Common use of Managing Member Clause in Contracts

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections 9.3 and 9.4, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. CWI shall serve as Managing Member until its removal which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to and in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in the event of fraud, theft or misappropriation of funds by Managing Member, the removal of Managing Member shall be the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the Members. (b) If a Member believes that Managing Member has committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions to be taken by Managing Member hereunder.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections 9.3 5.3 and 9.45.4, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. CWI shall serve Managing Member may be removed from its position as Managing Member until its removal which shall by the other Member (the “Removing Member”) only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member determination of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to and Removal Event in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement5.1(b) below and, except in the event of fraud, theft or misappropriation of funds by Managing Memberupon such removal, the removal of Removing Member shall thereafter serve as the Managing Member shall be of the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the MembersCompany. (b) If In the event a Removing Member believes that a Removal Event has occurred with respect to Managing Member has committed fraudMember, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Removing Member may deliver written notice (the “Removal Notice”) to the Member (or non-Member, if applicable) then-serving as Managing Member (the “Removed Party”) setting forth in reasonable detail the basis for that determination anddetermination. If, if Managing Member after the receipt of a Removal Notice, the Removed Party does not resignresign in its capacity as Managing Member, as the case may be, within five (5) days after its receipt of the Removal Notice, the Removing Member may (i) with respect to a Removal Event described in clause (ii) or clause (iii) of the definition of “Removal Event”, remove the Removed Party from its position as Managing Member, as the case may be, upon written notice thereof to the Removed Party and without any further action required by the Removing Member, and the Removing Member shall become the Managing Member, or (ii) with respect to a Removal Event described in clause (i) of the definition of “Removal Event”, submit the same to arbitration pursuant to Section 9.119.10. Upon a final decision or judgment of the arbitrator(sarbitrator that a Removal Event has occurred pursuant to clause (i) that of the definition of “Removal Event”, the Removed Party shall be removed as Managing Member committed fraudand the Removing Member shall become the Managing Member. In the event a Removal Notice is delivered with respect to a Removal Event that allegedly occurred with respect to OP2 Member, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of then OP2 Member’s authority as Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During suspended, and any and all action to be taken on behalf of the Company or any of its subsidiaries shall require the unanimous written approval of the Members during the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, the Removal Notice until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions arbitrator as to be taken by Managing Member hereunderwhether such Removal Event did in fact occur.

Managing Member. (a) The management of Topaz shall be vested in the Managing Member, which shall be a "manager" within the meaning of the LLC Act, and except as otherwise provided in this Topaz LLC Agreement, the Managing Member shall, subject shall have full power and authority to manage the business and affairs of Topaz to the limitations set forth extent provided in Sections 9.3 and 9.4, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those mattersLLC Act, and no other Member shall have any such management power or authority. The Topaz Majority Member shall be the Managing Member at all times prior to perform any and all other acts or activities incident theretothe appointment of a replacement Managing Member in accordance with this Section 6.1(a). CWI The Topaz Minority Member shall serve have the right to remove the Topaz Majority Member as Managing Member until upon the occurrence of any of the following events: (i) the Bankruptcy of El Paso, EPED Holding, the Topaz Majority Member or the Share Trust; (ii) a material breach by the Topaz Majority Member, in its capacity as Managing Member, of its obligations as Managing Member under this Topaz LLC Agreement, which breach continues and is uncured in all material respects on the date occurring 30 days after the Topaz Majority Member, El Paso or any Affiliate of El Paso receives written notice or has actual knowledge thereof; (iii) the gross negligence or willful misconduct of the Topaz Majority Member, in its capacity as Managing Member, in the performance of its obligations as Managing Member under this Topaz LLC Agreement; (iv) the removal which of (x) Garnet as the Managing Member of Diamond pursuant to Section 6.1(a) of the Diamond LLC Agreement or (y) EPED B as the Managing Member of Garnet pursuant to Section 6.1(a) of the Garnet LLC Agreement; (v) any representation or warranty made by El Paso under Section 4.3 of the Participation Agreement shall only be permitted upon prove to have been incorrect in any material respect when made (or deemed made) and such misrepresentation continues to remain materially incorrect for 30 days after the earlier of (x) El Paso having actual knowledge of such misrepresentation and (y) the giving of written notice of such misrepresentation to El Paso by the Class A Shareholder; (vi) the 60th day following the occurrence of a Note Trigger Event; (vii) a Specified Equity Event or (viii) the occurrence of an El Paso Debt Obligation Repayment Event of the type described in clause (b) of the definition thereof. The Topaz Minority Member shall exercise such right of removal by providing written notice of such exercise to the Topaz Majority Member after the occurrence of any of the foregoing events and such notice shall become effective (x) in the case of any notice under clause (i) or (vii) above, immediately and (y) in the resignation or voluntary disassociation case of Managing Member from the Company; any notice under clause (ii), (iii), (iv), (v), (vi), (viii), (ix), (x) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iiixi) above, upon the filing by Managing Member expiration of a voluntary petition the applicable grace and cure Topaz LLC Agreement periods, if any, referred to in Bankruptcy or any such clause; provided, however, that, in each case, if the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to Share Purchase Option is exercised and consummated in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to 7.1 of the contrary set forth in this Investor Shareholders Agreement, except in then such notice shall be deemed to have been revoked and shall be of no further force or effect. On the event of fraud, theft or misappropriation of funds by Managing Memberdate any notice under this Section 6.1(a) becomes effective, the removal of Managing Topaz Minority Member or its designee shall (unless revoked or unless the Topaz Majority Member shall be actively contesting such removal in good faith by appropriate proceedings) without further act become the Members’ sole Managing Member of Topaz for all purposes of this Topaz LLC Agreement and exclusive remedy the Topaz Majority Member shall no longer be the Managing Member. The Topaz Minority Member shall also have the right to remove the Topaz Majority Member as Managing Member by delivering written notice of its exercise of such right