losses
 for any year shall be adjusted as appropriate to take into account changes
 from time-to-time in Distribution Percentages, including changes resulting
 from a Member terminating participation in the Trading Activities pursuant to
 Section 9.3, so that the cumulative amount of Profits and Losses allocated to
 each Member is appropriately reflective of each Member’s Distribution
 Percentages and rights to receive distributions under Section 5.1 and Article
 9.

 


ARTICLE 5

DISTRIBUTIONS


          5.1)   Distribution
and Payment Provisions. The following provisions apply with respect to the
distribution and payment of items to and among the Members:


	
  

 	
  

 
	
  

 	
           (a)         Priority
 Cash Available. As soon as practicable following the end of each calendar
 quarter, the Trading Member shall determine the amount of Priority Cash
 Available. For purposes of this Section, “Priority Cash Available” shall mean
 cash accumulated by the Company at the end of a calendar quarter in excess of
 the sum of (x) until the calendar quarter ending December 31, 2021, the
 aggregate amount of outstanding Member Preferred Contributions and (y) cash
 necessary to:

 






	
  

 	
  

 
	
  

 	
               (i)           pay
 operating expenses of the Company incurred to parties other than Members or
 their respective Affiliates (the “Third Party Expenses”), the Charges to the
 Trading Member pursuant to Section 3.3(b), any amounts payable to the Trading
 Member pursuant to Section 3.3(k) and accounting fees payable to the Trading
 Member pursuant to Section 7.6(c) and to fund Trading Activities, in each
 case through the end of such calendar quarter, and 

 
	
  

 	
  

 
	
  

 	
               (ii)          pay
 the amount of cash reasonably projected by the Trading Member (the “Reserve”)
 to be necessary for the payment of Third Party Expenses, the Charges to the
 Trading Member pursuant to Section 3.3(b), any amounts payable to the Trading
 Member pursuant to Section 3.3(k) and accounting fees payable to the Trading
 Member pursuant to Section 7.6(c) and the funding of Trading Activities, in
 each case through the end of the next calendar quarter. 

 






	
  

 	
  

 
	
  

 	
 The Members acknowledge and agree that the payment of Third Party
 Expenses, the Charge to the Trading Member pursuant to Section 3.3(b), any
 amounts payable to the Trading Member pursuant to Section 3.3(k) and
 accounting fees payable to the Trading Member pursuant to Section 7.6(c) and
 the funding of Trading Activities, in each case through the end of an
 applicable calendar quarter, shall be provided for prior to the setting aside
 of any amounts in respect of the Reserve. Notwithstanding the foregoing, the Company may reduce
 Priority Cash Available by any amount that the Board unanimously determines
 is necessary or prudent to pay any anticipated costs or extraordinary
 expenses for succeeding calendar quarters.

 


- 12 -









	
  

 	
  

 
	
  

 	
               (b)          Priority
 Payments to Members. To the extent there is Priority Cash Available, as
 soon as practicable following the end of each calendar quarter commencing
 with the quarter ended September 30, 2011, but in no event more than thirty
 (30) days following the end of each calendar quarter, the Company shall make
 distributions to the Members as follows:

 






	
  

 	
  

 
	
  

 	
                (i)          First,
 in respect of preferred returns due to Members with respect to outstanding
 Member Preferred Contributions for the calendar quarter just ended and for
 any prior period for which preferred returns have not been paid thereon, on a
 pro rata basis to the Members based on the then outstanding amount of accrued
 and unpaid preferred returns for such calendar quarter and all prior periods
 due to each Member on all Member Preferred Contributions made by such Member;

 
	
  

 	
  

 
	
  

 	
                (ii)         Second,
 to the extent of any Priority Cash available after application of clause (i)
 above, for all quarters commencing with the quarter ended December 31, 2021,
 in respect of outstanding Member Preferred Contributions, on a pro rata basis
 to the Members based on each Members’ then outstanding Member Preferred
 Contributions;

 
	
  

 	
  

 
	
  

 	
                (iii)        Third,
 to the extent of any Priority Cash available after application of clauses (i)
 and (ii) above, in the event there are Unrealized Termination Profits as of
 the date any Terminating Member resumes participation in the Trading Activities pursuant to Section
 9.3(e), 85% of such Unrealized Termination Profits to the Non-Terminating
 Member and 15% of such Unrealized Termination Profits to the Terminating
 Member until the aggregate amount of all distributions pursuant to this
 Section 5.1(b)(iii) is equal to the amount of such Unrealized Termination
 Profits; and

 
	
  

 	
  

 
	
  

 	
                (iv)        Fourth,
 to the extent of any Priority Cash available after application of clauses
 (i), (ii) and (iii) above, all of such Priority Cash Available to the Members
 based upon their Distribution Percentages in effect on the last day of the
 applicable calendar quarter with respect to which distributions are being
 made pursuant to this Section 5.1(b)(iv).

 






	
  

 	
  

 
	
  

 	
               (c)           Other
 Distribution Matters.

