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EXHIBIT 3.10
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
SHAMROCK LOGISTICS GP, LLC
This Limited Liability Company Agreement (this "Agreement") of SHAMROCK
LOGISTICS GP, LLC is entered into and executed by Diamond Shamrock Refining and
Marketing Company (the "Member"), as of June 5, 2000. In consideration of the
covenants, conditions and agreements contained herein, the Member, who upon the
date hereof is the sole Member of the Company, hereby determines as follows:
1. FORMATION.
SHAMROCK LOGISTICS GP, LLC (the "Company") has been formed as a
Delaware limited liability company by the filing of a Certificate of Formation
(the "Certificate") on December 7, 1999, under and pursuant to the Delaware
Limited Liability Company Act, as amended from time to time (the "Act").
2. NAME.
The name of the Company is, and the business of the Company shall be
conducted under the name of, "SHAMROCK LOGISTICS GP, LLC." The name of the
Company may be changed from time to time by amendment of this Agreement and the
Certificate. The Company may transact business under an assumed name by filing
an assumed name certificate in the manner prescribed by applicable law.
3. TERM.
The Company commenced its existence on the effective date of the filing
of the Certificate and shall continue in existence until it is dissolved and
terminated by the affirmative action of the Member.
4. OFFICE.
The registered office of the Company required by the Act to be
maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate, or such other place as the Member may
designate in the manner provided by law. The registered agent for service of
process at such address shall be the initial registered agent named in the
Certificate, or such other person as the Member may designate in the manner
provided by law.
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5. PURPOSE.
The purpose and business of the Company shall be to (i) serve as the
general partner of Riverwalk Logistics, L.P., a Delaware limited partnership and
the general partner (the "General Partner") of each of Shamrock Logistics, L.P.,
a Delaware limited partnership (the "Partnership") and Shamrock Logistics
Operations, L.P., a Delaware limited partnership (the "Operating Partnership"),
and (ii) engage in any lawful activity for which limited liability companies may
be organized under the Act. The Company, the General Partner, the Partnership
and the Operating Partnership are collectively referred to herein as the
"Entities."
6. MEMBER.
The name and business or mailing address of the Member is:
Diamond Shamrock Refining and Marketing Company
0000 Xxxxx Xxxx 0000 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
7. MANAGEMENT.
(a) Powers and Duties. As provided in this Agreement, all management
powers over the business and affairs of the Company shall be (i) exclusively
vested in a board of directors (the "Board of Directors") and (ii), subject to
the Board of Directors, the officers of the Company (the "Officers"), which
Directors and Officers shall collectively constitute "managers" of the Company
within the meaning of the Act. Except as otherwise specifically provided in this
Agreement, the authority and functions of the Board of Directors on the one hand
and of the Officers on the other hand shall be identical to the authority and
functions of the board of directors and officers, respectively, of a corporation
organized under General Corporation Law of the State of Delaware. Accordingly,
except as otherwise specifically provided in this Agreement, the business and
affairs of the Company shall be managed under the direction of the Board of
Directors, and the day-to-day activities of the Company shall be conducted on
the Company's behalf by the Officers who shall be agents of the Company.
In addition to the powers that now or hereafter may be granted
to managers under the Act and to all other powers granted under any provision of
this Agreement, the Board of Directors and the Officers shall have the full
power and authority to do all things on such terms as they, in their sole
discretion, may deem necessary or appropriate to conduct, or cause to be
conducted, the business and affairs of each of the Entities, on its own behalf
and in its capacity as the general partner of the General Partner of the
Partnership and the Operating Partnership, including: (i) the making of any
expenditures, the lending or borrowing of money, the assumption or guarantee of,
or other contracting for, indebtedness and other liabilities, the issuance of
evidences of indebtedness and the incurring of any other obligations; (ii) the
making of tax, regulatory and other filings, or rendering of periodic or other
reports to governmental or other agencies having jurisdiction over the business
or assets of any of the Entities; (iii) the use
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of the assets of the Entities (including cash on hand) for any purpose
consistent with the terms of this Agreement and the repayment of obligations of
any of the Entities; (iv) the negotiation, execution and performance of any
contracts, conveyances or other instruments; (v) the distribution of cash of any
of the Entities; (vi) with respect to any of the Entities, as applicable, the
selection, engagement and dismissal of Officers, employees and agents, outside
attorneys, accountants, engineers, consultants and contractors and the
determination of their compensation and other terms of employment or hiring;
(vii) the maintenance of such insurance for the benefit of any of the Entities,
as it deems necessary or appropriate; (viii) the acquisition or disposition of
assets by any of the Entities; (ix) the formation of, or acquisition of an
interest in, or the contribution of property to, any other entity by any of the
Entities; (x) the control of any matters affecting the rights and obligations of
any of the Entities, including the commencement, prosecution and defense of
actions at law or in equity and otherwise engaging in the conduct of litigation
and the incurring of legal expense and the settlement of claims and litigation;
and (xi) the indemnification of any person against liabilities and contingencies
to the extent permitted by law and this Agreement.
