Exhibit 10.13


DPTS MARKETING LLC


MEMBER CONTROL AGREEMENT


          THIS MEMBER
CONTROL AGREEMENT, (the “Agreement”) is made effective as of April 29,
2011 (the “Effective Date”), by and between Dakota Plains Marketing, LLC, a
Minnesota limited liability company, Petroleum Transport Solutions, LLC, a
Minnesota Limited Liability Company (“PTS”), and DPTS Marketing LLC, a
Minnesota Limited Liability Company (the “Company”).


RECITALS:


          A.          Dakota
Plains Marketing, LLC and PTS are all of the Members of the Company.


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


          C.          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).

 
	
  

 	
  

 
	
  

 	
           (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.

 


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           (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.

 
	
  

 	
  

 
	
  

 	
           (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.

 


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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.

 
	
  

 	
  

 
	
  

 	
           (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 shall make an initial cash capital contribution of One Hundred dollars
 ($100) by May 4, 2011.

 
	
  

 	
  

 
	
  

 	
           (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 Dakota Plains
 Transport, Inc. 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

 


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 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 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)          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
 audited by independent auditors on a quarterly basis;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 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.

 
	
  

 	
  

 	
  

 
	
  

 	
           (d)          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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           (e)          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.

 
	
  

 	
  

 	
  

 
	
  

 	
           (f)          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.

 
	
  

 	
  

 	
  

 
	
  

 	
           (g)          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.

 
	
  

 	
  

 	
  

 
	
  

 	
           (h)          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).

 
	
  

 	
  

 	
  

 
	
  

 	
           (i)          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.

 
	
  

 	
  

 
	
  

 	
  

 	
 (j)          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 

 


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 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.

 
	
  

 	
  

 	
  

 
	
  

 	
           (k)          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
 Dakota Plains Marketing, LLC shall become the Trading Member. If, after
 Dakota Plains Marketing, LLC so becomes the Trading Member, PTS resumes its
 participation in the Trading Activities and Dakota Plains Marketing, LLC
 terminates its participation in the Trading Activities, then PTS shall become
 the Trading Member again.

 
	
  

 	
  

 	
  

 
	
  

 	
           (l)          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 both
 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 shall make an
 initial Member Preferred Contribution to the Company in the amount of Ten
 Million dollars ($10,000,000). The cash proceeds of such Member Preferred
 Contributions shall be provided by each Member to the Company by May 4,
 2011. 

 
	
  

 	
  

 	
  

 
	
  

 	
           (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.

 


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           (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,
 2018 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, 2018 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. 


          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 


- 8 -









	
  

 	
  

 	
  

 
	
 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);

 
	
  

 	
  

 	
  

 
	
  

 	
                     (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 

 


- 9 -









	
  

 	
  

 
	
  

 	
 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; 

 
	
  

 	
  

 
	
  

 	
                     (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, 2018,
 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) 

 


- 10 -









	
  

 	
  

 
	
  

 	
 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.

 
	
  

 	
  

 
	
  

 	
           (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,
 2018, 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, 2018, 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).

 
	
  

 	
  

 
	
  

 	
                     (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.

 


- 11 -









	
  

 	
  

 
	
  

 	
           (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 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

 






- 12 -








	
  

 	
  

 
	
  

 	
 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.

 


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 

 


- 13 -









	
  

 	
  

 
	
  

 	
 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.

 
	
  

 	
  

 
	
           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,
 including the calculation of the amounts of outstanding Member Preferred
 Contributions, the amounts of preferred returns thereon, the Distribution
 Percentage and the amounts payable to the Members pursuant to 

 


- 14 -









	
  

 	
  

 
	
  

 	
 Section 5.1 and Section 9.2, shall be performed by the Trading
 Member, and the reasonable market rate of fees for such services shall be
 paid by the Company as set forth in Exhibit B.

 
	
  

 	
  

 
	
  

 	
           (d)          Member
 Expenses. Except as specifically provided in this Agreement to the
 contrary, Dakota Plains Marketing, LLC 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.

 


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. Such number shall not be increased unless
all of the Members of the Company agree in writing to increase the number of
Governors. 