 






	
  

 	
  

 
	
  

 	
                (i)          So
 long as all preferred returns have been paid on all outstanding Member
 Preferred Contributions for the calendar quarter just ended and for all prior
 periods, all Unrealized Termination Profits have been fully paid pursuant to
 Section 5.1(b)(iii) and all amounts, if any, available to be distributed
 under Section 5.1(b)(iv) for the calendar quarter just ended have been
 distributed, the Board after the end of any calendar quarter occurring prior
 to December 31, 2021, upon unanimous consent of all Governors, may declare
 and pay distributions in respect of all or any portion of outstanding Member
 Preferred Contributions (but if such distributions are not made in respect of
 all outstanding Member Preferred Contributions, such distributions shall be
 on a pro rata basis based on each Members’ then outstanding amount of Member
 Preferred Contributions).

 
	
  

 	
  

 


- 13 -









	
  

 	
  

 
	
  

 	
                (ii)         No
 Member shall have any right to interim Distributions except as determined by
 the Board, and, except as otherwise provided in this Agreement, no Member shall
 be entitled to interest on any contributions made by such Member to the
 Company. No Member shall have the right to withdraw or to demand the return
 or repayment of any or all of such Member’s contributions.

 
	
  

 	
  

 
	
  

 	
                (iii)        The
 Members hereby agree to cause the Board to take such actions as may be
 necessary to implement the distributions and payments described in this
 Section 5.1.

 






	
  

 	
  

 
	
  

 	
               (d)          Tax
 Burden Distributions. Notwithstanding the provisions of subparagraphs (a)
 and (b) above: 

 






	
  

 	
  

 
	
  

 	
                (i)          The
 Company shall distribute to the Members each calendar year, to the extent
 there is Priority Cash Available, the amount calculated pursuant to Section
 5.1(d)(ii) to permit the Members to pay income taxes on their respective
 allocable shares of the estimated taxable income of the Company; provided,
 that such estimated taxable income may be offset by any allocable loss
 carryforwards of the Company in the sole discretion of the Board.

 
	
  

 	
  

 
	
  

 	
                (ii)         Distributions
 in accordance with the foregoing paragraph shall be based on the premise that
 all Members are subject to the maximum combined federal and Minnesota tax
 rates applicable to the type of income generated by the Company (after making
 appropriate provisions for cross-deductibility of federal and state income
 taxes).

 
	
  

 	
  

 
	
  

 	
                (iii)        The
 Board may make Distributions on a quarterly basis to facilitate the payment
 of estimated taxes by the Members.

 
	
  

 	
  

 
	
  

 	
                (iv)        Any
 amount distributed pursuant to this Section 5.1(d) shall, for purposes of
 calculating the amount of future distributions pursuant to Section 5.1(b)(i),
 Section 5.1(b)(iii), Section 5.1(b)(iv) (but not in respect of distributions
 in respect of any Member Preferred Contribution) and Section 9.2(b), be taken
 into account and considered to be an advance with respect to the next
 distributions to which such Member is otherwise entitled pursuant to such
 Sections.

 






	
  

 	
  

 
	
  

 	
               (e)           In-Kind
 Distributions. No Member shall have the right to require any distribution
 of any assets of the Company in kind. If any assets of the Company are
 distributed in kind, such assets shall be distributed on the basis of their
 fair market value as determined by the Board. Solely for the purpose of
 maintaining Capital Accounts, the amount by which the fair market value of
 any property to be distributed exceeds or is less than the adjusted basis of
 such property for book purposes shall be taken into account in determining
 Profit or Loss as if such property had been sold at its fair market value as
 determined in good faith by the Board.

 


ARTICLE 6

ISSUANCE/ESTABLISHMENT OF UNITS; ADMISSION OF MEMBERS; REGISTRATION


          6.1)        Issuance/Establishment
of Units. Notwithstanding any provision of this Agreement or the Operating
Agreement to the contrary, the Company shall not issue any additional Units at
any time without the unanimous express written consent of all Members at the
time of such proposed issuance. Any Member may withhold its consent to the
issuance of any additional Units for any reason or no reason whatsoever, in its
sole and unilateral discretion. In connection with the issuance of any
additional Units, the Board shall value all nonmonetary consideration and
establish a price in money or other consideration, or a minimum price, or a
general formula or method by which the price will be determined. The Board


- 14 -





may establish, by resolution adopted in the manner described in the
Operating Agreement, either additional Units or one or more additional classes
or series of Units, designate each such additional class or series, and fix the
relative rights and preferences of each such additional class or series, subject
to the provisions of this Agreement. Notwithstanding any provision of this
Agreement or the Operating Agreement to the contrary, the Board shall not
establish additional Units or additional classes or series of Units, designate
each such additional class or series, or fix the relative rights and
preferences of each such additional class or series without the unanimous
express written consent of all Members at the time of such proposed issuance.
Any Member may withhold its consent to such actions for any reason or no reason
whatsoever, in its sole and unilateral discretion.


          6.2)         Admission
of Members. 


	
  

 	
  

 
	
  

 	
                (a)          Issuance
 or Assignment of Units. A Person shall be admitted as a Member upon
 payment for any Units issued to such Person pursuant to Section 6.1 of this
 Agreement effective when such Person executes or otherwise evidences an
 intent to be bound by this Agreement. An assignee of a Member’s Units may be
 admitted as a Member upon unanimous consent of all Members at such time, but
 only if such Person executes or otherwise evidences an intent to be bound by
 this Agreement.

