LIMITED LIABILITY COMPANY AGREEMENT
MULE SKY LLC
This Limited Liability Company
Agreement (this “Agreement”) of Mule Sky LLC (the “Company”) is entered into by the
person or entity named as Member in Annex A hereto, as the sole member of the Company (the “Member”),
as of the 28th day of February, 2019.
Xxxxxx Xxxx, as an “authorized person” within the meaning of the Delaware Limited Liability Company Act (6 Del. C.
§§ 18-101, et seq.), as amended from time to time (the “Delaware Act”), has executed, delivered
and filed the initial Certificate of Formation of the Company with the Secretary of State of the State of Delaware on February 28, 2019.
Upon the Member’s execution and delivery of this Agreement, Xx. Xxxx’x powers as an “authorized person” shall
cease, and the Member shall thereupon become the designated “authorized person” and shall continue as the designated “authorized
person” within the meaning of the Delaware Act. Upon the filing of the initial Certificate of Formation of the Company with the
Secretary of State of the State of Delaware, and the entering into of this Agreement by the Member, the Member hereby forms a limited
liability company under the Delaware Act. The Member shall execute, deliver and file any other certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in any jurisdiction in which the Company may wish to conduct
The name of the Company is Mule Sky LLC. The business of the Company shall be conducted under such name or such other names that comply
with applicable law as the Member may from time to time deem necessary or desirable.
3. Purpose and
Powers. The purpose of the Company shall be to engage in any lawful business or activity for which limited liability companies may
be formed under the Delaware Act. The Company shall possess and may exercise all of the powers and privileges granted by the Delaware
Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary
or convenient to the conduct, promotion or attainment of the purpose of the Company.
Office and Registered Agent. The address of the registered office of the Company in the State of Delaware is 0000 Xxxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and the name of the registered agent of the Company for service of process on the Company at such
address is Corporation Service Company.
Simultaneously with its execution of this Agreement, the Member is hereby admitted as the sole member of the Company and agrees to be
bound by the terms of this Agreement. The Member shall have the sole limited liability company interest (as defined in the Delaware Act)
in the Company (the “Interest”) and the respective other rights, powers, duties and obligations provided in
the Delaware Act, except, to the extent permitted by the Delaware Act, as otherwise provided herein.
6. Capital Contribution.
The Member has made a contribution to the capital of the Company in the amount set forth opposite the Member’s name on Annex
A hereto. The Member shall have the right, but not the obligation, to make additional capital contributions to the Company as the
Member in its sole discretion may determine.
and Distributions. The net profits and net losses of the Company, and other items of income, gain, loss, deduction and credit, will
be allocated 100 percent to the Member for capital account and federal income tax purposes, and the Company, as a separate entity, is
to be disregarded for federal income tax purposes. Subject to Sections 18-607 and 18-804 of the Delaware Act, the Company shall make such
distributions to the Member as the Member determines.
(a) The management
and control of the Company shall be vested entirely in the Member. The Member shall have all the rights and powers that are conferred
by law or are otherwise necessary, advisable or convenient to the discharge of the Member’s duties and to the management of the
business and affairs of the Company. No person or entity dealing with the Company shall have any obligation to inquire into the power
or authority of the Member acting for such purposes on behalf of the Company.
(b) Without limiting
the generality of Section 8(a) hereof, the Member may appoint such officers as it shall deem necessary or advisable who shall hold
their offices for such terms, shall have authority (subject to such conditions as may be prescribed by the Member) to sign deeds, mortgages,
bonds, contracts or other instruments on behalf of the Company and such authority as is customary for their respective offices (subject
to any limitation prescribed by the Member) and shall exercise such other powers and perform such other duties as shall be determined
from time to time by the Member. Unless otherwise determined by the Member, each such officer shall hold office until his or her successor
is chosen and qualified. Any officer appointed by the Member may be removed at any time, with or without cause, upon notice by the Member.
Any vacancy occurring in any office of the Company shall be filled by the Member in its sole discretion. Any number of offices may be
held by the same person. The initial officers of the Company shall be the persons listed on Annex B.
9. Transfer or
Pledge of Interest; Admission of Additional Members.
(a) The Member may
assign its Interest in whole or in part at any time. Upon assignment of the Member’s entire Interest to a transferee, the transferee
shall automatically be deemed admitted to the Company as a substituted member of the Company, the Member shall simultaneously be deemed
to have resigned from the Company as a member of the Company, and the Company shall continue without dissolution (and all applicable references
herein to the “Member” shall be read as references to the transferee as the substituted member of the Company); provided,
in any event, that the transferee must agree in a document or instrument to be bound by the terms of this Agreement. One or more additional
members of the Company may be admitted to the Company with the consent of the Member. Upon the admission to the Company of any additional
member(s), the members of the Company shall cause this Agreement to be amended and restated to reflect the admission of such additional
member(s) and the initial capital contribution, if any, of such additional member(s) and the intention of the members to cause the Company
to be classified as a partnership or corporation for federal income tax purposes, and to include such other provisions as the members
may agree to reflect the change of status of the Company from a single member limited liability company to a limited liability company
with two or more members.
