In Re Marty Berry and Axis Midstream Holdings, LLC v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 11, 2025
• Docket: 15-25-00016-CV
• Status: Published

Opinion

ACCEPTED 15-25-00016-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/11/2025 3:55 PM No. 15-25-00016-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS IN THE AUSTIN, TEXAS 2/11/2025 3:55:15 PM FIFTEENTH COURT OF APPEALS CHRISTOPHER A. PRINE Clerk AUSTIN, TEXAS

In re,

MARTY BERRY AND AXIS MIDSTREAM HOLDINGS, LLC

Relators

RELATORS’ APPENDIX VOLUME 3 OF 5

Original proceeding brought from Business Court 11A, Cause No. 24-BC11A-0025 The Honorable Sofia Adrogue, Presiding

Douglas A. Allison State Bar No. 01083500 LAW OFFICES OF DOUGLAS A. ALLISON 403 N. Tancahua Street Corpus Christi, TX 78401 Telephone: (361) 888-6002 Facsimile: (361) 888-6651 Email: doug@dallisonlaw.com

COUNSEL FOR RELATORS VERIFICATION OF APPENDIX

STATE OF TEXAS § COUNTY OF NUECES §

Before me, the undersigned notary, on this day personally appeared Douglas A. Allison, the affiant, a person whose identity is lmown to me. After I administered an oath to affiant, affiant testified:

"My name is Douglas A. Allison. I am of sound mind and capable of making

this affidavit. The facts in this affidavit are within my personal knowledge and

are true and conect.

"I am serving as counsel for the relater. All of the documents included in

the appendix to this petition are true copies."

Isl Douglas A. Allison

KIM BRUNKEN HOEFER Notary ID #5348297 My Commission Expires August 4, 2025

COMMISSION EXPIRATION

60 APPENDIX VOLUME 3 OF 5 TABLE OF CONTENTS

APPENDIX 31………………………………………………..…….….Dec. 6, 2024 Partial Hearing Transcript Cause No. 24-BC11A-0025 th 11 Business Court, Harris County, Texas

1 EXHIBIT A

109 LDMA Limited Partnership General Partner Limited Partners – 97% Becon, Inc. • Dennis – 1/3 • Marty, Dennis, & Lawrence – 19% each • Marty – 1/3 • Marty, Dennis, & Lawrence Trusts – 11 2/3% each • Lawrence – 1/3 • Lone Star Equipment – 5%

Berry GP, Inc. (dba Berry Contracting, Inc.)

Bay, Inc. 1% ownership General Partner ~'-----

Becon Holdings, Inc. (Nevada Corp.) 99% ownership Limited Partner

Berry Contracting LP (nka) Berry Holdings, LP (Delaware)

Berry Operating Company LLC

99% ownership 1% ownership Limited Partner General Partner

Berry Contracting LP (Texas) (dba Bay Ltd.) 110 EXHIBIT B

111 BYLAWS OF

BERRY CONTRACTING, INC.

I.

TITLE: The title of the corporation is Berry Contracting,

Inc.

II .

LOCATION: The location of its principal office shall be

1414 Corn Products Road in the City of Corpus Christi, Nueces County,

!Texas III.

CORPORATE SEAL: The corporate seal of the company shall

·have inscribed thereon: "Berry Contracting, Inc."

IV.

DIRECTORS: The property and business of the company wil I

be managed and controlled by a board of directors consisting of

'not less than three nor more than seven members. They shall hold

office until the next annual meeting of the shareholders or until

·their successors are elected and have qualified.

V. POWERS OF DIRECTORS: The board of directors shal I have the

:management of the business of the company and in addition to the

powers and authorities by these bylaws expressly conferred upon

:them, may exercise all such powers and do all such acts and

•things as may be exercised or done by the corporation, but subject,

nevertheless, to the provisions of the statute, of the charter

112 and of these bylaws and to ·any regulations from time to time made ,_"" ,·?·Y the share ho I de rs _, provided that no reg u I at ions so made sh a 11 I invalidate any prior act of the direcl-ors which would have been

yalid if such regulations had not been made. I

Without prejudice to the general powers conferred by 1-he

last preceding clause and other powers conferred by these bylaws,

it is hereby express I y declared that the board of directors shal I

have the following powers, that is to say:

To purchase and otherwise acquire for the company and proper-

ty,rights or privileges which the company is authorized to acquire,

iat _such prices and on such terms and conditions and for such con- ' Is1. d era t.10n as they think proper. At their discretion, to pay for

any property or rights acquired by the company, either wholly or ;

partially, in money or in stocks, bonds, debentures, or other securi-

ties of the company.

To appoint, and at their discretion, remove or suspend,

such subordinate managers, officers, assistants, clerks, agents,

.and servants, permanent! y or temporari I y, as they may from time to

time think fit, and to determine their duties and fix, and from

time to time change their sol aries or emoluments, and to requ·ire

security in such instances and in such amounts as_.they think

proper.

To confer, by resolution, upon any officer of the company

the right to choose, remove or suspend such subordinate officers,

',!gents or factors.

To appoint any person or persons to accept and hold in

t-rust for the company any property belonging to the company or in

113 • - - r , "• • --,.•--o_-,)

which it is interested or for any other purpose, and to execute

and do al I such duties and things as may be requisit~ in relation

.{ )" ijo any such trust. "·r I To create, make and issue mortgages, bonds, deeds of trust,

trust agreements and negotiable or transferable instruments and

securities, secured by mortgage or otherwise, and to do every other i act and thing necessary to effectuate the same.

To determine who shal I be authorized to sel I on behalf of

the company bills, notes, receipts, acceptances, endorsements,

!checks, releases, contracts and documents.

From time to time to provide for the management of the affairs

,of the company in such manner as they think proper and in part i cu I a r , / \ ... •'; from time to time to delegate any of the powers of the board of

directors to any committee, officer or agent, and to appoint any

person to be the agent of the company with such powers, including

the powers to subdelegate, and upon such terms as may be thought

VI.

MEETINGS OF THE DIRECTORS: The directors elected at the

annual meeting of the shareholders shall meet immediately follow-

ing each such meeting for the purpose of electing officers and (; • .. i considering any other business that may come before the board.

Other meetings of the directors may be held at such times,

at such places and upon such notice as may be determined from

time to time by the board.

114 A majority of the whole board of directors shall be

necessary to constitute a quorum for the transaction of business

t· \ :•,..._,..I a t a I I me e t i n g s . vJ-11 ._/{UUU~ J/ Jtl

V 11.

MEETINGS OF THE SHAREHOLDERS: Meetings of the shareholders

shall be held in the City of Corpus Christi, Nueces County, Texas,

pnless otherwise specified in the notice of any such meeting or

waiver thereof.

Al I shareholders entitled to vote may vote at al I meetings,

:either in person ·or by proxy in writing. All proxies shall be !

filed with the secretary of the meeting before being voted upon. I 1A m a j o r i t y o f t h e s h a r e h o I d e r s i n a m o u n t o f s to c k i s s u e d a n d o u t -

standing, represented by the holders in person or by proxy, shal I

be requisite at all meetings to constitute a quorum for an election

of directors or the transaction of other business.

The annual meeting of the shareholders shall be held on

;the second Tuesday of each August at 10 0 1 clock a.m.

·in each year, beginning•with the year 1963, if not a legal holiday,

and if a legal holiday, then on the day following, when they shall

elect by a plurality vote, by ballot, a board of directors to serve

.for one year and until their successors are elected and have quali-

(~)" ·fied, each shareholder being entitled to vote· for each share of

s t .o c k s t a n d i n g r e g i s t e r e d i n h i s o r h e r n a m e o n t h e t w e n t i e t h d a y

preceding the election, exclusive of the date of such election.

Notice of the annual meeting shall be mailed by the secretary

.to each shareholder entitled to vote at his or her last known post

115 6ffice address, at least ten days prior to the meeting.

Special meetings of the shareholders may be called by the

president, and sh al I be cal led at the re9uest in writing or by I ,' i vote of a majority of the board of directors or at the request in

writing of·the holders of a majority of the stock of the company

issued and outstanding.· Notice of each special meeting, indicating

briefly the object or objects thereof, shall be mailed by the

secretary to each shareholder at his or her last known post office

address at least five days prior to the meeting.

V 111.

STANDING COMMITTEES: The board of directors may appoint

Jr o m t h e i r n u m b e r , s t a n d i n g ·c om h1 i tt e es a n d m a y i n v e s t t he m w i t h I !

al·I their own powers, subject to such conditions as they may pre-

-scribe , a-n d a 11 committees thus appointed sh a 11 keep reg u I a r min -

utes of their transactions and shall cause them to be recorded in

books to be kept for that pu-rpose in the office of the company

·and shall report the same to the board of directors at their regular

meeting.

IX~/) l'Ji I OFFICERS: T h e o ff i c e r"S o f th e c o m p a n y s h a I I c o n s i s t o f

a presjdent, one or more vice presidents, a secretary and treasurer, . fl'"~---.... 1,1 \ I\~• - ,- .a n d on e or more ass i s tan t s e c re tar i es or treas u re rs , an d s u c h

subordinate officers as may from time to time be elected or ap-

pointed by the board of directors. Any person may hold more than

one such office, except that the president and secretary shall not

be the same person.

116 xjt;1r~ll1 Jq'il OFFICERS - HOW CHOSEN: At the first meeting after their

~lection and annually thereafter beginning on the second Tuesday

,{ , b! f Au g us t , 1 9 6 3·, th e cl i r e c to rs s h a I I e I e c t t he o ff i c e rs "-._j

of the corpoTation, such officers to hold office for one

year and until their successors are elected and have qualified,

They shall be subject to removal during their respective terms

of office for cause and may be removed at any time by a majority

vote of the directors then in office,

XI. PRESIDENT: The president shal I be the chief executive

officer of the company; he shall preside at all meetings of the

,directors; he shall have general and active management of the

'business of the company; and shall see that all orders and resolu-

tions of the board are carried into effect. He shall execute all

contracts and agreements authorized by the board, He shall have

the general supervision and direction of all the other officers

·of the company and shall see that their duties are properly per-

formed, He shall be ex-afficio member of all standing committees

and shall have the general powers and duties of supervision and

management usually vested in the office of the president of a

corporation,

The president shall submit a report of the operations of

the company for the fiscal year to the directors at their first

regular meeting in each year, and to the shareholders at their !

117 )annual meeting, and from time to time shall report to the

dire.ctors all matters within his knowledge which the i~terests

;of the company ,may require to be brought to their notice. I X/-A - ~ ~ I I, /t/ 'ifI X 11 ~ , d u t ~ ii; /4'1/ VICE PRESIDENT: Any vice president sh al I be vested with

all the powers and shall perform all the duties of the president

in his absence, and sh al I perform such other duties as may be pre-

scribed by the board of directors. f //1'// XI l-11 ~ ~ I1 -, • X 111.

SECRETARY: The secretary shall attend all session$ of the

board and act as clerk thereof and record al I votes and the

minutes of all proceedings in a book to be kept by him for that

purpose and sh al I perform I ike duties for the standing committees

when required. • ,Hhe sh al I keep in safe custody the seal of the

company and when authorized to do so shal I affix the seal of

said corporation to any instrument requiring the same, and the

seal when so affixed shall be attested by the signature of the

secretary.

He shall see that proper notice is given of all meetings

of the shareholders of the company and of the board of directors

and sh al I perform al I such other duties as may be prescribed

from time to time by the board of direct@lts or the president.

XIV.

TREASURER: The treasurer shall keep full and accurate

records of receipts and disbursements in books of accounts be-

longing to the company and shall deposit all money and other

valuable effects in the name and to118the credit of the company Iin the depository or depositories designated from time to time by resolution of the board of directors. I 1 He shall disburse funds of the company as may be ordered

by the board, or the president, taking proper vouchers for such

disbursements, and shall render to the president and directors

·at the regular meetings of the board, or whenever they may re-

quire it, an account of all his transactions as treasurer and

of the financial condition of the company. He shall keep the

accounts of stock regrstered and transferred in such form and ' I •manner I and under such regulations as the board of directors may

prescribe. If required by the board of directors, he sh al I give '•

the company a bond in form and in a sum with security satisfactory

to the board of directors, for the faithful perfor~ance of the

duties of his office and the restoration to the company, in case

of his death, resignation or removal from office, of all books,

papers, vouchers, money and other property of whatever kind in

his possession belonging to the company. He shall perform such

other duties as the board of directors may from time to time

prescribe or require,

x v ~ / / , ,qr/I VACANCIES: If the office of any director, or of the

president, vice president, any secretary or treasurer or other

officer or agent, one or more, becomes vac~nt by reason of

death, resignation, retirement, disquali'fication, removal from

office or otherwise, the directors in office, although less

119 ,_.,,,,_..,,~,~,,,-., . lthan . um , by a m a j or i t y vote , rn·a y c ho o s e a s u c c es so r or a q u or I

successors who shall hold office for the unexpired term in

.respect of which such vacancy occurred.

I I XVl_j)1¢~/I, 111' 1 D·U T I E S D E l E GA T E D : I n the case of the abs enc e of a n y

officer of the company, the board of directo"rs may delegate

the powers and duties of such officer to any other officer or

to any director for the time being.

XV 11.

CERTIFICATE OF STOCK: Every shareholder shall have a

certificate, signed by the president or vice president, and either

the treasurer or the secretary, certifying the number of shares I / 'owned by him in such corporation.

XVIII.

TRANSFERS OF STOCK: All transfers of the stock of the

company shall be made as required by the Uniform Stock Transfer

Act. Certificates shall be surrendered and cancelled at the

time of transfer. No transfer of stock shall be made within ten

days next preceding the day appointed for paying a dividend.

XIX.

LOSS OF CERTIFICATES: In the case of loss or destruction

of a certificate of stock, another may be issued in its place

upon_ proof of such loss or destruction and the giving of a

. s a t i s fa c t o r y &10 n d o f i n de mn i t y . The p r o v i s i o n s o f t h e Un i f o r m

Stock Transfer Act as to court order may be required.

XXI.

DIVIDENDS: Dividends upon the capital stock of the 120 6' o m p a n y w· h e n e a r n e d m a y b e d e c 1a r e d b y t h e b o a r d o f d i r e c to r s

at a_ny regular or special meeting. Before the payment of any I

" dividends or m a,k in g any dist rib u ti on of profits there may be ·-.~ / ·'r set aside out of the net profits of the company such sum or ' . sums as the directors from time to time in their absolute

discretion think proper as a reserve fund to meet contingen-

cies, or for equalizing dividends, or for any such other purpose

as the directors may think conducive to the best interest of

the company.

CHECKS FOR MONEY: All checks, drafts, or orders for the

payment of money shall be signed as directed by resolution of I .. / the board of directors from time to time.

XXI 11.

DEPOSITORY: A depository or depositories for the corporation

shall be designated from time to time by the board of directors,

and requested and directed to honor checks, drafts or other

orders for the payment of money drawn in this corporation's

name, including those payable to the individual order of any

person or persons who name or names appear thereon as signed

·or signers thereof, when bearing or purporting to bear the sig-

n a t u r e o f a n y p e r s o n o r p e r s o n s a u t h o r i z· e d t o s i g n t h e s a m e b y

resolution of the board of directors, and said depository or

depositories shall be entitled to honor and to charge this

corporation with such checks, drafts, or other orders so drawn

121 •• • ••• - - 0 n t i I a n d un I e s s s u c h a u t h o r i t y a n d d e s i g n a t i on i s r e v o k e d b y

res o·I u ti on of the board of di rectors of said corporation and J ) 'i ypon due notice· to said depository or dep~sitories. '-~..., .,.,/

XX IV.

BOOKS AND RECORDS: The books, accounts and records of

the company shall be open to inspection by the shareholders at

all reasonable times which are to be fixed by resolution of the

_board of di rec tors.

NOTICE: Whenever ·under the provisions of the statute or

by these byla\¥s notice is required to be given to any director,

officer or shareholder, it shall not be construed to mean personal

notice, but such notice may be given in writing by depositing the

same in the post office or letter box in a postpaid, sealed

wrapper, addressed to sue h director, officer or shareholder at

his or her address as the same appears in the books of the cor-

poration; and the time when the same shall be mailed shall be

deemed to be the time of the giving of such notice, , .J) 1q~(p XXVl~~q1,

WAIVER OF NOTICE: Whenever any notice whatever is given

. or required to be given to any director, officer or shareholder, ("-•~''.' .• .. __ f .. a waiver thereof in writing, signed by said shareholder, director/

or officer, whether before or after the time stated 1n said

;waiver, sh al I be deemed equivalent thereto.

XXVI I.

AMENDMENT OF BYLAWS: T h e s e b y I a w s m a y b e a m e n d e d . a _t a n y 122 ,;.,.~--· , ...., ········- •.

,

time. and from time to time by a majority of the entire board of .-· . :) directors then i,n office at any regular c;>r special meeting of the ''"'-..,...!

board of directors or by the vote of a majority !:of the shareholders

i ·n a m o u n t o f t h e s to c k t he n i s s u e d a n d o u ts t a n d i n g a t a n y r e g u I a r

o r s p e c i a 1. m e e t i n g. o f t h e s h a r e h o I d e rs .

By-Laws approved as correct:

~y-Laws attested as duly adopted:

attie -Treas.

123 j !

AMENDMENT TO THU BY=LAWS BERRY CON'fRACTXNGr. INCo

BE- IT RESOLVED th.at the By=Laws of Be1"ry Contracting!' Inco be amended as follows: - That A-tt:i.cle XXV and XXVI be amended by adding the following phrase to said Art:lcle XXVI: "Attendance i.n pei.. son or by proxy at any meeting of shareholders, either annual or special, shall constitute waiver of notice of such shareholders meeting and it will not ·he necessary fo1a a fo1·mal written waiver of not:i..ce to be executed by·such shareholde:rs.u "Attendance in person at any directors meeting~ whether annual p regular, special or called s, shall constitute waiver of notice of call of I' y. ' such meeting and shall not be necessary for \.~ ,) such director so attending in person to execute a formal wri.tten W8iver of notice of sameo" By-La.ws adopted this 9th day of August, 1966, a.t tlre annual meeti.ng of sha1·eholders and a copy ordered slgned and affixed to the By-La.'1.•15 of the Corporationo Certified correct:

ATTEST: ~~~ Marvhi Y. Berry 1• Presldent anc Chairman of Shareholders Meet

r:.. Boyce, Sefx-etary of --= f,fatt?r.e ?

Sha1rnholde1.·s Meetin1g and Secretary~ Treasurer of Corporation

.-'1 I,

124 v1-M

(New Section)

NOTICE OF DIRECTORS MEETINGS: No notice of annual meeting need be given di rectors.

IX (As Amended)

OFFICERS: The officers of the company shall consist of a President, an Exe~µtive Vice President, one or more Vice Presidents, a General Counsel, a Secretary and Treasurer and one or more assis- tant Secretaries or Treasur¢rs and such subordinate officers as may from time to time be elesterj py the Board of Directors or appointed by the President. '

OFFICERS - HOW CMOS~N AND REMOVED: The President, Executive Vice President, Vice Presidents and the Secretary of the Corporation shall be elected by the' Baahl'pf Directors at either its annual meeting (to be held•on the second Tuesday of August of each year immediately following the annual meeting of the Shareholders) and shall serve for one year or 4ntil their successors have been elected provided however, that vacancies may be fi] led ,or new officers elected at any special meeting of the Board of Directors called for such purpose. All other Corporation employees shall be appointed by the President. The salarie~•'-nd emoluments of all officers shall be determined by the President s~pject only to the right of review by the Board of Directors on the''ijritten request of a majority of the entire Board of Directors,'tiut':provided that no such review shall have retroactive effect'on ?nY officer. Any officer may be removed by a majority vote of the Boi[d' of Directors. '.(.

XI -A (New Sec;:tion)

EXECUTIVE VICE PRESIDENT: There is hereby created the office of. Executive Vice President, The Executive Vice President shall be a person thoroughly familiar 0iih the broad spectrum of activities and projects of the Corporail~n and its subsidiary entities and shall be a person knowledgeable in the·bµsiness and professional affairs of the Corporation. The Executive.Vice President shal 1 act for, as and in the place of the Presi~jni'ln the event of absence or dis- ability of the President. Iri ·acJdition, the Executive Vic_e President shal 1 supervise the Vice Pr¢$}~ents, the Secretary, managers, • departments and activities ~i directed by the President and is vested with broad executive management of the Corporation subject to direction of the Board of Directors and the President.

XI I (As Amended)

VICE PRESIDENT: If both the President and the Executive Vice President be absent, disabled or unable to serve or fulfill their duties, any vice president may and shall serve in the place of and perform all or any of the duties of the President and/or Executive Vice President; and shall1 In addition, perform such regular and other duties, including superv(sipn of ·departments, as may be prescribed ·by the Board of Dir,ctors or delegated or assigned by the President or Executive Vi·tij '- .. P~esident. \

X11 ,A (New Section)

GENERAL COUNSEL: There is herewith created _the office of General Counsel of Berry Contracting, Inc. The person appointed General Counsel may be also d

125 -2- generally perform the duties of Corporate Attorney under the direction of the President~ Executive Vice President and the Board of Directors~ The ·~eneral Counsel shall be a licensed attorney at law and a person schooled and knowledgeab1e in general corporatlo~ ia~ and other attivlties in which the company engages. -if the General Counsel is also na~ed Vice President, he shall perfqr~ .. ~4Fh executive duties as pertains to the office of Vjc~•PrD~i~,rit' and as be assigned and being in addition to that of'. Girier~r:·counsel. .~ .. ~

·VACANCIES: !f the Rff1~~ of any director or any officer becomes vacant by reaspn"af·d~?th, resignation, retirement, disqualification or removal from office or otherwise, the Directors then fn office, although.less than a quorum may, by a majority vote, choose a-sµccessor or successors who shall hold such office for th~ unexpired term of such officer orofficers and until th~ir successors be nominated and elected. •• : ~ I • •

XV.I ........ ... ,• (As Arnen~ed) .., r DUTIES DELEGATED: In tR~.case of the absence of any officer of the Company, th~:ao~rd of Directors or the President may delegate for temporary pyrposes the powers and duties of such officer to any other officer· or to any other Director.

I, R. W. Black, being Secretary of Berry Contracting, Inc. do certify that the foregoing amendments to the Bylaws of Berry Contracting, Inc. were duly, lawfully and legally adopted at an annual meeting of the Board of Directors held pursuant to the Bylaws on the 11th day of August, 1981. WITNESS my hand and the seal of the corporation .

. i l- ~ R. W. BLAC7Secretary

"!"",:-:; ; \ . :

·--··•' ;~,:

126 -3- AMENDMENT TO THE BY-LAWS BERRY CONTRACTING, INC.

BE IT RESOLVED that the By-Laws of Berry Contracting, Inc. be amended as follows: •

That Article IV be amended as follows:

The Board of Directors shall consist of not less than two directors.

By-Laws adopted this 9th day of August 1982.

CERTIFIED CORRECT:

Marvin L. Berry, President and Chairman of Shareholders Meeting

ATTEST:

127 EXHIBIT C

128 P.O. Box 4858 1414 Valero Way Corpus Christi, Texas GP, Inc. 78469-4858 Bus: (361) 693-2100

May 30, 2023

Sean Strawbridge, Director Port Of Corpus Christ 400 Harbor Drive Corpus Christi, TX 7840 I

Dear Mr. Strawbridge,

After immense consideration, the principals at Berry G.P. have decided to open two strategic properties to the marketplace. The property's synergy directly enhances one another and will be packaged as one. This asset's development would greatly benefit the port and the immediate properties contiguous, thus Berry G.P. would like to offer this to the Port as a first option. The Port of Corpus Christi will be responsible for the offer, based on knowledge of future growth and economic strategy. Please be respectful in timing of response, as this divestment will be presented for open offers. Attached you will fin s and legal descriptions for both tracts. Thank you very much.

obert Rickett Berry, G.P. 361-693-2841 409-771-1267 RickettR@Bayltd.com

Safety ■ Quality ■ Productivity The Winning Combination

129 EXHIBIT D

130 CERTIFICATE OF CORPORATE RESOLUTIONS OF BERRY GP, INC

I, M. G. Berry, Secretary of BERRY GP, INC, a Texas corporation (the "Corporation"), do hereby certify as follows:

1. I am the duly elected and qualified Secretary of the Corporation and the custodian of the Corporation's records.

2. Set forth below is a true and correct extract from the records of the Corporation showing resolutions duly adopted either: (a) at a meeting of its Board of Directors duly called and held, at which meeting a quorum was present and acting throughout, or (b) by unanimous written consent of the Board of Directors of the Corporation, which resolutions have not in any way been amended or modified and are in full force and effect:

RESOLVED, that the President, any Vice President, or Secretary of the Corporation be and is hereby authorized and directed to obtain a loan in the amount of$20,000,000.00 from FROST BANK ("Lender"), upon such terms and conditions as the said officer shall in his or her sole discretion deem necessary or advisable; to execute and deliver on behalf of the Corporation all promissory notes, deeds of trust, security instruments, documents, certificates and agreements (collectively, the "Loan Documents") required by Lender, and to pledge as security for the loan such assets of the Corporation as such officer deems necessary or advisable; and to do any and all things in connection with such loan or any renewal, extension or rearrangement thereof that such officer deems necessary or advisable and in the best interests of the Corporation.

FURTHER RESOLVED, that the President, any Vice President, or the Secretary of the Corporation be and hereby is authorized and empowered on behalf of the Company from time to time to execute, acknowledge and deliver any interest rate swap agreement, interest rate exchange agreement, currency exchange agreement, foreign exchange agreement, interest rate and currency exchange agreement, forward rate agreement, rate floor agreement, interest rate protection agreement, interest rate cap agreement, rate collar agreement, any option agreement respecting the foregoing, International Swaps and Derivatives Association, Inc. (ISDA) Master Agreement, or any similar agreement or arrangement and any schedule, confirmation, exhibit, document or instrument evidencing any interest in a transaction covered by any such agreement as the same may be modified, supplemented, amended or revised and in effect from time to time;

FURTHER RESOLVED, that all acts of the President, any Vice President, or the Secretary of the Corporation authorized and directed herein, including the execution and delivery of the Loan Documents and all other documents referenced herein relating to the loan herein referenced, are reasonably expected to benefit, directly or indirectly,

Corporate Resolutions Rev. June 2012 G:\Forms\Attyfrm\Resolution - Corp Res.Docx

131 the Corporation;

FURTHER RESOLVED, that the officers of the Corporation are hereby severally authorized to (a) sign, execute, certify to, verify, acknowledge, deliver, accept, file and record any and all instruments and documents, and (b) take, or cause to be taken, any and all such action, in the name and on behalf of the Corporation or otherwise, as in any such officer's judgment is necessary, desirable or appropriate in order to consummate the transactions contemplated by or otherwise to effect the purposes of the foregoing resolutions;

FURTHER RESOLVED, that all actions heretofore taken by the directors or the officers of the Corporation, and all things done by their authority, in connection with the transaction described herein, be and the same are hereby ratified, approved and adopted as the acts of the Corporation;

FURTHER RESOLVED, that said officers are authorized and empowered to perform all acts and execute and deliver all instruments, documents and agreements required by Lender to carry out the purposes of these resolutions;

3. The following are duly elected, qualified and serving officers of the Corporation, and that the signature set out opposite the name of each officer is the genuine signature of such person, to-wit:

Name Title J;tre Robert Powers

M. G. Berry President

Secretary ff. ,;, ./l. -

4. (a) all franchise and other taxes required to maintain the Corporation's corporate existence have been paid when due and that no such taxes are delinquent; (b) no proceedings are pending for the forfeiture of the Corporation's Certificate of Incorporation or the Corporation's dissolution, voluntary or involuntary; (c) the Corporation is duly qualified to do business in the State of Texas and any other states in which it is doing business, and is in good standing in such states; (d) there is no provi- sion of the Articles of Incorporation or Bylaws of the Corporation limiting the power of the Board of Directors to pass the resolutions set out above, and that such resolutions are in conformity with the provisions of said Articles of Incorporation and Bylaws.

IN WITNESS WHEREOF, I have hereto set my hand this 29th day of June, 2023.

z ffl ~ ffl

Corporate Resolutions Rev. Junc2012 2 G:\Forms\Attyfrm\Rcsolution - Corp Res.Docx

132 EXHIBIT 5

133 CAUSE NO. 2024DCV-0045-C

LAWRENCE BERRY, individually and § IN THE DISTRICT COURT derivatively on behalf of BERRY GP, § INC. § § Plaintiff, § § BERRY GP, INC., § § Nominal Plaintiff, § NUECES COUNTY, TEXAS § v. § § MARTY BERRY, ROBERT RICKETT, § ROBERT POWERS, MICHAEL § HUMMELL, BERRY GP, INC., BERRY § OPERATING COMPANY, LLC and § BERRY CONTRACTING LOP § § Defendants. § 94TH JUDICIAL DISTRICT

COUNTER-PLAINTIFFS’ FIRST AMENDED ORIGINAL PETITION ASSERTING COUNTER-CLAIMS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Berry GP Inc., Berry Operating Company LLC, Berry Contracting LP, and

Marty Berry, sometimes collectively referred to as Counter-Plaintiffs, and make and file this

Counter-Plaintiffs’ First Amended Original Petition Asserting Counter-Claims complaining of A.

Lawrence Berry, in his personal capacity and as Trustee of the Allen Lawrence Berry Trust,

sometimes referred to as Counter-Defendants, and in support of same would show:

1 134 I.

PARTIES

1. Berry GP Inc. (“Berry GP”) is a Texas corporation with its principal office at 1414 Corn

Products Road, Corpus Christi, Texas 78409. Berry GP is one of the “Berry Entities” as may be

referenced herein.

2. Berry Operating Company LLC (“Berry Operating”) is a Texas limited liability company

with its principal office at 1414 Corn Products Road, Corpus Christi, Texas 78409. Berry

Operating is one of the “Berry Entities” as may be referenced herein.

3. Berry Contracting LP (d/b/a Bay Ltd. (“Bay Ltd.”)) is a Texas limited partnership with its

principal office at 1414 Corn Products Road, Corpus Christi, Texas 78409. Bay Ltd. is one of the

“Berry Entities” as may be referenced herein.

4. Marty Berry (“M.Berry”) is a natural person who is presently an Officer, Director, and

shareholder of Berry GP, Berry Operating, and Bay Ltd. Marty Berry resides in Nueces County,

Texas.

5. A. Lawrence Berry (“L.Berry”) is a natural person who is presently an Officer, Director,

and shareholder of Berry GP, Berry Operating, and Bay Ltd. A. Lawrence Berry resides in Harris

County, Texas. A. Lawrence Berry may and shall be served by notice of these proceedings upon

legal counsel for A. Lawrence Berry: Mr. Barrett Reasoner, Gibbs & Bruns LLP, 1100 Louisiana,

Suite 5300, Houston, Texas 77002. Service shall be by electronic means, and in such manner as

complies with the Texas Rules of Civil Procedure.

6. Allen Lawrence Berry, as Trustee of the Allen Lawrence Berry Trust (“ALB Trust”) is a

trust wherein Allen Lawrence Berry serves as trustee of the ALB Trust, and is – along with others

– a beneficiary of the Trust. ALB Trust has already appeared in these proceedings, and thus this

2 135 Counter-Plaintiffs First Amended Original Petition Asserting Counter-Claims will be served upon

Allen Lawrence Berry, Trustee, and the Trust by service upon their attorney: Mr. Barrett Reasoner,

Gibbs & Bruns LLP, 1100 Louisiana, Suite 5300, Houston, Texas 77002. Service shall be by

electronic means, and in such manner as complies with the Texas Rules of Civil Procedure.

6. Berry GP, Berry Operating, Bay Ltd., Marty Berry, and A. Lawrence Berry may be

sometimes referred to as the “Parties,” or any one of them referred to as a “Party.”

7. L.Berry is the original Plaintiff in this legal action by having filed Plaintiffs’ Original

Verified Petition and Application for Temporary Restraining Order and Temporary Injunction

(“Plaintiffs’ Verified Petition”). The legal action initiated by Plaintiffs’ Verified Petition was filed

in Harris County, Texas, but promptly transferred to Nueces County, Texas. A Counter-Plaintiffs’

Original Petition Asserting Counter-Claims was filed as counter-claim to Plaintiffs’ Verified

Petition in compliance with Texas Rule of Civil Procedure (“TRCP”) 97. L.Berry, adding

Lawrence Berry in his capacity as trustee of the Allen Lawrence Berry Trust (“Trust”), then filed

Plaintiffs’ First Amended Verified Petition and Application for Temporary Injunction. This

Counter-Plaintiffs’ First Amended Original Petition Asserting Counter-Claims is now being filed

as counter-claim to Plaintiffs’ First Amended Verified Petition and Application for Temporary

Injunction in compliance with Texas Rule of Civil Procedure (“TRCP”) 97.

II.

JURISDICTION AND VENUE

8. This Court has jurisdiction over all Parties. Specifically, Berry GP, Berry Operating, and

Bay Ltd. are legal entities formed in Texas that maintain their principal offices in Texas. M.Berry

and L.Berry reside in Texas. As such, all Parties have sufficient contacts with the State of Texas

and, therefore, are subject to the jurisdiction of this Court.

3 136 9. Venue is proper in Nueces County, Texas, pursuant to TCPRC Chapter 15, section

15.002(a)(1) inasmuch as Nueces County is the location where all or a substantial part of the events

or omissions giving rise to the claims occurred. See Exhibit C (with attachments). Moreover,

venue is proper in Nueces County, Texas, pursuant to TCPRC Chapter 15, section 15.063(3). See

Exhibit B.

III.

DISCOVERY

10. Discovery should be conducted in accordance with Level 3, as permitted by TRCP 109.4.

EXECUTIVE SUMMARY

11. Counter-Plaintiffs file this amended counter-petition asserting claims against L.Berry and

the Trust for conversion, breach of fiduciary duty, breach of contract, unjust enrichment, breach

of constructive trust, fraud, and other causes of action. Counter-Plaintiffs’ causes of action pleaded

against and complaining of L.Berry and Trust are directly responsive to L.Berry’s claims for self-

dealing and breach of fiduciary duty filed against one or more Counter-Plaintiffs. For all claims

referenced in this Counter-Plaintiffs’ First Amended Original Petition Asserting Counter-Claims,

Counter-Plaintiffs now sue Counter-Defendants.

FACTUAL BACKGROUND

12. The Berry Entities and Berry-Related Entities are a large organization of companies

engaged in various businesses throughout the United States, and have successfully done so since

the 1950s.

4 137 13. Marvin Berry had four (4) sons: Marty Berry (M.Berry), Dennis Berry (D.Berry), A.

Lawrence Berry (L.Berry), and Kenneth Berry. After Marvin Berry passed in 1997, control of the

Berry Entities shifted to Laura Berry (Marvin’s wife), and then to their (Marvin’s and Laura’s)

sons — M.Berry, D.Berry, and L.Berry. LDMA LP (“LDMA”) sits at the top of the Berry Entities.

LDMA’s 3% general partner is Beacon Inc. which is owned by M.Berry, D.Berry, and L.Berry.

LDMA owns Berry GP which, through a series of legal entities, own Berry Operating and Bay

Ltd. The Board of Directors of Berry GP (M.Berry, Bonnie Berry, L.Berry, and Chrissy Hinojosa

Phd.) — in accordance with the by-laws of Berry GP — primarily govern Berry GP, the Berry

Entities, and some of the other affiliated entities (indirectly). All considered (generally),

ownership of the Berry Entities is vested with M.Berry, Bonnie Berry, and L.Berry (shareholders);

and control of the Berry Entities (generally, at a policy level) is with M.Berry, Bonnie Berry,

L.Berry, and Chrissy Hinojsa Phd. (all serving as directors of Berry GP).

14. For purposes of this pleading, the Berry Entities refers to Berry GP, Berry Operating, and

Bay Ltd. For purposes of this pleading, the Berry-Related Entities refer to the Allen Lawrence

Berry 2007 Trust, Orca Assets GP LLC (“Orca”), Inner Channel Investments Inc. (“ICI”), Orca

ICI Development (“Orca ICI,” a Texas partnership), Orca ICI Development JV, Orca Petroleum

Ltd., Orca Properties LLC (a/k/a Orca Specialty Equipment LLC, Providence Plantation, and/or

Casa de Juego), West 17th Resources LLC, Gansevoort Investments LLC, Halcon Mineral Interest

LLC, Zilker Acquisitions LLC, Three Rivers Pipe and Rental LLC, Southern Comfort Equipment,

Ridgefield Energy Investments LLC, Ridgefield Energy Operating LLC, Ridgefield Eagle Ford

LLC, Ridgefield Eagle Ford Minerals LLC, Ridgefield Permian LLC, Ridgefield Permian

Minerals LLC, Ridgefield Energy Partners LLC, CEC Ridgefield Holdings LLC, Blue Wagon

Energy Investments LLC, Alamo Resources IV JV LLC, B.B.I. Inc., Escopeta Oil & Gas

5 138 Corporation, Furie Operating Alaska LLC, Helios Power Capital LLC, Danskammer Energy LLC,

Berry Y&V Fabricators LLC (and related companies). The Berry Entities and Berry-Related

Entities may be sometimes referred to as the “Berry Companies.”

15. The Berry Companies, except for the Trust, are and have been started up, owned (legally

and/or beneficially), held in trust, managed, developed, operated, and/or controlled at various times

by and through Berry GP, and/or by and through (in part) M.Berry, D.Berry, and/or L.Berry (one

or all of them), since the 2000s. Such business practices are investments for one or more of the

Berry Entities and/or their owners/shareholders.

16. As an example of how Berry Entities invested, Counter-Plaintiffs invested substantially in

ICI, ICI Orca, and Orca. Specifically, Counter-Plaintiffs seeded capital (money, assets,

manpower) to Orca to start-up, manage, develop, operate, and/or control an investment in the Eagle

Ford Shale and/or Permian Basin — which, in turn, became seed-money/assets (including mineral

interests as assets) for several of the Berry-Related Entities (the “Investment”).

17. From time to time, M.Berry, D.Berry, and/or L.Berry (or all of them) had meetings to

discuss how to manage the Investment, whether to sell or continue with the Investment, and other

business-type meetings/discussions.

18. Seeded capital money/assets from Counter-Plaintiffs to ICI to Orca/ICI to Orca involved

an agreement/contract as between these legal entities requiring payment-in-full for the base value

of the seeded money/assets received by Orca. In contravention of such agreement/contract,

L.Berry, individually and as trustee for the Trust, has very recently refused to pay as required by

the agreement/contract.

19. Seeded capital money/assets from Counter-Plaintiffs to ICI to Orca/ICI to Orca also

included the agreement/contract that L.Berry/Orca/Trust (all or in part) would initiate the

6 139 Investment (start-up); manage, develop, operate, and control the Investment, and hold the

Investment in trust and for the benefit of Counter-Plaintiffs. In contravention of such

agreement/contract, L.Berry/Orca/Trust (all or in part) has engaged a series of self-dealing

transactions without notice to, consultation with, or vote (in-meeting or otherwise) of a majority

of the owners/shareholders/directors of Counter-Plaintiffs.

20. Specifically, L.Berry/Trust has participated in self-dealing transactions involving the

Investment (and the Investment’s earnings) — taking of seeded money and assets of value (wealth)

for personal benefit, and not for the benefit of any one or more of the Counter-Plaintiffs. This on-

going practice by L.Berry/Orca/Trust of self-dealing transactions and ultra vires transactions

violates the fiduciary obligations owed by L.Berry, individually and as trustee of the Trust, to

Counter-Plaintiffs (and others).

21. In furtherance of L.Berry’s/Trust’s wrongful conduct, L.Berry/Trust has intentionally

obscured self-dealing transactions by transfers of money/assets of substantial value to and/or

through the Berry-Related Entities. All such transactions constitute L.Berry’s, individually and as

trustee for the Trust, wrongful taking of money and assets belonging to, held in trust for, and held

for the benefit of Counter-Plaintiffs. L.Berry, individually and as trustee for the Trust, has and is

engaged in wrongful takings, and also has failed to disclose same (as is required by his (L.Berry’s,

individually and as trustee of the Trust) fiduciary duties owed).

22. L.Berry’s (individually and as trustee of the Trust) wrongful conduct (as described herein)

continues to-date. Counter-Plaintiffs file this legal action to demand L.Berry (individually and as

trustee of the Trust) provide financial information as shall be requested through the legal discovery

process. Counter-Plaintiffs now plead the following claims and causes of action against L.Berry

7 140 (individually and as trustee of the Trust) and the Trust: conversion, breach of fiduciary duty,

breach of contract, unjust enrichment, breach of constructive trust, and fraud.

VII. CAUSES OF ACTION Count 1 Conversion

23. Counter-Plaintiffs incorporate all paragraphs herein as if set forth within Count 1 in their

entirety.

24. Counter-Plaintiffs would show that L.Berry (individually and as trustee of the Trust,

Counter-Defendants) are liable to Counter-Plaintiffs for conversion of Counter-Plaintiffs’

Investment (+ earnings). Specifically, Counter-Plaintiffs seeded capital (money, assets) to

L.Berry/Orca/Trust (and their benefit) to start-up, manage, develop, operate, and/or control an

investment in the Eagle Ford Shale and/or Permian Basin — which, in turn, became seed-

money/assets for several of the Berry-Related Entities (the Investment). L.Berry and the Trust

were to hold the Investment (+ earnings) in trust for Counter-Plaintiffs.1 Wrongfully, L.Berry and

the Trust have absconded with the Investment (+ earnings) through a series of self-dealing

transactions without notice to, consultation with, or vote (in-meeting or otherwise) of a majority

of the owners/shareholders/directors of Counter-Plaintiffs. L.Berry’s wrongful conduct is a

conversion of Counter-Plaintiffs’ Investment (+ earnings).

25. The elements of conversion are: 1) claimants (Counter-Plaintiffs) owned or were entitled

to possession of property; 2) another assumes or exercises control of the property in an

unauthorized manner to the exclusion of the claimants; and 3) the claimants’ demand for return of

1 Although some monies have been paid by L.Berry or one of his legal entities to one or more Counter-Plaintiffs as part of these transactions, the amounts of money paid have only been a partial repayment of monies owed to Counter- Plaintiffs — still in disregard for that which was agreed to be held in trust by L.Berry for Counter-Plaintiffs.

8 141 the property is refused. By this Counter-Plaintiffs’ First Amended Counter-Claim these Counter-

Plaintiffs continue to request return of all converted assets. In this case, Counter-Plaintiffs clearly

own and are entitled to possession of the Investment (+ earnings). Such Investment (+ earnings)

were supposed to be held in trust by L.Berry, individually and as trustee for the Trust (the sole

person in control of such Investment (+ earnings)) for Counter-Plaintiffs. Counter-Defendants

have wrongfully assumed and exercised control over such Investment (+ earnings), and done so in

a manner unauthorized by Counter-Plaintiffs and to the exclusion of Counter-Plaintiffs. Further,

and in disregard of requests from Counter-Plaintiffs, Counter-Defendants have failed and refused

to return the Investment (+ earnings) to Counter-Plaintiffs. This is a wrongful conversion of such

Investment (+ earnings) — the money/assets — belonging to Counter-Plaintiffs, for which

Counter-Plaintiffs now sue.

26. Counter-Defendants’ wrongful conversion of Counter-Plaintiffs’ Investment (+ earnings)

has caused substantial financial harm and losses to Counter-Plaintiffs. Counter-Plaintiffs now sue

for the return of such Investment (+ earnings), or alternatively for the value of such Investment (+

earnings).

Count 2 Breach of Fiduciary Duty

27. Counter-Plaintiffs incorporate all paragraphs herein as if set forth within Count 2 in their

28. Counter-Defendant L.Berry has been a shareholder, officer, and director of Counter-

Plaintiffs for all relevant times. Counter-Defendants held the Investment (+ earnings) in trust for

Counter-Plaintiffs all relevant times. As such, Counter-Defendants owe fiduciary duties to

Counter-Plaintiffs for all relevant times. The fiduciary duties owed by Counter-Defendants to

Counter-Plaintiffs include, but are not limited to, the duty of loyalty, duty of utmost good faith and

9 142 fair dealing, and duty of fairness and honesty. The fiduciary duties owed by Counter-Defendants

to Counter-Plaintiffs further include putting Counter-Plaintiffs’ interest before his (L.Berry’s,

individually and as trustee of the Trust) own interest, inclusive of devoting full time and efforts in

favor of Counter-Plaintiffs’ best interests — not L.Berry’s own or just the Trust’s interests. These

duties that Counter-Defendants owe to Counter-Plaintiffs encompass obligations and/or duties to

refrain from self-dealing transactions and to make full disclosures of information.

29. While owing fiduciary duties to Counter-Plaintiffs, Counter-Defendants have engaged in,

directed, approved, and/or taken actions in contravention of fiduciary duties owed, including but

without limited to the following:

a. L.Berry/Trust took substantial money/assets from Counter-Plaintiffs, and failed

to invest same in the name of and/or for the benefit of Counter-Plaintiffs

(thereby putting their own financial interest ahead of Counter-Plaintiffs’

financial interest). By way of example, L.Berry and Trust took Counter-Plaintiffs

money/assets yet wrongfully placed things of value (mineral leases) into

Orca (a legal entity that ultimately (later) was determined to be 100% for

the benefit of Trust). This breach of fiduciary duty caused substantial

financial harm and losses to Counter-Plaintiffs, and for which Counter-

Plaintiffs now sue.

b. L.Berry/Trust were supposed to hold the Investment (+ earnings) in trust for

Counter-Plaintiffs, yet L.Berry/Trust refuses to account for and surrender such

Investment (+ earnings) in favor of Counter-Plaintiffs — but rather appears

to have absconded with the Investment (+ earnings). This failure to hold,

account for, and then surrender the Investment (+ earnings) for the benefit

10 143 of Counter-Plaintiffs is self-dealing — and a breach of fiduciary duty. This

breach of fiduciary duty has caused substantial financial harm and losses

to Counter-Plaintiffs, and for which Counter-Plaintiffs now sue.

c. L.Berry/Trust took the Investment (+ earnings) for their own benefit (as set

forth above), and did so without full disclosure of details of the Investment

(and earnings) to Counter-Plaintiffs. Rather than comply with Counter-

Defendants’ fiduciary duties owed, Counter-Defendants have engaged a

series of transactions to obscure Counter-Plaintiffs’ rights to its

Investment (+ earnings). This lack of full disclosure is L.Berry’s and

Trust’s breach of fiduciary duty of full disclosure and candor owed to

Counter-Plaintiffs. This breach of fiduciary duty has caused substantial

financial harm and losses to Counter-Plaintiffs, and for which Counter-

d. L.Berry/Trust have used Counter-Plaintiffs money/assets to promote and

make profit for their own businesses in various manners and locations.

This is more self-dealing, and a breach of the fiduciary duty owed by

L.Berry/Trust to the Counter-Plaintiffs. This breach of fiduciary duty has

caused substantial financial harm and losses to the Counter-Plaintiffs, and

for which Counter-Plaintiffs now sue.

e. There are additional transactions / ventures by Counter-Defendants that

are a breach of fiduciary duties owed to Counter-Plaintiffs, and all of

which have caused substantial financial harm and losses to Counter-Plaintiffs.

For same, Counter-Plaintiffs now sue.

11 144 30. Counter-Defendants have taken money/assets/manpower from one or more of the Counter-

Plaintiffs; the Investment (+ earnings) from one or more of Counter-Plaintiffs; misappropriated

equipment, personnel, and other assets from one or more of the Counter-Plaintiffs; and all to the

detriment of one or more of the Counter-Plaintiffs — while only benefiting Counter-Defendants.

This is self-dealing. All such conduct described herein evidences Counter-Defendants’ breaches

of fiduciary duties owed; that is, self-dealing, advancing their (L.Berry’s/Trust’s) own interest

rather than Counter-Plaintiffs’ interest, breaches of loyalty to the Counter-Plaintiffs, breaches of

good faith and fair dealing owed to Counter-Plaintiffs, breaches of full disclosure and candor owed

to Counter-Plaintiffs, and more. Counter-Defendants’ misconduct has been and continues to be

designed as a subterfuge of obligations to the Counter-Plaintiffs (whereas other shareholders who

may have received benefits account for same to the Berry Entities). Counter-Defendants’ breaches

of fiduciary duties owed to Counter-Plaintiffs have caused substantial financial harm and losses to

Counter-Plaintiffs, for which Counter-Plaintiffs now sue.

Count 3 Breach of Contract

31. Counter-Plaintiffs incorporate all paragraphs herein as if set forth within Count 3 in their

32. As noted herein, seeded capital money/assets from Counter-Plaintiffs included the

agreement/contract that L.Berry, individually and as trustee of the Trust, would initiate the

Investment (start-up); manage, develop, operate, and control the Investment, and hold the

Investment (+ earnings) in trust and for the benefit of Counter-Plaintiffs. In contravention of such

agreement/contract, L.Berry, individually and as trustee of the Trust, have refused to perform as

promised, but rather engaged a series of self-dealing transactions designed to allow L.Berry and

12 145 the Trust to keep all (or some) of the Investment (+ earnings) for himself (L.Berry) and/or the

Trust.

33. Counter-Defendants’ refusals to abide by the agreement/contract is a breach of

agreement/contract. Counter-Defendants’ breach of the agreement/contract has caused Counter-

Plaintiffs substantial financial harm and losses, and for such substantial financial harm and losses

Count 4 Unjust Enrichment

34. Counter-Plaintiffs incorporate all paragraphs herein as if set forth within Count 4 in their

35. Recent events now give rise to a concern on Counter-Plaintiffs’ behalf that Counter-

Defendants may deny the agreement/contract (and/or some terms of the agreement/contract) as

between Counter-Plaintiffs and Counter-Defendants — all in an effort by Counter-Defendants to

wrongfully abscond with Counter-Plaintiffs’ Investment + earnings. Such a result would be

inequitable, and unjustly enrich Counter-Defendants.

36. Counter-Plaintiffs would show that Counter-Plaintiffs did, in fact, provide seed capital

money/assets from Counter-Plaintiffs to Orca/ICI /Orca as a benefit to Counter-Defendants, and

to allow Counter-Defendants to invest (again, the Investment). This benefit to Counter-Defendants

was provided by Counter-Plaintiffs, and it will cause a substantial detriment to Counter-Plaintiffs

if the Investment + earnings are not returned to Counter-Plaintiffs. As such, equity demands that

the Investment + earnings be returned to Counter-Plaintiffs or compensation for value.

37. For these reasons set forth herein, Counter-Plaintiffs now sue Counter-Defendants for

unjust enrichment, as fairness demands Counter-Plaintiffs be made whole by: (1) return of all

13 146 Investment (+ earnings); or (2) the value of all Investment (+ earnings) be paid by Counter-

Defendants to Counter-Plaintiffs.

Count 5 Breach of Constructive Trust

38. Counter-Plaintiffs incorporate all paragraphs herein as if set forth within Count 5 in their

39. As noted above, Counter-Defendant L.Berry has been a shareholder, officer, and director

of Counter-Plaintiffs for all relevant times. Counter-Defendant L.Berry held the Investment (+

earnings) in trust for Counter-Plaintiffs for all relevant times. L.Berry, as trustee for the Trust,

held the Investment (+ earnings) in trust for the Counter-Plaintiffs for all relevant times. As such,

Counter-Defendants owed and owe fiduciary duties to Counter-Plaintiffs for all relevant times.

40. Counter-Plaintiffs made transfer of monies/assets to Counter-Defendants (money,

manpower, and assets). Counter-Plaintiffs made these transfers of monies/assets in reliance upon

Counter-Defendants’ promise to protect and deliver Counter-Plaintiffs’ share of the Investment (+

earnings) to Counter-Plaintiffs.

41. Counter-Defendants now refuse to perform upon Counter-Defendants’ promise (but rather

now wants to keep for L.Berry’s and his Trust’s own gain/profit all of the Investment (+ earnings)).

As such, Counter-Defendants will be unjustly enriched. Given these facts, Counter-Plaintiffs now

sue for breach of constructive trust for the Investment (+ earnings) and related, traceable

monies/assets. All such monies and assets should be placed in a constructive trust for the benefit

of Counter-Plaintiffs or distributed to same.

14 147 Count 6 Fraud

42. Counter-Plaintiffs incorporate all paragraphs herein as if set forth within Count 6 in their

43. As noted above, Counter-Plaintiffs invested heavily ($millions$, the Investment) in ICI,

Orca ICI, Orca, and other Berry-Related Entities for the benefit of Counter-Plaintiffs. Such

Investment was seed-money/assets for — and investment in — Berry-Related Companies.

44. Counter-Plaintiffs invested the millions of dollars/assets based specifically upon Counter-

Defendants’ representations/promises to start-up, manage, develop, operate, and/or control

investments in the Eagle Ford Shale and/or Permian Basin for the benefit of Counter-Plaintiffs

(which is also for the benefit of L.Berry and his Trust, in part).

45. More specifically, and to induce the Investment, Counter-Defendants promised to re-pay

the original value of the Investment ($millions$) to the Counter-Plaintiffs; and further promised

that the Investment would be for the benefit of the Counter-Plaintiffs (and understandably so given

that L.Berry and the Trust would still share substantially in the benefits/profits).

46. Instead, Counter-Defendants — although Counter-Defendants have paid some interest-

only payments from time to time — have absconded with all or a substantial portion of the value

of the Investment monies/assets + earnings. On information and belief, Counter-Defendants

apparently made interest payments to prolong the process (run out the clock) — all the while never

intending to re-pay the original value of the Investment; and all the while never intending to deliver

such Investment (+ earnings) to Counter-Plaintiffs.

47. Presently, Counter-Defendants have gone dark on this discussion, and thereby indicated

that L.Berry, individually and as trustee for the Trust, never intended to abide by the

representations/promises designed to induce the Investment.

15 148 48. Counter-Defendants’ fraud/fraud in the inducement has resulted in substantial, unearned

profits for Counter-Defendants, personally and for the Trust; and great financial losses to the

Counter-Plaintiffs.

49. The above-described conduct constitutes fraud and fraud in the inducement, and thus is

actionable in favor of one or more of the Counter-Plaintiffs. For such fraud and fraud in the

inducement, the Counter-Plaintiffs now file and assert all such claims and causes of action against

Counter-Defendants.

VIII. CAUSATION

50. Counter-Plaintiffs incorporate all above paragraphs as if set forth herein in their entirety.

51. Counter-Plaintiffs would show that all causes of action/claims set forth herein have been

the cause, proximate cause, producing cause, and cause-in-fact of substantial harm and financial

losses to Counter-Plaintiffs. For all such harm and financial losses, these Counter-Plaintiffs sue.

IX. LEGAL DAMAGES

52. Counter-Plaintiffs incorporate all above paragraphs as if set forth herein in their entirety.

53. For all harm and financial losses suffered by Counter-Plaintiffs and arising from wrongful

and/or inequitable conduct of Counter-Defendants, these Counter-Plaintiffs now sue.

54. Counter-Plaintiffs file all causes of action/claims as set forth herein to recover monetary

relief for the substantial harm and financial damages suffered by Counter-Plaintiffs; to wit;

compensatory damages, actual damages, consequential damages, restitution damages,

disgorgement damages, and other damages. Counter-Plaintiffs claims asserted herein are for

substantial harm and financial losses greatly in excess of $1,000,000.00.

16 149 55. Counter-Plaintiffs file all causes of action/claims as set forth herein to recover monetary

relief for the harm and financial damages suffered by Counter-Plaintiffs; to wit; attorneys’ fees.

56. Counter-Plaintiffs file all causes of action/claims as set forth herein to recover monetary

relief for the harm and financial damages suffered by Counter-Plaintiffs; to wit; prejudgment and

post-judgment interests — as allowed by law.

WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiffs pray for all relief as

requested herein, for costs of court in addition thereto, and for such other and further relief to

which Counter-Plaintiffs may show themselves justly entitled as against Counter-Defendants

(L.Berry and the ALB Trust).

Respectfully submitted,

LAW OFFICE OF DOUGLAS ALLISON

By: /s/ Douglas A. Allison Douglas A. Allison State Bar No. 01083500 doug@dallisonlaw.com 403 N. Tancahua Street Corpus Christi, Texas 78401 Telephone: (361) 888-6002 Facsimile: (361) 888-6651

ATTORNEY FOR MARTY BERRY, BERRY GP, INC., BERRY OPERATING COMPANY, LLC and BERRY CONTRACTING LOP

CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of April 2024, a true and correct copy of the above was served upon the attorneys of record in the above entitled and numbered cause, via e-service.

/s/ Douglas A. Allison Douglas A. Allison

17 150 EXHIBIT 6

151 3

REPORTER'S RECORD TRIAL COURT CAUSE NO. 2024DCV-0045-C APPEARANCES (CONTINUED): 2 2 IN THE DISTRICT COURT 3 LAWRENCE BERRY, 3 MR. F. VAN HUSEMAN Individually and SBOT NO. 10323500 4 derivatively on behalf 4 Huseman Law Firm of BERRY GP, INC. 615 North Upper Broadway Street, Suite 2000 5 5 Corpus Christi, Texas 78401 Plaintiff, (361) 883-3563 6 6 BERRY GP, I NC. , ATTORNEY FOR DEFENDANTS, MIKE HUMMELL 7 94TH JUDICIAL DISTRICT 7 AND ROBERT RICKETT Nominal Plaintiff, 8 8 v. MR. CLAY STEELY 9 9 SBOT NO. 00791725 MARTY BERRY, ROBERT Porter Hedges, LLC 10 RICKETT, ROBERT POWERS, 10 1000 Main Street, Floor 36 MICHAEL HUMMELL, BERRY Houston, TX 77002 11 GP, INC., BERRY 11 (713) 226-6869 OPERATING COMPANY, LLC 12 and BERRY CONTRACTING 12 ATTORNEY FOR DEFENDANT, ROBERT POWERS LOP 13 13 Defendant NUECES COUNTY, TEXAS 14 14 15 15 16 MOTION FOR TEMPORARY INJUNCTION 16 17 17 18 18 19 19 20 On February 16, 2024, the following 20 21 proceedings came on to be heard in the above-entitled 21 22 and numbered cause before the HONORABLE BOBBY GALVAN, 22

23 Judge Presiding, held in Corpus Christi, Nueces County, 23 24 Texas .. 24 25 Proceedings reported by Machine Shorthand. 25

2 4

APPEARANCES: INDEX FEBRUARY 16, 2024 PAGE 2 MR. BARRETT REASONER 2 SBOT NO. 16641980 COURT CALLS CASE ............................ 6 3 MR. MICHAEL ABSMEIER 3 ANNOUNCEMENTS BY COUNSEL .................... 6 SBOT NO. 24050195 PRELIMINARY MATTERS ......................... 6 4 MR. BRUCE BALDREE 4 TEMPORARY INJUNCTION SBOT NO. 24116064 OPENING STATEMENTS 5 Gibbs & Bruns, LLP 5 BY MR. REASONER ........................... 13 1100 Louisiana, Suite 5300 BY MR. ALLISON ............................ 22 6 Houston, Texas 77002 6 BY MR. HUSEMAN ............................ 37 (713) 650-8805 7 7 PLAINTIFF'S WITNESSES: AND LAWRENCE BERRY 8 8 DIRECT BY MR. BOYD ......................... 40, 88 MR. BUTCH BOYD CROSS BY MR. ALLISON ....................... 115,125 9 SBOT NO. 00783694 9 CROSS BY MR. HUSEMAN.. .. .. .. .. .. .. .. .. .. .. . 177 Butch Boyd Law Firm CROSS BY MR. STEELY ........................ 206 10 2905 Sackett Street 10 REDIRECT BY MR. BOYD ....................... 216 Houston, Texas 77098 11 (713) 589-8477 11 MARVIN MARTY BERRY (ADVERSE) 12 AND 12 CROSS BY MR. REASONER ...................... 228 13 MS. GABBIE S. CANALES 13 PROCEEDINGS ADJOURNED ....................... 268 SBOT NO. 24012376 COURT REPORTER'S CERTIFICATE ................ 269 14 Law Office of Gabbie Canales 14 5262 South Staples, Suite 100 INDEX TO EXHIBITS 15 Corpus Christi, Texas 78411 15 FOR THE PLAINTIFF: (361) 887-4700 16 16 NO. DESCRIPTION OFFERED ADMITTED ATTORNEYS FOR PLAINTIFF, LAWRENCE BERRY 17 17 PTX1 EMAIL 01/16/23 54 54 MR. DOUGLAS A. ALLISON PTX2 COMBINED & CONSOLIDATED BALANCE SHEETS 18 Law Office of Douglas Allison 18 09/21/23 59 59 SBOT NO. 01083500 PTX3 COMBINED & CONSOLIDATED BALANCE SHEETS 19 403 North Tancahua Street 19 10/31 /22 62 62 Corpus Christi, Texas 78401 PTX4 COMBINED & CONSOLIDATED BALANCE SHEETS 20 (361) 888-6002 20 10/31 /22 62 62 PTX5 EMAIL 03/03/23 65 65 21 ATTORNEY FOR DEFENDANTS, BERRY GP, BERRY OPERATING, 21 PTX6 LETTER 03/13/23 68 68 BERRY CONTRACTING AND MARTY BERRY PTX7 EMAIL/LETTER 03/20/23 71 71 22 22 PTX8 EMAIL 12/06/23 AND PROMISSORY NOTE 07/08/22 74 74 23 23 PTX9 AFFIDAVIT (DENNIS & MARTY) 79 79 24 24 PTX10 GENERAL LEDGER 01/19/24 84 84 PTX11 LETTER 05/30/23 87 87 25 25 PTX12 MEMO AND EMAIL 04-18-23 93 93

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INDEX TO EXHIBITS Mr. Huseman, my attorney introducing me, but since he's 2 FOR THE PLAINTIFF: (CONTINUED) 2 just now walking in -- NO. DESCRIPTION OFFERED ADMITTED 3 3 THE COURT: There he is. I'm a little PTX13 NOTICE SPECIAL MTG 4 12/01/23 96 97 4 early. PTX14 MINUTES SPECIAL MTG 99 99 5 PTX15 BOARD MINUTES 101 101 5 MR. ALLISON: It's your cue. PTX16 RESOLUTIONS SPEC. MTG 102 102 6 PTX17 LEDGER 104 105 6 THE COURT: We're just taking PTX18 SECT. OF STATE DOCS 106 106 7 PTX19 RESOLUTIONS SPEC. MTG 108 108 7 announcements. 02/13/24 8 PTX20 EMAIL 06/14/23 223 224,225 8 MR. ALLISON: Make an announcement for the PTX21 EMAIL 07/07/23 223 224,225 9 PTX22 EMAIL 07/21/23 223 224,225 9 record, Van. PTX23 EMAIL 12/06/23 113 113 10 PTX26 EMAIL 04/13/23 72 72 10 MR. HUSEMAN: I'm here for Mike Hummell, PTX27 PROMISSORY NOTE 07/08/22 239 239 11 PTX28 PROMISSORY NOTE 07/08/22 239 239 11 Your Honor, I'm ready to go. PTX29 LETTER 02/24/23 246 246 12 PTX30 CONSOLIDATED 12 THE COURT: Okay. FINANCIAL REPORT10/31/22 250 250 13 PTX31 EMAIL/LETTER 03/28/23 265 265 13 MR. HUSEMAN: I got caught in a line. PTX32 EMAIL/LETTER 03/30/23 265 265 14 14 showed up over there, there's nobody at the check in. FOR THE DEFENDANT MARTY BERRY: 15 15 Three seconds later, there are 20 people lined up. NO. DESCRIPTION OFFERED ADMITTED 16 16 THE COURT: I got you. No, I mean, I'm 4 PROMISSORY NOTES (MARVIN & DENNIS) 17 167 168,169 17 early, so. mean, unless we had -- if anybody's 5 SUBORDINATION AGREEMENTS 170,172 172 18 8 EMAIL 02/01/23 (ONE PAGE) 182 182 18 missing, I'll wait. 10 EMAIL 01/27/22 173,175 176 19 11 EMAIL 02/10/23 173,175 176 19 MR. HUSEMAN: If you' re ahead of me, I'm 12 EMAIL 03/03/23 173,175 176 20 14 EMAIL 02/05/24 173,175 176 20 late. 15 EMAIL 02/19 (BAY 001819) 173,175 176 21 21 THE COURT: No, no, no, you're not late. FOR THE DEFENDANT MIKE HUMMELL: 22 22 You' re not late. I'm just early. Okay. Well , I'm NO. DESCRIPTION OFFERED ADMITTED 23 23 ready. RESOLUTIONS SPEC. MTG 24 12/07/23 227 227 24 MR. ALLISON: We have a preliminary matter 2 LETTER 12/07 /23 227 227 25 3 RULE 11 AGREEMENT (Nueces) 227 227 25 that we think we need to address before, a couple of 4 RULE 11 AGREEMENT (Harris) 227 227

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P ROC E E DI NGS things. 2 (February 16, 2024) 2 THE COURT: Okay. 3 THE COURT: All right. Be seated. Court 3 MR. ALLISON: One, I think that our 4 calls 2024DCV-45C, Lawrence Berry v. Marty Berry, et al. 4 intention, even if we say "We're offering this into 5 I guess, let's get appearances. 5 evidence, R think for today's purposes -- and there's a 6 MR. REASONER: Good morning, Your Honor, 6 provision in our protective order that we'll submit to 7 Barrett Reasoner for the plaintiff and we have our 7 the Court we haven't done it yet, but we've all 8 client here, Mr. Lawrence Berry, Butch Boyd, Mike 8 agreed to it that allows us to handle documents in 9 Absmeier, Gabbie Canales and Bruce Baldree. Thank you, g camera i f they are sensitive, which there's probably a 10 sir. 10 lat of financially sensitive information that will be 11 THE COURT: All right. 11 handled today. So think we're going to handle 12 MR. STEELY: Your Honor, Clay Steely here 12 exhibits today, even if we say "we offer it into

13 on behalf of Robert Powers and he's in the courtroom as 13 evidence," what we're really doing is giving them in 14 well. 14 camera to the Court. 15 THE COURT: Okay. 15 THE COURT: Okay. So they' re in evidence, 16 MR. ALLISON: Your Honor, Doug Allison 16 but under seal? 17 here. represent Marty Berry and what we call Berry 17 MR. ALLISON: Yeah. And I don't -- I think 18 GP, Berry Contracting, and Berry Operating. And also 18 we have to probably go through a different process if we 19 with me today is my client Marty Berry, and also, 19 actually seal them, but we're going to treat them like 20 Ms. Bonnie Berry. I don't know if the Court's aware of 20 they're sealed and let you hold them in camera for now. 21 it, the three brothers are all Dennis and Marty and 21 MR. ABSMEIER: That's right, Your Honor. 22 Lawrence. 22 Our agreed protective order allows us to do that and 23 THE COURT: Yeah. 23 then we confer and we either publicly file them or come 24 MR. ALLISON: Thank you. 24 back and ask the Court to seal them. So that's what 25 MR. HUMMELL: I would normally have 25 we'll do after the hearing.