of removal to the Topaz Majority Member no earlier than five days prior to the end of any Fiscal Quarter and all other rights and remedies are hereby and irrevocably waived no later than the tenth day of the next succeeding Fiscal Quarter (each a "QUARTERLY MANAGEMENT REPLACEMENT WINDOW"); provided, that if such QMR Notice is not given by the Members. (b) If a Topaz Minority Member believes that Managing Member has committed fraudduring any such Quarterly Management Replacement Window, theft or misappropriation of funds in then the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Topaz Majority Member shall be removed continue as Managing Member. During If a QMR Notice is delivered during a Quarterly Management Replacement Window and El Paso has not exercised its Share Purchase Option in accordance with Section 7.1 of the period from Investor Shareholders Agreement on or prior to the tenth day following such delivery, then such QMR Notice shall become effective on such tenth day following delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspendedany such QMR Notice, and the unanimous approval Topaz Minority Member or its designee shall, on such tenth day, without further act become the Managing Member of Topaz for all purposes of this Topaz LLC Agreement and the Topaz Majority Member shall no longer be the Managing Member; provided, however, that if El Paso exercises its Share Purchase Option in accordance with Section 7.1 of the Members Investor Shareholders Agreement on or prior to such tenth day after delivery of such QMR Notice, then such QMR Notice shall be required for any payments or other actions not become effective until the sixtieth day following the date of such exercise by El Paso of its Share Purchase Option and then if, and only if, the Share Purchase Option shall not have been consummated prior to be taken by Managing Member hereundersuch sixtieth day.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections Section 9.3 and 9.4, establish the 2012 Budget or any subsequent Approved Annual Budget, operate the business affairs of the Company, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. Managing Member will devote such time, effort and skill to the Business of the Company as Managing Member reasonably deems necessary. CWI Member shall serve as Managing Member until until, subject to any consents required under the Loan Documents (which consents shall be obtained prior to and as a pre-condition of such removal), its removal which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the CompanyAgreement; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWICWI Member’s Membership Interest by AM EFL Member pursuant to and in accordance with Section 10.310.4; or (v) following the delivery of a Response Notice by CWI Member pursuant to and in accordance with Section 10.4 whereupon CWI Member elects to purchase one hundred percent (100%) of EFL Member’s Membership Interest, CWI Member fails to complete the purchase on or before the Closing Date (other than as a result of EFL Member’s default) (a “CWI Member Purchase Default”). Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in the event of fraud, gross negligence, willful misconduct, theft or misappropriation of funds by Managing Member, Managing Member’s removal pursuant to the removal terms and conditions of Managing Member this Section 9.1 shall be the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the Members. Upon the removal of CWI Member as Managing Member pursuant to any of clauses (i), (ii), (iii), (iv) or (v) of this Section 9.1, EFL Member may either become Managing Member or may inform CWI Member of its designated candidate for Managing Member and provide CWI Member with a written summary of such Person’s experience and qualifications (which designated candidate shall then become Managing Member); provided, however, in the event that Managing Member is removed as the result of EFL Member’s purchase of CWI Member’s Membership Interest pursuant to Section 10.4 below or for a CWI Member Purchase Default, CWI Member shall have no right to receive notice or a written summary of such candidate’s experience and qualifications. (b) If a EFL Member believes that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, EFL Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if CWI Member does not resign as Managing Member, submit the same to arbitration pursuant to Section 9.10. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions to be taken by Managing Member hereunder.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections Section 9.3 and 9.4, establish the Initial Budget or any subsequent Approved Company Budget for the Company (as opposed to the operating budget for the Property, which is to be prepared by Operator in accordance with the Hotel Management Agreement), operate the business affairs of the Company, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto, in each instance in accordance with the terms of this Agreement and the then current Approved Company Budget. Managing Member will devote such time, effort and skill to the Business of the Company as Managing Member reasonably deems necessary. CWI shall serve as Managing Member until its removal removal, which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.19.1(b)) of Managing Member as having committed fraud, theft or gross negligence, willful misconduct, theft, misappropriation of funds funds, and/or a material default in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a that causes material adverse effect on harm to the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty ninety (12090) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM FHR pursuant to and in accordance with Section 10.310.5; or (v) following the delivery of a Response Notice by CWI pursuant to and in accordance with Section 10.5 whereupon CWI elects to purchase one hundred percent (100%) of FHR’s Membership Interest, CWI fails to complete the purchase on or before the Closing Date (other than as a result of FHR’s default)(a “CWI Purchase Default”). Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in In the event of fraud, theft gross negligence, willful misconduct, theft, or misappropriation of funds by Managing Member, FHR shall also have the removal of Managing Member shall be the Members’ sole and exclusive remedy and right to pursue all other rights and remedies are hereby and irrevocably waived with respect to actual losses (but not consequential or speculative losses) suffered or incurred by the MembersCompany or FHR as a result thereof. Upon the removal of CWI as Managing Member pursuant to any of clauses (i), (ii), (iii), (iv) or (v) of this Section 9.1, FHR shall become Managing Member. (b) If a Member FHR believes that Managing Member has committed fraud, theft or gross negligence, willful misconduct, theft, misappropriation of funds or a material default in the performance of (or failure to perform) the obligations of Managing Member under this AgreementAgreement that causes material harm to the Company, such Member FHR may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member CWI does not resignresign as Managing Member, submit the same to arbitration pursuant to Section 9.119.9. Upon Following a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or willful misconduct, theft, misappropriation of funds or a material default in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding that causes material harm to the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member)Company, such Managing Member shall be automatically removed as Managing Member. During the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or theft, misappropriation of fundsfunds or a material default in the performance of (or failure to perform) the obligations of Managing Member under this Agreement that causes material harm to the Company, until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions to be taken by Managing Member hereunder.