 
	
  

 	
  

 
	
  

 	
                (b)          Exhibit
 A. The current Members of the Company and the capital contributions made
 or agreed to be made by each of them and numbers of Units that are issued and
 outstanding are set forth on Exhibit A. The Board is authorized from
 time to time to update Exhibit A to reflect the identity of all
 Members, the capital contributions made or agreed to be made and the class
 and number of each class of Units that are issued and outstanding.

 


          6.3)         Registration.


	
  

 	
  

 
	
  

 	
                (a)          Register.
 The Company shall keep at its principal office a register containing the
 names of the owners of outstanding Units and all transfers of outstanding
 Units. References to the owner of a Unit shall mean the Person shown as the
 owner of such Unit in the register, and the ownership of a Unit shall be
 proved by such register. Except as otherwise specifically provided in this
 Agreement, the registered owner of a Unit shall be deemed to be the owner of
 such Unit and a Member for all purposes of this Agreement.

 
	
  

 	
  

 
	
  

 	
                (b)          Certificates.
 Certificates evidencing the Units owned by a Member may, but need not, be
 issued by the Company. Each certificate shall serve only as evidence of
 ownership of the Units it identifies and shall not be assignable, except as
 otherwise provided in this Agreement.

 
	
  

 	
  

 
	
  

 	
                (c)          Registration
 of a Transfer. Each Unit issued under this Agreement, whether originally
 or in substitution for, or upon transfer, exchange or other issuance of a
 Company Interest represented by such Unit, shall be registered on the
 effective date of the transfer, exchange or other issuance as determined in
 good faith by the Board; provided, however, that no registration of any
 transfer not made in compliance with this Agreement shall be made in the
 register.

 
	
  

 	
  

 
	
  

 	
                (d)          Preemptive
 Rights. No Member, merely because of such Member’s status as a Member or
 an owner of Units, shall have any preemptive rights to purchase any Units
 proposed to be sold or issued by the Company.

 


- 15 -





ARTICLE 7

MANAGEMENT AND OPERATION OF THE COMPANY


          7.1)         No
Authority of the Members. Except as specifically provided in this
Agreement, no Member shall have any authority in such Member’s capacity as a
Member to act for, or to assume any obligations or responsibility on behalf of,
or bind the Company or any other Member. Such authority shall be vested solely in
the Board (and, pursuant to Section 7.2(c), officers, employees and agents of
the Company) under this Agreement. 


          7.2)         Board
of Governors.


	
  

 	
  

 
	
  

 	
                (a)          Management
 Vested in Board. The business and affairs of the Company shall be managed
 by or under the authority of the Board, except as otherwise specifically
 required by the LLC Act or this Agreement. Except as otherwise provided in
 this Agreement, the Board shall have the sole and exclusive power to manage
 the Company’s business.

 
	
  

 	
  

 
	
  

 	
                (b)          Designation
 of Board Members. Each Member shall be permitted to appoint one designee
 of such Member to the Board of Governors. There shall be no other members of
 the Board. Any vacancy in the Board shall be filled by the action of the
 Member that appointed the Board member whose Board position is vacated.

 
	
  

 	
  

 
	
  

 	
                (c)          Delegation.
 The Board shall be entitled to delegate its duties as it may deem reasonable
 or necessary in the conduct of the business of the Company to one or more
 officers, employees, agents, or committees of the Company, who shall each
 have such duties and authority as the Board shall determine, or as may be set
 forth in this Agreement, the Operating Agreement or any agreement between
 such person and the Company.

 
	
  

 	
  

 
	
  

 	
                (d)          Qualification
 and Term of Office. Governors need not be Members or employees of the
 Company. A Governor shall hold office until such person’s successor shall
 have been appointed, or until the earlier death, resignation, removal or
 disqualification of such Governor. A Governor may be removed only by the
 Member that appointed such Governor.

 
	
  

 	
  

 
	
  

 	
                (e)          Resignation.
 Any Governor may resign at any time by giving written notice to the Company.
 The resignation is effective when notice is given to the Company, unless a
 later date is specified in the notice, and acceptance of the resignation
 shall not be necessary to make it effective.

 
	
  

 	
  

 
	
  

 	
                (f)           Voting
 Power. Except as provided in the Operating Agreement, each Governor shall
 have one vote on any matter submitted to the vote of the Board.

 
	
  

 	
  

 
	
  

 	
                (g)          Acts
 of the Board. The Board shall take action in the manner set forth in the
 Operating Agreement.

 
	
  

 	
  

 
	
  

 	
                (h)          Standards
 of Conduct. A Governor shall discharge the duties of serving on the Board
 in good faith, in a manner the Governor reasonably believes to be in the best
 interests of the Company and with the care an ordinarily prudent person in a
 like position would exercise under similar circumstances. A Governor shall
 not be liable as a fiduciary with respect to the duties of serving on the
 Board.

 





- 16 -





          7.3)         Officers. The Company may
have one or more natural persons exercising the functions of the offices,
however designated, of Chief Manager and Treasurer. The Board may elect or
appoint such other officers or agents as it deems necessary for the operation and
management of the Company including, but not limited to, a Chairman of the
Board, a President, one or more Vice Presidents, and a Secretary, each of whom
shall have the powers, rights, duties and responsibilities set forth in the
Operating Agreement, unless otherwise determined by the Board. Any of the
offices or functions of those offices may be held by the same person.