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THE COURT: Okay. I'll work with you. If incumbent on us to point out a defect in the parties and 2 that's you-all's agreement, that's fine with me. 2 to - - 3 MR. ALLISON: One other matter that's a 3 THE COURT: And to set it for hearing. 4 preliminary matter for us, Your Honor. 4 MR. ALLISON: Well, no, and to tell the 5 THE COURT: Okay. 5 Court that -- inform the Court however -- by whatever 6 MR. ALLISON: I say preliminary, it goes to 6 means. And we came to the realization that Berry GP is 7 the motion. Are you ready for that? 7 wholly owned by a partnership, LOMA, and we have that 8 THE COURT: Yeah. 8 certificate. 9 MR. ALLISON: For their application. 9 THE COURT: mean, all that may be true -- 10 THE COURT: don't have anything else here 10 MR. ALLISON: Okay. 11 on the docket all day long. 11 THE COURT: -- but we just need to hash 12 MR. ALLISON: Before we get into any of the 12 this out, and I think - - mean -- 13 merits, Your Honor, they filed a, basically, a minority 13 MR. ALLISON: Okay. 14 shareholder suit. 14 THE COURT: -- you're dropping something on 15 THE COURT: I thought -- and I've tried 15 me that takes some thought and I haven't thought about 16 some of those over the years, but I thought that wasn't 16 it because this is the first I've heard of it. 17 a cause of action in Texas anymore. 17 MR. ABSMEIER: Okay. Right, Your Honor. 18 MR. ALLISON: It's extremely limited after 18 It's either plea to the jurisdiction or Rule 91a motion 19 the Richie case, okay, and that's the seminal case on 19 to dismiss. 20 it, and then it shook the earth when it came down from 20 THE COURT: mean, we can do all that. 21 the Texas Supreme Court. 21 MR. ALLISON: It's jurisdictional to you. 22 THE COURT: remember. 22 You can take it up at any time. 23 MR. ALLISON: Okay. And what they have 23 THE COURT: I can take it up at any time 24 done, Your Honor, is they have filed for Lawrence 24 and I guess it can even be brought up on appeal. 25 Berry -- let me say it correctly -- for Lawrence Berry 25 MR. ALLISION: And you' re not taking it up

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on his behalf, and derivatively, on behalf of Berry GP, now. heard you. 2 Inc. And it's a shareholder's derivative claim. He's 2 MR. REASONER: And like you, Your Honor, 3 not a shareholder, so we're asking the Court to dismiss 3 this is the first we're hearing this argument. 4 it. There's a defect in the parties, and it's just 4 THE COURT: So, I mean, I can't make a snap 5 unequivocal. He is not a shareholder of Berry GP. 5 judgment like that. I don't feel comfortable, so. But 6 THE COURT: Well , I mean, I - - 6 we can set that for hearing and we'll hash it out. 7 MR. ABSMEIER: Your Honor, there's no 7 Okay? 8 motion -- no 91a motion to dismiss before the Court 8 MR. ALLISON: Thank you, Your Honor. 9 today. 9 MR. REASONER: Your Honor, we - - in talking 10 THE COURT: I mean, that's not before the 10 among the two parties, if the Court will all ow it, we 11 Court today. 11 thought a brief 15, 20-minute opening a side would be 12 MR. ALLISON: It's a jurisdictional issue. 12 helpful. 13 THE COURT: Well, I'm not hearing it today, 13 THE COURT: Yeah. I'm up for it. 14 Mr. Allison. 14 MR. REASONER: Okay. Thank you. May I 15 MR. ALLISON: You're not? 15 proceed or anything else? 16 THE COURT: You're dropping it right on me 16 THE COURT: You may proceed. 17 right now and I'm not going to hear it today without -- 17 MR. REASONER: Okay. 18 I'm not going to make a snap judgment like that. You 18 THE COURT: Now do I need to get anybody on 19 may be correct. 19 Zoom? 20 MR. ALLISON: Okay. 20 MR. REASONER: I don't -- not on our end, 21 THE COURT: But to make a snap judgment 21 Your Honor. 22 like that on a case is not 22 THE COURT: Does anybody -- does anybody 23 MR. ALLISON: Okay. 23 and maybe even later on if anybody has an out of town 24 THE COURT: -- how operate. 24 witness that wants to testify by Zoom, just let me know 25 MR. ALLISON: I'll say it this way, it is 25 and we can do that. Okay?

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MR. REASONER: Thank you. Lawrence Berry, a classic self-interested or insider 2 THE COURT: So I'm not going to get on Zoom 2 transaction. 3 then. I'm just pulling up the file electronically. 3 You'll also hear, Your Honor, evidence 4 All right. Go ahead. 4 about Marty and other defendants failing to notify 5 MR. REASONER: And, Your Honor, may I 5 Lawrence Berry of a meeting with the president of IBC, 6 approach? 6 the banking institution that the company had a banking 7 THE COURT: Yes, sir. 7 relationship with over 25 years, a meeting scheduled 8 MR. REASONER: Some slides that we'll have 8 with Dennis Nixon who was coming in from Laredo for such 9 them on the screen, but just for Court and counsel. 9 a meeting. Lawrence never informed about that, folks 10 Your Honor, Barrett Reasoner on behalf of 10 didn't show up for the meeting, and a notice of default 11 Lawrence Berry and we very much appreciate the 11 was sent that very -- was sent out that very end of the 12 opportunity to be heard today. 12 day. So a relationship of 25-plus years, providing 13 This is an extremely important matter to 13 lifeblood of the company, ended, again, with Lawrence 14 Mr. Berry. As the Court, I think knows, this involves a 14 being woven into the discussion. 15 family business founded in part by the Berrys' father 15 They now, Your Honor, after this lawsuit 16 back in the '50s, that has continued over the years, and 16 has been filed, you're going to see a series of 17 this is a dispute about serious concerns with the way 17 resolutions where they had been the last couple of few 18 it's being managed and what's happened here with insider 18 months tried to ratify this conduct that's taken place 19 transactions that have come to light. 19 over a period of time, ratify this -- these actions. 20 As the Court, I believe knows, Lawrence 20 And I sub -- I'll submit to the Court that not only is 21 Berry is a one-third owner, Marty Berry is a one-third 21 that not effective to cleanse actions that took place 22 owner, and sadly, the estate of their brother Dennis, as 22 earlier, it shows the inadequacy of what was actually 23 the Court, I believe is aware, is a one-third owner as 23 done during the real time when these transactions were 24 well. And in recent years, Lawrence Berry has been 24 actually going on. 25 frozen out of the management and operation of the Berry 25 Your Honor, we've included here, also, a

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entities, and has, through persistence, discovered some timeline, which I will not -- I will not take the Court 2 self-dealing insider transactions that are extremely 2 through piece by piece, but it's just for your reference 3 troubling and that are the reason for this lawsuit. 3 to orient you as to when some of these events took 4 If you go to the second slide, Your Honor, 4 place. You'll hear that these loans, that there was by 5 we, just at a very high level, we note what's going to 5 Marty for 45,000,000, and his brother Dennis for 6 be talked about today. The first is Marty Berry having 6 30,000,000 to the company, for a total of 75 back in 7 a $45 1 000 1 000 loan, that was not disclosed to Lawrence, 7 July of 2022. And in January, you'll see Lawrence Berry 8 to Berry GP back in 2022. Another issue is the placing 8 is making inquiries, trying to get documentation when 9 up for sale of a dock and adjacent property that was 9 reference is seen to that in some financials down the 10 extremely important to the Bay business and was again 10 road. And Mr. Powers i ndi cat es, well , I don't believe 11 done -- put up for sale without disclosure. Lawrence 11 those have been signed up yet. So again, he gets on the 12 Berry had to learn of it from a third party. 12 scent of this and finds out about it. No question, 13 You will also hear that Marty Berry 13 Judge, as to this, the crane transactions, and other 14 personally bought and leased back a number of cranes. 14 things you'll hear about that they were insider 15 He bought in the company of his own, a number of cranes 15 transactions. 16 and leased those back to the company, again, without 16 You'll hear the other side trying to 17 disclosure to Lawrence. That was -- it was through an 17 suggest that Lawrence Berry knew, but you won't hear 18 entity, you' 11 hear, Your Honor, called Western Gulf 18 them be able to fairly challenge the idea that these 19 Equipment. It was originally set up for the purpose of 19 were insider related party transactions; the loans, the 20 purchasing one crane in a Canadian transaction where 20 crane rentals and the like. 21 Marty Berry owned part of it and Bay owned part of it. 21 Again, the marketing of the dock, a key 22 What happened then, though, was the acquisition of 22 asset for the company, that's something you'll hear that 23 additional cranes that were rented back to Bay at 50, 23 Lawrence Berry had to learn about from a third party. 24 $60,000 a month, et cetera. You'll see the numbers. 24 Now, where are we, Your Honor, in the -- in 25 Again, without board approval, without disclosure to 25 the status of this case? As the Court knows, I think

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from previous hearings, there was a TRO down in Houston, we are. You're not going to hear a denial that, for 2 which was turned into an agreed TRO when the case was 2 example, Marty Berry owed a fiduciary duty to the 3 transferred here. That had an injunction against sales 3 company as a director, I don't believe that's going to 4 and against modifying the composition of the board and 4 be contested, and that there were transactions in which 5 the idea was that it would remain in effect till this 5 he was on both sides. In those instances, Your Honor, 6 Court could hear and decide the issue. 6 the law is that there is a presumption of unfairness and 7 Here today, Your Honor, we have narrowed 7 that involves a burden shifting to Mr. Berry to prove 8 the relief we are requesting, if we go to the next 8 the fairness of the transactions. So that's a critical 9 slide. What we're asking at this point, Your Honor, 9 burden issue for the Court to keep in mind. 10 through the trial of this case is two things: One, that 10 And finally, we cite the Health Discovery 11 defendants be enjoined from removing Lawrence Berry from 11 court case there at the bottom which says that if that 12 the board of directors. That's critical. Their ability 12 presumption cannot be rebutted at the TI stage, it 13 to remove and let me say, in agendas for shareholder 13 should be granted if the plaintiff presents a prima 14 meetings and board meetings, they've talked about 14 fascia case, which we believe we absolutely are able to 15 consideration -- on the agenda, consideration of removal 15 do here. 16 or addition of board members and board member actions, 16 If we go to the status quo, Your Honor, in 17 et cetera. No question that's on their -- on their 17 the next slide, that, as you know, is the last peaceable 18 plans, on their minds and in their plans. Removal would 18 noncontested status, and that's -- that's what we're 19 keep Lawrence Berry even further in the dark about what 19 asking for, board -- that the board seat remains through 20 the company's doing and any insider transactions. 20 this trial until the case is decided and that notice be 21 The second thing we're asking for in 21 provided. There's a situation where that's completely 22 this in this targeted relief, Your Honor, is again, 22 justified when you look at additional debt on an insider 23 just two weeks notice of a sale of real property, just 23 transaction that was not disclosed, and there's an 24 two weeks written notice with details about what the 24 expression, you'll see, in shareholder resolutions that 25 sale will involve. What that will allow Lawrence Berry 25 they've passed after this case came, after we filed this

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to do, is if there is something untoward or something case. That resolution says they're going to continue 2 where it's appropriate, he could come to the Court and, 2 marketing the -- not sell until after the TRO issue is 3 you know, challenge or complain about the transaction. 3 resolved, but there's an attempt to continue marketing 4 If not, he wouldn't. But he would have the information, 4 that, so this is an issue that is ripe for discussion. 5 he would have notice. That is not an onerous thing to 5 And as I said there at the bottom on the 6 ask of the company and not something that's going to 6 threat to remove Lawrence Berry, that has been implicit 7 keep the company from going about its business. These 7 in the notices and things that they have filed and that 8 folks can and have outvoted him on issues. That's not 8 they have served on the -- on the shareholders and the 9 why we're here. 9 di rectors. 10 On the temporary injunction standard, 10 The imminent harm piece, again, their 11 Your Honor, if we go to the next slide, the Court is 11 actions and this course of conduct where insider 12 well familiar with the requirements for that. I want to 12 transactions have gone on make it clear that there is a 13 hone in on the elements of the probable injury piece 13 demonstrable -- demonstrable intent to do these things, 14 which has subcategories, if we can go to the next slide. 14 and that express intent that's implicit to take 15 Importantly, Your Honor, we need not, and 15 Mr. Lawrence Berry off the board. 16 we cite the Intercontinental Terminals case to you. We 16 On irreparable harm, Your Honor, the Court 17 need not show that we will prevail. We think the 17 is well familiar with the general standards there about 18 evidence you' 11 see points you in that direction, but 18 something that cannot be adequately compensated in 19 that's not the standard here today. We have to show 19 damages, but the third point in particular, I think, is 20 that the causes of action are there and that we've got 20 important there, Judge, about real property, and I think 21 some evidence that tends to sustain them. And we 21 we brought this up before. 22 believe that the evidence that's going to be presented 22 Texas case law is strong on the notion that 23 to this Court will well meet that standard. 23 real property is unique and i rrepl aceabl e, and in 24 The second bullet there is critical, though 24 situations like that, that's something that money cannot 25 here, fiduciary self-dealing context, and that's where 25 replace and something that is generally appropriate for

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injunctive relief, and that's what we're asking for So I don't think I'm going to be so eloquent, and I'm 2 here. 2 not going to be so beautiful, but I am going to be 3 The final slide, Your Honor, what you're 3 direct and I'm going to be candid. And I want to -- 4 going to hear from the other side, I have no doubt, and 4 do have a presentation, and I'm going to get to that in 5 it wi 11 be eloquently done, but the point is going to 5 a second, but I want to be real up front with the Court. 6 be I look I he is a minority shareholder, he's - - I mean, 6 You've already heard me say, I don't think they have a 7 minority director. He's one of three directors. He's 7 cause of action pleaded. One of the elements for their 8 getting outvoted. Too bad. That happens. So sad, but 8 request for a temporary injunction is they have to show 9 it's not the basis for a lawsuit. That's the argument. 9 a probable relief, a probable - - 10 What that misses, Your Honor, is a critical issue here, 10 THE COURT: Probable right of recovery. 11 and we've cited to the Court there on the right side of 11 MR. ALLISON: - - right of recovery. Okay. 12 the page, the Texas Business Organizations Code, Section 12 I knew I was going to mess that up right from the 13 21.418. It talks about self-interested transactions, a 13 beginning. A probable right of recovery. If they don't 14 transaction between a corporation and one or more 14 have a cause of action and they did it incorrectly, they 15 directors. Again, loans, personal loans to the company, 15 lose. If they try -- if they have the right entities 16 renting equipment that you own to the company, nobody's 16 here, which they don't; if they had the shareholder 17 going to be able to fairly deny that those are such 17 here, which they don't, they don't even have a 18 transactions. 18 shareholder in this lawsuit for Berry GP, okay, which is 19 What do you need for that to be viable? 19 the only shareholder derivative suit that they've 20 What do you need for that to -- to pass muster under 20 stated. So if they don't have a shareholder in the 21 Texas law? Two things: Disclosure under (b)1 there, 21 lawsuit, they don't have the right parties, it's a 22 Your Honor, the material facts have to be disclosed or 22 defect in the parties, they lose. 23 known by, that's critical. And you'll see that that was 23 Let's assume for a minute they had one -- 24 not present here. But al so, at the bottom, it's got to 24 and now I'm going to get to the point the Court brought 25 be approved by a majority of the disinterested 25 up a moment ago. Let's assume that they had a

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directors, and in these transactions, it's undeniable shareholder, in which they don't, but let's assume they 2 that Lawrence Berry was a disinterested director. 2 did and then we're under the R;ch;e case, okay? R;ch;e 3 There are some where Ms. Berry, Bonnie 3 talks about really six causes of action, none of which 4 Berry, as the successor to her husband, is disinterested 4 are this one. One of them has to do with books and 5 as well. But you look at a vote for a - - from a 5 records. And it says your remedy they do plead that, 6 majority. There are transactions that the company is 6 but it says your remedy is to come to court and get them 7 treating as having been passed and having been approved 7 to give you the books and records. One of them is 8 by a vote from Marty Berry that he can vote, but you 8 withholding or refusing to declare dividends. That's 9 need disinterested votes for it to be a legitimate 9 not pleaded. One of them is termination of employment 10 transaction. 10 and a shareholder can have a claim for that. That's not 11 And finally, Judge, in a similar case, the 11 pleaded and not in this case. One of them is 12 Flor;e R;nehart case out of the Houston First Court of 12 misapplication of funds. If you stretch it, maybe 13 Appeals in 2017, a situation where the Court was faced 13 that's what they're saying, but they don't get there, 14 with a similar situation involving a TI where there was 14 and let me circle back to that because that comes up to 15 an effort to remove a disinterested director and 15 what they just talked about, which is 21.418. And then, 16 ratification by an interested director. The Court 16 the other one is manipulation of stock value, and you 17 affirmed a temporary injunction in that instance and 17 don't have that. 18 that's what this Court should do here. 18 On 21.418, and this is super interesting, 19 Thank you very much for your time. 19 what they're really trying to do, Judge, is create a new 20 THE COURT: Thank you. We'll see if you're 20 cause of action. They cited you 21.418 and you're right 21 going to put this eloquently as counsel -- 21 when you said earlier, I thought the Supreme Court 22 MR. REASONER: I've seen him before. 22 pretty well did away with those. They did, they left 23 MR. ALLISON: I lose. lose. I lose. 23 very few exceptions and they drew a hard line in the 24 Like Doug Tinker said one time, "I'm old, 24 sand. And now they are saying that under 21.418, 25 I'm fat, and I'm bald, and I don't deserve any of that." 25 there's a cause of action created. They say it's under

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418(e). have that here in front of me. 418(e) thing, it's self-dealing." For January, February,

2 says -- by the way, I'm going to be just up front. It 2 March, April , May, June, July, August, September,

3 doesn't create a cause of action in any way, shape, or 3 October of 2023 -- sorry. 4 form. It talks about -- this is a safe harbor statute. 4 THE COURT: Yeah, you broke the speed 5 In other words, i f you do certain things, you can't be 5 limit. 6 sued. It does not say if you do this or that you can be 6 MR. ALLISON: I know, I saw the look. 7 sued. And they specifically cite in their pleading the 7 saw the look. 8 24.418(e) that says this: If at least one of the 8 For those months, they didn't come over and 9 conditions up there are satisfied, and that is, i f the 9 ask for a TRO. Why? Because it was good for the 10 shareholders say the loan was fair, okay, neither the 10 company, okay? Those notes are at five -- or excuse me, 11 corporation nor any of the corporation's shareholders 11 those notes -- those loans were made at a quarter 12 will have a cause of action against the persons who did 12 percent above prime. Those notes have been subordinated 13 what they called self-dealing. 13 to -- it would have been IBC if they renewed, and now 14 It's saying you don't have a cause of 14 Frost. 15 action if you do these things up here. It does not in 15 Everybody's interested. Lawrence is 16 any way, shape, or form say you have a cause of action 16 interested in them. Marty's interested in them. 17 under a -- what they characterize as self-dealing. 17 Dennis, by the way, gave 30,000,000. Mrs. Berry has 18 That's a very different matter that requires a very 18 made loans to the company the same way. mean, they 19 different -- well, first of all, I don't even think 19 waited a year and a half and now they're claiming 20 they're alleging that the loan from Marty Berry to the 20 there's going to be some imminent harm if you don't 21 company we'll get to that in a minute. But I don't 21 enjoin them. 22 even think they're even alleging that it was not in the 22 The other one that they brought up is the 23 company's best interest. And under a shareholder 23 dock being for sale. Now you will hear conflicting 24 derivative lawsuit, we don't owe a fiduciary duty, Marty 24 testimony on it. We are sure as we can be that it was 25 does not owe a fiduciary to Lawrence. So I think they 25 talked about and that Lawrence knew always, up front and

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have completely failed to state a cause of action. ahead of time. I'm sure he's going to say he didn't 2 I want to, in just very bullet-point 2 know, but okay. All those conversations were taking 3 fashion, before I launch into the presentation say this: 3 place in March and April of 2023. There was a letter 4 Yes, Marty Berry did loan $45,000,000 to the company. 4 sent to the Port of Corpus Christi in May of '23. They 5 He did it in the wake of COVID. He did it when there 5 have that kind of -- that went nowhere. The only 6 were no bank loan monies available. He did it when the 6 other interested party has been Buckeye, and that was in 7 company needed money for growth because they had two 7 about September. Lawrence has always known about it. 8 great prospects, Tesla and Venture Global, okay? And it 8 He didn't run in May of 2023. He didn't run to the 9 was done for the benefit of the company in, I think, 9 courthouse and say you got to stop this sale. I mean, 10 probably late July of 2022, super important because I've 10 he waited another six, eight months, and now they're 11 just heard this story about how they didn't know and he 11 acting like the sky is falling. 12 had to fight for knowledge, and he was kept in the dark 12 I don't know how you can -- by the way, 13 and how tenacious he was. And on their own timeline, it 13 it's very clear to us, we are not going to sell it, 14 says he knew because of -- and it's true. When you look 14 obviously with the TRO in place. We are not going to 15 at the balance sheet, it's on there and it was given to 15 sell it with - - without a vote on it, okay? It has to 16 him by email and so he knew. One was in July of 2022. 16 go in front of the board. That's just -- that's in our 17 He knew as of September 2022, and the loan was not 17 bylaws. They don't need any additional protection. And 18 documented until February of 2023. Interest rate, and 18 we are only going to sell it if we get the right price 19 signed, and all that, because finally the auditor said, 19 and the right terms. But there's no board approval 20 no, we've got to have a piece of paper for it. So he 20 needed to market it. That's within the purview of the 21 wasn't kept in the dark. He was told and I want to 21 CEO to to -- which is Mr. Rob Powers, that's been 22 point this out. 22 within his purview to sell it or at least to market it, 23 For September, October, November and 23 okay? 24 December of 2022, they didn't rush over here to the 24 The last one that they brought up that 25 courthouse and say, • Stop that loan, it's a terrible 25 want to talk about real quickly is the removal as a

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director. The Richie case is very, very clear. They've follow 21.419, which allows removal of a director on a 2 declined, in very strong words, the Texas Supreme Court 2 majority vote. I think -- I think what they're asking 3 did, that they are not here to create common law causes 3 you to do runs directly afoul of what the Texas Supreme 4 of action. We have a statutory scheme that governs 4 Court has told us. 5 corporations, period. And the courts, and they were 5 They have the burden, Your Honor, to prove, 6 talking about -- they were talking about trial courts 6 obviously a probable right of relief. I understand the 7 here and they were talking about the Texas Supreme Court 7 Court was very clear with me. We are not jumping to 8 essentially, they didn't use this word, but loathed the 8 that issue solely as a matter of law, the defected 9 idea of taking over when the legislation -- when the 9 parties, but it is their burden to prove that the right 10 legislature has spoken. If the legislature puts a rule 10 parties are here. And then, if it's - - if they carry 11 into place, they made it pretty clear we're going to 11 their burden and prove that the right parties are here, 12 follow those rules. They did that on the books and 12 I'm going to tell you they can't do that. We have the 13 records in accounting and they said that in their 13 certificate and it's -- he has zero shares. 100 percent 14 opinion. 14 of the shares of Berry GP are owned by the partnership, 15 In this case, there's a specific statute, I 15 LDMA, don't ever get confused by the A. It's Allen 16 want to say it's 21.419, but I may be wrong on that, and 16 Lawrence Berry. So it's Laura, Dennis, Marty, Allen 17 it expressly allows directors, like Mr. Berry, like 17 Berry. LDMA is the partnership. It has 100 percent 18 Lawrence Berry, to be appointed or removed by majority 18 ownership of the shares. They have the burden to carry 19 vote, period. There's no -- there's no exception. 19 that. They cannot. 20 There's no interested party exception in this statute. 20 They have the burden then to prove that 21 It is very clear. 21 they have a cause of action in the wake of R;ch;a as a 22 I will go ahead and see if I can bring all 22 shareholder, if they're a shareholder, which they're 23 this up. Because we are here, obviously, on a TI. He 23 not. I'm moving on. They have the burden to prove that 24 has said the exact same two things: They want to enjoin 24 they have a cause of action. They have not pl ed any of 25 us from being able to sell the dock without notice, 25 the recognized causes of action under Richie, except

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completely unnecessary. There's no reason for it. It's they're trying to invent a new cause of action under the 2 in our bylaws how that has to be handled. We should 2 guise of self-dealing, a new cause of action under the 3 follow the bylaws. We do not need the Court to be 3 guise of self-dealing, under 4.18 -- 21.418, and as I've 4 stepping in, with all due respect, to this governance 4 gone through with the Court, they can't do that because 5 issue. We wi 11 foll ow the Texas Business Organi zat i ans 5 it's a safe harbor provision. It does not create a 6 Code. We wi 11 foll ow our bylaws. We have never not 6 cause of action when you read it. 7 done that with regard to the sale of property. They 7 So they have that burden and then they have 8 want to be -- want us to be enjoined from removing 8 the burden to prove imminent harm and irreparable 9 Lawrence Berry. By the way, that was -- he was -- the 9 injury. How can there be imminent harm when we don't 10 exact agenda item that they're terrified about that 10 even have a buyer for the property? It's been on •· 11 says, consider appointment removal of directors, was on 11 it's been on the market and they've known it's been on 12 the agenda in December 7th. They had that meeting and 12 the market for months. We say -- we say almost a year. 13 they appointed Bonnie Berry. They didn't remove and 13 They' 11 tell you months. And now we're rushing to the 14 they could have. They didn't. It was on the agenda 14 courthouse to get a TR0, to what? To prove -- to prove 15 again, because yeah, with all this erratic behavior, it 15 I'm mighty? To ask the Court to do something, quite 16 needs to be talked about. What will happen, I don't 16 frankly, that we don't think in any way, shape, or form 17 know, but what I do know is Texas law says it is the 17 is supported? But what we do know is they cannot show 18 decision of a majority of the board. 18 imminent harm because it is -- there's no buyer. 19 This is some of the language out of R;ch;a, 19 There's nothing imminent. There's nothing imminent 20 the second part of the slide. "This Court has the 20 that's going to happen. And they -- with all due 21 prerogative to superimpose a common law cause of action 21 respect, they can't show irreparable injury. 22 upon statutory framework, though not to alter or 22 For all we know right now, when the buyer 23 contravene the statutory framework." 23 shows up, if they gave a fantastic offer -- I don't want 24 Respectfully, that's what they're asking 24 to ever say that. If they gave a fair offer, one we 25 you to do by stepping in and forbidding the company to 25 really, really, really liked, maybe all three of them

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would agree to sell it. We can't know because -- we back and says, you know, no serious offers and he refers 2 can't know because we don't even know if there's a harm 2 to a dock and a piece of property over in Sinton. That 3 because we don't even know what the purchase price would 3 was in October of '23. 4 be. 4 And so right after Mr. Berry gets the 5 With regard to the same burdens, they have 5 information that there's no serious buyers or nothing 6 the same burdens when it comes to proving their ask that 6 really happening on a property that's being marketed, he 7 Lawrence Berry not be removed. They have to show that 7 goes and gets a TRO and formed no real discussions in 8 they have a cause of action for it, first of all, and 8 October of '23. 9 want to point this out, it was not -- there was no 9 Presently, there are no active negotiations 10 mention of don't remove Lawrence Berry as director in 10 or anything that looks like it's going to be a sale of 11 their original pleading that was filed November 28th, 11 the dock, nothing imminent. And I've al ready touched on 12 2023. What they did is when they saw the agenda item 12 the last one that the bylaws require the board of 13 that resulted in Bonnie being put on the board, 13 directors to vote. That's on 21, on the provision 14 appointed director, they hit the panic button and ran 14 relating to removal of directors. 15 over and did an amended TRO and said, don't remove him, 15 I probably want to end by, kind of, 16 we went up and agreed to it. You know the rest of that 16 circling back to the last point, because what they 17 story. 17 really tried to do -- and I guess, hats off, creative, 18 They have not pleaded any cause of action 18 trying to get around Rjch;e, trying to say 419 creates a 19 that precludes removal of Lawrence Berry. In fact, to 19 cause of action. But it's even worse than that. What 20 the contrary, Texas law tells us you can remove him. 20 they say is -- and this is super important under 419 -- 21 And I don't know of any cause of action that says you 21 that if you are a - - if you' re not disinterested, okay,

22 cannot, that they can prove a probable right of 22 the only thing that 418 precludes you voting on is that 23 recovery. 23 transaction between you and the company. That's it. It 24 I do want to -- because they emphasized it, 24 would not preclude Marty or Dennis, now Bonnie, from 25 I do want to go through the full timeline on the Berry 25 voting on a contract to sell real property. That's not

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dock. There was a -- they did talk about it at a a transaction between the director and the company. 418 2 director's meeting early 2023. We've known that 2 is limited to the director and the company. 418 would 3 Lawrence doesn't want to sell it. We know that Marty 3 not preclude a vote on adding or removing a director. 4 and Dennis do want to sell it. One of the reasons that 4 Adding or removing a director is not the loan from Marty 5 Mike Hummell, knowing of course, Dennis' health 5 or the loan from Dennis. So when you read 418, which of 6 situation, asks for there to be those meetings in the 6 course, doesn't create a cause of action, you will also 7 December and I guess February time frame that we have 7 need to understand, please, that at most, it precludes 8 had was to have it of record. And now we have Lawrence 8 Marty or Dennis, now Bonnie, from voting on the loan at 9 Berry saying, oh, it never happened. We say it did 9 most if they can prove that they're somehow contrary to 10 happen. So Mr. Hummell , as general counsel , wanted to 10 the corporation on it. It, at most, precludes a vote 11 make sure we had a record that both Dennis and Marty 11 there. Never would it preclude them voting on the sale 12 were in favor of marketing it. So we had that meeting. 12 of real estate and never would it preclude which I 13 They think it's something sinister. We think that they 13 don't think they're even asking that now. It sounds 14 have a right to have meetings and to ratify the actions 14 like now they're only asking for notice which, under our 15 of their members and to make sure the wishes of the 15 bylaws, we've got to give it anyway, so we don't need 16 directors are recorded, which they did. 16 there's no -- let me say it this way. If the bylaws 17 But that was also discussed back in early 17 already require it, they don't need relief. There's no 18 2023, voted two to one. Lawrence knew the dock was 18 imminent harm threatened. We're going to follow our 19 being marketed. It was marketed to the Port. It's been 19 bylaws. I don't think the Court needs to enter an order 20 marketed to Buckeye. This is interesting. We have a 20 that restrains us from disobeying our bylaws. 21 text message - - and of course, remember, their claim is 21 All of that said, we look forward to kind 22 that Lawrence had defied it and was kept in the dark and 22 of putting on the evidence, Your Honor. I think you 23 what a terrible -- what a terrible life he's had trying 23 will see clearly that this idea that he thinks were 24 to get information. We have a text message. He said, 24 secreted or hid from them, don't mind telling you, 25 Hey, what property's for sale? Rob Powers sends him 25 think the loans are private. I know they're private.

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know my client, Marty, wishes nobody knew about it. that's basically the end of it. 2 mean, that's just not his thing, okay? It doesn't mean 2 And the idea, and Doug said this, the truth 3 that they were hidden or kept secret. Put on the books. 3 is he said it, the idea of getting the Court to come in 4 Lawrence got it in September and knew about it for a 4 here and undo what is the express voted will of the 5 year and a half before right now, where he's now, for 5 owners of the company without any basis in law to do 6 the first time, really complaining about it to the 6 that, is, I think, a step too far. So that was the one 7 Court. 7 point wanted to put a little light on, Your Honor. 8 So we think the evidence will show also on 8 THE COURT: Okay. 9 IBC, he was kept informed, on Frost, he was kept 9 MR. STEELY: I'm going to reserve my 10 informed. We have emails where we sent him the notes. 10 comments till the end, Judge, in the interest of time. 11 We have emails where he participated in the decision 11 THE COURT: Okay, all right. Well , then 12 making with IBC. We have emails where he was informed 12 let's take some evidence. 13 about the Frost line of credit and how that was 13 MR. BOYD: Your Honor, we'll be calling 14 evolving, kept him in the loop on all of that and we'll 14 Mr. Lawrence Berry next. Could I ask if he could have 15 show those to Your Honor. 15 two minutes to run to the restroom? 16 So, respectfully, we don't think there's 16 THE COURT: Yeah, we can -- we can take a 17 any reason -- we don't think they can carry their 17 short break. 18 burden, and we don't think there's any reason for 18 (Recess.) 19 injunctive relief. 19 THE COURT: All right. Be seated, call 20 Thank you. 20 your first witness. 21 THE COURT: Okay. 21 MR. BOYD: Your Honor, plaintiff calls 22 MR. HUSEMAN: If I might have a couple of 22 Mr. Lawrence Berry. 23 minutes of your time, Your Honor, on this. Following 23 THE COURT: All right, come on down. 24 him is sort of like drafting in a bicycle race. He's 24 (Oath administered.) 25 sort of gets sucked along. And Doug's presentation I 25 THE COURT: Be seated. You may proceed.

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thought was factually, conceptually, and legally pretty ALLEN LAWRENCE BERRY, 2 dense, and pretty much on point. But there's one thing, 2 having been first duly sworn, testified as follows: 3 which I wanted to focus the light on a little bit more, 3 DIRECT EXAMINATION 4 because I think it has the ability to be a key to this 4 BY MR. BOYD: 5 whole thing. 5 Q. Good morning, Lawrence. Would you please state 6 Mr. Reasoner and Doug both passed lightly 6 your full name for the record? 7 over the ratification process by the shareholders of the 7 A. A11 en Lawrence Berry. 8 company which has occurred now and documented. The 8 Q, Lawrence, where were you born and raised? 9 basic concept, and it's true not just for this company, 9 A. Corpus Christi , Texas, in Annavi 11 e. 10 but for basically any business you want to talk about, 10 Q. How long had you - - did you live in Corpus 11 the owners get to decide how the business is run. 11 before you moved? 12 That's why even AT&T has shareholders because they get 12 A. moved in '98. 13 direction from the owners as to how things are to be 13 Q. Okay. And you were born in '65? 14 done. 14 A. Yes, sir. 15 In this particular case, the importance of 15 Q. Okay. What school did you attend here in 16 this, in that they have had duly-called shareholder 16 Corpus? 17 meetings in which the things that they are complaining 17 A. Tuloso-Midway. 18 about were ratified. In other words, given a stamp of 18 Q. And did you go to college? 19 approval by the shareholders, the people who own the 19 A. Yes, sir, Texas A&M.

20 company, in fairly open meeting, basically it has the 20 Q. Okay. At some point in your career, you moved 21 effect, in my view, of mooting a lot of these issues on 21 to Houston; is that right? 22 this. And even if you were to assume there was 22 A. Yes, sir. 23 something wrong with the way things have been done last 23 Q. Okay. What brought you to Houston or took you 24 year, or the year before or whatever, once the 24 to Houston? 25 ratification has occurred by the owners of the company, 25 A. I was getting a divorce, so I moved to Houston.

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Q, Did you continue to work for the Berry Q, And you didn't sue in those instances, did you? 2 companies? 2 A. No, sir.

3 A. Yes, I have, to this day. 3 Q. And you're not here in this lawsuit trying to 4 Q. And when I say the "Berry companies," I'm 4 change the majority rules of the Berry companies, right? 5 talking about all of the companies, and there are many, 5 A. No, sir.

6 correct? 6 Q, Do you believe that the majority should manage 7 A. Yes, sir. You need a flow sheet to understand 7 a company?

8 it. 8 A. think the enterprise should be managed in 9 Q. Okay. Who are the owners of the Berry 9 what's in the best interest of the enterprise. 10 companies, presently? 10 Q, Okay. So as long as it's in the best interests 11 A. The heirs of Dennis Berry, Marty Berry, and 11 of the company, you don't object to the two-to-one vote? 12 Allen Lawrence Berry. 12 A. Of course not. 13 Q, All right. What percentage are owned by each 13 Q, Okay. want to talk a little bit about what 14 of the three? 14 precipitated this lawsuit. Can you tell the Court what 15 A. A third, a third, and a third. 15 was going on that was disturbing to you from a 16 Q, Okay. And that's how your parents structured 16 30,000-foot level -- we'll get into some of the details 17 their succession plan; is that right? 17 when we get to the exhibits -- that caused you concern 18 A. Yes, sir. 18 enough to file this lawsuit? And let me stop there. 19 Q. Okay. I want to talk about the board as it 19 Did you want to file this lawsuit? 20 existed during the 2000s. That would have been 20 A. No, sir.

21 yourself, and your older brothers, Marty Berry and 21 Q, Did you feel like you had no other choice? 22 Dennis Berry? 22 A. Yes, sir. 23 A. Yes, sir. 23 Q. Okay. Tell the Court a little bit about what 24 Q, Historically, how did the three of you get 24 precipitated you filing the lawsuit? 25 along? 25 A. Well, I've been working on projects, trying to

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A. Great. increase utilization at the Berry dock. We had to deal 2 Q. Were you-all able to manage the company, handle 2 with Marathon back in the day that almost got to 3 any differences you may have without problems? 3 completion and then collapsed with the price collapse in 4 A. Yes, sir. I think we've been good custodians 4 Eagle Ford in probably about '12 or '13. So we have the 5 of the company, probably up until Ed Martin's demise. 5 Citgo attached acreage and the Bay yard and Redfish Bay 6 Q, All right. And who was Ed Martin? 6 Terminal - - pardon me, and Di amend Cut, which is sort of 7 A. The previous CEO that after my -- we lost my 7 all interconnected with some right-of-way stuff. And so 8 father, that we brought in to manage the various assets. 8 we've been marching there, and then we had an 9 Q. Okay. And you said, Ed Martin, his demise, 9 opportunity, it looked like, with Pin Oak, who are the 10 you're talking about when he got i 11 and 10 successors to, I guess, Trifinery and Trisergeant. 11 A. Yeah, when he had a stroke, yes, sir, 11 We had an opportunity to take the dock to 12 Q. Okay. Were there times when matters would come 12 deep water for Pin Oak to increase the capacity there. 13 before the board where the vote would be three to zero 13 They've got a deal that was conceived by A.J. Brass 14 in favor? 14 that's not very good, and ideally, we get the barrels 15 A. We usually tried for unanimity, yes. 15 going across the dock and increase cash flow. 16 Q, All right. Were there times when it was three 16 Part of that process, this was really Ken 17 to zero against doing projects? 17 Luhan's project, the ex-president of Bay, or the retired 18 A. With a few notable exceptions, usually we 18 president of Bay. So in order to do the -- there's two 19 strove for unanimity. 19 different methodologies, Ken's and my way and we end up 20 Q. Okay. However striving for that, were there 20 kind of a hybrid. It's been evaluated and engineered 21 also times where there were two-to-one votes? 21 about 20 times, but we looked at the most cost effective 22 A. Of course. 22 way was to move the bulkhead line, leave the docking 23 Q, Okay. Were there instances where you were 23 that currently existed and put a bridge out. And so 24 outvoted by Dennis and Marty? 24 I've been working towards that with Pin Oak. 25 A. I'm sure there are. 25 So I had a request to Sean Strawbridge

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about moving the bulkhead line and where Strawbridge was company? 2 replaced, I went down to meet with Kent Britton at the 2 A. Yes, sir, at the last board meeting, I believe. 3 -- at the Port of Corpus Christi to see what the status 3 Q. At the last board meeting. When was that? 4 was on moving the bulkhead line, because you know, there 4 A. Like, lately. 5 was not much a hand over with regards to Strawbridge, or 5 Q, Like, this past 6 at least it was not transparent. 6 A. Yes, sir. 7 Q. Okay. Let me -- let me stop you right there. 7 Q. It was this week, wasn't it? 8 When was that meeting? 8 A. Yes, sir. 9 A. Right before I -- this is right before I filed 9 Q. Okay. What did you vote to sell? 10 lawsuit. 10 A. Some miscellaneous tract that was a borrowed 11 Q, Okay. And Kent Britton is whom? 11 source in Sinton. 12 A. Is the new CEO of the Port of Corpus Christi. 12 Q. And was that indeed a three-zero vote? 13 Q, And he took Mr. Strawbridge's place, right? 13 A. Yes, sir. 14 A. Yes, he did. 14 Q, Okay. You voted for it' Marty Berry voted for 15 Q, Back up a little bit. We're going to get to 15 it, and Bonnie Berry voted for it? 16 that meeting, and I know that was the meeting where they 16 A. Yes, sir. 17 gave you the letter that Mr. Rickett had written to 17 Q. Okay. On that vein, have you-all been having 18 Mr. Strawbridge. 18 regular board meetings even after this lawsuit was 19 In terms of information flow, traditionally 19 filed? 20 through the years, were you able to get the information 20 A. Yes, sir. 21 you requested? 21 Q, Have you-all been conducting business? 22 A. Yes, sir. 22 A. Yes, sir. 23 Q. Okay. As a board member of the Berry 23 Q. Have you been holding votes? 24 companies, as an owner of the companies, along with your 24 A. Yes, sir. They've been holding votes. 25 brothers, you were entitled and historically had been 25 Q, And that's what you-all have done for years at

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able to get this information? the board level? 2 A. Yes, sir. 2 A. Yeah, we've historically been all pulling on 3 Q, Did that change at some point? 3 the rope together. 4 A. Yeah, I think the market change was after Ed's 4 Q, want to look at just the micro timeframe for 5 demise. 5 a minute. Since you filed the lawsuit, have there been 6 Q, I'm sorry? 6 instances, just like we just discussed, where the vote's 7 A. After Ed left, yes. It's been a much more 7 been three to zero? 8 difficult post Ed Martin. 8 A. Pardon me? 9 Q. Okay. Did that cause you frustration? 9 Q. Have there been three-zero votes like there was 10 A. Yes, sir. 10 on selling that property? 11 Q, Why did you want the information? 11 A. Yes, sir. 12 A. Because I'm a good custodian -- I want to know 12 Q. Have there been two-to-one votes? 13 what's going on. From a business standpoint, there's a 13 A. Yes, sir. 14 lot of risk modeling incurred here in the contracting 14 Q, And the company has taken the position on all 15 business and I had dire and desperate concerns, and 15 those two-to-one votes that those resolutions or those 16 still do, about about operationally where we are and 16 projects passed; is that right? 17 I'm still being fire-walled out. 17 A. Yes, sir. 18 Q, All right. Has the board ever or the company 18 Q, Let's talk about the Berry dock, that's the 19 ever sold real property? 19 Berry inner-harbor dock; is that right? 20 A. Yes, sir. 20 A. Yes, sir. 21 Q, Many times? 21 Q, All right. Who -- under whose leadership was 22 A. wouldn't say -- we're not really developers. 22 that either acquired or constructed? 23 We usually buy, but yes, we sold property on occasion. 23 A. My father built the dock in the late '70s for 24 Q, Okay. And have you voted to sell real property 24 the Corpus Christi Petro-Chem project to bring in the 25 if you thought it was in the best interest of the 25 vessels. You know, it was a pretty massive cap X, but

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nonetheless, he thought there was room for a heavy-lift dock and the 16 acres, which we'll talk about in a 2 dock on the inner harbor and he was correct as we found, 2 moment, and you felt it was in the best interest of the 3 you know, billions of dollars of stuff that's gone 3 company, would you vote to sell it? 4 through that dock through the years. And, of course, it 4 A. Yes, sir. 5 was a significant contributor when the refinery was 5 Q. So you would weigh the value of the dock versus 6 running. 6 the value of the offer in the best interest of the 7 Q. Okay. And by the refinery, what are you 7 company? 8 referring to? 8 A. Of course. 9 A. The refinery is - - when I refer to the 9 Q. All right. I'm going to turn now and talk 10 refinery, I'm saying when Trifinery was there, which was 10 about some of the exhibits. 11 originally my father, Baynes Manning and Sandy Brass. 11 MR. BOYD: Your Honor, if I may approach? 12 Baynes Manning ends up, ultimately, I believe, staying 12 THE COURT: You may. 13 at Saber/Valero in the trading capacity and didn't come 13 Q. (BY MR. BOYD) I'm going to hand you what's 14 in. So the refinery was built by dad and Sandy Brass. 14 marked as PTX1. Mr. Berry, without going into the 15 And then, it's -- with the economic model 15 contents of the email chain, do you recognize this email 16 being based off of a off-date agreement with P to V 16 chain? 17 divide discount, asphalting heavies that the unit would 17 A. Yes, sir. 18 process, i t was kind of a lay up deal, the discount was 18 Q. All right. The subject matter of the email 19 so deep. And then, lo and behold, Mr. Brass gets 19 chain is going towards the loans that Marty Berry and 20 caught. Right when we're going to start the plant, 20 Dennis Berry made to the company; is that right? 21 Mr. Brass gets caught selling feedstock as bunker in 21 A. Yes, sir.

22 Miami and we lose the agreement and then just kills that 22 Q. Okay. And this is dated January the 16th and 23 project. 23 you're making inquiry after having seen it in accounting 24 Q. All right. And through the years, has the dock 24 records that were provided to you and your staff in 25 been a valuable asset to the Berrys? 25 Houston; is that right?

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A. Business couldn't have been here without it. A. Yes, sir. 2 Q. Okay. 2 Q. Okay. Do the Berry companies maintain a 3 A. Until until we - - until those tanks went 3 Houston presence? 4 there and we lost our fabrication facility. Our fab 4 A. Yes, sir. 5 area there, it was instrumental to this business, 5 Q. All right. Can you tell the Court what goes on 6 probably the most important piece. 6 in Houston, historically? know there's been some 7 Q. Okay. Earlier in his opening statement, you 7 changes. 8 heard Mr. Allison state that under the bylaws, they have 8 A. Well, we have maintenance agreements at the 9 to give the board ten days' notice before they can sell 9 Valero plants, base load maintenance. We've done 10 real property. Do you remember that part of his 10 large-scale capital work there, some successful, some 11 opening? 11 not so successful through the years. We have had a yard 12 A. Yes, sir. 12 there since the -- I don't know, I bought that from 13 Q. All right. That wouldn't be true if they 13 believe Halliburton in probably '99. I can't remember, 14 kicked you off the board, would it? 14 somewhere in there, in Friendswood, which we later -- 15 A. No, sir. 15 later replaced with the facility that was Belma's on 16 Q. Tell me about docks in the inner harbor. Are 16 Alameda where the shops and storage -- where the steel 17 there many docks? 17 warehouse is now. 18 A. Numerous docks. 18 Q. Okay. Having seen the related party -- 19 Q. Are there many for sale? 19 A. Oh -- 20 A. No, sir. 20 Q. Okay. Go ahead. I'm sorry. 21 Q. Do you believe that the Berry dock would be 21 A. You asked what transpired in Houston. Then my 22 irreplaceable if it was sold? 22 office, historically, at Riverway has been a sales and 23 A. think the maxi mum value for the company is to 23 marketing office as well as administering all of our 24 own it and tariff there just like we have for decades. 24 work -- all of our international work out of there, 25 Q. All right. If an offer was made for the Berry 25 which was significant.

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Q, Okay. Does Bay still have an office at A. "Is this what you're looking for? Let me know. 2 Riverway in Houston? 2 Thanks." 3 A. No, sir. They moved out. 3 Q. And the PDF that's referenced -- 4 Q. Going back to this email, at some point in time 4 A. Orea note. 5 and we're going to talk about it •· you received some 5 Q, Okay. And that was not what you were looking 6 accounting records from the company that showed a 6 for? 7 related party note or notes in the amount of 7 A. No, sir.

8 $75,000,000; do you remember that? 8 Q, All right. And so what did you respond to 9 A. Yes, sir. 9 Mr. Powers? 10 Q, At that point in time, had you ever seen any 10 A. No. That I requested the paperwork for the 11 loan documentation related to that transaction? 11 $75,000,000 related party receivable on the Berry GP 12 A. No, nowhere had it ever been mentioned to me. 12 books. 13 Q, Okay. Had it ever been brought up at a board 13 Q, All right. And the date of that? 14 meeting? 14 A. January 16th. 15 A. No, sir. 15 Q, And what was Mr. Powers' response to your 16 Q, Had it ever been voted on by the three owners 16 clarifying exactly what you wanted? 17 of the company? 17 A. "Okay. That is not executed yet to my 18 A. No, sir, it had not. 18 knowledge. I will follow up and see if it's signed 19 Q. Okay. Had the company ever done a transaction 19 yet." 20 of that size without documenting it contemporaneous to 20 Q, Okay. After he told you that the paperwork had 21 the transaction? 21 not been executed, what did you say in response to that? 22 A. Absolutely not. 22 A. "I know nothing about any of this," because I 23 Q. Do you find that to be abnormal or normal? 23 did not. 24 A. It's unusual . 24 Q, All right. We're going to go to Exhibit 2. 25 Q, Okay. And having seen the financial statements 25 MR. BOYD: May I approach?

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where this transaction or these transactions were listed THE COURT: Yes, sir. Is that one for me? 2 in the accounting records, did that cause you concern? 2 MR. BOYD: Yes, sir. Some of this will 3 A. Yes, sir, compounded with the absence of any 3 also be front and back. 4 information, absolutely. 4 THE COURT: That's okay. 5 Q, All right. And is that what this email is 5 Q, (BY MR. BOYD) All right, Mr. Berry, I need you 6 about? 6 to take a look at PTX No. 2. Without going into details 7 A. Yes, sir. 7 of its content, let me know if you recognize it? 8 MR. BOYD: Your Honor, at this point, we'd 8 A. Yes, sir. 9 offer PTX1. 9 Q. Okay. 10 MR. ALLISON: No objection, Your Honor. 10 MR. BOYD: Clay, this is one of the ones 11 THE COURT: It's admitted. 11 that was not produced by you-all. 12 Q. (BY MR. BOYD) All right. Let's talk about the 12 MR. STEELY: Got you. These two stacks, 13 email. If you go to the second page of the exhibit, 13 Butch, are they one exhibit? I'm trying to figure out 14 that's an email that really starts on the first page, 14 what you handed? You handed Doug two stacks or am 15 page of 2. From Mr. Powers -- and who is Mr. Powers? 15 wrong?

16 He's here in the courtroom today, but who is he? 16 MR. ALLISON: And just so you know, I know 17 THE COURT: I don't mean to interrupt you, 17 you didn't mean anything, but I do think they're both 18 but if you want me to look at this contemporaneously, 18 produced, but skipping aside, you're obviously using one

19 I've only got one page. 19 without Bates page numbers, and that's okay, we've just 20 MR. BOYD: I think it's on the very back. 20 got to mark them or something. 21 Sorry. It's on the very top. It's very short. 21 MR. BOYD: They're marked as PTX2. 22 THE COURT: Oh, it's little. Okay. I'm 22 MR. ALLISON: Okay. Great. 23 sorry. My fault. 23 MR. ABSMEIER: And I can explain why 24 Q, (BY MR. BOYD) So Mr. Powers emails you and 24 there's some thin ones. The only document I think 25 what does he say? And this is on the back of page 1. 25 Mr. Boyd is going to show is the first attachment. So

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you have a copy there that has the full attachment. The Q, And he worked for the Berrys for 40 years? 2 second attachment is a very long spreadsheet that we're 2 A. Yes, sir. 3 not even getting into. So you have one for -- 3 Q. And having looked at this email chain and the 4 MR. ALLISON: The income statement versus 4 attached accounting records, do you recognize these to 5 the balance sheet, I think? 5 be Berry GP, Inc., and affiliates Combined and 6 MR. ABSMEIER: Yes, some kind of 6 Consolidated Financial Statements for the period ending 7 spreadsheet. It's a balance sheet that's a 45-pages 7 July 31st, 2022? 8 MR. ALLISON: I understand your comment. 8 A. Yes, sir. 9 MR. ABSMEIER: -- spreadsheet. 9 Q. Okay. 10 MR. STEELY: You're going to mark the whole 10 MR. BOYD: Your Honor, at this time, I 11 one? 11 would move to introduce PTX2. 12 MR. ABSMEIER: I'm marking the whole one 12 MR. ALLISON: No objection. 13 for the record. 13 THE COURT: No objections? All right. 14 THE COURT: There's two. 14 Hearing no objections, it's admitted. 15 MR. STEELY: That's why I was wondering why 15 Q, (BY MR. BOYD) Was it common practice for 16 we got two exhibits when we were talking about one. 16 Ms. Fulghum, when she worked both for you but really for 17 Thank you. 17 Berry GP, to ask Corpus accounting to send over 18 Q. (BY MR. BOYD) Have you had a chance to review 18 accounting records? 19 this? And for your reference, Mr. Berry, I'm only going 19 A. Yes, sir. 20 to be talking about the email chain and then, three 20 Q, Okay. And as part of her job function, would 21 pages of over it's Combined and Consolidated Balance 21 she facilitate various transactions between really the 22 Sheets. 22 owners in the company and assist the accounting 23 A. Okay. 23 department here in Corpus? 24 Q, Tell the Court who Tonja Fulghum is. 24 A. Yes, sir. 25 A. My assistant and aide-de-camp. 25 Q, When she would request this, was that typically

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Q, I'm sorry? at your request? 2 A. My assistant and aide-de-camp. 2 A. Sometimes, yes. Yes. 3 Q, All right. Who does she work for presently? 3 Q, Okay. 4 A. For me. 4 A. Yes, but not always. I couldn't say. 5 Q, Who did she work for the past 27 years? 5 Q, All right. I want to turn over to the Combined 6 A. Berry GP. 6 and Consolidated Balance Sheet. 7 Q. And she was officed in Houston? 7 A. Yes, sir. 8 A. No, she was originally officed here. I poached 8 Q, July 31st, 2022. And I want you to come down 9 her from Coastal. 9 three-quarters of the page and tell me if you see the 10 Q, But during that time period that she was 10 Note payable - related party? 11 working in Houston, by whom was she employed? 11 A. Yes, sir. 12 A. Berry GP. 12 Q. Is this the accounting record where you first 13 Q, And she worked for the Berry companies for 27 13 learned about the related party note payable? 14 years? 14 A. Yes, sir, I believe so. 15 A. Yes, primarily, yes, sir. 15 Q. Now, this is for the period ending July 31st, 16 Q, Who does she now work for you? 16 2022, but this was actually sent over to you and Tonja 17 A. She was terminated. 17 on September 21st; is that right? 18 Q, When? 18 A. Yes, sir, I would assume so. 19 A. Last couple of weeks. 19 Q, Okay. How was that entry on the books and 20 Q. So after this lawsuit was filed? 20 records brought to your attention? 21 A. Yeah. More than one person terminated without 21 A. By accounting at Riverway. 22 cause. 22 Q, Did you then, after it was brought to your 23 Q, Her husband was also terminated, right? 23 attention by an accountant, have a meeting with Tonja 24 A. Yes. After 40 something years of making us 24 about this? 25 money, yes, without cause. 25 A. Of course.

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Q, Okay. And this is what you testified earlier take PTX4 and fold -- not fold, crease, but just bend 2 that caused you concern? 2 PTX3 so you can see both sheets note payable row, okay? 3 A. Yes, sir. 3 A. Yes, sir. 4 Q. I'm going to hand you PTX3 and PTX4. And PTX3 4 Q. Are you with me? 5 starts at Bates Bay 000473, and 4 starts at Bay 000479. 5 A. Yes, sir. 6 MR. BOYD: May I approach? 6 Q, Before we do that, what is the date on PTX4? 7 THE COURT: Yes, sir. 7 A. October 31st of 2022. 8 MR. BOYD: With your permission, I'll 8 Q, So it's the very same date as the PTX3? 9 approach freely, if you'll allow it? 9 A. Yes, sir. 10 THE COURT: That's fine. 10 Q, Okay. On PTX3, you testified the amount shown 11 MR. BOYD: That's PTX3 and PTX4. 11 for this related party note is $75,000,000; is that 12 THE COURT: Okay. 12 right? 13 Q, (BY MR. BOYD) Again, Mr. Berry, without going 13 A. Yes, sir. 14 into the contents, can you just tell the Court what PTX3 14 Q, What is the amount shown for the very same 15 and PTX4 are? 15 period on PTX4? 16 A. They appear to be Combined and Consolidated 16 A. 76,361,301. 17 Balance Sheets for Berry GP. 17 Q. Okay. Can you explain the discrepancy? 18 Q. Okay. And 18 A. No, sir. 19 A. But it's a format I'm not used to seeing. 19 Q. Why not? 20 Q, Okay. This was an Excel spreadsheet that was 20 A. Same date, same -- it would need to backup. 21 converted to a PDF. It kind of -- 21 Q, Do you have the backup? 22 A. Okay. 22 A. I do not. 23 Q, -- it changes the formatting, so we didn't have 23 Q. Have you requested the backup? 24 the data. You see on there, you can tell that by the 24 A. Yes, sir, I have. 25 number signs in certain columns; do you see that? 25 Q, Has it been forthcoming?

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A. Yes. Yes. A. No, sir.

2 Q. Do you know what causes that? 2 Q. Now I want to turn to Exhibit PTX5, which is 3 A. Pardon me? 3 Bates Bay 000953. Lawrence, in the spring of 2023, 4 Q, Do you know what causes that not to be an 4 prior to your current lender, who was the long-standing 5 actual number and to be a string of number signs? 5 lender for the Berry companies that provided your 6 A. No, I do not. 6 revolving line of credit? 7 Q. Okay. Well, when a PDF -- when an Excel 7 A. International Bank of Commerce. 8 spreadsheet is converted to a PDF and the column is not 8 Q, How long had that relationship existed? 9 wide enough to hold the number in this format, it 9 A. Twenty-plus years. 10 defaults to a number sign. 10 Q, All right. Who was your -- who were the Berrys 11 A. Okay. 11 who was the Berrys' banker at IBC? 12 Q. All right. And fortunately, for us, the 12 A. Gus Barrera here in town and, of course, Dennis 13 numbers want to talk to you about are here. 13 Nixon's the chairman who runs the bank. 14 MR. BOYD: With that said, Your Honor, I 14 Q, All right. Did you-all have - - you-all being 15 would offer PTX3 and PTX4. 15 the Berrys -- have a relationship with Dennis Nixon? 16 MR. ALLISON: No objection. 16 A. Pardon me? 17 THE COURT: All right, hearing no 17 Q, Did you have a relationship with Mr. Nixon? 18 objection, they're admitted. 18 A. Yeah, know Dennis. 19 Q, (BY MR. BOYD) On PTX3, what is the date at the 19 Q, Okay. 20 top? 20 A. He knows US, He's been our banker a long time. 21 A. October 31 of 2022. 21 Q, All right. Have you seen this email before 22 Q, All right. On the note payable - related party 22 this litigation? 23 for October 2022, what is the amount shown? 23 A. No, sir.