Managing Member. (a) ESI is hereby appointed by the Members as the Managing Member shallof the Company. Effective as of the closing of the transactions contemplated by the Purchase Agreement and assignment of the Assigned Interests by NEP Acquisitions through a series of transfers to Blocker I, subject Blocker I will be the Managing Member. Except as provided in Section 7.2(b) or as otherwise expressly provided herein, the Managing Member will, exclusively among the Members, have full power and authority on behalf of the Company to conduct, direct and exercise control over all the limitations set forth in Sections 9.3 activities of the Company, to manage and 9.4, be empowered to set policy for and to make all decisions in respect administer the affairs of the Company and to make all decisions regarding those matters, and do or cause to perform be done any and all other acts or activities incident thereto. CWI shall serve as Managing Member until its removal which shall only be permitted upon considered by the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after necessary or appropriate to conduct the filing thereof; business of the Company without the need for approval by or (iv) any other consent from any other Member, including but not limited to, the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests authority to bind the Company in making contracts and incurring obligations in the Company or the closing of any purchase of one hundred percent (100%) of CWICompany’s Membership Interest by AM pursuant to and in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except name in the event course of fraud, theft or misappropriation of funds by Managing Member, the removal of Managing Member shall be the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the MembersCompany’s business. (b) If a Member believes that The Managing Member has committed fraudmay, theft or misappropriation of funds in at any time, upon not less than 60 Business Days’ notice to the performance of (or failure to perform) other Members resign as the obligations of Managing Member under this Agreement, such Member may deliver written notice to and will in good faith assist the Members with finding a replacement Managing Member setting forth and providing the Company with reasonable assistance in reasonable detail transitioning to the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of new Managing Member); provided, however that, notwithstanding the foregoing, the Managing Member shall not be removed as Managing Member. During permitted to resign unless and until the period from the delivery of written notice to Members have found a replacement Managing Member that pursuant to this Section 7.1. (c) In the event the Managing Member has committed fraud, engages in gross negligence, willful misconductmisconduct or fraud, theft or misappropriation the Members (other than the Managing Member) may remove the Managing Member by written notice to the Managing Member and all other Members, informing the Members of funds, until such removal and designating another Member as the final determination replacement Managing Member (which replacement Managing Member must be selected with the unanimous consent of the arbitrator, Members). (d) Except to the authority of extent that a Member is also the Managing Member shall be suspendedor authority is delegated from the Managing Member, and no Member will have any authority to bind the unanimous approval of Company or transact any business for the Members shall be required for any payments or other actions to be taken by Managing Member hereunderCompany in its capacity as a Member.

Managing Member. (a) The management of Diamond shall be vested in the Managing Member, which shall be a "manager" within the meaning of the LLC Act, and except as otherwise provided in this Diamond LLC Agreement, the Managing Member shall, subject shall have full power and authority to manage the business and affairs of Diamond to the limitations extent provided in the LLC Act, and no other Member shall have any such management power or authority. The Diamond Class B Member shall be the Managing Member at all times prior to the appointment of a replacement Managing Member in accordance with this Section 6.1(a). The Diamond Class A Member shall have the right to remove the Diamond Class B Member as Managing Member upon the occurrence of any of the following events: (i) the Bankruptcy of El Paso, Garnet, the Diamond Class B Member or the Share Trust; (ii) a material breach by (x) the Diamond Class B Member, in its capacity as Managing Member, of its obligations as Managing Member under this Diamond LLC Agreement or (y) the Management Company of any covenant set forth in Sections 9.3 the Management Agreement, which breach, in either case, continues and 9.4is uncured in all material respects on the date occurring 30 days after the Diamond Class B Member, be empowered to set policy for and to make all decisions the Management Company, El Paso or any Affiliate of El Paso receives written notice or has actual knowledge thereof; (iii) the gross negligence or willful misconduct of (x) the Diamond Class B Member, in respect its capacity as Managing Member, in the performance of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. CWI shall serve its obligations as Managing Member until under this Diamond LLC Agreement or (y) the Management Company in the performance of its obligations under the Management Agreement; (iv) the removal which of (x) EPED Holding as managing member of Topaz pursuant to Section 6.1(a) of the Topaz LLC Agreement or (y) EPED B as managing member of Garnet pursuant to Section 6.1(a) of the Garnet LLC Agreement; (v) any representation or warranty made by El Paso under Section 4.3 of the Participation Agreement shall only be permitted upon prove to have been incorrect in any material respect when made (or deemed made) and such misrepresentation continues to remain materially incorrect for 30 days after the earlier of (ix) El Paso having actual knowledge of such misrepresentation and (y) the resignation or voluntary disassociation giving of Managing Member from written notice of such misrepresentation to El Paso by the CompanyClass A Shareholder; (iivi) the judgment or final adjudication 60th day following the occurrence of a Note Trigger Event; (in vii) a procedure Specified Equity Event; (viii) the occurrence of an El Paso Debt Obligation Repayment Event of the type described in this Section 9.1clause (b) of Managing Member as having committed fraudthe definition thereof; (ix) the rendering of any final money judgment, theft enforceable in any competent court, against any of Amethyst, Aquamarine or misappropriation Peridot for payment in an amount in excess of funds $100,000,000, and such judgment shall not be discharged or dismissed or execution thereon stayed within 60 days after entry; (x) the occurrence of any "event of default" pursuant to the terms of any indebtedness or other obligation exceeding in the performance aggregate $10,000,000 in principal amount of (any of Amethyst, Aquamarine or failure Peridot, and such Diamond LLC Agreement indebtedness or obligation becomes due prior to perform) the obligations of Managing Member under this Agreement which has its stated maturity as a material adverse effect on