AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF NEW FORTRESS INTERMEDIATE LLC DATED AS OF FEBRUARY 4, 2019

ARTICLE VII MANAGEMENT

42

Section 7.1

The Managing Member; Fiduciary Duties

42

Section 7.2

Officers

42

Section 7.3

Warranted Reliance by Officers on Others

43

Section 7.4

Indemnification

44

Section 7.5

Maintenance of Insurance or Other Financial Arrangements

44

Section 7.6

Resignation or Termination of Managing Member

44

Section 7.7

No Inconsistent Obligations

45

Section 7.8

Reclassification Events of PubCo

45

Section 7.9

Certain Costs and Expenses

45

ARTICLE VIII ROLE OF MEMBERS

46

Section 8.1

Rights or Powers

46

Section 8.2

Voting

47

Section 8.3

Various Capacities

47

Section 8.4

Investment Opportunities

47

ARTICLE IX TRANSFERS OF INTERESTS

48

Section 9.1

Restrictions on Transfer

48

Section 9.2

Notice of Transfer

49

Section 9.3

Transferee Members

50

Section 9.4

Legend

50

ARTICLE X ACCOUNTING; CERTAIN TAX MATTERS

51

Section 10.1

Books of Account

51

Section 10.2

Tax Elections

51

Section 10.3

Tax Returns; Information

51

Section 10.4

Company Representative

52

Section 10.5

Withholding Tax Payments and Obligations

52

ARTICLE XI DISSOLUTION AND TERMINATION

54

Section 11.1

Liquidating Events

54

Section 11.2

Bankruptcy

55

Section 11.3

Procedure

55

Section 11.4

Rights of Members

56

Section 11.5

Notices of Dissolution

56

Section 11.6

Reasonable Time for Winding Up

56

Section 11.7

No Deficit Restoration

56

ARTICLE XII GENERAL

57

Section 12.1

Amendments; Waivers

57

Section 12.2

Further Assurances

57

Section 12.3

Successors and Assigns

57

Section 12.4

Certain Representations by Members

58

Section 12.5

Entire Agreement

58

credit to such Capital Account any amount that such Member is obligated to restore under Treasury Regulations Section 1.704-1(b)(2)(ii)(c), as well as any addition thereto pursuant to the next to last sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) after taking into account thereunder any changes during such year in Company Minimum Gain and Member Minimum Gain; and

debit to such Capital Account the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross Fair Market Value of such asset as of the date of such contribution;

the Gross Asset Values of all Company assets shall be adjusted to equal their respective gross Fair Market Values as of the following times: (i) the acquisition of an interest (or additional interest) in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution to the Company or in exchange for the performance of more than a de minimis amount of services to or for the benefit of the Company; (ii) the distribution by the Company to a Member of more than a de minimis amount of Company assets as consideration for an interest in the Company; (iii) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g)(1), (iv) the acquisition of an interest in the Company by any new or existing Member upon the exercise of a noncompensatory option in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(s); or (v) any other event to the extent determined by the Company Representative to be permitted and necessary or appropriate to properly reflect Gross Asset Values in accordance with the standards set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(q); provided, however, that adjustments pursuant to clauses (i), (ii) and (iv) above shall be made only if the Company Representative reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company.  If any noncompensatory options are outstanding upon the occurrence of an event described in clauses (b)(i) through (b)(v) above, the Company shall adjust the Gross Asset Values of its properties in accordance with Treasury Regulations Sections 1.704-1(b)(2)(iv)(f)(1) and 1.704-1(b)(2)(iv)(h)(2);

the Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross Fair Market Value of such asset on the date of such distribution;

the Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the Adjusted Basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and subsection (g) in the definition of “Profits” or “Losses” below or Section 5.2(h); provided, however, that the Gross Asset Value of a Company asset shall not be adjusted pursuant to this subsection to the extent the Company Representative determines that an adjustment pursuant to subsection (b) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d); and

if the Gross Asset Value of a Company asset has been determined or adjusted pursuant to subsections (a), (b) or (d) of this definition of Gross Asset Value, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits, Losses, Simulated Depletion and other items allocated pursuant to Article V.

any income or gain of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss;

any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses, shall be subtracted from such taxable income or loss;

in the event the Gross Asset Value of any Company asset is adjusted pursuant to subsections (b) or (c) of the definition of Gross Asset Value above, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset Value of the Company asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the Company asset) from the disposition of such asset and shall, except to the extent allocated pursuant to Section 5.2, be taken into account for purposes of computing Profits or Losses;

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

gain resulting from any disposition of Depletable Property with respect to which gain is recognized for U.S. federal income tax purposes shall be treated as being equal to the corresponding Simulated Gain;

in lieu of the depreciation, amortization and other cost recovery deductions (excluding depletion) taken into account in computing such taxable income or loss, there shall be taken into account Depreciation;

to the extent an adjustment to the adjusted tax basis of any asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Account balances as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or an item of loss (if the adjustment decreases such basis) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and

any items of income, gain, loss or deduction which are specifically allocated pursuant to the provisions of Section 5.2 shall not be taken into account in computing Profits or Losses for any taxable year, but such items available to be specially allocated pursuant to Section 5.2 will be determined by applying rules analogous to those set forth in subparagraphs (a) through (f) above.

the terms defined in Section 1.1 are applicable to the singular as well as the plural forms of such terms;

all accounting terms not otherwise defined herein have the meanings assigned under GAAP;

all references to currency, monetary values and dollars set forth herein shall mean United States (U.S.) dollars and all payments hereunder shall be made in United States dollars;

when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;

whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”;

“or” is not exclusive;

pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms; and

the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.

Pursuant to the Contribution Agreement, the Members, among others, agreed that, on the date of, but at a time prior to, the initial close of the IPO, (i) the Existing LLC Agreement shall be amended and restated and this Agreement shall be adopted and (ii) New Fortress Energy Holdings will contribute its membership interests in NFE Atlantic to the Company in exchange for the issuance of 147,058,824 Units.

Immediately following the initial closing of the IPO, (i) PubCo shall contribute to NFE Sub the net proceeds received by PubCo in connection with such initial closing and 147,058,824 Class B Shares (the “Primary B Shares”) and (ii) NFE Sub will in turn contribute to the Company such net proceeds of the initial closing and such Primary B Shares in exchange for the issuance of 20,000,000 Units.

Immediately following the contributions described in Section 3.1(b) of this Agreement, the Company shall distribute to each of the Members (other than PubCo), pro rata, in accordance with the number of Units owned by each Member, the Primary B Shares.

Immediately following any closing of the issuance and sale of Class A Shares pursuant to the Option, PubCo shall contribute all of the net proceeds received by it pursuant to such Option exercise to NFE Sub, and NFE Sub shall in turn contribute such net proceeds to the Company in exchange for a number of Units equal to the number of Class A Shares issued and sold by PubCo pursuant to such Option exercise.

Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.3.  Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants.  The Company may reissue any Units that have been repurchased or acquired by the Company.

Except to the extent explicitly provided otherwise herein (including Section 4.3), each outstanding Unit shall be identical.

Initially, none of the Units will be represented by certificates.  If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code.  Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.

The total number of Units issued and outstanding and held by the Members is set forth on Exhibit A (as amended from time to time in accordance with the terms of this Agreement) as of the date set forth therein.

If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) the Company shall concurrently issue to PubCo one Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by PubCo) and other economic rights as those of such Equity Securities of PubCo to be issued and (ii) PubCo shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than PubCo) of a number of Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by PubCo pursuant to a Cash Election, PubCo shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred to such Member as consideration for such acquisition as required pursuant to Section 4.6(d). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries. Notwithstanding the foregoing, this Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any redemption of Units for Class A Shares, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.  Except pursuant to Section 4.6, (x) the Company may not issue any additional Units to the PubCo Holdings Group unless substantially simultaneously therewith the PubCo Holdings Group issues or sells an equal number of newly-issued Class A Shares of PubCo to another Person, and (y) the Company may not issue any other Equity Securities of the Company to the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group issues or sells, to another Person, an equal number of newly-issued shares of a new class or series of Equity Securities of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.  If at any time any member of the PubCo Holdings Group issues Debt Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.  In the event any Equity Security outstanding at PubCo is exercised or otherwise converted and, as a result, any Class A Shares or other Equity Securities of PubCo are issued, (1) the corresponding Equity Security outstanding at the Company shall be similarly exercised or otherwise converted, as applicable, and an equivalent number of Units or other Equity Securities of the Company shall be issued to PubCo as contemplated by the first sentence of this Section 4.1(e), and (2) PubCo shall concurrently contribute to the Company the net proceeds received by PubCo from any such exercise.

No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (i) except pursuant to Section 4.6, any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Units for the same price per security or (ii) any other Equity Securities of PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security.  The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by PubCo in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.

Except pursuant to Section 4.1(i) or as provided in or Section 6.2(c), the Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares, with corresponding changes made with respect to any other exchangeable or convertible securities.  Unless in connection with any action taken pursuant to Section 4.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units, with corresponding changes made with respect to any other exchangeable or convertible securities.

Notwithstanding any other provision of this Agreement, the Company may redeem Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or the assets and liabilities of such Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Units equal to the number of Units so redeemed.

Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations PubCo reasonably anticipates, PubCo may, in its sole discretion, use or cause to be used such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.6, and the other provisions hereof; provided that, if the PubCo Holdings Group contributes any such excess cash to the Company in exchange for Units, the number of Units issued to the PubCo Holdings Group shall be determined consistent with the provisions of Section 6.2(c).

Capital Contributions.  Except as otherwise set forth in Section 4.1(e) with respect to the obligations of PubCo, no Member shall be required to make additional Capital Contributions.

Issuance of Additional Units or Interests.  Except as otherwise expressly provided in this Agreement, the Managing Member shall have the right to authorize and cause the Company to issue on such terms (including price) as may be determined by the Managing Member (i) subject to the limitations of Section 4.1, additional Units or other Equity Securities in the Company (including creating preferred interests or other classes or series of interests having such rights, preferences and privileges as determined by the Managing Member, which rights, preferences and privileges may be senior to the Units), and (ii) obligations, evidences of Indebtedness or other securities or interests convertible or exchangeable for Units or other Equity Securities in the Company; provided that, at any time following the date hereof, in each case the Company shall not issue Equity Securities in the Company to any Person unless such Person shall have executed a counterpart to this Agreement and all other documents, agreements or instruments deemed necessary or desirable in the discretion of the Managing Member.  Upon such issuance and execution, such Person shall be admitted as a Member of the Company.  In that event, the Managing Member shall amend Exhibit A to reflect such additional issuances.  Subject to Section 12.1, the Managing Member is hereby authorized to amend this Agreement to set forth the designations, preferences, rights, powers and duties of such additional Units or other Equity Securities in the Company, or such other amendments that the Managing Member determines to be otherwise necessary or appropriate in connection with the creation, authorization or issuance of, any class or series of Units or other Equity Securities in the Company pursuant to this Section 4.3(b); provided that, notwithstanding the foregoing, the Managing Member shall have the right to amend this Agreement as set forth in this sentence without the approval of any other Person (including any Member) and notwithstanding any other provision of this Agreement (including Section 12.1) if such amendment is necessary, and then only to the extent necessary, in order to consummate any offering of PubCo Shares or other Equity Securities of PubCo provided that the designations, preferences, rights, powers and duties of any such additional Units or other Equity Securities of the Company as set forth in such amendment are substantially similar to those applicable to such PubCo Shares or other Equity Securities of PubCo.

No Member shall demand or receive a return on or of its Capital Contributions or withdraw from the Company without the consent of the Managing Member.  Under circumstances requiring a return of any Capital Contributions, no Member has the right to receive property other than cash.

No Member shall receive any interest, salary, compensation, draw or reimbursement with respect to its Capital Contributions or its Capital Account, or for services rendered or expenses incurred on behalf of the Company or otherwise in its capacity as a Member, except as otherwise provided in Section 6.2, Section 7.9 or as otherwise contemplated by this Agreement.

The Liability of each Member shall be limited as set forth in the Act and other applicable Law and, except as expressly set forth in this Agreement or required by Law, no Member (or any of its Affiliates) shall be personally liable, whether to the Company, any of the other Members, the creditors of the Company, or any other third party, for any debt or Liability of the Company, whether arising in contract, tort or otherwise, solely by reason of being a Member of the Company.

Except as otherwise required by the Act, a Member shall not be required to restore a deficit balance in such Member’s Capital Account, to lend any funds to the Company or, except as otherwise set forth herein, to make any additional contributions or payments to the Company.

The Company shall not be obligated to repay any Capital Contributions of any Member.

Redemptions Generally.  Upon the terms and subject to the conditions set forth in this Section 4.6, including without limitation Section 4.6(m), each Member as indicated herein shall be entitled to cause the Company to redeem all or a portion of such Member’s Units (together with the surrender and delivery of the same number of Class B Shares) for an equivalent number of Class A Shares (a “Redemption”) or, at the Company’s election made in accordance with Section 4.6(d), cash equal to the Cash Election Amount calculated with respect to such Redemption.

Redemptions by Eligible Members.

Permitted Redemptions by Eligible Members.

Quarterly Redemptions. Each Eligible Member may effect Redemptions on a quarterly basis pursuant to this Section 4.6(b)(i) (such Redemption, a “Quarterly Redemption”) so long as, absent the prior written consent of the Managing Member to the contrary, any such Eligible Members redeem at least a number of Units equal to (x) in the aggregate, the lesser of 835,294 Units or Units with a value of at least $10.0 million at the time of such Redemption, or (y) in the case of a 5% Holder, all of the Units held at such time by such 5% Holder, if lower than the amount in clause (x).  Quarterly Redemptions shall occur no more frequently than once per calendar quarter on the Quarterly Redemption Date for such calendar quarter.

Regular Block Redemptions. Each Eligible Member may effect a Redemption at any time pursuant to this Section 4.6(b)(i)(B) (such Redemption, a “Block Redemption”) so long as, absent the prior written consent of the Managing Member to the contrary, such Eligible Member redeems at least a number of Units equal to the lesser of  3,341,176 Units or Units with a value of at least $50.0 million at the time of such Redemption.

Piggyback Redemptions. Each Eligible Member may effect a Redemption pursuant to this Section 4.6(b)(i)(C) (such Redemption, a “Piggyback Redemption”) so long as (x) absent the prior written consent of the Managing Member to the contrary, any such Eligible Members redeem at least a number of Units equal to, in the aggregate, the lesser of 835,294 Units or Units with a value of at least $10.0 million at the time of such Redemption, and (y) such Piggyback Redemption right is exercised in connection with a valid exercise of such Eligible Member’s rights to have the Class A Shares issuable in connection with such Redemption to participate in either the registration or an offering of securities by PubCo.

Annual Block Redemptions.  Each Eligible Member may effect a Redemption pursuant this Section 4.6(b)(i)(D) (such Redemption, an “Annual Block Redemption”) not more than once per calendar year with a Redemption Date one (1) Business Day after the Redemption Notice Date, (x) so long as, absent the prior written consent of the Managing Member, any such Eligible Members redeem at least 3,341,176 Units, in the aggregate, and (y) solely to the extent that PubCo and/or the Company have sufficient capacity to reasonably pay the Cash Election Amount with respect to such Annual Block Redemption within eight (8) calendar days of the applicable Redemption Notice Date, taking into account available cash of PubCo and the Company (as calculated consistent with Section 6.2(b)) and the reasonably estimated net cash proceeds of any potential equity offerings that could reasonably be completed within such eight-day period.

10b5-1 Plan Redemptions. Each Eligible Member may establish a written plan for selling Class A Shares in compliance with Rule 10b5-1(c) of the Exchange Act (a “10b5-1 Plan”) and may effect a Redemption as described in this Section 4.6(b)(i)(E) (such Redemption, a “10b5-1 Plan Redemption”). Each such Eligible Member may, no more than once with respect to any twelve (12) month period, exercise the 10b5-1 Plan Redemption right in connection with any such 10b5-1 Plan (each such exercise, a “10b5-1 Plan Redemption Right Exercise”) with respect to at least 1,670,588 Units, provided that: (A) the Units subject to such 10b5-1 Plan Redemption Right Exercise shall be in a number reasonably expected by such Eligible Member to provide Class A Shares to be sold under such 10b5-1 Plan(s); (B) the Units subject to such 10b5-1 Plan Redemption Right Exercise shall either, at the election of such Eligible Member (x) be redeemed in an equal amount on each 10b5-1 Plan Redemption Date during such twelve (12) month period or (y) all be redeemed at one time on the first 10b5-1 Plan Redemption Date following such 10b5-1 Plan Redemption Right Exercise; and (C) for the avoidance of doubt, such Eligible Member shall not be entitled to any other 10b5-1 Plan Redemption Right Exercise with respect to any overlapping twelve (12) month period. The 1,670,588 Unit threshold described above shall be determined with respect to a new 10b5-1 Plan Redemption Right Exercise by taking into account any Units to be redeemed (x) pursuant to any 10b5-1 Plan Redemption Right Exercise by any other Eligible Member that is then in effect (or contemporaneously entered into) and (y) during the twelve (12) month period with respect to which such new 10b5-1 Plan Redemption Right Exercise applies.

Notice Requirements for Eligible Members.

In order to exercise any Redemption right under Section 4.6(b), the Eligible Member shall provide written notice (the “Redemption Notice”) to the Company, with a copy to PubCo (the date of delivery of such Redemption Notice, the “Redemption Notice Date”), stating:

the number of Units (together with the surrender and delivery of an equal number of Class B Shares) the Eligible Member elects to have the Company redeem;

if the Class A Shares to be received are to be issued other than in the name of the Eligible Member, the name(s) of the Person(s) in whose name or on whose order the Class A Shares are to be issued;

whether the Redemption is to be contingent (including as to timing) upon the closing of a Public Offering of the Class A Shares for which the Units will be redeemed or the closing of an announced merger, consolidation or other transaction or event to which PubCo is a party in which the Class A Shares would be exchanged or converted or become exchangeable for or convertible into cash or other securities or property (such contingency, a “Redemption Contingency”);

pursuant to which section of this Agreement the Redemption right is being exercised;

if it is a 10b5-1 Plan Redemption, (x) the first 10b5-1 Plan Redemption Date and (y) whether such Eligible Member elects for such Redemptions to occur in an equal amount on each 10b5-1 Plan Redemption Date during the relevant twelve (12) month period or at one time on the first 10b5-1 Plan Redemption Date following such 10b5-1 Plan Redemption Right Exercise; and

if it is a Block Redemption or Annual Block Redemption, the intended Redemption Date.