24 A. 75,000,000, 24 Q, Okay. But you see that it's from the bank to 25 Q, Okay. What I want you to do now, is if you' 11 25 Mr. Powers, right?

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A. Yes, sir. Q. What -- at the board meeting, what did you 2 Q. Okay. Did you come to learn, at some point, 2 learn had happened when Mr. Nixon flew to Corpus for the 3 that Mr. Nixon traveled to Corpus Christi to meet with 3 meeting on the 13th? 4 the board of the Berry companies? 4 A. He showed he showed up for the meeting and 5 A. Yes, sir, in a board meeting. 5 we weren't there. He apparently hollered at -- at 6 Q. Okay. Were you ever informed of that board 6 Mr. Powers and then left. 7 meeting? 7 Q. Okay. And you learned that during the board 8 A. No, sir. Was I ever informed of this meeting? 8 meeting? 9 Q. Yes, sir. 9 A. Yes, sir. 10 A. No, sir. 10 Q. Okay. After the board meeting, did you have 11 Q. But you were -- you did learn, after the fact, 11 occasion to visit with your brother, Marty Berry? 12 that Mr. Nixon traveled to Corpus? 12 A. Yes, sir. 13 A. Yes, sir. 13 Q. About the meeting? 14 Q. How did you learn that? 14 A. Yes, sir. 15 A. In the board meeting when I was informed that 15 Q. Did you ask him why he wasn't at the meeting? 16 we had that they canceled our revolving line of 16 A. I certainly did. 17 credit. 17 Q. What did he say? 18 Q. Okay. We're going to talk about that in a 18 A. He said, "I'm not going to that meeting with 19 minute. 19 Dennis Nixon and get my ass eat out." 20 MR. BOYD: At this time, Your Honor, I 20 Q. So he didn't want to go have the meeting with 21 would offer PTX5. 21 Mr. Nixon because he knew it was not going to be an easy 22 MR. ALLISON: No objection. 22 meeting? 23 THE COURT: All right. Hearing no 23 A. Well, the previous time when this had occurred, 24 objection, 5 is admitted. 24 it was not an easy meeting. 25 Q. (BY MR. BOYD) Okay, in this email from 25 Q. I'm going to hand you PTX6, which is Bates Bay

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Mr. Barrera to Rob Powers, what is he seeking? 000111 and ask you if you recognize that? 2 A. Seeking a meeting with the -- with the board of 2 A. Yes, sir. 3 directors with Dennis Nixon, which is not unprecedented. 3 Q. All right. Have you seen this before today? 4 This had occurred once before, a long time ago. 4 A. I believe so. 5 Q. When the chairman of the board of a bank that 5 Q. Was this discussed at the March 14th board 6 is extending a $50,000,000 or greater line of credit so 6 meeting? 7 the Berry companies asks for a meeting, what would you 7 A. Yes, sir. 8 do? 8 MR. BOYD: At this point, I would offer 9 A. Pick up the phone and call everybody and say, 9 PTX6. 10 we better get our stuff together. 10 MR. ALLISON: No objection. 11 Q. Okay. It's a serious event, right? 11 THE COURT: All right, hearing no 12 A. Probably the most serious one in an ongoing 12 objection, 6 is admitted. 13 enterprise of this scale. 13 Q. (BY MR. BOYD) Can you tell the Court who Scott 14 Q. Can you explain why that is? 14 Landreth is? Do you know? 15 A. We can't transact business with our clients 15 A. I assume he's counsel for the bank. 16 with these -- with as much -- as much stuff gets 16 Q. All right. And so he wrote this letter on 17 disputed, it's just every time it takes so much capital 17 March 13th, 2023. And right above Mr. Powers' name it 18 and there are never -- they're never -- the payments are 18 was, I guess to the attention to or written to, he 19 never timely, nobody scheduled it, and then when you 19 writes in all bold caps "Notice of Default." Do you see 20 throw in the disputes and retainers, et cetera, you've 20 that? 21 got to have a revolver, man. 21 A. Yes, sir. 22 Q. Okay. The company, the Berry companies, does 22 Q. What does that mean to you? 23 it require a lot of capital to continue as a going 23 A. That contractually, we're not -- we're not in 24 concern? 24 our lane. 25 A. Massive amounts, yes, sir. 25 Q. Okay. Meaning that you're out of compliance

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with the loan companies? A. RFor reasons unknown to us, the meeting was 2 A. Yes, sir. 2 unilaterally canceled and no resolution was reached. We 3 Q. If you'll read the first two sentences of 3 are left to believe the financial condition of the 4 Mr. Landreth's letter, please, into the record. 4 borrowers has gotten even worse as my client has yet to 5 A. "This law firm represents International Bank of 5 receive required financial statements for the quarter 6 Commerce, the Lender, in connection with the referenced 6 ending January 31st, 2023 or the detailed financial 7 revolving line of credit loan. I'm writing you to 7 information requested by Mr. Barrera. Timely reporting 8 inform you that the lender recently determined that the 8 of accurate financial information has been a reoccurring 9 borrowers are in default under the loan agreement for at 9 problem." 10 least two reasons." 10 Q. Okay. Again, if you had known about the 11 Q. Okay. Were these items the reasons this letter 11 meeting, you would have arrived in Corpus, and even if 12 discussed at the March 14th board meeting? 12 you were by yourself, had the meeting; is that right? 13 A. Okay. One more -- restate the question. 13 A. Absolutely. 14 Q. Did you-all discuss the fact that IBC viewed 14 Q. Okay. I'm going to skip over to PTX6 -- 26. 15 you to be in default at the March 14th board meeting? 15 I'm sorry. 16 A. Yes, I believe we did. 16 MR. BOYD: Your Honor, in case I didn't do 17 Q. Okay. Would you agree that a notice of default 17 it, I would offer PTX7. 18 from the bank holding your revolving line of credit to 18 MR. ALLISON: No objection. 19 an entity the size of the Berry companies is a serious 19 THE COURT: Hearing no objection, it's 20 event? 20 admitted. 21 A. Yeah, it's a major crisis. 21 So is this 26? 22 Q. Okay. I'm going to show you PTX7, which is Bay 22 MR. BOYD: Yes, sir. 23 000122, I'm going to ask you to review that while I'm 23 THE COURT: Okay. 24 passing that out. I'm going to organize that and get it 24 Q. (BY MR. BOYD) Have you had a chance to review 25 back. 25 PTX26?

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Mr. Berry, I'm going to ask you to take a A. Yes, sir. 2 second and review of that document and we'll talk about 2 Q. All right. Do you recognize it? 3 it, pl ease. 3 A. Yes, sir. 4 A. Yes, sir. 4 Q. Generally speaking, what is it? 5 Q. All right. Again, this letter is written by 5 A. A letter to me -- from me to Dennis Nixon 6 Scott Landreth, right, on the third page? 6 requesting a meeting. 7 A. Yes, sir. 7 Q. Okay. 8 Q. The attorney representing IBC Bank. And who is 8 MR. BOYD: At this time, I would offer 9 it addressed to? 9 PTX26. 10 A. Mike Hummell . 10 MR. ALLISON: No objection. 11 Q. Okay. Mr. Hummell 's here in the courtroom 11 THE COURT: All right. Hearing no 12 today and his role with the Berry companies is what? 12 objection, 26 is admitted. 13 A. General counsel. 13 Q. (BY MR. BOYD) All right. So it is indeed a 14 Q. Okay. Can you go to the middle of the first 14 letter from you to Mr. Nixon, the chairman of the board 15 paragraph where it says, "You probably also know"? 15 of IBC, and what are you conveying to him or requesting 16 A. Yes, sir. 16 from him? 17 Q. And read to the end of that paragraph. 17 A. I'm requesting a meeting so I could find out 18 A. "You probably also know that the resulting 18 what, from his perspective, what transpired. 19 audit has raised numerous concerns on this end. My 19 Q. Why -- why did you want that meeting? 20 client had nonetheless hoped to have its questions 20 A. Because it was nonsensical to me -- 21 answered and reach an agreement concerning a year-long 21 Q. What was? 22 extension. That was the purpose of a meeting to include 22 A. The termination. And I wanted to hear from the 23 Berry family members scheduled for last Monday." 23 horse's mouth why it occurred. 24 Q. Okay. Let's go on to the second paragraph, and 24 Q. Okay. Did you ultimately have that meeting? 25 if you'll read that for me? 25 A. Yes, I did.

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Q, Okay. When was that meeting? to everybody at this table and Mr. Steely. Do you see 2 A. Sometime after this letter. I've had -- 2 that? 3 Q. Do you remember -- 3 A. Yes, sir. 4 A. multiple meetings with Mr. Nixon. 4 Q. Okay. And what's the subject line say? 5 Q, Okay. Was Mr. Nixon - - did he convey that he 5 A. "Marty's loan doc to Berry GP." 6 was upset that there was nobody there to meet him at the 6 Q, Okay. And indeed attached is a promissory note 7 board of directors? 7 signed by Marty Berry, correct? 8 A. Yes, sir. 8 A. That is correct. 9 Q. What did you say to him? 9 Q. All right. This was not Bates stamped. It was 10 A. I apologized profusely and told him I didn't 10 prior to production, but the actual promissory note is 11 have knowledge of the meeting or I would have been 11 Bay -- or the actual Bates stamp promissory note is Bay 12 there. What else are you gonna do? 12 000023. What is the date of the promissory note? 13 Q, Why did you do that? 13 A. July 8th of 2022. 14 A. Well, because this is a small -- this is a 14 Q, Okay. want you to find at your witness 15 small village down here and you're going to need those 15 stand, pl ease, Exhibit No. 1, pl ease. 16 bankers later on and I wanted to make sure we could 16 A. Yes, sir. 17 always go back. I mean, IBC' s a bank. 17 Q. All right. So some seven months later, 18 Q. All right. At least as between you and 18 Mr. Powers emails you and tells you that the promissory 19 Mr. Nixon, did the meeting end on good terms? 19 note or loan docs had not been executed yet. Do you 20 A. Absolutely. 20 remember that exhibit and that email? 21 MR. BOYD: I'm going to go to PTX8. 21 A. Yes, sir.

22 Q. (BY MR. BOYD) Lawrence, I'm going to hand you 22 Q. Okay. If his email is accurate and truthful, 23 PTX6, and as with the other exhibits, ask you to review 23 and assume you'd expect your CEO to be truthful with 24 it and I'll talk about it, please. 24 you?

25 THE COURT: Okay. 25 A. Yes, sir.

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Q, (BY MR. BOYD) Have you had a chance to review Q, Then this document would necessarily have to 2 PTX8? 2 have been created after that date and backdated; is that 3 A. Yes, sir. 3 right? 4 Q, Okay. And this is an email from Marty Berry 4 A. Yes, sir. 5 and the company's lawyer to the lawyers sitting at this 5 Q, Is this the first time you became aware of the 6 table; is that right? 6 loan documentation that you had been asking for for 7 A. Yes, sir. believe SO, Yes, sir. 7 quite sometime? 8 Q, Okay. And it attaches a promissory note; is 8 A. Yes, sir. 9 that right? 9 Q. This was sent on January -- or December 6. 10 A. Yes, sir. 10 Were you aware that not only was there a board meeting 11 Q, And do you now recognize the promissory note? 11 going on over here on December 7th; you attended, right? 12 A. Yes, sir, I see it here. 12 A. (Nodding head up and down.) 13 Q, Okay. And the date of this transmittal is 13 Q, But that your you lawyers were in court in 14 December 6, 2023, correct? 14 Harris County, Texas; do you remember that? 15 A. That is correct. 15 A. Yes, sir. 16 Q, Okay. 16 Q, And you and I talked on the phone some, and 17 MR. BOYD: At this time, I would offer 17 Mr. Allison was talking with Mr. Hummell and, perhaps, 18 PTX8. 18 Mr. Berry out in the hall. Do you remember that? 19 MR. ALLISON: No objection. 19 A. Yes, sir.

20 THE COURT: All right, hearing no 20 Q. Okay. And during that board meeting, Bonnie 21 objection, 8 is admitted. 21 Berry was elected to the board? 22 Q, (BY MR. BOYD) So on December the 6th, in the 22 A. Yes, sir. 23 afternoon, Mr. Allison transmits to us via email, "us" 23 Q, Okay. And I've listened to the board meeting. 24 being the lawyers in this room. I think Mr. Huseman had 24 What did you ask Dennis before he voted? 25 not entered an appearance at that time, but he sent it 25 A. If Bonnie was taking his place.

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Q, Well, did you also ask him if that's what he Q, Okay. I'm going to represent to you that this 2 wanted? 2 was attached to a pleading filed in Harris County on 3 A. Yeah. 3 December 7th for that hearing that was conducted in 4 Q. Okay. 4 Harris County on extending, amending the TRO. What is 5 A. Yes, sir. 5 the date that this was signed by Marty Berry? It's on 6 Q, And he told you yes? 6 the last page. 7 A. Yes, sir. 7 A. 7th day of December 2023. 8 Q, And how did you vote? 8 Q, Okay. I want to talk about Marty Berry's sworn 9 A. Yes, affirmative. 9 testimony to the Court in Harris County. I want to go 10 Q, And you stand by that vote? 10 to the loans to Berry GP. 11 A. Of course. 11 A. Yes, sir. 12 Q. At any time, have you been provided a plan by 12 Q. Start reading where it says "The company need. 13 the CEO, by the company, to pay this note back? 13 If you'll read that into the record, please, sir.

14 A. No, sir, I have not. 14 MR. ALLISON: Not -- 15 Q, Does that cause you concern? 15 THE COURT: What page are we on? I'm 16 A. This whole thing causes me concern. It's the 16 confused. 17 largest transaction, financial transaction we've 17 MR. BOYD: I'm sorry? 18 probably ever done, individually with the enterprise, 18 MR. ALLISON: Have you offered it yet? 19 and there's no -- where it says contracting on the front 19 MR. BOYD: No, you're right. No. Thanks. 20 side and when you turn it and there's no contract and 20 We offer PTX9. 21 there's no note, and then, like this is abnormal. 21 MR. HUSEMAN: I'm sorry, what number? 22 Q. Okay. And it obviously caused IBC concern? 22 THE COURT: Hearing no objection, it's 23 MR. STEELY: Objection as to speculation, 23 admitted. think the witness might be a little 24 Your Honor. 24 confused too. 25 THE COURT: Sustained as to speculation. 25 A. Yeah, I am.

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A. Since -- Q, (BY MR. BOYD) I want you to go to the first 2 THE COURT: Wait, wait. It's sustained. 2 page. 3 Q, (BY MR. BOYD) Let me ask it a different way. 3 A. Yes, sir. 4 Did IBC default the loan? 4 Q, Loans to Berry GP. Do you see that? 5 A. Yes, IBC defaulted our loan, yes, sir. 5 A. Yes, sir. 6 Q, I want you to look at the Term of Payment for 6 Q, And come to the second sentence of that 7 the note, please, sir; do you see that? It's right on 7 paragraph and start reading "The Company need." 8 the first page. 8 A. "The Company need for money in the summer of 9 A. Yes, sir. Yes, sir. 9 2022 was so extreme that we decided -- we met to decide 10 Q, Okay. Tell us what the Term of Payment, first 10 how to best handle a capital infusion. We decided to 11 paragraph says. 11 put in money ourselves. Lawrence refused to contribute 12 A. "The interest shall be accrued monthly 12 to the effort, so the two of us put up the entire $75 13 beginning July 31st of 2022 and payable upon maturity. 13 million.• 14 The note is due and payable in full on May -- December 14 Q, Okay. Let me stop you there. Number one, did 15 21st of 2024." 15 you have any idea that the company needed capital at 16 Q, So the note specifically sets out what the 16 that point in time? 17 terms are, right? 17 A. No, sir.

18 A. Yes, sir. 18 Q, Did -- was a cash call, a formal cash call ever 19 Q, Does it require any payments of either interest 19 presented to you as one of the owners -- 20 or principal before December 31st of 2024? 20 A. No, sir.

21 A. No, it does not. 21 Q. -- of the Berry companies? 22 Q, All right. I'm going to show you Plaintiff's 22 A. No, sir.

23 Exhibit 10 -- oh, I'm sorry, 9, PTX9. Have you had a 23 Q, Had you even heard about this potential 24 chance to review this? 24 transaction in the summer of 2022? 25 A. Yes, sir. 25 A. No, sir.

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Q, Did you ever refuse to contribute to the Q, Okay. Based on fair market value of that 2 effort? 2 airplane at that time, what would it have been 3 A. No, sir. 3 approximately? 4 Q. Okay. want to come down into that paragraph 4 A. Probably 7. I think could have flipped it 5 where it starts, al most three or four lines up, "We've 5 for 7. I had somebody call. can't remember. think 6 not been repaid for our loans." Do you see where Marty 6 George Dodge called me at the time and asked me if I'd 7 Berry swears -- 7 sell it. 8 A. Yes, sir. 8 Q, And George Dodge is who? 9 Q. -- under oath to that sentence? 9 A. Charter operator in Houston, one of the big 10 A. RWe have not been repaid for our loans and are 10 ones, Western Airways. 11 unlikely to recover our loans anytime soon. We have not 11 Q, All right. Could you - - I mean, were you 12 received any interest payments." 12 prohibited from purchasing this for yourself? 13 Q, Okay. We' re going to come back to that in just 13 A. No. 14 a second, but if you'll read the very last sentence of 14 Q, Okay. How did the purchase get structured? 15 that page that goes into the top of the next page, 15 A. Corporate closed it. 16 please. 16 Q, And corporate owns that airplane? 17 A. RHe continues to refuse to use his personal 17 A. Yes, sir. 18 funds to assist the company." 18 Q. Did that airplane, or airplanes in general, 19 Q. All right. That last sentence, is that true? 19 come up at the last meeting of the owners? 20 A. No, it 's a lie. 20 A. Yeah. Yes, it did. 21 Q, All right. Had you spent personal funds to 21 Q, And was there an agenda item for approval to 22 benefit the Berry companies? 22 sell the corporate aircraft? 23 A. Still doing it every day. 23 A. Yes, there was. 24 Q, Millions of dollars? 24 Q, All right. And Marty Berry voted in favor of 25 A. I've spent millions, yes, sir. 25 that?

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Q, Okay. What types of expenditures have you made A. Yes, sir. 2 on behalf of the Berry companies? 2 Q. Bonnie Berry voted in favor of that? 3 A. Salaries, capital expenditures incrementally, 3 A. Yes, sir. 4 buying cranes for no markup and tender them to the 4 Q, And how did you vote? 5 company. 5 A. I don't recall. think I voted no. 6 Q, Do you routinely buy industrial-type equipment 6 Q, Well, I think that you al so said, if you want 7 and iron at auctions? 7 to sell the airplanes, that's fine; is that what you 8 A. Yes, sir, for the -- usually for only -- mostly 8 said? 9 for the benefit of corporate. 9 A. Yes, sir. 10 Q, Okay. And you don't turn around and mark that 10 Q, Okay. So few sentences up, Marty Berry swears 11 up after you buy it? 11 under oath that he hasn't been repaid for the loans; do 12 A. No, sir, I do not. 12 you see that, and you read it into the record, right? 13 Q, I want you to describe for the Court even 13 A. Yes, sir. 14 though -- well, I want you to describe for the Court the 14 Q, Okay. I'm going to hand you PTX10. Lawrence, 15 Citation X transaction that the company owns. 15 do you recognize this as a financial document of Berry 16 A. Citation X was in a sec forfeiture auction in 16 GP, Inc.? 17 Waco, Texas. I kind of watch all the government auction 17 A. It appears to be a Berry GP ledger account. 18 stuff and Dennis had expressed some desire for a 18 MR. BOYD: At this time I would offer 19 Citation X at one time, so I took the liberty of having 19 PTX10, which is Bay 000025. 20 my pilots review the -- my personal pilots review the 20 MR. ALLISON: No objection. 21 dataset, and then I had corporate's pilots go up and do 21 THE COURT: All right. Hearing no 22 a once over on the bird because they were more Cessna 22 objection, it's admitted. 23 oriented. Looked good. Went to the auction. It was 23 Q, (BY MR. BOYD) All right. So this is part of 24 just a perfect storm, just me and the engine guy there, 24 the company's general ledger, and I want to come down, 25 and we captured it for 2,000,000 and some change. 25 and if you look at 7/8/2022, we have M. Berry loan

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proceeds; do you see that? Q. And you authorized your lawyers to dismisses 2 A. Yes, sir. 2 him from this lawsuit this week, right? 3 Q. And M. Berry is Marty Berry? 3 A. Yes, sir. 4 A. I would assume so, yes, sir. 4 Q. Okay. And is that because he had signed an 5 Q. And it has a credit amount of how much? 5 affidavit acknowledging that the property he was holding 6 A. $45,000,000. 6 belonged to corporate? 7 Q. After that, the entry is 4/11/2023 note 7 A. Yes, sir. 8 payment; do you see that? 8 Q. Okay. 9 A. Yes, sir. 9 A. And agreed to return -- to transfer it. 10 Q. And it has the initials this time, MGB. That's 10 Q. All right. And your complaint about all that 11 Marty Berry, right? 11 was what, in terms of him holding title to property that 12 A. Yes, sir. 12 really belongs to the Berry entities? 13 Q. And it reflects a payment in the amount of 13 A. There's no reason for it. 14 $10,000,000, does it not? 14 Q. What you wanted was it to be deeded to the 15 A. Yes, sir, it does. 15 company, the rightful owner who had paid for it? 16 Q. Okay. And you would agree with me, would you 16 A. Yes, as it should be. 17 not, that 4/11/2023 is before December 7th, 2023, 17 Q. Okay. 18 correct? 18 MR. BOYD: At this time, I would offer 19 A. Yes, sir. 19 PTX11. 20 Q. And we know what happened on December 7th, 20 THE COURT: Any objection? 21 2023, Marty Berry swore under oath that he had not 21 MR. ALLISON: No, Your Honor. 22 received loan payment; do you recall that? 22 THE COURT: Hearing no objection, it's 23 A. Yes, sir. 23 admitted. 24 Q. And you do understand, from our conversation, 24 All right. I'm going to take a little 25 that this document was presented to the judge in Harris 25 break and we' 11 continue on.

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County presiding over this case at that time; do you THE BAILIFF: All rise, please. 2 understand that? 2 (Recess.) 3 A. Yes, sir. 3 THE COURT: Okay. Are we ready? Let's do 4 Q. Okay. So Marty Berry lied to that Court? 4 it. Witness back on stand. Mr. Berry is still under 5 A. Yes, sir. 5 oath. You-all can be seated. Are we ready? 6 Q. That's perjury, right? 6 MR. REASONER: Yes, Your Honor, we' re 7 A. Yes, sir, I believe it is. 7 ready. 8 Q. All right. want to turn over to PTX11, which 8 THE COURT: Okay. Let's do it. You may 9 is Bay 001342. Let me know when you've had an 9 proceed. 10 opportunity -- I'm only going to be talking to you about 10 MR. BOYD: Thank you, Your Honor. 11 the first page. The complete exhibit is much longer. 11 DIRECT EXAMINATION (CONTINUED) 12 A. Yes, sir. I'm familiar with it. 12 BY MR. BOYD: 13 Q. All right. And it's a letter from -- I don't 13 Q. Lawrence, when we took our break, we were 14 want to get into the subject, but it's a letter from 14 looking at PTX11 which has been admitted. Could you 15 Robert Rickett to Sean Strawbridge at the Port 15 tell the Court what this letter is about? 16 Authority, right? 16 A. It's a letter to Sean Strawbridge from Robert 17 A. Yes, sir, it is. 17 Rickett. It states that the principals of Berry GP have 18 Q. And who is Robert Rickett? 18 decided to open two strategic properties to the 19 A. Robert Rickett is Marty's son-in-law, and sort 19 marketplace. 20 of the land guy at Berry Contracting now. 20 Q. Okay. Is this the first time that you learned 21 Q. All right. 21 it was an active marketing campaign for the Berry dock? 22 A. The real property guy. Pardon me. 22 A. Yes, sir. 23 Q. Okay. When this lawsuit was filed, he was 23 Q. Okay. And this was presented to you by whom at 24 included as a defendant; is that right? 24 the Port? 25 A. Yes, sir. 25 A. Well, I went down to talk about moving that

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bulkhead line with Kent and there was a couple of other Q. On May 30th, 2023, i t would have been Marty, 2 Port guys there, can't remember whom, and in the 2 yourself and Dennis Berry? 3 process I said I want to know what the status is. They 3 A. Yes, sir. 4 said, why would you care, you're selling it? I go, no, 4 Q. Okay. Were you ever given an opportunity for 5 but the dock's not for sale. They say, yeah, i t is. 5 immense consideration for this letter to go out? 6 said, no I it's not. They start laughing, and say I yeah 1 6 A. No, sir.

7 it is. And they said, we'll give me a second and they 7 Q. Okay. Did you ever decide to open two 8 came back with the letter. 8 strategic properties to the marketplace? 9 Q. And you had never seen this letter? 9 A. Not for sale. 10 A. No, sir, I did not, had not. In thinking that 10 Q. So you had no idea this had been presented to 11 this property was incremental for the business, you 11 the Court? 12 know, you're going to make -- you're going to lock up, 12 A. No, sir, I did not. 13 you know, a lot of infrastructure that you can't use it 13 Q. You did understand that perhaps Marty, and 14 anymore without the dock. 14 perhaps Dennis, might have disagreed with you? 15 Q. And I understand this meeting took place on 15 A. Yes, sir. 16 November 14th of 2023; does that comport your memory? 16 Q. Okay. Would you have liked to have had the 17 A. I believe so. 17 opportunity to have an in-depth discussion before this 18 Q. Okay. The first sentence of Mr. Rickett's 18 was actually proffered to the Port of Corpus Christi? 19 letter to Mr. Strawbridge -- and by the way, was Sean 19 A. Yes, I told them whenever, after I found out 20 Strawbridge at the Port on May 30th of 2023, or had he 20 about it, I told them at the time that they couldn't 21 already severed 21 sell the property because it was their lender's now. 22 A. No, he was st i 11 there then, I believe. 22 Q. Okay. There have been occasions where you have 23 Q. Okay. "After immense consideration, the 23 made specific requests of management to provide you 24 principals at Berry GP have decided to open two 24 certain information, correct? 25 strategic properties to the marketplace." It talks 25 A. Yes, sir.

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about synergy. The two properties are the Berry dock Q. Can you -- can you sit here today and state 2 and then that 16-acre tract close to the Berry dock, 2 with certainty, the dates you made the request, number 3 right? 3 one?

4 A. Yes, sir, that we commonly refer to as the 4 A. Numerous times. 5 Citgo property. 5 Q. But can you state the specific dates? 6 Q. Right. Would you agree, those properties are 6 A. No, sir, I can't state specific dates. 7 synergi st? 7 Q. Can you tell the Court, on a specific date, 8 A. Yes, sir. 8 requested these specific documents? 9 Q. Does that provide Berry entities with strategic 9 A. -- yes, I can, probably i f I had the 10 operations to combine a facility of some sort on the 16 10 document. 11 acres with the Berry dock? 11 Q. Okay. But, I mean, I know you know you made 12 A. Yes, sir. 12 requests, but I'm talking the line item specific 13 Q. And what was the purpose of you wanting to 13 request. Can you sit here and recite that right now? 14 discuss the bulkheads; what does that do to the Berry 14 A. The request? 15 companies? 15 Q. Yeah. 16 A. Decreases the cap X on the ship dock. 16 A. No, I cannot. 17 Q. And why is that? 17 Q. Okay. I'm going to hand you PTX12 and ask you 18 A. Because you don't have to tear out the existing 18 to review it. I'm going to ask you to review the email 19 dock ideally. 19 and attachment for me, please, and take your time. 20 Q. want to go to the first phrase or the first 20 A. Okay, yes, sir. 21 sentence. RAfter immense consideration, the principals 21 Q. Have you had a chance to review it? 22 at Berry GP." First, who are the principals at Berry 22 A. Yes, sir. 23 GP? 23 Q. As i t rel ates to April 18th, does this refresh 24 A. Marty, Dennis and -- the Estate of Dennis Berry 24 your recollection of the specific items you requested of 25 and Lawrence at this time. 25 Mr. Powers and Mr. Klein?

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A. Yes, sir, it does. A. A payment schedule plan, there's like a whole 2 Q. And who is Mr. Klein? 2 bunch of hoops you have to jump through historically to 3 A. The CFO 3 borrow this kind of money. 4 Q. Okay. And 4 Q. All right. 5 A. -- who replaced Diane Decou. 5 A. Or to lend it. 6 Q, I'm sorry? 6 Q, And some seven months, three weeks later is the 7 A. The CFO that replaced Diane Decou. 7 first time you get that note through litigation; is that 8 Q, Okay. And would this agent testify to the 8 accurate? 9 Court accurately about what you were requesting from the 9 A. Yes, sir. 10 company? 10 MR. STEELY: Objection, leading, Your 11 A. Yes, sir, it will. 11 Honor. 12 MR. BOYD: I offer PTX12. 12 THE COURT: Don't lead, sustained. 13 THE COURT: No objection? Objection, no 13 Q, (BY MR. BOYD) What does item 5 relate to? 14 objection? 14 A. All equipment assets that were purchased on the 15 MR. ALLISON: No objection. 15 IBC revolving letter of credit. 16 THE COURT: All right. It's admitted. 16 Q, All right. And what were you wanting that 17 Q. (BY MR. BOYD) All right. So the front page of 17 information for? 18 this is an email from you to Mr. Powers and Mr. Klein 18 A. Trying to find -- I was trying to find out if 19 advising them to see an attached request for 19 we were squandering our revolving that's supposed to be 20 information; is that accurate? 20 for current receivables because the way it functions now 21 A. Yes, sir. 21 it's not like it was way back in the day when I was 22 Q. All right. If you'll look at the attachment, 22 there actively, you know, on the fourth floor. I wanted 23 and that is a memo indeed from you to Mr. Powers and 23 to make sure that they haven't, you know, bought static 24 Mr. Klein? 24 assets, i . e. , equipment, whatever, with that LC that's 25 A. Yes, sir. 25 supposed to be a revolver for invoices. Because the way

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Q, And you cc'd your partners, right? it's done it's not tied directly to the invoices 2 A. Yes, sir. 2 anymore. 3 Q, And Marty and Dennis? 3 Q, Okay. Is this all information that you were 4 A. Yes, sir. 4 requesting as an owner, as a board member, and -- 5 Q, Okay. Can you tell us what type of information 5 A. And executive. 6 you were looking for, first off? 6 Q, Yeah. Did you ever receive this information? 7 A. The key information it requires to properly 7 A. No, sir, no one ever answered. 8 administer my part to -- for the betterment of the 8 Q, I'm going to hand you PTX13. Lawrence, if 9 enterprise. 9 you'll take a minute to review PTX13 which is Bates Bay 10 Q, Okay. The first three items rel ate to what 10 000026. Have you had a chance to -- 11 topic? 11 A. Yes, sir. 12 A. The IBC line. 12 Q. Do you recognize this document? 13 Q, Okay. You wanted to have a better 13 A. Yes, sir. 14 understanding about what transpired between the company 14 Q, Okay. This is a Notice of Special Meeting of 15 and IBC? 15 Directors that was sent out on December 1st for a 16 A. Yes, sir. 16 meeting on December 7th? 17 Q, All right. Because that had concerned you the 17 A. Yes, sir. 18 way that that had gone down; is that right? 18 Q, Okay. This is the type of meeting-type 19 A. Yeah, the line was canceled before I ever knew 19 communications that you received related to the board 20 there was a problem. 20 function; is that accurate? 21 Q, Okay. Item 4, what does that relate to? 21 A. Yes, sir. 22 A. A copy of the loan agreement, the loan between 22 MR. BOYD: Okay. At this time, I offer 23 Marty and Dennis and Berry GP. 23 PTX13. 24 Q, Okay. That would be -- loan agreement, would 24 MR. ALLISON: No objection. 25 include a loan agreement, loan docs, notes? 25 THE COURT: All right, hearing no

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objection, 13's admitted. information? 2 Q. (BY MR. BOYD) Did you indeed attend the meeting 2 A. No. 3 on December 7th? 3 Q. I'm going to show you PTX14. Do you recognize 4 A. Yes, sir, did. 4 this document? 5 Q, Okay. Item No. 1 that was put up for 5 A. Yes, sir. 6 consideration and vote was defense and indemnity for 6 Q, And it appears to be your red line of board 7 Marty Berry, Robert Powers, Robert Rickett, and Mike 7 minutes, as a general description?

8 Hummell in this lawsuit which at that time was pending 8 A. Yes, sir. 9 over in Harris County? 9 MR. BOYD: At this time I offer PTX14. 10 A. Yes, sir. 10 MR. ALLISON: No objection. 11 Q, All right. Did that indeed come up for 11 THE COURT: It's admitted. 12 consideration? 12 Q. (BY MR. BOYD) After receiving the board 13 A. Yes, sir. 13 minutes, which would be the black line here, you took 14 Q, Okay. And how did Marty Berry vote? 14 opportunity to have those minutes red lined, correct? 15 A. For it. 15 A. Yes, sir. 16 Q, How did Dennis Berry vote? 16 Q, What did you do with your red line copy? 17 A. For. 17 A. Sent it to Mike Hummell. 18 Q. And how did you vote? 18 Q. I'm sorry? 19 A. Against. 19 A. Sent it to Mike Hummell, if I recall. 20 Q, Okay. On item No. 3, in December of last year, 20 Q, Okay. Does this accurately reflect your 21 late last year, what is that item relating to? 21 disagreement with the company's version of the minutes 22 A. Clarification and ratification concerning 22 from that meeting? 23 previous board actions on loans from shareholders Dennis 23 A. Yes, sir. 24 and Marty Berry to Berry Contracting LP, and offer to 24 Q, Okay. At the meeting to adopt the minutes, 25 Lawrence Berry to participate in said loans for up to 25 what happened?

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100 percent. A. None of these were incorporated. 2 Q. Okay. Did that come up for consideration by 2 Q. Did you state that you had sent your red lines, 3 the board? 3 your objections to the minutes? 4 A. Yes, it did. 4 A. Yes, I did. 5 Q, Okay. Is that the first time that 5 Q, And this wasn't included in the corporate 6 participation in these related party notes had been 6 record? 7 offered to you? 7 A. No, but they passed it anyway. 8 A. Yes, sir, it was. 8 Q, I'm sorry? 9 Q. How did you vote on this? 9 A. No, but they passed them anyway. 10 A. On this, no. 10 Q, What were you told as to why they weren't put 11 Q, And you're the only partner in the company who 11 into the corporate records? 12 didn't have a related party note related to the 12 A. They couldn't open them. 13 75,000,000; is that right? 13 Q, Couldn't open them. Wasn't this sent in a PDF? 14 A. That is correct. And this is a do-over, you 14 A. Yes, sir. 15 know, it's after the fact, and you know, the methodology 15 Q. So did you have any trouble opening it? 16 was poorly executed, you know, we lost our revolver for 16 A. No, sir. 17 God's sake. 17 MR. BOYD: Out of abundance of caution, i f 18 Q, Why didn't you participate in this offer? 18 I didn't offer it, I offer PTX14. 19 A. Because I still don't have enough information 19 MR. REASONER: It was admitted already. 20 to decide one way or the other. 20 MR. BOYD: I think so. 21 Q, Had it been offered to you contemporaneously 21 MR. REASONER: It was admitted. 22 with the original transaction and loan, would you have 22 MR. STEELY: It's up to the Judge to 23 considered it? 23 decide. 24 A. would have considered it. 24 MR. REASONER: He already did. 25 Q. Would you have done so without full 25 Q. (BY MR. BOYD) I'm going to hand you PX15, and

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it's Bates Bay 000001. Are these the minutes of that learn what it was spent on? 2 very board meeting we were talking about? 2 A. No, I have not. 3 A. Yes, sir. 3 Q. Has Jim Klein ever reported to you on what 4 Q. Okay. And you were in attendance at this 4 items that money went to fund? 5 meeting? 5 A. No, the only I think the only knowledge I 6 A. Yes, sir. 6 have came from Dennis Nixon that when Dennis Nixon asked 7 MR. BOYD: Offer PTX15, Your Honor. 7 him what happened to the 75, he said he spent it. 8 MR. ALLISON: No objection. 8 Q, Is that something that you want your CFO saying 9 THE COURT: All right, it's admitted. 9 to your chairman of the board of the bank giving you a 10 Q, (BY MR. BOYD) All right. If you go down to the 10 revolving line of credit? 11 item that says, "Marty made a motion to accept meeting 11 A. think it was probably the death nail for our 12 minutes for 2023." Do you see that? It's about halfway 12 revolver. 13 down the page. 13 Q, To this day, do you have any idea what this 14 A. Yes, sir. 14 money was used for? 15 Q, Okay. Can you read that into the record, 15 A. I would assume it was spent to pay off vendors 16 please? 16 at B&B, but I don't really understand the methodology to 17 A. RMarty made a motion to accept meeting minutes 17 dump in $75,000,000 for either draw down or a milestone 18 for 2023. Dennis seconded motion and all were in favor 18 schedule. There's just a whole bunch question marks 19 with no one opposed. Lawrence said he sent Hummell a 19 that make that are nonsensical to me. 20 red line of the meetings." 20 Q, My, question though is' to this day, do you 21 Q, All right. It says, "no one opposed" but you 21 have any idea what this money was spent for? 22 made it clear you didn't agree with the minutes? 22 A. No, sir. 23 A. No, I said -- I said -- 23 Q. In your view, why is this transaction not fair 24 MR. STEELY: Objection, leading, Your 24 to the Berry entities? 25 Honor. 25 A. I don't know what the interest rate was, wasn't

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THE COURT: Sustained, don't lead. given the opportunity to participate. I mean, we all 2 Q. (BY MR. BOYD) Did you make it clear? 2 had the same pile of money, equal shares, so don't 3 A. Yeah, I thought. I think I did, that it was a 3 understand why I wasn't included, honestly. 4 railroad, and it wasn't being addressed. 4 Q, What was your view of the corporate plan 5 Q, This PTX16 is Bate Bay 000027. Lawrence, if 5 related to paying these notes back? 6 you could review that for us, please? 6 A. don't know of it. 7 A. Yes, sir. 7 Q. Nobody's ever shared with you a strategy to pay 8 Q, Is this a Berry GP, corporate resolution at a 8 these notes back? 9 special meeting of directors? 9 A. No, sir. 10 A. Yes, sir. 10 Q, And as it appears on the books we've talked 11 Q, Dated December 7th, 2023? 11 about earlier, in December of this year, some 12 A. Yes, sir. 12 $65,000,000 will come due, plus interest, on those 13 MR. BOYD: Plaintiff's offers PTX16. 13 notes; is that your understanding? 14 MR. ALLISON: No objection. 14 A. Yes, sir. 15 THE COURT: All right, it's admitted. 15 Q. I'm going to hand you PTX17. Lawrence, let me 16 Q, (BY MR. BOYD) So this came up for vote in front 16 ask you to review this, and after reviewing it, do you 17 of the three partners, right? 17 appreciate that this is an accounts payable ledger of 18 A. Yes, sir. 18 the Berry companies? 19 Q, And did you have any interest in this 19 A. It would appear to be so, yes, sir. 20 transaction or involvement with this transaction? 20 Q. Okay. In the middle there, I know it's tough 21 A. No, sir. 21 to read 22 Q, Okay. And how did you vote? 22 MR. BOYD: Well, but before that, I would 23 A. Well, I would have voted no. 23 offer PTX17. 24 Q, When the 75,000,000 influx of capital came into 24 THE COURT: Any objection? 25 the corporate coffers, did you have an opportunity to 25 MR. ALLISON: No, Your Honor.

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THE COURT: All right. Then it's admitted. A. Mike Hummell . 2 Q. (BY MR. BOYD) That appears to be an accounts 2 Q. And if you turn 3 payable to what entity? It's at the bottom of those 3 A. Hold on, hold on, I'm sorry, Chuck Vanaman. 4 columns there. 4 Q. That was the first page. Chuck Vanaman used to 5 A. Western Gulf Equipment. 5 be general counsel; is that right? 6 Q. Okay. And what is Western Gulf Equipment? 6 A. Yeah, that is correct. 7 A. It's apparently Marty Berry's basic equipment 7 Q. Okay. And he's since retired, right? 8 company. It's a -- it's an equipment leasing company 8 A. Yes, sir, yes, sir. 9 owned solely by Marty and his wife. 9 Q. And Mr. Hummell is his successor? 10 Q. All right. And if you look at the ledger, how 10 A. Yes, sir, that is correct. 11 many cranes does it appear that Marty and Courtenay 11 Q. All right. So, originally, it was Chuck 12 Berry are building to the Berry entities? 12 Vanaman, and then when he retired, I presume, that's 13 A. Seven, I believe. 13 when Mike Hummell took over. But regardless, Mike 14 Q. How many cranes are you aware of that that 14 Hummell is the registered agent? 15 company owned? 15 A. Yes, sir. 16 A. wasn't aware it was a company. I was aware 16 Q. If you turn over to the next page Texas 17 that Marty we had a one-off that we did on a big 17 Franchise Tax Public Information Report; do you see 18 crane that we were using money that we jointly had from 18 that? 19 our -- our Canadian entities that we own solely, and we 19 A. Yes, sir. 20 had money and we had -- we had a new requirement here 20 Q. Section A? 21 for a crane and Marty said he'd make up the shortfall 21 A. Yes, sir. 22 for his own account, which wouldn't have a problem 22 Q. Where it says name, title and mailing address 23 with, you know, and that was fine, for one, for one. 23 of each officer, director, member, general partner or 24 But the rest of these I had no knowledge of. 24 manager? 25 Q. All right. If you add up the billings, which 25 A. Yes, sir.

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appears to be from 7/1 to 9/1, which is three months, Q. Who is listed? 2 what is the total rental revenue to Western Gulf? 2 A. Marvin Berry. 3 A. A million 347. 3 Q. Marvin is Marty? 4 Q. So it's significant monies? 4 A. Marvin Glen, yeah. 5 A. Yes, sir. 5 Q. What is his title? 6 Q. Who owns the equity in those cranes? 6 A. Manager. 7 A. That would be Marty and Courtenay. 7 Q. Who is the second manager? 8 Q. I'm going to hand you PTX18. Mr. Berry, do you 8 A. Courtenay Berry. 9 recognize this to be documents from the Secretary of 9 Q. And she is Marty's wife? 10 State and Texas Franchise Tax Public Information Report 10 A. Yes, sir. She's the manager as well. 11 related to Western Gulf Equipment? 11 Q. Okay. I'm going to hand you PTX19, Bates Bay 12 A. Yes, sir. 12 002145. Lawrence, if you'd take a minute to review 13 Q. And this is the company you just testified is 13 that. 14 owned by your brother Marty? 14 A. Yes, sir. 15 A. Yes, sir. 15 Q. Does this document purport to be the 16 Q. And your sister-in-law Courtenay? 16 resolutions of a special meeting of shareholders that 17 A. That's what I was told. 17 occurred earlier this week? 18 Q. And if you turn -- 18 A. Yes, sir. 19 A. Yes, sir. 19 Q. And this is one of the corporate documents 20 MR. BOYD: At this time I offer PTX18. 20 maintained by Berry entities? 21 MR. ALLISON: No objection. 21 A. Yes, sir. 22 THE COURT: All right, hearing none, it's 22 MR. BOYD: Move to introduce PTX19. 23 admitted. 23 MR. ALLISON: No objection. 24 Q. (BY MR. BOYD) If you turn over to the second 24 THE COURT: All right, hearing none, it's 25 page, who is the registered agent? 25 admitted.

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Q, (BY MR. BOYD) You attended this meeting; is knowledge yet, honestly. 2 that right? 2 Q. What is it specifically that upsets you about 3 A. Yes, sir, did. 3 that transaction, Gulf Western 4 Q. And this is a resolution related to the topic 4 A. This is how -- 5 we were just talking about, right? 5 Q, -- and the arrangement 6 A. Yes, sir. 6 A. This is how we came to own Berry Contracting. 7 Q. Okay. Can you read into the record what the 7 mean, we started Basic Equipment way back in the day 8 resolution was? 8 as the leasing entity to Berry Contracting. Over term, 9 A. "Be it resolved that the acquisition of cranes 9 our father was kind enough to let us take risk and build 10 or other equipment by Marty Berry, individually or 10 value by leveraging off of his books, and ultimately, 11 through any company he owns or controls, and the 11 when we folded -- that's how we originally came in by 12 subsequent leasing of that equipment to any Berry 12 folding in the equity that we built up in Basic for 13 company for performing the work of that Berry company, 13 this, and this -- this ain't right. That's why it 14 is approved. To that extent such conduct has occurred 14 upsets me. I just can't believe that, like, I had no 15 in the past, it is ratified." 15 knowledge of this. 16 Q, All right. Marty Berry voted on this? 16 And by the way, it can't be fair. I mean, 17 A. Yes, he did. 17 all the evaluation, everybody running, all the sales 18 Q. Okay. And of course, this subject matter 18 force, even the procurement site is all going to be 19 directly relates to a company that he and his wife 19 actuated by Berry GP direct employees, okay, finding 20 owned; do you degree with that? 20 them, scoping them out, hiring consultants, et cetera, 21 A. Yes, solely. 21 but Marty's closing them in his name and then re-renting 22 Q. Okay. How did he vote? 22 to us, no, without giving his partners the opportunity 23 A. Affirmative. 23 to participate. 24 Q, Okay. You're totally disinterested from this 24 Q, Is that historically how the partners have 25 transaction, would you agree, as the director? 25 conducted themselves?

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MR. ALLISON: Objection, leading. A. Absolutely not. 2 A. I'm disinterested? 2 Q. Lawrence, I'm going to hand you PTX23. 3 THE COURT: Sustained. 3 Lawrence, if you'll take an opportunity to review the 4 MR. BOYD: I didn't hear the objection. 4 email except for the date, the attachment to that email? 5 THE COURT: It's a leading question. 5 A. Yes, sir. 6 Q, (BY MR. BOYD) As a director, do you have any 6 Q, Do you recognize this document? 7 ownership interest in Gulf Western? 7 A. Yes, sir. 8 A. No, I do not. 8 Q, All right. And the email is dated what date? 9 Q. Okay. Do you have any financial or other ties 9 A. December 6th. 10 to that company, other than the fact that the company 10 Q, Okay. And who is it sent to? 11 you co-owned with your partners makes payments? 11 A. Harty Berry, Dennis Berry, Rob Powers and Mike 12 A. At the end -- this ain't right. This is just 12 Hummell. 13 wrong. I mean, this is Basic Equipment made over, but 13 Q, All right. And the attachment, without getting 14 just for Marty. 14 into the details of the substance, what would you 15 Q. All right. How did you vote? 15 describe this document to be? 16 A. No. 16 A. A clear description of the situation as I see 17 Q, Bonnie Berry is in the same position as you, I 17 it.

18 suspect; she doesn't have an interest? 18 Q, Okay. In what capacity were you sharing this 19 MR. ALLISON: Objection, leading. 19 with your partners and the general counsel and the CEO? 20 THE COURT: Sustained. 20 A. All three as a owner, shareholder, and 21 Q, (BY MR. BOYD) Does Bonnie Berry have an 21 employee. 22 interest in Gulf Western? 22 Q, And the purpose related to the record was what? 23 A. No, she does not, as far as I know. 23 A. To substan -- to clearly state my position. 24 Q, Okay. And she voted yes? 24 Q, Okay. As a board member? 25 A. Nonsensical , I just don't think she has enough 25 A. Yes, sir.

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MR. BOYD: Plaintiffs offer PTX23. MR. BOYD: Pass the witness. 2 THE COURT: Okay, no objection? 2 THE COURT: Who goes first? 3 (No audible or visible response.) 3 MR. ALLISON: guess I do. 4 THE COURT: Hearing none, it's admitted. 4 THE COURT: Okay. 5 Q, (BY MR. BOYD) Lawrence, I want you to take your 5 CROSS-EXAMINATION 6 time going through this. And I want to turn your 6 BY MR. ALLISON: 7 attention to page 3 and ask you to read that into the 7 Q. Mr. Berry, may I call you Lawrence, so the 8 record? 8 record's clear, since we have several Berrys? 9 A. The whole -- all of page 3? 9 A. Sure. Yes, sir.

10 Q, No, that paragraph that says, "I object." I'm 10 Q, And want to make sure that we get -- our 11 sorry. 11 lunch hour's coming pretty quick, so I want to make sure 12 A. "I object to the improper 'ratification' of 12 before we break for lunch, whenever that happens, that 13 'previous board action, •R in parenthesis -- I'm sorry. 13 we have our arms around, really, the core of your 14 "I object to the improper 'ratification' of 14 complaints; okay? 15 'previous board action' that never took place and I 15 A. Yes, sir. 16 cannot vote in any favor of any such 'ratification' 16 Q, And I understand that -- well, let me back up. 17 unless I determine it's in the best interest of the 17 You heard your lawyer in opening say the only thing that 18 company after full disclosure of all material facts." 18 you're looking for injunctive relief on are two things, 19 Q. Okay. And why is it that you take that 19 right? 20 position that's articulated in that paragraph? Why are 20 A. Yes, sir. 21 you stating this and why are you taking this position? 21 Q, One of those things you're looking for 22 A. Because they you can't just sit around and 22 injunctive relief is that the sale of real property not 23 have a do-over on all on all the minutes, and to say 23 occur without, I forget what he said, 10 or 14 days' 24 this is just the way it is -- we did all these things 24 notice to you. That's one of your requests for 25 back in the day, that now we're going to say they're 25 i nj unct i ve relief, right?

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okay. Come on. A. Yes, sir. 2 Q. At this time that you wrote this, did you have 2 Q. The other request for injunctive relief is that 3 full disclosure of all material facts? 3 you not be removed from the board, right? 4 A. I still don't. 4 A. Yes, sir. 5 Q, Earlier we talked about Tommy Naybar and Tonja 5 Q, And obviously, you have a series of things 6 Fulghum? 6 where you have disagreed on votes with your brothers, 7 A. Yes, sir. 7 and also, more recently, with Bonnie, right? 8 Q, Do you remember that? 8 A. I believe that's in votes where we voted 9 A. Yes, sir. 9 different ways, but yes. 10 Q, The termination? 10 Q, Okay. I mean, sometimes those were two-to-one 11 A. Yes, sir. 11 votes, with you being on the short end of that 12 Q. Were there any other employees that worked in 12 two-to-one vote? 13 Houston who were terminated? 13 A. Yes, sir. 14 A. Yeah, Mike. 14 Q, And the list of things where you think you have 15 Q. And in your view, were those key personnel or 15 these complaints about being on the short end of those 16 not? 16 votes include votes that ratified the very -- the very 17 A. think the key person, T.J. Smith was 17 the loans from Marty Berry and Dennis Berry, right? 18 terminated at the same time to which I didn't 18 A. Okay. Restate the question, please. 19 didn't have notice of, I had to hear about it from 19 Q, Yeah. One of the things that you there was 20 somebody else, and he's probably -- other than people 20 a vote to ratify the loan from Marty Berry to the 21 with the last name Berry -- -the longest-term employee 21 company, right? 22 there and a double vice president, I might add. And 22 A. Yes, sir. 23 somebody that was on dad's never fire list but. 23 Q, And the vote when Dennis was there was two to 24 MR. BOYD: Give me one second, Your Honor. 24 one, with you being on the short end of the vote, right? 25 THE COURT: Okay. 25 A. Yes, sir.

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Q, And the vote when Bonnie was there was two to Pin Oak for years and I'm the one -- and when we didn't 2 one, again, with you being on the short end of the vote, 2 have control of this dock, I'm the one that got it back, 3 right? 3 for God's sake. 4 A. Yes, sir. 4 Q. Okay. Try and listen my question. You said 5 Q, Okay. And that's one of the things where you 5 you didn't have enough information to make a vote, is 6 feel like you've been treated unfairly, I guess, by the 6 that what you said a moment ago? 7 process of how you came about knowing it, et cetera? 7 A. No. I said, I needed more information, but so

8 A. Yes. 8 at the end of the day, it's going to be no. 9 Q. Okay. And another thing that I think that you 9 Q. Okay. So you voted no not because you're 10 were outvoted on it sounds like was the meeting minutes, 10 against it, you voted no because you didn't know enough 11 right? 11 information about it?

12 A. Yes, sir. 12 A. I voted no -- no -- both. 13 Q, And you got outvoted on that. Again, that was 13 Q, You voted yes and no? 14 when Bonnie was there and Marty and you, right? 14 A. No, I voted no for both of those reasons. 15 A. I believe so, yes, sir. 15 Q, For -- for -- okay, and the two reasons are 16 Q, And a two-to-one vote against you? 16 because you didn't have enough information to have a yes 17 A. Yes, sir. 17 vote, right? 18 Q. And you thought that was also unfair? 18 A. Well, there's no compelling reason to market 19 A. Since they weren't corrected, yes. 19 it, so the answer's no. 20 Q, Okay. Well, according to them, they voted to 20 Q, And that's something I think that you actually 21 approve the minutes and you thought the minutes were 21 felt very strongly about, correct? 22 incorrect, right? 22 A. Yes, I'm trying to increase the -- the revenue 23 A. Yes, sir. 23 streams to the company. 24 Q, And that's why you had the split two-to-one 24 Q, But is it fair that you felt very passionately 25 vote? 25 about your no vote on the dock, you're strongly against

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A. Yes, sir. it? 2 Q. Okay. And -- and the other thing that you had 2 A. I think without proper review, yes, I'm 3 voted have been on short end of the two-to-one vote has 3 strongly against it. 4 been on whether or not the company should sell the dock, 4 Q, Okay. And, you know, you're strongly against 5 right? 5 it even though you don't have enough information on it' 6 A. Yes, sir. 6 right? 7 Q. And you think the company should not sell the 7 A. Well, there's no -- I couldn't say, I'm -- I 8 dock and you got outvoted two to one, first by Dennis 8 would not sell the dock because you're stranding a bunch 9 and Marty against your one vote, and then later in a 9 of assets there. So the answer is it would have to be a 10 meeting, Bonnie and Marty voting to continue to market 10 really compelling number to get me to sell the dock. 11 and you were against that, right? 11 Q, Okay. And so - - 12 A. Yes, sir. 12 A. And I think it weakens our position to market a 13 Q, Were you voting against marketing the dock, 13 key operating asset that we're trying to get a 14 that's all that it was about, right? 14 throughput agreement for from one of our clients that's 15 A. don't have enough information to decide one 15 actually paying day in and day out, you know, it's not 16 way or the other currently. 16 the right -- I don't think it's the right thing to do. 17 Q, Okay. You don't have enough information to 17 Q, So if it were a big enough number -- you just 18 know whether you should vote for marketing the dock, 18 said, if it were a large enough amount of money, you 19 right? 19 would consider voting yes for the sale of the dock, 20 A. I think we had enough pending opportunities for 20 right? 21 the dock, it probably wasn't the right time to be 21 A. At some number, of course. 22 marketing, honestly, the highest and best use. So this 22 Q, Okay. And so it's not that you' re against 23 is really about me helping preserve the position of the 23 selling it, it's just you want to make sure you get the 24 enterprise, and nothing else, and there's -- there was 24 right price for it? 25 numerous -- I mean, I've been steady pinging away with 25 A. I would -- no, that's not what I said. There's

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always going to be a price you can sell something, okay, Q. Yeah. And are you equally opposed to those 2 so, and at the end of the day, this is a key operating 2 loans when she made them in support of the company? 3 asset of this company, like it would drastically impact 3 A. No, I wouldn't say I would be because 4 it to sell it. I'm against selling the dock, simple as 4 Q. Would you be in favor of the loans 5 that. 5 A. -- i f I had knowledge of them. 6 Q. Okay. The only way you can know if you're 6 Q. Okay. But you would be in favor of loans if 7 going to get a number that you'd say yes to is to market 7 your mother made them, even though you're against loans 8 the dock; agreed? 8 if Marty makes them? 9 A. No. Unsolicited offers come in all the time. 9 A. I'm against loans I don't have knowledge of. 10 Q. Okay. So, but one of the ways that you can 10 Q. Okay. And that's so you would be -- I mean, 11 find out if you can get a big enough number is to market 11 equally against Dennis and Marty and your mother if they 12 the dock? 12 made loans to the company? 13 A. Yeah, but I'd probably tell my partners i f I 13 A. I'm - - I will be opposed to loans I don't know 14 was going to. 14 about. 15 Q. Oh, you were going to market the dock? 15 Q. Okay. But you obviously know about the one 16 A. Yeah. 16 that Marty made, right? 17 Q. Okay. And you told that -- when you say 17 A. No, I didn't know about it. 18 "partners," did you tell Marty and Dennis both that you 18 Q. Well , no, you've al ready told us and it's in 19 were going to market the dock? 19 your attorney's timeline that you knew about it as of 20 A. No, I didn't say that. I said i f I was going 20 September of 2022, right? 21 to, I would tell my partners. 21 A. Yes, sir. 22 Q. Okay. And have you ever 22 Q. Okay. And so you - - it happened, apparently, 23 A. I haven't marketed the dock. 23 the transfer of funds happened in, I guess July of 2022; 24 Q. Okay. Let me make sure we get our list 24 you've seen that document, right? 25 complete and we'll come back to that in a little bit. 25 A. Yeah, but I was asking for this data all the

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Other than voting no against the Berry way through. 2 loans and the loans from Marty -- by the way, you're 2 Q. And it looks like when you sent an email to Jim 3 al so against, I guess, any - - are you al so against the 3 Klein, he's the CFO, right? 4 loan that Dennis made? Are you opposed to the one that 4 A. Yes, sir. 5 Dennis made for $30,000,000 to the company at the same 5 Q. It looks like when you sent an email to him, he 6 time Marty made his loan? 6 sent you back the documents that showed the loan same 7 A. I'm not suing Dennis. 7 day? 8 Q. I realize that. But are you opposed to it the 8 A. I don't think so. 9 same way you're opposed to Marty? 9 Q. Pardon? 10 A. I'm opposed to things transpiring that I'm not 10 A. I don't think so. 11 given a notice of and so the answer would be yes. 11 Q. And whatever the email indicates it was like -- 12 Q. Okay. So you're equally opposed to what Dennis 12 are you complaining about Jim Klein, too? 13 did as you are to what Marty did? 13 A. Pardon me? 14 A. don't have enough information to say that. 14 Q. Are you complaining about Jim Klein also? 15 Dennis was sick 15 A. I -- I -- you'd have to reference the document. 16 Q. What's 16 mean, you're going pretty quick and you're not 17 A. Dennis was sick and I didn't see him. I don't 17 really -- 18 know what Dennis was told, okay? 18 MR. ALLISON: May I approach, Your Honor? 19 Q. Well, you don't know what Marty was told 19 I'll show it to him. 20 either, right, if you weren't there? 20 THE COURT: Yeah. Show him the document. 21 A. This is true, but Marty's the one orchestrating 21 Let's do this go ahead and break for lunch 22 this, not Dennis. 22 and you can find the document and you can show the 23 Q. Well, and your mother has also made loans as 23 witness after lunch. See you-all at 1:30. 24 well , right? 24 MR. BOYD: Thank you, Your Honor. 25 A. I'm sure. 25 MR. ABSMEIER: Thank you, Your Honor.