the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing result thereof; or (ivxi) the gift, assignment, hypothecation, sale occurrence of any "event of default" pursuant to the terms of any indebtedness or other transfer obligation (other than, so long as (A) the applicable "event of one hundred percent default" is waived by El Paso or such Affiliate, as the case may be, and (100%B) such "event of CWI’s direct Membership Interests default" does not result in any "event of default" under the terms of any other indebtedness or other obligation of any of Amethyst, Aquamarine or Peridot owing to any Person other than El Paso or an Affiliate of El Paso, any indebtedness or other obligation owing to El Paso or any Affiliate of El Paso) exceeding in the Company or the closing aggregate $100,000,000 in principal amount of any purchase of one hundred percent Amethyst, Aquamarine or Peridot, which "event of default" causes, or permits the holder or holders of such indebtedness or other obligation to cause, such indebtedness or other obligation to become due prior to its stated maturity. The Diamond Class A Member shall exercise such right of removal by providing written notice of such exercise (100%a "SECTION 6.1(a) NOTICE") to the Diamond Class B Member after the occurrence of CWI’s Membership Interest by AM pursuant any of the foregoing events and such notice shall become effective (x) in the case of any notice under clause (i) or (vii) above, immediately and (y) in the case of any notice under clause (ii), (iii), (iv), (v), (vi), (viii), (ix), (x) or (xi) above, upon the expiration of the applicable grace and cure periods, if any, referred to in any such clause; provided, however, that, in each case, if the Share Purchase Option is exercised and consummated in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to 7.1 of the contrary set forth in this Investor Shareholders Agreement, except in then the event Section 6.1(a) Notice shall be deemed to have been revoked and shall be of fraud, theft no further force or misappropriation of funds by Managing Membereffect. On the date a Section 6.1(a) Notice becomes effective, the removal of Managing Diamond Class A Member or its designee shall (unless such notice is revoked or unless the Diamond Class B Member shall be actively contesting such removal in good faith by appropriate proceedings) without further act become the Members’ sole Managing Member of Diamond for all purposes of this Diamond LLC Agreement and exclusive remedy the Diamond Class B Member shall no longer be the Managing Member. The Diamond Class A Member shall also have the right to remove the Diamond Class B Member as Managing Member by delivering written notice of its exercise of such right of removal to the Diamond Class B Member no earlier than five days prior to the end of any Fiscal Quarter and all other rights and remedies are hereby and irrevocably waived no later than the tenth day of the next succeeding Fiscal Quarter (each a "QUARTERLY MANAGEMENT REPLACEMENT WINDOW"); provided, that if such QMR Notice is not given by the Members. (b) If a Diamond Class A Member believes that Managing Member has committed fraudduring any such Quarterly Management Replacement Window, theft or misappropriation of funds in then the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Diamond Class B Member shall be removed continue as Managing Member. During If a QMR Notice is delivered during a Quarterly Management Replacement Window and El Paso has not exercised its Share Purchase Option in accordance with Section 7.1 of the period from Investor Shareholders Agreement on or prior to the tenth day following such delivery, then such QMR Notice shall become effective on such tenth day following delivery and the Diamond Class A Member or its designee shall, on such tenth day, without further act become the Managing Member of Diamond for all purposes of this Diamond LLC Agreement and the Diamond Class B Member shall no longer be the Managing Member; provided, however, that if El Paso exercises its Share Purchase Option in accordance with Section 7.1 of the Investor Shareholders Agreement on or prior to such tenth day after delivery of written notice to Managing Member that Managing Member has committed fraudsuch QMR Notice, gross negligence, willful misconduct, theft or misappropriation of funds, then such QMR Notice shall not become effective until the final determination sixtieth day following the date of the arbitratorsuch exercise by El Paso of its Share Purchase Option and then if, and only if, the authority of Managing Member Share Purchase Option shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions not have been consummated prior to be taken by Managing Member hereundersuch sixtieth day.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections 9.3 and 9.4, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. CWI shall serve as Managing Member until its removal which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to and in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in the event of fraud, theft or misappropriation of funds by Managing Member, the removal of Managing Developer Member shall be the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by initial Managing Member of the MembersCompany. (b) If a Member believes that The Managing Member has shall continue to serve in such capacity until he/it resigns, retires, dies, becomes incapacitated, becomes Bankrupt or; if he/it is removed for cause, which, for purposes hereof, shall include the following acts if committed against the Company: gross negligence, theft, embezzlement, fraud, theft or misappropriation of funds or conviction of a felony relating to the Company. (c) If the Managing Member resigns, then the Managing Member shall have the sole right and authority to appoint the successor Managing Member. If the Managing Member fails to appoint a successor Managing Member, the Investor Members, by a Requisite Unaffiliated Investor Member Vote, shall elect and appoint a successor Managing Member and shall have the further right to remove and appoint all successor Managing Members. (d) A Requisite Unaffiliated Investor Member Vote shall be required to remove the Managing Member for cause and to appoint a successor Managing Member. (e) ▇▇▇▇▇, Amit and/or ▇▇▇▇▇▇▇▇▇ (the “DM Principals”) shall be personally involved in the performance management of the Company and the Project, and shall devote to the Company and the Project a substantial amount of his time, and in any event not less than the amount of time required to manage the affairs thereof. The DM Principals shall undertake to follow this Section 5.2(e). Should a Requisite Unaffiliated Investor Member Vote at any time determine that the DM Principals have failed to comply with the foregoing requirements of this Section 5.2(e) after (i) their having given notice thereof in reasonable detail to the DM Principals and (ii) the DM Principals having failed thereafter to correct such compliance failure (if capable of cure) within 30 days of the giving of such notice (for the avoidance of doubt, so long as one or failure to perform) more DM Principals complies with the requirements of this Section 5.2(e), then the obligations of the DM Principals hereunder shall have been deemed satisfied), then the Unaffiliated Investor Members, acting