          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 


- 15 -









	
  

 	
  

 
	
 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, 2018 (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:

 
	
  

 	
  

 
	
  

 	
                     (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

 


- 16 -









	
  

 	
  

 
	
  

 	
                     (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). 

 
	
  

 	
  

 
	
  

 	
                     (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.

 


- 17 -









	
  

 	
  

 
	
  

 	
  

 
	
  

 	
           (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).
 

 
	
  

 	
  

 
	
  

 	
           (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


- 18 -





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 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 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.


- 19 -





          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]


- 20 -





          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/ Gabe
 Claypool

 
	
  

 	
 By Gabriel
 G. Claypool

 
	
  

 	
 Its Chief
 Manager

 
	
  

 	
  

 
	
  

 	
 PETROLEUM
 TRANSPORT SOLUTIONS, LLC

 
	
  

 	
  

 
	
  

 	
 /s/ Paul Nobel

 
	
  

 	
 By Paul
 Nobel

 
	
  

 	
 Its Senior
 Vice President – Finance (Land)

 


- 21 -





Exhibit A
To

Member Control Agreement

Of

DPTS Marketing LLC


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Member

 	
  

 	
 Units

 	
  

 	
 Capital
 Contribution

 	
  

 
	
  

 
	
 Dakota
 Plains Marketing, LLC

 	
  

 	
 1,000

 	
  

 	
 $100

 	
  

 
	
  

 
	
 Petroleum
 Transport Solutions, LLC

 	
  

 	
 1,000

 	
  

 	
 $100

 	
  

 


- 22 -





Exhibit B
To

Member Control Agreement

Of

DPTS Marketing LLC


Accounting Fees


General Accounting


Accounting fees relating to any and all other operations of the Company
shall be charged at a rate equal to $0.0225 per barrel for every barrel of
crude oil successfully marketed by the Company.


- 23 -





APPENDIX A


TAX
DEFINITIONS, CAPITAL ACCOUNTS

AND SPECIAL ALLOCATIONS


          1.
Tax Definitions. 


          “Adjusted
Capital Account Deficit” means the deficit balance (if any) in a Member’s
Capital
Account as of the end of any taxable year of the Company, after:


                    (a)
          crediting to such
Capital Account any amount which such Member is obligated to restore
pursuant to this Agreement or is deemed obligated to restore pursuant to the
minimum gain chargeback provisions of Treas. Reg. § 1.704-2(f)
and (g), and 


                    (b)          charging
to such Capital Account any adjustments, allocations or distributions described
in the qualified income offset provisions of Treas. Reg. § 1.704-1(b)(2)(ii) which are required to be charged to such Capital
Account pursuant to this Agreement.


          “Company
Minimum Gain” means the amount determined in accordance with the principles of Treas. Reg. § 1.704-2(d) and 1.704-2(g).


          “Contributed
Assets” has the meaning set forth in Section 4(a) below.


          “Depreciation” means, for
each taxable year of the Company or other period, an amount equal to the
depreciation allowable with respect to an asset for such taxable year or other
period; provided, however, that if the Gross Asset Value of an asset differs
from its adjusted basis for federal income tax purposes at the beginning of
such taxable year or other period, Depreciation shall be an amount that bears
the same ratio to such beginning Gross Asset Value as the federal income tax
depreciation with respect to such asset for such taxable year or other period bears
to such beginning adjusted tax basis; and provided further, that if the federal
income tax depreciation for such taxable year or other period is zero,
Depreciation shall be determined with reference to such beginning Gross Asset
Value using any reasonable method selected by the Members.


          “Gross Asset
Value” shall be determined as follows:


                    (a)          the
initial Gross Asset Value of any asset contributed by a Member to
the Company subsequent to the date hereof shall be the fair market value of
such asset, as agreed to by the Board;


                    (b)          the
Gross Asset Value of all Company assets shall be adjusted to equal their
respective fair market values (taking Section 7701(g) of the Code into account)
as determined by the Board as of the following times: (i) the acquisition
of an additional interest in the Company by any new or existing Member
in exchange for more than a de minimis Capital Contribution or in connection
with the performance of services; (ii) the distribution by the Company to a Member of more than a de minimis amount of Company
assets as consideration for an interest in the Company, but only if, in the
case of either (i) or (ii), the Board reasonably determines that such adjustment is necessary or appropriate
to reflect the relative economic interests of the Members in the Company, (iii) the liquidation
of the Company within the meaning of Treas. Reg. § 1.704-1(b)(ii)(g) and/or
(iv) the forfeiture by a defaulting Member of its interest in the Company;