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MR. BOYD: Thank you, Your Honor. MR. ALLISON: And I have it in a small 2 (Noon recess.) 2 document. That may be what they' re looking for. 3 THE COURT: All right. Are you ready on 3 MR. BOYD: No, it's the same. It may be 4 cross? 4 shorter because that's what they're using, Your Honor, 5 MR. ALLISON: Yes, sir. 5 but it appears to be the same. 6 THE COURT: All right. Go ahead. 6 THE COURT: Okay. 7 CROSS-EXAMINATION (CONTINUED) 7 MR. ALLISON: Have you got it? 8 BY MR. ALLISON: 8 THE WITNESS: think so. 9 Q. Before the break, Lawrence, I think we were 9 THE COURT: Oh, it's the back side, right? 10 talking about •· my mistake•· this way, it was kind of 10 THE WITNESS: It's configured different but 11 two different things, the dock, and then we were also 11 I think it's the same thing. 12 looking over here for some documents on how you received 12 MR. BOYD: It is configured different, but 13 information. We were looking for a document at the 13 it is the same communication. 14 break. Do you recognize, I'm going to call this 14 MR. ALLISON: I'll use theirs for the 15 Defendant's Exhibit 6? 15 moment. 16 THE COURT: Is that already in evidence? 16 THE COURT: Then use theirs, it's PTX2. 17 MR. ALLISON: No, it is not. 17 Q. (BY MR. ALLISON) On PTX2, before the break, we 18 THE COURT: Okay. 18 were talking about that, and I think that was one of the 19 MR. ALLISON: And I figure since there's no 19 documents you talked about sort of one of the typical 20 jury, doing it this way so everybody can see it. 20 ways you would receive information would be through 21 THE COURT: No, it's fine, I like - - 21 Tonja? 22 don't mind doing it this way. 22 A. Yes, sir. And

23 MR. ALLISON: Okay. 23 Q. And this one's the email from Tonja, and PX-2 24 THE COURT: just -- if something's in 24 the way we see it there, would that be typically how you 25 evidence, maybe we can just not get a -- some -- 25 would receive information about the company when you

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MR. ALLISON: I went and l coked, the one I would make requests? 2 was looking for before the break, I think I determined I 2 A. Yes yes, sir. 3 couldn't find it in evidence, that's why -- 3 Q, And in this particular instance, it looks like 4 THE COURT: If it's not in evidence, go 4 Tonja sent the -- Tonja sent the email on what day? Was 5 right ahead. 5 it September 21, 2022? 6 MR. REASONER: Do you have a Bates number 6 A. If it is -- oh, there we go at the bottom, 7 or an exhibit number? 7 September 21, 2023. 8 THE COURT: So they can get their copy out. 8 Q, At 12:36 P .m.; is that right? 9 MR. ALLISON: 1971 Bates number is the 9 A. Yes, sir. 10 first page of it. 10 Q, And asking for basically current P/L and B/S 11 MR. BOYD: Do you have a copy for us or 11 meaning balance statement, right? 12 not? 12 A. Apparently, yes, sir. 13 MR. ALLISON: I do not. I did mine 13 Q, And got a response from Jim that says, 14 electronically. 14 "Apologize for the delay." Do you see that? 15 MR. REASONER: I thought you-all put it in 15 A. Yes, sir. I'm reading backwards. 16 evidence. That looks like the one introduced. 16 Q, That's okay. And Jim responded, his response, 17 MR. ALLISON: I thought. I couldn't find 17 although he's apologizing for the delay, was same day at 18 it into evidence. 18 2:24 p.m., right? 19 MR. BOYD: It's PTX2. 19 A. Yes, sir. 20 THE COURT: Hold on. Hold on. 20 Q. And I think you told us earlier this September 21 MR. BOYD: But ours doesn't have a Bates. 21 time frame is when, to your recollection, you first 22 Okay. 22 remember learning about the $75,000,000 loaned to the 23 THE COURT: Is it 2? 23 company, 45 of it from Marty, and 30 from Dennis, right? 24 MR. BOYD: I'm looking. 24 A. Yes, sir. 25 THE COURT: 2 is kind of thick but. 25 Q. Okay. Do you recall - - and I' 11 be very

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specific about this. Do you recall having conversations MR. ALLISON: I'll refer to it as PTX1. 2 with Marty Berry where he encouraged you to also pitch 2 THE COURT: Yeah, PTX1. Do you have it, 3 in, in other words, loan money to the company? 3 Mr. Berry? 4 A. No. 4 THE WITNESS: Yes, I've got it in my hand. 5 Q. Did you ever have conversations with Dennis 5 Q. (BY MR. ALLISON) Do you recall this email 6 where he encouraged you to pitch in or loan money to the 6 exchange? 7 company? 7 A. Yes, sir. 8 A. Way back then? 8 Q. And i niti ally, this email exchange you asked, I 9 Q. Yes, sir. 9 guess, for company's receivables and so you got 10 A. No, sir. 10 something back other than the Marty Berry and Dennis 11 Q. In 20 -- let's say just in 2022? 11 Berry loans which would be booked as payables, right? 12 A. No, sir, not that I recall. 12 A. Yes, sir. 13 Q. Okay. And appreciate the caution in your 13 Q. And what you got back then -- okay, but you 14 answer. You're not saying, no, you're saying you just 14 understand from reading the financials, that clearly, 15 don't recall it if you did? 15 the place you noticed in September of 2022, what you 16 A. No, I 'm saying no. 16 noticed were the Marty and Dennis loans listed as notes 17 Q. You're saying no? 17 payable by the company, because it's money owed back to 18 A. Yeah, I'm pretty sure I'm saying no, yes. 18 Lawrence, right? I'm sorry, money owed back to Marty 19 Q. Okay. Okay. And 19 and Dennis, right? 20 MR. ALLISON: need a charger. 20 A. Yes, sir. 21 (Discussion off the record at counsel 21 Q. Okay. But this one you got a receivable, and 22 table.) 22 this one talks about Orea. Can you tell us what Orea 23 THE COURT: If you're in front of the jury 23 is? 24 it never fails it doesn't work. 24 A. Orea -- Orea was an EMP company that owned 25 Q. (BY MR. ALLISON) I want to walk through the 25 conventional space.

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kind of your recollection then. The next document I Q. Okay. And Orea is a company that you took lead 2 want you to look at is going to be Plaintiff's Exhibit 2 on; is that a fair statement? 3 No. 7. Do you recall this series of emails? 3 A. I believe I'm the founder, yes, sir. 4 A. Where are we? 4 Q. Okay. And but it's al so a company that 5 THE COURT: Why don't you let them know 5 millions of dollars were put in by the Berry brother 6 what -- is it already in or? 6 companies, right?

7 MR. REASONER: It should be in front of 7 A. don't think it was put in, it was lent. 8 him, Your Honor, I think Plaintiff's 7, if you can find 8 Q. You don't think it was what? 9 it. 9 A. It wasn't put -- it wasn't contributed, it was 10 MR. BOYD: Plaintiff's 7 is the letter from 10 lent. 11 IBC's lawyer. 11 Q. Okay. And so right now the note -- the note is 12 MR. ALLISON: It's Defendant's Exhibit 7. 12 about a $16,000,000 note that you owed to the company, 13 Sorry, I said Plaintiff's. 13 right? 14 MR. BOYD: Oh, Defendant's 7. Do we have a 14 A. I think we'd have to have some accountants to 15 Bates on that? 15 figure that out. 16 MR. ALLISON: Yeah, it's 1967 Bates page. 16 Q. But it's in the millions? 17 Q. (BY MR. ALLISON) Do you remember this exchange 17 A. Yes, sir, but there's -- there's a bunch of 18 of emails in January, sir? 18 mitigating factors. 19 MR. BOYD: And that's PTX No. 1. 19 Q. But it's in the tens of mi 11 ions; you'd at 20 THE COURT: This is 1? 20 least know that, right, sir? 21 MR. ABSMEIER: Yes, Your Honor. 21 A. Yes, sir, but I'm not sure what the amount is. 22 MR. BOYD: Yes, Your Honor. 22 Q. Okay. So but it's tens of mi 11 ions, however 23 MR. ABSMEIER: Same as PTX. 23 many tens of millions? 24 THE COURT: Well, all right, it's already 24 A. I don't personally don't think it's anything, 25 in evidence, I guess, Mr. Allison, PTX1. 25 but no -- yes, it's posted in the books as some number.

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Q, Okay, And you know that's come up at recent A. If -- if it's clear -- it's going to be what I 2 board meetings, correct? 2 owe and what I'll pay. 3 A. Yes, sir. 3 Q. But if -- let me try it again. If you agree 4 Q. And the Orea discussion also includes 4 with your accountant on the amount owed and that's the 5 discussion of what they call ICI, right? 5 amount they want, the companies want back, would you 6 A. Yes, sir. 6 vote yes that you have to repay it? 7 Q. And there was discussion -- did you guys have a 7 A. Yes, sir, I guess I would. 8 discussion about how much was owed and that you needed 8 Q. Okay. So you think -- and you think you should 9 to pay it? 9 be entitled to vote on that, right? 10 A. Yes, sir, I said once the accountants get done 10 A. Pardon me? 11 figure and out what we owe, I'll pay, 11 Q. You would vote on it like you just said because 12 Q. And so, was that a unanimous vote that you 12 you feel like you have a right to vote; don't you? 13 would pay what you owed? 13 A. It's -- I would have a right to vote if knew 14 A. I don't know that a vote transpired. 14 about it, yes, knew it was disclosed, of course. 15 Q. Okay. But you -- if there's a specific amount 15 Q. Okay. And so, would you be interested in that 16 and you disagree with the amount, will you vote no on 16 loan? 17 it? 17 A. I'm not sure I understand the question. 18 A. Pardon me? 18 Q. Well, in your memo, that memo where you talked 19 Q. If there's an accounting done, and you disagree 19 about -- do you remember this memo, Plaintiff's Exhibit 20 with that accounting, are you going to vote no to that 20 No. 23, the long email from you to Marty and Dennis and 21 repayment? 21 Robert and Michael Hummell; do you remember that? 22 A. couldn't say. 22 A. Yes, sir. 23 Q. Pardon? 23 Q. If you look down on page 3 of it. And you told 24 A. I couldn't say. 24 us earlier -- I'll let you find it. 25 Q. You're going to have to -- you're going wait 25 A. Okay.

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and see what the facts are and then vote? Q. You got it? 2 A. I couldn't -- I couldn't say right now. I'm 2 A. Yes, sir. 3 not following what your query is. 3 Q. I'm on page 3 of that. Do you remember you 4 Q. Well, let me put it this way. You talked 4 told us earlier that you wrote this to Marty and the 5 earlier in your testimony that sometimes you're lacking 5 different people that are listed? 6 information, right? 6 A. Yes, sir. 7 A. Yes, sir. 7 Q. And how long did it take you to write it, would 8 Q. Are you telling us you lack information on your 8 you say? 9 own note to the company? 9 A. I couldn't say, I don't recall , or - - 10 A. No, how it's administered and accounted for at 10 Q. You can't recall? 11 Bay. 11 A. No, I can't say. 12 Q. Okay. Did you keep track of how much you owed, 12 Q. Pardon? 13 how many tens of millions? 13 A. I can't I couldn't say. 14 A. Yes, sir, there's accountants in my office that 14 Q. Okay. But you -- do you see where on page 3 15 keep track of these things. 15 you cited Section 21.418, down at the bottom? 16 Q. Okay. And would you trust your accountant to 16 A. Yes, sir. 17 say how many tens of millions it is that you owe to the 17 Q. And you used the phrase there "by approval of 18 company? 18 the majority of the disinterested directors," and you 19 A. It's not tens, it's not plural. It would be 19 put it in bold. Do you see that? 20 ten mil lion or more, but not tens of millions. 20 A. Yes, sir. 21 Q. Okay. Ten plus million, okay. 21 Q. Do you know where -- you've got that phrase, I 22 A. x. 22 guess, by your interpretation of 21.418? 23 Q. And i f you agree with the accounting done by 23 A. I'm sure counsel assisted me with this. 24 your accountant and they ask for that amount, would you 24 Q. Okay. A minute ago you said you wrote it. Did 25 vote yes on it? 25 you write all this?

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A. Did I draft every item here? Well, it's under Q, Okay. And that's a note or a transaction 2 my signature, so I guess, ultimately, yes. 2 between you and the company, right? 3 Q. Okay. So you wrote it. And when you talk 3 A. Yes, sir, it's a well, yes, sir. 4 about a disinterested director, do you see that at the 4 Q. Okay. And so do you think, though, that the 5 bottom of page 3? 5 rule about interested and disinterested voting part -- 6 A. Yes, sir. 6 let me ask you this. If you were -- let's change it a 7 Q. Would you -- because what you're saying in this 7 little bit. Let's say that - - well , let me back up. Do 8 memo is that you think only disinterested directors 8 you think you are an interested person in that note that 9 should be all owed to vote, right? 9 has your name on it, that promissory note? 10 A. That is correct. 10 A. I would say I think it would be by definition. 11 Q, And so with the Orea note for 10,000,000 plus 11 Q, Okay. Now, Orea though, did all kinds of other 12 dollars, you said you would vote, you would vote in 12 business not related to that note, correct? 13 favor of paying it if you owed it, right? 13 A. Yes, sir. 14 A. Well, who was I voting for? Myself or the 14 Q, I think they developed mineral interest, 15 company or whom? I'm confused about your query. 15 correct? 16 Q, As the director, that's the only way you get to 16 A. Yes, sir. 17 vote? 17 Q. And did investments; is that correct? 18 A. I would pay, but these are apple and oranges is 18 A. Yes, sir, I guess. 19 what you're talking about. 19 Q. Okay. And each one of those required company 20 Q, Okay. Well, did you -- for example, i f you 20 approval, right? 21 didn't owe the money and they said you owed it, would 21 A. Okay, I'm not following you. Which company? 22 you vote against them making you repay it? 22 Q. Well, whichever company. Orea, we're talking 23 A. Say that again. 23 about Orea, using it as an example? 24 Q, Would you vote against them making you repay it 24 A. Okay. 25 if they brought it up for a vote? 25 Q, Okay. And were you -- do you think it was fair

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A. Would they -- and right for you to be able to vote on other business 2 Q. Would you say, no, I don't vote -- I don't owe 2 of Orea like investments and direct where those 3 it, I vote no? 3 investments went? 4 A. The question -- okay, I'm just having a hard 4 A. As the CEO? Once again, I don't understand. 5 time following you. 5 Q, Well, you were an owner, weren't you, one of 6 Q, I apologize. Let's say they said you owed 6 the owners?

7 $30,000,000 when they do their accounting? 7 A. I am the owner. 8 A. Okay. 8 Q, Okay. Originally, though, for years, it was 9 Q. And they make a motion for you to pay 9 three owners, right, you and your brothers? 10 $30,000,000. 10 A. No, sir.

11 A. Okay. 11 Q, No? 12 Q. Are you going to vote yes or no? 12 A. I don't think SO, 13 A. If I owed 30,000,000, yes. 13 Q, So you were taking Berry company money and 14 Q, What if your accounting says you only owe 14 putting into Orea, but they weren't getting the 15 $15,000,000? 15 ownership; is that your position? 16 A. Then would probably vote no. 16 A. They were a party to every bit of it, and it 17 Q, Okay. But you have a right to vote? 17 was for a fee, and if you go back and look through the 18 A. It would -- well, wouldn't -- this is 18 documents, you'll see it's all addressed. It was 19 disinterested, interested. This is not -- this is apple 19 completely disclosed to everybody. 20 and oranges compared to what the case we're talking 20 Q. Okay. Well, let's not get sidetracked here. 21 about. 21 So were you the sole decision maker then, or were there 22 Q, Okay. Well, in the Orea, the example that 22 other partners that you had as you developed those 23 we're using here, there's a written note, a promissory 23 assets? 24 note, right? 24 A. Well , it was a team effort, but - - yeah, I 25 A. Yes, sir. 25 guess. Yes, I made the decisions.

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Q, Okay. And but some of them, I think you joint MR. BOYD: And that document is not a 2 ventured later on with Conoco and other people, didn't 2 complete copy of the section, but I -- 3 you? 3 THE COURT: I'll take judicial notice of 4 A. Well, we were going to get in petroleum haul, 4 the statute. 5 there's working interest, there's not interest 5 MR. BOYD: Understood. 6 participant, there's all kinds of stuff mixed in it. 6 Q, (BY MR. ALLISON) Tell me when you're through 7 Q. Right. Some of them had multiple people that 7 reviewing it, sir. 8 would vote on investments, right? 8 A. Okay. 9 A. On a well by well basis? 9 Q. You see that if you look at Section A that this 10 Q, Sure. 10 section applies to a -- first of all, it's got to be a 11 A. Sure. 11 contract or transaction; do you see that? 12 Q. Okay. And even though you were interested in 12 A. Yes, sir. 13 this Orea loan, because you've told us you were 13 Q, Between the corporation, and let's say that's 14 interested in the Orea loan with the company, do you 14 Berry GP, because that's what we're talking about here 15 think it was okay for you to vote on other subject 15 today; fair enough? 16 matters? 16 A. Yes, sir. 17 A. I'd have to see specifically what you mean, 17 Q. So this section or statute applies to a 18 because I'm not following. 18 contract or transaction between a corporation and one or 19 Q. Okay. But, I mean, you can be interested in 19 more directors; do you see that? 20 the loan and be uninterested in other votes; is that 20 A. Yes, sir. 21 fair to say? 21 Q, Okay. So it's a contract or transaction that 22 A. You'd have to give me a better scenario than 22 is not with the director, then this statute does not 23 that, I'm not following. 23 apply, correct? 24 Q, Okay. Well, let's go ahead and go to -- and 24 MR. BOYD: Objection, calls for a legal 25 I' 11 go ahead and pull it out. 25 conclusion.

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MR. ALLISON: It's 26, Plaintiff's Exhibit MR. ALLISON: Your Honor, it's -- he wrote 2 26, Your Honor, and I don't believe it's in evidence. 2 a -- he wrote a four-page memo on it. 3 Actually, I have a hard copy too, if it helps. 3 THE COURT: He can -- I'll allow it. 4 MR. BALDREE: Plaintiff's Exhibit 26? 4 Q, (BY MR. ALLISON) If it's not -- 5 MR. ALLISON: I'm sorry, Defendant's 5 THE COURT: With the understanding -- are 6 Exhibit 26. 6 you an attorney? 7 MR. BALDREE: Your screen is not working, 7 THE WITNESS: No, sir. 8 Doug. 8 THE COURT: Okay. With the understanding 9 MR. ALLISON: Like I said, I've got a hard 9 he's a lay witness. 10 copy, too. We'll do it that way. 10 MR. ALLISON: I understand, Your Honor. 11 I've got all kinds of technical problems 11 With the same understanding that he wrote the four- or 12 today. apologize, Your Honor. May I approach? 12 five-page memo. 13 THE COURT: Yes. 13 MR. BOYD: Objection, he said he wrote -- 14 MR. BOYD: Do you have one for us? 14 THE COURT: Si debar, sustained. 15 MR. ALLISON: It's a statute. 15 Q. (BY MR. ALLISON) Do you see where it says that: 16 THE COURT: think John got it up. John 16 This section applies to a contract or a transaction 17 got it to work. 17 between a corporation and one or more officers or 18 MR. ALLISON: Okay. I'll give him a 18 directors, right? 19 courtesy copy then. 19 A. Yes, sir. 20 THE COURT: Okay. 20 Q. And so that is -- this is the statute you've 21 MR. ALLISON: Your Honor, we'd offer 21 quoted in this case as sort of defining what is or what 22 Defendant's Exhibit 26. 22 is not a disinterested di rector, right? 23 MR. BOYD: Well , I guess - - 23 A. Yes. 24 THE COURT: I mean, if it's a statute, I' 11 24 Q, And it only applies to the contract or 25 just take judicial notice of it. 25 transaction between the corporation and the director,

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right? MR. BOYD: Objection, Your Honor. 2 A. I assume so. 2 A. transaction on real - - 3 Q. You say you think so? 3 MR. BOYD: Hang on, Mr. Berry. 4 A. I assume so, I don't know. 4 You sustained the objection. 5 Q. Okay. You see where it says that in the paper 5 THE COURT: did. 6 in front of you, right? 6 MR. BOYD: He's now answering the question 7 A. Well, is there a question? 7 that came on the heels of your sustaining. 8 Q. It says that: This section only applies to the 8 THE COURT: Well then ask another question. 9 contract or transaction between a corporation and one or 9 MR. ALLISON: And I just -- he had a reason 10 more directors that enter into a contract or 10 was -- 11 transaction, right? 11 Q. (BY MR. ALLISON) The next question, it's the 12 A. Yeah. Where are we on this? 12 next question. Give us your reasoning. Give us your 13 Q. A1? 13 reasoning about how this applies? 14 A. A1. Okay. Yes, sir. 14 MR. BOYD: Same objection. 15 Q. Do you see that? 15 THE COURT: I think -- I think it's a legal 16 A. Yes, sir. 16 conclusion. It calls for a conclusion and he's not an 17 Q. Okay. Let me make sure we're good. This 17 expert witness. 18 section relating to disinterested or interested 18 Q. (BY MR. ALLISON) On the Berry dock, right now 19 directors only applies to a contract or a transaction 19 it accounts for -- I know you keep referring it to as a 20 with one or more directors or officers, right? 20 core asset, correct? 21 A. Yes, sir. 21 A. Yes, sir. 22 Q. Okay. And obviously, if there was a sale of 22 Q. And revenue per year is about 2.2, 2.3 million 23 real property, that would be a contract between Berry GP 23 per year, correct? 24 and some third party, whether it's the Port, or Buckeye, 24 A. Might be right now. 25 or somebody else, whoever might buy it, right? 25 Q. Okay. And the overall revenue of the company

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MR. BOYD: Objection, vague. right now is more in the neighborhood of 7 to 2 THE COURT: That's overruled. 2 800,000,000 a year, right? 3 A. Say that. Okay. Is there a question in there? 3 A. It's yes, it's a lot. 4 Q. (BY MR. ALLISON) Right. This would -- if there 4 Q. Pardon? 5 was a contract for the sale of a dock, that would be a 5 A. Yes, sir, it's a lot. 6 contract between Berry GP and the Port, or Buckeye, or 6 Q. Right. And so even though you refer to it as a 7 some third party, right? 7 core asset, the math that we just said, meaning that 8 A. Yes, sir. 8 it's, what, two out of 100 would be 2 percent so it's an 9 Q. Okay. And so since this section only applies 9 eighth of that which is less than a half percent of your 10 to contracts between or transactions between the 10 revenue, the dock? 11 corporation and the directors or officers, this section 11 A. But you're not -- well, you're -- it's an 12 wouldn't apply to the sale of the very dock, right? 12 incomplete question. You're not 13 MR. BOYD: Objection -- 13 Q. Let me try again. Right now -- and it's been 14 A. don't agree. 14 this way I think for years -- the dock is less than a 15 MR. BOYD: legal conclusion, vague. 15 half percent of the company revenue, right? 16 THE COURT: mean, it does call for a 16 A. I think we'd have to go historically to get to 17 conclusion from a lay witness. I mean, you can 17 where you're going. 18 certainly make the pitch to me later on. 18 Q. Okay. But you recognize that $2,000,000 if 19 MR. ALLISON: I am going to follow up and 19 that's all it's revenui ng, and you' re making 800 in 20 you give me guidance here. 20 revenue a year, that's less than a half percent on the 21 THE COURT: Okay. 21 dock, for the dock? 22 Q. (BY MR. ALLISON) You say you disagree. What's 22 A. This is true, but I also would say that you've 23 the basis of your disagreement? 23 got a couple of a hundred -- a vast amount of -- at some 24 A. Well, because -- their interested directors 24 cost at 1414 Corn Products Road that needs that heavy -- 25 closed the loan -- 25 that needs that facility to be valuable at all,

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otherwise, you can just cut it all and sell it for scrap have a lot of yard there and we all know the heavy lift 2 as the way things currently set. 2 dock in the ports is not accessible so. 3 Q. Okay. Part of - - 3 Q. Do you recall, though, the conversation with 4 A. So it's inner connected to the main Berry yard, 4 Marty where he said, if we sell it, we can reserve the 5 so to say it has no value because of what's being 5 right to a certain amount of use over that dock to meet 6 transpired or transacted right now, I would say we can't 6 our business needs? 7 afford to sell it because there's a lot more super 7 A. No, don't recall that conversation, actually. 8 module projects coming down with Land G attached to the 8 Q. Okay. Would that be a smart thing to do? 9 ones that are already permitted, so we need to keep our 9 A. Absolutely, it would be a necessary, but like 10 options open. 10 said, if you sold it you ain't going to be able to use 11 Q. Okay. And so one of the discussions when 11 it. 12 you've been debating in the back room, so to speak, or 12 Q. Unless you reserve some right on it? 13 at the directors meetings whether or not you're going to 13 A. Yes, sir, but then how restrictive can you be, 14 sell the dock, Marty has told you, has he not, well, if 14 you've got to have to taker pays there, okay, so you got 15 we sell it, we can reserve the right to remove super 15 LDs, and so how often are you going to get to use it. 16 modules - using your words super modules across the 16 Q. Because most of the docks in the Port of Corpus 17 dock for a fixed fee, right? 17 Christi are moving liquids, right? 18 A. wouldn't know any of that, would I? 18 A. Yes, sir, this port is all, pretty much all 19 Q. Well, but that's -- that would be part of the 19 liquids. 20 sales condition that Marty's proposed, right? 20 Q. Yeah, and so that's -- 21 A. I don't know. 21 A. With a few exceptions Gulf or Kiewit. 22 Q. You didn't hear him say those things? 22 Q. Yeah. Liquids are probably the highest and 23 A. No, I don't know what happens. But tell you 23 best use for docks in our port? 24 one thing, you're going to have a hard time. You need 24 A. Depends on how you look at it. It depends if 25 that dock. 25 you look at it from an employment standpoint, and from

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Q. Well, how often have you used it in the last the enterprise, you know, we're in the service business 2 year? 2 so I would say, no, liquids probably isn't the highest 3 A. Things get used every day. 3 and best use in regards to our company because we ain't 4 Q. No, for the -- I don't mean -- I don't mean Pin 4 in the liquids business unless it's totaling. 5 Oak or the small barge companies. How often have you -- 5 Q. Well, let me put it this way. When companies 6 when's the last time you did a super module 6 that are doing liquids across the crude oil , across 7 A. flew in this morning and there's a vessel 7 their docks, they're making hundreds of millions of 8 sitting on it for shipping that wasn't there yesterday. 8 dollars instead of $2,000,000 off their dock, right? 9 Q. No, no, no. How often 9 A. Yes, but our dock's moving hydrocarbon liquids 10 A. It wasn't on there the last time I was here. 10 across it, that's where the revenue's coming from now is 11 Q. How often has Berry when's the last time 11 liquids. 12 Berry did a super module? 12 Q. Okay. And so you recognize that your super 13 A. There, I don't know that. I think it was 13 modules are not the highest and best use for a dock, 14 quarters for Leviathan. 14 right? 15 Q. July? 15 A. From the corporate standpoint, I'd have to 16 A. I said the quarters for Leviathan. I don't 16 disagree. You got a couple of hundreds million dollars 17 remember the day it shipped. 17 of some cost there you' re going to abandon? No, I don't 18 Q. Okay. 18 think so. 19 A. It's been a while. 19 Q. From a money standpoint you can make more money 20 Q. Okay. More than once in the last year? 20 moving liquids across them than you can super modules? 21 A. I couldn't say. 21 A. Yeah, but you'd have to have contracts and a 22 Q. Okay. So it's rarely used by Berry for the 22 lot of other things. It's a big question mark, so I 23 super modules? 23 couldn't say that. 24 A. It's got a vessel sitting on it right now and 24 Q. Anyway, so that's -- what I've just kind of 25 you couldn't go out with it. Once again, you sure do 25 laid out with you, that's really been the disagreement

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between you on the one hand and Dennis and -- and Marty are different. They have this loan and that's the 2 on the other hand about sell the dock or don't sell the 2 driver. 3 dock, right? 3 Q. Well, actually, the loan, since you bring it 4 A. No, not really, I think the disagreement was 4 up, the loan is actually collateralized by the dock, 5 that I didn't know about it. 5 right? 6 Q. Okay. So now that you know about it, you' re 6 A. It is now. 7 okay with selling the dock, if the price is right -- 7 Q. The Frost Bank loan, right? 8 A. I didn't say that. 8 A. Yes, sir. 9 Q. -- like you told us? 9 Q. And the Frost Bank loan is al so -- the IBC Bank 10 A. I didn't say that. said at some point 10 was also collateralized by the dock, right? 11 there's a number there that we sell, but we have -- we 11 A. Yes, sir. 12 have -- we have pending stuff with Pin Oak, there's 12 Q. And so, any money from selling the dock would 13 other options for the dock. 13 first go, at Frost's option, to repay the Frost Bank 14 Q. And -- and you know for -- for how many years 14 loan, right? 15 have you and Marty and Dennis, until recently, of 15 A. It may or may not, it depends on if you get a 16 course, how many years have you-all been making those 16 waiver from them or not. 17 decisions together? 17 Q. Okay. But they have the first right, it's up 18 A. At least since '98. 18 to them? 19 Q. Yeah. And have you know, even though I 19 A. Yes, sir. 20 understand sometimes one or the other of you would 20 Q. Okay. And so that's how loan proceeds would go 21 disagree, except most of those were unanimous decisions, 21 first, or excuse me, that's how any dock sales proceeds 22 you told us, right? 22 would go first would be to pay off debt normally, right? 23 A. Yes, sir, and we don't sell much. 23 A. Not necessarily. 24 Q. We don't what? 24 Q. Okay. Who would you pay first? 25 A. We don't sell much. 25 A. If I was Marty Berry over there, I'd pay myself

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Q. Okay. No, but I mean, the business decisions, at the end of the day, but in all truthfulness, it 2 you do a lot of business decisions? 2 doesn't really make any difference because the -- like 3 A. Yes, sir. 3 said, there's conflict -- they made these loans and the 4 Q. And so, what, are you all in agreement over the 4 only reason we're talking about -- we never sell 5 last 20 plus years 80 percent of the time, 90 percent 5 anything, okay, that's the bottom line. And for -- we 6 making business decisions? 6 wake up, and all of a sudden, we are selling things. 7 A. Probably 90 percent of the time, actually. 7 And operational assets when we've got all these, a 8 Q. 90? 8 multitude of properties that are superfluous that aren't 9 A. Yes, sir. 9 core assets, just don't understand. 10 Q. Okay. And so what we' re talking about on 10 Q. Okay. Didn't you say earlier that you just 11 whether or not you would sell the dock or not sell the 11 voted to sell some property like a week or two ago? 12 dock is obviously just a matter of business judgment and 12 A. No, like this week. 13 you disagree with them? 13 Q. Pardon? 14 A. I wouldn't sell operational assets, period. If 14 A. This week. 15 was going to sell assets that belonged to the company 15 Q. Yeah. So you do sell things? 16 to pay back the loans, I would sell superfluous assets 16 A. Very seldom. 17 all day long. 17 Q. But you just said you don't sell things? 18 Q. Okay. Is that a yes to my question? You have 18 A. Very seldom do we sell things. think the 19 a disagreement with them about whether or not you should 19 history will prove that very seldom do the Berrys sell 20 sell the dock for business reasons? 20 anything. 21 A. For business reasons. Okay. You're going to 21 Q. And the Three Rivers yard, didn't you take lead 22 have to -- say it again. 22 on selling that real estate? 23 Q. Your business judgment is different than 23 A. No, if I'd have took lead, I'd had it papered 24 theirs, that's why it's a two-to-one vote? 24 correctly. I did not. 25 A. No, it's not at all. I think their conditions 25 Q. Okay. But you're the one who voted for selling

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it, didn't you? the company and you don't pay it back, is that 2 A. Because it was past the tipping point. 2 self-dealing? 3 Q. So, is that a yes to my question, you voted yes 3 A. I would have to see the scenario. 4 to sell that real estate? 4 Q. Well, like the Orea scenario where you took 5 A. Yes, sir. 5 tens of millions -- 6 Q, Okay. So you just said on the note, i f it were 6 A. Once again, I'm going to restate, on the work,

7 your note, you'd pay yourself back? 7 if I owe it, I'm going to pay it. There's it's as 8 A. Well, I was being facetious, okay, honestly, 8 simple as that. 9 okay? The money's going to come in, it's going to go 9 Q. Yeah, but you haven't, have you? 10 where it's supposed to go. 10 A. Because it's been a performing note. 11 Q, And that's the way you would expect it to be 11 Q, It's in default now, isn't it? 12 handled here, right? 12 A. May very well be. This is a legal question, in 13 A. Pardon me? 13 all honesty. 14 Q, That you would expect it to be handled exactly 14 Q, Okay. So, but would that be self-dealing if 15 that way if the dock sold? 15 you took just hypothetically, i f you took tens of 16 A. would expect to be given knowledge that we 16 millions of dollars for yourself and didn't pay it back 17 were going to start selling things would be the first 17 from the company, would that be self-dealing? 18 thing. 18 A. It may be. 19 Q. Okay. And then when it sells, you would expect 19 Q. Okay. What i f you gave tens of millions 20 the money to be done or utilized in a way that was in 20 dollars to support your company? That would be 21 the best interest of the business? 21 selfless, wouldn't it? 22 A. Of the enterprise, yes, sir. 22 A. No, sir. I would give my partner the 23 Q. Okay. And you would expect that that would 23 opportunity to participate. 24 happen, right? 24 Q, Okay. And are you telling -- and if they give 25 A. If we -- if we all agree to do something, yes. 25 you the opportunity to participate, then do you agree

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Q, Or if it's even a two-to-one vote, sometimes that it is not self-dealing? 2 it's a two-to-one vote and you've got to follow the 2 A. If there's been no change in condition and 3 two-to-one vote; you've testified to that already? 3 everything's ideally the same point, then you might be 4 A. Yes, sir. 4 -- you'd be right if I would have said no back in the 5 Q, Okay. Because you -- I want to point you 5 day. But I never was given that opportunity, Doug. 6 understand, usually, you used the term I think in your 6 Q, Okay. But let's just try to stay focused here. 7 memo, "self-dealing. R Do you know what I'm referring 7 If you're given the same opportunity to participate as 8 to? 8 Marty has and Dennis has, then we agree, that is not 9 A. Yes, sir. 9 self-dealing, right? 10 Q, And that's usually used when somebody is taking 10 A. If we were all three at the same time at the 11 money from the corporation, right, taking something of 11 same conditions then, if it's all no, how would it be 12 benefit? Dealing for yourself as opposed to dealing for 12 self-dealing? We'd all be in. 13 the corporation? 13 Q, Okay. And you're telling us neither Dennis nor 14 A. For the enterprise, yes. 14 Marty ever offered you that opportunity, right? 15 Q. Okay. And in this instance, I mean, a classic 15 A. Absolutely. 16 self-dealing is if I give my -- if I just take, you 16 Q, Okay. And so there's no recording of a board 17 know, tens of millions of dollars from the company and 17 meeting where they made you that offer recently? 18 don't pay it back, that would be self-dealing, right? 18 A. Okay. Once again, I qualified and said it had 19 A. If you buy a crane and lease it to the company, 19 to be ideal to the same situation. No, the change of 20 that would be self-dealing too. 20 conditions, everything's different. Okay, I can't get 21 Q, Well, use my example. If you take tens of 21 any information and you're saying it's the same. No, 22 millions of dollars from the company and you don't pay 22 it's not the same. 23 it back, is that self-dealing? 23 Q, Okay. Well , they - - for example, the note is 24 A. Pardon me? 24 at prime plus a quarter percent; you know that, right? 25 Q. If you take tens of millions of dollars from 25 A. I know I've seen documents here that say that,

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but where were those documents when I asked for them? documents? Where's the repayment schedule? never 2 They've been backdated for God's sake. I mean, where 2 heard of such a thing of this scope and scale. Okay, 3 were they? I don't understand. 3 what if you don't have a plan? Hell, I don't know that. 4 Q. know you don't understand, so listen to my 4 They must be pretty easy. 5 question. Five and a quarter percent, do you think 5 Q. But is a .25 percent above prime, do you think 6 that's a fair interest rate? 6 that's a fair interest rate? 7 A. I don't know, I'd have to see what T bills are 7 A. I'd have to see -- 8 at. 8 MR. BOYD: Objection, asked and answered. 9 Q. Okay. You've had -- I think you've been asked 9 A. I'd have to see what the -- 10 several times whether or not you think•· because if 10 THE COURT: Sustained. 11 they voted in the meetings, whether or not it was a fair 11 A. T bills are at today. 12 transaction; do you remember those votes, you voted 12 THE COURT: Asked and answered. 13 against it? 13 Q. (BY MR. ALLISON) And you know that the loan now 14 A. Yes, sir. 14 is subrogated to Frost, right? 15 Q. And that's been going on -- the first one of 15 A. Yes, sir. 16 those meetings, they've had repetitive meetings since 16 Q. Okay. And that means that Frost gets paid 17 December, early December, right? 17 before Dennis or Marty ever see a penny, right? 18 A. Yes, sir. 18 A. Well, yes, sir. 19 Q. Okay. And every time they have a meeting, you 19 Q. And so do you think that is a great position to 20 say you need more information, right? 20 be in for Dennis and Marty? 21 A. Yes, sir. 21 A. They're the ones that threw their money in, not 22 Q. To decide if it's fair or not, right? 22 me. And they agreed to it, so that would be a question 23 A. Okay. I'm listening. 23 you'll have to ask Marty when he's sitting up here. 24 Q. In other words, you keep saying, need more 24 Q. And when, in fact, you would refuse to do it if 25 information to decide if it's fair, right? 25 you were subrogated, right?

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A. I need more information, period. A. Pardon me? 2 Q. Okay. And you got, obviously, lawyers and I 2 Q. You would refuse to make the loan to the 3 think you mentioned your accountant a while ago. With 3 company if you were subrogated, right? 4 resources like your lawyers and accountants, can you -- 4 A. couldn't say that. 5 wouldn't they be able to help you know what was a fair 5 Q. Well, you know it's a disadvantageous position 6 loan, a fair advance? 6 to be subrogated, right? 7 A. It would be fair if I was given knowledge of it 7 A. Ooug, I understand that. 8 and I didn't have to sue to find out about it and get 8 Q. Okay. And you know that it's also a loan that 9 the documents. 9 was made without security, right? 10 Q. Okay. So your complaint really, and we know 10 A. Yes, sir. 11 that you found out about it in September instead of July 11 Q. Now, when the banks, when they get -- when they 12 of 2022. Your complaint is that two-month delay? At 12 give a loan, like Frost, or IBC, I think it's true of 13 least the documents show us that much, right? 13 both of them, they actually require a lot of pledge of 14 A. Okay. Once again, you' re losing me. So my 14 assets or collateral in order to secure the loan, right? 15 complaint is what? 15 A. Yes, sir. 16 Q. Your complaint is because we've already seen 16 Q. And you know that, for example, Frost then and 17 the timeline, your lawyer put it up on the board •· that 17 IBC, because they're requiring security for the loan, 18 the loans were made in July and that you found out about 18 that means, by comparison, the Marty loan and the Dennis 19 it in September of 2022, same year? 19 loan are disadvantaged, right? 20 A. No, there's a line item on -- on a -- on a 20 A. I'd say they are what they are. 21 deal. Where's the loan agreements? Where's the 21 Q. Well, you'd rather be -- as a businesses man, 22 worksheets? Where's the repayment schedule? No, 22 you'd rather have security for your loan than have no 23 didn't find out about it. So they got -- there's an 23 security like Marty and Dennis, right? 24 entry in here that just says related party loans. So, 24 A. Yes. 25 once again, where's all the worksheets? Where's the 25 Q. Okay. So the fact that they're at five and a

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quarter percent, and they're subrogated, and they're not went off, okay? And when he asked for the -- 2 -- there's no security supporting or collateral 2 MR. STEELY: I'll object to hearsay 3 supporting the loans that's -- that's a bad loan if 3 THE COURT: Sustained. 4 you're the lender, right? 4 MR. STEELY: -- to what Mr. Klein is saying 5 A. Yeah. It wasn't like that when they made the 5 and what -- 6 loan, though, was it? 6 THE COURT: Sustained as to hearsay. 7 Q. Well, you were saying there used to a pledge 7 Q. (BY MR. ALLISON) Okay. I'm going to use two 8 agreement or a collateral agreement? 8 things in your answer. You said it was so great and 9 A. No, I'm saying there wasn't. 9 then you also talked about your belief that it was the 10 Q, Right. And not having -- let me put it this 10 cause of IBC breakup, right? 11 way. Banks -- banks we know insist on having 11 A. Once again, from the time that Jim Klein told 12 collateral? 12 Dennis Nixon that the money was spent -- 13 THE COURT: I think I get your point on 13 MR. STEELY: Objection, hearsay. 14 this thing. 14 A. Dennis is a damn good banker -- 15 MR. ALLISON: Pardon? 15 THE COURT: Sustained as to hearsay. 16 THE COURT: think I get your point on 16 A. Dennis is a damn good 17 this thing. 17 THE COURT: Wait, wait, wait. Ask another 18 MR. ALLISON: Okay. 18 question. 19 Q. (BY MR. ALLISON) By comparison, Frost also 19 MR. ALLISON: I don't think it's been put 20 required, you know this, $20,000,000 in a cash CD as 20 into evidence, Your Honor. This is Defendant's Exhibit 21 part of the collateral for the Frost line of credit, 21 4, it's the promissory note. We'd offer that into 22 right? 22 evidence. We've talked about it. 23 A. Incrementally I yes, sir, I believe so. 23 MR. BOYD: I'm sorry, which one? 24 Q, Okay. And obviously, Marty and Dennis did not 24 MR. ALLISON: Did you-all put it in? 25 get the benefit of cash in a CD from the company in 25 THE COURT: It's the note. think it's

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order to make the loan, right? part of -- isn't it part of an exhibit? 2 A. I couldn't say. 2 MR. BOYD: Dennis Berry's note is not into 3 Q, Well, have you ever seen any evidence that 3 evidence.

4 somebody put a cash CD in securing -- 4 THE COURT: Okay, all right. 5 A. I don't even -- Doug, I don't even know where 5 MR. BOYD: And we have no objection. 6 the money was spent so I couldn't say. 6 THE COURT: All right. It's admitted. 7 Q. I'm not trying to argue with you. You know 7 MR. ALLISON: And also we have -- 8 that you don't have any evidence that there's any CD 8 THE COURT: But I need a hard copy. 9 backing Marty's loan or Denni s's loan, correct? 9 MR. ALLISON: Okay. And we coordinated 10 A. No, sir. 10 with the court reporter ahead of time and I think we 11 Q, I think we had a double negative in there. 11 have that worked out. 12 We're agreeing with each other, right? 12 MR. REASONER: Doug, what exhibit was that? 13 A. I guess we are. 13 MR. ABSMEIER: Defendant's 4, right? 14 Q, Okay. So -- and again, very different than 14 MR. ALLISON: Pardon? 15 taking money from the company if you're giving money to 15 MR. REASONER: Defendant's 4 is Dennis 16 the company and it's at a prime plus a quarter rate, and 16 Berry's note, is that the same? 17 no security, no collateral, and it's subrogated to the 17 MR. ALLISON: Yes. 18 line of credit, in this instance with Frost, that is a 18 MR. ABSMEIER: And is it 19 great loan for the company, isn't it? 19 MR. ALLISON: It doesn't have anything else 20 A. It was so great it got our revolver counsel, 20 in it so we're clear on the record. 21 okay? That's the bottom line, that's how good it was, 21 MR. ABSMEIER: If it's Bay 21 and 22, I 22 it affected the lifeblood of this company, calls IBC, 22 have a hard copy I can give the Court. 23 because it was poorly planned and poorly executed and 23 MR. ALLISON: I've already gone over the 24 Dennis Nixon when, okay, came to talk about it, Jim 24 terms with him. I'm not going to do it. I'm just 25 Klein told him that they'd spent the money and the bells 25 making sure they're in the record.

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MR. BOYD: But is the Bates the same? do that. 2 MR. ALLISON: It is Bates page 21 through 2 MR. BOYD: How are we going to do that with 3 25. 3 our confidential? 4 MR. BOYD: Okay. So it's both notes? 4 MR. ALLISON: Oh, yeah. Okay, thank you. 5 MR. ALLISON: Yes, it's both notes and 5 THE COURT: Yeah, true enough. 6 actually the ledger. 6 MR. ALLISON: We'll get hard copies and 7 THE COURT: Okay. So no objection, I take 7 handle them the way we've talked about, Your Honor. 8 it, over here? 8 THE COURT: And if -- and if it does get 9 MR. BOYD: No objection. 9 and if it -- and if you have filed it, I can -- I guess, 10 THE COURT: All right, it's admitted. 10 I don't know, I guess I'll have to seal it. 11 COURT REPORTER: Which ones were those, 5? 11 MR. BOYD: I don't believe it's been filed 12 What numbers were they? 12 because I didn't see a docket notification come up. 13 MR. ALLISON: Defendant's 4, I believe. 13 THE COURT: Okay, okay. 14 THE COURT: It's Defendant's 4, it's one 14 MR. STEELY: I haven't seen it. 15 exhibit, right? 15 THE COURT: Okay. 16 MR. ALLISON: Yes. 16 MR. ALLISON: Your Honor? 17 THE COURT: It's several pages long. 17 THE COURT: Sometimes it hasn't been 18 MR. ALLISON: It's the note with Dennis, 18 accepted and nonetheless. 19 the note with Marty and the ledger. 19 MR. ALLISON: Your Honor, we'd offer -- 20 THE COURT: Okay. And you've provided a 20 MR. BOYD: It's a complicated world we live 21 hard copy for -- 21 in. 22 MR. ALLISON: I've not, but I'm not going 22 THE COURT: It's a complicated world and 23 to ask him any questions on it. 23 the computers run half of it. 24 THE COURT: No, I'm with you. 24 MR. BOYD: True. 25 MR. ALLISON: But for the court reporter? 25 THE COURT: And it's true. It becomes very

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THE COURT: For the court reporter. frustrating, but it's true. 2 mean, because she holds the exhibits, and - - and if 2 MR. ALLISON: And, Your Honor, we'd also 3 have to go back and take this under advisement, or 3 offer Exhibit No. 5 which are the subrogation 4 whatnot, I've got to be able to see the exhibits. 4 agreements. 5 MR. ALLISON: Okay. I will get us a hard 5 MR. ABSMEIER: Doug, can you give us the 6 copy. know we called and we were under the impression 6 Bates number on those? 7 to go ahead and do them electronically, but we'll go 7 MR. BOYD: No objection. 8 ahead 8 THE COURT: All right. 9 THE COURT: Oh, did you file it 9 MR. BOYD: Subject to this house cleaning, 10 electronically? 10 which we need to do after the fact. 11 MR. ALLISON: I don't know if we filed it 11 MR. STEELY: They have 9 through 20. Bates 12 or not. know that they communicated. 12 9 through 20. 13 THE COURT: If you filed it electronically, 13 MR. ALLISON: Yes. 14 it's fine but. 14 THE COURT: Then 5 is admitted. 15 MR. ALLISON: Okay. I will double-check 15 Q. (BY MR. ALLISON) And it raises a point, not 16 and make sure we close that loop. 16 only were Marty and Dennis's loans subrogated to the 17 THE COURT: Because then I can •· then I 17 Frost loan, but there's a separate line of credit for 18 can - - 18 equipment with Wells Fargo, correct? 19 MR. ALLISON: And then we'd offer Exhibit 19 A. Yes, sir.

20 5, we've already talked about it, Your Honor, it's the 20 Q. And they were also subrogated to the Wells 21 subrogation agreements. 21 Fargo loans, right? 22 MR. BOYD: Just for clarification, and I 22 A. I'm not sure about that, but I guess, if you 23 apologize. When you say "filed" through the Court's 23 say so. 24 e-filing system? 24 Q. Well , Exhibit No. 5 is in evidence now, if you 25 MR. ALLISON: That is normally how we would 25 want to look at it. See that says Wells Fargo and --

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A, Yes, sir. THE COURT: All right. Apparently, we are. 2 Q, you can read it if you want. If the record 2 It's on the record. 3 shows that, you're -- 3 MR. ALLISON: We're offering 10, 11, 12, 14 4 THE COURT: I mean, if you want to take -- 4 and 15. 5 it's about time for a break, If you want him to be able 5 THE COURT: All right. And with that? 6 to look at the document -- 6 MR. ABSMEIER: I just need to know the 7 MR. ALLISON: I don't think I need to. I'm 7 Bates number for each of those. Is -- 8 just moving on. 8 MR. ALLISON: I'll just call them out as we 9 THE COURT: All right. Well, I'm going to 9 went is what I thought you wanted me to do. 10 take a little break and then we'll start up again. 10 MR. ABSMEIER: No. I want you to put them 11 THE BAILIFF: All rise, please. 11 on the record before we agree. 12 (Recess.) 12 MR. ALLISON: Okay. 13 THE COURT: All right. Ladies and 13 MR. ABSMEIER: That way we're agreeing on a 14 gentlemen, be seated. Still your cross. 14 Bates number that represents Exhibit 10 instead of an 15 MR. ALLISON: I believe we coordinated with 15 unknown document that -- 16 plaintiffs' counsel and the court reporter. We have a 16 MR. STEELY: How about I help you out, 17 series we're going to go through and we're going to 17 Doug? 18 offer them, they've been previewed already. I don't 18 MR. ALLISON: Yeah. 19 think there's any objections, I think we're going to get 19 MR. STEELY: Exhibit 10 is Bates 0799. 20 her hard copies. I think we have a pl an. Do you guys 20 MR. ABSMEIER: Agreed. 21 agree? 21 MR. STEELY: What's the next one? 22 MR. BOYD: Agreed, Your Honor. 22 MR. ABSMEIER: 11. 23 THE COURT: Okay. Very good. 23 MR. STEELY: Exhibit 11 is Bay 0902. And 24 MR. ALLISON: With that, Your Honor, we 24 this will be 11. 25 will offer Defendant's Exhibits 10, 11, 12, 13, 14, and 25 MR. ABSMEIER: Agreed.

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15. MR. STEELY: Doug, 12. 2 THE COURT: All right. No objection? 2 MR. ABSMEIER: You said opening Bates 3 MR. ABSMEIER: One question, sorry. You 3 number. 4 told me when we conferred that you were not offering 13 4 MR. STEELY: Yeah. 5 so if you' re offering it' I need to know the Bates 5 MR. ABSMEIER: Oh, yes, sir. 6 number and confirm. 6 MR. STEELY: It looks like it's 0954. 7 MR. ALLISON: I thought I said I'm not 7 MR. ABSMEIER: Agreed. 8 offering 8, but that's okay, I'm going to use your 5 8 MR. REASONER: 14 is next. 9 instead of 8 and then let me try and answer your 9 MR. STEELY: Bay 0984 through 0987. 10 question for 13. 10 MR. ABSMEIER: Agreed. 11 MR. ABSMEIER: Can we go through exhibit by 11 MR. REASONER: And 15. 12 exhibit with you giving us the Bates number and us 12 MR. STEELY: 15, Doug, also? 13 telling you agreed or not? 13 MR. ALLISON: 15 is in it' yes. 14 MR. ALLISON: Oh, you know what? 14 MR. STEELY: This looks like it is Bay 15 MR. ABSMEIER: That way it's on the record 15 01819. 16 what the document is. 16 MR. ABSMEIER: That's agreed. 17 MR. ALLISON: Yeah, I don't need 8, because 17 So no objections, Your Honor, to those 18 you already put it in. We did have that discussion too. 18 exhibits. 19 So it's -- 19 THE COURT: Then they are all admitted. 20 MR. STEELY: Are we on the record? 20 COURT REPORTER: Just for clarification, 13 21 THE COURT: I don't know. 21 is or isn't? 22 (Laughter.) 22 MR. ABSMEIER: 13 is not being offered. 23 MR. STEELY: Before we start announcing all 23 MR. ALLISON: I'm going to use -- my 13 is 24 these agreements, let's get it on the record. 24 their No. 6, so I'm going to use that. 25 COURT REPORTER: We are, we are. 25 THE COURT: Okay.

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MR. ALLISON: May I proceed, Your Honor? March 3rd email is from who to who? 2 MR. STEELY: So 10 through 15 are in, but 2 A. From Gus Barrera, our banker, to Rob Powers on 3 not offering to 13? 3 March 3rd at 2:16. "Rob, hello. My boss, Dennis Nixon, 4 MR. ALLISON: Correct. 4 would like to set up a meeting with the Board of 5 CROSS-EXAMINATION (CONTINUED) 5 Directors for Berry the week of March 13th. Please let 6 BY MR. ALLISON: 6 me know what date would work best for the meeting. 7 Q. Right before the break you were saying that the 7 Thank you for your help. Gus Barrera." 8 failure to disclose Dennis and Marty's notes, that's 8 Q, So the proposed meeting was going to be the 9 what blew up the IBC Bank? 9 week of March 13th, correct? 10 A. Yes, sir. 10 A. Yes, sir, yes, sir. 11 Q, Why do you say that blew up the IBC Bank loan? 11 Q, Okay. It doesn't say which day during the week 12 A. One of the first things Dennis Nixon told me. 12 of March 13th, right? 13 MR. STEELY: Objection, hearsay. 13 A. No, sir. 14 THE COURT: Okay, let's do this. We can't 14 Q, And it doesn't say a time, right? 15 talk about what other people said. You can say there 15 A. No, sir. 16 was a conversation with Dennis Nixon. 16 Q, Would you agree that it's fair to characterize 17 MR. ALLISON: Okay. 17 that as a request for a meeting? 18 THE COURT: Okay. 18 A. Yes, sir. 19 MR. ALLISON: I'll try to ask my question 19 Q. Sometime during that week? 20 more where I wouldn't elicit hearsay. 20 A. Yes, sir. 21 Q, (BY MR. ALLISON) Let me rephrase it this way. 21 Q, And have you ever seen any other email or text 22 Were you at the March 13th meeting when Dennis Nixon 22 message or anything that confirmed a date or time for 23 came to Corpus Christi? 23 the meeting? 24 A. didn't have notice, no, I was not there, nor 24 A. No, sir, I have not. 25 did I have notice of that meeting. 25 Q, For example, do you know if there's anything

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Q, Okay. And did you review any of the paperwork out there that set the meeting for March 14 or March 15, 2 in that late February, early - - 2 or March 16 or March 17? 3 (Cellphone ringing.) 3 A. Not that I have seen, no, sir. 4 MR. ALLISON: Can you-all hear that or is 4 Q, Okay. So far as you know based upon the 5 it just me? 5 evidence that we have here, as far as you know, there 6 THE COURT: No, we can hear it. 6 was no specific date or time ever set for the meeting? 7 (Pause in proceedings.) 7 A. know Dennis Nixon got on a jet and flew to 8 Q, (BY MR. ALLISON) Were you at -- have you 8 Corpus for a meeting, so he must have thought there was. 9 reviewed any of the paperwork from the bank from IBC in 9 Q. He must have thought there was, right? 10 that late February, early March time frame for the March 10 A. Yes, sir. 11 13th meeting with Dennis Nixon? 11 Q, Okay. 12 A. I need to see the document. I couldn't say. 12 A. And never had notice, so if there's going to 13 Q, Okay. And what you do know, though, 13 be I'm on the board of directors and nobody told me 14 Plaintiff's Exhibit 5, that's a letter your counsel 14 about it, so really couldn't say one way or the other. 15 referred to a moment ago, is that right, during his 15 Q. Yeah. And Rob, from Mr. Powers' standpoint, 16 questions of you? 16 that's who the letter is to or the email is to, right? 17 A. Yes, sir. 17 Correct, sir? 18 Q, And go ahead -- go ahead and tell us the date 18 A. Yes, sir. 19 of that letter. 19 Q, And he -- he would be the one to know if there 20 A. March 3rd. 20 was ever an actual meeting set up or just this request 21 MR. BOYD: Doug, just so we have clarity, 21 for the meeting; fair enough? 22 that's Bay 000953 email; is that right? 22 A. Yes, sir. 23 THE WITNESS: Yes, sir. 23 Q, Okay. And so if Mr. Powers testifies that it 24 MR. BOYD: Okay, 24 was never solidified which day of the week or what time 25 Q. (BY MR. ALLISON) And go ahead and read that 25 they were coming, you would have no information to

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disagree with that? MR. REASONER: I'm sorry, what exhibit is 2 A. Other than Dennis Nixon showed up for a 2 this, Doug? 3 meeting. 3 MR. ALLISON: 11. 4 Q. Obviously, Dennis Nixon thought it was on one 4 MR. BOYD: Lawrence, if you need to get 5 day, and from the record, it looks like Rob has no 5 closer, with the Court's permission, you can walk over 6 information about which day of the week? 6

7 A. Well, I know never got any inquiry about a 7 THE COURT: Yeah, you can. Can you see it 8 meeting in this week, in this period. 8 or? 9 Q. Yeah. And for all you know, Marty never got 9 THE WITNESS: Yes, sir, I see it. 10 notice either because there was no date set? 10 THE COURT: Okay. 11 A. No, I know Marty said he -- there was a meeting 11 A. read it. 12 and he told me that in his office right after the board 12 Q. (BY MR. ALLISON) Do you see that Exhibit No. 13 meeting. 13 11, it's a letter from Gus Barrera, you said he's the 14 Q. Yeah. Marty said there was a meeting, yes. 14 president of IBC, right? 15 After it happened -- I'm repeating what you said. After 15 A. No, think he's our banker here, I'm not sure 16 it happened, Marty knew there was a meeting, right? 16 what his title is. 17 MR. BOYD: Objection, mischaracterizes his 17 Q. It's a letter to Mr. Powers, the CEO of Berry 18 testimony. 18 GP, right? 19 MR. ALLISON: That's exactly what he said. 19 A. Yes, sir. 20 A. No, Marty knew there was a meeting. 20 Q. It says, "The Berry GP, Inc. , currently has a 21 THE COURT: Overruled, that's overruled. 21 line of credit with our bank in the amount of 22 Q. (BY MR. ALLISON) When in compare -- and the 22 $50,000,000. The line of credit has a maturity date of 23 meeting happened, or at least Dennis Nixon showed up on 23 March 31, 2023." Have I read that so far correctly? 24 March 13th, we know that, right? 24 A. Yes, sir. 25 A. The day before the board meeting. 25 Q. RThis letter evidences our commitment to renew

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Q. And when were the this line of credit to Berry GP, Inc., in the amount

2 MR. ALLISON: I am going to need Exhibit 2 much $50,000,000." Did I read that correctly? 3 No. B, which is Bates page numbers 894, and I'll use 3 A. Yes, sir. 4 that page only. 4 Q. It says "that it's subject to receipt and final 5 MR. BOYD: 894? 5 review of the audit by RSM us LLP. Do you see that? 6 MR. ALLISON: Yes. We'd offer Exhibit 8, 6 A. Yes, sir. 7 Your Honor, modified to be that one page only, Bates 7 Q. Okay. So even after, even after IBC Bank got 8 page 894. 8 the notes from Dennis and Marty, it was after that date 9 MR. ABSMEIER: Let me just check it very 9 when IBC confirmed their commitment to renew the line of 10 quickly. 10 credit, right? 11 MR. REASONER: Defendant's Exhibit 8. 11 A. Yes, sir. 12 MR. BOYD: No objection, Your Honor. 12 Q. And if you l oak at Exhibit 1O, is that another 13 THE COURT: All right, it's admitted. 13 letter from Gus Barrera to IBC Bank? 14 Q. (BY MR. ALLISON) Just so we can start working 14 MR. BOYD: Doug, can you extend it? 15 through some dates here, Lawrence, if you look, you can 15 A. Doug, you're going to have to blow that up, 16 see that the date that Marty's and Dennis's notes were 16 please. 17 sent to IBC is on what date? 17 MR. REASONER: He's trying to look at it 18 A. February 1st of 2023. 18 from over there. 19 Q. Okay. And then Exhibit No. 11 already's been 19 MR. ALLISON: Okay. Is that better? 20 admitted. On February 10 which is after the -- excuse 20 MR. REASONER: Can you see it, sir? 21 me, which is nine days after the notes, formal notes 21 Q. (BY MR. ALLISON) Can you see it' Lawrence? 22 were provided for Marty and Dennis to the bank to IBC. 22 A. Yes, sir. 23 On February 10th, what is this? I'll blow it up for you 23 Q. Okay. By the way, for Gus Barrera, it does say 24 a little bit. 24 he's president and CEO of the bank; is that right? 25 A. Thank you. 25 A. Yes, sir.

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Q, And on January 27, 2022, it says, RThi s Q, (BY MR. ALLISON) And Rob says, "There are no 2 letter," on the second line, "evidences our commitment 2 board members here. They all had to go out of town on 3 to renew this line of credit to Berry GP, Inc., in the 3 urgent business. am here and happy to meet with him." 4 amount of $50,000,000." Do you see that? 4 Did I read that correctly? 5 A. Yes, sir. 5 A. Yes, sir. But reading it looks to me like 6 Q, Okay. So in January and February, and February 6 there was a meeting. 7 date after IBC's receipt of the letters -- 7 Q. Pardon? 8 MR. ALLISON: Okay, that's supposed to be 8 A. Reading that it looks like there's a meeting 9 January 27, 2023, or is this is the old one? 9 scheduled to me. 10 (Counsel conferring at counsel table out of 10 Q, Well, it looks like he said, "We landed, I'm 11 court reporter's hearing.) 11 picking him up and we're headed your way. Right? 12 Q, (BY MR. ALLISON) But clearly, after the bank 12 A. Yes, sir, and he gives him a response, like 13 received the letters, i f you look at Exhibit No. 11 , 13 there's a meeting. 14 after the bank received the letters, the loan notes from 14 Q, Okay. When you say - - it says what it says; 15 Marty and Dennis, IBC after that date, renewed the 15 fair enough? 16 $50,000,000 line of credit, right? 16 A. Are you saying m-e-e-t? 17 A. But they didn't. 17 Q. Pardon? 18 Q. They made their commitment to do it -- 18 A. "I am here and happy to meet." There must have 19 A. But they didn't. 19 been one scheduled. 20 Q, even though they had -- in other words, 20 Q, Yeah, I mean, what do you want him to say, 21 earlier you said that the fact that Marty and Dennis had 21 sorry, don't come over? 22 put money into the company, made those loans, you said 22 A. All I know is I'm a board member and Dennis is 23 that's what caused the blow up with IBC, right? 23 hoping to see him, I wasn't invited. 24 A. I think, yes, absolutely, because Jim Klein 24 Q, And you don't know if Marty or Dennis were, or 25 said he spent it. 25 what the plan was, do you?

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Q, But what we see when we look at the actual A. I couldn't say. 2 documentary evidence is that IBC Bank had the notes, and 2 Q. Pardon? 3 then after that date, wrote the letter renewing the line 3 A. I couldn't say. 4 of credit, right? 4 Q, That's right. What 5 A. It says, "They have the commitment to renew 5 A. I would have been there, though. 6 this line of credit." 6 Q, Yeah. Okay. And do you know why it is that 7 Q. Right. 7 Rob didn't respond to the invitation for a meeting? 8 A. "Subject to audit.• 8 A. can't imagine.