by a Requisite Unaffiliated Investor Members Vote, shall be entitled to remove the Managing Member under this Agreement, such Member may deliver written notice to and appoint a successor Managing Member setting forth in reasonable detail accordance with Section 5.2(d), provided the basis for that determination and, if Managing Member does not resign, submit Unaffiliated Investor Members shall have theretofore (x) caused the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment purchase of the arbitrator(s) entire Percentage Interest of the Developer Member at a cash purchase price equal to the distributions that Managing Developer Member committed fraud, theft or misappropriation would have received assuming that the Project were sold for the then-value of funds the Project as determined by an appraisal of the Project to be conducted at that time by an independent appraiser selected in good faith jointly by the performance of Developer Member and the Unaffiliated Investor Members (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member“Project’s Appraised Value”), Managing Member shall be removed as Managing Member. During free and clear of all liens, pledges, security interests and other encumbrances (other than liens incurred for the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspendedCompany’s benefit), and the unanimous approval Company was liquidated in accordance with Section 8.2 and (y) procured the release of the Members Developer Member from all obligations under any guaranties it shall be required for have provided (in whatever capacity) in connection with any payments loans or other actions to be taken by Managing Member hereunderobligations of the Company.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections 9.3 5.3 and 9.45.4, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. CWI shall serve Managing Member may be removed from its position as Managing Member until its removal which shall by the other Member (the “Removing Member”) only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member determination of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to and Removal Event in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement5.1(b) below and, except in the event of fraud, theft or misappropriation of funds by Managing Memberupon such removal, the removal of Removing Member shall thereafter serve as the Managing Member shall be of the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the MembersCompany. (b) If In the event a Removing Member believes that a Removal Event has occurred with respect to Managing Member has committed fraudMember, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Removing Member may deliver written notice (the “Removal Notice”) to the Member (or non-Member, if applicable) then-serving as Managing Member (the “Removed Party”) setting forth in reasonable detail the basis for that determination anddetermination. If, if Managing Member after the receipt of a Removal Notice, the Removed Party does not resignresign in its capacity as Managing Member, as the case may be, within five (5) days after its receipt of the Removal Notice, the Removing Member may (i) with respect to a Removal Event described in clause (ii) or clause (iii) of the definition of “Removal Event”, remove the Removed Party from its position as Managing Member, as the case may be, upon written notice thereof to the Removed Party and without any further action required by the Removing Member, and the Removing Member shall become the Managing Member, or (ii) with respect to a Removal Event described in clause (i) of the definition of “Removal Event”, submit the same to arbitration pursuant to Section 9.119.10. Upon a final decision or judgment of the arbitrator(sarbitrator that a Removal Event has occurred pursuant to clause (i) that of the definition of “Removal Event”, the Removed Party shall be removed as Managing Member committed fraudand the Removing Member shall become the Managing Member. In the event a Removal Notice is delivered with respect to a Removal Event that allegedly occurred with respect to CWI Member, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of then CWI Member’s authority as Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During suspended, and any and all action to be taken on behalf of the Company or any of its subsidiaries shall require the unanimous written approval of the Members during the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, the Removal Notice until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions arbitrator as to be taken by Managing Member hereunderwhether such Removal Event did in fact occur.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections Section 9.3 and 9.4, establish the Initial Budget or any subsequent Approved Annual Budget, operate the business affairs of the Company, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto. Managing Member will devote such time, effort and skill to the Business of the Company as Managing Member reasonably deems necessary. CWI Member shall serve as Managing Member until until, subject to any consents required under the Loan Documents (which consents shall be obtained prior to and as a pre-condition of such removal), its removal which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the CompanyAgreement; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWICWI Member’s Membership Interest by AM 800 Canal Member pursuant to and in accordance with Section 10.310.4; or (v) following the delivery of a Response Notice by CWI Member pursuant to and in accordance with Section 10.4 whereupon CWI Member elects to purchase one hundred percent (100%) of 800 Canal Member’s Membership Interest, CWI Member fails to complete the purchase on or before the Closing Date (other than as a result of 800 Canal Member’s default) (a “CWI Member Purchase Default”). Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in the event of fraud, gross negligence, willful misconduct, theft or misappropriation of funds by Managing Member, Managing Member’s removal pursuant to the removal terms and conditions of Managing Member this Section 9.1 shall be the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the Members. Upon the removal of CWI Member as Managing Member pursuant to any of clauses (i), (ii), (iii), (iv) or (v) of this Section 9.1, 800 Canal Member may either become Managing Member or may inform CWI Member of its designated candidate for Managing Member and provide CWI Member with a written summary of such Person’s experience and qualifications (which designated candidate shall then become Managing Member); provided, however, in the event that Managing Member is removed as the result of 800 Canal Member’s purchase of CWI Member’s Membership Interest pursuant to Section 10.4 below or for a CWI Member Purchase Default, CWI Member shall have no right to receive notice or a written summary of such candidate’s experience and qualifications. (b) If a 800 Canal Member believes that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, 800 Canal Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if CWI Member does not resign as Managing Member, submit the same to arbitration pursuant to Section 9.10. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions to be taken by Managing Member hereunder.