                    (c)          the
Gross Asset Value of any Company asset distributed to any Member
shall be the fair market value (taking Section 7701(g) of the Code into
account) of such asset on the date of distribution as determined by the distributee
and the Board;


                    (d)          the
Gross Asset Values of Company assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such Company assets pursuant
to Section 732(d), Section 


- 24 -





734(b) or Section 743(b) of the Code, but
only to the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Treas. Reg. §
1.704-l(b)(2)(iv)(m) and 1.704-1(b)(2)(iv)(f); provided, however, that Gross
Asset Values shall not be adjusted pursuant to this subsection (d) to the
extent that the Board determines that an adjustment pursuant to subsection (b)
of this definition is necessary or appropriate in connection with a transaction
that would otherwise result in an adjustment pursuant to this subsection (d); 


                    (e)          if
the Gross Asset Value of any Company asset has been determined or adjusted
pursuant to subsection (a), (b), (c) or (d), such Gross Asset Value shall
thereafter be adjusted by the Depreciation that would be taken into account
with respect to such asset for purposes of computing gains or losses from the
disposition of such asset; and


                    (f)          Gross
Asset Value of any Company asset that was not contributed by a Member means the
adjusted basis of such Company asset for federal income tax purposes.


          “Profits”
and “Losses” shall mean,
for each taxable year of the Company or other period, an amount equal to the
Company’s taxable income or loss, as the case may be, for such taxable year or
period, determined in accordance with Section 703(a) of the Code (for this
purpose, all items of income, gain, loss and deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in taxable
income or loss), with the following adjustments:


                    (a)          any
income of the Company that is exempt from federal income tax and not otherwise
taken into account in computing Profits or Losses pursuant to this subparagraph
shall be added to such taxable income or loss;


                    (b)          any
expenditures of the Company described in Section 705(a)(2)(B) of the Code or
treated as Section 705(a)(2)(B) of the Code expenditures pursuant to Treas. Reg. § 1.704-l(b)(2)(iv)(i), and not otherwise taken into account in computing
Profits or Losses pursuant to this definition shall be subtracted from such
taxable income or loss. For purposes of this Agreement, any deduction for a
loss on a sale or exchange of Company property that is disallowed to the
Company under Section 267(a)(1) or Section 707(b) of the Code shall be treated
as a Section 705(a)(2)(B) of the Code expenditure.


                    (c)          in
the event the Gross Asset Value of any Company asset is adjusted pursuant to
subparagraph (b) or (c) of the definition thereof, the amount of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Profits or Losses;


                    (d)          gain
or loss resulting from the disposition of any Company asset with respect to
which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Gross Asset Value of the asset disposed of,
notwithstanding that the adjusted tax basis of such asset differs from its
Gross Asset Value;


                    (e)          in
lieu of the Depreciation taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such taxable year of
the Company or other period, computed in accordance with the definition
thereof;


                    (f)          to
the extent an adjustment to the adjusted tax basis of any Company asset
pursuant to Section 734(b) of the Code is required, pursuant to Treas. Reg. § 1.704-l(b)(2)(iv)(m)(4), to be taken into account in determining Capital
Accounts as a result of a distribution other than in liquidation of a Member’s
interest in the Company, the amount of such adjustment shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) from the disposition of such asset and
shall be taken into account for purposes of computing Profits or Losses; and


                    (g)          notwithstanding
any other provision of this definition, any items which are specially allocated
pursuant to Section 3 below shall not be taken into account in computing
Profits and Losses.


          “Regulations” or “Treas. Reg.” shall
mean a regulation issued by the United States Treasury Department and relating
to matters arising under the Code.


- 25 -





          “Regulatory
Allocations” has the meaning set forth in Section 3(h) below.