          7.4)         Members
or Affiliates Dealing with the Company. The Company may contract or
otherwise deal with a Member or any Person who is an Affiliate of a Member
including the purchase or sale of goods or services. In any such transaction
between the Company and a Member or a Person who is an Affiliate of a Member,
the Agreement shall be approved in accordance with Section 322B.666 of the LLC
Act. Compensation for such goods or services shall in all instances be
commercially reasonable.


          7.5)         Compensation
for Services. Unless otherwise determined by the Board or as provided in
this Agreement, no Member or officer shall be compensated for services to the
Company. No relationships between the Company or any Person who is an Affiliate
of a Member are authorized unless the Board is fully aware of the circumstances
and, in no event, will compensation to any such Affiliate be more than is
reasonable given all of the facts and circumstances. The Members acknowledge
and agree that all compensation payable to the Trading Member pursuant to this
Agreement is reasonable.


          7.6)         Operation
of the Trading Activities and Conduct of the Company’s Business.


	
  

 	
  

 
	
  

 	
                (a)          Business
 Divisions. The Company shall conduct one category of
 business activities: The purchase, sale, storage, transport and marketing of
 hydrocarbons produced within North Dakota to or from refineries and other
 end-users or Persons, wherever located, and the conduct of Trading
 Activities.

 
	
  

 	
  

 
	
  

 	
                (b)          Credit.
 The Company may, at the sole discretion of the Trading Member, establish and
 maintain appropriate credit facilities with a commercial lender to
 accommodate its regular working capital needs.

 
	
  

 	
  

 
	
  

 	
                (c)          Accounting
 and Bookkeeping. Accounting and bookkeeping services
 for the Company shall be performed by PTS or its affiliate, and the
 reasonable market rate of fees for such services shall be paid by the Company
 as set forth in Exhibit C. Payment of such accounting and bookkeeping
 fees shall be deemed operating expenses of the Company and shall not be
 subject to treatment as a Member Transaction under the provisions of Section
 5.2 (b) or (c). Any Member maintaining or possessing the books and records of
 the Company will provide any other Member’s personnel and auditors,
 accountants, and legal counsel access to such books and records during
 business hours upon reasonable request.

 






	
  

 	
  

 
	
  

 	
                (i)          Company
 shall use reasonable efforts to deliver within nineteen (19) days after the
 end of each month to each Person who was a Member at any time during such
 calendar month (1) monthly financial statements prepared in accordance with
 U.S. GAAP (which financial statements, including balance sheet, income
 statement, cash flow and Member’s equity, need not contain notes or a
 comparison to the prior month) and (2) the financial information identified
 on Exhibit D, which exhibit may be amended, from time to time by
 unanimous action of the Board.

 
	
  

 	
  

 
	
  

 	
                (ii)         Company
 shall deliver within eighteen (18) days after the end of each fiscal quarter
 to each Person who was a Member at any time during such fiscal quarter
 quarterly financial statements prepared in accordance with U.S. GAAP (which
 financial statements, including balance sheet, income statement, cash flow
 and Member’s equity, need not contain notes or a comparison to the prior quarter). The
 Company and any Member maintaining or possessing the books and records of the
 Company will cooperate with any other Member in preparing notes to such
 financial statements.

 


- 17 -









	
  

 	
  

 
	
  

 	
  

 
	
  

 	
                (iii)        Company
 shall deliver within forty-five (45) days after the end of each fiscal year
 to each Person who was a Member at any time during such fiscal year (1)
 annual financial statements prepared in accordance with U.S. GAAP (which
 financial statements, including balance sheet, income statement, cash flow
 and Member’s equity, need not contain notes or a comparison to the prior
 fiscal year) and (2) the financial information identified on Exhibit D,
 which exhibit may be amended, from time to time by unanimous action of the
 Board. An estimate of the taxable income generated by the Company during the
 applicable period will be provided upon completion. The Company and any
 Member maintaining or possessing the books and records of the Company will
 cooperate with any other Member in preparing notes to such financial
 statements.

 






	
  

 	
  

 
	
  

 	
               (d)          Member
 Expenses. Except as specifically provided in this Agreement to the
 contrary, DPM and PTS shall each be solely responsible for their respective
 costs incurred in delivering and performing the services and assets required
 to be contributed to the Company under this Agreement, including travel,
 overhead, legal, and general and administrative expenses of the Member.

 



          7.7)        Operating
Agreement. The Operating Agreement may contain any provision relating to
the management and operation of the Company not inconsistent with the LLC Act
and this Agreement. In the case of any inconsistency, this Agreement and the
LLC Act will govern. The Board may amend or repeal the Operating Agreement. Any
such amendment or repeal of the Operating Agreement shall not be deemed to be
an amendment of this Agreement.


          7.8)        Limitation
of Liability. No Member, Governor, officer, or other employee of the
Company shall be liable, responsible or accountable in damages or otherwise to
the Company, or to any Member, or to any other third Person for any failure to
act or for any acts performed, where such person’s failure to act or such
action was in good faith and such person believed such action or failure to act
was in the best interests of the Company. Except as expressly provided in the
LLC Act, no Member, Governor, officer or other employee of the Company shall be
obligated personally for any debts, obligations, or liabilities of the Company
(whether arising in contract, tort or otherwise) solely by reason of being a
Member, officer or employee of the Company or serving on its Board of
Governors.