(b) Number of Directors; Initial Directors. The Board of Directors
shall consist of not less than one and not more than nine members, with the
actual number to be as determined from time to time as determined by the Member,
in its sole discretion, by resolution or otherwise. The Member, in its sole
discretion, by resolution or otherwise, may appoint the members of the Board of
Directors. The Member or the members of the Board of Directors may, in the
manner provided in Section 7(d), fill any vacancies in the Board of Directors,
however created. The initial five Directors shall be Xx. Xxxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx, Mr. Xxxx Xxxxx, Xx. Xxxx X. Xxxxxx and Xx. Xxxxxxx X.
Xxxxxxxxx.
(c) Voting; Quorum; Required Vote for Action. Unless otherwise required
by the Act:
(i) each member of the Board of Directors shall have one vote;
(ii) the presence at a meeting of a majority of the members of
the Board of Directors shall constitute a quorum at any such meeting for the
transaction of business; and
(iii) the act of a majority of the members of the Board of
Directors present at a meeting at which a quorum is present shall be deemed to
constitute an act of the Board of Directors.
(d) Vacancies. In case any vacancy shall occur on the Board of
Directors because of death, resignation, retirement, disqualification, removal,
an increase in the authorized number of Directors or any other cause, such
vacancy may be filled either by act of the Member or by majority approval of the
then member(s) of the Board of Directors.
(e) Regular Meetings. Regular meetings of the Board of Directors shall
be held on such dates and at such times and places, within or without the State
of Delaware, as shall from
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time to time be determined by the Board of Directors, provided that the Board of
Directors shall hold at least four regular meetings in each year. In the absence
of any such determination, such meetings shall be held at such times and places,
within or without the State of Delaware, as shall be designated by the Chairman
of the Board of Directors on not less than two calendar days' advance notice
(specifying the time and place of the meeting and the agenda therefor) to each
Director, given verbally or in writing either personally, by telephone, by
facsimile transmission, by mail or by telegram.
(f) Special Meetings. Special meetings of the Board of Directors shall
be held at the call of any Director at such times and places, within or without
the State of Delaware, as he or she shall designate, on not less than two
calendar days' advance notice (specifying the time and place of the meeting and
the agenda therefor) to each Director, given verbally or in writing either
personally, by telephone, by facsimile transmission, by mail or by telegram.
(g) Waiver of Notice. Notice of any regular or special meeting of the
Board of Directors, or any committee thereof, need not be given to any member of
the Board of Directors or any committee thereof if waived by him or her in
writing, whether before or after such meeting is held, or if he or she shall
sign the minutes or attend the meeting.
(h) Manner of Acting. Members of the Board of Directors, or any
committee thereof, may participate in any meeting of the Board of Directors or
such committee by means of telephone conference or similar communications
equipment by means of which all persons participating therein can hear each
other, and participation in a meeting by such means shall constitute presence in
person at such meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all persons serving on the Board of Directors or such committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or such
committee.
(i) Compensation. The Member, by a resolution or resolutions, may fix,
and from time to time change, the compensation of Directors. Each Director shall
be entitled to reimbursement from the Company for his or her reasonable expenses
incurred in attending meetings of the Board of Directors or any committee
thereof.
(j) Committees. The Member of the Company may, by resolution, designate
one or more committees, each committee to consist of two or more members of the
Board of Directors, which to the extent provided in said resolution or
resolutions shall have and may exercise the powers and authority of the Board of
Directors as provided in Section 7(a).