With respect to a Quarterly Redemption, such Redemption Notice shall be delivered to the Company, PubCo and New Fortress Energy Holdings (if New Fortress Energy Holdings is not a Redeeming Member), at least ten (10) calendar days prior to the Quarterly Redemption Date. With respect to a Block Redemption, such Redemption Notice shall be delivered to the Company at least five (5) Business Days prior to the Redemption Date stated in such Redemption Notice; provided, however, such Redemption Notice may be delivered to the Company up to three (3) Business Days prior to the Redemption Date stated in such Redemption Notice if the Eligible Member waives any rights to revoke the Redemption Notice under Section 4.6(e)(i). With respect to a Piggyback Redemption, such Redemption Notice shall be delivered to the Company reasonably promptly after the Eligible Member’s receipt of notice of any applicable offering.  With respect to a 10b5-1 Plan Redemption, such Redemption Notice shall be delivered to the Company at least five (5) Business Days prior to the first 10b5-1 Plan Redemption Date as stated in such Redemption Notice.

Redemptions by Tag-Along Members.

Permitted Redemptions by Tag-Along Members.  If any Eligible Member exercises (A) the Quarterly Redemption right or the Block Redemption right, then any Tag-Along Member shall be entitled to participate in such Quarterly Redemption or Block Redemption, as applicable or (B) the 10b5-1 Plan Redemption right, then any Tag-Along Member shall be entitled to participate in the first such 10b5-1 Plan Redemption during a calendar quarter, provided that, in each case, any Tag-Along Member may participate only by redeeming all Units held by such Tag-Along Member.

Tag-Along Notice Requirements for the Company. If an Eligible Member  elects to effect a Quarterly Redemption or a 10b5-1 Plan Redemption in which Tag-Along Members are entitled to participate, then the Company shall promptly notify all Tag-Along Members of such Redemption as soon as reasonably practicable in advance of the anticipated Redemption Date (the “Tag-Along Opportunity Notice”), but in any case, at least one (1) Business Day before the associated request for inclusion from such other Members would be due pursuant to this Section 4.6(c); provided that, in the case of a 10b5-1 Plan Redemption, the Company shall only be required to give a Tag-Along Opportunity Notice once per twelve (12) month period, as soon as reasonably practicable after receipt of the Redemption Notice for a 10b5-1 Plan Redemption Right Exercise with respect to such twelve (12) month period. If an Eligible Member  elects to effect a Block Redemption in which Tag-Along Members are entitled to participate, then the Company shall notify any Tag-Along Member that has timely provided a valid request under Section 4.6(c)(iii) for inclusion in any such Block Redemption reasonably in advance of the relevant Redemption Date and shall specify what documents and/or items are needed from such Tag-Along Member in connection with such Redemption.

Notice Requirements for Tag-Along Member. The Company shall use commercially reasonable efforts to redeem on the Redemption Date for any Redemption in which Tag-Along Members are entitled to participate, such Units for which the Company has received a written request for inclusion (and any other documents or other items that the Managing Member reasonably requests): (A) with respect to a Quarterly Redemption, at least seven (7) calendar days prior to such Redemption Date and (B) with respect to a 10b5-1 Plan Redemption, at least three (3) Business Days prior to the applicable Redemption Date. With respect to a Block Redemption, a Tag-Along Member may deliver at any time an irrevocable written request for inclusion in any Block Redemption, and the Company shall use commercially reasonable efforts to redeem such Tag-Along Member’s Units on the next Redemption Date, if any, for a Block Redemption, provided such Member has delivered to the Company any other documents or other items that the Managing Member reasonably requests. The Company shall not be required to include in such Redemption any Tag-Along Member’s Units in the event such Tag-Along Member does not request for inclusion all of the Units held by such Tag-Along Member or if the Redemption of any such Units is not practical to effect on the same Redemption Date.

Cash Election Right.  Upon receipt of a Redemption Notice or request for inclusion by a Tag-Along Member in connection with any Redemption, the Company shall be entitled to elect (a “Cash Election”) to settle the Redemption by delivering to the Redeeming Member, in lieu of all, but not less than all, of the applicable number of Class A Shares that would be received in such Redemption, an amount of cash equal to the Cash Election Amount for such Redemption.  In order to make a Cash Election with respect to a Quarterly Redemption or a Block Redemption, the Company must provide written notice of such election to the Redeeming Member (with a copy to PubCo) prior to 1:00 p.m., New York time, on the date that is two (2) Business Days prior to the Redemption Date.  Notwithstanding the foregoing, (x) with respect to a Piggyback Redemption, the Company shall be entitled make the Cash Election by providing written notice reasonably promptly after receiving the Redemption Notice, and (y) with respect to an Annual Block Redemption, the Company shall be entitled make the Cash Election without providing written notice to NFI Holdings.  In addition to the foregoing, a Cash Election with respect to a 10b5-1 Plan Redemption shall be made on a quarterly basis, on the date that is two (2) Business Days prior to the first 10b5-1 Plan Redemption Date in such calendar quarter, and shall apply to all 10b5-1 Plan Redemptions in connection with such 10b5-1 Plan that occur in such calendar quarter. If the Company fails to provide written notice of a Cash Election prior to the time specified in this Section 4.6(d), it shall not be entitled to make a Cash Election with respect to such Redemption.

Procedure for Redemptions; Revocations.

Subject to the satisfaction of any Redemption Contingency that is specified in the relevant Redemption Notice, the Redemption shall be completed on the Redemption Date and such Class A Shares issuable upon the Redemption, or, if a Cash Election has been made, the Cash Election Amount shall be delivered to the Redeeming Member, as applicable, as soon as reasonably practicable on or following the Redemption Date. Unless a valid Cash Election has been made, a Redemption Notice in connection with a Quarterly Redemption or Block Redemption may be revoked at any time prior to the date that is three (3) Business Days prior to the Redemption Date (except, for the avoidance of doubt, if the Redeeming Member has waived such revocation right in respect of a Block Redemption pursuant to Section 4.6(b)(ii)(B)). If a valid revocation pursuant to this Section 4.6(e)(i) causes the total number of Units to be redeemed in connection with a Quarterly Redemption or Block Redemption to be less than the minimum number of Units required to be redeemed under Section 4.6(b)(i)(A) or Section 4.6(b)(i)(B), as applicable, then such Redemption shall be cancelled with respect to all Units. With respect to a 10b5-1 Plan Redemption, each Redeeming Member may revoke such Redemption once per calendar quarter by written election at least three (3) Business Days prior to the 10b5-1 Plan Redemption Date for the first month of such quarter, provided that, such revocation will apply to all Units that would be otherwise by redeemed in connection with such 10b5-1 Plan during such calendar quarter, and such 10b5-1 Plan has been established for at least one calendar quarter. 

Unless a member of the PubCo Holdings Group has elected the Call Right pursuant to Section 4.6(f), on the Redemption Date (to be effective immediately prior to the close of business on the Redemption Date) (A) the Redeeming Member shall transfer and surrender the Units to be redeemed (and a corresponding number of Class B Shares) to the Company, in each case free and clear of all liens and encumbrances, (B) PubCo, directly or indirectly through any other member(s) of the PubCo Holdings Group, shall contribute to the Company the consideration the Redeeming Member is entitled to receive under Section 4.6(b) and, as described in Section 4.1(e), the Company shall issue to PubCo or such other member(s) of the PubCo Holdings Group, as applicable, a number of Units or other Equity Securities of the Company as consideration for such contribution, (C) the Company shall (x) cancel the redeemed Units, (y) transfer to the Redeeming Member the consideration the Redeeming Member is entitled to receive under Section 4.6(b), and (z) if the Units are certificated, issue to the Redeeming Member a certificate for a number of Units equal to the difference (if any) between the number of Units evidenced by the certificate surrendered by the Redeeming Member pursuant to clause (ii)(A) of this Section 4.6(e) and the number of redeemed Units, and (D) PubCo shall cancel the surrendered Class B Shares.  Notwithstanding any other provisions of this Agreement to the contrary, in the event that the Company makes a valid Cash Election, PubCo shall only be obligated to contribute to the Company an amount in cash equal to the net proceeds (after deduction of the Discount) from the sale by PubCo of a number of Class A Shares equal to the number of Units and Class B Shares to be redeemed with such cash or from the sale of other PubCo Equity Securities used to fund the Cash Election Amount; provided that PubCo’s Capital Account (or the Capital Account(s) of the other member(s) of the PubCo Holdings Group, as applicable) shall be increased by the amount of such Discount in accordance with Section 7.9;  provided further, that the contribution of such net proceeds shall in no event affect the Redeeming Member’s right to receive the Cash Election Amount.