          “Member
Nonrecourse Debt” has the same meaning as the term “partner nonrecourse debt” set forth
in Treas. Reg. § 1.704-2(b)(4).


          “Member
Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member
Nonrecourse Debt, equal to the Company Minimum Gain that would result if such
Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in
accordance with the provisions of Treas. Reg. § 1.704-2(i)(3) relating to
“partner nonrecourse debt minimum gain”.


          “Member
Nonrecourse Deductions” has the same meaning as the term “partner nonrecourse
deductions” set forth in Treas.
Reg. § 1.704-2(i)(1) and 1.704-2(i)(2).


          “Nonrecourse
Deductions” has the meaning set forth in Treas. Reg. § 1.704-2(b)(1).


                   
 2.          Capital Accounts.

                    (a)
Except as provided in this Section 2, the Capital Account of each Member shall
be (i) increased by (A) the amount of cash and the Gross Asset Value of any
property contributed to the Company by such Member (net of liabilities secured
by the property or to which the property is subject that the Company is
considered to assume or take subject to pursuant to Section 752 of the Code),
and (B) Profits and any other items of income and gain allocated to such
Member, (ii) decreased by (A) the amount of cash and the Gross Asset Value
of any property distributed to such Member (net of liabilities secured by the
property or to which the property is subject that such Member is considered to
assume or take subject to pursuant to Section 752 of the Code) and (B) the
Losses and any other items of deduction and loss allocated to such Member, and
(iii) otherwise maintained in accordance with Treas. Reg. § 1.704-1(b)(2)(iv)
in order for the allocation of Profits and Losses to have “substantial economic
effect” in accordance with Treas. Reg. § 1.704-1(b)(2).


                    (b)
For purposes of this Section 2, (i) an assumption of a Member’s unsecured
liability by the Company shall be treated as a distribution of money to that
Member and (ii) an assumption of the Company’s unsecured liability by a Member
shall be treated as a cash contribution to the Company by that Member.


                    (c)
In the event of a contribution of money or other property to the Company (other
than a contribution made ratably by all existing Members), an issuance of an
interest in the Company in connection with the performance of services or the
forfeiture by a Member of its interest in the Company, then the Capital
Accounts for the Members shall be adjusted in respect of the hypothetical
“book” gain or loss that would have been realized by the Company if all Company
assets had been sold for their Gross Asset Values in a cash sale.


                    (d)
In the event that Company assets other than money are distributed to a Member
in liquidation of the Company, or in the event that assets of the Company other
than money are distributed to a Member in kind, in order to reflect unrealized
gain or loss, Capital Accounts for the Members shall be adjusted in respect of
the hypothetical “book” gain or loss that would have been realized by the
Company if the distributed assets had been sold for their Gross Asset Values in
a cash sale. In the event of the liquidation of a Member’s Shares, in order to
reflect unrealized gain or loss, Capital Accounts for the Members shall be
adjusted in respect of the hypothetical “book” gain or loss that would have
been realized by the Company if all Company assets had been sold for their
Gross Asset Values in a cash sale.


                    (e)
If Company property is reflected on the books of the Company at a book value
that differs from the adjusted tax basis of such property, the Members’ Capital
Accounts shall be adjusted in accordance with Treas. Reg. §
1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization,
and gain or loss, as computed for book purposes, with respect to such property.


                    (f)
Upon any transfer of all or part of an interest in the Company, as permitted by
this Agreement, the Capital Account (or portion thereof) of the transferor that
is attributable to the transferred interest (or portion thereof) shall carry
over to the transferee.


                    (g)
The foregoing provisions of this Section 2 and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to
comply with Treas. Reg. § 1.704-1 and 1.704-2 and shall be 


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interpreted and applied in a manner
consistent with such Regulations and any amendment or successor provision
thereto. The Board shall cause appropriate modifications to be made if
unanticipated events might otherwise cause this Agreement not to comply with
such Regulations, so long as such modifications do not cause a material change
in the relative economic benefit of the Members under this Agreement.