Managing Member. (a) Managing Member shall, subject to the limitations set forth in Sections 9.3 and 9.4Section 9.5, the Initial Budget or any subsequent Approved Annual Budget, operate the business affairs of the Company, be empowered to set policy for and to make all decisions in respect of the Company and to make all decisions regarding those matters, and to perform any and all other acts or activities incident thereto, subject to all limitations set forth herein. CWI Managing Member will devote such time, effort and skill to the Business of the Company as Managing Member reasonably deems necessary. CW Member shall serve as Managing Member until until, subject to any consents required under the Existing Loan Documents (which consents shall be obtained prior to and as a pre-condition of such removal), its removal which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the CompanyAgreement; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWICW Member’s Membership Interest by AM Ensemble Member pursuant to and in accordance with Section 10.310.4; or (v) following the delivery of a Response Notice by CW Member pursuant to and in accordance with Section 10.4 whereupon CW Member elects to purchase one hundred percent (100%) of Ensemble Member’s Membership Interest, CW Member fails to complete the purchase on or before the Closing Date (other than as a result of Ensemble Member’s default) (a “CW Member Purchase Default”). Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in the event of fraud, gross negligence, willful misconduct, theft or misappropriation of funds by Managing Member, Managing Member’s removal pursuant to the removal terms and conditions of Managing Member this Section 9.1 shall be the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the Members. Upon the removal of CW Member as Managing Member pursuant to any of clauses (i), (ii), (iii), (iv) or (v) of this Section 9.1, Ensemble Member may either become Managing Member or may inform CW Member of its designated candidate for Managing Member and provide CW Member with a written summary of such Person’s experience and qualifications (which designated candidate shall then become Managing Member); provided, however, in the event that Managing Member is removed as the result of Ensemble Member’s purchase of CW Member’s Membership Interest pursuant to Section 10.4 below or for a CW Member Purchase Default, CW Member shall have no right to receive notice or a written summary of such candidate’s experience and qualifications. (b) If a Ensemble Member believes that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, Ensemble Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if CW Member does not resign as Managing Member, submit the same to arbitration pursuant to Section 9.13. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, willful misconduct, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions to be taken by Managing Member hereunder.

Managing Member. (a) Except as otherwise expressly provided for in this Agreement or in Section 5.7(b) of the Contribution Agreement, the Member that is designated as the “Managing Member” shall have the power and authority to do all things on such terms as it may deem necessary or appropriate to conduct, or cause to be conducted, the business and affairs of the Company. Decisions or actions taken by the Managing Member shall, subject to in accordance with the limitations set forth in Sections 9.3 and 9.4, be empowered to set policy for and to make all provisions of this Agreement shall constitute decisions in respect of or actions by the Company and to make all decisions regarding those mattersshall be binding on each Member, Officer and to perform any and all other acts or activities incident thereto. CWI shall serve as Managing Member until its removal which shall only be permitted upon the earlier employee of (i) the resignation or voluntary disassociation of Managing Member from the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to and in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in the event of fraud, theft or misappropriation of funds by Managing Member, the removal of The Managing Member shall be designated, and shall exercise such delegated authority, in accordance with this Section 8.3 and the Members’ sole and exclusive remedy and all other rights and remedies are hereby and irrevocably waived by the Membersprovisions of this Agreement. (b) If a Member believes that The initial Managing Member has committed fraudis ETI. It, theft and any successor Managing Member that is designated in accordance with this Section 8.3(b), shall cease to be the Managing Member upon the earliest to occur of the following events: (25) it shall Dispose of all of its Membership Interest or misappropriation (26) it shall resign as Managing Member by giving notice thereof to the other Members (which resignation shall become effective 90 days after delivery of funds such notice, unless an earlier or later effectiveness is agreed to by the Managing Member and the Board). Upon the occurrence of either of the events described in the performance of immediately-preceding sentence, the Board shall designate another Member (or failure that consents to performserve as such) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon as a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement (but expressly excluding the acts of a rogue employee of Managing Member who was not acting at the express direction of successor Managing Member. (c) LIMITATIONS OF DUTIES; INDEMNIFICATION. THE MANAGING MEMBER SHALL BE LIABLE TO THE COMPANY AND THE OTHER MEMBERS FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN THE MANAGEMENT OF THE COMPANY AND FOR ITS INTENTIONAL VIOLATION OF LAW; BUT THE MANAGING MEMBER, ITS REPRESENTATIVES, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (THE “MANAGING-MEMBER INDEMNIFIED PARTIES”) SHALL NOT BE LIABLE TO THE Ecosphere Energy Services, LLC Limited Liability Company Agreement 24 COMPANY, ANY OTHER MEMBER OR REPRESENTATIVE, OR ANY OFFICER OR EMPLOYEE OF THE COMPANY FOR ANY ACTS OR OMISSIONS THAT DO NOT CONSTITUTE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW, INCLUDING THE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR RESPONSIBILITY (SHORT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW) OF THE MANAGING MEMBER OR ITS REPRESENTATIVE (THE “MANAGING-MEMBER INDEMNIFIED ACTS”); AND THE COMPANY SHALL INDEMNIFY, PROTECT, DEFEND, RELEASE AND HOLD HARMLESS EACH MANAGING-MEMBER INDEMNIFIED PARTY FROM AND AGAINST ANY CLAIMS ASSERTED BY OR ON BEHALF OF ANY PERSON (INCLUDING ANOTHER MEMBER) THAT ARISE OUT OF, RELATE TO OR ARE OTHERWISE ATTRIBUTABLE TO, DIRECTLY OR INDIRECTLY, THE MANAGING-MEMBER INDEMNIFIED ACTS. (d) In exchange for performing its obligations as the Managing Member, the Managing Member shall be removed reimbursed by the Company for all costs and expenses (including a reasonable allocation of personnel, benefits, office space and other general and administrative costs) incurred in connection with its management of the Company, but not, in any event, in an amount or amounts that are in excess of what the Company would pay for the same or similar services obtained on an arms-length basis from unaffiliated Persons, as determined in good faith by the Board. (e) Each Member, other than the Managing Member. During , agrees that it will not exercise any authority it may have under the period from Act to bind or commit the delivery of written notice Company to Managing Member that Managing Member has committed fraudagreements, gross negligencetransactions or other arrangements, willful misconduct, theft or misappropriation of funds, until the final determination to hold itself out as an agent of the arbitrator, the authority of Managing Member shall be suspended, and the unanimous approval of the Members shall be required for any payments or other actions to be taken by Managing Member hereunderCompany.

Managing Member. (a) The Managing Member shall (i) conduct the business of the Company and each Acquisition Vehicle on a day-to-day basis, including, without limitation land planning, political strategy, community engagement, public relations, design, and permitting and use commercially reasonable efforts to cause such operations to be conducted in accordance with the Budget and the Operating Plan and such other guidelines as shall be adopted by the Executive Committee, which duties may be discharged by delegating the same to the asset or development management agreements, (ii) perform the duties assigned to it hereunder, and (iii) carry out all decisions and resolutions of the Executive Committee. The initial Managing Member shall be Sponsor, which shall remain the Managing Member unless Sponsor is removed as Managing Member following a For Cause event. The Managing Member shall have no authority to retire or resign from its position as the Managing Member. In the event the Managing Member is removed following a For Cause event, the holders of a majority of the Percentage Interests held by Persons other than the Managing Member that was removed For Cause (and its Affiliates) shall appoint a replacement thereof, which replacement shall be the non-Managing Member or an Affiliate thereof (and which successor Managing Member shall be subject to the same For Cause removal provisions set forth herein). Subject to the limitations set forth in this Agreement and the guidelines adopted by the Executive Committee, the Managing Member, on behalf of the Company, shall have the power and authority to enter into contracts on behalf of the Company or any Acquisition Vehicle in accordance with the current Budget and Operating Plan, to make expenditures as are required to implement such Budget and Operating Plan, but only to the extent that any such expenditures do not constitute Major Decisions. The Managing Member may rely on written instructions (including by e-mail) from a representative appointed in writing by the non-Managing Member from time to time that the non-Managing Member has (and that its Executive Committee members have) approved certain actions and agreements. ▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed as such initial representative of Investor in its capacity as the initial non-Managing Member. Subject to the Managing Member’s right to charge certain matters to the Company as provided in Section 8.01 and 8.03, the Managing Member shall not be entitled to receive any fees or other compensation in respect of its activities as the Managing Member, and will not receive reimbursement for compensation payable to any of its employees or other direct or indirect overhead which may be attributable to the performance of its duties as the Managing Member, except as expressly provided for in the Budget. (b) Notwithstanding anything to the contrary contained in Section 7.01(a)(vi), if following thirty (30) days after the beginning of any calendar year the Budget and Operating Plan or any item or portion thereof shall not have been approved by the Executive Committee, then: (i) Any items or portions of the Budget and Operating Plan and amounts of expenses provided therein which have been so approved shall become operative immediately and the Managing Member shall be entitled to expend funds in accordance with those operative portions; (ii) Any items or portions of the Budget and Operating Plan and amounts of expenses provided therein that are uncontrollable such as non-disputed property taxes, insurance premiums for policies approved by the Executive Committee and utilities shall become operative at their then current rate immediately and the Managing Member shall be entitled to expend funds in accordance with those operative portions; and (iii) With respect to the Budget, the Managing Member shall be entitled to, and shall, expend, in respect of non-capital, recurring expenses in any month of the then-current calendar year, an amount equal to the budgeted amount for the corresponding month of the immediately preceding calendar year, as set forth on the immediately preceding calendar year Budget after giving effect to any dispositions or other material changes to the Company Property during the prior or current year; provided, however, that if any contract approved by the Executive Committee or entered into pursuant to the provisions hereof or any management agreements provides for an automatic increase in costs thereunder after the beginning of the then current calendar year, then the Managing Member shall be entitled to expend the amount of such increase. (c) In addition to and without limiting any other duties set forth in this Agreement, the Managing Member shall, subject to the limitations set forth