If the Units to be redeemed (or the Class B Shares to be transferred and surrendered) by the Redeeming Member are represented by a certificate or certificates, prior to the Redemption Date, the Redeeming Member shall also present and surrender such certificate or certificates representing such Units (or Class B Shares) during normal business hours at the principal executive offices of the Company, or if any agent for the registration or transfer of Class A Shares is then duly appointed and acting (the “Transfer Agent”), at the office of the Transfer Agent.  If required by the Managing Member, any certificate for Units and any certificate for Class B Shares (in each case, if certificated) surrendered to the Company hereunder shall be accompanied by instruments of transfer, in forms reasonably satisfactory to the Managing Member and the Transfer Agent, duly executed by the Redeeming Member or the Redeeming Member’s duly authorized representative.

Call Right.

Notwithstanding anything to the contrary in this Section 4.6, a Redeeming Member shall be deemed to have offered to sell its Units as described in the Redemption Notice to each member of the PubCo Holdings Group, and any member of the PubCo Holdings Group may, in its sole discretion, by means of delivery of a Call Election Notice in accordance with, and subject to the terms of, this Section 4.6(f), elect to purchase directly and acquire such Units (together with the surrender and delivery of the same number of Class B Shares) on the Redemption Date by paying to the Redeeming Member (or, on the Redeeming Member’s written order, its designee) that number of Class A Shares the Redeeming Member (or its designees) would otherwise receive pursuant to Section 4.6(b) or Section 4.6(c)(i) or, at the election of such member of the PubCo Holdings Group, an amount of cash equal to the Cash Election Amount of such Class A Shares (the “Call Right”), whereupon such member of the PubCo Holdings Group shall acquire the Units offered for redemption by the Redeeming Member (together with the surrender and delivery of the same number of Class B Shares to PubCo for cancellation).  Such member of the PubCo Holdings Group shall be treated for all purposes of this Agreement as the owner of such Units; provided that if the Cash Election Amount is funded other than through the issuance of Class A Shares, such Units will be reclassified into another Equity Security of the Company if the Managing Member determines such reclassification is necessary.

Each member of the PubCo Holdings Group may, at any time prior to the Redemption Date, in its sole discretion deliver written notice (a “Call Election Notice”) to the Company and the Redeeming Member setting forth its election to exercise the Call Right.  A Call Election Notice may be revoked by the applicable member of the PubCo Holdings Group at any time; provided that any such revocation does not prejudice the ability of the parties to consummate a Redemption on the Redemption Date.  Except as otherwise provided by this Section 4.6(f), an exercise of the Call Right shall be consummated pursuant to the same timeframe and in the same manner as the relevant Redemption would have been consummated if PubCo had not delivered a Call Election Notice.

For U.S. federal income (and applicable state and local) tax purposes, each of the Redeeming Member, the Company and PubCo (and any other member of the PubCo Holdings Group, as applicable) agree to treat each Redemption or, in the event any member of the PubCo Holdings Group exercises the Call Right, each transaction between the Redeeming Member and such member of the PubCo Holdings Group, as a sale of the Redeeming Member’s Units (together with the same number of Class B Shares) to PubCo or any other participating member of the PubCo Holdings Group in exchange for Class A Shares or cash, as applicable.

If (i) there is any reclassification, reorganization, recapitalization or other similar transaction pursuant to which the Class A Shares are converted or changed into another security, securities or other property (other than as a result of a subdivision or combination or any transaction subject to Section 4.1(g)), or (ii) except in connection with actions taken with respect to the capitalization of PubCo or the Company pursuant to Section 4.1(i), PubCo, by dividend or otherwise, distributes to all holders of the Class A Shares evidences of its Indebtedness or assets, including securities (including Class A Shares and any rights, options or warrants to all holders of the Class A Shares to subscribe for or to purchase or to otherwise acquire Class A Shares, or other securities or rights convertible into, exchangeable for or exercisable for Class A Shares) but excluding (A) any cash dividend or distribution, or (B) any such distribution of Indebtedness or assets, in either case (A) or (B) received by PubCo from the Company in respect of the Units, then upon any subsequent Redemption, in addition to the Class A Shares or the Cash Election Amount, as applicable, each Member shall be entitled to receive the amount of such security, securities or other property that such Member would have received if such Redemption had occurred immediately prior to the effective date of such reclassification, reorganization, recapitalization, other similar transaction, dividend or other distribution, taking into account any adjustment as a result of any subdivision (by any split, distribution or dividend, reclassification, reorganization, recapitalization or otherwise) or combination (by reverse split, reclassification, recapitalization or otherwise) of such security, securities or other property that occurs after the effective time of such reclassification, reorganization, recapitalization or other similar transaction.  For the avoidance of doubt, if there is any reclassification, reorganization, recapitalization or other similar transaction in which the Class A Shares are converted or changed into another security, securities or other property, or any dividend or distribution (other than an excluded dividend or distribution, as described above), this Section 4.6 shall continue to be applicable, mutatis mutandis, with respect to such security or other property.  This Agreement shall apply to the Units held by the Members as of the date hereof, as well as any Units hereafter acquired by a Member.

PubCo covenants that all Class A Shares that shall be issued upon a Redemption shall, upon issuance thereof, be validly issued, fully paid and non-assessable.  In addition, for so long as the Class A Shares are listed on a National Securities Exchange, PubCo shall use its reasonable best efforts to cause all Class A Shares issued upon a Redemption to be listed on such National Securities Exchange at the time of such issuance.

The issuance of Class A Shares upon a Redemption shall be made without charge to the Redeeming Member for any stamp or other similar tax in respect of such issuance; provided, however, that if any such Class A Shares are to be issued in a name other than that of the Redeeming Member, then the Person or Persons in whose name the shares are to be issued shall pay to PubCo the amount of any tax that may be payable in respect of any transfer involved in such issuance or shall establish to the reasonable satisfaction of PubCo that such tax has been paid or is not payable.  The Company and each member of the PubCo Holdings Group shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable upon a Redemption such amounts as may be required to be deducted or withheld therefrom under the Code or any provision of applicable Law, and to the extent deduction and withholding is required, such deduction and withholding may be taken in Class A Shares. To the extent such amounts are so deducted or withheld and paid over to the relevant governmental authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Redeeming Member and, if withholding is taken in Class A Shares, the relevant withholding party shall be treated as having sold such Class A Shares on behalf of such Redeeming Member for an amount of cash equal to the fair market value thereof at the time of such deemed sale and paid such cash proceeds to the appropriate governmental authority.  Notwithstanding the foregoing, in the event any deduction or withholding is required upon the issuance of Class A Shares, the relevant withholding party may require the Redeeming Member to pay to the relevant withholding party promptly, and in any no event later than ten (10) Business Days after the Redemption Date, cash equal to the amount of any such required deduction or withholding.

No Redemption shall impair the right of the Redeeming Member to receive any distributions payable on the Units redeemed pursuant to such Redemption in respect of a record date that occurs prior to the Redemption Date for such Redemption.  For the avoidance of doubt, no Redeeming Member or a Person designated by a Redeeming Member to receive Class A Shares, shall be entitled to receive, with respect to such record date, distributions or dividends both on Units redeemed by the Company from such Redeeming Member and on Class A Shares received by such Redeeming Member, or other Person so designated, if applicable, in such Redemption.

Any Units acquired by the Company under this Section 4.6 and transferred by the Company to any member of the PubCo Holdings Group shall remain outstanding and shall not be cancelled as a result of their acquisition by the Company.  Notwithstanding any other provision of this Agreement, the applicable member(s) of the PubCo Holdings Group shall be automatically admitted as a Member of the Company with respect to any Units or other Equity Securities in the Company it receives under this Agreement (including under this Section 4.6 in connection with any Redemption).

The Managing Member may impose additional limitations and restrictions on Redemptions (including limiting Redemptions or creating priority procedures for Redemptions), to the extent it determines, in its sole discretion, such limitations and restrictions to be necessary or appropriate to avoid undue risk that the Company may be classified as a “publicly traded partnership” within the meaning of Section 7704 of the Code.  Furthermore, the Managing Member may require any Member or group of Members to redeem all of their Units to the extent it determines, in its sole discretion, that such Redemption is necessary or appropriate to avoid undue risk that the Company may be classified as a “publicly traded partnership” within the meaning of Section 7704 of the Code.  Upon delivery of any notice by the Managing Member to such Member or group of Members requiring such Redemption, such Member or group of Members shall exchange, subject to exercise by any member of the PubCo Holdings Group of the Call Right pursuant to Section 4.6(f)(i), all of their Units effective as of the date specified in such notice (and such date shall be deemed to be a Redemption Date for purposes of this Agreement) in accordance with this Section 4.6 and otherwise in accordance with the requirements set forth in such notice.

Nonrecourse Deductions for any Fiscal Year or other taxable period shall be specially allocated to the Members on a pro rata basis, in accordance with the number of Units owned by each Member as of the last day of such Fiscal Year or other taxable period.  The amount of Nonrecourse Deductions for a Fiscal Year or other taxable period shall equal the excess, if any, of the net increase, if any, in the amount of Company Minimum Gain during that Fiscal Year or other taxable period over the aggregate amount of any distributions during that Fiscal Year or other taxable period of proceeds of a Nonrecourse Liability that are allocable to an increase in Company Minimum Gain, determined in accordance with the provisions of Treasury Regulations Section 1.704-2(d).