(k) Audit Committee. The Board of Directors shall establish an Audit
Committee, which shall be comprised of three independent directors, who are not
employees or affiliates of the Entities. The Audit Committee shall perform such
functions and have such powers as required or contemplated by the rules of the
New York Stock Exchange and the Securities and Exchange Commission.
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(l) Committee Procedure. Except as otherwise provided herein, each
committee established pursuant to this Agreement shall adopt its own rules
governing the time, place and method of holding its meetings and the conduct of
its proceedings and shall meet as provided by such rules or by resolution
adopted by the Member. Unless otherwise provided by any such rules or
resolutions, notice of the time and place of each meeting shall be given to each
member of such committee as provided herein with respect to notices of special
meetings of the Board of Directors. Each committee shall keep regular minutes of
its proceedings and report the same to the Board of Directors and to the Member
when required.
8. RESTRICTIONS ON THE BOARD OF DIRECTORS' AUTHORITY.
The Board of Directors may not take any action in contravention of this
Agreement, including: (i) any act that would make it impossible to carry on the
ordinary business of any of the Entities, except as otherwise provided in this
Agreement; (ii) possessing property of any of the Entities, or assigning any
rights in specific property of any of the Entities, for other than a purpose
related to one or more Entities; or (iii) amending or modifying this Agreement
in any manner, except as otherwise provided in this Agreement. Except as
otherwise specifically provided in this Agreement or by resolution approved by
not less than a majority of the Board of Directors, (i) no Director or group of
Directors shall have any actual or apparent authority to enter into contracts on
behalf of, or to otherwise bind, any of the Entities, nor take any action in the
name of or on behalf of the Entities or conduct any business of the Entities
other than by action of the Board of Directors taken in accordance with the
provisions of this Agreement, and (ii) no Director shall have the power or
authority to delegate to any Person such Director's rights and powers as
Director to manage the business and affairs of the Entities.
9. OFFICERS.
(a) Generally. The Member, as set forth below, shall appoint agents of
the Company, referred to as "Officers" of the Company. Unless provided otherwise
by resolution of the Board of Directors, the Officers shall have the titles,
power, authority and duties described below in this Section 9.
(b) Titles and Number. The Officers of the Company shall be the Chief
Executive Officer, the President, any and all Vice Presidents, the Secretary and
any Treasurer, and any and all Assistant Secretaries and Assistant Treasurers.
There shall be appointed from time to time, in accordance with Section 9(c)
below, such Vice Presidents, Secretaries, Assistant Secretaries, Treasurers and
Assistant Treasurers as the Board of Directors may desire. Any person may hold
two or more offices.
(c) Appointment and Term of Office. The Officers shall be appointed by
the Board of Directors at such time and for such term as the Board of Directors
shall determine. Any Officer may be removed, with or without cause, only by the
Board of Directors. Vacancies in any office may be filled only by the Board of
Directors.
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(d) Election of Officers, Qualification and Term. The Officers shall be
appointed annually or at such other interval as the Board of Directors shall
determine. Each such Officer shall hold office until a successor shall have been
duly appointed by the Board of Directors and shall have qualified in his or her
stead unless the Member shall have provided otherwise in any particular case, or
until such Officer shall have resigned and his or her resignation shall have
become effective, or until such Officer shall have been removed in the manner
hereinafter provided.
(e) Removal. Except as otherwise expressly provided in a contract duly
authorized by the Board of Directors, any Officer may be removed, either with or
without cause, at any time by resolution adopted by the Board of Directors.
(f) Resignations. Any Officer may resign at any time by giving written
notice to the Board of Directors. Such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
(g) Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause may be filled for the unexpired
portion of the term by election by the Board of Directors.
(h) Salaries. The salaries of all Officers shall be fixed by the Board
of Directors from time to time, and no officer shall be prevented from receiving
such salary by reason of the fact that he or she is also a Director of the
Company.
(i) Chairman and Vice Chairman of the Board of Directors. The Chairman
of the Board of Directors shall preside at all meetings of the members and of
the Board of Directors. Except where by law the signature of the Chief Executive
Officer and President is required, the Chairman of the Board of Directors shall
possess the same power as the Chief Executive Officer and President to sign all
contracts, certificates and other instruments of the Company which may be
authorized by the Board of Directors. During the absence or disability of the
Chief Executive Officer and President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the Chief
Executive Officer and President and Chief Operating Officer. The Chairman of the
Board of Directors shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by this Agreement or by
the Board of Directors. The Vice Chairman of the Board of Directors shall,
during the absence or disability of the Chairman of the Board of Directors, have
the powers and perform the duties of the Chairman of the Board of Directors and
shall also perform such other duties and may exercise such other powers as from
time to tome may be assigned to him by the Board of Directors. Notwithstanding
anything in this Agreement to the contrary, the Chairman of the Board of
Directors and the Vice Chairman of the Board of Directors may only be removed
from such offices (but not as directors) by an affirmative vote of the majority
of the entire Board of Directors.