          7.9)        Indemnification.
The Company shall indemnify such Persons, for such expenses and liabilities, in
such manner, under such circumstances, and to such extent as permitted by
Minnesota Statutes Section 322B.699.


          7.10)      Other
Ventures. Any Member may engage in or possess any interest in any other
ventures or businesses of any nature or description, independently or with
others, including ventures or businesses which may engage in business
transactions with the Company provided such transactions with the Company are
commercially reasonable. Neither the Company nor any other Member shall have a
right by virtue of this Company to participate in any way in any such other
venture or the income or profits derived therefrom. Notwithstanding the
foregoing, each Member agrees that it will not (and it will not permit its
Affiliates to), during the period it is a Member of the Company, and for one
year thereafter, directly or indirectly, purchase, sell, store, transport or
market crude oil or natural gas originating from production fields anywhere in
North Dakota or conduct any trading activities related thereto, except through
the Company.


- 18 -





ARTICLE 8

DIRECTORS AND DECISIONS OF BOARD OF GOVERNORS


          8.1)         Number.
The Board of Governors of the Company shall consist of as many natural persons
as there are Members of the Company and each Member shall have the right to
appoint one Governor.


          8.2)         Term.
A Governor designated in accordance with the provisions of Section 8.1 shall
serve for an indefinite term until such Governor’s earlier death, resignation,
or removal. 


ARTICLE 9

RESTRICTIONS ON TRANSFER; TERMINATION


          9.1)         Restriction
on Transfer or Assignment. Upon any intended transfer of a Member’s Units,
the provisions of the Buy-Sell Agreement among the Members and the Company (the
“Buy-Sell Agreement”) shall govern the process and the terms of disposition or
transfer of such Units. No Member may transfer or assign all or any portion of
such Member’s Units (other than to an Affiliate of such Member), in a
transaction in which the Buy-Sell Agreement would be operative unless such
Member or its Affiliate also transfers or assigns to the same transferee the
same proportion of its units in Dakota Petroleum Transport Solutions, LLC. In
the absence of any such Buy-Sell Agreement, a Member may not transfer or assign
all or any portion of such Member’s Units (other than to an Affiliate of such
Member), whether by sale, gift, devise, or distribution; the death, withdrawal,
bankruptcy, divorce, separation, dissolution or termination of such Member; or
otherwise, except upon the written consent of the Board.


          9.2)         Term
and Termination. 


	
  

 	
  

 
	
  

 	
                (a)          The
 Company shall exist for an initial term expiring December 31, 2021 (the
 “Initial Term”), and the term shall automatically extend in two-year renewal
 periods (each, a “Renewal Term”) (the Initial Term and any Renewal Term are also
 referred to as a “Term”) unless and until terminated as provided herein. The
 Company shall dissolve, be wound up and terminated in the manner described
 below:

 






	
  

 	
  

 
	
  

 	
                (i)          By
 Agreement. Upon the written agreement to terminate signed by all Members
 at any time during the Initial Term or a Renewal Term; or

 
	
  

 	
  

 
	
  

 	
                (ii)         Member
 Notice. At the date of the completion of any Term if written notice of
 termination is delivered by one Member to the other Member and to the Company
 at least ninety (90) days prior to the end of such Term.

 






	
  

 	
  

 
	
  

 	
                (b)          Upon
 the occurrence of an event triggering the dissolution, wind up or termination
 of the Company pursuant to Section 9.2(a), the Company shall
 continue solely for the purposes of winding up its affairs in an orderly
 manner, liquidating its assets, and satisfying the claims of its creditors
 and Members, and no Member shall take any action with respect to the Company
 that is inconsistent with the winding up of the Company’s business and
 affairs; provided that all covenants contained in this Agreement and
 obligations provided for in this Agreement shall continue to be fully binding
 upon the Members until such time as the Company’s assets have been
 distributed pursuant to this Section 9.2(b). The Trading Member shall be
 responsible for overseeing the winding up and dissolution of the Company. On
 the sale of Company assets, any gain or loss realized by the Company upon
 such sale of its assets shall be deemed recognized and allocated to the
 Members in the manner set forth in Article 5. The Trading Member shall take
 full account of the Company’s liabilities and assets and shall cause the proceeds
 from the sale or disposition of assets or to the extent sufficient therefor,
 to be applied and distributed, to the maximum extent permitted by applicable
 law and notwithstanding anything in this Agreement to the contrary, in the
 following order:

 


- 19 -










	
  

 	
  

 
	
  

 	
               (i)          First,
 to creditors (including any Members and their Affiliates who are creditors)
 in satisfaction of all of the Company’s debts and liabilities other than
 liabilities for which reasonable provision for payment has been made;

 
	
  

 	
  

 
	
  

 	
               (ii)         Second,
 to the extent of any available proceeds after application of clause (i)
 above, in respect of preferred returns due to Members with respect to
 outstanding Member Preferred Contributions, on a pro rata basis to the
 Members based on the then outstanding amount of accrued and unpaid preferred
 returns due to each Member on all Member Preferred Contributions made by such
 Member;