Any Member Nonrecourse Deductions for any Fiscal Year or other taxable period shall be specially allocated to the Member who bears economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations Section 1.704-2(i).  If more than one Member bears the economic risk of loss for such Member Nonrecourse Debt, the Member Nonrecourse Deductions attributable to such Member Nonrecourse Debt shall be allocated among the Members according to the ratio in which they bear the economic risk of loss.  This Section 5.2(b) is intended to comply with the provisions of Treasury Regulations Section 1.704-2(i) and shall be interpreted consistently therewith.

Notwithstanding any other provision of this Agreement to the contrary, if there is a net decrease in Company Minimum Gain during any Fiscal Year or other taxable period (or if there was a net decrease in Company Minimum Gain for a prior Fiscal Year or other taxable period and the Company did not have sufficient amounts of income and gain during prior periods to allocate among the Members under this Section 5.2(c)), each Member shall be specially allocated items of Company income and gain for such Fiscal Year or other taxable period in an amount equal to such Member’s share of the net decrease in Company Minimum Gain during such year (as determined pursuant to Treasury Regulations Section 1.704-2(g)(2)).  This section is intended to constitute a minimum gain chargeback under Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.

Notwithstanding any other provision of this Agreement except Section 5.2(c), if there is a net decrease in Member Minimum Gain during any Fiscal Year or other taxable period (or if there was a net decrease in Member Minimum Gain for a prior Fiscal Year or other taxable period and the Company did not have sufficient amounts of income and gain during prior periods to allocate among the Members under this Section 5.2(d)), each Member shall be specially allocated items of Company income and gain for such year in an amount equal to such Member’s share of the net decrease in Member Minimum Gain (as determined pursuant to Treasury Regulations Section 1.704-2(i)(4)).  This section is intended to constitute a partner nonrecourse debt minimum gain chargeback under Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

Notwithstanding any provision hereof to the contrary except Section 5.2(a) and Section 5.2(b), no Losses or other items of loss or expense shall be allocated to any Member to the extent that such allocation would cause such Member to have an Adjusted Capital Account Deficit (or increase any existing Adjusted Capital Account Deficit) at the end of such Fiscal Year or other taxable period.  All Losses and other items of loss and expense in excess of the limitation set forth in this Section 5.2(e) shall be allocated to the Members who do not have an Adjusted Capital Account Deficit in proportion to their relative positive Capital Accounts but only to the extent that such Losses and other items of loss and expense do not cause any such Member to have an Adjusted Capital Account Deficit.

Notwithstanding any provision hereof to the contrary except Section 5.2(c) and Section 5.2(d), in the event any Member unexpectedly receives any adjustment, allocation or distribution described in paragraph (4), (5) or (6) of Treasury Regulations Section 1.704-1(b)(2)(ii)(d), items of income and gain (consisting of a pro rata portion of each item of income, including gross income, and gain for the Fiscal Year or other taxable period) shall be specially allocated to such Member in an amount and manner sufficient to eliminate any Adjusted Capital Account Deficit of that Member as quickly as possible; provided that an allocation pursuant to this Section 5.2(f) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article V have been tentatively made as if this Section 5.2(f) were not in this Agreement.  This Section 5.2(f) is intended to constitute a qualified income offset under Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

If any Member has a deficit balance in its Capital Account at the end of any Fiscal Year or other taxable period that is in excess of the sum of (i) the amount that such Member is obligated to restore and (ii) the amount that the Member is deemed to be obligated to restore pursuant to the penultimate sentence of Treasury Regulations Sections 1.704-2(g)(1) and (i)(5), that Member shall be specially allocated items of Company income and gain and Simulated Gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 5.2(g) shall be made only if and to the extent that such Member would have a deficit balance in its Capital Account in excess of such sum after all other allocations provided for in this Article V have been made as if Section 5.2(f) and this Section 5.2(g) were not in this Agreement.

To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Sections 734(b) or 743(b) is required, pursuant to Treasury Regulations Sections 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution to any Member in complete liquidation of such Member’s Interest in the Company, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such item of gain or loss shall be allocated to the Members in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) if such section applies or to the Member to whom such distribution was made if Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

Simulated Depletion for each Depletable Property, and Simulated Loss for Depletable Property upon the disposition of such Depletable Property, shall be allocated among the Members in proportion to their shares of Simulated Basis in such Depletable Property.

The allocations set forth in Sections 5.2(a) through Section 5.2(i) (the “Regulatory Allocations”) are intended to comply with certain requirements of Treasury Regulations Sections 1.704-1(b) and 1.704-2.  Notwithstanding any other provision of this Article V (other than the Regulatory Allocations), the Regulatory Allocations (and anticipated future Regulatory Allocations) shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocation of other items and the Regulatory Allocations to each Member should be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred.  This Section 5.2(j) is intended to minimize to the extent possible and to the extent necessary any economic distortions which may result from application of the Regulatory Allocations and shall be interpreted in a manner consistent therewith.

Items of income, gain, loss, expense or credit resulting from a Covered Audit Adjustment shall be allocated to the Members in accordance with the applicable provisions of the Partnership Tax Audit Rules.

Except as otherwise provided in this Section 5.3 or Section 5.4, each item of income, gain, loss and deduction of the Company for U.S. federal income tax purposes shall be allocated among the Members in the same manner as such item is allocated under Sections 5.1 and 5.2.

In accordance with Code Section 704(c) and the Treasury Regulations thereunder (including the Treasury Regulations applying the principles of Code Section 704(c) to changes in Gross Asset Values), items of income, gain, loss and deduction with respect to any Company property having a Gross Asset Value that differs from such property’s adjusted U.S. federal income tax basis shall, solely for U.S. federal income tax purposes, be allocated among the Members to account for any such difference using such method or methods determined by the Company Representative to be appropriate and in accordance with the applicable Treasury Regulations; provided, that the Company Representative will use the “traditional method with curative allocations,” with the curative allocations applied only to sale gain, under Treasury Regulations Section 1.704-3(c) with respect to the assets owned by the Company at the time of the IPO.

Any (i) recapture of depreciation or any other item of deduction shall be allocated, in accordance with Treasury Regulations Sections 1.1245-1(e) and 1.1254-5, to the Members who received the benefit of such deductions, and (ii) recapture of credits shall be allocated to the Members in accordance with applicable Law.

Allocations pursuant to this Section 5.3 are solely for purposes of U.S. federal, state and local taxes and shall not affect or in any way be taken into account in computing any Member’s Capital Account or share of Profits, Losses, other items or distributions pursuant to any provision of this Agreement.

If, as a result of an exercise of a noncompensatory option to acquire an interest in the Company, a Capital Account reallocation is required under Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall make corrective allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x).

Cost and percentage depletion deductions with respect to any Depletable Property shall be computed separately by the Members rather than the Company. For purposes of such computations, the federal income tax basis of each Depletable Property shall be allocated to each Member pro rata, in accordance with the number of Units owned by such Member as of the time such Depletable Property is acquired by the Company (and any additions to such federal income tax basis resulting from expenditures required to be capitalized in such basis shall be allocated among the Members in a manner designed to cause the Members’ proportionate shares of such adjusted federal income tax basis to be in accordance with their proportionate ownership of Units as determined at the time of any such additions), and shall be reallocated among the Members pro rata, in accordance with the number of Units owned by such Member as determined immediately following the occurrence of an event giving rise to an adjustment to the Gross Asset Values of the Company’s Depletable Properties pursuant to clause (b) of the definition of Gross Asset Value. The Company shall inform each Member of such Member’s allocable share of the federal income tax basis of each Depletable Property promptly following the acquisition of such Depletable Property by the Company, any adjustment resulting from expenditures required to be capitalized in such basis, and any reallocation of such basis as provided in the previous sentence.

For purposes of the separate computation of gain or loss by each Member on the taxable disposition of Depletable Property, the amount realized from such disposition shall be allocated (i) first, to the Members in an amount equal to the Simulated Basis in such Depletable Property in proportion to their allocable shares thereof and (ii) second, any remaining amount realized shall be allocated consistent with the allocation of Simulated Gains.

The allocations described in this Section 5.4 are intended to be applied in accordance with the Members’ “interests in partnership capital” under Section 613A(c)(7)(D) of the Code; provided that the Members understand and agree that the Company Representative may authorize special allocations of federal income tax basis, income, gain, deduction or loss, as computed for federal income tax purposes, in order to eliminate differences between Simulated Basis and adjusted federal income tax basis with respect to Depletable Properties, in such manner as determined consistent with the principles outlined in Section 5.3(b). The provisions of this Section 5.4(c) and the other provisions of this Agreement relating to allocations under Code Section 613A(c)(7)(D) are intended to comply with Treasury Regulations Section 1.704-1(b)(4)(v) and shall be interpreted and applied in a manner consistent with such Treasury Regulations.

Each Member, with the assistance of the Company, shall separately keep records of its share of the adjusted tax basis in each Depletable Property, adjust such share of the adjusted tax basis for any cost or percentage depletion allowable with respect to such property and use such adjusted tax basis in the computation of its cost depletion or in the computation of its gain or loss on the disposition of such property by the Company. Upon the reasonable request of the Company, each Member shall advise the Company of its adjusted tax basis in each Depletable Property and any depletion computed with respect thereto, both as computed in accordance with the provisions of this subsection for purposes of allowing the Company to make adjustments to the tax basis of its assets as a result of certain transfers of interests in the Company or distributions by the Company. The Company may rely on such information and, if it is not provided by the Member, may make such reasonable assumptions as it shall determine with respect thereto.