9 Q. And we've gone over this, this is Exhibit No. 9 Q. Do you know why it is that Gus didn't follow up 10 12, it's al ready into evidence so I'm not going to go 10 with another email that gave a specific date? 11 through it again. This is the March 3 invitation for a 11 A. I wouldn't -- I don't -- I don't know any of 12 meeting sometime during the week of March 13, right? 12 that. 13 A. Yes, sir. 13 Q, Yeah. Do you know why, for example, Gus didn't 14 Q, And then we have the email string between Gus 14 write and say, we need to meet on March 15th at 10 a.m.? 15 Barrera and I believe Rob; do you see that? 15 Do you know why he didn't do that? 16 A. Yes, sir. 16 A. Because the ball was in Rob's court. 17 Q, And it looks like there's an older one in 17 Q, Pardon? 18 there, it looks like they must text each other, maybe, 18 A. The ball was in Rob's court. 19 but from the one March 13th says, • Good morning, I'm 19 Q, Instead, obviously, Mr. Nixon thought there was 20 picking up Mr. Nixon at the airport, assuming no delays, 20 a meeting and he came, and you know that to be true, 21 see you at 10:00 a.m., thanks.• Do you see that? 21 right? 22 MR. REASONER: Excuse me, could we get an 22 A. I know there was a meeting scheduled and he 23 exhibit number on that? 23 showed up and we weren't -- there was no Berrys there, 24 MR. ALLISON: Yeah, this is 15. 24 do know that for sure, I'm certain. 25 A. Yes, sir. 25 Q, Well, in fairness, what you told us earlier,

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you don't know if there was a meeting actually A. would say he -- I will say -- 2 scheduled, you just know there was 2 MR. BOYD: I would object, Judge, 3 A. There had to be a meeting scheduled, Dennis 3 speculation. 4 came in for it. 4 A. that Mr. Nixon was -- 5 Q. Okay. In Dennis's mind there was a meeting 5 THE COURT: Sustained. 6 scheduled? 6 A. was probably disappointed. I couldn't say 7 A. Well, it says meet up there, and here's a 7 what he was thinking. 8 request to Rob so. 8 THE COURT: Sustained. 9 Q. And then we know on that same day we have a 9 Q. (BY MR. ALLISON) And do you think that it was 10 text exchange where it's Robert. I assume that's Rob. 10 more of an emotional or a knee-jerk response by 11 "Just had a bad meeting with IBC Dennis Nixon. He came 11 Mr. Nixon? 12 in attacking and cursing me and Jim, didn't end well." 12 MR. BOYD: Objection. 13 Do you see that? 13 THE COURT: Sustained. 14 A. Yeah. Whose this to? 14 A. couldn't say. 15 MR. BOYD: Doug, what exhibit is this? 15 MR. REASONER: Sir • • sorry • • just wait 16 MR. BALDREE: What exhibit is this? 16 when the Judge sustains. 17 MR. ALLISON: 14. 17 Q. (BY MR. ALLISON) After all this happened with 18 A. And who are the parties? 18 IBC Bank, what did you do? 19 Q. (BY MR. ALLISON) Pardon me? 19 A. What did I do? Start trying to get together 20 A. Who are the parties? 20 packages to find a new lender. 21 Q. It's -- I'm going to speculate it's between 21 Q. Yeah. 22 Robert and somebody, okay? 22 A. Called on everybody, the guys that we had teed 23 A. Okay. 23 up two years before to take it, tried to get all of them 24 Q. We'll let him address that. He'll know better 24 to come in. 25 than you, right? 25 Q. And namely, your bank up in Houston that you

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A. It says meeting there again, had meeting. went to? 2 Q. But, I mean, confirm for us again, I think you 2 A. banked everywhere, but we had Regions 3 told us, right, you don't know -- 3 approached a couple of years ago and went down that road 4 A. I couldn't say one way or the other, no, sir. 4 for a while, Bank of America as well for the ABL line, 5 Q. You don't have any document or anything that 5 the asset-based lending line. 6 confirms a date and a time of a meeting, right? You 6 Q. Didn't you go to Cadence Bank and try to set up 7 just know Mr. Nixon came in? 7 a meeting for $100,000,000 line of credit? 8 A. It says "meet" right there on your production. 8 A. Yeah, I went to every bank in Houston probably. 9 Q. After the time, this was after the fact? 9 Q. Okay. So you were out trying to find a 10 A. Okay. I've got there's a whole bunch of 10 suitable line of credit if things continued to fall 11 things. No, I couldn't say one way or the other, but 11 apart with IBC, right? 12 there sure was a meeting. 12 A. Yes, sir. 13 Q. There was a meeting. He did -- Mr. Nixon came 13 Q. You made an effort on behalf of the company? 14 in and Rob met with him, right? And then the next or 14 A. Absolutely. 15 the same day they sent a letter of default, right? 15 Q. And you know that Marty did the same with Frost 16 A. Hell of a coincidence, isn't it? 16 Bank, right? 17 Q. Pardon? 17 A. I believe so, yes, sir. 18 A. I said it's quite the coincidence, isn't it? 18 Q. And ultimately, you-all have consummated an 19 Q. Well, do you think Mr. Nixon, from this email, 19 agreement with Frost Bank, correct? 20 do you think he was -- it says he was attacking and 20 A. Yes, sir. 21 cursing; do you think he was angry? 21 Q. And the terms of that Frost Bank agreement 22 A. I'm sure Dennis was -- Mr. Nixon was 22 include a better interest rate than IBC's interest rate, 23 disappointed that there was nobody there. 23 right? 24 Q. Well, so cursing and angry would be 24 A. I couldn't say. I didn't get the terms. 25 disappointed and not angry? 25 Q. And also encumber less real property; you know

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that, right? A. Yeah. Well, Mike's a plaintiff attorney, but 2 A. Yes, sir. 2 Fisher Gallagher was a big firm in Houston at one time. 3 Q. Because the IBC rate, or excuse me, the IBC 3 Q. Yeah. They would be the kind of law firm that 4 loan encumbered all real property, including the 4 would sue IBC, if you wanted them to? 5 ranches, for example, right? 5 A. Yes, sir, could very well be the case. 6 A. Yes, sir. 6 Q. Okay. 7 Q. And the Frost Bank encumbers less of the Berry 7 A. I think Mike didn't call him. Mike called a 8 companies' real property, correct? 8 friend of his to try and help us, not the other thing, 9 A. Yes, sir. 9 not to sue anybody. 10 Q. And has the Frost Bank has also a more 10 MR. ALLISON: That's all I have. Thank 11 favorable interest rate, doesn't it? 11 you, sir. 12 MR. BOYD: Objection, asked and answered. 12 THE COURT: Whose up? 13 THE COURT: I'll allow it. 13 MR. HUSEMAN: Oh, am. 14 A. Yes, sir. 14 THE COURT: You may proceed. 15 Q. (BY MR. ALLISON) Okay. And so, actually, even 15 CROSS-EXAMINATION 16 though there was this whatever happened with Mr. Nixon 16 BY MR. HUSEMAN: 17 on March 13th that made whatever happen -- actually, the 17 Q. Mr. Berry, what I'm going to do is I'm going to 18 Berry companies and Berry GP have a more advantageous 18 take a few minutes with you, and I'm not going to 19 line of credit with Frost than they did with IBC, right? 19 hopefully spend too long on this, but I'm going to break 20 A. If you want to look at one, just through one 20 into little bites and I'm going to tell you in advance 21 lens, you could say that. What about the impact over 21 what we're going to be talking about, okay? 22 with all the vendors for this period when we wrote them, 22 A. Yes, sir. 23 like it will take forever to get the pricing back 23 Q. And the first thing, you understand that I 24 competitive. 24 represent Mike, don't you? 25 Q. And in that same time frame, you wanted -- you 25 A. Yes, sir.

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actually contacted Gallagher, the attorney, right? Q. I did until Mr. Reasoner graciously complied 2 A. Mike Gallagher, sure. 2 with my request to dismiss Mr. Rickett earlier this 3 Q. Yes. And you basically asked Mike Gallagher to 3 week, and I represented him as well? 4 call Tony Sanchez, right? 4 A. Yes, sir. 5 A. Yes, sir. 5 Q. And so I want to talk to you a little bit about 6 Q. And Tony, of course, is one of the founders of 6 Mike Hummell and his position in this lawsuit. First of 7 IBC Bank, right? 7 all -- and maybe we can agree on all of these things -- 8 A. Yes, sir. 8 would you agree with me that Mike Hummell does not own 9 Q. And I believe the phrase is, "to rattle the 9 any part of any of the Berry entities? 10 sword a little bit," in other words, to be aggressive 10 A. Yes, sir. 11 with IBC, right? 11 Q. He doesn't own Berry GP, none of them; he does 12 A. don't think that's the case at all, see what 12 not have a financial stake in the businesses we're 13 was see if there was any movement we could get. 13 talking about? 14 Q. Okay. So you hired a plaintiff's lawyer -- 14 A. No, sir, not that I'm aware of. 15 A. I didn't hire anybody. 15 Q. All right. He is not on the board of 16 Q. Well, you had a plaintiff's lawyer call on your 16 di rectors? 17 behalf to the founder of IBC to put leverage? 17 A. No, sir. 18 A. I had one of my friends trying to help me and 18 Q. He doesn't have a vote at the shareholders 19 us. 19 meeting? 20 Q. Okay. Is Gallagher a pretty well-known 20 A. No, sir. 21 plaintiff's lawyer? 21 Q. His compensation comes by way of a salary, I 22 A. I believe Fisher Gallagher represented us in 22 presume? 23 our in the company's biggest loss to date in the 23 A. Yes, sir. 24 courthouse. 24 Q. And his job is the general counsel for Berry, 25 Q. They do commercial litigation, right? 25 isn't it?

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A. Yes, sir. Q, Okay. So you're not fussing about the terms of 2 Q. That means he's Berry's lawyer? 2 what was done, you're complaining about the fact that 3 A. Yes, sir. 3 you didn't know about it; is that basically it? 4 Q. I mean, when you have legal work to do, he's 4 A. Yes, sir, but also, you'd have to say I'm not 5 the guy you go to? 5 sure about the interest rate, I'm not even sure what the 6 A. If it's contracts and it's corporate, yes, sir. 6 interest rate was originally. 7 Q. All right. And can you point to anything that 7 Q. Okay. What is the interest rate on it? 8 Mike did or didn't do in relation to all of the things 8 A. Prime, but some - - it's in the exhibits. 9 we're talking about here that was something about him 9 Q. A quarter of a percent? 10 personally as opposed to being a lawyer in the deal? 10 A. Yes, sir. 11 A. Yeah, he didn't pick up the phone and call me 11 Q, And do you know anything -- do you know enough 12 and tell me this stuff was going on. 12 about financing? Apparently, they do it at banks all 13 Q, Okay. How did that affect him financially? 13 the time. Is prime plus a quarter percent a good rate 14 A. I couldn't say. 14 or a bad rate? 15 Q, Yeah. And the point I'm making on this, and 15 A. They say it could be -- yeah, it could be a 16 don't know that you disagree on it, but this is not 16 good rate. 17 Mike's company, he doesn't make the business decisions, 17 Q. Yeah. 18 he doesn't vote on it or any of that. He's -- he's the 18 A. It could be. 19 lawyer, isn't he? 19 Q. I mean, I can tell you our bank, if they 20 A. Yes, sir. 20 offered corporate loans like that, there would be some 21 Q, Okay. And the things that he did in this that 21 questions asked. 22 regard you, it made -- in your pleadings, you had 22 MR. BOYD: Objection, sidebar. 23 complaints about Mike did this, and Mike did that. All 23 THE COURT: Sustained. 24 of those were consistent with him being a lawyer, 24 Q, (BY MR. HUSEMAN) So i f it's not a problem with 25 basically, representing the other side from you, right? 25 the interest rate as far as the payment terms of the

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A. He was partisan, yes, sir. loan, is there anything wrong with the terms of 2 Q. Right. But he was an advocate, I guess that 2 repayment? 3 would be the lawyer way of saying it, he was an advocate 3 A. Absolutely. 4 for his clients, wasn't he? 4 Q, Okay. What is wrong with that? 5 A. Some of them. Are you saying with regards to 5 A. Well , you we -- they put in a bunch of 6 the l cans? 6 money, didn't tell me about it, now there's a maturity 7 Q. No. With regard to the work that he did that 7 date that's coming up, okay? And on top of that, the 8 you complained about it in the petition. Can you point 8 numbers keep changing. You can see from in here, and it 9 to any instance in which Mike was not acting as an 9 just, A, it's poorly executed, it is, and it wasn't 10 attorney for the Berry entities? In other words, would 10 papered up properly at a contracting company. 11 it point to something where you were working for Mike 11 Q, Okay. And you think the loans should have been 12 Hummell 's financial interest, or something like that, 12 payable at a different date? 13 anything other than being a lawyer? 13 A. I'm saying that there's no -- this is not 14 A. Not specifically, no, sir. 14 this is violating pretty much every business thing you 15 Q. Okay. All right. want to change topics here 15 would do. And, by the way, I didn't have knowledge of 16 a little bit. I want to talk to you a little bit about 16 it, Van. 17 the bank loan. I've been involved in banking personally 17 Q, If you don't mind, stick to what I'm asking 18 for a long time, so this is of interest to me. 18 you. know you want to tell your story. But is there 19 Is it your position that the loans that 19 anything wrong with the due date on the note when it 20 were made by your brothers to the company were 20 matures? 21 insufficiently favorable to the company and should not 21 A. Yes, sir, I don't know how we're going to pay 22 have been entered into? 22 it back. 23 A. No. It is my position they should have been 23 Q, Okay. Is that a technical problem with the 24 disclosed and I should have had the opportunity to 24 note, or is that simply a business decision? 25 participate. 25 A. No, I'd say it's a technical problem with the

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note. You would expect that. you talked about your sister-in-law not having adequate 2 Q. All right. And if you had been negotiating 2 knowledge to act appropriately as the director; do you 3 this note, what would you have set for the date? 3 remember that? 4 A. couldn't say. 4 A. Yes, sir, said she didn't know. 5 Q, All right. Okay. And Doug touched on this a 5 Q, And then -- and I'm going to characterize this 6 little bit. Can you name any piece of Berry property, 6 as being more shocking. And you then said your brother 7 real property or personal property, or anything else the 7 Marty was a liar, and basically, had committed perjury; 8 value of Berry's that is secured as collateral for the 8 is that also what you said? 9 l cans that your brothers made? 9 A. Yes, sir. 10 A. Okay, one more time. 10 Q, Okay. Let's take that and break it into 11 Q, Sure. You know what collateral is, don't you? 11 pieces. First of all, you said in the affidavit where 12 A. Yes, sir. 12 you said the loan had not been repaid, is it your 13 Q, And I'm encompassing all the collateral you can 13 position that the loan has been repaid and that the debt 14 dream up: real estate, backhoes, whatever, money in the 14 has been satisfied? 15 bank. Can you name one bit of collateral that your 15 A. No, but it's moved, the numbers are different 16 brothers got for the $75,000,000 of loan? 16 on the sheets. 17 A. Well, I guess it would be everything that's not 17 Q. Okay. We'll come to that. But is it your 18 that's not that's not pledged to Frost. 18 position -- and maybe you can answer this with a yes or 19 Q. Have you seen any documents showing a security 19 no. Is it your position that the loan has been repaid 20 interest being granted to your brothers? 20 or not? 21 A. No, sir, but at the end of the day, if the 21 A. Looking at the balance sheet, a portion of it 22 company has the obligation and it's booked, then they 22 has, yes, sir. 23 have access to everything else that's left over that 23 Q. Okay. So the loan has not been fully paid, has 24 hasn't been pledged to a bank -- 24 it? 25 Q, Okay. And that would be 25 A. No, sir.

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A. including the operating entity in total, Q, All right.

2 everything. 2 A. Partially. 3 Q, That would be after a judgment, perhaps, a 3 Q, Okay. Now let's change gears here a little 4 default, right, where they'd have a judgment against the 4 bit. Since you had these documents involving this loan 5 company? I'm talking about the security interest, 5 that is obviously is of some importance to you, I'm sure 6 collateral what we're talking about? 6 you read through the documents, didn't you? 7 A. No, sir. 7 A. Yes, sir, tried to. 8 Q, Would you agree there was one? 8 Q, All right.

9 A. No, sir, I've not. 9 A. I did. 10 Q, Pardon? 10 Q, Do you remember -- and I'm referring to the 11 A. No, sir, I've not seen anything. 11 Bates stamp number 13 produced to our opposition here, 12 Q. All right. Okay. And we have the issue about 12 which is a subrogation agreement signed by brother 13 the subordination we talked about before. You've gotten 13 Marty. You've read that, I presume, didn't you? 14 the papers from this loan since this lawsuit got moving, 14 A. I think I have, yes, sir, if you're talking 15 haven't you? You've seen the papers? 15 about the one with Frost. 16 A. Yes, sir, we've seen -- yes, sir, there's been 16 Q, Uh-huh, am. That's the thirteenth document 17 some produced documents. 17 produced to you. And would it surprise you, Mr. Berry, 18 Q, They've been produced to you. It was produced 18 to learn that the subordination agreement that was given 19 to you, for example, the loan papers, the subordination 19 to Frost talks about a note dated July 8th, 2022, which 20 agreements, the correspondence with the bank about the 20 is the one you're talking about in regard to Marty, 21 loan. You've seen that stuff, haven't you? 21 right? That's the note date? 22 A. Yes, sir. 22 A. I'm not sure about the dates. 23 Q, All right. Now want to change gears here a 23 Q, I think it is. 24 little bit with you. If understood what you were 24 A. Okay. 25 saying before lunch under the guidance of your lawyer, 25 Q. And in the original -- and I'm going to read

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this to you. maybe five topics, and I'm going to try to be brief, 2 MR. HUSEMAN: Maybe if I can approach? 2 okay? 3 THE COURT: You may. 3 A. Yes, sir. 4 Q. (BY MR. HUSEMAN) I'm going let you read this 4 Q. First of all, there's been these terms that's 5 for everybody in the courtroom, and this is -- what's 5 been thrown around: owner, shareholder, all these kind 6 the Bates number down there? 6 of things. I want to cl ear the record up. Number one, 7 A. 13. 7 you personally, i ndi vi dually, are not a shareholder of 8 Q. Okay. And this is subordination agreement and 8 Berry GP, correct? 9 it's signed by whom? 9 A. We'd have to take and unwind all that. Like 10 A. Marvin G. Berry, Marty. 10 said, you'd need a flow chart to figure out how this 11 Q. That's Marty. And it talks about the note 11 works. 12 dated July 8, 2022, right? 12 Q. Well, I got one, but answer my question if you

13 A. Yes, sir. 13 can. Do you have a stock certificate where you are the 14 Q. Now read to the Judge what the following words 14 shareholder of Berry GP? 15 say? 15 A. I got stock certificates in my office, but I 16 A. Rln the original principal amount including 16 couldn't say. I don't recall right now. I couldn't 17 45,000,000 with a current principal balance of 17 say. 18 35,000,000." 18 Q. Are you familiar with an entity called LOMA? 19 Q. Right. And so, any deception about what was 19 A. Yes, sir. 20 owed or something, certainly, the bank knew about it, 20 Q. LOMA is a partnership; is that true? 21 and it was in the paperwork of the company, wasn't it? 21 A. Like this is getting into accounting things, 22 A. Well, that's what it says there. 22 but yes, sir, believe it is. 23 Q. Right. And so when you go call your brother 23 Q. Okay. And LOMA has a general partner and 24 Marty a liar and a perjurer, accusing him of all these 24 limited partners; is that true? 25 things, it might be useful to ask you, did you ever talk 25 A. I don't recall , but probably should have, it's

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to Marty about this, this particular issue? a partnership. 2 A. No, because he never called me to talk about 2 Q. Well, partnerships don't have stockholders, do 3 any of this back in the day. 3 they? They've got partners, right? 4 Q. Did you send him an email? 4 A. Okay. If you say so. I know I own a third of 5 A. No, sir, I haven't. 5 this and I used to have shares so. 6 Q. A written note, anything, to find out what was 6 Q. But my question's a little more subtle. 7 going on with that $10,000,000? 7 A. Okay. 8 A. Just found out about it 8 Q. LOMA is a partnership; agreed? 9 Q. Yeah. 9 A. Yes, sir. 10 A. after we filed the suit. 10 Q. And as a partnership, there are not 11 Q. So you didn't know at that time that he had 11 stockholders, correct? 12 given all of the money he had, including money reserved 12 A. That is correct, I believe so. 13 for taxes, and had an arrangement that he can get the 13 Q. And matter of fact, the one-third you keep 14 money back to pay his taxes? Did you notice the date 14 talking about is you have an interest in an entity 15 the date of that $10,000,000 debit? 15 called Becon, Inc.; is that true? 16 A. No, sir, I did not. 16 A. I'd have to have the flow chart. 17 Q. It was April. Does that have a significance to 17 Q. All right. 18 you in terms of finances? 18 MR. STEELY: May I approach, Your Honor? 19 A. I would assume it was a tax payment. 19 THE COURT: Yes. 20 Q. Okay. 20 Q. (BY MR. STEELY) Let me show you what was 21 MR. HUSEMAN: Pass the witness, Your Honor. 21 attached to your original petition. 22 CROSS-EXAMINATION 22 MR. STEELY: And I only got a couple of 23 BY MR. STEELY: 23 copies, but you-all are familiar with this, you-all are 24 Q. Mr. Berry, how are you? Clay Steely, on behalf 24 the ones that sent it. 25 of Rob Powers. I'm going to touch on about four to 25 MR. BOYD: Let me see. It may be what I

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have right here. Lawrence Berry to Robert Powers. Do you remember 2 MR. STEELY: That's exactly what you got in 2 that -- 3 front of you. 3 A. Yes, sir. 4 Q. (BY MR. STEELY) Let me show you what we're 4 Q. -- discussion? 5 going to mark as Powers Exhibit No. 2. Are you familiar 5 A. Yes, sir. 6 with that diagram, sir? Pardon me if have to look 6 Q, Now, this happened about the third Tuesday of 7 over your shoulder, I don't have very many copies. Seen 7 April; agreed? 8 that before? 8 A. Yes, sir. 9 A. It looks like one of those Peat Marwick and 9 Q. You never took this list to the next 10 Main messes, yes, sir. 10 shareholders meeting, did you? 11 Q, When you approved the original petition that 11 A. Everybody was copied. 12 was filed in this case, this was attached. Did you 12 Q, That's not my question, sir. When you didn't 13 approve that to be attached? 13 get the answers to your question in April, did you take 14 A. I assume I did. 14 this to the next meeting, the May meeting and say, 15 Q, Are you familiar with that document? 15 "Where's my information?R 16 A. I don't remember it specifically, but I get 16 A. I've asked in open forum numerous times, so 17 what it says. 17 yes, I don't know if I had it with me or not, but I did 18 Q. You'll agree with me that it shows at the top 18 ask about it. 19 there is a partnership, LDMA, correct? 19 Q. Okay. Did you do it at the June meeting? 20 A. Yes, sir. 20 A. I've been asking for this information, both of 21 Q, And you'd also agree with me that there's a 21 which I haven't received all the way to now. 22 general partner named Becon, Inc. , correct? 22 Q. Okay. But this is the only written piece that 23 A. Oh, okay, yeah. Yes, sir. 23 has been presented by your side where you're asking for 24 Q, And that is the entity, Becon, Inc. , is the 24 this information; you'd agree with me? Where's all the 25 entity, that according to this document, that you have a 25 other emails? Don't have them, do you?

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one-third interest in; agreed? A. No, sir, not handy. 2 A. I got a one-third interest in everything at 2 Q. All right. Berry loans, I'm going to be brief 3 1414. 3 about this. Do you want to unwind those loans? 4 Q, Okay. But I'm asking you about what the 4 A. Do want to unwind the loans that -- 5 document is that you-all filed down in Harris County 5 Q, Yes, sir. 6 shows? 6 A. I don't even know where the money was spent. 7 A. Yes, sir, that's what it shows. 7 Q. That's not my question, sir. If you had a 8 Q, Thank you. Now, this same LDMA limited 8 magic wand and you say everybody else is an interested 9 partnership agreement. 9 director, I'm the guy that gets to make the decision, 10 MR. STEELY: May I have this? 10 you want to say, give the money back, we got to give the 11 Q, (BY MR. STEELY) Have you read the partnership 11 money back? 12 agreement, sir? 12 A. Absolutely. 13 A. I'm sure I've looked at it at some point in 13 Q, That's what you want to have happen? 14 time. 14 A. If it didn't impact the company, of course. 15 Q. Do you have a copy of it? 15 We're back flush like we were before IBC, yeah, that's 16 A. No, sir, I do not. 16 all could ask. 17 Q, Can you cite for me the provision of the 17 Q, The flush part aside, I'm trying to find out 18 partnership agreement that gives you the authority to 18 what you want to have happen to these loans. That's 19 file a lawsuit on behalf of Berry GP? 19 what I'm trying to find out. Do you want the company to 20 A. No, sir. 20 have to 21 Q, Let's shift gears. This idea about information 21 A. I'd like see -- 22 exchange. There was this list that you-all pointed to 22 Q, their money back? 23 on Plaintiff's Exhibit No. 12, let me see, let me see. 23 A. to see them paid back, absolutely. 24 If you have it up there, I don't need to approach. But 24 Q, You'd like to see the brothers -- 25 this is the April 18th request from information from 25 A. Without impacting the business.

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Q, I apologize. Your brother's estate, you'd like Q, I mean, maybe it was a miscommunication on both 2 to see that money paid back and wipe it clean? 2 sides. What do you think? 3 A. Yeah, absolutely. 3 A. Could be. 4 Q. To shift gears on you a little bit, Van touched 4 Q. Could be. But you don't know? 5 on this a little bit. For the IBC or the Frost loans, 5 A. I know I was excluded. 6 if I asked you questions about interest rate, 6 Q, All right. But besides that, these other 7 collateral, subordination and guarantees, you're just 7 things that we've been talking about, the entering of 8 not in a position to give me all those details, correct? 8 the loans, the things like that, just as a day-to-day 9 A. No, sir. 9 business matter, is there anything in the bylaws you can 10 Q, And you haven't done any independent analysis 10 point me to that says the president and the CEO doesn't 11 that when those instruments were entered into at that 11 have those powers? 12 time frame, whether those were good deals or bad deals; 12 A. Yeah, but he's got to disclose them to his 13 agreed? 13 di rectors. 14 A. I think we didn't have enough options to -- 14 Q, Okay. Let's put disclosure aside for now 15 yes, agree with that, yes. 15 because we've had a lot -- I'm not going to go back 16 Q, I haven't seen that you-all have identified an 16 through 17 expert in this case that says, I'm the guy that keeps up 17 A. Well, here, we've never let employees make the 18 with the T bills, I think that's the example that you 18 decisions on the banking or the assets. 19 used, and says, these were good loans and they were bad 19 Q. So is it -- 20 loans. That's just not what you do and you don't have 20 A. Okay. 21 anybody here to say anything about that today, correct? 21 Q, Is it your testimony that every time a banking 22 A. That is correct. 22 relationship is entered into, that the board is the one 23 Q. You know something interesting, are you 23 that makes that decision versus the president and CEO? 24 familiar with the bylaws I'm shifting gears -- the 24 A. Yeah, it's pretty much say so. It's only 25 bylaws of Berry GP; have you read them? 25 happened two or three times.

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A. Yes, sir. Q, The last thing I want to touch on is concept of 2 Q. They're attached to your petition that was 2 not being invited to participate in the Berry loans. If 3 filed over in Houston; do you remember that? 3 someone else takes the stand and says that's absolutely 4 A. Yes, sir, I'm familiar with the -- with the 4 not true, you were told that and you were invited, is 5 Q, You'd agree with me that there's nothing in 5 that person a liar? 6 these bylaws that prohibits Rob Powers, my client, from 6 A. Absolutely. 7 taking the actions that he took that you've complained 7 MR. STEELY: I think that's all I've got 8 about as he gets to manage and operate -- 8 for now. 9 A. I don't agree with that at all. 9 MR. BOYD: Redirect, Your Honor? 10 Q, -- a $100 million company day to day? 10 THE COURT: Redirect. 11 A. I don't agree with that statement at all. 11 REDIRECT EXAMINATION 12 Q. Tell me what provision -- 12 BY MR. BOYD: 13 A. Okay. I think whenever my banker sends a 13 Q, Mr. Berry, do you have Exhibit 7 available, 14 message says that, hey, I want to see the owners in a 14 please? 15 meeting and it's not conveyed to me, that's a breach, 15 A. Yes, sir. 16 man. 16 Q, All right. I want to go back to what 17 Q, Not conveyed or otherwise. You've already 17 Mr. Allison was talking to you about on why the bank 18 testified you don't know if a meeting was ever scheduled 18 canceled or noticed the default, the IBC default of the 19 or not scheduled; you'd agree with me? Somebody sending 19 Berry; do you recall that? 20 a meeting request 20 A. Yes, sir. 21 A. There's a meeting. If Dennis Nixon flies into 21 Q, Okay. We talked about this briefly, but 22 town on his jet to come see us, there's a meeting, dude. 22 clearly, counsel for IBC in Exhibit PTX7 in the 23 Q, Well, then shame on Dennis Nixon 23 paragraph that starts, "For reasons unknown to us," they 24 A. Yeah, unfortunately, we -- we needed him, 24 are very concerned that the meeting was unilaterally 25 unfortunately. 25 canceled, correct?

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A, Yes, sir. COURT REPORTER: Mr. Boyd, I think you 2 Q. And so this lawyer for IBC is clearly putting 2 already have an Exhibit 23. 3 in a letter that there was a meeting, correct? 3 MR. BOYD: Thank you. They just pointed 4 A. Yes, sir. 4 that out. 5 Q. All right. What conclusion did IBC draw from 5 Q. (BY MR. BOYD) Here's 20, 21, 22. 6 the failure of the board of directors to show up at the 6 A. Yes, sir. 7 meeting? 7 Q. And I'm going to ask you to review all three of 8 MR. ALLISON: Your Honor -- 8 those while I give those to counsel. 9 Q. (BY MR. BOYD) It's in the next sentence? 9 MR. STEELY: Are those 21, 22, 23? 10 MR. ALLISON: -- I'd object to speculation. 10 MR. ABSMEIER: Yeah. 20 is -- the one 11 THE COURT: mean, he can read from a 11 that's marked Exhibit J is 20. Exhibit K is 21. 12 document certainly. 12 MR. STEELY: Hold on, hold on. 13 MR. BOYD: And that's what I'm asking. 13 MR. ABSMEIER: Exhibit K is 21 and Lis 22. 14 A. "Timely reporting of" -- 14 These were attached to one of our motions a few weeks 15 MR. BOYD: Hang on. 15 ago. 16 THE COURT: No, that's fine, he can read 16 MR. STEELY: Okay. There's only two of 17 from a document, otherwise, it's speculation. But if 17 them? 18 it's in the document and it's a piece of evidence, he 18 MR. ABSMEIER: Should be three, J, Kand L. 19 can certainly read from it. 19 MR. STEELY: J, Kand L. 20 Q. (BY MR. BOYD) From the second sentence, "We are 20 MR. BALDREE: K may be behind the J. 21 left," 21 MR. STEELY: K is? 22 A. "We are left to believe that the financial 22 MR. ABSMEIER: K is 21. 23 condition of the borrowers has gotten even worse as my 23 MR. BOYD: Let me know when you guys are 24 client has yet to receive the required financial 24 ready. Are you ready? 25 statements for the quarter ending January 31st of 2023, 25 MR. ALLISON: Yeah. We can follow up and

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or the detailed financial information requested by you'll get us some redacted copies, I guess? 2 Mr. Barrera. Timely reporting of accurate financial 2 MR. BOYD: We can talk about that later, 3 information has been a recurring problem." 3 but yes. Right now, they' re redacted. 4 Q. Okay. So clearly, the failure to meet, the 4 MR. ALLISON: And I just want to make sure 5 failure to provide information that they requested is 5 in terms of, they showed up with some new things this 6 being highlighted here as the problem? 6 morning. I think the only new thing we have are the 7 A. Yes, sir. 7 stock cert i fi cat es for Berry GP. I just want to make 8 Q. All right. As it relates to the what we call 8 sure what the goose gander rule is in effect or however 9 the Berry loans, the first time that you were invited to 9 you want to handle that. 10 participate was after this lawsuit was filed? 10 MR. BOYD: I'm sorry, what rule? 11 A. Yes, they wanted a do-over. 11 MR. ALLISON: The goose gander. You don't 12 Q. All right. I'm going to go back to questions 12 hang out with old lawyers? 13 that Mr. Steely asked you. He showed you the detailed 13 MR. ABSMEIER: Your Honor, these were filed 14 list that you sent to Rob Powers requesting information? 14 about two weeks ago when we had the hearing on our 15 A. Yes, sir. 15 motion for protective order. These were attachments to 16 Q. Do you remember that? 16 it.

17 A. Yes, sir. 17 MR. ALLISON: There's been some new stuff, 18 Q. And then he questioned you were there any other 18 but that's, I think it was earlier, too. I'm just 19 emails? 19 inquiring, are we -- we're not objecting to timeliness, 20 A. There are. 20 right, with the TI hearing? 21 Q. Because he hadn't seen them; do you remember 21 MR. BOYD: I'm not making any agreements 22 that? 22 related to geese and ganders and such, but I'm sure 23 A. Yes, sir. 23 they'll be some quid pro quos as we go along. 24 Q. All right. And there are emails and I'm going 24 MR. REASONER: We do not object to anything 25 the show these to you, PTX20, 21, 22, and 23 (sic). 25 that you have offered so far as we've been able to see

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it on your computer. MR. BOYD: At this time, plaintiffs would 2 MR. HUSEMAN: You may not be goosing and 2 offer PTX20, 21 and 22. 3 gandering, but you are ducking, right? 3 THE COURT: No objection? 4 MR. STEELY: And I don't know if there's an 4 MR. ALLISON: Your Honor, we'd just object 5 outstanding discovery request anyway. So you get to use 5 because they're incomplete, and I just really, I don't 6 whatever -- 6 know they've blacked out things. And if you l oak at it, 7 THE COURT: I usually use that goose and 7 usually, the response email is above the, so I just -- 8 gander thing when there's drug testing involved in a 8 THE COURT: So what's your objection, legal 9 case, whether it's a family law, or a criminal case. 9 objection? 10 Usually family law, right, when it's like both sides 10 MR. ALLISON: That it's an incomplete 11 one side asks for a drug test, and then I say, all 11 document and therefore -- so the easy low hanging fruit 12 right, goose and gander, and they both get the drug 12 is that it's hearsay probably, but. 13 test. 13 THE COURT: Well, i t is hearsay. 14 MR. ALLISON: All I learned is when they 14 MR. ALLISON: Yeah, but the -- 15 start doing it, you got to call goose gander then, 15 MR. BOYD: have several responses, i f I 16 because you wait, then all of a sudden, the rule 16 may? 17 changes. 17 THE COURT: I'm listening. 18 THE COURT: Well, I mean you know, a judge 18 MR. BOYD: Okay. Number one, they're 19 calls balls and strikes, but i f nobody objects, then 19 redacted because that's what's important to us, so it's 20 none •· the judge does nothing. 20 attorney-client. 21 All right. So where are we? 21 Number two, as to your hearsay objection, 22 MR. BOYD: Your Honor, I'm on Exhibit 20. 22 he opened the door, right, in the direct examination. 23 THE COURT: 20. 23 And number three, it begs the question, why 24 Q, (BY MR. BOYD) Mr. Berry, have you had a chance 24 haven't you-all produced this? 25 to review this? 25 THE COURT: Well, I mean, honestly, we

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A. Yes, sir. don't address one another. 2 Q. All right. Is this indeed an email from you to 2 MR. BOYD: I'm sorry. 3 Mr. Klein and Mr. Powers requesting information? 3 THE COURT: Okay. But - - so you say he 4 A. Yes, sir. 4 opened the door so -- okay. Sorry, do you want to make 5 Q, All right. I'm going to go to 21. Well, first 5 another? 6 off, on 20, the date of that is June 14th of 2023? 6 MR. BOYD: No, I've made my argument. 7 A. Yes, sir. 7 THE COURT: Okay. Well, as to that it's 8 Q, All right. If you' 11 go to 21 , please, sir? 8 it's over - - 9 A. Yes, sir. 9 MR. BOYD: I'm sorry. 10 Q, Is that another information request that you 10 THE COURT: Well , it sounds like your 11 sent to Mr. Powers, Marty Berry, and Dennis Berry? 11 co-counsel is whispering something -- 12 A. Yes, sir. 12 MR. ABSMEIER: Your Honor, I think it's not 13 Q, And the date is what? 13 hearsay because it's a request for information, it's a 14 A. July 7th. 14 verbal act which takes it out of the hearsay -- out of 15 Q. Of 2023? 15 the hearsay rule. It's also admissible for notice to 16 A. Yes, sir. 16 the -- to the defendant that he was requesting this 17 Q, Okay. And we go to 22. Is this yet another 17 information which is exactly what's at issue. 18 information request that you sent this time to Rob 18 MR. BOYD: And it's also admissible because 19 Powers? 19 he opened the door by impeaching him -- 20 A. Yes, sir. 20 THE COURT: Well , l oak - - okay, l oak, I 21 Q, And the date of this is? 21 mean, i f it - - I' 11 all ow i t in only for the purposes of 22 A. July 21st. 22 rebutting his questioning, so, I guess, yeah. 23 Q, 2023? 23 MR. BOYD: Thank you. 24 A. Yes, sir. 24 COURT REPORTER: For clarification, what is 25 Q. All right. 25 the --

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THE COURT: For clarification, 22, 21 and MR. REASONER: No objection. 2 20 are admitted for the purposes of, I guess, rebutting 2 THE COURT: Okay. 3 his cross-examination. 3 MR. ABSMEIER: No objection. 4 What else? 4 THE COURT: Well, it's admitted. 5 MR. BOYD: Very few things, Your Honor. 5 MR. STEELY: And we're going to do H2, 3 6 Q, (BY MR. BOYD) Lawrence, you remember the 6 and 4, that's these two Rule 11 Agreements and that one 7 affidavit that Martin signed -- 7 page we talked about, instead of questioning over and 8 A. Yes, sir. 8 over. I'm all for that. 9 Q. -- that we talked about? It mentioned the 9 THE COURT: Anybody - - 10 company being strapped for cash? 10 MR. BALDREE: No objections. 11 A. Yes, sir. 11 THE COURT: All right. They're admitted. 12 Q, Were you ever consulted about Marty taking 12 (Brief recess.) 13 $10,000,000 of the company's cash out of the company? 13 MR. ABSMEIER: Can you read those into the 14 A. No, sir, I was not. 14 record? 15 MR. BOYD: Pass the witness. 15 MR. STEELY: Yeah, so Hummell 2 is going to 16 THE COURT: Recross? Mr. Allison, I mean 16 be Bay 1511. Hummell 3 is going to be Bay 1754 through 17 you're up. 17 1755. And then I guess this is Hummell, 1, 2, 3, 4. 18 MR. ALLISON: I understand. 18 It's Bay 1535 through 1536. 19 MR. HUSEMAN: Could we have five minutes? 19 MR. ABSMEIER: Agreed, no objection. 20 THE COURT: Yeah, we can take a short 20 THE COURT: Okay. Then they're admitted. 21 break. 21 Okay. So Mr. Berry is off the stand. 22 MR. STEELY: If we take a Court break, how 22 guess, call your next witness. Let's get as much work 23 is the Court's preference looking? 23 done as we can. 24 THE COURT: We end at 5. 24 MR. REASONER: We would like to call Marty 25 MR. STEELY: Thank you very much. 25 Berry as an adverse witness, please.

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THE COURT: It doesn't look like we're MR. ALLISON: And just while we're on the 2 finishing today. That being the case, maybe we should 2 record, yes, we pass in terms of further questions of 3 coordinate with my court manager before she sneaks out 3 Lawrence. know he's going to be here and be 4 and we happen to be in here at 5:00. She may or may not 4 available. I don't anticipate recalling, but we pass 5 be there. Don't you think? 5 just to facilitate the timing. 6 MR. REASONER: Good idea, Your Honor. 6 THE COURT: Okay. Come forward. 7 (Recess.) 7 (Oath administered.) 8 THE COURT: Are you ready? 8 THE COURT: All right. You may proceed. 9 MR. ALLISON: We're ready. 9 MR REASONER: Thank you, Your Honor. 10 MR. REASONER: We're ready. 10 MARVIN BERRY, 11 THE COURT: Okay. Well, are we done with 11 called as an adverse witness, having been first duly 12 Mr. Berry? 12 sworn, testified as fol lows: 13 MR. ALLISON: We gave them the heads up, 13 CROSS-EXAMINATION 14 we'll pass on the record. was going to give you heads 14 BY MR. REASONER: 15 up before the jury came in. 15 Q. Good afternoon, Mr. Berry. 16 MR. HUSEMAN: I have one exhibit which is 16 A. Howdy. 17 titled H1, it's sitting there right in front of you. 17 Q, And I'm going to -- since we've never met, I'm 18 THE COURT: Oh, yeah, yeah. 18 going to call you Mr. Berry, but when I say Mr. Berry, 19 MR. HUSEMAN: And the other side has a 19 I'm referring to you; fair enough? 20 couple of copies of it, and I've given your court 20 A. That be fine. 21 reporter a copy. They've agreed, I think, to allow it 21 Q, Bay is a family company, is that a fair 22 to be admitted. 22 statement, sir? 23 THE COURT: Okay. 23 A. I'd say it's fair to say. 24 MR. BALDREE: Do you-all have objections to 24 Q, And as I understand the history, the 25 H1? 25 predecessor of Bay was founded by your father and

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another gentleman around the early '50s, is that a clarify. What was the delta in time between your loan 2 fair - - 2 and your brother's loan? 3 A. 1953. 3 A. Could have been 24 hours, could have been a 4 Q. '53, yes, sir. And as I understand, his 4 week, I'm not sure about that. 5 vision -- I never had the pleasure of meeting the man, 5 Q. You just don't have any idea? 6 but his vision was that his sons would run the company 6 A. -- I don't have a recollection of that at 7 after his death; is that a fair statement? 7 this time, but I know it wasn't at the same time. 8 A. No, sir. 8 Q. Okay. And you and Dennis discussed it? 9 Q. All right. So what was his vision for who 9 A. I didn't discuss it with Dennis till he brought 10 would run the company, in your view, sir? 10 it up to me. 11 A. His wife would run the company. 11 Q. Okay. So Dennis was the one who raised the 12 Q. All right. 12 issue with you of putting the money in? 13 A. He left it to her. 13 A. No, sir, didn't state that. 14 Q. Okay. And did she run it for a time? 14 Q. State what happened. How did the loans come 15 A. Yes, she did. 15 about? 16 Q. How many years did she run it for? 16 A. By being at the office every day, I understood 17 A. I couldn't recall that. 17 how complex the situation would get and we had more and 18 Q. Two, twenty, forty? Just no idea? 18 more vendors calling, things were getting later and 19 A. Could be 10, I'm not sure exactly how many. 19 later, and we needed to shore up our company so it was 20 Q. All right. So for the -- but the last 20 20 time to put some money in. walked in and offered 21 years, plus, it's been you, Dennis and Lawrence; is that 21 money to Mr. Powers, the CEO, and he took it quite 22 correct? 22 quickly. 23 A. And Ms. Berry. 23 Q. Okay. And that, and independently, your 24 Q. And your mom has stayed involved? 24 brother also walked in and offered money? 25 A. Yes, she has. 25 A. Yes, I guess he did it independently.

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Q. Is she still active now? Q. Because you didn't discuss it with him? 2 A. She's still - - she's somewhat active, but not 2 A. I did discuss it with him. 3 in the same capacity. 3 Q. Before or after you did it? 4 Q. My understanding is she's in her 90s but still 4 A. Well, I'm talking -- let's talk about -- are 5 sharp as a tack; is that a fair statement? 5 you talking about my loan or his loan? 6 A. That would be true. 6 Q. Well, both. I guess, if you could just tell 7 Q. want to cut right to it, sir. As I 7 the Court your discussions with Dennis about the loans 8 understand it, you and your brother Dennis loaned a 8 before they were made. 9 substantial sum of money each to Bay in the early part 9 A. Dennis came to me and said, "I think we need to 10 of July of 2022; is that correct, sir? 10 put some money in the company." said, "I just did 11 A. I'm not a hundred percent on the date, but that 11 it." He goes, "Well, I'm going to do the same, I think 12 be true. 12 I'm going to put 20." I said, "Put more." And that was 13 Q. And what was the reason for that -- those loans 13 pretty much it. 14 being made? 14 Q. All right. Okay. And, sir, if you -- I'm 15 A. Financial stress on the company. 15 going to hand you what's been previously marked as 16 Q. All right. I think you had indicated in an 16 December 4 -- Defendant's 4. You guys have copies, too. 17 affidavit that the company's need for cash was so 17 Do you have Defendant's 4? 18 extreme that you and your brother made these loans; is 18 A. I believe I do. 19 that right? 19 Q. These are copies of your loan and your 20 A. I can't speak for my brother. 20 brother's loans; is that correct? 21 Q. Okay. Well, you didn't pick up on what his 21 A. No. I'm sorry. 22 motivations were at that time? 22 Q. Maybe you don't have it? 23 A. I didn't, I didn't make the loan at the same 23 A. It says Defendant's Exhibit Hummell 4. 24 time. 24 Q. Oh, not -- that's not it. 25 Q. Oh, well, that would be a good thing to 25 A. Not it.

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Q, I'm going to mark a new exhibit, sir, just to needed, that was the deal. 2 keep it clear of what I'm talking about. By the time 2 Q. Okay. And you indicated that the company 3 we're done we'll have a lot of copies of these 3 wouldn't have to pay anything on it until some point 4 promissory notes. 4 down the road? 5 MR. REASONER: Plaintiff's Exhibit 27. 5 A. Absolutely. 6 THE COURT: Is this one for me? 6 Q, And you understood, sir, during your experience 7 MR. REASONER: Yes, Your Honor. 7 in business, that this was a loan from an insider and 8 THE COURT: Okay. 8 that you were a board member, right? 9 MR. REASONER: Plaintiff's Exhibit 28. 9 A. It was a loan from an owner, absolutely. 10 Q, (BY MR. REASONER) All right. Sir, Plaintiff's 10 Q, And you knew that that's not something you 11 Exhibit 27 is a promissory note is between you and the 11 could negotiate the terms of with yourself, right? 12 company; is that right? 12 A. I didn't. 13 A. That's correct. 13 Q, Okay. Because you were -- in fact, you were on 14 Q, And as understand what was said during 14 you had interest on both sides of that transaction, 15 opening argument, this was prepared many months later, 15 right? 16 maybe February of the following year; is that right? 16 A. Well, if you think this is the super money 17 A. I'm not sure on your date, but that's correct. 17 making note, you might have to do some -- go into 18 Q. It's consistent with your recollection that it 18 finances a little bit. It's not. This wasn't made to 19 was many months later? 19 be advantageous for the guy loaning the money, which was 20 A. Correct. 20 me and my wife. This loan was made to help our company 21 Q, And so at the time it was just a handshake 21 survive. 22 between you and Mr. Powers, or how did it work? 22 Q. Okay, sir. And that wasn't my question, and we 23 A. That's it. 23 can talk about that in a minute. But my question was, 24 Q, All right. And the amount that you loaned was 24 you understood that you were involved on both sides, 25 $45,000,000 at that time; is that correct? 25 that is, you are a director of the Bay Company and

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A. I believe that's correct. subsidiaries, right? 2 Q. And in looking at it, if we could look at 2 A. Uh-huh, that's correct. 3 Plaintiff's Exhibit 27, it says that under Terms of 3 Q, Yes? And that however generous you might have 4 Payment down about three-quarters of the way down, 4 felt you were being, you -- this was an obligation for 5 "Interest shall be accrued monthly beginning July 31, 5 the company to pay you money, correct? 6 2022, and payable upon maturity. The note is due and 6 A. That would be true. 7 payable in full December 31, 2024." Do you see that, 7 Q. All right. And the rate on the note, if we go 8 sir? 8 down about three-quarters of the way down, it was prime 9 A. Yes, I do. 9 JP Morgan prime plus a quarter, correct? 10 Q, And that and as I understand it' that 10 A. That's correct. 11 indicates that no payments were going to be due at all 11 Q, All right. And do you follow the prime rate? 12 till the end; is that what you understood? 12 Do you read the Wa11 Street Journal, keep up with things 13 A. Yes, I did. Didn't want the stress of the 13 like that? 14 company anymore. 14 A. I'm not. 15 Q. And was this that was memorialized many months 15 Q. Okay. 16 later, was this consistent with the terms that you and 16 A. This is probably equal to 5 point something. 17 Rob Powers agreed to in his office orally? 17 Q, All right, sir. Well, let's see. And would it 18 A. It's consistent with it, yes, it is. 18 be consistent with your recollection that in say July of 19 Q, So when you-all first talked about it, you 19 July 28, 2022, that the JP Morgan prime rate was 5,5 20 agreed that nothing would be owed under it until the end 20 percent; does that sound about right to you? 21 of December 2024, correct? 21 A. It sounds fair enough, yes. 22 A. Actually, the end date probably we did later. 22 Q, Okay. And so adding .25 to that it would be 23 can't recall that. 23 5.75; is that right? 24 Q, All right. But at some point - - 24 A. Sounds correct. 25 A. I planned on putting the money in as long we 25 Q. Okay. And just for comparative purposes

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looking at - - all right. So if you put your money now, Q, All right, sir. Let me ask you now. So look 2 for example, in a two-year treasury, you'd only get 4.2 2 at what has been previously marked as Plaintiff's 3 percent; does that sound right to you? 3 Exhibit 2. And I hope that's before you in the stack. 4 A. I haven't looked at one. 4 MR. REASONER: May I approach, Your Honor? 5 Q, Okay. Do you invest in treasuries? 5 THE COURT: Yeah, go ahead. 6 A. I do not. I invest in our company. 6 Q, (BY MR. REASONER) Sorry, we've made a bit of a 7 Q. All right. Would it surprise you to know, 7 mess of it over the course of the day here. If you'll 8 based on your investment experience, that prime plus a 8 give me just a second. There we are. 9 quarter percent is better than what you can get on a 9 All right, sir. Do you have Plaintiff's 10 two-year treasury? 10 Exhibit 2 before you? 11 A. It wouldn't surprise me either way. know 11 A. Yes, I do. 12 it's a better deal. This is a better deal than IBC had 12 Q. And if we look at the second page of the 13 with us. 13 document and you see that that's the first email is from 14 Q, Okay. 14 Tonja Fulghum to Mr. Klein, Jim Klein? 15 A. For the company. 15 A. First one's from Klein to Tonja. 16 Q, Before revolver banker? 16 MR. REASONER: Oh, and I apologize. I'm 17 A. Yeah. 17 starting out slowly on admission of documents. I'd 18 Q. Yes, sir. 18 offer Plaintiff's Exhibit 27 and 28, please. 19 A. Uh-huh. 19 THE COURT: Anybody over here object? 20 Q, Okay. And we' 11 talk about that. 20 MR. ALLISON: Are they the ones up there? 21 And then looking at Exhibit -- Plaintiff's 21 MR. REASONER: They're the ones that I 22 Exhibit 28, sir, which I think is before you, that's - - 22 already talked about, the two notes. 23 as we talked about, that's your brother Dennis's loan, 23 MR. ALLISON: That's fine. 24 correct? 24 THE COURT: All right. Hearing no 25 A. Looks to be, yes. 25 objection, they're admitted.

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Q, And these loans were not approved at any board Q, (BY MR. REASONER) Back to Plaintiff's Exhibit 2 meeting, were they, sir? 2 2, sir. I apologize for the interruption. But did you 3 A. Not that I'm aware of. 3 indicate that you could see on the second page, there 4 Q, And you would be -- as a member of the board, 4 was a email to Tonja Fulgham to Jim Klein on December 5 you would be if they were approved at a board meeting, 5 21 , 2022? 6 correct? 6 A. don't know how you know that, but I'll take 7 A. Missed one -- missed one meeting since we 7 your word for it. 8 started. 8 Q, Okay. Well, do you see the -- and it -- it's a 9 Q. And you have no reason to believe that it was 9 sad statement on my life that I've looked at many of 10 at that meeting that you missed that these were 10 these. But if you look at the bottom of the front page, 11 approved? 11 do you see it at the bottom there it says, "From Tonja 12 A. No, sir, do not. 12 Fulghum"? 13 Q, Okay. And is it your position that sometime 13 A. Oh, okay, yeah, I didn't see the bottom. I got 14 around the time these loans were made that you discussed 14 it. It's two pages. 15 them with your brother Lawrence? 15 Q. Yes, sir. 16 A. I -- no, I didn't discuss it. didn't discuss 16 A. Okay. 17 them with Lawrence, I didn't discuss them with Dennis. 17 Q, And that it appears to be sent September 21 of 18 I thought this was a private deal. If they wanted to go 18 2022, correct? 19 invest, they knew the condition of the company, and 19 A. I'm sure that's correct, yeah. 20 Dennis did come forth and talk to me, I told you that 20 Q. All right. 21 al ready. 21 A. Yes, sir. 22 Q, All right, sir. But for your part, you 22 Q, And if we go the second page where it carries 23 personally did not ever discuss these loans with your 23 over, it's going to Mr. Klein and Mr. Powers with a copy 24 brother Lawrence? 24 to Lawrence Berry. Are you with me there? 25 A. No. 25 A. Uh-huh.

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Q, Yeah, I'm sorry I she can't - - we can A. Yes, I found that. 2 communicate, "uh-huhR 2 Q, All right. And if we go up to the - - the front 3 A. Yes, sir. 3 page, and we're one up from the bottom on January 16, do 4 Q. but she can't take that down. Thank you. 4 you see that Lawrence Berry responds, "No, the paperwork 5 You see there that Ms. Fulghum asked for a 5 for the $75,000,000 related party receivable on the 6 copy of the current P&L and balance sheet and financial 6 Berry GP books.• Do you see that? 7 information; do you see that inquiry? 7 A. Yes, I do. 8 A. Yes, I do. Yes. 8 Q, And Mr. Powers' response there above, "Okay, 9 Q. And then, if we go to the front, you see that 9 that is not executed yet to my knowledge. I will follow 10 Mr. Klein sends that along on the same day? 10 up and see if it's signed yet.• Do you see that? 11 A. Yes. 11 A. Yes, I do. 12 Q, Okay. And then if we go to the third page of 12 Q, And, in fact, that was accurate, nothing had 13 the document about three-quarters of the way down, do 13 been signed up as of that time, right, to your 14 you see that you can -- that the reader can see an entry 14 knowledge? 15 there, "Notes payable related party 75,590,920." Do you 15 A. believe that's probably correct. 16 see that? I'm sorry, it's about three-quarters of the 16 Q, And when we saw that they were ultimately 17 way down it's under "Liabilities and Equity" along the 17 signed, he was the signatory on behalf of the company, 18 Combined and Consolidated Balance Sheet for the period 18 right? 19 ending July 31, 2022; are you with me there? 19 A. Yes, he was. 20 A. Yes, I am. 20 Q, Because you couldn't sign and it wouldn't be 21 Q, And do you see, as we go down under Liabilities 21 much of a promissory note if you signed in both your 22 and Equity, maybe about 10 entries down, "Notes payable 22 capacity as a director of the company and as a lender, 23 related party 75 plus million." Do you see that? 23 right? 24 A. Yes, I see that note. Yes, I see that note. 24 A. I believe that answers itself, yes. 25 Q, Okay. And as a reader -- I take it you're a 25 Q, All right. Okay. And then, you see that in

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reader of your company's balance sheets, with some response about the middle of that first page, Mr. Berry 2 regularity, aren't you? 2 says, "I know nothing about any of this.• Do you see 3 A. From time to time. 3 that? 4 Q, Yes, sir. And that entry was a reference to 4 A. Now -- now, earlier you told me I was 5 the loans from you and Dennis Berry to the company; 5 Mr. Berry, so now you're talking about Lawrence? 6 true? 6 Q, Fair. 7 A. I'd have to assume that. 7 A. I'm confused. 8 Q, All right. And "related party,• you and -- 8 Q, Fair. I'm going to blame it on the hour of the 9 that's a notation that you and Dennis Berry were both 9 day. 10 board members, correct? 10 Now, you -- 11 A. I'd have to assume, yes. 11 A. Yes, see that. 12 Q. Okay. And the 590,000, was that interest that 12 Q. Okay. So let me ask a clean non-Berry 13 had accrued or what was -- do you know what that -- 13 ambiguous question. This is an email from Lawrence 14 A. I do not know. 14 Berry in the middle of the page to Mr. Powers and he 15 Q. And then let me ask you, sir, to look at 15 says, "I know nothing about any of this." Do you see 16 Plaintiff's Exhibit 1, and I can help if it's not easily 16 that? 17 identifiable in your stacks there. 17 A. Yes, I do. 18 A. One page? 18 Q, And to your knowledge at that time, that was 19 Q, It's a one-pager, yes. 19 true that Lawrence Berry didn't because you hadn't had 20 A. Got it. 20 any discussions with him about it, correct? 21 Q, And this is one that's cut off on over two 21 A. To my knowledge, at that time, I wouldn't know 22 pages so we're going to start at the bottom again. Do 22 one way or the other if he hadn't, if he talked to 23 you see that Mr. Powers sends a -- sends an email on 23 somebody else. 24 January 11, 2023 to Lawrence Berry saying, • Is this what 24 Q, All right. 25 you're looking for?" Do you see that, sir? 25 A. We make company loans -- we make loans without

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the board's knowledge, so that while he would even have Nixon?

2 to find out that way or know if he's got financials, 2 A. Yes, I do. 3 he'd find out. There's other loans in the company, 3 Q. Okay. And I see Mr. Barrera here is president 4 you-all haven't even talk about them here, with other 4 and CEO and he's in Corpus, and then, Mr. Nixon was in 5 institutions today. 5 Laredo; is that right? 6 Q. Okay. But this is a biggie from two of the 6 A. That's correct. 7 di rectors, right, they' re big loans? 7 Q. What was the hierarchical relationship with -- 8 A. They're all big, yes, sir. 8 who was up the chain between the two, how'd that work? 9 Q. Okay. When you say they're all big, you're 9 A. Well, I believe the largest stockholder is 10 talking about the loans from banks and things? 10 Mr. Nixon and he's also chairman of the board. And 11 A. Of course. 11 then, this would be his local representative. I think 12 Q. All right. But you didn't feel like there was 12 they probably have a lot of presidents and CEOs at the 13 any need for you to notify a fellow director that you 13 different banks. 14 had personally made a substantial loan to the company, 14 Q. So he was the president of the Corpus -- 15 correct? 15 A. Gustavo was, yes. 16 A. No, I did not. 16 Q. Yes, okay, fair enough. And as I understand 17 Q. All right. But looking at the top of the page, 17 it, Bay had had a rel at i onshi p, a banking rel at i onshi p 18 do you see that Mr. Klein says to Mr. Powers, "It would 18 over some 25 years with IBC Bank; is that right? 19 be a payable. I would think Marty or Dennis would have 19 A. That is correct. 20 mentioned the loans." Do you see that? 20 Q. And then looking at this letter that we have 21 A. I do see it. 21 before you now, Plaintiff's Exhibit 29, you see that in 22 Q. Okay. But for your part, you have not? 22 that first paragraph there is a commitment to renew the 23 A. I have not. 23 line of credit; is that right? 24 Q. Okay. And just sorry, sir, to close that 24 A. That's correct. 25 loop there on, if you'd get Exhibit 1 in your hands 25 Q. And it does say, "Subject to our receipt and

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again, Plaintiff's Exhibit 1, just at that top exchange review of the final audited financials,R right? 2 between Mr. Klein and Mr. Powers, we don't have any 2 A. That's correct. 3 response from Mr. Powers saying, oh, I told Lawrence, or 3 Q. Which would have for the period ending October 4 anything like that, do we? 4 31, 2022, correct? 5 A. I don't see any on this paper. 5 A. That is correct. 6 Q. Okay. Sir, I'm going to hand you a new 6 MR. REASONER: May I, Your Honor? 7 document here and ask you about the relationship with 7 THE COURT: Ab sol utel y. 8 IBC. 8 Q. (BY MR. REASONER) I'm handing you Plaintiff's 9 MR. REASONER: May I approach, Your Honor? 9 Exhibit 30. Looking at Plaintiff's Exhibit 30, can you 10 THE COURT: Yes, sir. 10 take a moment to orient yourself, sir, and see that this 11 MR. REASONER: Plaintiff's Exhibit 29, 11 contains the audited financials for the period ending 12 PTX29. 12 October 31, 2022? 13 THE COURT: All right. 13 A. I believe that to be true. 14 Q. (BY MR. REASONER) Sir, I've handed you what's 14 Q. All right. And we see as we go to -- and I'm 15 been marked Plaintiff's Exhibit 29; do you see that this 15 just going by these Bates numbers at the bottom, about 16 is a February 24 letter from IBC's Gustavo Barrera to 16 the fourth page the Bates number ends in 603. You see 17 Rob Powers; is that correct? 17 that it's signed by RSM out of San Antonio, correct? 18 A. That's correct. 18 A. I'm not sure that's a signature, but yes, 19 MR. REASONER: I' 11 offer Exhibit 29, 19 whatever that is. 20 Plaintiff's Exhibit 29 into evidence. 20 Q. Whatever that is. It's their stamp or 21 MR. ALLISON: No objections, Your Honor. 21 whatever? 22 THE COURT: Okay. Hearing no objection, 22 A. Yes, sir. 23 it's admitted. 23 Q. All right. And they were your auditors, 24 Q. (BY MR. REASONER) And just so we're clear, I've 24 correct? 25 heard reference -- do you know Mr. Barrera and Dennis 25 A. That's correct.

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Q. And this is the day after the letter that we Q. Okay. And you see here that this is what was 2 just saw in Plaintiff's Exhibit 29 from IBC; is that 2 talked about earlier, which is an email from Gustavo 3 correct? Did you compare the dates? 3 Barrera to Mr. Powers on March 3rd, 2023, indicating 4 A. I'm going to do that if I can find it. I can 4 that his boss Dennis Nixon would like to set up a 5 take your word for it, 5 meeting with the board in the week of March 13. Do you 6 Q. Well , no, no. 6 see that? 7 A. I mean, how do you do that? 7 A. Yes, do. 8 Q. Let's walk through it. If we go, first, to 8 Q. And do you recall this being shared with you, 9 orient us, do you still have Plaintiff's Exhibit 29 9 sir?

10 handy? 10 A. This email, no, sir.

11 A. Right here. 11 Q. Okay. Let me ask, do you recall Mr. Powers or 12 Q. Yes, sir. And that's February 24 -- 12 anyone sharing with you the fact that the head of IBC 13 A. 24th, right. 13 wanted to meet we the directors of Bay? 14 Q. Okay. And then the stamp or the audit letter 14 A. Yes, I do. 15 accompanying the financials from RSM is dated February 15 Q. Okay. And how does - - who told you that? 16 25, the day after? 16 A. Mr. Powers, CEO. 17 A. All right. On the last page, yes, that's 17 Q. And how did you respond? 18 correct. 18 A. I said that's not good. 19 Q. All right. And then i f we go, please, sir, to 19 Q. Okay. 20 the page Bates number Bay 620, 000620. And tell me, 20 A. He's only been here, you know, great 21 when you're with me there, sir. 21 relationship, 20 something years, but he only came down 22 A. I'm there. 22 one time, so I assumed it wouldn't be good. 23 Q. All right. And if we go about three-quarters 23 Q. So you'd not never had any meetings prior to 24 of the way down the page you see it says, "Two unsecured 24 this March of 2023 time frame, Mr. Nixon had never come? 25 notes payable to related parties with monthly interest 25 A. No -- yes, one time.