                    3.        
  Special Tax Allocations. The following special allocations shall be
made in the following order:


                    (a)          Minimum Gain
Chargeback. Subject to the
exceptions set forth in Treas. Reg. § 1.704-2(f), if
there is a net decrease in Company Minimum Gain during a taxable year of the
Company, each Member shall be specially allocated items of
income and gain for such taxable year (and, if necessary, for subsequent years)
in an amount equal to such Member’s
share of the net decrease in Company Minimum Gain during such taxable year
(which share of such net decrease shall be determined under Treas. Reg. § 1.704-2(g)(2)). It is intended that this Section 3(a) shall constitute a
“minimum gain chargeback” as provided by Treas. Reg. § 1.704-2(f) and shall be interpreted
consistently therewith.


                    (b)          Member
Nonrecourse Debt Minimum Gain Chargeback. Subject to the exceptions contained in Treas. Reg. § 1.704-2(i)(4), if there is a
net decrease in Member Nonrecourse Debt Minimum Gain during a taxable year of
the Company, any Member with a share of such Member Nonrecourse Debt Minimum
Gain (determined in accordance with Treas. Reg. § 1.704-2(i)(5)) as of the
beginning of such taxable year shall be specially allocated items of income and
gain for such taxable year (and, if necessary, for subsequent years) in an
amount equal to such Member’s share of the net decrease in Member Nonrecourse
Debt Minimum Gain (which share of such net decrease shall be determined under
Treas. Reg. § 1.704-2(i)(4) and 1.704-2(j)(2)). It is intended that this
Section 3(b) shall constitute a “partner nonrecourse debt minimum gain
chargeback” as provided by Treas. Reg. §
1.704-2(i)(4) and shall be interpreted consistently therewith.


                    (c)          Qualified
Income Offset. In the event
any Member unexpectedly
receives any adjustments, allocations, or distributions described in Treas.
Reg. § 1.704-l(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5), or
1.704-l(b)(2)(ii)(d)(6) (modified as appropriate, by Treas. Reg. §
1.704-2(g)(1) and 1.704-2(i)(5)), items of Company income and gain for such
taxable year shall be specially allocated to the Member in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, any Adjusted Capital
Account Deficit of the Member
as quickly as possible, provided that an allocation pursuant to this
Section 3(c) shall be made if and only to the extent that the Member would have an Adjusted Capital Account
Deficit after all other allocations have been tentatively made as if this
Section 3(c) were not in this Appendix A.


                    (d)          Gross Income
Allocations. To the extent
required by the Regulations, in the event a Member has a deficit balance in its
Capital Account at the end of any taxable year of the Company in excess of the
sum of (A) the amount such Member is required to restore pursuant to the
provisions of this Agreement, if any, and (B) the amount such Member is
deemed obligated to restore pursuant to Treas. Reg. § 1.704-2(g) and
1.704-2(i)(5), such Member shall be specially allocated items of Company income
and gain in the amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 3(d) shall be made if and only to the
extent that such Member would have an Adjusted Capital Account Deficit after
all other allocations have been tentatively made as if this Section 3(d)
were not in this Appendix A.


                    (e)          Nonrecourse
Deductions. Any Nonrecourse
Deductions shall be allocated to the Members in the same manner as Losses are allocated pursuant to Section 4.5 of
this Agreement.


                    (f)          Member
Nonrecourse Deductions. Any
Member Nonrecourse Deductions shall be allocated to the Member that bears the
economic risk of loss for the Member Nonrecourse Debt to which such deductions
relate as provided in Treas. Reg. § 1.704-2(i)(1). If more than one Member
bears the economic risk of loss, such deduction shall be allocated between or
among such Members in accordance with the ratios in which such Members share
such economic risk of loss.


                    (g)          Certain
Section 754 Adjustments. To
the extent any adjustment to the adjusted tax basis of any Company asset pursuant
to Section 732(d), Section 734(b) or Section 743(b) of the Code is
required, pursuant to Treas. Reg. § 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts as the result of a distribution to a
Member in complete liquidation of its interest in the Company, the amount of
such adjustment to 


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Capital Accounts shall be treated as an item
of gain (if the adjustment increases such basis) and an item of loss (if the
adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Members in accordance with their interests in the Company as
determined under Treas. Reg. § 1.704-1(b)(3) in the event Treas. Reg. §
1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was
made in the event Treas. Reg. § 1.704-l(b)(2)(iv)(m)(4) applies.