The Members are aware of the income tax consequences of the allocations made by this Article V and the economic impact of the allocations on the amounts receivable by them under this Agreement.  The Members hereby agree to be bound by the provisions of this Article V in reporting their share of Company income and loss for income tax purposes.

The provisions regarding the establishment and maintenance for each Member of a Capital Account and the allocations set forth herein are intended to comply with the Treasury Regulations and to reflect the intended economic entitlement of the Members.  If the Company Representative determines, that the application of these provisions would result in non-compliance with the Treasury Regulations or would be inconsistent with the intended economic entitlement of the Members, the Company Representative is authorized to make any appropriate adjustments to such provisions.

All items of income, gain, loss, deduction and credit allocable to an interest in the Company that may have been Transferred shall be allocated between the Transferor and the Transferee based on the portion of the Fiscal Year or other taxable period during which each was recognized as the owner of such interest, without regard to the results of Company operations during any particular portion of that year and without regard to whether cash distributions were made to the Transferor or the Transferee during that year; provided, however, that this allocation must be made in accordance with a method determined by the Company Representative and permissible under Code Section 706 and the Treasury Regulations thereunder.

The Members’ proportionate shares of the “excess nonrecourse liabilities” of the Company, within the meaning of Treasury Regulations Section 1.752-3(a)(3), shall be allocated to the Members on a pro rata basis, in accordance with the number of Units owned by each Member.

Distributions.  To the extent permitted by applicable Law and hereunder, and except as otherwise provided in Section 11.3, distributions to Members may be declared by the Managing Member out of funds legally available therefor in such amounts and on such terms (including the payment dates of such distributions) as the Managing Member shall determine using such record date as the Managing Member may designate; any such distribution shall be made to the Members as of the close of business on such record date on a pro rata basis (except that, for the avoidance of doubt, repurchases or redemptions made in accordance with Section 4.1(f) or payments made in accordance with Sections 7.4 or 7.9 need not be on a pro rata basis), in accordance with the number of Units owned by each Member as of the close of business on such record date; provided, however, that the Managing Member shall have the obligation to make distributions as set forth in Sections 6.2 and 11.3(b)(iii); and provided, further, that, notwithstanding any other provision herein to the contrary, no distributions shall be made to any Member to the extent such distribution would render the Company insolvent or violate the Act.  For purposes of the foregoing sentence, insolvency means the inability of the Company to meet its payment obligations when due.  Promptly following the designation of a record date and the declaration of a distribution pursuant to this Section 6.1, the Managing Member shall give notice to each Member of the record date, the amount and the terms of the distribution and the payment date thereof.

Successors.  For purposes of determining the amount of distributions, each Member shall be treated as having made the Capital Contributions and as having received the distributions made to or received by its predecessors in respect of any of such Member’s Units.

Distributions In-Kind.  Except as otherwise provided in this Agreement, any distributions may be made in cash or in kind, or partly in cash and partly in kind, as determined by the Managing Member.  To the extent that the Company distributes property in-kind to the Members, the Company shall be treated as making a distribution equal to the Fair Market Value of such property for purposes of Section 6.1(a) and such property shall be treated as if it were sold for an amount equal to its Fair Market Value.  Any resulting gain or loss shall be allocated to the Member’s Capital Accounts in accordance with Sections 5.1 and 5.2.

The Company shall, subject to any restrictions contained in any agreement to which the Company is bound, make distributions out of the Company’s available cash for distribution to all Members on a pro rata basis in accordance with Section 6.1, at such times and in such amounts as the Managing Member reasonably determines is necessary to enable the PubCo Holdings Group, in the aggregate, to timely satisfy any and all U.S. federal, state and local and non-U.S. tax obligations (including any Company Level Taxes, but excluding any obligations to remit any withholdings withheld from payments to third parties) owed by the PubCo Holdings Group, in the aggregate; provided that, to the extent that the Managing Member determines in Good Faith that the Company does not have sufficient available cash for distribution, the amount of any distributions otherwise required to be made under this Section 6.2(a) shall be decreased as among the Members on a pro rata basis in accordance with the relative amount of the distribution that otherwise would be required to be made to each Member pursuant to such clause.

The Company shall, subject to any restrictions contained in any agreement to which the Company is bound and the Managing Member’s Good Faith determination as to the amount of the Company’s available cash (for the avoidance of doubt, taking into account any distributions reasonably expected to be made pursuant to Section 6.2(a) reasonably contemporaneously with such Tax Distribution Date), make distributions out of available cash for distribution on such Tax Distribution Date, to all Members on a pro rata basis in accordance with Section 6.1 to the extent required to cause (x) any 5% Holder, (y) any Member in which a 5% Owner (or any Affiliate thereof) holds a direct or indirect interest, provided that such Member has notified the Company of such status (unless the Company is otherwise aware of such status), and (z) each other Member (other than any member of the PubCo Holdings Group) who on such Tax Distribution Date holds (together with its Affiliates) at least five percent (5%) of the then-outstanding Units to receive a distribution at least equal to such Member’s Additional Tax Distribution Amount with respect to such Tax Distribution Date, provided that, to the extent that the Managing Member determines in Good Faith that the Company does not have sufficient available cash for distribution, the amount of any distributions otherwise required to be made on such Tax Distribution Date shall be decreased as among the Members on a pro rata basis in accordance with the relative amount of the distribution that otherwise would be required to be made to each Member pursuant to such clause.

Each member of the PubCo Holdings Group and each 5% Holder, if such Member so elects in writing at least fifteen (15) Business Days in advance of a Tax Distribution Date, shall be entitled to make a cash contribution to the Company, in an amount not greater than the amount of cash received by such Member pursuant to Section 6.2(b) on such Tax Distribution Date, in exchange for the issuance by the Company to such Member of a number of Units equal to (i) the amount of cash contributed to the Company divided by (ii) the Unit Reinvestment Price as of such Tax Distribution Date; provided that to the extent any such contribution would give rise to the issuance of fractional Units pursuant to the foregoing formula, but taking into account any recapitalization of Units pursuant to Section 6.2(c)(ii), such cash shall be retained by the contributing Member and no fractional Units shall be issued.  Any such contribution and issuance of Units shall be made on such Tax Distribution Date.

Effective at the end of such Tax Distribution Date, the Company shall recapitalize its Units (by reverse Unit split or otherwise) to the extent necessary to cause the aggregate number of Units held by the PubCo Holdings Group to equal the number of Class A Shares outstanding, and the Company, NFE Sub and PubCo, as applicable, shall make adjustments to the number of Class B Shares outstanding (including, for the avoidance of doubt, the issuance of new Class B Shares) as may be necessary or appropriate such that each Member (other than any member of the PubCo Holdings Group) holds one Class B Share per Unit held by such Member after taking into account such recapitalization.

To the extent that the Company makes a material distribution pursuant to Section 6.2(a), the Company shall provide notice to member of the PubCo Holdings Group and each 5% Holder reasonably in advance of such distribution, and the provisions of Sections 6.2(c)(i) and (ii) shall apply in respect of such distribution as if it were made on a Tax Distribution Date pursuant to Section 6.2(b).

For U.S. federal income (and applicable state and local) tax purposes, any contribution by a Member pursuant to this Section 6.2(c) shall not be treated as a contribution in exchange for the issuance of new Units, but instead the distribution to such Member pursuant to Section 6.2(a) or Section 6.2(b), as applicable, shall be treated as having been reduced by the amount of such contribution.

For purposes of determining whether a distribution may be made under Section 6.2(a) and Section 6.2(b), the amount of the Company’s available cash for distribution shall be determined by taking into account the following: (A) all Indebtedness, obligations and anticipated borrowing needs of the Company and its Subsidiaries, including planned or reasonably contemplated capital expenditures, contractual obligations (including restrictions on distributions under, or required payments with respect to, any credit facilities and other Indebtedness), (B) the extent to which the Company and its Subsidiaries may commercially reasonably draw on any undrawn lines of credit or other Indebtedness (considering, for the avoidance of doubt, the cost and other terms of such Indebtedness, the desired leverage ratio and net cash flow of the Company, the Company’s ability to repay any additional borrowing, and any other factors the Managing Member may deem appropriate in its Good Faith discretion), (C) any amounts reasonably expected to be contributed to the Company pursuant to Section 6.2(c)(i), and (D) such reserves and available undrawn lines of credit as the Managing Member determines in its Good Faith discretion to be necessary and appropriate.

NFE Sub shall be the sole Managing Member of the Company.  Except as otherwise required by Law, (i) the Managing Member shall have full and complete charge of all affairs of the Company, (ii) the management and control of the Company’s business activities and operations shall rest exclusively with the Managing Member, and the Managing Member shall make all decisions regarding the business, activities and operations of the Company (including the incurrence of costs and expenses) in its sole discretion without the consent of any other Member and (iii) the Members other than the Managing Member (in their capacity as such) shall not participate in the control, management, direction or operation of the activities or affairs of the Company and shall have no power to act for or bind the Company.