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payments at New York prime rate plus 0.25%, maturing Q. Oh, I'm sorry, he had come one time before? 2 December 2024, $75,000,000." Do you see that, sir? 2 A. Yes, 1997. 3 It's probably easiest if you just look at the numbers on 3 Q. Okay. And what was - - 4 the right-hand column and find 75,000,000, then you see 4 A. Good on keeping up with customers. 5 the text to the left of it? 5 Q. What was the purpose of that visit? 6 A. Yes, I see it. 6 A. To tell us to sell all these assets and how to 7 Q. And that's -- those related party notes are, 7 run our company. 8 again, your and Mr. Dennis Berry's loans, correct? 8 Q. All right. And was that - - was that issue - - I 9 A. Seems to be, yes. 9 take it from your tone, I take it you didn't agree with 10 Q. And then, i f you could, look at Plaintiff's 10 that advice? 11 Exhibit 5 which should sti 11 be in front of you. 11 A. No, he's a very egotistical man. It was - - I

12 MR. REASONER: Oh, and I'm sorry, Your 12 did we take his advice? We did not take his advice. 13 Honor. If I could offer into evidence the financials, 13 Q. Yes, sir. And so, but I take it that given 14 PTX30? 14 that the relationship continued long after 1997, 15 MR. ALLISON: No objection. 15 gathered that you-all got past the fact that you didn't 16 THE COURT: All right. Hearing none, it's 16 want to follow his advice? 17 admitted. 17 A. It -- he's not in the construction business so. 18 Q. (BY MR. REASONER) And we're back to PTX5. 18 But we -- obviously, it was kind of as long as he stayed 19 A. I have it. Thank you. 19 away, everything was great. We had Mr. Shockley down 20 Q. Oh, good. And you've heard folks -- and you've 20 here locally, he was a fantastic banker and we had a 21 been in -- by the way, you've obviously been in the 21 good relationship. 22 courtroom while Lawrence Berry was testifying, right? 22 Q. Okay. And then, so my point is that the 1997 23 A. Uh-huh. 23 meeting did not lead to a break up or fracture in the 24 Q. Yes, sir? 24 relationship? 25 A. Yes, sir. 25 A. Not at all .

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Q, Okay. And so when you said it was not good, already been marked as Defendant's Exhibit 15, it's a 2 did you discuss with Mr. Powers dates in which you would 2 text exchange. I can come help you if it's not handy. 3 be available to meet with Mr. Nixon? 3 MR. REASONER: May I, Your Honor? 4 A. I did not. 4 THE COURT: Yeah, come on up. 5 Q, Why is that? 5 MR. REASONER: You'd think a text message 6 A. It didn't come up. 6 would stand out there. 7 Q. So he well, I guess I'm trying to understand 7 THE COURT: Plaintiff's Exhibit 15? 8 that, in light of what you said earlier, which is that 8 MR. REASONER: Defendant's 15. 9 Mr. Powers conveyed that Mr. Nixon wanted to meet with 9 THE COURT: All right. 10 the Bay di rectors; is that right? 10 MR. ABSMEIER: I have copies. 11 A. Hr. Powers' exact words was RDennis Dixon wants 11 MR. REASONER: That might quickest if 12 to come down and have a meeting 1 " and I said, RThat' s 12 you've got a copy, Mike, you can hand the witness and we 13 not good," that's all, just it was my opinion. 13 can. 14 Q, Okay. 14 MR. ABSMEIER: Bay 1819. I've written 15 A. And that was it. 15 Defendant's 15 on it. 16 Q, Okay. And so Mr. Powers didn't say, When are 16 Your Honor, do you have a copy of that? It 17 you available, or can -- will you meet with him or 17 doesn't have a sticker. 18 A. Not that I recall. 18 THE COURT: It doesn't look familiar, but 19 Q. Okay. So well - - 19 I' 11 - - I' 11 put Defendant's 15. 20 A. Normally, if you were going to have a meeting 20 MR. REASONER: That might have been the one 21 with the board of directors, it will be on the board of 21 that was only on the screen. 22 directors meeting, that's when we've done it always 22 MR. BALDREE: It was just on the screen. 23 before, so if anybody was coming to meet with us, that's 23 THE COURT: Yeah. Okay. All right. 24 when we meet. 24 MR. REASONER: Doug, we' re going to put a 25 Q, Did you suggest that Mr. Powers, that why don't 25 hard copy in for you.

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we have MR. ALLISON: Thank you. 2 A. Of course not, he's CEO. 2 MR. REASONER: So Defendant's Exhibit 15. 3 Q, Okay. Sorry, sir. I know it's late in the 3 THE COURT: So you're moving to introduce 4 day, but for the court reporter's benefit, and so we can 4 this? 5 hear and understand each other, if you'd make sure I'm 5 MR. REASONER: He al ready did but - - 6 finished with my question. 6 THE COURT: What's your exhibit number and 7 A. Sure. 7 I'll just write it down here for my demonstrative? 8 Q, I' 11 make sure you' re finished with your 8 MR. ALLISON: I think it's 15. It's one 9 answer. 9

10 My point was, when you heard from 10 THE COURT: Oh, okay. 11 Mr. Powers that Mr. Nixon wanted to meet, did you 11 MR. REASONER: I don't have a hard copy. 12 suggest inviting him to a board meeting? 12 THE COURT: Oh, okay. 13 A. No. 13 MR. REASONER: Defendant's Exhibit 15 and 14 Q, Did you suggest anything to facilitate a 14 it was previously admitted. 15 meeting with him? 15 MR. ABSMEIER: They're going to provide a 16 A. No. 16 stickered copy later, Your Honor. 17 Q, Okay. Just said, that's not good, right? 17 THE COURT: Cool. 18 A. That was it. 18 MR. REASONER: And I'm sorry, you-all 19 Q, Okay. Did you have any conversation with 19 produced it. Was this Doug, was this from Ron 20 Lawrence Berry about the request that Mr. Nixon had made 20 Powers' phone? That's my assumption. 21 for a meeting? 21 MR. ALLISON: I believe that's my 22 A. I had a conversation with no one else. 22 assumption as well . I'll bet you he can help you there. 23 Q, All right. 23 I know Rob can, you can try with him. 24 A. No one else. 24 MR. REASONER: Oh, I know, but I'm asking 25 Q. All right. And then, if we look, sir, it's 25 you produced it, I thought you'd know.

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MR. ALLISON: I got the document probably A. That's correct, nor anybody else. 2 the same day you did so. 2 Q. Meaning, nor did you tell anyone else?

3 MR. REASONER: Okay. 3 A. That's what I testified to earlier, yes. 4 Q. (BY MR. REASONER) I'm going to represent to 4 Q. Okay. So you didn't tell Dennis Berry either? 5 you that there is a loose assumption that this is from 5 A. No. 6 Rob Powers' phone, but he has not testified so we'll 6 Q, Okay. And I'm asking, you said you didn't call 7 find that out. But do you see that it's an exchange 7 Mr. Nixon, didn't try to go to Laredo, you didn't do 8 with Gus Barrera, the bottom half of the page being 8 anything to try to repair whatever damage was done to 9 March 13; do you see that? 9 that relationship at that time, right? 10 A. Yes, I do. 10 A. No. 11 Q, And looking at this, you see that he says, "I'm 11 Q, All right, sir. And then let me ask you to 12 picking up," on the morning of March 13, "I'm picking up 12 look at 13 Mr. Nixon at the airport. Assuming no delays, see you 13 A. Can ask you a question? Did you hear my 14 at 10 a.m. Thanks." Do you see that? 14 answer to that question? 15 A. Yes, I do. 15 Q, You said no? 16 Q, And then it says, •Okay, there are no board 16 A. You said I didn't do anything is what you said, 17 members here, they all had to go out of town on urgent 17 right? So I said no. 18 business. I am here and happy to meet with him." Do 18 Q. Ah, well I -- 19 you see that? 19 A. That's what you said. I just want to make sure 20 A. Yes, I do. 20 you understand. 21 Q, All right. And were you -- on the 13th of 21 Q, Yeah. Well , no, that's fair and I appreciate 22 March, were you out of town on urgent business? 22 it. So we were in sort of a double negative mode is the 23 A. I was in -- I guess was out of town. 23 point. 24 Q, On urgent business? 24 A. Uh-huh. 25 A. I was looking at a job in Galveston. 25 Q, And I appreciate that. So let me ask a better

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Q, Okay. And did you know that Mr. Nixon was question. 2 coming to town? 2 What did you do, if anything, to try to 3 A. I did not. 3 repair the relationship with Mr. Nixon? 4 Q, Had no information about that? 4 A. tried to talk him off the cliff but he 5 A. Never, never scheduled. 5 couldn't stop getting over the fact that his man that 6 Q, All right. Did you call Mr. Nixon to figure 6 worked for him all those years, the CEO and president 7 out what the mix up or confusion was? 7 here locally didn't tell him the truth that he didn't 8 A. No, I did not. 8 have a meeting, and he just kept screaming about the 9 Q. Did you attempt to go see him in Laredo? 9 meeting. And finally, I told him I had to get off the 10 A. Did not. 10 phone. 11 Q, Okay. Did you do anything to try to address 11 Q, Okay. So you said you hadn't called him, so 12 the fact that the chairman had flown in from Laredo 12 this was him calling you? 13 where apparently he thought there was a meeting and was 13 A. About a minute after he walked out of the 14 apparently angry that none of the directors was there? 14 meeting. 15 A. So, I'm sorry, could you restate your question? 15 Q. Okay. And he was very upset and you were 16 Q, Yes, sir. I asked, we know that Mr. Nixon 16 trying to tell him that his guy had screwed up and not 17 showed up thinking there was a meeting of the directors, 17 actually scheduled a meeting? 18 with the directors, right? 18 A. I was trying to tell him a lot of things. It 19 A. Yes. 19 was very confusing when he called me because I didn't 20 Q. We know from Mr. Powers that he was upset that 20 know why the heck he was calling me. I took the call 21 no directors were on hand, right? 21 immediately, I said, here's Mr. Nixon calling, let's see 22 A. Yes. 22 what he wants and I took the call. But all he could 23 Q, And we know that you had not told Lawrence 23 talk about is you didn't show up to the meeting. 24 Berry that Mr. Nixon had requested a meeting as you 24 said, we didn't have a meeting, and never heard of a 25 heard from Mr. Powers, right? 25 meeting, nothing was ever said. But he was plenty upset

216 261 263

and I finally told him, I'm sorry, I'm driving and I Q. What were you right about, sir? 2 can't, you know. And he started wanting to go over the 2 A. About the fact that I figured that it was going 3 financials and all the things that were wrong, and you 3 to be the end of our relationship. 4 know, I just had that letter of the 24th that you showed 4 Q. Yeah, it sounds like you were correct, sir. 5 as one of the exhibits here, so was -- I was confident 5 And -- but do you recall there was back and 6 we were going to have a line, but I knew when we hung up 6 forth that took place in order to try to extend the line 7 the phone his little feelings were hurt and figured it 7 of credit in time so that you could find another lending 8 was over with at that moment because he was plenty 8 source?

9 upset. 9 A. Absolutely. 10 Q. And he was kind of chewing you out about some 10 Q. Okay. And were you kept abreast of those 11 of the issues with the financials and otherwise? 11 discussions?

12 A. Mostly just not showing up to his meeting. 12 A. Yes, somewhat, I made myself. 13 Q. Well, you indicated he started going into the 13 Q. I'm going to hand you what has been marked as 14 financials? 14 Plaintiff's Exhibit 31. If I can take 6 back from you 15 A. Then he went into the financials. 15 and we need to replace the court reporter's as 6. We'll 16 Q. Okay. And he had some concerns about some of 16 find it. And here's 31 , Your Honor. 17 those issues; is that correct? 17 THE COURT: Okay. 18 A. That's correct, just - - 18 MR. REASONER: Sorry. Plaintiff's Exhibit 19 Q. Did you have any other conversations or make 19 31. 20 any other efforts to try to address that fracture in the 20 Q. (BY MR. REASONER) In these negotiations, sir, 21 relationship? 21 about the possibility of extending for six months 22 A. I did not. 22 well , let's - - Exhibit 31, do you recall seeing this? 23 Q. Let me ask you to look at Plaintiff's Exhibit 23 This is from IBC's lawyer dated March 28th, 2023, and it 24 No. 6, please, sir. 24 lays out there at the middle of the page, "Subject to 25 A. Have we talked about it yet? 25 the following revised framework, we now propose an

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Q. It's been marked. You and I have not talked extension of the reference loan for six months to 2 about it, sir. 2 October 1, 2023 in order to allow your client to secure 3 A. Okay. I'm just making sure it's in this pile. 3 alternative financing." Do you see that, sir? 4 Q. It should be PX6. I do not have that, see that 4 A. Yes, I do. 5 there? 5 Q. And do you recall looking at this list of 6 THE COURT: I've got one is this what 6 conditions that they laid out? 7 you're talking about? 7 A. I'm sure if I read it closely I'd recall every 8 MR. REASONER: Yes, yes, exactly. 8 one of them but. 9 THE COURT: Do you want to borrow that? 9 Q. Okay. So you say you think you had a 10 MR. REASONER: Oh, I hate to take yours, 10 familiarity with what they were requesting? 11 Your Honor. 11 A. I felt like I have, yeah. 12 THE COURT: That's all right. 12 Q. Okay. 13 MR. REASONER: Appreciate it, Your Honor. 13 A. Yes, sir. 14 Q. (BY MR. REASONER) And, sir, I've handed you the 14 Q. Can we go to 7 on the list, please, sir, which 15 Judge's copy actually of Plaintiff's Exhibit 6. Do you 15 is on page Bay 119. Do you see that it says, "All 16 see that this is a letter from a law firm representing 16 shareholder debt (including the $75,000,000 debt owing 17 IBC? 17 to Berry family members) must be subordinated to all 18 A. Yes. 18 indebtedness now or hereafter owing to the Lender by any 19 Q. And you recall receiving that? 19 of the Borrowers, and no payment whatsoever may be made 20 A. I don't recall receiving it, but I've seen it, 20 on that subordinated debt until such indebtedness has 21 yes. 21 been fully satisfied." Do you see that, sir? 22 Q. Okay. And that this was a notice of default 22 A. did. 23 that was fairly sent out by certified mail the same day 23 Q. All right. So as I read that, they were 24 of the meeting; is that correct? 24 demanding that it be subordinated and that there be no 25 A. It seems I was right, wasn't I? 25 payments made the company on the loans to you and Dennis

217 265 267

Berry; is that correct? A. believe we did come to an agreement on an 2 A. believe that's true. 2 extension. 3 MR. REASONER: Your Honor, I'd like to 3 Q. Okay. But it was just an extension so you 4 offer Plaintiff's Exhibit 31 into evidence, please. 4 could find someone else -- 5 MR. ALLISON: No objection. 5 A. don't know banking laws, and you're talking 6 THE COURT: Okay. Hearing no objection, 6 about an extension, and I don't think you do either, but 7 it's admitted. 7 when people get told, you got a loan, and then the next 8 MR. REASONER: If I can quickly get through 8 day they tell you, you don't have a loan, they weren't 9 these two last exhibits, I' 11 be at a stopping point, 9 not going to give us the extension. It didn't make a 10 Court's indulgence. 10 difference. We also said we wouldn't personal 11 THE COURT: Okay. 11 guarantee. And there were a lot of things we rejected 12 MR. REASONER: Plaintiff's Exhibit 32. 12 here. That a bank with the upper hand would have told 13 MR. ALLISON: 32? 13 you, okay, we're not making the loan. Oh, no, problem. 14 MR. REASONER: 32. 14 They did extend it. Of course they extended it. They 15 MR. ALLISON: If he's offering it' no 15 didn't have a choice but not to extend it. 16 objection. 16 Q. All right. But when we say -- just so we're 17 MR. REASONER: I would like to offer it. 17 speaking the same language -- they extended it for a 18 THE COURT: All right. Then it's admitted. 18 limited period of time so that you can find some other 19 Q. (BY MR. REASONER) Sir, and this is a letter 19 company to borrow from, correct? 20 from Mr. Simank. I may be mispronouncing it. 20 A. Absolutely. 21 THE COURT: Simank. 21 Q. And let me ask you to look now, sir, at -- 22 MR. ALLISON: Simank. 22 MR. REASONER: Actually, this is a good 23 Q. (BY MR. REASONER) Oh, Simank. I apologize. 23 stopping point, Your Honor. 24 haven't met the gentleman. He was Bay's lawyer, right? 24 THE COURT: Yeah, it's about ti me. Okay. 25 A. I believe, yes. 25 We've got a time to come back. We'll see you-all then.

Q. I'm sorry? MR. ALLISON: Thank you, Your Honor. 2 A. Yes, that's true. 2 MR. BOYD: Thank you, Your Honor. 3 Q. And he sends a letter here on March 30 3 MR. REASONER: Are we reconvening on March 4 responding to IBC's lawyer; true? 4 the 8th? 5 A. Yes, that sounds correct. 5 THE COURT: On the 8th, that's it. 6 Q. All right. Let's look, on the second page you 6 MR. REASONER: At 9 a.m. or? 7 see he responds to the item by item list, correct? 7 THE COURT: Yeah, 9 a.m., same kind of 8 A. Correct. 8 thing. 9 Q. And on item No. 7, which is the request that it 9 (Proceedings adjourned.) 10 be subordinated and no payments be made, do you see the 10 11 answer is "Response - Berry rejects the condition." Do 11 12 you see that? 12 13 A. Yes. 13 14 Q. And is that consistent with your recollection 14 15 that Bay rejected that condition? It actually says -- 15 16 A. I really don't remember that we rejected it' 16 17 but I'm looking at it here. I have to assume that we 17 18 did. 18 19 Q. Okay. You don't have any reason to disagree? 19 20 A. Nah, no reason to disagree. 20 21 Q. And ultimately that, as you've alluded to that, 21 22 25-year relationship was not reparable; is that correct? 22 23 Well, it did not -- let me ask a better question. You 23 24 didn't come to an agreement on an extension, didn't you, 24 25 or did you? 25

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THE STATE OF TEXAS 2 COUNTY OF NUECES 3 I, Sara E. Rivera, Official Court Reporter, 4 in and for the 94th District Court of Nueces County, 5 State of Texas, do hereby certify that the above and 6 foregoing contains a true and correct transcription of 7 all portions of evidence and other proceedings requested 8 in writing by counsel for the parties to be included in 9 this volume of the Reporter's Record, in the 10 above-styled and numbered cause, all of which occurred 11 in open court or in chambers and were reported by me. 12 I further certify that this Reporter's Record 13 of the proceedings truly and correctly reflects the 14 exhibits, if any, admitted, tendered in an offer of 15 proof, or offered into evidence. 16 WITNESS MY OFFICIAL HAND, this the 21st day of 17 February, 2024. 18 19 Isl Sara E. Rivera SARA E. RIVERA, Texas CSR 4626 20 Expiration date: 0413012024 Official Court Reporter 21 94th District Court 901 Leopard Street, Room 901.01 22 Corpus Christi, Texas 78401 361-888-0658 23 Email: sara.rivera@nuecescountytx.gov 24 25

219 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Rosa Brennan on behalf of Barrett Reasoner Bar No. 16641980 rbrennan@gibbsbruns.com Envelope ID: 94874370 Filing Code Description: Answer/Response Filing Description: Defendants Response to Motion to Remand, Dismiss, or Transfer Venue Status as of 12/3/2024 2:15 PM CST

Case Contacts

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Barrett H.Reasoner breasoner@gibbsbruns.com 12/3/2024 11:47:08 AM SENT

Michael R.Absmeier mabsmeier@gibbsbruns.com 12/3/2024 11:47:08 AM SENT

Rosa Brennan rbrennan@gibbsbruns.com 12/3/2024 11:47:08 AM SENT

Douglas Allison 1083500 doug@dallisonlaw.com 12/3/2024 11:47:08 AM SENT

Alistair Dawson 5596100 adawson@beckredden.com 12/3/2024 11:47:08 AM SENT

Michael Hummell 10271100 hummellm@bayltd.com 12/3/2024 11:47:08 AM SENT

Michael McClellan 24109525 jmcclellan@beckredden.com 12/3/2024 11:47:08 AM SENT

Sydney Ballesteros sballesteros@gibbsbruns.com 12/3/2024 11:47:08 AM SENT

Madeline Gay mgay@beckredden.com 12/3/2024 11:47:08 AM SENT

Business Court 11A BCDivision11A@txcourts.gov 12/3/2024 11:47:08 AM SENT

Roxanne Graham rgraham@gibbsbruns.com 12/3/2024 11:47:08 AM SENT

Christina Pena cpena@gibbsbruns.com 12/3/2024 11:47:08 AM SENT

Kim Brunkenhoefer kim@dallisonlaw.com 12/3/2024 11:47:08 AM SENT

Susan Gonzales susan@dallisonlaw.com 12/3/2024 11:47:08 AM SENT

Bruce Baldree bbaldree@gibbsbruns.com 12/3/2024 11:47:08 AM SENT E-filed in the Office of the Clerk for the Business Court of Texas

EXHIBIT 7 12/3/2024 11:55 AM Accepted by: Beverly Crumley Case Number: 24-BC11A-0025

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REPORTER'S RECORD INDEX TO WITNESSES TRIAL COURT CAUSE NO. 2024DCV-0045-C 2 2 MARCH 22, 2024 PAGE LAWRENCE BERRY, IN THE DISTRICT COURT 3 Individually and 3 MARTIN MARVIN BERRY (Continued - Adverse) Derivatively on behalf Cross-examination (cont) by Mr. Reasoner...... 13 4 of BERRY GP, INC. 4 Direct examination by Mr. Allison............. 61 Cross-examination by Mr. Huseman .............. 126 5 Plaintiff 5 Recross-examination by Mr. Reasoner ........... 139 Redirect examination by Mr. Allison ........... 150 6 BERRY GP, I NC. , 94TH JUDICIAL DISTRICT 6 Normal Plaintiff JAMES A. KLEIN 7 7 Direct examination by Mr. Boyd ................ 202 vs. Voir dire examination by Mr. Allison .......... 245 8 8 Direct examination (cont) by Mr. Boyd ......... 246 MARTY BERRY, ROBERT RICKETT; Cross-examination by Mr. Allison .............. 257 9 ROBERT POWERS; 9 Redirect examination by Mr. Boyd .............. 262 MICHAEL HUMMELL; Recross-examination by Mr. Allison ............ 262 10 BERRY GP, INC. ; BERRY 10 OPERATING COMPANY, LLC; TONJA FULGHUM 11 and BERRY CONTRACTING, LOP NUECES COUNTY, TEXAS 11 Direct examination by Absmeier.,,.,,.,, .. , .. ,. 264 12 12 13 TEMPORARY INJUNCTION HEARING 13 14 (March 22, 2024) 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25

APPEARANCES: P ROCE E DI NGS March 22, 2024 2 MR. BARRETT REASONER 2 SBOT NO. 16441980 3 MR. MICHAEL ABSMEIER 3 (The following transcription is a SBOT NO. 24050195 continuation of proceedings held on 4 MR. BRUCE BALDTREE 4 February 16, 2024) SBOT NO. 24116064 5 Gibbs & Bruns, LLP 5 Houston, Texas 6 Telephone: (713) 650-8805 6 THE COURT: Okay. We're back. 7 AND 7 MR. ALLISON: Good morning, Your Honor. 8 MR. BUTCH BOYD 8 MR. REASONER: Good morning. SBOT NO. 00783694 9 Butch Boyd Law Firm 9 THE COURT: All right. Part two. 2905 Sackett Street 10 Houston, Texas 77002 10 MR. ALLISON: Your Honor, I don't know how Telephone: (713) 589-8744 11 11 you would like to proceed. I think the things that are AND 12 12 set today, we filed a motion to dismiss, you remember we MR. DOUGLAS A. ALLISON 13 SBOT NO. 01083500 13 had some issues about defective parties, so we filed Law Office of Douglas Allison 14 403 North Tancahua Street 14 what we think is the appropriate motion to dismiss and Corpus Christi, Texas 78401 15 Telephone: (361) 888-6002 15 got that set for hearing. They filed a response, we 16 AND 16 filed a reply. 17 MR. VAN HUSEMAN 17 THE COURT: All right. Huseman Law Firm 18 615 North Upper Broadway, Suite 2000 18 MR. ALLISON: And then we also have a Corpus Christi, Texas 78401 19 Telephone: (361) 883-3563 19 notice for today, the continuation of the -- 20 AND 20 THE COURT: Of what we already started. 21 MS. GABBIE S. CANALES 21 MR. ALLISON: Of whatever we started, the SBOT NO. 24012376 22 Law Office of Gabbie Canales 22 TRO. 5262 South Staples, Suite 100 23 Corpus Christi , Texas 78411 23 THE COURT: The TRO. Telephone: (361) 887-4700 24 24 MR. ALLISON: And -- and the reason I say 25 25 whatever is left of it, I think when we talk about the

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motion to dismiss you' 11 hear, at least me, talk about THE COURT: This is it, all day long. 2 how they really abandoned a lot of their positions, and 2 MR. ALLISON: Yeah. 3 so I think we need to really understand what we're here 3 THE COURT: Okay, so I hope we finish 4 about today. However, and -- and all of that is, 4 today. 5 think, good prelude to whatever we do today, Your Honor. 5 MR. ALLISON: You' re getting my point. We 6 THE COURT: Okay. 6 need a ruling, not just on -- on what we're here on 7 MR. REASONER: Okay. Your Honor, from our 7 THE COURT: I'll give you a ruling. 8 perspective we're happy to argue anything, any time the 8 MR. ALLISON: now. 9 Court wants to hear it. As the Court will recall, we're 9 MR. REASONER: Not just for the TI, Your 10 in the middle of a witness now, we'd like to continue 10 Honor. 11 with that. Frankly, their motion - not to dive into the 11 THE COURT: No. 12 merits of it at this moment - but is basically saying we 12 MR. REASONER: So, we're ready. 13 think we win. We think for these evidentiary -- 13 THE COURT: intend to -- I intend to put 14 THE COURT: mean, it's -- it's almost 14 this piece of the case to bed today. 15 MR. REASONER: -- reasons 15 MR. ALLISON: Okay. 16 THE COURT: almost the same thing. 16 THE COURT: Okay? That's my plan. 17 MR. REASONER: So we think closing, you 17 MR. ALLISON: Got you. 18 know, after both parties put on their evidence, we 18 THE COURT: We don't have anything else. 19 should argue that and we're happy to do it, but 19 MR. ALLISON: Okay. 20 interrupting, you know, our presentation of witnesses, 20 THE COURT: don't have a plea, I don't 21 we don't think is justified. 21 have anything else all day long. 22 THE COURT: No, I agree. We'll finish with 22 MR. ALLISON: Okay. 23 that. mean, it's al most - - it's - - it's part and 23 THE COURT: Okay? So, you know, I mean, 24 parcel of the same thing. 24 will say this: After the last -- after -- after the 25 MR. ALLISON: And I don't - - I - - I hear 25 last hearing, well, I guess it's the same hearing, but

that the -- on some issues yes, and on some issues, no. after we recessed I went through, because it seems to me 2 And the thing I want to be real careful of and however 2 that your -- your position is that you want two things: 3 you want to proceed I'm going to listen, the thing 3 You want -- you want me to restrain them from removing 4 want to be real careful of is remember that the 4 Mr. Berry from the board, that's one; and then two, you 5 original -- we're not just here on a application for TRO 5 want this notice before you sell property, or before 6 or for Tl, we are here because we went up to Houston and 6 property is sold, so that he gets two weeks' notice. 7 we entered into what -- what we thought was a much 7 Now, as I read through the bylaws, and then there was 8 shorter agreement, much more limited agreement. 8 the addendum, I saw that there is a procedure for 9 understand Your Honor said, "No, you' re going to live by 9 removing a board member, okay? So, I will tell you, I'm 10 it," we've been living by it, okay. 10 un-inclined to interfere in that procedure that's 11 THE COURT: Fair. 11 already written. 12 MR. ALLISON: But we've got this agreement 12 I will also say that I saw, and I may have 13 issue out there, which means everything that's in that 13 missed it, okay? I may have missed it, but I saw that 14 original TI - which now they've amended it, they've 14 there is a procedure for acquiring property; in the 15 abandoned most of it - and everything that's in the 15 bylaws, there is a procedure written. I did not see a 16 their motion to modify the TI, most of which they've 16 procedure for selling property. Now, may have missed 17 abandoned, all of those things, we have an agreement 17 it, I may have missed it. And i f there is such a 18 that we need you to rule on those to release us from 18 procedure, well, then you guys point it out to me. 19 THE COURT: Well, I hope we finish today. 19 don't know, okay? And so to that effect, you know, 20 MR. ALLISON: Yeah. Well -- 20 mean, I'll listen to what you've got to say about it 21 THE COURT: mean, I hope. 21 because, you know, you -- you filed your motion, we're 22 MR. REASONER: We're ready. 22 having a hearing, but I'm just telling you that I'm 23 THE COURT: Look, I don't have anything 23 un-inclined to interfere with something that has a 24 else today, 24 procedure written in the bylaws. I'm not saying "No," 25 MR. ALLISON: Okay. 25 I'm just saying I'm very un-inclined.

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MR. REASONER: And, Your Honor, I - - I hear MR. REASONER: Well , before the last TI 2 the Court loud and clear. think we believe that it is 2 hearing, Your Honor, that's not changed, Your Honor. 3 appropriate here, within the Court's equitable power, in 3 MR. ALLISON: That's what they're saying 4 a situation where we have -- we've started to show and 4 now. And the point is they've completely changed the 5 we'll continue to show the Court what's been done here 5 relief. They've gone from, we want a minority rule, we 6 to freeze Lawrence Berry, you know, an effective 6 want the Judge to order that I have that Lawrence has 7 one-third owner of the operation from all information 7 to approve it; now they're saying they want notice. And 8 and that there is inside 8 we've -- we've responded -- I mean, there's nothing 9 THE COURT: Yes. 9 to - - 10 MR. REASONER: so that keeping him 10 THE COURT: I mean, I •• I'm going to get 11 within the Court's equitable power is ordering that he 11 there. 12 at least be kept on the board, so he has that level of 12 MR. ALLISON: Yeah, we'll get there when we 13 information, that that is warranted here and will avoid 13 get there. 14 irreparable 14 THE COURT: We'll get there. 15 THE COURT: 15 MR. REASONER: Okay. And, Your Honor, just 16 MR. REASONER: harm to Mr. Berry. 16 to be clear, that -- that was the same relief before 17 THE COURT: will listen. I'm just -- I'm 17 this TI hearing, when it began. 18 just giving you my thoughts. 18 THE COURT: Got you. 19 MR. REASONER: Understood, Your Honor. 19 MR. REASONER: We have -- we have narrowed 20 THE COURT: As I've heard already a lot of 20 it from our TRO days because we're trying to put 21 testimony at some -- at this point. I've already heard 21 something in place that is protective but least invasive 22 testimony and I've looked through the bylaws and then 22 so -- till we try this case, and I think there is more 23 the addendum. 23 than abundant justification for it. 24 So, with that, I guess let's continue on 24 THE COURT: I'm listening. 25 and then after we're done with that, we will take up 25 MR. REASONER: All right. Thank you.

your motion to dismiss. But it's, you know -- THE COURT: So I guess, Mr. Berry, come on 2 MR. REASONER: All right. 2 back. Get back on the stand. You're still under oath. 3 MR. ALLISON: Because we -- 3 COURT BAILIFF: Please make sure your phone 4 MR. REASONER: We had Mr. Marty Berry on 4 is on vibrate. 5 the stand. Sorry. 5 THE COURT: And watch your step. 6 MR. ALLISON: Yes, Your Honor. We -- we do 6 COURT BAILIFF: And watch your step right 7 think, just in direct response, what they're asking for 7 there, sir. 8 now is totally different than what they originally asked 8 THE COURT: We don't want anybody falling. 9 for, with regard to sell real estate. They 9 MR. REASONER: And, Your Honor, we'd like 10 originally they said •· their pleading was, and which is 10 to invoke the rule, please. 11 where we made our agreement, that their pleading was we 11 THE COURT: Okay. All right, the -- the 12 can't sell real estate unless Lawrence, a one-third 12 rule is invoked. Obviously the parties are -- are 13 person, approves it. So, they wanted minority rule. 13 excluded, their spouses. Is there anybody else here 14 They've now changed that completely. The first time 14 that's a witness? I mean 15 that changed, now they're -- now, you're right, now 15 MR. HUSEMAN: He's a party. 16 they're saying they don't want that -- that veto power, 16 THE COURT: He's a party. 17 they don't want to require approval, they want two 17 MR. HUSEMAN: Yes. 18 weeks' notice. 18 MR. ALLISON: Yeah, Mr. Klein is here and 19 THE COURT: That's what I thought. 19 he is represented -- he is a representative for one of 20 MR. ALLISON: That's what they're saying 20 the entities, Your Honor. know that that's -- I 21 now. 21 forget which one. 22 THE COURT: That's what they're saying, 22 THE COURT: Okay. 23 right? 23 MR. HUSEMAN: GP. 24 MR. ALLISON: That's what they're saying 24 MR. BOYD: For which one? 25 now. 25 MR. ALLISON: For Berry GP.

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THE COURT: Okay. Well, then I guess he Q, Okay. And to refresh on that, we looked at 2 gets to stay there too, but if there are any other 2 page 2, item 7, and that was where the Berrys' lawyer 3 witnesses that -- 3 indicated that you were rejecting the bank's condition 4 MR. REASONER: I'll take your word for 4 that Mr. Berry -- that Mr. -- that your loan and Dennis 5 that. 5 Berry's loan be subordinated to the IBC loan and no 6 THE COURT: -- that happen to walk in 6 payments be made until IBC is paid off. Do you recall 7 MR. ALLISON: Yes, Your Honor. 7 that? 8 THE COURT: the rule is invoked. 8 A. I don't, but that -- that sounds reasonable, 9 All right. So go ahead, continuation. 9 you're in negotiations. 10 MARVIN MARTY BERRY 10 Q, Okay. And you said it was not inconsistent 11 having been previously duly sworn, called as an adverse 11 with your recollection, that you-all had rejected that 12 witness, testified as follows: 12 at one point in the negotiations? 13 CROSS-EXAMINATION 13 A. That's correct. There is a lot of things we (Continued) 14 14 rejected that were unacceptable. BY MR. REASONER: 15 Q, Good morning, Mr. Berry. 15 Q, Yes, sir. And that was about just so we

16 A. Good morning. 16 orient ourselves on the time line here it looks like 17 Q, If we could look, sir 1 at Exhibit 10, 17 it was 11 days, about, after that letter that that 18 Plaintiff's Exhibit 10, it should be among the exhibits 18 you then got this ten million dollar payment; is that 19 that have already been introduced there in front of you. 19 correct? 20 Do you have that before you, sir? 20 A. I -- 21 A. Yes, I do. 21 Q, So, that's just 22 Q, Thank you. This is an excerpt, as I understand 22 A. It seems close, yes. 23 it, from the general ledger of Berry GP that was 23 Q, March 30 and then April 11th; is that right? 24 produced by your counsel. Do you recognize that format, 24 A. That's correct. 25 sir? 25 Q, And there was not any board approval of the ten

A. I don't, but i t if that's what i t is. million dollars being paid to you, was there, sir? 2 Q, Okay. You have no reason to doubt that's what 2 A. There doesn't have to be. 3 i t is? 3 Q, And I had a different question, sir. Your 4 A. Not at all. 4 counsel is here, wi 11 be able to ask you 5 Q, And do you see that this document shows that on 5 A. Sure, sure. 6 April 11th, a principal payment on the loan from you to 6 Q, -- whatever you want to go into. 7 the company that we've talked about - was made to you 7 A. Sure. 8 in the amount of ten million dollars? 8 Q, My question was, there was not any board 9 A. Yes, I do. 9 approval of the payment of ten million dollars, was 10 Q, And that's consistent with your recollection 10 there? 11 that you received ten million dollars around this time, 11 A. Not that I'm aware of. 12 April 11th -- 12 Q, And you did not discuss the repayment of ten 13 A. Yes -- 13 million dollars, to you, with Mr. Lawrence Berry, did 14 Q, 2023? 14 you, sir? 15 A. it is. 15 A. No, I did not. 16 Q, All right. And if we could - - if we could get 16 Q, And if we look at Plaintiff Exhibit 27, sir, 17 back in our rhythm of making sure we're not talking over 17 that was a copy of the note, of your note that we looked 18 each other, for the Court reporters's benefit. 18 at, sir, Do you recall that, sir? 19 And if we look back for a moment, sir, if you 19 A. Yes, I do. 20 could look at 32, Plaintiff's Exhibit 32. That was the 20 Q, And in looking at the terms of payment there, 21 letter, just to orient you, that was the - - the letter 21 about three quarters of the way down the page, we saw 22 from the Berry entities' lawyer in the negotiation with 22 that no payments were due until the end of the note, 23 IBC that we saw on March 30, 2023. Are you with me 23 which was December 31, 2024; is that right, sir? 24 there, sir? 24 A. Yes. 25 A. Yes, I am. 25 Q, And so, the ten million dollars that was paid

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to you was not required to be paid under the terms of Q, All right. And if we go to the - - the front 2 the note, was it? 2 page of that document, near the bottom of the page, you 3 A. And you have to understand this note was made 3 see it says: We have not been repaid for our loans and 4 way after our original agreement. had an agreement 4 are unlikely to recover our loan any time soon. 5 with the CEO that I had to pay taxes on this money. 5 You see that, sir? 6 was wi 11 i ng to leave it there, but had to take money 6 A. Absolutely. 7 out for taxes. If you look at the date of April, you'll 7 Q, All right. And was that -- 8 find that's right before tax-paying time, and he knew he 8 A. Do you think it's different than that? 9 had that little bit of money that he was going to have 9 Q. Sir, let me -- 10 to pay me back, to pay taxes. So, I got that money back 10 A. You think it's different than that? 11 from him. That's not a loan repayment, that's a - - 11 Q, Let me get a question out for you, if I could. 12 that's getting money to pay my taxes. said, "You want 12 A. Okay. 13 it all, or do you just want part of it? I' 11 do 13 Q. Do you believe that was an entirely accurate 14 whatever. We're -- we're needing cash flow in this 14 statement, sir? 15 company." 15 A. think it's totally accurate. When you get 16 Q, Okay. 16 repaid for your loan, you have no loan, I was not

17 A. "So, what do you want?" And he told me, "Let 17 repaid for my loan. 18 me have it all. I'll pay you back when your tax time 18 Q. All right. Would it - - would it have been more 19 comes." said, "No problem. I just want my tax money, 19 accurate, sir, to perhaps say that it has not been 20 and we' 11 leave it, and let it ride." 20 entirely repaid? 21 Q, Okay. And let's break that down, if we could, 21 A. It could probably be more accurately stated a 22 sir. So, the little bit of money you're talking about 22 number of ways. 23 is the ten million dollars? 23 Q, Okay. 24 A. That's correct. 24 A. But, you know, it wasn't made to deceive 25 Q, All right. And we agree that in the written 25 anybody.

note there is no provision for a payment of ten million Q, All right. 2 dollars, along the way to you; is that right? 2 A. The fact is, no loan repayment had been made. 3 A. That's correct. 3 Q. Okay. 4 Q. Okay. But the point you're making is, in the 4 A. I have not been repaid of my loan. 5 handshake deal that you had with Mr. Powers to loan 5 Q, Well, hold on. "No loan repayment had been 6 money, you had talked about a ten million dollar payment 6 made. Partially, right, ten million bucks? 7 being made for tax purposes; is that correct? 7 A. I'm not great with English maybe, but 8 A. told him it would probably be around ten 8 repayment, to me, is when you pay it. 9 million dollars, yes, I did. 9 Q. Full repayment. 10 Q, Okay. And -- and again, just so we're clear, 10 A. And I haven't been paid. 11 that -- that loan was not anything that went before the 11 Q, Okay. 12 board or was discussed with Lawrence Berry; correct? 12 A. So, you know, we can jostle words back and 13 A. It was not. 13 forth, but the fact was, I believe I stand exactly by 14 Q, Okay. And do you recall, sir, swearing out an 14 this, and so far I'm a hundred percent correct, I 15 affidavit, when this case was initially pending in 15 haven't been repaid. 16 Harris County, Texas? 16 Q. A11 right , sir. We 11 , and just so we' re - - 17 A. Yes, I do. 17 just so we' re cl ear, you could get 30 million bucks and 18 Q, Can you go -- can you look with me at 18 you wouldn't have been repaid, under your analysis; 19 Plaintiff's Exhibit 9 in your stack, please, sir. Are 19 right? 20 you with me there, sir? 20 A. I wouldn't have been repaid, that's correct. 21 A. Yes, I am. 21 Q. Okay. 22 Q, All right. And that is an affidavit that you 22 A. You're getting good at math, that's correct. 23 swore to, looking at the date here on page 3, December 23 Q, Well, no that's -- that's something I'm fairly 24 7, 2023; correct? 24 not for, sir, so I'll -- I'll take that one. But at any 25 A. Yes, that's correct. 25 rate, your -- if I read this affidavit, I would not know

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you'd gotten a substantial payment on the loan, right? in your mind, I guess it was accurate in your mind 2 A. guess in your interpretation, that would be 2 because you-all are, in effect, beneficial shareholders 3 true, yes. 3 of Berry GP, Inc.; is that right? 4 Q. Would you be able to tell, from reading it that 4 MR. ALLISON: Objection, Your Honor, 5 way? 5 think he is asking for really a legal conclusion. 6 A. Would I be able to tell? 6 MR. REASONER: I'm asking why he swore to 7 Q. Would you be able -- 7 this, Your Honor. 8 A. Of course I'd be able to tell. 8 THE COURT: Well, then ask that. 9 Q. Well, could you know -- 9 A. Well 10 A. I'm the one that wrote the affidavit. 10 MR. ALLISON: I think he needs to rephrase 11 Q. Well, how about somebody reading it who doesn't 11 his question. 12 have the benefit of that? How about somebody who 12 Q. (By Mr. Reasoner) Well, sir 13 doesn't know how much money you'd gotten? 13 MR. REASONER: Your Honor, may I ask that 14 A. I don't -- I don't know if they'd know the 14 question? 15 exact numbers, you're probably correct, that doesn't say 15 THE COURT: Yes, ask the question. 16 anything about how much interest you got or anything 16 MR. REASONER: Okay, thank you. 17 else. 17 Q. (By Mr. Reasoner) My question, sir, did you 18 Q. And it doesn't say you'd gotten any money back, 18 believe that you and your brother were beneficial 19 right? 19 shareholders of Berry GP, Inc. , because you owned shares 20 A. That's right. 20 through another entity? 21 Q. All right. 21 A. What do you -- what do you mean by 22 A. If that's what you if that's -- no repayment, 22 "beneficial"? I've never heard of that. 23 I'll just say it's no repayment. 23 Q. You never heard that, beneficial 24 Q. Okay. I' 11 leave the subject, sir, but it 24 A. Never heard -- 25 doesn't say you'd gotten any money back here, does it? 25 Q. -- ownership?

A. It doesn't say -- it says what it says. A. -- beneficial. No, I haven't, 2 Q. Does it say you'd gotten any money back? Just 2 Q. Okay. 3 so we close the subject. 3 A. You mean shareholders? 4 A. No, it doesn't. 4 Q. All right. Well, let's just say, in your own 5 Q. Okay. And then let me ask you to look, sir, at 5 words, why did you swear that you were a shareholder of 6 the top of this page, the top of the affidavit, and this 6 Berry GP, Inc.? 7 is -- this is on behalf -- this is an affidavit you and 7 A. It was just a -- it was a -- it was a mistake. 8 your brother Dennis Berry did; correct? 8 It was a mistake. We own there's only three owners 9 A. That's correct. 9 in all these companies, no matter how -- we own 10 Q. Okay. And so when it says "we" it's talking 10 companies that own companies, so there is only three 11 with the two of you-all, I guess? 11 people involved, and three other entities involved in 12 A. That's correct. 12 all these companies; that's it, there's nobody else. 13 Q. Yeah. In the second sentence you say: We are 13 So, if I'm swearing that we're shareholders and in fact 14 shareholders and directors of Berry GP, Inc., and 14 it's owned by a company that owns this company, it was a 15 multiple related entities. Do you see that? 15 mistake, just like you made a mistake in your pleadings 16 A. Yes. 16 when you started this case. 17 Q. And was that -- was that statement accurate, 17 Q. Okay. 18 when you swore to it? 18 A. So it's easily done, when you don't have a 19 A. It was probably accurate in my mind at the 19 chart. You have to look at it. 20 time, but it's probably not accurate. I mean, you need 20 Q. Sir, believe me Mr. Allison is chomping at the 21 a flow chart to look at this, to understand the 21 bit to let you argue with me, but if you'll just focus 22 companies. You know, LOMA is a -- is the top of it and 22 on my questions right now, we'll get through this a lot 23 that's -- that's a -- that's the partnership, so 23 more quickly. 24 missed that. 24 MR. ALLISON: Objection, sidebar, but I'll 25 Q. Okay. Well , so and if you say it was accurate 25 move on.

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THE COURT: Sustained. have a running objection to call for a legal conclusion, 2 Q, (By Mr. Reasoner) Now, sir, the -- as you 2 but I understand he's acting in a nonlegal sense. 3 alluded to, the Berry GP shares are actually directly 3 THE COURT: I'm -- yeah. I mean, -- I 4 owned by the LOMA entity; correct? 4 think it's a fair question to ask what you own and what 5 A. That's correct. 5 you don't. 6 Q, And you have a one-third ownership interest in 6 MR. ALLISON: I -- and I'm -- I just don't 7 LOMA; is that right? 7 want it to be interpreted later as though he is claiming 8 MR. ALLISON: Objection. Well -- 8 to be a legal expert, saying that's what really is -- 9 A. do -- I do not think so. 9 THE COURT: No, get that. 10 Q, (By Mr. Reasoner) Okay. How much do you 10 MR. ALLISON: All right. 11 believe you own, either directly or indirectly, of LOMA? 11 THE COURT: But I think, I mean, I think 12 A. I believe it's in the 20 percentile, but I 12 it's a fair question to ask what percentage of this 13 could be wrong on that, but I think that's about it. 13 company you own and what you don't. 14 Q. Okay. And who owns the rest of it, in your 14 MR. ALLISON: That's why I said, I just 15 view? 15 wanted -- I didn't want to keep -- 16 A. A trust. 16 THE COURT: All right. 17 Q, Okay. And why I said indirectly or directly, 17 MR. ALLISON: -- interrupting. I just -- 18 is it the case that in terms of personal ownership and 18 whether it's a running objection, I just wanted to - - 19 trusts, for the benefit of you or your immediate family, 19 THE COURT: All right. 20 that you would own a third of LOMA? 20 MR. ALLISON: understand to make sure -- 21 A. Yes, I guess that would be correct. With 21 THE COURT: Fair enough. 22 with them together, think I do own a third; yes, 22 MR. ALLISON: we were understanding he 23 that's correct. 23 is answering it in his capacity -- in his capacity at 24 Q. Yes, sir. And -- 24 this time. 25 A. But they're separate, they're completely 25 THE COURT: To the best of his ability.

different. MR. ALLISON: To the best of his ability, 2 Q, Who is completely different, sir? 2 right. 3 A. The trusts are different than an entity. It's 3 THE COURT: All right. 4 an entity, it's not me, but personally I own 20 4 Q. (By Mr. Reasoner) All right. Mr. Berry, just 5 something percent. 5 going back, I think you said you do own a third of 6 Q, Understood, understood. And with the same 6 Becon, but it might be partly through a trust? 7 description, sir, about either personally or through a 7 A. That's correct. It might be partly through my 8 trust benefiting them or their immediate family, would 8 trust, control a third of it. 9 Lawrence and Dennis Berry, settling out his estate, each 9 Q. And with that same caveat, that it might be 10 also own a third of LOMA? 10 partly through trust, do Lawrence Berry and now the 11 A. Yes, I believe that's true. 11 estate of the Dennis Berry also own a third of Becon? 12 Q, And help me with the pronunciation, is it 12 A. As long as their trust is in their control I 13 Becon? 13 believe that's true, yes, I believe that to be a true 14 A. Becon. 14 statement. 15 Q, Becon, okay. Does Becon -- that's the GP of 15 Q, And so I want to ask you about the decision 16 LOMA; is that correct? 16 to -- to market for sale the Berry dock and adjacent 17 A. I believe that's correct. 17 property for a moment, and to orient us, can you look at 18 Q, And again, you own a third of Becon; is that 18 Plaintiff's Exhibit 11, please, sir. 19 right? 19 A. Got it. 20 A. That would be correct. 20 Q, Are you with me there, sir? 21 Q. And similarly 21 A. Yes. 22 A. Well, once again, it's -- do I own a third of 22 Q, And do you see that this is a letter to the 23 it? own 20 something percent. 23 then CEO of the Port of Corpus Christi from Robert 24 Q, Okay. 24 Rickett of Berry GP? 25 MR. ALLISON: And, Your Honor, can I just 25 A. Yes, I do.

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Q, And the date on this one is May 30, 2023; is probably wouldn't have to have a map to show us where 2 that right? 2 it's at. 3 A. Correct. 3 Q, All right. Let me - - let me get a question out 4 Q, And as I understood it Mr. Rickett, on behalf 4 and then you take your position, sir. 5 of Bay, was -- was letting the Port know that the Berry 5 My question was: Do you recall seeing, in any 6 dock and adjacent property was being offered for sale; 6 PowerPoint, a indication or presentation about the sale 7 is that right? 7 of the dock and adjacent property, in that time frame? 8 A. That's correct. 8 A. No PowerPoints. 9 Q, And I take it you were a part of the decision 9 Q, Okay. And what was the rationale, sir, behind 10 to sell it? 10 offering the dock and adjacent property for sale, in 11 A. The whole board was. 11 your view?

12 Q, The whole board was, all right. When -- when 12 A. It tied up capital that doesn't justify the 13 was the board meeting at which that decision was taken? 13 income we're getting for it. 14 A. There's been a lot of board meetings. We have 14 Q, I'm sorry, I couldn't hear. It doesn't -- 15 one every -- I would say since this is in May, think 15 A. Capital tied up in a property that -- that 16 it was February of that same year that we talked about 16 doesn't justify the income for it. You look at the 17 offering it to Valero, offering it to our neighbors, 17 income you have coming in every year over the past ten 18 offering it to the Port. 18 years and you evaluate it, is it worth this or worth 19 Q, All right. 19 that. And if you got an offer for something much 20 A. Unanimously, I might add. 20 greater, then, you know, you take your money and 21 Q, And your -- your belief is that took place in 21 reinvest it in something that would produce more money. 22 February of 2023? 22 Q, And it's your position that -- that Lawrence 23 A. I could be wrong on that part, the exact date, 23 Berry was aware of this and was in favor of it; correct, 24 but yes, that's my belief. 24 sir? 25 Q, In your view, obviously sometime before May 30, 25 A. A hundred percent.

2023; correct? Q, All right. But you don't have any documents 2 A. Yes. 2 you could point to, to show us that; is that correct? 3 Q, Have you seen, sir, any documentation, any 3 A. No, I don't. 4 board presentation, board minutes, or any other sort of 4 Q, Okay. So looking at our -- our time line here, 5 document indicating board knowledge or approval of this 5 just so we have it, we looked at that letter on -- on 6 offer for sale? 6 March 30, 2023, that letter, that was PTX32, the letter 7 A. We weren't -- at that time before the lawsuit, 7 from the lawyer rejecting the -- the subordination and 8 our company was probably too laxed, and I would ask you 8 no payments issue that IBC was asking for; do you 9 the same thing, there is no -- there is no 9 remember that? 10 documentation. 10 A. Uh-huh. 11 Q, Uh-huh. 11 Q, Yes? 12 A. We had our meeting, we talked about it, and the 12 A. Yes, that's correct. 13 CEO was supposed to go forward and go look for offers. 13 Q, So, that's March 23. And then we go a little 14 Q, Well, my -- 14 bit further, we saw on April 11, 2023, in PTX10, that's 15 A. And that's what we did. So, do we have any 15 when you get the -- the ten million dollar payment, 16 documents? We don't have any documents to say one way 16 right? 17 or the other, that I'd be willing to bet. 17 A. Correct. 18 Q, Well , and let ask you this, though, sir: Back 18 Q, We saw that. And then we just now looked at 19 in those days, though, correct me if I'm wrong, but I 19 PTX11, that's May 30, the dock being offered up for 20 believe I have seen PowerPoints, presentations, that 20 sale; is that right? 21 would be made on issues that were going to be considered 21 A. That's correct. 22 by the board at a particular meeting; is that consistent 22 Q, Okay. Let's look at one other document that we 23 with your recollection? 23 saw last time, and that is a Defendant's exhibit, 24 A. That would be consistent. But on a piece of 24 Defendant's Exhibit 5, Can you see if you have that 25 property that would have been around our whole life, you 25 near you, sir. Defendant's Exhibit 5. Is that there,

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sir? Or if it's not, I'll -- I'll go hunt it down for expected limitations on anything being paid on your loan 2 you. 2 before Frost is paid off. Do you see that? 3 A. Can you tell me what it is? All these just say 3 A. Yes. 4 "Exhibit" or "Defendant's Exhibit". It doesn't say a 4 Q. And this -- if you look at the top, this is 5 number. 5 effective August 1, 2023; correct? 6 MR. REASONER: May I approach, Your Honor? 6 A. Correct. 7 THE COURT: Yeah. 7 Q. So, am I right, sir, that between May 30, at 8 A. There is no numbers. 8 least when we see that the Port was offered the -- the 9 Q. (By Mr. Reasoner) Sorry, sir. This is what it 9 dock and adjacent property, and August 1 of 2023, there 10 looks like. It's a series of bank documents. Do we 10 would have been no prohibition on proceeds from the sale 11 oh 1 here we go, Defendant's Exhibits. May I, sir? 11 of the dock and adjacent property being used to pay off 12 A. Yeah, sure. Same thing this one says. 12 the loan from you and Dennis Berry; is that true? 13 Q. Here we go. 13 A. I'm not sure if that's true or not because this 14 A. Okay. 14 is the property that holds thought this property, 15 Q. I'll just keep this Defendant's stack right 15 or I believe this property is in the Frost line, so I'm 16 over there, All right, sir, Are you with me on 16 not sure on that date. I can't -- I don't know. 17 Defendant's Exhibit 5? 17 Q. Well, was there a subordination agreement that 18 A. Yes. 18 you had before August 1 of 2023? 19 Q. And looking at this, you see this is a 19 A. I don't recall . 20 collection of bank documents? 20 Q. Okay. So you don't know of any prohibition 21 A. Yes. 21 before this? 22 Q. And if we go to page, Bay 13, those Bates 22 A. I don't recall . 23 numbers in the lower right hand corner, it's the - - the 23 Q. Changing subjects, sir, do you own a company, 24 subordination agreement. 24 along with your wife, called Western Gulf Equipment, 25 A. Yes, that's what I'm looking at. 25 LLC; is that right?

Q. Okay. You'll see that this is your -- this is A. Yes, I do. 2 your subord -- personal subordination agreement with 2 Q. And let me ask you to look at Plaintiff's 3 Frost; is that correct? 3 Exhibit 18, which is already in evidence. It should be 4 A. Oh, I'm sorry. You got another one you're 4 in your stack there. You with me there, sir? 5 looking at? 5 A. Yes. 6 Q. No, no. It's Defendant's Exhibit 5. Right - - 6 Q. And the first page is a certificate of 7 MR. REASONER: Sorry, Your Honor, may I? 7 formation of limited liability company and the filing 8 THE COURT: Yeah, yeah, go ahead. 8 date on that is February 7 of 2019, it's in the upper 9 Q. (By Mr. Reasoner) Okay, here we go, sir. For 9 right hand corner. Did you see that, sir? 10 me, it's the third page of the document. Let me see. 10 A. didn't hear your question. Yeah. 11 Well , we've got a Bay 11 , let's go to Bay - - oh, these 11 Q. Oh, I'm sorry, well, just let me know. 12 are single-sided, that's the difference. Yeah, Bay 13. 12 A. I'm looking at it. 13 There we go. You with me there, sir? 13 Q. Let me know when you don't. I was just going 14 A. Yes. 14 to say, sir, do you see in the upper right hand corner 15 Q. And 15 that the filing date on this was February 7, 2019? 16 A. But I can't tell this is Frost, without reading 16 A. Yes, I do. 17 it. 17 Q. Okay. And was that •· was that the first time 18 Q. Take -- take a moment. It's -- it's in the 18 that Western Gulf was formed, or was this just another 19 first couple of lines. 19 iteration of a previously existing company? 20 A. Okay. 20 A. From my recollection, this is the first time it 21 Q. You see that's the agreement between you 21 was formed. 22 personally and Frost Bank; correct? 22 Q. Okay. And it shows you at this point in the 23 A. Correct. 23 initial filing as the manager, correct? 24 Q. And it's a subordination agreement. And if you 24 A. That's correct. 25 look down in paragraph number 2 there, it's got the 25 Q. And then if we turn to the second document in

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your stack here, do you see that there is a document Q, Ah, okay. We're on to it, we're on to it now. 2 entitled -- again, we're in -- still in this Plaintiff's 2 Is Bay Canada -- was the reason you didn't include that 3 Exhibit 18. The second document, "Statement of change 3 in your previous answers is because Bay Canada is not a 4 of registered office or agent". Do you see that, sir? 4 related entity to the Berry companies? 5 A. Yes. 5 A. It's just owned by the brothers. So I don't -- 6 Q, And the filing date on that is in the upper 6 don't -- it's not part of the LOMA. 7 right hand corner again, February 4, 2020; true? 7 Q, Okay, fair enough. Well, we got there 8 A. True. 8 eventually. 9 Q. It shows Mike Hummell had become the registered 9 A. You did. 10 agent for Western Gulf Equipment; is that right? 10 Q, Was it -- you made me work at it, though. 11 A. That's correct. 11 A. Well -- 12 Q, And then if we look at the last three documents 12 Q, So, let's see where we are now. So, Western 13 here, they are all Texas franchise public information 13 Gulf bought part of a crane, along with Bay Canada, 14 reports for 2021, 2022, and 2023; is that right? 14 which was owned by the Berry brothers; is that right? 15 A. That's correct. 15 A. Correct. 16 Q, And that -- those show you and your wife as the 16 Q, Correct, okay. And when was that, sir, if you 17 managers; true? 17 remember?

18 A. True. 18 A. February or March of 2019. 19 Q. And as we talk about ownership, as we have been 19 Q. Okay. And were there any other - - after that 20 earlier, do you and your wife directly own Western Gulf 20 one crane, were there any other joint purchases of that 21 Equipment, LLC? 21 kind? 22 A. Yes, we do. 22 A. No. 23 Q, And was that -- was Western Gulf Equipment 23 Q, Now, did -- on its own, did Western Gulf 24 originally set up to make a joint purchase between you 24 Equipment subsequently buy additional cranes? 25 and Bay of a crane? 25 A. Yes.