 
	
  

 	
  

 
	
  

 	
               (iii)        Third,
 to the extent of any available proceeds after application of clauses (i) and
 (ii) above, in respect of outstanding Member Preferred Contributions, on a
 pro rata basis to the Members based on each Members’ then outstanding Member
 Preferred Contributions;

 
	
  

 	
  

 
	
  

 	
               (iv)        Fourth,
 to the extent of any available proceeds after application of clauses (i),
 (ii) and (iii) above, in the event there are Unrealized Termination Profits
 as of the date any Terminating Member resumes participation in the Trading Activities pursuant to Section
 9.3(e), 85% of such Unrealized Termination Profits to the Non-Terminating
 Member and 15% of such Unrealized Termination Profits to the Terminating
 Member until the aggregate amount of all distributions pursuant to Section
 5.1(b)(iii) and this Section 9.2(b)(iv) is equal to the amount of such
 Unrealized Termination Profits; and

 
	
  

 	
  

 
	
  

 	
               (v)         Fifth,
 to the extent of any available proceeds after application of clauses (i),
 (ii), (iii) and (iv) above, to the Members based upon their Distribution
 Percentages on the last day of the most recent calendar quarter, provided
 that any such proceeds that were generated after the end of such calendar
 quarter shall be distributed to the Members based upon their Distribution
 Percentages on the date of such distribution. 

 


          9.3)        Termination
of Participation in Trading Activities. 


	
  

 	
  

 
	
  

 	
               (a)         Each Member may elect to terminate its participation in the Trading
 Activities (a “Trading Activities Termination”) on ninety (90) days prior
 written notice to the other Member of such termination. Trading Activities
 Terminations must be effective on the first day of a calendar quarter. During
 all periods of time during which a Member is a Terminating
 Member, such Member shall not be required to make any Member Preferred
 Contributions in accordance with Section 3.5(b).

 
	
  

 	
  

 
	
  

 	
               (b)         (i)          Upon a Trading Activities Termination, the aggregate amount of
 outstanding Member Preferred Contributions of the Member electing the Trading
 Activities Termination (the “Terminating Member”) shall be irrevocably
 reduced (but in no event to less than zero) by an amount, if any, equal to
 the product (“Pro Rata Termination Loss Amount”) of (i) the Terminating
 Member’s Distribution Percentage calculated immediately prior to, and without
 giving effect to, the Terminating Member’s termination of its
 participation in the Trading Activities pursuant to this Section 9.3 and (ii)
 the Termination Loss Amount (it being
 understood that, except as set forth in Section 9.3(b)(iv), such reduction
 shall not effect the Company’s obligation to pay any preferred returns on the amount of the Members Preferred
 Contribution so reduced accrued and
 unpaid up to the date of such reduction in accordance with the terms of this
 Agreement).

 


- 20 -









	
  

 	
  

 
	
  

 	
                (ii)         After
 giving effect to the reduction described in Section 9.3(b)(i), to the extent
 any amount of any Member Preferred Contributions of the Terminating Member remains
 outstanding, then the Member not electing the Trading Activities Termination
 (the “Non-Terminating Member”) shall have the right to elect (A) that the
 amount of such Member Preferred Contributions remain in full force and effect in accordance with this Agreement or
 (B) to acquire such Member Preferred Contributions and pay to the Terminating Member an
 aggregate amount equal to the outstanding amount of, and any accrued and
 unpaid preferred returns (but not including any accrued and unpaid preferred
 returns on any amount of the Member Preferred Contributions reduced pursuant to Section
 9.3(b)(i)) on, such Member Preferred
 Contributions. 

 
	
  

 	
  

 
	
  

 	
                (iii)        Upon
 any reduction in Member Preferred Contributions pursuant to Section
 9.3(b)(i), such Member Preferred Contributions or the portion thereof in
 respect of which a reduction was made pursuant to Section 9.3(b)(i) shall
 cease to accrue preferred returns and shall be cancelled and no longer
 outstanding for any purpose whatsoever. 

 
	
  

 	
  

 
	
  

 	
                (iv)        To
 the extent that the Terminating Member’s Pro Rata Termination Loss Amount
 exceeds the aggregate amount of
 outstanding Member Preferred Contributions of the Terminating Member (before giving effect to the reduction
 described in Section 9.3(b)(i)), the aggregate amount of accrued and unpaid
 preferred returns on Member Preferred Contributions owed to the Terminating Member shall be
 irrevocably reduced (but in no event to less than zero) by the amount of such
 excess.

 
	
  

 	
  

 
	
  

 	
                (v)         To
 the extent that the Terminating Member’s Pro Rata Termination Loss Amount
 exceeds the sum of (A) the aggregate
 amount of outstanding Member Preferred Contributions of the Terminating Member (before giving
 effect to the reduction described in Section 9.3(b)(i)) and (B) the aggregate
 amount of accrued and unpaid preferred returns on Member Preferred
 Contributions of the Terminating
 Member (before giving effect to the reduction described in Section
 9.3(b)(iv)), (x) all distributions otherwise distributable to the Terminating
 Member pursuant to Section 5.1(b)(iii), Section 5.1(b)(iv), Section
 9.2(b)(iv) and Section 9.2(b)(v)
 shall be reduced (but in no event to less than zero) until such time as the
 aggregate amount of reductions pursuant to this Section 9.3(b)(v) is equal to
 such excess and (y) any amounts not distributed to the Terminating Member
 pursuant to clause (x) above shall instead be distributed to the Non-Terminating
 Member.