In connection with the performance of its duties as the Managing Member of the Company, except as otherwise set forth herein, the Managing Member acknowledges that it will owe to the Members the same fiduciary duties as it would owe to the stockholders of a Delaware corporation if it were a member of the board of directors of such a corporation and the Members were stockholders of such corporation.  The Members acknowledge that the Managing Member will take action through its board of directors, and that the members of the Managing Member’s board of directors will owe comparable fiduciary duties to the stockholders of the Managing Member.

The Managing Member may appoint, employ or otherwise contract with any Person for the transaction of the business of the Company or the performance of services for or on behalf of the Company, and the Managing Member may delegate to any such Persons such authority to act on behalf of the Company as the Managing Member may from time to time deem appropriate.

Except as otherwise set forth herein, the Chief Executive Officer will be responsible for the general and active management of the business of the Company and its Subsidiaries and will see that all orders of the Managing Member are carried into effect.  The Chief Executive Officer will report to the Managing Member and have the general powers and duties of management usually vested in the office of president and chief executive officer of a corporation organized under the DGCL, subject to the terms of this Agreement, and will have such other powers and duties as may be prescribed by the Managing Member or this Agreement.  The Chief Executive Officer will have the power to execute bonds, mortgages and other contracts requiring a seal, under the seal of the Company, except where required or permitted by Law to be otherwise signed and executed, and except where the signing and execution thereof will be expressly delegated by the Managing Member to some other Officer or agent of the Company.

Except as set forth herein, the Managing Member may appoint Officers at any time, and the Officers may include a president, one or more vice presidents, a secretary, one or more assistant secretaries, a chief financial officer, a general counsel, a treasurer, one or more assistant treasurers, a chief operating officer, an executive chairman, and any other officers that the Managing Member deems appropriate.  Except as set forth herein, the Officers will serve at the pleasure of the Managing Member, subject to all rights, if any, of such Officer under any contract of employment.  Any individual may hold any number of offices, and an Officer may, but need not, be a Member of the Company.  The Officers will exercise such powers and perform such duties as specified in this Agreement or as determined from time to time by the Managing Member.

Subject to this Agreement and to the rights, if any, of an Officer under a contract of employment, any Officer may be removed, either with or without cause, by the Managing Member.  Any Officer may resign at any time by giving written notice to the Managing Member.  Any resignation will take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation will not be necessary to make it effective.  Any resignation is without prejudice to the rights, if any, of the Company under any contract to which the Officer is a party.  A vacancy in any office because of death, resignation, removal, disqualification or any other cause will be filled in the manner prescribed in this Agreement for regular appointments to that office.

one or more employees or other agents of the Company or subordinates whom the Officer reasonably believes to be reliable and competent in the matters presented; and

any attorney, public accountant, or other Person as to matters which the Officer reasonably believes to be within such Person’s professional or expert competence.

Other than the Managing Member, the Members, acting in their capacity as Members, shall not have any right or power to take part in the management or control of the Company or its business and affairs or to act for or bind the Company in any way.  Notwithstanding the foregoing, the Members have all the rights and powers specifically set forth in this Agreement and, to the extent not inconsistent with this Agreement, in the Act.  A Member, any Affiliate thereof or an employee, stockholder, agent, director or officer of a Member or any Affiliate thereof, may also be an employee or be retained as an agent of the Company.  The existence of these relationships and acting in such capacities will not result in the Member (other than the Managing Member) being deemed to be participating in the control of the business of the Company or otherwise affect the limited liability of the Member.  Except as specifically provided herein, a Member (other than the Managing Member) shall not, in its capacity as a Member, take part in the operation, management or control of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company.

The Company shall promptly (but in any event within three (3) Business Days) notify the Members in writing if, to the Company’s knowledge, for any reason, it would be an “investment company” within the meaning of the Investment Company Act of 1940 (the “Investment Company Act”), as amended, but for the exceptions provided in Sections 3(c)(1) or 3(c)(7) thereunder.

Meetings of the Members may be called upon the written request of Members holding at least 50% of the outstanding Units.  Such request shall state the location of the meeting and the nature of the business to be transacted at the meeting.  Written notice of any such meeting shall be given to all Members not less than two (2) Business Days and not more than thirty (30) days prior to the date of such meeting.  Members may vote in person, by proxy or by telephone at any meeting of the Members and may waive advance notice of such meeting.  Whenever the vote or consent of Members is permitted or required under this Agreement, such vote or consent may be given at a meeting of the Members or may be given in accordance with the procedure prescribed in this Section 8.2.  Except as otherwise expressly provided in this Agreement, the affirmative vote of the Members holding a majority of the outstanding Units shall constitute the act of the Members.

Each Member may authorize any Person or Persons to act for it by proxy on all matters in which such Member is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting.  Every proxy must be signed by such Member or its attorney-in-fact.  No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy.  Every proxy shall be revocable at the pleasure of the Member executing it.

Each meeting of Members shall be conducted by an Officer designated by the Managing Member or such other individual Person as the Managing Member deems appropriate.

Any action required or permitted to be taken by the Members may be taken without a meeting if the requisite Members whose approval is necessary consent thereto in writing.

Except as provided in Section 4.6 or Section 9.1(b), no Member shall Transfer all or any portion of its Interest without the Managing Member’s prior written consent, which consent shall be granted or withheld in the Managing Member’s sole discretion; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed in the case of a Transfer to a 5% Owner or Subsidiary thereof (or any other entity through which a 5% Owner indirectly holds its interest in the Company solely for purposes of a substantially contemporaneous transfer to such 5% Owner or Subsidiary thereof). If, notwithstanding the provisions of this Section 9.1(a), all or any portion of a Member’s Interests are Transferred in violation of this Section 9.1(a), involuntarily, by operation of Law or otherwise, then without limiting any other rights and remedies available to the other parties under this Agreement or otherwise, the Transferee of such Interest (or portion thereof) shall not be admitted to the Company as a Member or be entitled to any rights as a Member hereunder, and the Transferor will continue to be bound by all obligations hereunder, unless and until the Managing Member consents in writing to such admission, which consent shall be granted or withheld in the Managing Member’s sole discretion.  Any attempted or purported Transfer of all or a portion of a Member’s Interests in violation of this Section 9.1(a) shall be null and void and of no force or effect whatsoever.  For the avoidance of doubt, the restrictions on Transfer contained in this Article IX shall not apply to the Transfer of any limited liability company interests of the Managing Member; provided that no Class B Shares may be Transferred unless a corresponding number of Units are Transferred therewith in accordance with this Agreement.

Without the Managing Member’s consent, a Member may Transfer all or a portion of its Units (together with the same number of Class B Shares) to a Permitted Transferee; provided that to the extent such Permitted Transferee fails to deliver (and has not previously delivered) a Redemption Notice with respect to such Units to the Company within ten (10) Business Days after such Transfer, or such Redemption for any reason is not completed in accordance with Section 4.6, such Permitted Transferee shall Transfer such Units (and Class B Shares) back to the applicable Member, unless such Transfer is otherwise permitted pursuant to Section 9.1(a). In addition, a Member may Transfer all or a portion of its Units (together with the same number of Class B Shares) to a Permitted Transferee or to an Additional Permitted Transferee; provided that such Units (and Class B Shares) are ultimately Transferred to such Additional Permitted Transferee.  In the case of multiple immediately successive Transfers, the provisions of this Section 9.1(b) shall apply mutatis mutandis to any Permitted Transferee as though such Permitted Transferee were admitted as a Member.

In addition to any other restrictions on Transfer herein contained, including the provisions of this Article IX, in no event may any Transfer or assignment of Interests by any Member be made (i) to any Person who lacks the legal right, power or capacity to own Interests; (ii) if such Transfer (A) would be considered to be effected on or through an “established securities market” or a “secondary market or the substantial equivalent thereof,” as such terms are used in Treasury Regulations Section 1.7704-1, (B) would result in the Company having more than one hundred (100) partners, within the meaning of Treasury Regulations Section 1.7704-1(h)(1) (determined taking into account the rules of Treasury Regulations Section 1.7704-1(h)(3)), or (C) would cause the Company to be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code or a successor provision or to be classified as a corporation pursuant to the Code or successor of the Code; (iii) if such Transfer would cause the Company to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in Section 3 (14) of ERISA) or a “disqualified person” (as defined in Section 4975(e)(2) of the Code); (iv) if such Transfer would, in the opinion of counsel to the Company, cause any portion of the assets of the Company to constitute assets of any employee benefit plan pursuant to the Plan Asset Regulations or otherwise cause the Company to be subject to regulation under ERISA; (v) if such Transfer requires the registration of such Interests or any Equity Securities issued upon any exchange of such Interests, pursuant to any applicable U.S. federal or state securities Laws; or (vi) if such Transfer subjects the Company to regulation under the Investment Company Act or the Investment Advisors Act of 1940, each as amended (or any succeeding Law).  Any attempted or purported Transfer of all or a portion of a Member’s Interests in violation of this Section 9.1(c) shall be null and void and of no force or effect whatsoever.

Other than in connection with Transfers made pursuant to Section 4.6, each Member shall, after complying with the provisions of this Agreement, but in any event no later than three (3) Business Days following any Transfer of Interests, give written notice to the Company of such Transfer.  Each such notice shall describe the manner and circumstances of the Transfer.