                    (h)          Limit on
Loss Allocations.
Notwithstanding the provisions of Section 4.5 of this Agreement or any other
provision of this Agreement to the contrary, Losses (or items thereof) shall
not be allocated to a Member if such allocation would cause or increase a
Member’s Adjusted Capital Account Deficit and shall be reallocated to the other
Members in proportion to their Distribution Percentage, subject to the
limitations of this Section 3(h).


                    (i)          Curative
Allocations. The
allocations under Sections 3(a) through (h) above (such allocations, the “Regulatory Allocations”) are intended to comply with certain
requirements of the Regulations. It is the intent of the Members and the
Company that, to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of
other items of income, gain, loss or deduction pursuant to this Agreement. Therefore,
notwithstanding any other provision of this Agreement to the contrary (other
than the Regulatory Allocations), the Company shall make such offsetting
special allocations of income, gain, loss or deduction in whatever manner the
Board determines appropriate so that, after such offsetting allocations are
made, each Member’s Capital Account balance is, to the extent possible, equal
to the Capital Account balance such Member would have had if the Regulatory
Allocations were not part of the Agreement and all items were allocated
pursuant to Section 4.5 of the Agreement. For purposes of this Section 3(i),
future Regulatory Allocations under Sections 3(a) through (h) that are likely
to offset other Regulatory Allocations previously made shall be taken into account.


                    4.       
   Tax Allocations: Code Section 704(c).

                    (a)          For
federal, state and local income tax purposes only, with respect to any assets
contributed by a Member to the Company (“Contributed
Assets”) which have a Gross Asset Value on the date of their contribution
which differs from the Member’s adjusted basis therefore as of the date of
contribution, the allocation of Depreciation and gain or loss with respect to
such Contributed Assets shall be determined in accordance with the provisions
of Section 704(c) of the Code and the Regulations promulgated thereunder using
the method described under Treas.
Reg. § 1.704-1(b)(iv)(2)(f). For
purposes of this Agreement, an asset shall be deemed a Contributed Asset if it
has a basis determined, in whole or in part, by reference to the basis of a
Contributed Asset (including an asset previously deemed to be a Contributed
Asset pursuant to this sentence).


                    (b)          In
the event the Gross Asset Value of any Company asset is adjusted pursuant to
subparagraph (b) of the definition thereof, subsequent allocations of
income, gain, loss and deduction with respect to such asset shall take account
of any variation between the adjusted basis of such asset for federal income
tax purposes and its Gross Asset Value in the same manner as under Section
704(c) of the Code and Treas.
§ 1.704-1(b)(iv)(2)(f).


                    (c)          Allocations
pursuant to this Section 4 are solely for purposes of federal, state, and local
taxes and shall not affect, or in any way be taken into account in computing
any Member’s Capital Account or share of Profits, Losses, other items, or
distributions pursuant to any provision of this Agreement.


                         5.          Allocations
in the Event of Transfer. If all or any portion of any Units are
transferred to a substitute Member
during any taxable year of the Company, Profits, Losses, each item thereof and
all other items attributable to such Units for such period shall be divided and
allocated between the transferor and transferee by applying any method which
satisfies Code Section 706(d). The
Tax Matters Member may revise,
alter, or otherwise modify, without the consent of the other Members, the method of allocation as necessary to
comply with Code Section 706 and Treasury Regulations or rulings promulgated
thereunder.


                    6.          Profits
Interest Safe Harbor. The Tax Matters Member is authorized to amend
this Agreement, without the consent of the other Members, to comply with any
safe harbor finalized by the United States Department of the Treasury or the
Internal Revenue Service relating to the tax treatment of a transfer of an
interest in the 


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Company for services. For
example, this Section 6 shall apply to any safe harbor finalized by Internal
Revenue Service notice or Regulations as successor to the proposed safe harbor
described in Internal Revenue Service Notice 2005-43, 2005-1 C.B. 1221. In the
event any such safe harbor is finalized and elected by the Company, all Members
agree to comply with all the requirements of such safe harbor and any
amendments to this Agreement that the Tax Matters Member effects pursuant to
this Section 6.


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