 






	
  

 	
  

 
	
  

 	
                (c)         Any
 Trading Activities Termination shall be effective for at least six (6) months
 and, if longer, a period that is an integral multiple of six (6) months. Any
 Profits allocated to a Terminating Member pursuant to Section
 4.5(a) and distributions payable to a Terminating Member pursuant to Section 5.1(b)(iv) and Section 9.2(b)(v) shall be calculated for
 each six-month period during which a Trading Activities Termination shall be
 in effect.

 
	
  

 	
  

 
	
  

 	
                (d)         For
 the avoidance of doubt, during all periods of time during which
 a Member is a Terminating Member, such Member shall remain subject to and
 bound by Section 7.10 (and for purposes of such Section 7.10 be considered a
 Member during such time). 

 


- 21 -









	
  

 	
  

 
	
  

 	
                (e)         A
 Terminating Member may elect to resume its participation in the Trading
 Activities at the end of any six-month period following its applicable
 Trading Activities Termination. Any such resumption of participation in the Trading
 Activities must commence, and will be effective, on the first day of a
 calendar quarter. Prior to any such resumption, the Terminating Member (i)
 must give the Non-Terminating Member ninety (90) days’ prior written notice
 of its election, (ii) shall acquire from the Non-Terminating Member one half
 of any Member Preferred Contributions made to the Company by the Non-Termination Member during such period
 of time when the Terminating Member was a Terminating Member and pay to the
 Non-Terminating Member an aggregate amount equal to the outstanding amount
 of, and any accrued and unpaid preferred returns on, such Member Preferred
 Contributions being acquired and
 (iii) if the Non-Terminating Member made the election described in clause (B)
 of Section 9.3(b)(ii), the Terminating Member shall acquire from the
 Non-Terminating Member any then outstanding Member Preferred
 Contributions that were acquired by
 the Non-Terminating Member pursuant to clause (B) of Section 9.3(b)(ii) and
 pay to the Non-Terminating Member an aggregate amount equal to the
 outstanding amount of, and any accrued and unpaid preferred returns on, such
 Member Preferred Contributions.
 

 


ARTICLE 10

MISCELLANEOUS PROVISIONS


          10.1)         Risk
Equivalence. Except as otherwise provided in this Agreement, the Members
intend that the exposure for contributed capital by the Members shall be
maintained to the greatest extent practicable on a basis that results in
equivalent financial risk for the Members (the concept of “Risk Equivalence”). To
the extent not detrimental to the viability and financial success of the
overall operations of the Company, except as otherwise provided in this
Agreement, the Members will work in good faith with each other to accomplish
and maintain Risk Equivalence through appropriate measures, distributions or
voluntary contributions to capital; provided, however, that nothing in this
Agreement shall be deemed to require additional capital contributions by the
Members.


          10.2)         Arbitration.
Each dispute, claim and controversy (whether arising during or after the term
of this Agreement) arising out of or relating to this Agreement or its breach,
(including but not limited to the validity of the agreement to arbitrate and
the arbitrability of any matter), shall be settled, upon demand and written
notice by any Member, the Company,
their legal representatives, successors and assigns, by an arbitrator agreed
upon by the parties. If the parties are unable to agree, the dispute will be
settled by three (3) arbitrators, one (1) of whom shall be chosen by the party
making such demand, one (1) by the other party, and the third arbitrator by the
two (2) so chosen. The party demanding arbitration shall in its demand for
arbitration notify the other party of the identity of the arbitrator chosen by
it. The other party shall, within fifteen (15) days after its receipt of such
written demand for arbitration, likewise select its appointee and give written
notice of such selection. If the party receiving such demand for arbitration
fails to notify the other party in writing of the identity of the arbitrator
chosen by it within such fifteen (15) day period, or if the two (2) arbitrators
so selected are unable to agree on the selection of a third arbitrator within a
period of fifteen (15) days after the appointment of the second arbitrator, any
party may request that the Chief Judge of the District Court of Hennepin
County, Minnesota appoint such arbitrator(s). The proceedings shall in all
other respects be conducted in accordance with whichever arbitration rules are
selected by the arbitrator, or a majority vote of the arbitrators, to the
extent such rules are not inconsistent with the provisions of this arbitration
provision. The cost of the proceedings shall be shared equally by the parties,
provided, however, that each party shall be solely responsible for the costs
and expenses of its own legal counsel and any experts or consultants
representing or assisting such party in connection with the proceedings. Unless
otherwise agreed upon, the place of arbitration proceedings shall be Hennepin
County, Minnesota. The decision of the arbitrator, or a majority of the three
(3) arbitrators, shall be final and binding on all parties. Except as otherwise
provided in this Section 10.2, such arbitration shall be


- 22 -





governed by the commercial arbitration rules of the American
Arbitration Association. This Section 10.2 shall survive termination of the
Agreement. Notwithstanding the provisions of this Section 10.2, decisions to be
made hereunder by the Board shall not be subject to arbitration or contested in
any court as all of such decisions shall be final and binding on the Members
and their respective heirs, legal representatives, successors, and assigns;
provided, that the Board is acting within the scope of its authority pursuant
to the terms of this Agreement.