A Member making a Transfer permitted by this Agreement shall (i) no later than three (3) Business Days following such Transfer, deliver to the Company an affidavit of non-foreign status with respect to such Member that satisfies the requirements of Section 1446(f)(2) of the Code, or (ii) no more than fifteen (15) Business Days following such Transfer, provide to the Company proof that the transferee Member has properly withheld and remitted to the Internal Revenue Service the amount of tax required to be withheld upon the Transfer by Section 1446(f) of the Code.

The Company and any eligible Subsidiary may make an election (or continue a previously made election) pursuant to Section 754 of the Code for the taxable year of the Company that includes the date hereof and shall not thereafter revoke such election.  In addition, the Company shall make the following elections on the appropriate forms or tax returns, if permitted under the Code or applicable Law:

to adopt the calendar year as the Company’s Fiscal Year;

to adopt the accrual method of accounting for U.S. federal income tax purposes;

to elect to amortize the organizational expenses of the Company as permitted by Section 709(b) of the Code;

except where the Company Representative elects to apply Section 10.5(e), to elect out of the application of the partnership-level audit and adjustment rules of the Partnership Tax Audit Rules by making an election under Section 6226(a) of the Code, commonly known as the “push out” election, or any analogous election under state or local tax Law, if applicable; and

except as otherwise provided herein, any other election the Company Representative may deem appropriate and in the best interests of the Company.

Upon request of the Company Representative, each Member shall cooperate in Good Faith with the Company in connection with the Company’s efforts to make any election pursuant to this Section 10.2.

Withholding Tax Payments. Each of the Company and its Subsidiaries may withhold from distributions, allocations or portions thereof if it is required to do so by any applicable rule, regulation or Law, and each Member hereby authorizes the Company and its Subsidiaries to withhold or pay on behalf of or with respect to such Member any amount of U.S. federal, state or local or non-U.S. taxes that the Company Representative determines, in Good Faith, that the Company or any of its Subsidiaries is required to withhold or pay with respect to any amount distributable or allocable to such Member pursuant to this Agreement.

Tax Audits. To the extent that any income tax is paid by the Company or any of its Subsidiaries as a result of an audit or other proceeding with respect to such tax and the Company Representative determines, in Good Faith, that such tax specifically relates to one or more particular Members (including any Company Level Taxes), such tax shall be treated as an amount of taxes withheld or paid with respect to such Member pursuant to this Section 10.5. Notwithstanding any provision to the contrary in this Section 10.5, the payment by the Company of Company Level Taxes shall, consistent with the Partnership Tax Audit Rules, be treated as the payment of a Company obligation and shall be treated as paid with respect to a Member to the extent the deduction with respect to such payment is allocated to such Member pursuant to Section 5.2(k), and such payment shall not be treated as a withholding from distributions, allocations, or portions thereof with respect to a Member.

Tax Contribution and Indemnity Obligation. Any amounts withheld or paid with respect to a Member pursuant to Section 10.5(a) or (b) shall be offset against any distributions to which such Member is entitled concurrently with such withholding or payment (a “Tax Offset”); provided that the amount of any distribution subject to a Tax Offset shall be treated as having been distributed to such Member pursuant to Section 6.1, Section 6.2 or Section 11.3(b)(iii) at the time such Tax Offset is made. To the extent that (i) there is a payment of Company Level Taxes relating to a Member or (ii) the amount of such Tax Offset exceeds the distributions to which such Member is entitled during the same Fiscal Year as such withholding or payment (“Excess Tax Amount”), the amount of such (i) Company Level Taxes or (ii) Excess Tax Amount, as applicable, shall, upon notification to such Member by the Company Representative, give rise to an obligation of such Member to make a capital contribution to the Company (a “Tax Contribution Obligation”), which Tax Contribution Obligation shall be immediately due and payable. In the event a Member defaults with respect to its obligation under the prior sentence, the Company shall be entitled to offset the amount of a Member’s Tax Contribution Obligation against distributions to which such Member would otherwise be subsequently entitled until the full amount of such Tax Contribution Obligation has been contributed to the Company or has been recovered through offset against distributions, and any such offset shall not reduce such Member’s Capital Account. Any contribution by a Member with respect to a Tax Contribution Obligation shall increase such Member’s Capital Account but shall not reduce the amount (if any) that a Member is otherwise obligated to contribute to the Company.  Each Member hereby unconditionally and irrevocably grants to the Company a security interest in such Member’s Units to secure such Member’s obligation to pay the Company any amounts required to be paid pursuant to this Section 10.5. Each Member shall take such actions as the Company may reasonably request in order to perfect or enforce the security interest created hereunder. Each Member hereby agrees to indemnify and hold harmless the Company, the other Members and the Company Representative from and against any liability (including any liability for Company Level Taxes) with respect to income attributable to or distributions or other payments to such Member.

Continued Obligations of Former Members.  Any Person who ceases to be a Member shall be deemed to be a Member solely for purposes of this Section 10.5, and the obligations of a Member pursuant to this Section 10.5 shall survive until thirty (30) days after the closing of the applicable statute of limitations on assessment with respect to the taxes withheld or paid by the Company or a Subsidiary that relate to the period during which such Person was actually a Member.

Company Representative Discretion Regarding Recovery of Taxes.  Notwithstanding the foregoing, the Company Representative may choose not to recover an amount of Company Level Taxes or other taxes withheld or paid with respect to a Member under this Section 10.5 if the Company Representative determines, in its reasonable discretion, that such a decision would be in the best interests of the Members (e.g., where the cost of recovering the amount of taxes withheld or paid with respect to such Member is not justified in light of the amount that may be recovered from such Member).

The sale of all or substantially all of the assets of the Company; and

The determination of the Managing Member to dissolve, wind up, and liquidate the Company.

In the event of the dissolution of the Company for any reason, the Members shall commence to wind up the affairs of the Company and to liquidate the Company’s investments; provided that if a Member is in bankruptcy or dissolved, another Member, who shall be the Managing Member (“Winding-Up Member”) shall commence to wind up the affairs of the Company and, subject to Section 11.4(a), such Winding-Up Member shall have full right and unlimited discretion to determine in Good Faith the time, manner and terms of any sale or sales of the Property or other assets pursuant to such liquidation, having due regard to the activity and condition of the relevant market and general financial and economic conditions.  The Members shall continue to share profits, losses and distributions during the period of liquidation in the same manner and proportion as though the Company had not dissolved.  The Company shall engage in no further business except as may be necessary, in the reasonable discretion of the Managing Member or the Winding-Up Member, as applicable, to preserve the value of the Company’s assets during the period of dissolution and liquidation.

Following the payment of all expenses of liquidation and the allocation of all Profits and Losses as provided in Article V, the proceeds of the liquidation and any other funds of the Company shall be distributed in the following order of priority:

First, to the payment and discharge of all of the Company’s debts and Liabilities to creditors (whether third parties or Members), in the order of priority as provided by Law, except any obligations to the Members in respect of their Capital Accounts;

Second, to set up such cash reserves which the Managing Member reasonably deems necessary for contingent or unforeseen Liabilities or future payments described in Section 11.3(b)(i) (which reserves when they become unnecessary shall be distributed in accordance with the provisions of subsection (iii), below); and

Third, the balance to the Members, pro rata in accordance with the number of Units owned by each Member.

Except as provided in Section 11.4(a), no Member shall have any right to demand or receive property other than cash upon dissolution and termination of the Company.

Upon the completion of the liquidation of the Company and the distribution of all Company funds, the Company shall terminate and the Managing Member or the Winding-Up Member, as the case may be, shall have the authority to execute and record a certificate of cancellation of the Company, as well as any and all other documents required to effectuate the dissolution and termination of the Company.

Each Member irrevocably waives any right that it may have to maintain an action for partition with respect to the property of the Company.

Except as otherwise provided in this Agreement, (i) each Member shall look solely to the assets of the Company for the return of its Capital Contributions, and (ii) no Member shall have priority over any other Member as to the return of its Capital Contributions, distributions or allocations.

The terms and provisions of this Agreement may be waived, modified or amended (including by means of merger, consolidation or other business combination to which the Company is a party) with the approval of the Managing Member and each Member who at such time holds (together with its Affiliates) at least five percent (5%) of the then-outstanding Units; provided, however, that no amendment to this Agreement may:

modify the limited liability of any Member, or increase the liabilities or obligations of any Member, in each case, without the consent of each such affected Member; or

materially alter or change any rights, preferences or privileges of any Interests in a manner that is different or prejudicial relative to any other Interests, without the approval of a majority in interest of the Members holding the Interests affected in such a different or prejudicial manner.

Notwithstanding the foregoing subsection (a), the Managing Member, acting alone, may amend this Agreement, including Exhibit A, (i) to reflect the admission of new Members, Transfers of Interests, the issuance of additional Units or Equity Securities, as provided by the terms of this Agreement, and, subject to Section 12.1(a), subdivisions or combinations of Units made in compliance with Section 4.1(g), (ii) to the minimum extent necessary to comply with or administer in an equitable manner the Partnership Tax Audit Rules in any manner determined by the Managing Member and (iii) as necessary to avoid the Company being classified as a “publicly traded partnership” within the meaning of Section 7704(b) of the Code.

No waiver of any provision or default under, nor consent to any exception to, the terms of this Agreement or any agreement contemplated hereby shall be effective unless in writing and signed by the party to be bound and then only to the specific purpose, extent and instance so provided.