A. No. Q, How many, over time? 2 Q, Okay. Well , let me - - let ask a broader 2 A. I believe six. 3 question. Was there a time when you personally went in 3 Q. And has Western Gulf Equipment rented -- rented 4 on buying a crane with Bay or another Berry company? 4 those cranes back to -- to Bay? 5 A. You're going to have to define "Berry company" 5 A. Yes, they have. 6 for me. 6 Q, Let me ask you to look, please, sir, at 7 Q, Well, and I don't want to miss you just by not 7 Plaintiff's Exhibit 17, previously admitted. And and 8 being precise. 8 as I understand it and forgive the -- the fine print 9 A. Because you're not precise enough, I'm just 9 here, but is this part of a document that shows 10 telling you. 10 payments, ledger sheets showing payments by Bay? 11 Q, Well, that's one of my crosses to bear, sir, 11 A. I believe it to be true. 12 but I guess my question is, broad as you want to make 12 Q, Okay. And then if we look, about a third of 13 it, did you ever personally buy a crane, along with any 13 the way down the page, do you see that Western Gulf 14 Berry-related entity? 14 Equipment, your company, is listed as a payee there in 15 A. No. 15 the left hand column? 16 Q. Okay. Oh, well, yeah, that's -- my co-counsel 16 A. Yes. 17 is more awake than I am, I said "personally". Did -- 17 Q, And am I right, sir, in looking at this, this 18 did Western Gulf ever buy a crane, along with any Berry 18 appears to cover a three-month period, is that right, 19 entity? 19 July, August, and September of 2023? 20 A. No. 20 A. I'm not sure how you know that, but I'll take 21 Q. Did you ever buy -- did Western Gulf ever buy 21 your word for it. 22 part of a crane? 22 Q, Well, I'm just looking at the -- if you go with 23 A. Yes. 23 me, under the Western Gulf section, do you see that it's 24 Q, Along with whom? 24 July 1, 2023, and it's entered that way seven times; and 25 A. With Bay Canada, a group out of Canada. 25 then August 1, 2023, seven times; and then September 1,

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2023, seven times. Do you see that? Q, Okay. So this is just one slice of the 2 A. No, sir, do not. 2 payment? 3 MR. REASONER: May I? 3 A. Yeah. It's just a -- it's just a slice, where 4 A. see -- 4 they're actually paying. 5 THE COURT: You may. 5 Q, Okay. And so when they don't pay, I guess that 6 A. I see October. If you look with your 6 becomes debt that Bay owes to your company, Western Gulf 7 glasses a little closer, you'll see it's July -- I mean, 7 Equipment; is that right? 8 it's July, August, and October. 8 A. That's correct. g Q. (By Mr. Reasoner) I thought September was the g Q. And let's look, please, at Exhibit 33. 10 9th month. 10 MR. REASONER: May approach, Your Honor? 11 A. Well, mine says "10" on it. I don't -- show me 11 THE COURT: You may. 12 where you're looking at. 12 MR. REASONER: Thank you, Your Honor. 13 THE COURT: Why don't you show him. 13 THE COURT: Thank you. 14 MR. REASONER: May I? 14 Q. (By Mr. Reasoner) Plaintiff's Exhibit 33, sir, 15 THE COURT: Yeah, yeah, yeah. 15 is a -- is from a spreadsheet produced by the company 16 Q, (By Mr. Reasoner) I could probably upgrade 16 here, a cash requirements report, and this is just an 17 these glasses, sir, in your defense, that's true. 17 excerpt from it. Is that -- is the cash requirements 18 A. I'm looking here. I see this, 7, 8 and 1O. 18 report, is that the type of document you've seen before? 19 Q. Okay. So we're looking at different columns. 19 A. have not. 20 I'm looking here. 20 Q, You are aware that the company keeps such a 21 A. Okay. 21 report, aren't you? 22 Q, 7, 8 and 9; do you see that? 22 A. Of course. 23 A. Yeah. can see that now, yeah. 23 Q, And looking at -- you see here that there 24 Q. Okay. And perhaps it's -- 24 are there is additional periods of time where amounts 25 A. Which column means what? 25 owed to Western Gulf Equipment are tracked; is that

Q, Well, I'm -- I'm talking to one of the owners correct? 2 of the company, that's what -- maybe we can get to the 2 A. Yes. 3 bottom of it. Do you - - do you know which column 3 Q. And then looking at the -- the second page on 4 reflects what on this? 4 the total for this period of time, you see that it shows 5 A. I do not. The man back there in the back 5 here 4.321 million dollars? 6 probably does real well, though. 6 A. Yes. 7 Q, Okay. Well , we' 11 hear from him. But looking 7 Q, Yes, all right. And is that -- and it looks 8 at this, sir, as you would read it, and I understand 8 like if we -- if we look here over this period, it's 9 that -- that you're not the CFO, but does it appear that 9 there is some entries from late 2023 and then March 10 in total, at least over this period of time, there was 10 2024; you see that, sir? 11 1,347 million paid, from Bay, to your Western Gulf 11 A. Yes, did. 12 Equipment Company? 12 Q, And is this -- what -- does the 4.3 million, 13 A. Without having any titles on this or anything 13 does that reflect an amount owed to your company? 14 else, I would assume that's what the -- that's the -- 14 A. I can't answer that with accuracy because 15 the number it adds to. 15 know it's a large number that's been owed because they 16 Q. All right. And as the owner of Western Gulf, 16 haven't paid si nee, I think, June or July of last year, 17 does that -- does that income, over a period of -- of a 17 so it's quite a bit of money. 18 few months, does that sound consistent with what you've 18 Q, Haven't paid you anything since June or July of 19 been seeing over the years? 19 2023? 20 A. Not at all . 20 A. That's what I recall, yeah, yes, sir. 21 Q. Okay. Is it high, low? 21 Q. But that that debt is being tracked and 22 A. We go months without any pay, and then we go 22 growing, correct? 23 months where you make a payment up and it might be 7 or 23 A. Absolutely. 24 $800,000, So, to say it's consistent with what I'm 24 Q, And let me ask you, sir, the period when -- 25 seeing, no, it's not. 25 prior to this lawsuit when you were renting -- well,

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when Western Gulf Equipment was renting cranes to Bay, Q, Fair enough, 2 was that something that was ever approved by the Berry 2 A. I'm keeping up with the finances in the 3 board? 3 company. It's your fiduciary duty as a director of the 4 A. Which time period are you referring to? 4 company to know what's going on. If you don't want to 5 Q, Well, let's -- well, we're looking at mid 2023. 5 ask for the documents to get them, that's -- that's 6 Was that -- were those rental was the fact that you 6 fine. He's produced his -- our CFO produces a lot of 7 owned a company that was renting cranes to Bay, was that 7 stuff that my brothers frankly never -- never asked for. 8 something that was raised with and approved by the board 8 It's just - - it's just part of it, but they knew about 9 of Berry? 9 this, this was something that went through because it 10 A. Not required to be approved and it wasn't. 10 took -- it took everybody to put it together. 11 Q, Okay. And that's a -- you touched on my 11 Q, And to be clear, sir, what you're talking about 12 question there at the end. Did you -- was it ever 12 is the purchase of the one crane with Bay Canada; right? 13 approved by the board? 13 A. Well, you -- do you recall your question? You 14 A. No. 14 asked me if he knew about the cranes and if Western Gulf 15 Q, And you had not discussed, during that time, 15 had leased to the company. had that crane leased to 16 with Lawrence Berry, the fact that Western Gulf 16 the company, And so -- 17 Equipment was renting cranes to Bay, had you? 17 Q, And we're talking 18 A. He was very aware of it. 18 A. And I've -- and I've answered your question 19 Q. Well, let's -- let's break that down. Had you 19 exactly the way you asked it. 20 discussed it with Lawrence Berry? 20 Q, And I think we have a singular versus plural 21 A. Probably not, probably I didn't. It was 21 problem. 22 probably through Barry Peterson. 22 A. Okay. 23 Q, You what, through Barry Peterson? 23 Q, Your point is certainly Lawrence Berry knew one 24 A. It was probably through our equipment director. 24 crane had been purchased by Western Gulf and Bay 25 Q, Okay. So you're -- what you're saying is, 25 together, Bay -- Bay Canada; right?

first, you didn't discuss it with Lawrence Berry, right? A. Correct. 2 A. That's 2019, I can't recall that. So, I 2 Q, And I'm asking you about the additional six. 3 don't -- I -- 3 A. Okay, that's a different question. I don't 4 Q. And to the best of your ability you don't 4 know if he knew, I have no clue. 5 remember discussing it? 5 Q, Okay. Well, I'm -- I appreciate you clarifying 6 A. I just said I don't - - don't recall it, that's 6 what you were trying to answer. So, you don't have any 7 correct. 7 clue if Lawrence Berry knew about the additional six 8 Q. But what you're telling us is that you believe 8 cranes that Western Gulf Equipment bought and leased to 9 that because the Bay equipment manager, Barry Peterson 9 Bay? 10 knew, that Lawrence Berry must have known; is that 10 A. That's correct. 11 right? 11 Q, Okay. And Bay, sir, has a subsidiary called 12 A. Well, we own a company together and I do a deal 12 Basic Equipment; is that right? 13 with that company. own a third of it, Lawrence owns a 13 A. I believe that's correct, a wholly owned 14 third of it, and Dennis, my brother who is passed now, 14 subsidiary, yes. 15 owned a third of it. 15 Q, Okay. And that's -- in fact, that's an entity, 16 Q. Which company? 16 as understand it, how you and your brothers first got 17 A. That's -- that's the Canada company. 17 into the business, is that - - is that right, by 18 Q, For that one crane? 18 acquiring that entity? 19 A. So -- so we made a deal with that crane, so 19 A. It could be reasonably thought so, yes. 20 they would have to know that I'm leasing because there 20 Q, And Basic Equipment owns cranes too; right? 21 was a written agreement how it would work, and it's 21 A. They could. 22 their fiduciary duty to know, so -- 22 Q, Well, I guess just to be more precise, have 23 Q, Could it be yours to tell them? 23 they -- to your -- to your knowledge, has Basic 24 A. It it's -- I don't believe it is mine to 24 Equipment owned cranes in the past? 25 tell them. I kept up with everything in the company. 25 A. Yes.

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Q, And has Basic Equipment rented out cranes in THE COURT: All right. 2 the past? 2 MR. REASONER: And, Your Honor, for 3 A. Yes. 3 housekeeping purposes, I'm reminded that I did not 4 Q, All right. So they - - so, Basic Equipment was 4 formally offer Exhibit 33, Plaintiff's Exhibit 33. 5 doing similar things to what Western Gulf Equipment was 5 THE COURT: 33? 6 doing; right? 6 MR. REASONER: The excerpt from that 7 A. In what time frame? 7 spreadsheet. 8 Q, At -- at some point. 8 MR. ALLISON: No objection. 9 A. Ten years apart, yes. 9 THE COURT: All right. That's also 10 Q, Okay. Now, sir, in -- in recent months after 10 admitted. 11 this lawsuit was filed, the board and shareholders have 11 MR. REASONER: 12 taken certain actions with regard to purportedly 12 THE COURT: Although challenging to read. 13 ratifying some prior acts; is that right? 13 MR. REASONER: That i t is, Your Honor. 14 A. That's correct. 14 Q, (By Mr. Reasoner) Now, sir, here, as I think 15 Q, And let me ask you to look at Plaintiff's 15 just mentioned, these are resolutions from a special 16 Exhibit 16, please, sir, Are you with me there, sir? 16 meeting of shareholders, February 13 of 2024; is that 17 Looking at "Berry GP, Inc., Resolution - Special Meeting 17 right? 18 of Directors, December 7, 2023." 18 A. Correct. 19 A. Yes, sir, I see it. 19 Q, And as we talked about this, this was an 20 Q, And it says, in the second paragraph there: Be 20 attempt to ratify some things that had happened in the 21 it resolved that the loans made to Berry GP by Dennis 21 past, right? 22 Berry and Marty Berry in July 2022 are recognized as 22 A. I don't believe it was an attempt, I think it 23 fair, and in the best interests of Berry GP, and are 23 ratified things that happened in the past. 24 ratifying. 24 Q, Well, and you're not as your counsel has 25 Do you see that, sir? 25 pointed out repeatedly, you're not here to tell us the

A. Yes, I do. legal impact of what you did, are you? 2 Q, And you and Dennis Berry both voted in favor of 2 A. No, but if I throw it out there, it's just all 3 this resolution; correct? 3 i t is. I just -- i t is just what I was thinking. We 4 A. Yes; yes, we did. 4 ratified it, yes. 5 Q, And Lawrence Berry did not vote in favor of 5 Q, Fair enough, sir. And let's look at 2141, 6 that, did he? 6 which is there at the bottom of the second page, the 7 A. He didn't sign this, obviously. 7 Bates number at the bottom. You see that that says 8 Q, Okay. And it's consistent with your memory 8 that is again on the l cans and it says: Be it 9 that he did not vote in favor of it? 9 resolved that the l cans are recognized as fair and in 10 A. That would be true. 10 the best interests of Berry GP. 11 Q, Now, Lawrence was the only one, of the three of 11 Do you see that? 12 you, who was not involved in the loans; correct? 12 A. Yes. 13 A. That's correct. 13 Q, And there, you voted in favor, correct? 14 Q, Now, let's look at Exhibit 34, please, sir, 14 A. Yes. 15 MR. REASONER: May I, Your Honor? 15 Q, And Bonnie Berry, who was voting, tragically 16 THE COURT: Yes. 16 after her husband's death, she votes "Yes" as well; 17 MR. REASONER: Your Honor, we would -- we 17 correct? 18 would offer this collection of resolutions of special 18 A. Correct. 19 meeting of shareholders for Berry GP, Inc., from 19 Q, And Lawrence Berry votes "No," Right? 20 February of 2024 into evidence as Exhibit 34. 20 A. Correct. 21 MR. ALLISON: No objection. 21 Q, And again here, Lawrence Berry is the only one 22 THE COURT: No objection, Mr. Van Huseman? 22 who has nothing to do -- no relationship to the loans; 23 MR. HUSEMAN: No. 23 is that correct? 24 THE COURT: Admitted, 24 A. Well, he owns part of the company that the 25 MR. HUSEMAN: We like it. 25 loans were from, but I guess in your -- just looking

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at this, that would be correct, he didn't make any MR. REASONER: Pardon me, Your Honor. 2 loans. 2 THE COURT: Yes. 3 Q. Okay. So he's impacted by them, but he - - he 3 Q. (By Mr. Reasoner) And was there -- was there a 4 was not a lender? 4 discussion of that, sir - if we can just stay on 2145 5 A. He would be benefited by them, absolutely. 5 for a minute - it says there at the bottom: To the 6 Q, Well, potentially, we'll see. That's a -- 6 extent that such conduct has occurred in the past. 7 obviously, there is uncertainty -- 7 Do you see that? 8 A. That's a financial question, but you do get the 8 A. Uh-huh. 9 chance. 9 Q. Yes? 10 Q, Right. When a -- when a company borrows money 10 A. Yes, I do. 11 that can be a good or a bad thing, depending on how 11 Q, All right. Was there a discussion at that 12 things play out, right, sir? 12 meeting, to -- to what extent this leasing of cranes had 13 A. That's correct. 13 occurred in the past? 14 Q. All right. But here, so, Lawrence Berry votes 14 A. No, not that I recall. 15 "No" but in the -- written above here it says "Passed". 15 Q, Now, sir, I understand that -- and I do not 16 Is that correct? 16 want to go into any specifics about the gentleman's 17 A. That's correct. 17 condition but -- but I understand that tragically the 18 Q. And then if we look, sir, at 2145, if you go to 18 CEO, Mr. Powers, suffered from a stroke a few weeks ago; 19 that page with me. This is a resolution that says: Be 19 is that correct? 20 it resolved that the acquisition of cranes or other 20 A. That's correct. 21 equipment by Marty Berry, individually or through any 21 Q, And and I know everyone in this courtroom 22 company he owns or controls, and the subsequent leasing 22 wishes him a speedy recovery. Sir, has the board 23 of that equipment to any Berry company for performing 23 appointed an interim CEO for the company? 24 work of that Berry company, is approved. To the extent 24 A. No; not that I'm aware. 25 such conduct has occurred in the past, it is ratified. 25 Q, Well, you would be, wouldn't you, as a member?

Do you see that? A. If I showed up at the meeting, that would be 2 A. Yes, I do. 2 correct. So, yeah, I believe at this ti me there hasn't 3 Q. All right. And you vote "Yes". You, as we've 3 been one appointed. 4 discussed, you're -- you're on both sides of this 4 Q. Well, is it is it fair to say that at a 5 transaction; right? 5 recent meeting Lawrence Berry proposed that the former 6 A. I'm also a shareholder, too; that's correct. 6 president, Ken Luhan, serve on an interim basis, while

7 Q, That's one -- well, you're a shareholder of 7 Mr. Powers recovers? 8 Berry, and you own Western Gulf Equipment; right? 8 A. believe he said that, yes. 9 A. That's correct. 9 Q. Okay. And you were opposed to that; is that 10 Q, Okay. 10 correct? 11 A. I own part of it, yes. 11 A. That's correct. 12 Q, With your wife, right? 12 Q, And you have not 13 A. That's correct. 13 A. Let me change that, I never had a chance to be 14 Q, All right. And so the -- but the two folks who 14 opposed to it. 15 have no involvement in Western Gulf Equipment, one votes 15 Q, All right. Why do you say that, sir? 16 "Yes," Bonnie Berry; and Lawrence Berry votes "No," 16 thought that was a -- that was a motion made by 17 right? 17 A. Well -- 18 A. That's correct. 18 Q, Sorry. Go ahead, sir, 19 Q, Okay. But written at the top here, it 19 A. So, when you run a meeting by Robert's Rules of 20 nevertheless, is RPassedR. Is that correct? 20 Order and somebody makes a motion to do something, if 21 A. Nevertheless passed, yes. It's passed, yes. 21 there is not a second, then there is nothing to vote on. 22 It passed. 22 Q, But you could have seconded it' couldn't you, 23 Q, In your view, I understand, sir. It's written 23 sir? 24 up there "Passed," right? 24 A. But that didn't tell you how I was going to 25 A. "Passed." 25 vote. may change my mind after discussing it, but

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didn't second it, you're correct, and neither did the Do you see that? 2 other own of the company, did they second it. So, you 2 A. Yes, I see it. 3 had one guy, one Indian standing al one, and it failed. 3 Q. Okay. But -- and we didn't see, on this 4 Q. Okay. Well, let's just break it down. You 4 document, a -- any further response from Mr. Powers to 5 could have seconded the motion to make Mr. Luhan an 5 Lawrence Berry about this -- in this document, PTX1; 6 interim CEO or president of the company; correct? 6 true? 7 A. I could have done a lot of things, but I did 7 A. I believe that's correct, yes. 8 not. 8 Q. Okay. Let's look at a new exhibit, Exhibit 35, 9 Q. You did not do that? 9 please. 10 A. I did not do that, you're correct. 10 MR. REASONER: May I, Your Honor? 11 Q. And your point is even if you had seconded it, 11 THE COURT: You may. 12 that would not have obligated you to vote, to appoint 12 MR. REASONER: Sorry. 13 Mr. Luhan as an interim CEO or president; true? 13 Q. (By Mr. Reasoner) All right, sir. I've handed 14 A. That's correct. 14 you an email exchange marked as Plaintiff's Exhibit 35, 15 Q. And you did not propose anyone else to serve as 15 ALB Bates number ALB 843 through 845. 16 president or CEO while Mr. Powers recovers; true? 16 MR. REASONER: I'd like to offer that into 17 A. That's true. 17 evidence. 18 Q. And who is running the company in that -- in 18 THE COURT: Any objection? 19 that capacity? 19 MR. ALLISON: No objection, Your Honor. 20 A. No one, today. 20 MR. HUSEMAN: (Moving head side to side.) 21 Q. So, there is just no one at the helm? 21 THE COURT: All right. Then hearing no 22 A. As the CEO of the company today, no one is 22 objection, it's admitted. 23 running the company as a CEO today. Each individual 23 Q. (By Mr. Reasoner) And, sir, if you flip to the 24 it's status quo throughout the company, people are 24 second page of this document, do you see that there is 25 handling their business. 25 the same exchange between Mr. Powers and Lawrence Berry

Q. Okay. There is just no one that they report to that we saw in PTX1, the clarification. And then the "I 2 at the top of the pyramid? 2 will follow-up," and "I know nothing of this," do you 3 A. That's correct. 3 see those same things on the second page? 4 Q. Okay. Did you -- when -- when Mr. Powers 4 A. Yes. 5 suffered the -- the tragic stroke, did you notify 5 Q. And then if we go to the front page, do you see 6 Lawrence Berry about that? 6 that there is a response from Mr. Powers? 7 A. I did not. 7 A. Yes. 8 Q. Let me ask you, sir, to look at PTX1 that we 8 Q. And he says, in the first paragraph, • Sorry for 9 saw before in your stack there. Do you remember, sir, 9 the delay. Marty made loan of 45 million and Dennis 10 this was an email exchange we looked at, PX-1, that was 10 made loan of 30 million late last year. This money was 11 in January 16 of 2023? 11 used to pay all past due receivables and pay down loans. 12 A. Yes. 12 Paperwork has not been completed but will be to finalize 13 Q. Okay. And in looking at the bottom we saw that 13 audit." 14 Lawrence Berry there, at the very bottom, on January 16, 14 Do you see that, sir? 15 2023, clarifies that what he is asking about is the 15 A. Yes. 16 paperwork for the 75 million dollar related-party 16 Q. And then in the next paragraph he says, • I did 17 receivable on the books; do you see that? 17 not bring up in board meeting because owner children in 18 A. Yes, I do. 18 room, Mrs, Berry has made a number of loans as well , "

19 Q. And there is a response from Mr. Powers: Okay. 19 Do you see that? 20 That is not executed to my knowledge, I will follow-up 20 A. I do. 21 and see if it's signed. 21 Q. And is that consistent -- I believe you 22 Do you see that? 22 testified to that, but just to be cl ear, is that 23 A. Yes, I do. 23 consistent with your recollection, that the loans had 24 Q. And then Mr. Berry above writes, "I know 24 not been brought up at a board meeting as of that time? 25 nothing about any of this." 25 A. That would be correct.

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Q, And Mr. Powers does not say in this email to Q, Yeah. 2 Lawrence Berry, "I already told you about this," or "You 2 A. Runs the company. 3 know about this," or "We talked about this," does he? 3 Q, Yeah. Do any of the owners, the way it's 4 A. don't see anything to that. 4 structured and has been structured for decades, do any 5 Q, Okay. 5 of the owners have -- do they -- are they supposed to be 6 MR. REASONER: I'll pass the witness. 6 running the company, day-to-day? 7 Thank you. 7 A. No, they're not. 8 THE COURT: All right. 8 Q, Are they supposed to be telling who -- which 9 MR. ALLISON: Thank you, Your Honor. 9 director over at -- whether it's Peterson over at 10 THE COURT: Direct? 10 Equipment, or whether it's somebody down at the dock, 11 DIRECT EXAMINATION 11 are they supposed to be down there telling them how to 12 BY MR. ALLISON: 12 do their job? 13 Q, I'm going to, you know, follow-up on some of 13 A. No. 14 his things and then kind of shift gears in a little bit, 14 Q, Who is supposed to be running the company? 15 but I'm going to follow-up on some of his things. 15 A. The CEO. 16 How long have you and your brothers been, just 16 Q, Are the brothers or any of them supposed to be 17 generally speaking, owners? 17 getting into signing contracts for the company? 18 A. 2000; in the beginning of 2000, I guess. 18 A. No. 19 Q, Twenty years, roughly? 19 Q, Who signs the contracts for the company? 20 A. Yes, at least. 20 A. CEO and Lynn Wittington. 21 Q, And how long has Rob Powers been CEO? 21 Q, Okay. And if you look at 22 A. Four, five years. 22 A. Actually, let me correct that, CEO or designee, 23 Q, Who was CEO before him? 23 that's what it says. 24 A. Mr. Ackley was, for a short period of time. 24 Q, Okay. And, for example, for - - for decades, 25 Q, And before him? 25 has the company -- has Berry, whichever entity it went

A. Ed Hartin. through, I think it's Berry GP, but have - - have the 2 Q, How long was Ed Martin the CEO? 2 Berry companies had an operating line of credit? 3 A. Twenty-five years or so. 3 A. Yes, they have. 4 Q, Yeah. 4 Q, For how many years has that been with IBC, 5 A. A long time. 5 roughly? 6 Q, Was he the CEO before you and your brothers 6 A. Thirty plus. 7 became owners? 7 Q, Okay. And did -- did -- who would sign 8 A. Total owners or partial owners? 8 those -- those loan agreements, those operating line of 9 Q, Fair enough. think you've answered my 9 credit agreements with IBC? 10 question. I' 11 leave that there. 10 A. Well, normally they'd be the CEO, and they also 11 A. He was, though. 11 ask for board members. Each one is kind of different, 12 Q, Okay. Was Ed Martin, how would you describe 12 but sometimes you don't have to have owners. 13 him as a CEO? 13 Q, Okay. Okay. But -- but is the -- is the CEO 14 A. Stern, 14 typically who signs on behalf of the entity? 15 Q, Did he 15 A. Yes, sir, that's correct. 16 A. Cold. 16 Q, And are there just years' worth of documents 17 Q, Pardon? 17 that show that CEO has that power to borrow money? 18 A. Stern, cold. 18 A. Absolutely. 19 Q, Yeah. 19 Q, Are there years' worth of practices where the 20 A. Tough. 20 CEO, for example with your mother and father maybe, but 21 Q, Was the way that the Berry companies 21 you correct me if I need to be corrected, would loan 22 according to the bylaws and according to just the way 22 money to the company and the CEO would do that? 23 it's gone for the last 20 years, is this CEO position a 23 A. Since the formation of the company it's been 24 strong position? 24 that way, 25 A. Super strong position. 25 Q, And has there been a history of your mother or

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father, or both of them, loaning money for many years Q, (By Mr. Allison) For example, the -- and 2 back? 2 know I'm going to say the name a little bit wrong, is it 3 A. Absolutely. It continues to this day. 3 Venture Global, that's a current job? 4 Q. And I think, was there one as recent as March 4 A. Yes. 5 of 2022, where your mother loaned I think a couple of 5 Q, How many employees of Bay, and I know Berry is 6 million dollars? 6 a lot, but just in range, generally, how many employees 7 A. That's correct. 7 of Bay have been working out on that Global Venture, 8 Q. And did she come to you beforehand and say, "Is 8 Venture Global job? 9 this okay" or did you-all let ask you, did you-all 9 A. Global Venture job, up to 3500, approximately. 10 vote on it at a board meeting? 10 Q, Okay. Now, back in the Covi d days, for 11 A. No, we did not. 11 example, was Formosa a client? 12 Q, Does the CEO, did he have authority to sign a 12 A. Yes, they were. 13 loan document with your mother in March of 2022? 13 Q. Were there other clients of Berry, where you 14 A. Yes, he did. 14 would provide manpower? 15 Q, Did he do that, in fact? 15 A. Many others, yes. 16 A. Yes, he did. 16 Q, During Covid, were they saying RBring your 17 Q, And did 17 employees over here, keep sending them"? 18 A. Well, I never saw it, okay? I understand he 18 A. Just the opposite of that. 19 did. 19 Q. Yeah. 20 Q, It's been produced in this l i ti gati on. 20 A. They sent 1000 people home in one day. 21 A. Okay. 21 Q, That put a squeeze on business? 22 Q, Okay. Have you ever heard Lawrence say, "You 22 A. Huge squeeze. 23 know, the CEO doesn't have authority to sign that 23 Q, And so with that, having -- was that a problem 24 document with mom"? 24 for a day, or a week, or for an extended period of time? 25 A. No, I haven't. 25 A. It compounds and it turns into -- it turned

Q, Have you ever heard Lawrence complain that into an extended period of time. 2 "Look, mom is self-dealing"? 2 Q, Is -- 3 A. No, I haven't. 3 A. Revenues dropped. 4 Q. And have you ever heard Lawrence say, "Hey, 4 Q. So coming out of Covid, let me ask you this: 5 this is hurting the company, for mom to loan money to 5 Your mother, she -- she is still very much with it? 6 the company when the company needs it"? 6 A. Yes, she is. 7 A. I have never heard that. 7 Q, Yes. In March of 2022, you think she knew what 8 Q. We're talking about a 2 million dollar loan in 8 she was doing? 9 the early 2022 time frame, obviously yours and Dennis' 9 A. Yes, she did. 10 loans were also in the 2022 time frame; correct? 10 Q, Do you think do you believe, knowing what 11 A. That's correct. 11 you know of that time frame, do you have an opinion on 12 Q, Were on the back side of coming out of Covid, 12 whether or not the company was in serious need of cash? 13 right? Sir? 13 A. l oak at the cash reports weekly, they're sent 14 A. That's a yes. 14 to me, our standing, and I knew we were in terrible 15 Q, Tell -- just to give the jury -- just the give 15 shape. We were in terrible shape. 16 the Judge an idea, did -- during Covid, were you guys -- 16 Q. Were you in a position to go up to market, for 17 a lat of the - - a lat of your business, I believe, fair 17 example, do you think, and get somebody, some bank to 18 to say, is providing manpower, labor to different 18 commit 75 million dollars worth of loans? 19 businesses? 19 A. I'll leave that up to the CFO, but in my 20 A. That's correct. 20 opinion, absolutely not. 21 MR. REASONER: Your Honor, and if we could 21 Q. All right. 22 just proceed question/answer, the objection is leading. 22 A. Not anything with a reasonable rate. mean, 23 THE COURT: All right. Don't lead. 23 it would've been 18 percent or something crazy. 24 MR. ALLISON: Okay. 24 Q, Were you keenly aware of that circumstance, in 25 THE COURT: Sustained. 25 the 2022 time frame?

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A. Yes. A. Weekly, 2 Q, Do you believe Dennis was keenly aware, based 2 Q, Okay. At the end of a week, do you get paid by 3 on your conversations with him? 3 Global Venture? Global Venture/Venture Global? 4 A. A hundred percent aware. 4 A. Venture Global. 5 Q, Do you believe your mother was keenly aware? 5 Q, Venture Global. Do you get paid by Venture 6 A. Yes, she was. 6 Global every week? 7 Q, Did you-all -- when you -- when you made those 7 A. No, we do not. 8 loans, okay, let me just talk for you specifically, did 8 Q, And so, do you get to say to your employees, 9 you ever imagine, when you loaned money to the company, 9 "Hey, we -- we're not going to pay now you, we're not 10 that somebody would claim you were hurting the company? 10 going to pay you until Global Venture comes through with 11 A. Never in my wildest dreams. 11 their paycheck"? 12 Q, Did your mother ever come to you, for example, 12 A. It would be nice, but we don't get to do that. 13 and say "Why did you do that, you're hurting the 13 Q, Who fl oats it? 14 company"? 14 A. We got to go to the bank and come up with the 15 A. No. She knew why we did it. 15 money. 16 Q, Was she supportive of it? 16 Q, Okay. So, is it fair to say one of the Berry 17 A. Absolutely. 17 companies floats it? 18 Q, Has she continued, to this day, to be 18 A. Absolutely. 19 supportive of it? 19 Q, Using a line of credit? 20 A. Yes, she has. 20 A. Yes, that's correct. 21 Q, Did anybody, to your knowledge ever go to 21 Q, Okay, And so, I mean, does Venture Global , do 22 Dennis and say, "Dennis, why did you loan that -- why 22 they say, you know, R Don't worry, don't - - you know,

23 did you loan our company money, you're hurting itR? 23 you -- we'll pay you ahead of time, to make sure you're 24 A. Lawrence may have, but no one, that I'm aware 24 making payroll week-to-week, with all these people 25 of. 25 you're carrying"?

Q, Did you ever go to Dennis and say, "Why did you A. No, they don't, We -- we push any customer we 2 put your 30 million dollars in, I mean, you're hurting 2 can to get paid as quick as we can. 3 the company here"? 3 Q, Okay. And so, do you have to have -- what 4 A. I did just the opposite. When he told me he 4 are what do you need to have, in order to take a job 5 was going to put about 20, and I said, "That's not 5 like Venture Global? 6 enough," I told him to put more. 6 A. Well, you need to have the -- you need to have 7 Q, And why was that money needed for the company? 7 the line at the bank so when you bring in those it's 8 Where were -- we're coming out of the Covid time frame. 8 a revolving line of credit, where we take invoices, they 9 Give us some context. 9 immediately discount those by a percentage, and then you 10 A. We were building up for a huge job that was 10 have to have enough line to cover all of the things that 11 going to take double the amount of lines we had at the 11 would happen up until you're going to get paid the next 12 bank at the time. And we had -- we were did not have 12 ti me. And so when you have 3500 employees, that's just 13 the cash flow. We had vendors calling all the time, it 13 there, that was just on that one job; it adds up quite 14 disrupts your business. We needed the money to come in 14 rapidly, if you just do the math in your head, And 15 and pay off -- pay off our vendors and get us back up so 15 they're not $10 an hour, they're not $20 an hour, 16 we could look good. We needed to go and get a bigger 16 they're 30 plusers; it's a lot. 17 line, we needed a bigger line. Our line was not enough, 17 Q, Do you -- do you have a belief as to whether or 18 We knew going in on the Venture Global job we needed a 18 not yours -- your loan to the company, your mother's 19 hundred million dollar line. 19 loan to the company, Dennis' loan to the company, were 20 Q, And let's walk through that a little bit with 20 those needed or not, in terms of being able to be 21 the Court. Why is -- when -- when your employees go and 21 successful, with a job like Venture Global? 22 they work for -- don't know what you pay, do you pay 22 A. I'm confident in saying that we would have 23 every two weeks, twice a month? How do you pay them? 23 failed. Without having those loans, we could never have 24 A. Weekly, 24 done the Venture Global job, impossible. 25 Q, Huh? 25 Q, And that Venture Global job, just to give us

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some kind of book ends, and I don't know if you know information? 2 these numbers off the top of your head, do you know, for 2 Q, Let me ask you this, let me narrow my question 3 example, what total revenue was for the company during 3 a little bit: Do the different Berry companies have 4 Covi d years? 4 regular meetings? 5 A. Covid years were around 400 million, a little 5 A. Usually yearly shareholder meetings is what it 6 over that, 6 would be. 7 Q, And for 2023, where -- now that Venture Global 7 Q, So the shareholder meetings are usually annual? 8 has come on board, and what does that move to? 8 A. Annual. 9 A. 700 and something. 9 Q, Yeah. And how about Berry GP, if I understand 10 Q, 700 and something million per year in revenue? 10 it, what's its relationship to operation of the Berry 11 A. Uh-huh. 11 entities? 12 Q, Sir? 12 A. It's the top of the operating. 13 A. Yes, that is correct. 13 Q, And does Berry GP have meetings? 14 Q, So, do you think that that has been helpful or 14 A. Yes, it does. 15 harmful to the company? 15 Q, How often? 16 A. Well, it's a double-edged sword. We're here in 16 A. I would say once a month. 17 the courtroom, maybe it's been harmful, but no 1 I think 17 Q, Has that been, more or less, the rule for 18 it's been very helpful. It's really good times. 18 years? 19 Q, Now, in terms of the CEO's powers, what does he 19 A. Since we've been going to board meetings. 20 do, day-to-day? Can you just give us a general 20 Q, For decades? 21 description? 21 A. Decades. 22 A. Day-to-day, he runs the company. Any -- any 22 Q, Okay. And what role, if any, do those meetings 23 hot spots, anything that kicks up, if it's hiring, or 23 of Berry GP play, for you to get information? 24 you know, or reviewing - - reviewing financials, looking 24 A. It updates you on big projects, safety in our 25 ahead. Anything that -- you know, keeping the Indians 25 company, which is the biggest thing, updates on safety,

in line, maybe making us aware of purchases or things that are 2 THE COURT: Hey, let's do this, let's take 2 going to be coming up that are going to require cash, 3 a break and then we'll continue on. 3 general meetings. Most of that I would already know it, 4 COURT BAILIFF: All rise, please. 4 from being in the office every day. 5 (Brief recess.) 5 Q, And let's go ahead and cover that, because 6 THE COURT: Mr. Berry, you're back on the 6 what's your habit, in terms of going in to the office? 7 stand. And when you're ready, we may proceed. 7 A. Every day it's needed, every day of the week. 8 MR. ALLISON: Thank you. 8 Q, Do you go most -- do you sometimes go two or 9 DIRECT EXAMINATION 9 three weeks without going into the office? (Continued) 10 10 A. Never. BY MR. ALLISON: 11 Q, When -- and it may depend on the type of 11 Q, Generally speaking, on a weekly basis, are you 12 information, but when you ask for or want information 12 there one day a week or five days a week? 13 from one of the companies, one of the Berry-related 13 A. Five days a week. 14 company, who do you go to? 14 Q, What was Dennis' practice, before he passed? 15 A. I go to the CEO. 15 A. Before he got cancer he was there most of the 16 Q, And do you go to like, a different department 16 time. And then he -- before he announced he had cancer 17 head and different people, or do you try to channel it? 17 he came in one day and said he was no longer going to be 18 How do you do that? 18 signing checks and he passed that to me, and he said he 19 A. only go to the CEO. I don't want to get 19 was going to be taking -- he was going to see the 20 involved in the chain, he'll go down the ladder. And 20 country a little bit, start moving around. 21 same thing if I deliver information to him, I just go to 21 Q, Okay. 22 him and let him handle it. 22 A. He would be over there, over-watching, oversee 23 Q, And when you -- how do you normally get 23 the the highway bids, when they came through, 24 information about what's going on with the company? 24 Q, And in terms of signing checks, after Dennis 25 A. Well, it depends on what -- you know, financial 25 did what you just said, who took over the responsibility

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to sign checks? I'm not going to tell you that"? 2 A. I did. 2 A. That's never happened. We have questions all 3 Q. How many checks did you sign in a week? 3 the time. 4 A. It depends, but it could be as many as a 4 Q. And from what you said a moment ago, and I know 5 thousand. It's maybe more. It's a lot. 5 we've seen all the agendas and all the parties have 6 Q, Okay. 6 them, it looks like there is generally a -- and I know 7 A. Every vendor, anybody that gets money from our 7 it varies, but generally, do you always talk about 8 company, there is only probably one percent that I don't 8 finances? 9 sign. 9 A. I'd say yes, generally. 10 Q, Let's say for the last five years, has - - 10 Q, Generally, do you always talk about safety? 11 has let's not go five years because we're really 11 A. A hundred percent, every time. 12 talking about 2022 and 2023, the last couple of years, 12 Q, think it's always first on the agenda? 13 or three, let's say three years; for the last three 13 A. Absolutely. We have no business without being 14 years, has it been Lawrence's practice to be there every 14 safe, so we talk about it first. Your Plaintiff 15 day? 15 attorneys took care of that. 16 A. Lawrence lives in Houston, so he is not in our 16 Q, Now, generally, do you get updates on work in 17 company every day. 17 progress, what they call work in progress? 18 Q. Is there anything that keeps him from being 18 A. Sometimes, on the bigger jobs. Usually only if 19 there every day? I mean, if he wanted to be there every 19 you're going to talk about jobs, you'd be talking about 20 day would he be able to be there every day? 20 the ones in trouble. 21 A. Absolutely. 21 Q, Fair. Generally, do you sometimes talk about 22 Q, If he -- does he have an office there? 22 equipment? 23 A. No, I don't think he has an office there. 23 A. Yes, we do. 24 Q. If he wanted an office there, can he have an 24 Q. Do you sometimes talk about real property? 25 office there? 25 A. Yes, we do.

A. Absolutely. Q, Do you sometimes -- I mean, as needed; fair 2 Q, Yeah. Does he have a parking place there? 2 enough? 3 A. I'm not sure I do either but -- 3 A. Yes. 4 Q. Okay. 4 Q. Do you sometimes -- for example, during this 5 A. -- if I have one, if he would want it. 5 time frame when, and we've heard some information about 6 Q, Okay. But what was his -- for the last, say, 6 what happened with IBC and then the transition to Frost, 7 three years, what was Lawrence's habit, in terms of 7 during that period of time, were you talking about lines 8 coming into the office and, you know, learning what's 8 of credit every time? 9 going on? 9 A. That was -- we had emergency meetings I 10 A. Well, coming into the office at our board 10 believe, in fact, just to talk about that, yes. 11 meetings. 11 Q, And at all of those meetings would Lawrence 12 Q, Once a month? 12 participate? 13 A. Uh-huh. Yes, once a month. 13 A. I believe so, yes. 14 Q, Okay. I'm just cuing you because that nice 14 Q, Yeah. Some of them were emergency, by 15 lady next to you, when you nod your head -- 15 telephone? 16 THE COURT: We understand your nod, but - - 16 A. Yes. There was still meetings, still our board 17 THE WITNESS: I forget. 17 meetings, yes. 18 THE COURT: -- it's got -- it's got to go 18 Q, And I think there is some strings, we'll get 19 down. 19 into them a little bit, but were you used to seeing 20 THE WITNESS: I forget. I'll get there. 20 those strings of texts from Rob, and have you and Dennis 21 Q. (By Mr. Allison) And is there -- when you have 21 and Lawrence on the string? 22 these monthly board meetings, is there any limited -- in 22 A. Yes. 23 other words, I mean, if -- if you, as a director, you're 23 Q, And was Rob keeping you guys informed, with 24 having those board meetings, does it happen where 24 regard to the line of credit with IBC, after the blowup? 25 somebody says "Hey, I got a question" and Rob says "No, 25 A. Yes.

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Q, And was he keeping you informed with the line meetings for that period of time, where Lawrence said 2 of credit discussions? How was he keeping you informed 2 that he wanted to kind of change the bylaws where 3 of 3 directors could not be removed? 4 MR. REASONER: Your Honor, objection. If 4 A. No. 5 we could just go to question and answer. I object to 5 Q, Did he ever, during that period of time, say he 6 leading, 6 wanted to change the bylaws where directors could not be 7 MR. ALLISON: I' 11 rephrase. 7 added? 8 THE COURT: Okay. 8 A. No. g Q, (By Mr. Allison) Were there text messages with g Q, Did he ever make any complaints about the 10 regard to Frost Bank? 10 bylaws or wanting to change the bylaws for that 11 A. Yes. 11 year-and-a-half period of time, roughly, that we're 12 Q, Are there text messages with -- and by "text 12 talking about? 13 messagesR I want to ask you about ones with you, and 13 A. Never; nothing. 14 Lawrence, and Dennis, and Rob on the string, okay? 14 Q, Did he ever make a motion to do it? 15 A. Okay. Then you better ask that other one 15 A. No. 16 again, 16 Q, We know, and I think even in the opening 17 Q, Pardon? 17 statement, Mr. Reasoner said that Lawrence, he refers to 18 A. Frost, I don't believe there is a string. 18 it, I think in the September of 2022 time frame, where 19 can't remember if there is a string for Frost. 19 financials were given to Lawrence which revealed or 20 Q, Okay. We' re getting there. Well , let me ask 20 indicated the loans that you and Dennis had made; are 21 you this: Have you seen any of them, where Lawrence is 21 you familiar with that document? 22 talking about his negotiating with Cadence Bank? 22 A. I think we looked at it, yes. 23 A. Yes. 23 Q, Okay. And during that, from September of 2022 24 Q, Have you seen him where -- where -- well, one 24 until November of 2023, did Lawrence -- let me take 2022 25 of them, did you send a text to -- do you remember the 25 for -- for starters.

text you sent, right after the notice of default draft, For September, October, November or December of 2 to Lawrence? 2 2022, did Lawrence ever come and say RHey, I want to 3 A. Yes. I sent Lawrence that, I think the day 3 know more about these loans," did he ever come to you 4 after I got it or something, yes. 4 and say that? 5 Q, You notified Lawrence? 5 A. Never. 6 A. I did, and Dennis, 6 Q, Did he ever bring it up in a board meeting and 7 Q, And again, just thinking to this time frame 7 say "I want more information on this,R during a board 8 where we're talking about board meetings, where at even 8 meeting? 9 2022, after the -- you made the loan, and Dennis made g A. No. 10 the loan, and your mom made the loan, in 2022 and 2023, 10 Q, For, let's say, the first half of 2023, 11 up until he filed the lawsuit in November of 2023 did 11 after -- and we have the emails where, clearly, he is 12 Lawrence ever, for example, bring up a complaint that he 12 writing emails in January of 2023 about the loans; 13 wanted to change the bylaws, with regard to the sale of 13 correct? 14 real estate? 14 A. Correct. 15 A. No. 15 Q, So, from January, February, March, April, May, 16 Q, Or ever bring up anything, that he wanted to 16 June - I'm just doing that as a half year in 2023, did 17 change the bylaws with regard to the purchasing of real 17 Lawrence ever come to you and say "Hey, I want to talk 18 estate? 18 to you about these loans"? 19 A. No. 19 A. No. 20 Q, Did Lawrence, during that time frame, ever say 20 Q, Did he ever bring it up in a board meeting? 21 that he wanted to, for example, have some sort of 21 A. No. 22 approval where a single -- a single director could kill 22 Q, Did he ever, ever ask, in a board meeting, to 23 a proposed purchase of real estate? 23 get more information about the loans? 24 A. No. 24 A. No. Well, same time frame? Same time frame 25 Q, Did he ever bring it up in any of those board 25 you're talking about?

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Q, Yes. No. -- we'll just go with Exhibit No. 35, PX; do you 2 A. Yeah. 2 have that in front of you? 3 Q, I'm still 3 A. I do. 4 A. No. 4 Q, Have you seen the rest of that string? 5 Q, going in pieces. And you're about to make a 5 A. Well , I'm kind of looking up there at it. Is 6 point that, for example, this last February meeting, 6 that the screen you have up there on -- on the show? It 7 were you aware that he asked Jim to come bring a lot of 7 is. 8 information? 8 MR. BALDTREE: Doug, is that PTX35 up 9 A. Yes. 9 there? What are we looking at? 10 Q, Jim Klein, who is he? 10 MR. ALLISON: No, that is not. You had, I 11 A. He is our -- he is our chief financial officer. 11 think, PTX35 with you up there. 12 Q, And what did Jim Klein do, in response to 12 Q, (By Mr. Allison) You have that? 13 Lawrence's request to receive that information? 13 A. Yes, I do. 14 A. Provided all the information to the board at 14 Q, And is that the January string that you were 15 a •· on a PowerPoint. 15 asked questions about, by Mr. Reasoner? 16 Q, Yeah. And is that how it works? 16 A. Yes, it is.

17 A. Excuse me? 17 Q, And do you see in the beginning of that string, 18 Q, If you ask for information from Jim Klein, 18 is there a confusion about it being a reference to the 19 what -- what normally happens? 19 Orea note? 20 A. Normally, if the owners ask for information 20 A. see that under the subject, "Orea note." 21 from anybody they'll get it' 21 Q, Yes. What is the Orea note? 22 Q, Is that true for Lawrence? 22 A. That's a -- that's a payable from Lawrence to 23 A. Yes. For Lawrence, yes. 23 the company. 24 Q, Is that true for you? 24 Q, Okay. And originally when Lawrence asked for 25 A. Yes, it is. 25 information about a note, Jim responded with what?

Q, When -- when Lawrence -- obviously there is A. With the Orea note, because he asks about 2 this email . Let's go ahead and move kind of more 2 payable, I mean, a receivable, not payable.

3 specifically. Do you have PX-35 up there? 3 Q, And with that Orea note, is that the same note 4 A. Yes, do. 4 the other day you were in the courtroom when Lawrence 5 Q, By the way, had you ever seen Robert Powers's 5 Berry was asked about Orea; correct? 6 response before? 6 A. Yes. 7 A. I haven't. 7 Q, Is that a note where he owes the company, I 8 Q, Yeah. But let's go ahead and go back. 8 think the way we said it with him on the stand, was tens 9 MR. ALLISON: Your Honor, at this time we'd 9 of millions of dollars? 10 offer, I think when you combine it with Plaintiff's 10 MR. REASONER: Objection, leading. 11 Exhibit No, 35, I think there is some things maybe not 11 THE COURT: All right. Sustained. Ask it 12 on here, that are on our Exhibit No. 106, and we'd offer 12 a different way. 13 that at this time. I can give you the Bates numbers, if 13 Q, (By Mr. Allison) Were you here for his 14 you want them. 14 testimony, with regard to what he owed on the Orea note? 15 (Court reporter speaking.) 15 A. Yes. 16 MR. REASONER: And you say it is our 16 Q, And how was it characterized by his testimony? 17 exhibit but there is more? 17 What's your recollection about that? 18 MR. ALLISON: Yeah. I think -- and I think 18 A. Tens of millions of dollars. 19 you actually said that when you brought it up. You said 19 Q, And do you agree that -- that he owes the 20 there is -- you had an exhibit that added to some 20 company, just on Orea alone, tens of millions of 21 earlier emails. 21 dollars? 22 THE COURT: Well , I guess show it to him, 22 A. Yes, I do. 23 MR. ALLISON: That's what I'm finding, 23 Q, And is he in is that a performing note? 24 THE COURT: Okay, 24 A. No. 25 Q, (By Mr. Allison) Go ahead and look at Exhibit 25 Q, Is it in default?

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A. It's in default, yes. where you've said, "Hey, do you thinkR -- again, what --

2 Q, During these years, same years, how long has 2 what have you done with Lawrence in those conversations? 3 that been a note, where money was owed by Lawrence, tens 3 A. Well, there in different board meetings and 4 of millions of dollars was owed by Lawrence to the 4 shareholders meetings where he was offered a chance to 5 company? 5 take over our l cans, equal our l cans, participate in our 6 A. I'd say ten plus years. 6 loans in any way, and he continually said he didn't have 7 Q, And, for example, throughout Covid, during this 7 enough information. But then we delivered notes, we 8 time of cash crunch, when your mother was loaning money 8 delivered everything through counsel and to Lawrence 9 and you were loaning money, was it -- was that note, 9 again, and again, and again; no interest. 10 where Lawrence owed money to the company, there? 10 Q, Okay. So, how many ti mes do you think you, 11 A. Yes. 11 yourself, face-to-face with Lawrence, have said, RHey, 12 Q, And even to this day -- do you remember when 12 if you want to step in my shoes, so to speak, for some 13 the maturity date was? 13 or all of this loan you can do it," how many times have 14 A. I do not. 14 you told him that? 15 Q, Do you remember what year, when it came due? 15 A. Five, six, or seven times. 16 A. I do not. 16 Q, And has he ever taken you up on that offer? 17 Q, Do you remember when it went into default? 17 A. Never. 18 A. I believe it was this past summer when the 18 Q, If it's such a great deal, has he ever -- and 19 there was not a payment made. 19 you understand by making a self-dealing allegation he is 20 Q, And has Lawrence paid it? 20 acting like you're -- you're doing yourself a big favor, 21 A. No. 21 not the company; you understand that, right? 22 Q, Now, in terms of kind of self-dealing, okay, if 22 A. Yes, I do. 23 somebody has taken from the company, likes Lawrence in 23 Q, Has he ever explained to you why he thinks it's 24 other words, taken money from the company and not paying 24 so, oh, it's a great deal for you Marty, but I don't 25 it back, does that help Lawrence? 25 want any of it, has he ever explained that to you?

A. A hundred percent. A. No, he has not. 2 Q, Now, when you need money at the company and 2 Q, Has he ever offered any explanation on -- on 3 somebody like Lawrence has taken money from the company 3 how he thinks maybe you're taking an advantage of the 4 and not paying i t back, is that helping the company? 4 company, by having done this a couple year -- a year or 5 A. Absolutely not. 5 so ago? 6 Q, In your mind, is there a difference between 6 A. No. He said, over and over, that we've taken 7 where Lawrence has taken tens of millions from the 7 advantage of the company. 8 company and in default and not paying it back, is there 8 Q, Yeah. Has he ever explained it to you in a way 9 a difference between that and what your mother, and you, 9 that makes sense to you? 10 and Dennis had done? 10 A. None whatsoever, no. 11 A. Huge difference. 11 Q, In PX, Exhibit No. 35, towards the end of it, 12 Q, Okay. When you are giving money or loaning 12 in the part you hadn't seen, the email piece from Robert 13 money to the company in the quantities that we're 13 Powers, do you see that? 14 talking about, why did you do that? 14 A. did, yes. 15 A. I'm an owner of the company, it needs shoring 15 Q, You got it? 16 up. It was obvious to me, by looking at the financials; 16 A. Yes. 17 very simple. 17 Q, It says: Marty made loan of 45 million and 18 Q, Now, we talked a moment ago about Lawrence not 18 Dennis made loan of 30 million last -- late last year. 19 coming to a board meeting, not asking questions about 19 This money was used to pay all past due receivables and 20 these loans from you, and Dennis, and your mother, we 20 pay down loans. 21 talked about that. At some point in time, have you had 21 Did I read that correctly? 22 conversations more recent with Lawrence with regard to 22 A. That's correct. 23 your loan and Dennis' loan? 23 Q, If the money was used to pay receivables, do 24 A. Yes. 24 you think that's a benefit to the company? 25 Q, Have there been any conversations with Lawrence 25 A. Yes.

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Q, If the money is used to pay down loans, do you A. At the time. 2 think that's a benefit or a detriment to the company? 2 Q, Have you learned since? 3 A. Definitely a benefit. 3 A. I believe Jim Klein, that's what I believe. 4 Q, Do you have a belief, whether or not what's 4 haven't ever asked him exactly, but I believe it was Jim 5 stated there by Mr. Powers is true? In other words, was 5 Klein. 6 the money used to pay down receivables and pay down 6 Q, And when you were presented with a note at 7 loans? 7 prime, plus .25, did you sign it?

8 A. A hundred percent I have knowledge of that 8 A. Yes, I did. 9 exactly, yes. 9 Q, When you signed it, did you think, "Oh, my 10 Q, Yeah. And was that important to do, with big 10 gosh, I've got that hog here, this is -- this is a -- 11 jobs coming up, like Venture Global? 11 I've gone to town on this interest rateR? 12 A. Absolutely. 12 A. I don't think anybody would have thought that. 13 Q, I think -- let me just refresh or go -- go 13 No, I didn't think that. 14 here. Same with PX, Exhibit No. 35, it says: Paperwork 14 Q, Were you doing it because the interest rate was 15 has not been completed but will be to finalize audit. 15 prime, plus .25, as opposed to prime, as opposed to 6 16 Do you see that? 16 percent? mean, were you -- was the focus on the 17 A. Yes. 17 interest rate? 18 Q, So before this January 16, 2023 date on the 18 A. I was doing it because the company had to have 19 email, had you signed the actual note? 19 an i nj ecti on of capital to continue on. 20 A. don't believe so, no. 20 Q, Did you ever, in any way, shape or form, try to 21 Q, But did the actual note need to be signed as 21 leverage, use your power, use authority, try to ever 22 part of the audit process? 22 influence the terms of the loan with either Rob or Jim 23 A. Yes. The auditors required it. 23 Klein? 24 Q, Prior to that, I know that using Mr. Reasoner's 24 A. No. 25 statement or characterization you sort of had a 25 Q, Back in the same time frame, early 2023, you

handshake or an agreement, I guess with Rob, that you were aware -- obviously we've heard about May 13, 2023 2 were going to make these loans or make your loan; right? 2 is when Mr. Nixon came to town, right? 3 A. Correct; my loan, yes. 3 A. Correct. 4 Q, At that point in time, because he sort of said 4 Q, Okay. So up until that point in time, how many 5 you' re on you know, he tried to characterize it as 5 times do you think that the IB -- is that generally the 6 you being on both sides, Let me just ask you, at that 6 time of year that the IBC notes were being renewed? 7 point in time when you had this agreement with Rob, did 7 A. That's correct. 8 you did you have a specific discussion, where there 8 Q, During that period of time, when the IBC's 9 was an agreement about an interest rate? 9 notes are being renewed, let's say early year, maybe 10 A. I did not. 10 late the previous year, but early 2023, had there been a 11 Q, Did you -- 11 renewal process? I mean, who takes care of renewing the 12 A. I had -- I had a discussion with him. said, 12 notes? Who does the day-to-day on that? 13 "Treat me fairR is what told him; that was it' 13 A. CFO, and in coordination with your -- your CEO. 14 Q, Okay. When you left that discussion, did you 14 Q, And the CFO is Jim Klein? 15 know what percentage interest rate was going to be put 15 A. Jim Klein. 16 in the note? 16 Q, And is that something, where you would have 17 A. I did not. I was on the -- obviously, I'd have 17 been involved in sort of the day-to-day communications 18 a chance to look at that before I signed anything, okay? 18 for renewal of a note with IBC? 19 Q, Fair enough, Who was it that picked the prime, 19 A. No. 20 plus .25? Was that you? 20 Q, For -- for how many years had that note been 21 A. No. 21 renewed on an annual basis? 22 Q, Do you know -- did anyone ever tell you, "Rob 22 A. Probably 30 or something. 23 did it" or "Jim Klein did it" or anything like that? 23 Q, Okay. And would it be in any way, shape or 24 A. No. No one told me that. 24 form typical for you, or Lawrence, or Dennis to be 25 Q, Back at the time? 25 involved in that day-to-day exchanges of information for

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the renewal of the line of credit? A. To extend the loan, waive the covenants that 2 A. It would not be, no. 2 were broke, and loans of financials didn't have material 3 Q. So when we look, for example, then at January, 3 changes, and they didn't. 4 February and March of 2023 emails, before the blowup 4 Q. Okay. And by "material changes" in the loans, 5 with Nixon, should we expect to see a whole lot of 5 that means they've got to complete the audit and deliver 6 communication with you about, you know, day-to-day 6 it? 7 what's going on over there? 7 A. Material changes in the financials that -- it 8 A. No. 8 wasn't just delivering those, but just -- if they hit 9 Q. When does it rise to the level in this case 9 out with the audit, everything would be great. 10 when did it rise to the level of all of a sudden hey, we 10 Q, Okay. Are you aware, for example, before 11 need to be more -- you know, it can't -- when did it 11 Dennis came to town, is there an actual written letter 12 reach the owner level? 12 from Gus? 13 A. When Mr. Nixon showed up in town unannounced, 13 A. Yes. 14 came to our offices. 14 Q. About agreeing to renew the loan? 15 Q, Before that, and I know there is emails, I 15 A. Yes, there is. 16 don't know if you've seen them so much, before that, 16 Q, Okay. And agreeing to waive the covenants? 17 there are emails where the notes, yours and Dennis' 17 A. Yes. 18 notes, were provided to IBC; do you understand what I'm 18 Q. Okay. 19 telling you? 19 A. Any violated covenants, yes. 20 A. Yes. 20 Q, And I think those are in evidence, so I'm not 21 Q, don't know, have you seen those emails? 21 going to go through them with you right now. 22 A. haven't seen those emails, but I knew they 22 In that process, did you become aware of - I 23 were provided to all of our banks. 23 know you were asked a few questions - of the requests to 24 Q. Okay. But you knew they were provided, I'll 24 subordinate your loans to the Frost loan? Well, really 25 ask it that way. Did you ever, knowing that they had 25 IBC and then the Frost loan.

been provided before the Dennis Nixon blowup, did you A. During that -- before the Dennis Nixon blowup 2 ever, before Dennis Nixon, ever hear anybody say RHey, 2 or after? 3 IBC's concerned that you loaned the company money, 3 Q. Well, before, let's start there. 4 that's a bad thing"? 4 A. No, nothing before. 5 A. Never heard that from anyone. 5 Q, Okay. Afterwards, was there a discussion about 6 Q, Did you ever hear any complaint by IBC that you 6 subordinating those loans? 7 and Dennis and your mother had loaned money? 7 A. Yes, I believe there was. 8 A. Never mentioned it. 8 Q. I believe you characterized, you said a little 9 Q. Was it ever mentioned, that there needed to be 9 while when Mr. Reasoner was asking you questions you 10 more explanation, or more detail, or you had to come 10 said, "Yeah, that's kind of negotiating"? 11 forward and give a statement or sign an affidavit, 11 A. Absolutely. 12 anything like that? 12 Q. Yeah. Tell me - - tell the Judge what you meant 13 A. Nothing. 13 by that. 14 Q, Were you ever asked for a justification or an 14 A. Well, at the same time we'd never had to sign 15 explanation, before the Dennis Nixon blowup? 15 personally, that was another thing they put on the list, 16 A. No. 16 and that was a killer for the board; no one wanted to 17 Q, Up until the Dennis Nixon blowup, did you think 17 have to sign personally. So, you had all these - - they 18 you were sort of - for lack of a better term - business 18 made 30 something requests, believe, and change 19 as usual, with IBC? 19 because of the Dennis Nixon blowup. So, all -- 20 A. Absolutely. They sent us a letter to that 20 Q. And - - and - - 21 effect. 21 A. these changes that we never would have had 22 Q, Are you aware of the letters they sent? 22 to make, if he hadn't gotten all excited. 23 A. Yes, I am. 23 Q, Let's -- let's go through that in a little bit 24 Q, And what did they make a commitment to do, 24 more detail because you're talking specifically about 25 before Dennis got in town and got upset? 25 IBC right now; right?

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A. That's correct. A. No, they did not. 2 Q, Okay. After the Dennis Nixon blowup, there is 2 Q, How did that happen? 3 that letter where there is just a long list of things 3 A. I hate to get into all the details, but it 4 that they want you to agree to? 4 happened by standing your ground. 5 A. Correct. 5 Q, During this period of time when, you know, for 6 Q, Were you, and Lawrence, and Dennis agreed on 6 example, are you familiar with Lawrence's letter that he 7 your responses to those demands from IBC? 7 wrote to Dennis Nixon? 8 A. Did we sit down and -- know we sat down and 8 A. I heard about it' never read it' 9 talked about personal guarantees. I'm not sure we went 9 Q, Okay. I' 11 use that -- I' 11 do that 10 through every line item there, no. 10 differently then. But during this period of time where 11 Q, On personal guarantees, was -- were you -- were 11 were -- we saw the email, you remember the other 12 you agreeable to give them a personal guarantee? 12 testimony the other day, where Lawrence asked -- 13 A. No. 13 answered some questions about Mr. Gallagher, the lawyer? 14 Q, Was Lawrence? 14 A. Yes. 15 A. No. 15 Q, I mean, in that period of time, which I think 16 Q, Was Dennis? 16 is March or April, it's April 2023, in that period of 17 A. No. 17 time, I mean, was Lawrence blaming you about IBC, or was 18 Q, So you-all weren't united on this idea? 18 he ready to go sue IBC? 19 Because IBC now is demanding things after the blowup, 19 A. He was ready to go sue them. I had never been 20 that they hadn't demanded before? 20 blamed at that time. 21 A. That's correct. 21 Q, And who -- do you know who Mr. Gallagher is? 22 Q, Okay. And was that a negotiating point? 22 A. He is a Plaintiff attorney. 23 A. Yes. 23 Q, Yeah. And was there any doubt about why 24 Q, Similarly, was this whole discussion about 24 Lawrence was reaching out to the Plaintiff lawyer with 25 subordination a negotiating point? 25 regard to put pressure on IBC?

A. All of it was. Yes, it was. A. There wasn't. 2 Q, Okay. And was that information that you' re 2 Q, Did that end up happening, where the company is 3 talking about, on negotiating points like that, and 3 brought in, in a lawsuit against IBC? 4 understand what you said a moment ago, you don't 4 A. No. We never brought a lawsuit against IBC. 5 remember going line by line, but are you aware whether 5 Q, Instead, was the -- was the loan extended, to 6 or not you, and Dennis, and Lawrence were all kept in 6 allow the transition with Frost? 7 the loop by Mr. Powers? 7 A. Yes, it was. 8 A. I put myself in the loop, I can't speak for the 8 Q, I think you told Mr. Reasoner, a moment ago, 9 other ones. 9 that kind of -- that you -- I don't want to use the word 10 Q, Okay. Did you ultimately -- by the way, 10 "mi stake," maybe you did, but that it's - - are you a 11 then -- then with Frost, was there a point in time when 11 shareholder of Berry GP? 12 Frost had a request for personal guarantees? 12 A. I think LOMA is the owner of L -- of Berry GP. 13 A. Yes. 13 Q, Yeah. The LOMA is 14 Q, What did they want, originally? 14 A. The partnership, 15 A. They wanted personal guarantees from all of us. 15 Q, Are they -- is LOMA, to your knowledge, the 16 Q, Was that another negotiation? 16 sole shareholder of Berry GP? 17 A. Absolutely it was. 17 A. I believe that's correct, yes. 18 Q, Did anybody want to give -- any of the three 18 Q, And if you've said differently in the past, is 19 brothers want to give personal guarantees? 19 that incorrect? 20 A. It was getting ugly at that point, but no. 20 A. If I've said it differently in the past, it was 21 Q, Okay. And did you-all stand your ground 21 just a mi stake. 22 together? 22 Q, Okay. I think you used the word "mistake" 23 A. Yes. 23 earlier. 24 Q, And did ultimately did Frost require a 24 Since -- I don't know, some more awareness 25 personal guarantee? 25 about that corporate structure. He -- he showed you,

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think, the board meetings with Berry GP or meetings with A. They didn't, 2 Berry GP. In more recent -- in more recent times, have 2 Q, Okay. And at the shareholder level was there a 3 there been a shareholder meeting with Becon, Inc., and 3 vote to ratify the loan we've been talking about, that 4 LOMA? 4 you made to Berry GP? 5 A. Yes, I believe that's correct. 5 A. Yes. 6 Q, Do you remember, was it a March meeting? 6 Q, And what happened on that vote? 7 A. I believe, yes. I think that's probably 7 A. Two to one, Bonnie voted for it, voted for 8 correct. 8 it, Lawrence didn't. I think he abstained. I'd have to 9 Q. And during that March meeting, was there a -- 9 look at the document, but he didn't vote for it. 10 any vote with regard to -- do you know if it's Becon, 10 Q, Okay. You were asked questions about the Berry 11 Inc., general partner of LOMA, limited partnership that 11 document, let's switch to that. You said that around 12 decides who are the directors of Berry GP? 12 February of 2023, it was brought up at that meeting? 13 A. That is correct. 13 A. At a board meeting, yes. 14 Q. And was that brought up at the shareholder 14 Q. Okay. And do you have any doubt in your mind 15 the correct Becon, Inc., shareholder level? 15 about that? 16 A. Brought up as? 16 A. No. Well, the date may not be perfect. A lot 17 Q, Was it brought up at the March meeting to 17 of water has gone under the bridge since then, but I 18 appoint a new director? 18 know it happened before anybody was talking about doing 19 A. It may have been on the list, but we didn't do 19 anything with the dock. 20 that. 20 Q, Okay. And let's go back and make sure, though. 21 Q, Well -- 21 Does the CEO, for example, does -- does he need -- if he 22 A. Oh, no, we did it in March. I think we did it 22 wants to sell a piece of real estate, does he need a 23 in March, yes, we did. 23 vote from his directors? 24 Q. Was Bonnie's name 24 A. A hundred percent. If he -- if he is going to 25 A. Yes. 25 sell a piece of real estate, it has to come to the board

Q, Was she -- was she confirmed -- to be sold; always has been, always will. 2 A. Yes. 2 Q, How long has that been the status quo or the 3 Q. -- as a director? 3 rule at Berry GP? 4 A. That's correct, yes. 4 A. From the beginning. 5 Q, Okay. By Becon, Inc.? 5 Q, For you, from the beginning? 6 A. That's correct. 6 A. Yes. 7 Q, Okay. By the shareholders? 7 Q, Okay. Does he need permission to market a 8 A. By the shareholders. 8 piece of real estate? 9 Q. And did Lawrence vote for that or against it? 9 A. No, he doesn't. 10 A. He voted for it. 10 Q, Okay. So, it was brought up at a meeting, 11 Q, So and, of course Bonnie, is she voting Dennis' 11 you're telling us, right, and more or less in February 12 shares? 12 of 2023, but could he - and I'm not saying he would or 13 A. She is voting her shares. 13 not saying he did - but could he have, if he wanted to, 14 Q, Point well taken. Did -- so, was the vote 2/1, 14 market it or kind of test the market? Could he do that, 15 1/2, or unanimous, in -- in favor of Bonnie being a 15 as CEO? Did he have that authority? 16 director? 16 A. That's what he was instructed to do, was to go 17 A. Unanimous. 17 test the waters. He wasn't -- he wasn't -- that was it, 18 Q, And was there also a vote at that same 18 go test the waters. 19 shareholder meeting with regard to ratification of your 19 Q, By the way, and there's been some complaint 20 loan? 20 now, and the petition hasn't been heard much about here,

21 A. Yes. 21 was there also a complaint by Lawrence in a petition 22 Q, And ratification of Dennis' loan? 22 that you're selling the airplane and that he didn't want 23 A. Yes. 23 you to sell the airplane; do you remember that? 24 Q, Because nobody ratified mother's loan, did 24 A. Yes, I do. 25 they? 25 Q, Has that also been part of the discussions?