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(j) Chief Executive Officer and President. The Chief Executive Officer
and President shall, subject to the control of the Board of Directors and the
Chairman of the Board of Directors (or during his absence or disability, the
Vice Chairman of the Board of Directors), have general supervision of the
business and affairs of the Company and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He shall possess
the power to execute all bonds, mortgages, contracts and other instruments of
the Company requiring a seal, under the seal of the Company, except where
required or permitted by law to be otherwise signed and executed and except that
the other officers of the Company may sign and execute documents when so
authorized by this Agreement, the Board of Directors or the Chief Executive
Officer and President. In the absence or disability of both the Chairman of the
Board of Directors and the Vice Chairman of the Board of Directors, the Chief
Executive Officer and President shall preside at all meetings of the members and
the Board of Directors. The Chief Executive Officer and President shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him by this Agreement or by the Board of Directors and,
notwithstanding any other provision of this Agreement, the Chief Executive
Officer and President may appoint officers of the Company pursuant to and in
accordance with authority granted to him from time to time by the Board of
Directors.
(k) Chief Accounting and Financial Officer. The Chief Accounting and
Financial Officer shall, subject to the control of the Board of Directors, the
Chairman of the Board of Directors (or during his absence or disability, the
Vice Chairman of the Board of Directors), and the Chief Executive Officer and
President, have general supervision of the financial and accounting affairs of
the company. He shall possess the power to enter into long and short-term credit
and financing arrangements on behalf of the Company, contracts of guaranty,
letters of credit, derivatives, contracts with auditors, and such other similar
arrangements on behalf of the company as he may deem advisable, all within the
company's parent's general corporate limits of authority.
(l) Vice Presidents. At the request of the Chief Executive Officer and
President or in his absence or in the event of his inability or refusal to act
(and only in the absence of the Chairman of the Board of Directors and the Vice
Chairman of the Board of Directors who would otherwise have the powers and
perform the duties of the Chief Executive Officer and President), the Vice
President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the Chief
Executive Officer and President, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Chief Executive Officer and
President. Each Vice President shall perform such other duties and have such
other powers as the Board of Directors from time to time may prescribe. If there
be no Chairman of the Board of Directors, no Vice Chairman of the Board of
Directors, and no Vice President, the Board of Directors shall designate the
officer of the Company who, in the absence of the Chief Executive Officer and
President or in the event of the inability or refusal of the Chief Executive
Officer and President to act, shall perform the duties of the Chief Executive
Officer and President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer and President.
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(m) Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of members and record all the proceedings thereat in
a book or books to be kept for that purpose; the Secretary shall also perform
like duties for the standing committees when required. The Secretary shall give,
or cause to be given, notice of all meetings of the members and special meetings
of the Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or President, under whose supervision he
shall be. If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the members and special meetings of the Board of
Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Company and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Company and to attest the affixing by his
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
(n) Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Board of Directors. The Treasurer shall
disburse the funds of the Company as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the President
and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the Company. If required by the Board of Directors,
the Treasurer shall give the Company a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Company,
in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Company.
(o) Assistant Secretaries. Except as may be otherwise provided in this
Agreement, Assistant Secretaries, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of
Directors, the Chief Executive Officer and President, any Vice President, if
there be one, or the Secretary, and in the absence of the Secretary or in the
event of his disability or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
(p) Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors, the Chief Executive Officer and President, any
Vice President, if there be one, or the
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Treasurer, and in the absence of the Treasurer or in the event of his disability
or refusal to act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Treasurer. If required by the Board of Directors, an Assistant Treasurer
shall give the Company a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and of the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Company.
(q) Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Company the power to choose such other
officers and to prescribe their respective duties and powers.
(r) Powers of Attorney. The Company may xxxxx xxxxxx of attorney or
other authority as appropriate to establish and evidence the authority of the
Officers and other Persons.