availability of adequate funds therefor in Sections 9.3 the Budget and 9.4from Revenues, be empowered Capital Contributions or other sources, and provided that the Managing Member may delegate such obligations to set policy for any other third parties with whom the Company may contract pursuant to the terms hereof, and in accordance with the then current Budget and Operating Plan: (i) Oversee, coordinate and process the operations, including without limitation, the management on a day-to-day basis of any and all of the assets which comprise the Company Property, prepare all communications with relevant third parties; and, subject to make the terms of this Agreement manage the vertical construction of improvements on the Pads; (ii) Subject to the availability of funds therefor, take all decisions proper and necessary actions reasonably required to cause the Company, all Acquisition Vehicles and all third parties at all times to perform and comply with the provisions (including without limitation, any provisions requiring the expenditure of funds by the Company or an Acquisition Vehicle) of any loan commitment, agreement, mortgage, lease, or other contract, instrument or agreement to which the Company or any Acquisition Vehicle is a party or which affects any Company Property or the operation thereof; (iii) Subject to the availability of funds therefor, pay in respect a timely manner all non-disputed operating expenses of the Company and each Acquisition Vehicle in accordance with the terms of the Budget and the Operating Plan or as otherwise provided herein; (iv) Deposit all receipts from operations of the Company Property to make all decisions regarding those mattersa separate account established and maintained by the Managing Member in the name of the Company, and not commingle those receipts with any other funds or accounts of the Managing Member; (v) If the Managing Member subcontracts with third parties or any of its Affiliates (at no cost to perform the Company unless approved by the Executive Committee) for the performance of any of the services to be performed by the Managing Member, then the Managing Member shall supervise and oversee the performance of the services performed by such third parties or Affiliates; (vi) Authorize other persons to execute and deliver such documents on behalf of the Company as the Executive Committee may deem necessary or desirable for the Company’s business, including, without limitation, guarantees and indemnities; (vii) Perform, or cause to be performed, all of the Company’s obligations under any agreement to which the Company or an Acquisition Vehicle is a party; (viii) Enter into contracts on behalf of the Company and make expenditures as are required to operate and manage the Company and the Company Property, in operations and financial reporting to oversee the operations of the Company Property, costs of financing, fees and disbursements of attorneys, financial advisors, accountants, appraisers, brokers and engineers, and all other acts or activities incident thereto. CWI fees, costs and expenses directly attributable to the business and operations of the Company (excluding travel expenses) shall serve as Managing Member until its removal which shall only be permitted upon the earlier of (i) the resignation or voluntary disassociation of Managing Member from borne by the Company; (ii) the judgment or final adjudication (in a procedure described in this Section 9.1) of Managing Member as having committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement which has a material adverse effect on the Company; or (iii) the filing by Managing Member of a voluntary petition in Bankruptcy or the failure by Managing Member to cause an involuntary filing of Bankruptcy against Managing Member to be dismissed within one hundred twenty (120) days after the filing thereof; or (iv) the gift, assignment, hypothecation, sale or other transfer of one hundred percent (100%) of CWI’s direct Membership Interests in the Company or the closing of any purchase of one hundred percent (100%) of CWI’s Membership Interest by AM pursuant to and in accordance with Section 10.3. Managing Member’s service may not be terminated in any other way. Notwithstanding anything to the contrary set forth in this Agreement, except in In the event of fraud, theft any such costs and expenses are or misappropriation of funds have been paid by Managing any Member, the removal of Managing such Member shall be the Members’ sole entitled to be reimbursed for such payment so long as such payment is reasonably necessary for Company business or operations and exclusive remedy and all other rights and remedies are hereby and irrevocably waived has been approved by the Members. (b) If a Member believes that Managing Member has committed fraud, theft Executive Committee or misappropriation of funds is expressly authorized in the performance of (or failure to perform) the obligations of Managing Member under this Agreement, such Member may deliver written notice to Managing Member setting forth in reasonable detail the basis for that determination and, if Managing Member does not resign, submit the same to arbitration pursuant to Section 9.11. Upon a final decision or judgment of the arbitrator(s) that Managing Member committed fraud, theft or misappropriation of funds in the performance of (or failure to perform) the obligations of Managing Member under this Agreement or the appropriate Budget or Operating Plan (but expressly excluding including any permitted variance hereunder). Notwithstanding the acts of a rogue employee of Managing Member who was not acting at the express direction of Managing Member), Managing Member shall be removed as Managing Member. During the period from the delivery of written notice to Managing Member that Managing Member has committed fraud, gross negligence, willful misconduct, theft or misappropriation of funds, until the final determination of the arbitrator, the authority of Managing Member shall be suspendedforegoing, and without affecting any contrary terms (if any) in any asset or development management agreements, in no event shall the unanimous approval of the Members shall be required Company have any obligation to pay or reimburse any Member for any payments or other actions to be taken by Managing Member hereundergeneral overhead expense of such Member.