(b) Any provision
to the contrary contained in this Agreement notwithstanding, the Interest may be pledged to any lender or lenders as collateral for the
indebtedness, liabilities and obligations of the Member and/or any of its subsidiaries to such lender or lenders, and any such pledged
limited liability company interests shall be subject to such lender’s or lenders’ rights under any collateral documentation
governing or pertaining to such pledge. The pledge of such limited liability company interests shall not, except as otherwise provided
in such collateral documentation, cause the Member to cease to be a member of the Company or to have the power to exercise any rights
or powers of a member of the Company and, except as provided in such collateral documentation, such lender or lenders shall not have any
liability solely as a result of such pledge. Without limiting the foregoing, the right of such lender or lenders to enforce their rights
and remedies under such collateral documentation hereby is acknowledged and any such action taken in accordance therewith shall be valid
and effective for all purposes under this Agreement (regardless of any restrictions herein contained) and any assignment, sale or other
disposition of the Interest by such lender or lenders pursuant to any such collateral documentation in connection with the exercise of
any such lender’s or lenders’ rights and powers shall be valid and effective for all purposes, including, without limitation,
under Section 18-702 of the Delaware Act and this Agreement, to transfer all right, title and interest of the Member hereunder to itself
or themselves, any other lender or any other person (each an “Assignee”) in accordance with such collateral
documentation and applicable law (including, without limitation, in accordance with such collateral documentation and applicable law,
the rights to participate in the management of the business and the business affairs of the Company, to share profits and losses, to receive
distributions and to receive allocation of income, gain, loss, deduction, credit or similar item) and such Assignee shall be a member
of the Company with all rights and powers of a member of the Company. Such assignment shall not constitute an event of dissolution under
Section 11 hereunder. Further, no lender or any such Assignee shall be liable for the obligations of any member assignor to make
contributions. The Member approves all of the foregoing and agrees that no further approval shall be required for the exercise of any
rights or remedies under such collateral documentation. For purposes of this Agreement, the Interest and any certificate representing
the same shall be deemed a security governed by Article VIII of the Uniform Commercial Code.
of Members; Events of Bankruptcy. Except as provided in the mandatory provisions of the Delaware Act and pursuant to the second sentence
of Section 9, no right is given to any member of the Company to resign from the Company. The Member shall not cease to be a member
of the Company upon the happening of any of the events specified in Section 18-304 of the Delaware Act.
and Term of the Company. The Company shall dissolve upon any act or event causing the dissolution of the Company under the Delaware
Act, unless, if permitted by the Delaware Act, the Company is continued in accordance with the Delaware Act. Subject to an earlier dissolution
as described in the preceding sentence, the Company shall have a perpetual existence.
of Liability and Indemnification of Member.
(a) Except as otherwise
required by the Delaware Act, the Member shall not be liable for the debts, obligations or liabilities of the Company, whether arising
in contract, tort, or otherwise, solely by reason of being a member of the Company.
(b) The Member shall
not be liable to the Company or to any other member of the Company or other person or entity who may become a party to or bound by this
Agreement for any breach of this Agreement or of any duties (including fiduciary duties) arising under or in connection with this Agreement
or the Company other than for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith
and fair dealing.
(c) To the fullest
extent permitted by applicable law, the Company shall (i) indemnify and hold harmless any person or entity and such person’s or
entity’s executors, administrators, heirs, legal representatives, successors and assigns (each, a “Covered Person”)
against all expenses, attorneys’ fees, court costs, judgments, fines, amounts paid in settlement and other losses incurred or suffered
by such Covered Person by reason of the fact that such person or entity is or was a member, manager, officer, authorized person, employee
or agent of the Company or is or was serving at the request of the Company as a member, manager, director, officer, authorized person,
employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, domestic or
foreign and (ii) advance expenses incurred by a Covered Person in defending or otherwise participating in any threatened, pending or completed
action, suit or proceeding, whether civil criminal, administrative or investigative that such Covered Person was or is a party or was
or is treated to be made a party by reason of the fact that such person or entity is or was a member, manager, officer, authorized person,
employee or agent of the Company or is or was serving at the request of the Company as a member, manager, director, officer, authorized
person, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, domestic
or foreign in advance of its final disposition to the fullest extent permitted by applicable law upon receipt of an undertaking by the
Covered Person to repay such amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal that such Covered Person is not entitled to be indemnified by the Company for such expenses under this Section
12 or otherwise.
This Agreement may be amended by the Member; provided, however, that any amendment to this Agreement must be in writing and signed by
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect
to any choice of law principles.
The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the
validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party or
to any circumstance, is judicially determined not to be enforceable in accordance with its terms, the court judicially making such determination
may modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases,
and in its modified form, such provision will then be enforceable and will be enforced.
of Agreement. Pursuant to Section 18-201(d) of the Delaware Act, this Agreement shall be effective as of the date first written above.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned
has executed this Limited Liability Company Agreement as of the date first written above.
||GULFPORT ENERGY CORPORATION|
||/s/ Xxxx Xxxxxxx|
||Chief Financial Officer|
[Signature Page to Limited Liability Company Agreement]
||Capital Contribution|| |
|Gulfport Energy Corporation|
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(as of February 28, 2019)
|Xxxxx X. Xxxx
||Chief Executive Officer and President|
||Chief Operating Officer|
||Chief Financial Officer, Vice President and Secretary|
|Xxxx X. Xxxxxxxxx XX
||Vice President and Assistant Secretary |