(s) Delegation of Authority. Unless otherwise provided by resolution of
the Board of Directors, no Officer shall have the power or authority to delegate
to any Person such Officer's rights and powers as an Officer to manage the
business and affairs of the Company.
10. CAPITAL CONTRIBUTION.
The Member has contributed to the Company the assets described on
Exhibit A attached hereto.
11. ADDITIONAL CONTRIBUTIONS.
The Member is not required to make any additional capital contributions
to the Company.
12. ALLOCATION OF PROFITS AND LOSSES.
The Company's profits and losses shall be allocated one hundred percent
(100%) to the Member.
13. DISTRIBUTIONS.
Distributions shall be made one hundred percent (100%) to the Member of
the Company at the times and in the aggregate amounts determined by the Member.
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14. GOVERNING LAW.
This Agreement shall be governed by, and construed under, the internal
laws of the State of Delaware, without regard to principles of conflicts of
laws, with all rights and remedies being governed by said laws.
15. INDEMNIFICATION.
(a) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Company or is or was serving at the request of the
Company as a director, officer, employee or agent of another company or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan ("Indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified an held harmless by the Company to the
fullest extent permitted or required by the Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader indemnification
rights than such law permitted the Company to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees, judgements,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such Indemnitee in connection therewith;
provided, however, that, except as provided in Section 15(c) with respect to
proceedings to enforce rights to indemnification, the Company shall indemnify
any such Indemnitee in connection with a proceeding (or part thereof) initiated
by such Indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Company.
(b) Right to Advancement of Expenses. The right to indemnification
conferred in this Section 15(b) shall include the right to be advanced by the
Company the expenses (including, without limitation, attorneys' fees and
expenses) incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided, however, that,
if the Act so requires, an advancement of expenses incurred by an Indemnitee in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such Indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Company of an undertaking (an "Undertaking"), by or on behalf of
such Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (a "Final Adjudication") that such Indemnitee is not entitled to be
indemnified for such expenses under this Section 15(b) or otherwise. The rights
to indemnification and to the advancement of expenses conferred in Sections
15(a) and 15(b) shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the Indemnitee's heirs, executors and administrators.
(c) Right of Indemnitee to Bring Suit. If a claim under Section 15(a)
or 15(b) is not paid in full by the Company within 60 calendar days after a
written claim has been received by
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the Company, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 calendar days, the Indemnitee may
at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Company to recover an advancement of expenses pursuant to
the terms of an Undertaking, the Indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In (i) any suit brought by
the Indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the Indemnitee to enforce a right to an advancement of expenses)
it shall be a defense that, and (ii) any suit brought by the Company to recover
such expenses upon a Final Adjudication that, the Indemnitee has not met any
applicable standard for indemnification set forth in the Act. Neither the
failure of the Company (including its Board of Directors, independent legal
counsel or its Member) to have made a determination prior to the commencement of
such suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
the Act, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel or its Member) that the Indemnitee has not
met such applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. If any suit
brought by the Indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Company to recover an
advancement of expenses pursuant to the terms of an Undertaking, the burden or
proving that the Indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section 15 or otherwise shall be on the
Company.
(d) Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Section 15 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, this Agreement, vote of members or disinterested directors or
otherwise.
(e) Insurance. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss under
the Act.
(f) Indemnification of Employees and Agent of the Company. The Company
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Company to the fullest extent of the provisions of this Section 15
with respect to the indemnification and advancement of expenses of directors and
officers of the Company.
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16. AMENDMENT.
Subject to the other provisions contained herein, all amendments to
this Agreement shall be made in accordance with the following requirements.
Amendments to this Agreement may be proposed only by of the Board of Directors
and shall become effective upon its subsequent approval by the Board of
Directors.
IN WITNESS WHEREOF, the Member has executed this Agreement
effective as of the date first written above.
MEMBER:
DIAMOND SHAMROCK REFINING AND
MARKETING COMPANY
By: /S/ X.X. XXXXXXXXX
--------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President, General Counsel and
Corporate Secretary
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EXHIBIT A
CAPITAL CONTRIBUTION; INTEREST
MEMBER CAPITAL CONTRIBUTION INTEREST
Diamond Shamrock Refining
and Marketing Company $1,000 100%
0000 Xxxxx Xxxx 0000 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
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