          10.3)         Equitable
Relief. Section 10.2 shall not preclude the Company, or any Governor,
Member, officer, or their legal representatives, successors and assigns from seeking an injunction, specific
performance, or other equitable relief with respect to any dispute, claim and
controversy arising out of or relating to this Agreement or its breach.


          10.4)         Notice.
Any notice, demand, consent, authorization or other communication which is
required to be given under this Agreement shall be in writing and shall be
deemed to be valid and duly given if hand-delivered, telecopied, couriered
overnight, or if mailed by registered or certified mail, return receipt
requested and postage prepaid, as follows: (i) if to the Company to the Chief
Manager at the principal office of the Company; (ii) if to a Governor, to the
Governor at the address shown on the Company’s records for such Governor; and,
(iii) if to a Member, to such Member at the address shown on the Company’s
records for such Member. Each notice, demand, request or communication which
shall be delivered, mailed or transmitted in the manner described above shall
be deemed to be received for all purposes three (3) business days after it is
deposited in the mail as provided in this Agreement or upon actual presentation
to the addressee.


          10.5)         Amendment.
This Agreement together with all exhibits contains the entire understanding of
the Members governing their business relationship and the conduct of the affairs of the Company and may be amended only
upon the written agreement of all the Members.


          10.6)         Limitation
on Benefits of this Agreement. It is the explicit intention of the Members
that no Person other than the Members and the Company is or shall be entitled
to bring any action to enforce any provision of this Agreement against any
Member or the Company, and that the covenants, undertakings and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the Members (or their respective heirs, legal
representatives, successors and assigns as permitted pursuant to this
Agreement) and the Company.


          10.7)         General.
Subject to any provisions contained in this Agreement restricting assignment,
this Agreement shall be binding upon and shall inure to the benefit of the
Members and their respective successors and permitted assigns. This Agreement,
the rights and obligations of the parties to this Agreement, and any claims or
disputes relating to this Agreement, shall be governed by and construed in
accordance with the laws of the State of Minnesota. The Members agree that the
Company’s assets are not and will not be suitable for partition. The Members
waive any right of partition or any right to take any action that otherwise
might be available to them for
the purpose of severing their relationship with the Company or interest in
assets held by the Company from the interest of the other Members. The
representations, warranties, indemnifications, and covenants in this Agreement
shall survive the signing and delivery of this Agreement. All pronouns and any
variations shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the Person may require. References to
“include,” “includes” and “including” shall be deemed to be followed by the
words “without limitation.” Article and Section headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions contained
in this Agreement. To facilitate execution, this Agreement may be executed in
as many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all


- 23 -





Persons required to bind any party, appear on each counterpart; but it
shall be sufficient that the signature of, or on behalf of, each party, or that
the signatures of the Persons required to bind any party, appear on one or more
of the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties to this
Agreement.


          10.8)         Limitation
on Damages. Notwithstanding anything to the contrary contained in this
Agreement, none of the Members or any of their Affiliates will be liable for
any special, consequential, incidental or punitive damages of the Company,
another Member or any of their respective Affiliates based upon, arising out of
or relating to this Agreement, any provision of this Agreement or the breach,
performance, enforcement, validity or invalidity thereof (other than any special, consequential,
incidental or punitive damage components of claims and awards against the
Company, another Member or any of their respective Affiliates by third
parties).


          10.9)         Insurance. Each Member (a) shall use
commercially reasonable efforts to obtain insurance coverage with respect to
such Member’s obligations hereunder and (b) upon request of the other Member at
any time and from time to time during the Term, shall provide to such other
Member evidence, reasonably satisfactory to such other Member, of the
effectiveness of such insurance coverage.


[Signature Page Follows]


- 24 -





          IN WITNESS
WHEREOF, the Members have executed this Agreement effective as of the date
first above written.


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 DPTS
 MARKETING LLC

 
	
  

 	
  

 
	
  

 	
  

 	
 /s/ Carlos R. Cuervo

 	
  

 
	
  

 	
 By

 	
 Carlos R.
 Cuervo

 
	
  

 	
 Its

 	
 Chief
 Manager

 
	
  

 	
  

 	
  

 
	
  

 	
 DAKOTA
 PLAINS MARKETING, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 /s/ Gabriel G. Claypool

 	
  

 
	
  

 	
 By

 	
 Gabriel G.
 Claypool

 	
  

 
	
  

 	
 Its

 	
 Chief
 Executive Officer

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PETROLEUM
 TRANSPORT SOLUTIONS, LLC

 
	
  

 	
  

 
	
  

 	
  

 	
 /s/ Ronald Crowell

 	
  

 
	
  

 	
 By

 	
 Ronald
 Crowell

 	
  

 
	
  

 	
 Its

 	
 Sr. Vice
 President-Finance

 	
  

 






	
  

 	
  

 	
  

 
	
 [

 	
 Signature Page to DPTS Marketing
 LLC

 Amended and Restated Member Control Agreement

 	
 ]