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A. don't know if we brought up that at a board Q, Four or five months out of the year? 2 meeting or not, but i t didn't have to be. But when you 2 A. No, every -- one day out of -- maybe two days 3 said, "I want to sell the planes" or RYou're selling 3 out of every -- about every four or five months, you 4 planes, i t would not be me, that would be the company, 4 know, in that time frame. It could be five vessels 5 they own the planes. They bought the planes. It would 5 leaving for the same customer and it takes a week to do 6 be under the CEO to make a decision, and he really 6 it, but then it might be six months we do nothing, It 7 doesn't have to come to us, if he sells them. 7 could be a year we do nothing. 8 Q, Yeah, that's what I was going to ask you. 8 Q, Okay. 9 A. He could be jeopardizing his job, but he 9 A. But you've got to have some access. 10 doesn't have to come to us. 10 Q, And I think probably most of them, but what are 11 Q, Fair enough, Yeah, does the CEO need 11 most of those docks down there -- what are most of those 12 permission to market the planes? 12 docks down there using in the Port inner harbor? 13 A. Absolutely not. 13 A. They're all petroleum docks. 14 Q, Does the CEO need permission, per your bylaws, 14 Q, Yeah, it's all liquids and 15 to sell the airplanes? 15 A. Liquids. 16 A. No, he does not. 16 Q, Yeah. And how often are they generally -- how 17 Q, Okay. In this February or so time frame of 17 many -- are they using those daily, generally? 18 2023, can -- what can you tell us -- can you give us any 18 A. They're using them. Every time there is an 19 information about -- or any more information about what 19 opening they bring another ship in. 20 was said about selling the dock? What was that 20 Q, Yeah. And i f you're using a dock, i f 21 conversation? 21 you're a -- if you're moving crude, for example, and 22 A. At the board meeting? 22 you're using the dock every day, and you're pumping a 23 Q, Yes, sir. 23 million barrels into a ship every two or three days and 24 A. You're talking about the board meeting? Just 24 it's coming in and out, if you're having that frequency 25 talked about the dock as a lazy asset that's not 25 of the use of the dock, is that a more valuable use than

producing, and we ought to look at the value of it and using i t every -- a week in six months? 2 see if we could get somebody that would offer a value 2 MR. REASONER: And I've just got to, again, 3 that would make it good to get rid of it. We'd always 3 object. 4 keep the access to go across for the stuff from our 4 THE COURT: Leading? 5 company, like vessels we build and stuff, because there 5 MR. REASONER: Yes. 6 is a roll-on, roll-off aspect to that dock that they 6 THE COURT: Sustained. 7 could -- you could always use, and you'd have to 7 MR. ALLISON: Yes. 8 continue that, put that in the sale, but that was 8 Q, (By Mr. Allison) Do you have an opinion about 9 that was pretty much a known deal. 9 whether or not using it once a month, or for a week 10 Q, To really understand that, please explain to 10 every six months, is that getting the getting value 11 the Court, what is it that Berry companies use the dock 11 out of that dock? 12 for? 12 A. That's exactly why we want to go market it, go 13 A. We use the dock, our company uses the dock 13 test the waters, because we weren't utilizing the dock. 14 to -- the stuff that we produce at our main yard on 14 Q, Okay. 15 Valero Way, there at Corn Products and 37, we produce 15 A. Utilization was low. 16 modules, and we produce AS10 pressure vessels for 16 Q, And are there other better uses of the dock? 17 refineries alone, which you see standing up. We have to 17 When you look to your left in the ship channel , and you 18 have a place to load them, and that's where we load 18 look to the right in your ship channel, are there other 19 them. We go down there to our heavy lift dock, take 19 better uses for the dock? 20 them down to Up River Road and then go down to our dock 20 A. Absolutely. I understand we do have barges 21 road, and they load straightaway. 21 that come in there and load liquids, but it's pennies, 22 Q, And do you do that every day, or once a week, 22 compared to what -- if you add it up, it's it's not 23 or once a month? How often are you using the dock for 23 justification of what we're doing or could be doing with 24 that purpose? 24 that money, 25 A. Probably four or five months. 25 Q, And you said something a moment ago about

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reserving use on the dock. What did you mean by that? resulted in an MDA being started? 2 If you sold it, you reserve use or something like that. 2 A. I believe they -- it did, yes. 3 A. You'd reserve an easement so I could load out 3 Q. And did Buckeye, are they interested in 4 those vessels I talked about. You you would never 4 purchasing the Berry dock? 5 sell that dock without having your and I said this in 5 A. No. 6 a board meeting recently too, the same thing. You 6 Q, Have they expressed some -- there 16 acres that 7 would -- you have to -- we'd have to reserve the right 7 goes with the dock; right? 8 to load. We'd never cut our throats. We don't just 8 A. Yes. 9 sell the dock and now we can't use the main yard to 9 Q. What do you-all call that? 10 build vessels because we can't get them out and get them 10 A. Sixteen acres. 11 on the water. You've got to hold it, that's just common 11 Q, Okay. Had Buckeye expressed some interest 12 sense. No one ever talked about getting rid of the dock 12 maybe in the 16 acres? 13 and all access to it, that's never happened. 13 A. Yes, they have. 14 THE COURT: Your plan is to retain use of 14 Q. And did it make sense to sell them the 16 acres 15 the dock, when you need it? 15 and strand your dock? 16 THE WITNESS: Access, yes, sir. 16 A. No, it does not. 17 THE COURT: Right. 17 Q, Are you-all interested in making that deal with 18 THE WITNESS: Yes, sir. 18 Citgo? 19 THE COURT: Sell it' but when you need it. 19 A. With Citgo? 20 THE WITNESS: We'd pay a fee for that. 20 Q, I'm sorry, are you-all interested in making a 21 THE COURT: Yes. 21 deal with Buckeye, where you sell them the 16 acres and 22 THE WITNESS: Yeah. 22 not sell them the dock? 23 Q, (By Mr. Alli son) You could negotiate that into 23 A. I would vote "No" on that. So, no, I would 24 the deal? 24 not. 25 A. If somebody wants it' that's going to have to 25 Q, And that's a good point; everybody gets a vote,

be negotiated into the deal. right? 2 Q, Okay. Now, we've heard about the letter to the 2 A. That's the way it works. 3 Port of Corpus Christi; you remember that? 3 Q. How long has it been the way it works, where a 4 A. Yes. 4 majority of the three of you control whether there is a 5 Q, Are you aware of any negotiations where the 5 sale or not a sale? 6 Port has engaged with a process to maybe buy the dock? 6 A. Ever since the three of us had the right to 7 A. I'm aware of negotiations. I know they did a 7 vote. 8 lot of footwork, yes. 8 THE COURT: That's the tradition? 9 Q. Okay. Did they ever make an offer to anybody? 9 THE WITNESS: Yes, sir. 10 A. No. 10 Q, (By Mr. Allison) Well, and to -- to that 11 Q, Did the Port ever make an offer? 11 point, are you aware that the bylaws talk about a 12 A. No. 12 requirement for a vote, in order to acquire property? 13 Q. So it's been on the market now, I guess not 13 A. Yes. 14 quite a year, but are you aware of any offer from the 14 Q, Okay. And do you think the rule is any 15 Port of Corpus Christi? 15 different for -- for you? Do you think the rule is any 16 A. No, nothing from the Port of Corpus Christi. 16 different for you to, as far as selling property? 17 Q, You mentioned Valero a moment ago as being 17 A. Absolutely not. I think it's the same. 18 somebody that maybe to pre-market it to, or market it 18 Q, Okay. 19 to; has -- has Valero ever made an offer on the dock? 19 A. And we've never exhibited it; if we had done 20 A. Not that I'm aware. 20 any different than that, we've always gone before the 21 Q. I think there is also -- there is an exhibit, 21 board. 22 are you aware of whether or not Buckeye expressed some 22 Q, In fact, has there been any -- and we 23 interest, maybe? 23 understand that ever since I guess, the lawsuit, the 24 A. Yes. 24 application for temporary injunction that was done back 25 Q, And as -- do you know whether or not that 25 in November of 2023 and amended, I guess about a week

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ago, are you aware generally of that? advance notice before I can vote on thisR?

2 A. Yes, I am. 2 A. No. 3 Q. And, of course, all of those documents are -- 3 Q. Did he say anything, like in his current 4 well, they're asking for what they're asking for, right? 4 request right now, he says he wants all the details of 5 A. Yes. 5 the sale two weeks ahead of time, did he saying like 6 Q, Okay. And you know some of those requests have 6 "Well, I need more details about the transaction before 7 to do with sale of real property, right? 7 can consider it"? 8 A. Yes. 8 A. No, he did not. 9 Q. And do you understand, for example, whether or 9 Q. Did he do you remember anything -- was there 10 not Lawrence is asking for some sort of injunctive 10 a discussion about it? 11 relief where you -- you can't sell the property at this 11 A. Hell of a good deal, that was the discussion. 12 point, he wants you to not be able to sell it without 12 Q, Are you in -- you understand right now, and I 13 two weeks' notice and notice of the date; right? 13 want to make sure, you understand that originally he'd 14 A. Yes. 14 asked that he alone would have to approve a sale of real 15 Q, Okay. Did you recently have a board meeting 15 estate for it to happen? 16 where you sold property, real property? 16 A. Did I understand that is what he asked for? 17 A. Yes. 17 Yes, understand that. 18 Q. When was that? 18 Q. You understand now that he is not saying that 19 A. I think that's our very last board meeting, it 19 anymore, that he doesn't -- that think now he is 20 was probably the first of this month. 20 willing to abide by a 2/1 vote, if that's what the vote 21 Q, Okay. 21 is on the sale of the dock or real estate? I think 22 A. March. 22 that's his pleading now. 23 Q, Okay. And during this last board meeting, 23 A. Okay. Well , I thought it was 24 whenever that was, when you sold property, what real 24 MR. REASONER: Excuse me. I f we could just 25 property got sold? 25 do question and answer, Your Honor. Objection, leading.

A. A piece of property, part of a piece of MR. ALLISON: I just need to lay the 2 property outside of Sinton, Texas. 2 predicate it for -- for the question, but I'll move on. 3 Q. Okay. And who did it get sold to? 3 THE COURT: Don't lead. 4 A. Texas Department of Transportation, TXdot. 4 Q. (By Mr. Allison) If the current pleading says 5 Q, And did you receive formal notice of a meeting 5 "I, Lawrence, want two weeks' notice," is that agreeable 6 where that would get voted on? 6 to you? 7 A. As formal a notice as we do in our company, 7 A. Absolutely not; no, it's not. 8 yes. 8 Q. Why? 9 Q. And -- and 9 A. Well, why would you just have one board or 10 A. I think it was an agenda item or something like 10 director get singled out and he gets two-weeks' notice? 11 that. 11 How about come to the -- change the bylaws and make it 12 Q, Okay. And when did you receive that agenda 12 where everybody gets two weeks' notice; I can vote for 13 item, so that you could get this notice, formal or not? 13 that. I'm not going to single out anybody. No one 14 A. Two or three days before the meeting. 14 has - - needs to be anything special . It's a it's a 15 Q, And did you have the meeting? 15 business. It's run -- run it like a business. Let's 16 A. Yes, we did. 16 just use our bylaws and go to the bylaws and change 17 Q, And did the property -- was there a vote on 17 them. If it's something that wi 11 be changed, it will 18 whether or not Berry GP would sell that real property? 18 get changed. If it makes sense, we'll change it. 19 A. Yes, there was. 19 Q, And let me ask you then, focus on with what you 20 Q, And what was that vote? 20 just said and talking about the two weeks. If you're 21 A. Unanimous vote of all three of the directors. 21 going to have some sort of notice period, whether it's a 22 Q, You, Bonnie, and Lawrence? 22 week, or ten days, or two weeks, whatever the three of 23 A. That's correct. 23 you or two out of the three might agree to, if you're 24 Q, And during that meeting, did Lawrence complain, 24 going to have something like that, what if the deal came 25 "Hey, we can't sell this because I need two weeks' 25 up and you-all had to make -- make a decision in three

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days? A. That's -- that's correct. 2 A. That was the deal that came up. 2 Q, Okay. Sorry. Right now, is there any sale of 3 Q. Tell me what you mean. 3 the dock pending? 4 A. The TXdot deal was exactly that. They came up 4 A. Nothing that I'm aware of. 5 and they offered a large sum of money but if we didn't 5 Q, Is there any offer that you're aware of? 6 have an answer think in five days, they were going to 6 A. No. 7 condemnation. It was a great deal. It had to be acted 7 Q, If there were an offer made -- first of all , 8 on. I mean, it was just a great deal. You should be 8 let me ask you, if it's a low ball offer, does the CEO 9 able to -- you know, if you pass the deal, where you got 9 even have to bring it to the board? 10 two weeks' notice you put in there, or you could waive 10 A. No. He doesn't have to bring it to the board 11 notice and you can vote. I mean, there is ways to do 11 at all. 12 this, for the bylaws, if you wanted to do this. 12 Q, If there is a serious offer, would you expect 13 Q. Okay. And do you think that - - well, with 13 the CEO to bring it to the board? 14 I'm trying to figure out how to ask it. With respect, 14 A. Yes. would kind of expect to hear about it, 15 do you think that that's a matter to be addressed in the 15 yes. 16 bylaws? 16 Q, Okay. And so whether it's from the Port, or 17 A. Absolutely. 17 from Valero, or Buckeye, or somebody else, or anybody 18 Q. Okay. At the beginning, do you remember 18 else, are you aware of any offer, let's say in the last 19 whether or not Mr. Lawrence Berry's request was to not 19 month, that's come to your attention in any way, shape 20 allow any sale or encumbrance or mortgaging on any 20 or form, that was serious? 21 property? 21 A. None, whatsoever; none. 22 A. do remember that. 22 Q, Have there been any serious offers at all? I'm 23 Q, And was that -- how did that -- this is at a 23 assuming there's just been some talk. Have there been 24 period of time, because now we're talking about November 24 any serious offers at all, since it was marketed, 25 of '23, December '23, January '24, was that at a period 25 beginning around May?

of time -- what was happening with Frost Bank? A. None at all . 2 A. We were signing notes and stuff, which 2 Q, Do you expect do you think the sale of the 3 basically gave Lawrence the ability to turn down 3 dock is in any way, shape or form imminent? 4 anything, without the say-so of the majority. 4 A. No. 5 Q, Did that -- did that TRO or the injunctive 5 Q, Do you think that you would have the best 6 relief sought, did it become an issue, in your 6 interests of the company, on voting whether to sell or 7 discussions with Frost? 7 not sell, if there was a serious offer? 8 A. Absolutely. 8 A. Yes. 9 Q. In a good way or a bad way? 9 Q. Do you think Bonnie would have the best 10 A. Bad way. 10 interests of the company at heart, if she were 11 Q, How so? 11 considering to sell or not sell, if there were a serious 12 A. Well, you've got a owner of the company going 12 offer? 13 for a TRO, and you're trying to negotiate a loan with a 13 A. Yes, I do. 14 company that shows instability, it's never good. 14 Q, And I understand you and Lawrence have 15 Q, And specifically, was the dock part of the 15 disagreed about the sale of the dock at times, right? 16 collateral with the Frost loan? 16 A. There's never been a pending sale. We haven't 17 A. Yes, it was. 17 disagreed about the sale of the dock. 18 Q, Had it, for years, and years, and years been 18 Q, Fair enough. There hasn't been -- there hasn't 19 part of the collateral with the IBC loan? 19 been an offer, so there is nothing? 20 A. Yes, it had. 20 A. Nothing. 21 Q. In your word "negotiations,R were there 21 Q. Okay. But -- but let me ask it this way: 22 negotiations then, where that was pulled out of the 22 Whatever his perspective is, do you think he would vote 23 in other words, there was an exception made, so that the 23 what he thought was right? Whatever that is, do you 24 pledges could be made and I guess they -- Lawrence 24 think Lawrence would at least vote for what he thought 25 agreed, ultimately? Fair enough? 25 was right?

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A. thought that before he filed that lawsuit, MR. HUSEMAN: Yeah. 2 but I just don't know anymore. 2 Q, (By Mr. Huseman) Marty, would you help me 3 Q. Do you think that -- and do you i f -- i f 3 simplify this thing for the Court a little bit? 4 there were a sale of the dock right now, is the dock 4 A. Yes. 5 pledged as collateral? 5 Q, Okay, there we go. That will satisfy Mr. 6 A. Yes. 6 Reasoner's objection as well. 7 Q, To to who? 7 So, it strikes me that there is basically three 8 A. To Frost. 8 birds under the blanket for your brother, at least as 9 Q. And so if there were a sale, what does Frost 9 expressed by his lawyers. One is the loan situation, 10 have to right to do? 10 where you and your brother Dennis, and maybe your 11 A. They take all the proceeds. 11 mother, Laura, have lent money to the company; the other 12 Q, And pay back their line of credit? 12 one, the second thing is the business about the cranes 13 A. Absolutely, first - - first and foremost, that's 13 being bought and leased back to the company; and the 14 where it goes. 14 third one is about the company being able to sell 15 Q, So, by signing subordination agreements, have 15 certain assets, land, airplanes, but those three grass 16 you assured them of that? 16 burrs are what I want to address with you. 17 A. Well, through the fact that it's collateralized 17 To summarize the issue on the loan, the loan, 18 with that loan, we've assured them of that there in the 18 if I heard you correctly, was obtained from you and from 19 subordination agreement. It just lets them know we're 19 Dennis in order to provide adequate operating capital 20 not going to be in the way. 20 for the company? 21 Q, And your point is really well-taken, there is 21 A. Yes, sir, 22 really two different reasons. They get first? 22 Q, You-all needed to meet current obligations, 23 A. Yes. 23 you had to pay back loans, things of that sort, and 24 THE COURT: Anything else? 24 that's what the email in the Plaintiff's Exhibit 35 25 MR. ALLISON: We'll pass at this time. 25 talks about?

THE COURT: All right. How about you? A. That's correct. 2 MR. HUSEMAN: have just a few minutes. 2 Q, All right. And if we dig into that just a 3 Of course, it's right before lunch. 3 little bit, there are a number of ways in which a 4 THE COURT: That's fine. 4 company can increase its operating capital, it could, 5 MR. HUSEMAN: So I' 11 try to get it wrapped 5 for example, sell ownership in the company, which would 6 up before then, Your Honor. 6 imply that if you gave them, say, 40 mi 11 ion bucks, that 7 THE COURT: I'm listening. 7 you get 40 million bucks for the ownership in return for 8 MR. HUSEMAN: All right. 8 it; that would be one way to raise capital, wouldn't it? 9 CROSS-EXAMINATION 9 A. Correct. 10 BY MR. HUSEMAN: 10 Q, But that, of course, would diminish your 11 Q, Hr. Berry, you've been the focus of very 11 brother Lawrence's share in the company, if you did 12 skilled interrogation by Mr. Reasoner and Mr. Allison 12 that; right? 13 and it's very complicated, lots of documents and things. 13 A. It would. 14 And will you assist me in perhaps trying to simplify the 14 Q, And you had the capability to do that, if you 15 issues that are being presented here. 15 wanted to, but you didn't? 16 A. To me, I think what's trying to be presented 16 A. Did not. 17 here is that 17 Q, All right. Another thing that you could do, 18 MR. REASONER: Your Honor, I don't think 18 which I'm going to suggest would be a stupid financial 19 there's a question pending. 19 move, you could just give him the company, right? Just 20 MR. HUSEMAN: Well, there was. 20 write him a check and say here you go, Merry Christmas? 21 THE COURT: There was. 21 A. That's correct. 22 MR. REASONER: I object, vague, vague. 22 Q, The other way you could do it, and this is 23 MR. HUSEMAN: Well -- 23 what's done commonly by companies, is they go to 24 THE COURT: mean, I think it's a "Yes" or 24 financial markets, get a note, because you-all couldn't 25 "No" question. 25 do that because you were already tapped out on your line

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of credit with IBC, weren't you? change. 2 A. And all of our collateral was tied up, correct. 2 Q, (By Mr. Huseman) Was the loan that you made, 3 Q. Everything was tied up, so there wasn't any 3 which was the last choice in terms of raising capital 4 lending. And so, of course, you chose the thing that 4 for the Berry entities, was that a good deal for you? 5 they're complaining about, is what you did, is you made 5 A. No. 6 a loan to the company of millions of dollars of your 6 Q, Was it a good deal for Berry? 7 money? 7 A. Well , it's not - - not a good deal for me if I 8 A. Yes. 8 didn't believe in the company, but I own that company, 9 Q. You did it for an interest rate, which was less 9 so it was a good deal to sur -- to keep the company on 10 than the going commercial rate at the time the loan was 10 survival. Yes, it was.

11 made, the interest rate that was suggested by the 11 Q, Did that -- 12 borrower 12 A. Personally, no.

13 A. Yes. 13 Q. Did that play off, in relation to the bank? 14 Q. -- right? 14 Did you tell the bank what you were doing? 15 A. Yes. 15 A. I did not. 16 Q, And you did it with no collateral? 16 Q, Did they learn about it? 17 A. Yes. 17 A. Of course. Our CFO informed them immediately. 18 Q. You took a back seat, by the way, with that 18 Q. Okay. And did you get good or bad feedback on 19 subordination agreement to the other lenders, in other 19 that? 20 words, you •· 20 A. I don't think there was any feedback, that I 21 A. Yes. 21 heard. 22 Q, -- you took the back seat of the bus. And you 22 Q, Okay. So anyway, you - - you took the last 23 gave them actually more than you could afford to give, 23 choice that you had, in terms of getting more operating 24 but you actually gave them your tax reserve as part of a 24 capital in. And as - - as Mr. Alli son had you point out 25 way to keep the company afloat and going; right? 25 a minute ago, you offered the same thing to your

A. That's correct. brother, any, all, or a piece, whatever, and he wasn't 2 MR. REASONER: Your Honor, I'm just going 2 interested in doing that to help the company, was he? 3 to have to respectfully object. We move from summary, 3 A. He hasn't been, no. 4 to the leading and argument. 4 Q. All right. So that's the first grass burr. 5 MR. HUSEMAN: Well, he's not my client, for 5 The second thing about the cranes, tell the Judge, just 6 one thing, Your Honor. 6 in your own words, what sort of cranes we're talking 7 MR. REASONER: But I don't - - I don't 7 about here. 8 believe he can lead this witness. He is 8 A. These are ex -- the largest hydraulic cranes 9 MR. HUSEMAN: Why can't I? 9 they make, they are 1200 tons. There is some different 10 MR. REASONER: a friendly witness. 10 ones that aren't as big, but four of them are like that, 11 MR. HUSEMAN: Why can't I? 11 they're huge cranes. They're made for putting up wind 12 MR. REASONER: Because he's not an adverse 12 generation in west Texas, that's what you'd use them 13 witness. 13 for, that's what we are using them for. Our director of 14 THE COURT: I think he is -- he is a 14 the Heide (phon) Haul, our rigging group, we hired a man 15 witness associated with your side of the bar. 15 that was only from the wind farms, he said he needed 16 MR. REASONER: He is not an adverse 16 these types of cranes to perform out there, and we 17 witness. 17 started with one, and then we added one in about six, 18 THE COURT: I'll sustain. 18 seven months, and then we added another one. And then 19 MR. HUSEMAN: I guess it's whether he says 19 we even added another one, and another one, and another 20 "Yes" or not, Judge, I guess. 20 one. It -- it was for a business unit that has -- has 21 MR. REASONER: He may not be need -- 21 really done quite well. 22 THE COURT: mean, I'm sure you're 22 THE COURT: These -- these are these big 23 skillful enough to do it in a non-leading way and get 23 windmills that -- 24 your question. 24 THE WITNESS: Yes. 25 MR. HUSEMAN: Oh, I'll give it a try, for a 25 THE COURT: -- that you see here also.

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THE WITNESS: Wind generation, yes, sir. instrumental in getting these cranes into Berry's hands, 2 THE COURT: And -- and -- okay. 2 for getting in the windmill business? 3 Q. (By Mr. Huseman) So, the - - so, did the Berry 3 A. Yes, sir. 4 companies, first of all, did they have the cranes that 4 Q. And it had a deal where they were going to pay 5 it would take to do these wind windmi 11 farms? 5 you a lease rate on them, and then were going to 6 A. No, sir, had none. 6 eventually own them? 7 Q, Okay. And did you-all have the money to go buy 7 A. They never did. 8 the cranes or get the cranes to do that? 8 Q. Buy -- buy you out on it? 9 A. No, sir. But the first one, we -- we came 9 A. They were going to they were going to 10 together with some money with the company that the three 10 basically own them after a year. They would take 11 brothers owned, they -- they took half of it, and then I 11 half the payment would apply to the crane -- 12 took the 12 Q, Uh-huh. 13 Q. Rigging outfit? 13 A. and they would end up buying the crane and 14 A. Yes. And then I 14 owning it. 15 Q, Was it a rigging outfit? 15 Q, And then you'd be out of it? 16 A. Yes. And then I took the other half, and then 16 A. I'd be out of it. 17 so I own 60 something percent of it. 17 Q, Okay. Well , there was a pro bl em with that, 18 Q. Uh-huh. 18 wasn't there? 19 A. And then the company in our written agree -- 19 A. Money. 20 and it was a loosely written agreement. The agreement 20 Q, Okay. Did -- are they -- is Berry companies 21 was they're going to pay me for the first 12 months, 21 were they making I presume they're making money off 22 $70,000, they're going to pay me half of that back, and 22 the cranes, even as we sit here? 23 they were going to own that half of the crane, and it 23 A. Yes, they are. 24 would go to Bay Canada. 24 Q. When is the last time they made a payment to 25 Q, Uh-huh. 25 you for any of these lease payments?

A. They never made all the payments, couldn't make A. I testified to that earlier, I believe it was 2 the payments. They couldn't buy the crane, couldn't 2 June or July of last year. 3 even make the payments. 3 Q. Okay. So about eight, nine months ago was the 4 Q. Okay. 4 last time you received a payment on this deal? 5 A. But that didn't stop me from wanting to go on 5 A. That is correct. 6 with more cranes because it was a huge production of 6 Q, Okay. And if they were -- wanted to buy the 7 capital. Just because they weren't paying, and in all 7 cranes, per their original deal, would you be good with 8 fairness, not paying me, I told the people in 8 that? 9 accounting, "Don't pay me, I got vendors that need to be 9 A. I'd be good with that, up to a point. We'd 10 paid." 10 like to get some payments first. 11 Q, Okay. 11 Q, Okay. All righty. And you've invested what? 12 A. "You pay our vendors. 12 I'm told by post-it-note you've maybe invested as much 13 Q. Okay, let's slow down. 13 as 25 million on these cranes? 14 A. Okay. 14 A. It's it's a lot. Those first cranes were 15 Q, I want to -- 15 about 4 million a piece. 16 A. Okay. 16 Q. And the crane -- and the company is making 17 Q, I want to dissect it because you crammed a lot 17 millions off of using them, as we speak? 18 into one answer. The company didn't have money to buy 18 A. Absolutely. 19 the cranes; right? 19 Q, And you -- and you're not getting paid a darn 20 A. That's correct. 20 thing? 21 Q. You-all wanted to get in the windmill business, 21 A. At this time, no, I'm not. 22 which you weren't in, and you didn't have the capital to 22 Q, All right. Okay. Let's go to the third grass 23 do it? 23 burr to get done before -- get that -- get this blanket 24 A. That's correct. 24 cleaned up here. 25 Q, And so you, through your company, were 25 About the land sales and sales of the airplane

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and all this, this stuff has all been handled in THE COURT: All right. Well, then I guess 2 accordance with a set policy by the company for years, 2 we'll take it for lunch, and we'll come back at 1 :30 and 3 hasn't it? That's what you told the Judge minutes ago? 3 we'll continue on then. 4 A. That's correct. 4 (Noon recess.) 5 Q, There's not ever been threatened and there's 5 THE COURT: Okay. So, recross? No? 6 not going to be any sale done, which Lawrence Berry does 6 MR. REASONER: Pl ease, Your Honor. won't 7 not have a say in? 7 be -- I won't be long. 8 A. That's correct. 8 THE COURT: All right. 9 Q. Okay. And do you see what the theme is between 9 MR. REASONER: Are you ready, ma' am? 10 these three complaints, what the motivating problem is 10 (Court reporter responding.) 11 in all of these? 11 RECROSS-EXAMINATION 12 A. Do I see it? Yes, I do. 12 BY MR. REASONER: 13 Q. Okay. want to suggest to you that the 13 Q. Good afternoon, Mr. Berry. One of the things 14 problem is that this is -- complaints are being made and 14 you testified to at some length with opposing counsel 15 complaints involving things where you're trying raise 15 was how important a CEO is to the company; is that 16 capital for the company, sell off an asset so you can 16 right? 17 use it elsewhere. You know, you buy the cranes so the 17 A. That's correct. 18 company can use them to make money because the company 18 Q. And the -- a critical position that is with a 19 doesn't have to offer any capital goods. Making a loan 19 lot of power; is that right? 20 to the company you, your mom, your deceased brother, all 20 A. That's correct. 21 making loans for operating capital. All of these things 21 Q, And yet, sir, we are in a situation where 22 have to do with the capital structure of the company, 22 unfortunately the current CEO is incapacitated, for 23 don't they? 23 MR. ALLISON: Your Honor, just - - we - - 24 A. They do. 24 Q. (By Mr. Reasoner) -- what could be some period 25 Q, And so what's being asked here in court by 25 of time; is that right?

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these folks over here is that the Judge step in and MR. ALLISON: Your Honor, we just object to 2 substitute his judgment for the judgment of the 2 relevance. I mean, I don't see how this has anything to 3 business's management and this board; right? 3 do with the specific relief sought. I don't mind them 4 MR. REASONER: Objection, leading, arguing. 4 letting you know and obviously, we do have a situation 5 THE COURT: Sustained. 5 where it's -- it's delicate for the company, but I just 6 Q, (By Mr. Huseman) Yeah. The problem here is 6 don't see any relevance to it. 7 that Mr. 7 MR. HUSEMAN: We do agree. 8 THE COURT: Look. -- I get your point. 8 THE COURT: mean, I haven't heard a 9 MR. HUSEMAN: Okay. 9 question yet. 10 THE COURT: get your point. 10 MR. REASONER: And - - and, Your Honor, 11 MR. HUSEMAN: All right. 11 at -- at the risk of previewing why I'm going into this, 12 Q, (By Mr. Huseman) And so, it's just that 12 this is a situation where they do not have anyone in 13 simple, isn't it? It's -- it's a capital issue? 13 place. 14 MR. REASONER: Objection. 14 THE COURT: Yeah, I got that. 15 THE COURT: Sustained, but I get your 15 MR. REASONER: This emphasizes the -- the 16 point. 16 critical -- 17 MR. HUSEMAN: Okay, good. I'm talking too 17 THE COURT: There is no CEO. 18 much anyway, Judge. 18 MR. REASONER: Correct. 19 THE COURT: Well, I got the point. 19 THE COURT: There is a CFO, I guess. 20 MR. HUSEMAN: Okay. 20 MR. REASONER: Correct. So, I just have a 21 THE COURT: get the point you're trying 21 brief follow-up on that 22 to get across. 22 THE COURT: Okay. 23 MR. HUSEMAN: Okay. 23 MR. REASONER: -- based on the questions -- 24 THE COURT: Anything else, Mr. Huseman? 24 THE COURT: All right. 25 MR. HUSEMAN: No. 25 MR. REASONER: -- of opposing counsel.

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THE COURT: Go ahead. Q, All right. And have you proposed someone else 2 Q, (By Mr. Reasoner) And and, sir, in spite of 2 who has that experience to do this? 3 that level -- well, we are in a situation, 3 A. No. I'm still researching it. I haven't 4 unfortunately, where it appears the current CEO may be 4 proposed anybody. I only had one board meeting that 5 incapacitated for some extended period; is that right, 5 that was brought up and I haven't -- I haven't proposed 6 sir? 6 anyone.

7 A. Could be. 7 Q, And have you involved Lawrence Berry in the 8 Q. mean, that's -- that's certainly -- again, 8 process of trying to find someone who would be, in your 9 don't want to delve into the gentleman's condition here 9 view, suitable for that position, for an -- on an 10 but you -- that's certainly a possibility, that it could 10 interim basis? 11 be an extended period? 11 A. I hadn't involved any of the other directors, 12 A. Or he could be back in two or three days. 12 no one.

13 Q. Oh, is that okay. 13 Q. Just yourself? 14 A. I communicated with him last night, so it's 14 A. Just myself. 15 just a matter of time. 15 Q, You talked about attendance at the office. 16 Q, All right, sir. But do you have any - - because 16 You're aware that Berry's executive office in Houston 17 you're getting into that, do you have any understanding 17 was over at the Riverway Building; is that correct? 18 of when he will be clear to take over his role? 18 A. That is correct. 19 A. No, I do not. 19 Q. And that was for many years, up until a month 20 THE COURT: He's not clear today, we got 20 ago, when Mr. Powers closed that office; is that 21 that but - - 21 correct? 22 THE WITNESS: Yes, sir. 22 A. Well, let's go back. What do you mean by 23 THE COURT: But - - but, okay. 23 "executive officesR? 24 Q. (By Mr. Reasoner) And it was a -- a stroke was 24 Q. Well, you knew Lawrence Berry, among others, 25 what took place? 25 worked there at the Bay office in Houston; correct?

A. That's correct. A. That's correct. 2 Q, And you have not, up to this point, voted in 2 Q, And he held executive positions in the company; 3 favor of, or proposed an interim person, whether within 3 correct? 4 the company or from without, to take that position in 4 A. That's correct. 5 the interim? 5 Q, And did you go to the Houston office regularly? 6 A. I haven't. That's a simple question, no, I 6 A. No. 7 haven't. 7 Q, Okay. Do you have any doubt that Mr. Lawrence 8 Q. All right. And in fact, you did not support 8 Berry went to the Houston office regularly? 9 the the idea of Mr. Luhan, who was there for 30 9 A. think he went to the Houston office. I don't 10 years - - 10 know how regularly. 11 MR. ALLISON: Your Honor, asked and 11 Q, Okay. You don't have information about it? 12 answered. 12 A. No. 13 THE COURT: Sustained. 13 Q. All right. So, when you were talking to 14 Q, (By Mr. Reasoner) Are you aware that the 14 opposing counsel about him no-showing at the office, 15 bylaws require that when the president or CEO office is 15 you're talking about the Corpus office; right? 16 vacant, that the board is to -- to put someone in it? 16 A. Where all the action takes place is in Corpus 17 A. Absolutely. It doesn't say you jump in and put 17 Christi, our main office. 18 the wrong person in there. It says you've got to put 18 Q, Well -- 19 somebody in it, and I think that process is going. 19 A. That's what I was talking about. 20 Q, Okay. And so Mr. -- Mr. Luhan is the wrong 20 Q, Okay. Well , you don't know - - I guess it 21 person, in your view? 21 sounds like you didn't much go to Houston, so you can't 22 A. Mr. Luhan has been with the company for 25 or 22 tell us much about the action that was going on there, 23 30 years, and he was made the president of one of those 23 can you? 24 companies. He's never been in a CEO position of a 24 A. If it dealt with our company, I could tell you 25 company this size. 25 about it.

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Q, All right. You're aware a lot of transactions Q, Were you involved in gathering information to 2 took place from that office; correct? 2 see, in light of that restructuring, what Lawrence Berry 3 A. I'm not aware of that. 3 should owe and what should be paid? 4 Q, Okay. So that -- when you learned about that, 4 A. No. 5 about transactions that were involved -- involved in 5 Q, You talked about offering Lawrence Berry the 6 that office, that would be news to you? 6 opportunity to participate in the 75 million dollar 7 A. No, I know about some, but I'm not aware of all 7 loan; do you recall that testimony? 8 the things that 8 A. Yes, sir, I do. 9 Q, Okay. 9 Q, And just so the record is clear, that offer was 10 A. -- have transpired 10 not made until after this lawsuit was filed; is that 11 Q, You can't -- 11 correct? 12 A. -- in that office. 12 A. That's correct. 13 Q, All right, fair enough; that's fair. You 13 Q, All right. And and your testimony is 14 talked about getting things, like weekly cash reports 14 unchanged, that at the time the loan was made you never 15 and regular information. Do you know what information 15 talked to Lawrence Berry about it; correct? 16 was regularly provided to Lawrence Berry? 16 A. Correct. 17 A. I don't know what he asked for. I have no 17 Q, You mentioned, sir, Robert's Ru1es of Order 18 clue. 18 as as something that the -- that you think about, in 19 Q, And my question was a little different. You 19 terms of - I can't remember - you talking about a board 20 don't know what he asked for, you don't know what he was 20 meeting; is that right? 21 given either, do you? 21 A. That's correct. 22 A. No, I do not. 22 Q, All right. Let me ask you, I just printed 23 Q, And looking, for example, at PTX12 that we saw 23 something off here. 24 earlier, if you can pull that from your stack. 24 MR. REASONER: May I approach, Your Honor? 25 A. Yes, I have it. 25 THE COURT: Yes.

Q, All right. And if you look at the second page Q, (By Mr. Reasoner) marked as Exhibit 60 -- 2 of that you see that that is a -- in April of 2023, a 2 Plaintiff's Exhibit 65, sir. If you could have a look 3 request for some extensive information; do you see that, 3 at that. Do you see that that is Robert's Rules of 4 sir? 4 Order, 12th edition? 5 A. Yes, I do. 5 A. Yes. 6 Q, All right. And do you know whether any of that 6 Q, In looking at that, if we go to the next page 7 information was provided? 7 you see that 45:4 says: Abstaining from voting on a 8 A. I do not know. 8 question of direct personal interest. 9 Q, All right. And you weren't involved in trying 9 Do you see that? 10 to make sure that Lawrence Berry received requested 10 A. Yes. 11 information of that kind, were you? 11 Q, No member should vote on a question in which he 12 A. No, was not. 12 has a direct personal or pecuniary interest not common 13 Q, All right. And let me ask you, you talked with 13 to other members of the organization. 14 opposing counsel about Orea, the Orea note. My 14 Do you see that, sir? 15 understanding is that that transaction involved, at one 15 A. Yes, I do. 16 point, a conversion of the company's loan interest to 16 Q, And certainly as to, for example, Western Gulf 17 equity, and then there was a mark to market, and my 17 Equipment, you had a pecuniary interest or personal 18 question is, were you personally involved for the 18 interest not common to the other directors; true? 19 company in how that Orea transaction was structured? 19 A. That may be true. 20 A. was in the board meeting when it was 20 Q, All right. I mean, you know it's true, right? 21 approved. 21 A. I believe that, yes. 22 Q, Okay, But when fol ks came and talked to Mr, 22 Q, Okay. And you never abstained from voting on 23 Berry about converting the company's position, were you 23 the subsequent ratification of the Western Gulf 24 involved in that discussion? 24 Equipment transactions, did you? 25 A. No, I was not. 25 A. No, I did not.

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Q, Okay, And the loans to the company that you Q, And 2 made, those were ones in which you had a direct personal 2 A. Two hundred and something. 3 interest; correct? 3 Q, How many square feet? 4 A. Yes. 4 A. Oh, the building? I couldn't tell you. 5 Q, And you never abstained from voting to ratify 5 Q, And how many acres are around that? 6 those loans after the fact, did you? 6 A. Probably -- there is 54, and we added a hundred 7 A. No, I did not. 7 and something, so I'm not -- I can't give you the exact 8 Q, Sir, on the -- on the issue of the discussion 8 number; 175 to 200 acres around there. 9 you had with Mr. Huseman about the various means that a 9 Q, And the place where the office building is, 10 company could be that money could be injected into 10 where Lawrence maybe goes -- 11 the company; do you recall that, sir? 11 A. Uh-huh. 12 A. Yes, I do. 12 Q, -- is that owned by the Berry companies? 13 Q, And one of the things you mentioned was that a 13 A. Yes, it is. 14 capital - or guess it was Mr. Huseman that mentioned 14 Q, The building is? 15 it, you agreed - that a capital contribution would 15 A. Yes, yes. 16 dilute Lawrence Berry's position; correct? 16 Q, Okay. And is there -- what other property is 17 A. Yes. At the right time, yes. 17 owned by the Berries, up in Houston? 18 Q, All right. And but one of the things, and I'm 18 A. Almeda Road. We have an office out on Almeda 19 not asking you whether this is something that you have 19 Road that we own. 20 advocated, but one of the things that could happen in a 20 Q, Okay. But back to the Corpus - - for the Corpus 21 situation where a majority of directors have loaned 21 location 22 money to the company and a minority have not, the 22 A. That's different than what they're talking 23 majority could vote to convert the loan into equity; 23 about. Almeda is different than the other property that 24 true? 24 they're talking about. 25 A. I'm not sure about that. I just don't know. 25 Q, Okay. And, oh, do you have some docks up in

Q, You don't know whether they could or couldn't? Houston?

2 A. I don't know. 2 A. No. 3 Q, Okay. But that's obviously a complication of 3 Q, So this super valuable dock that Lawrence is 4 someone being involved in both sides of a transaction 4 worried about is the only dock you have here in Corpus? 5 that would need to be considered; true? 5 A. No, we got a dock in Ingleside too. 6 A. guess that would be correct. 6 Q, Okay, fair. And the CEO, where is his office? 7 MR. REASONER: I pass the witness, Your 7 A. It's in 1414 Valero Way. 8 Honor. 8 Q, And the CFO, where does he office? 9 THE COURT: Okay. Is there redirect? 9 A. Same office building, here in Corpus. 10 MR. ALLISON: Briefly, Your Honor. 10 Q, And when mother comes to the office, where does 11 REDIRECT EXAMINATION 11 she go? 12 BY MR. ALLISON: 12 A. Same place. 13 Q, Where does the -- where is the home office of 13 Q, Okay. 14 the Berry entities? 14 A. 1414 Valero Way. 15 A. 1414 Valero Way, Corpus Christi. 15 Q, And where do you have the meetings? 16 Q, How long has the home office or main office 16 A. Fourth th floor, 1414 Valero Way. 17 been in Corpus Christi? 17 Q, All right. Is there any doubt in -- whatever 18 A. It was built in about '50; '53, the company was 18 amount time Lawrence spends in the Houston office, is 19 started, the original company, And it's been - - once it 19 there any doubt where the main office is? 20 was off of McBride Lane and then it moved to Corn 20 A. None, whatsoever. 21 Products, probably in the 60s. 21 Q, Okay. Any doubt where -- by the way, the yard, 22 Q, How many acres are owned over there, that are 22 how big is the yard here in Corpus? Is that 170 23 sort of the -- you guys have got about a four-story 23 something? 24 building over there? 24 A. That yard is about 65 acres right now, and it's 25 A. That's correct. 25 surrounded by unimproved property.

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Q, Is that where the actual production, I guess, Q, And does it show that you and Bonnie voted in 2 or fabrication occurs? 2 favor of something? 3 A. Some of the -- some of the fabrication takes 3 A. Yes, we did. We voted in favor of ratifying 4 place there, yes, that's what we've been talking about. 4 the loans. 5 Q, Okay. Again, any doubt, with all those things 5 MR. ALLISON: And that's Exhibit 117, we'd 6 considered, I mean, when you have the meetings, when you 6 offer that, Your Honor. 7 have your fabrication, when you're loading onto docks 7 MR. REASONER: No objection. 8 and barges and the things he's concerned about, is all 8 THE COURT: It's admitted. 9 of that here in Corpus? 9 Q. (By Mr. Allison) So another one, it's Exhibit 10 A. Yes, it is. 10 118. Can you tell us what that is? 11 Q, Okay. 11 A. Yes. It's a resolution of the special meeting 12 MR. ALLISON: May I approach, Your Honor? 12 of the shareholders of Becon, Inc. , as a general partner

13 THE COURT: Yes. 13 of LOMA limited partnership and (the latter to be acting 14 MR. ALLISON: We've been working during the 14 in its capacity of sole shareholder of Berry GP.) 15 break on exhibits. I'm going to try to do this. 15 Q, Again, approving the loans? 16 THE COURT: Okay. 16 A. Approving the loans. 17 MR. REASONER: Doug, while you're doing 17 MR. ALLISON: We'd offer Exhibit 118. 18 that, I forgot to offer Exhibit 65. 18 MR. REASONER: No objection. 19 MR. ALLISON: I'm sorry, you cannot do 19 THE COURT: It's admitted. 20 that. We have no problem with it. 20 Q, (By Mr. Alli son) Exhibit No. 202 there, can 21 THE COURT: All right, 65 is admitted. 21 you tell us what that is? 22 MR. REASONER: Thank you. 22 A. Looks like from Gustavo Barrera at IBC, to 23 MR. ALLISON: Oh, wait, is that Robert's 23 Robert Powers, an email. 24 Rules? 24 Q. Yes, sir. And it looks like, was it also from 25 MR. REASONER: Yes. 25 Powers to --

MR. ALLISON: Do you really want it in? By A. Powers back, yeah, he responded back to him. 2 that, I mean, I don't think it's - - 2 Q, Okay. And he is providing a -- what's he -- 3 MR. REASONER: How about to make it part of 3 what's that generally look like, to you? 4 the record for the Judge to take j udi ci al notice of? 4 A. He is giving us our -- showing him what we're 5 MR. ALLISON: Sure. 5 doing, going to do with the board, evidently. 6 THE COURT: Okay. 6 Q, Yeah. It's an agenda? 7 MR. ALLISON: You know what I meant, yeah. 7 A. Uh-huh. 8 MR. REASONER: I know where you're going. 8 Q. Is that a "Yes"? 9 MR. ALLISON: It's a little different 9 A. Yes, agenda of the board. 10 animal. 10 Q, Okay. And I think, though, during the break 11 Q, (By Mr. Allison) I'm going to walk you just 11 did you also -- this one actually has on it assets, 12 through some documents here. These are under the 12 sales equipment, additional cost cutting, property sales 13 subject of the loans or the advances. And I'm going to 13 sitting in Three Rivers. Do you see that? 14 have you look at Exhibit No. 117. Do you recognize 14 A. Yes, I do. 15 that? 15 Q, Is it typical for you to discuss property sales 16 A. Yes, I do. 16 i f -- even i f it's real property sales, i f you're 17 Q, Can you tell us what that is? 17 actually going to sell them? 18 A. It's a shareholder meeting of Berry GP. And 18 A. They could sell them or purchase them, yes. 19 we 19 Q, Okay. In a board meeting? 20 Q, Excuse me, let me direct you up here. 20 A. Yes. 21 "Shareholder meeting or directors meeting of" who? 21 Q. Okay. And do you think this is a true and 22 A. Okay. Where it says: Resolution of special 22 correct copy of Exhibit No. 202? 23 meeting of directors of Becon, Inc., as general partner 23 A. Yes, do. 24 of LOMA limited partnership (the latter to be acting in 24 MR. ALLISON: Offer it, Your Honor. 25 its capacity of sole shareholders of Berry GP.) 25 MR. REASONER: Your Honor, my coun - - my

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colleague knows this. MR. REASONER: No objection. 2 MR. ALLISON: You're ganging up on me, but 2 THE COURT: Okay. It's admitted. 3 I have problem. Go ahead. 3 Q, (By Mr. Allison) Exhibit No. 206 is the same 4 MR. ABSMEIER: Just because we were 4 thing for July; is that right? 5 MR. ALLISON: It's the one page. 5 A. July the 12th, 2023, correct. 6 MR. ABSMEIER: It's just the one page, 819, 6 Q, And again, what is it? What's on the 7 Bay 819? 7 discussion list? 8 MR. ALLISON: Correct. 8 A. Work force, financial review, operating line, 9 MR. ABSMEIER: No objection. 9 path forward, project highlights, other business. 10 THE COURT: All right. No objections, it's 10 Q, Yeah. And by the way if there had been a -- a 11 admitted. 11 sale -- because then think we're through, Let me go 12 Q, (By Mr. Allison) And during the break did you 12 ahead and admit this one into evidence first. 13 check, are there -- are there several different agendas 13 MR. ALLISON: Your Honor, we would offer 14 where property sales are talked about, just generically? 14 Exhibit 206. 15 A. Numbers, yes. 15 MR. REASONER: No objection. 16 Q, Generically, it's on the agenda? 16 THE COURT: It's admitted. 17 A. Yes. 17 Q, (By Mr. Allison) And as far as -- so far with 18 Q, Often? 18 206, guess we're through. July here, if there had 19 A. Yes. 19 been a substantial offer on something like the dock, w Q, Okay. Some of those board meetings, Exhibit 20 would that probably be on an agenda to talk about, if 21 No. 204, is that the form that you get them in, 21 you-all were going to consider it? 22 sometimes -- A. Yes. A. Exactly Q, Okay. The fact that it's not there, does Q, where they're 24 that -- is that in keeping consistent with your A. a packet, uh-huh. 25 testimony, that there's been no serious offers?

Q, This one, for example, talks about loan path A. Exactly, yes. 2 forward; is that right? 2 Q, I'll show you Exhibit No. 405, ask you to 3 A. Correct. 3 review that. 4 Q, Is that talking about the line of credit we've 4 A. Okay. 5 been talking about? 5 Q, Again, we've been talking about the property 6 A. Yes. 6 just right then, the Berry dock. Do you see that 7 Q, On the agenda for what date? 7 exchange by text with -- between Lawrence Berry and Rob? 8 A. May 9, 2023. 8 A. Yes, I do. 9 MR. ALLISON: And that's Exhibit 204, we'd 9 Q, And do you think it's true, where it says here 10 offer it at this time. 10 that there's as of October 2023, that there is no 11 MR. REASONER: No objection. 11 negotiations that he is aware of, Buckeye is interested, 12 THE COURT: It's admitted. 12 but no real discussion? 13 Q, (By Mr. Allison) Same thing for June, June of 13 A. Yes, I believe that to be true. 14 2003, was the financial line of credit discussion and 14 Q, Do you think that -- that email, excuse me, 15 path forward also on the agenda? 15 that text message represents the truth about what was 16 A. Yes, it was. 16 going on in that time frame? 17 Q, It says: Operating line, path forward, board 17 A. A hundred percent. 18 discussion. Do you see that? 18 Q, And is it also indicative, again, just like we 19 A. Yes, I do. 19 see all the board meetings where Lawrence has had an w Q, Is that the way that the -- that Rob Powers 20 opportunity to get the information, is that another 21 would, every month, keep -- keep the owners, keep the 21 example of how Lawrence would get information, by text 22 directors, keep the three of you up to speed? 22 with Rob? A. Yes. A. Yes, that's one way. MR. ALLISON: I'm not sure if I offered Q, Okay, 25 that one; that's Exhibit 205. MR. ALLISON: We'd offer Exhibit No. 405.

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MR. REASONER: No objection. shall take place pending the resolution of the TRO 2 THE COURT: It's admitted. 2 currently in place in Nueces County, Texas is hereby 3 Q. (By Mr. Allison) Here's Exhibit No. 406. I'm 3 ratified. 4 not sure this one did or did not get in. We just -- 4 Q. Okay. And this is a resolution for the 5 this is what date? 5 directors of Becon, Inc.? 6 A. December 7, 2023. 6 A. Yes. 7 Q, And it's a resolution relating to what? 7 Q, And the date on that is what? 8 A. It's about the docks and advertising for them. 8 A. It's the 13th of March, 2024. 9 You want me to read it? 9 Q. So, by then your brother had passed? 10 Q, Sure. 10 A. And Bonnie 11 A. Okay. "Be resolved that all action previously 11 Q, And Bonnie 12 taken by any director of Berry GP., Inc., or any 12 A. Bonnie -- 13 employee of Bay, Limited to promote, advertise, or seek 13 Q. is 14 offers for sale of the Berry dock is hereby ratified. 14 A. is on the board and she signed it too, yeah. 15 The board further determines that the Berry dock and 15 Q, She and you both signed it? 16 adjacent property is to remain listed for sale and that 16 A. That's right. 17 no sale shall take place pending the resolution of the 17 Q, Okay. 18 TRO currently in place in Harris County." 18 MR. ALLISON: Your Honor, we'd offer 19 Q. Okay. And was that signed by you? 19 Exhibit 408. 20 A. Yes, it was. 20 MR. REASONER: No objection, Your Honor. 21 Q, And was that signed by Dennis Berry? 21 THE COURT: It's admitted. 22 A. Yes, it was. 22 Q, (By Mr. Allison) In terms of further defining 23 Q, And is it clear that a majority, as of this 23 the time line with Frost and with IBC discussions that 24 date, still December 7th, 2023, that at least a 24 have been talked about, I'm going to make you strain 25 majority, as of that date, were still in favor of 25 your eyes a little bit.

keeping the dock on the market? A. Okay. 2 A. Yes. 2 Q, I'm going to ask you look at Exhibit No. 708. 3 Q. Okay. And obviously that happened at a board 3 A. Okay. 4 meeting and whatever was talked about, Lawrence would 4 Q. And highlighted certain ones, just to help 5 have been there too? 5 you, because it's small and a lot of text messages; 6 A. Yes. 6 right? 7 Q, Okay. 7 A. Uh-huh. 8 MR. ALLISON: You're Honor, we'd offer 8 Q. Correct? 9 Exhibit 406. 9 A. Yes. 10 MR. REASONER: No objection. 10 Q, Do you see, are these text messages from Rob to 11 THE COURT: It's admitted. 11 you, and to Lawrence and to Dennis? 12 Q, (By Mr. Allison) Exhibit 408, can you tell us 12 A. That's correct. 13 what that is, sir? 13 Q. And so, was that a way that also -- I mean, in 14 A. Yes. This is a resolution of a special meeting 14 other words, did you have to have a formal board meeting 15 of the di rectors of Becon, Inc. , as general partners of 15 in order to get information from Rob? 16 LOMA, limited partnership (the latter to be acting in 16 A. No. 17 its capacity of sole shareholder of Berry GP. 17 Q, Was information shared by text pretty 18 And this is a -- it says: Be it resolved that 18 frequently, whatever that means, from time to time? 19 all action previously taken by any director of Berry GP, 19 A. But understand something, I'm five feet from 20 Inc., or any employees of Bay Limited to promote, 20 his door, so I got texts too. I don't know how much 21 advertise or seek offers for the sale of the Berry dock 21 they got, okay? 22 is hereby ratified. 22 Q, Okay. But this, the string we have here, 23 It is further resolved that the board further 23 though, has all of you on it, right? 24 determines that the Berry dock and adjacent property is 24 A. That's correct, yeah. 25 to remain listed for sale and that -- and that no sale 25 Q, Okay. And just to give some dates here, it

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looks like - - A. Myself and and Dennis. 2 A. Monday, April 2 Q. Yeah. And by the way, so there is no confusion 3 Q. Go ahead. 3 later, it says you're Captain Berry? 4 A. Monday, April the 3rd, 9:51 in the morning. 4 A. Uh-huh. 5 Q. And what does he say? What is Rob saying? 5 Q. Is that a "Yes"? 6 A. "I'm scheduling an emergency board meeting for 6 A. Yes, that's correct. 7 2 p. m. tomorrow. There will be a call in number. This 7 Q. And Dennis is?

8 meeting is to discuss current banking path forward." 8 A. Damenice; Damenice1957. 9 Q. And does Lawrence respond? 9 Q. Okay. And -- 10 A. He says, "Okay. I'll be available." 10 A. Like 'Dennis the Menace' . Remember? 11 Q. Okay. Gets a thumbs up back from Rob, it looks 11 Q. I understand. 12 like, or from somebody? 12 A. Okay. 13 A. Yeah. 13 Q. But these are, this is from Powers to you and 14 Q. And then two days later? 14 both the other brothers, and what's he -- what's the 15 A. "Gents. IBC accepted our proposal. IRS latter 15 reference? 16 today," think it should have been letter, "today for 16 A. It says: Lawrence, loan docs as requested,

17 another 6 millionR or 5 million, R6 million, and 17 This is the first step of three. Next week, we should 18 elevators are working." 18 get the revolver documents to increase to 30 million. 19 Q. Okay. Now, is this Rob keeping all three of 19 After that, we will get the documents that attaches the 20 the brothers advised? 20 Berry building which will take the revolver to 50 21 A. Yes, it is. 21 million. I will send board presentation on Monday. 22 Q. During April of 2023? 22 Rob." 23 A. Yes, it is. 23 Q. Okay. Is that an example of how he kept you 24 Q. Then this one on April, excuse me, this one is 24 informed? 25 May 15? 25 A. Yes, that's correct.

A. RGents. Banks are all requiring personal Q. And if you look at it, I think it has the 2 guarantees. Please let me know your position on this so 2 attachment, it has, at least, draft loan documents? 3 can plan cash flow accordingly." 3 A. Uh-huh, yes. 4 Q. Okay. Again, is that Rob keeping everybody 4 MR. ALLISON: Exhibit No. 716, we'd offer. 5 informed, like you told us earlier? 5 MR. REASONER: No objection. 6 A. Yes, it is. 6 THE COURT: All right. It's admitted. 7 MR. ALLISON: And Exhibit No. 708, Your 7 Q. (By Mr. Allison) show you Exhibit No. 717. 8 Honor, we would offer. 8 Is that more of these text messages where you and your 9 THE COURT: Okay. 9 two brothers are on a string and getting information 10 MR. REASONER: No objection. 10 from Rob? 11 THE COURT: All right. No objection, 11 A. Yes, it is.

12 hearing no objection, it's admitted. 12 Q. Go ahead. This is Rob's text right here. 13 Q. (By Mr. Allison) I'm going to show you Exhibit 13 Well, that one we've read before with "gents". By the 14 No. 716. 14 way, we didn't have the response a moment ago. This is 15 A. Okay. 15 the one that said, from Rob: Gents, IBC has accepted 16 (Court reporter speaking.) 16 our proposal. Something latter today for another 6 17 MR. ALLISON: Yes, 708, thank you. 17 million and elevators are working. Right? 18 Q. (By Mr. Alli son) What's the date of this email 18 A. That's correct. 19 we' re looking at on 716? 19 Q. And Lawrence says? 20 A. July 8, 2023. 20 A. "Cool. I'm en route to CC for meetings, 21 Q. Okay. And it's from who? 21 hopefully see you around office." 22 A. It's from Robert Powers. 22 Q. Have you seen any text so far where Lawrence 23 Q. To who? 23 says RYou're not giving me information, you're not 24 A. Lawrence. 24 keeping me informed"? 25 Q. And? 25 A. have not.

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Q, Have you seen anywhere he is, you know, angry Q, Dated? 2 and screaming about the sale of the dock? 2 A. Date July 21st, 2023. 3 A. I have not. 3 Q. From? 4 Q. Okay. Have you seen anywhere he is saying, 4 A. From Rob Powers to Lawrence, Allen Lawrence 5 "Hey, don't vote me off the board and there is some sort 5 Berry. 6 of tension going on"? 6 Q, Yeah, when you see "ALB" in these, some of us 7 A. have not. 7 know this, but his real name is Allen Lawrence Berry; 8 Q. Yeah. Was he cooperating during this time 8 right? 9 frame, in order to and on your side and on Dennis' 9 A. That's correct. 10 side, when it came to the dispute with Nixon? 10 Q, So what, "ALB" is Lawrence? 11 A. He was on the side of our company, yes. 11 A. Uh-huh. 12 Q, Yeah. Then on May 3rd, what does it say? 12 Q, Okay. And what's he -- what's Rob -- on July 13 A. It says: Today's meeting should be brief. Two 13 21st, what's Rob sending to Lawrence? 14 topics: Green hydrogen and IBC transaction -- 14 A. "Lawrence. I sent you all the docks I have 15 transition. We have a regular board meeting next week. 15 last week. We have not received any additional 16 Q, Again, more examples of how he would keep you 16 documents since then. We are expecting the documents 17 informed? 17 early next week and I will send them to you. We expect 18 A. That's correct. 18 to close on the 30 million line by the end of next week. 19 Q. Over here, it looks now like we're jumping to 19 We are no longer talking to Amegy, as they stated we 20 this one, this is how the page is put together. July 8, 20 needed more financials and likely couldn't do anything 21 what does it say? 21 until next year. In addition, we are no longer talking 22 A. I just e-mailed the loan docs for the 20 22 to Plains but do use American Bank for miscellaneous 23 million. These are all we have at this time. 23 loans such as insurance payments. That's all I have for 24 Q. So, again, so that's Rob letting the three 24 an update." 25 brothers know that he's e-mailed you the loan docs and 25 Q, And is that an update from Rob, in response to

that's all of the information, sort of, right now, Lawrence's email request? 2 that's the update? 2 A. Yes, it is. 3 A. That was the update. And then he says: Gents, 3 Q. Okay. Again, typical? 4 have sent tomorrow's presentation to your email. 4 A. Very typical. 5 Q, And that's him sending the agenda packet 5 Q, Looking at Exhibit 725, is that another email? 6 with -- so that you know what you're talking about? 6 A. Yes, it is. 7 A. For the board meeting, correct. 7 Q, Dated? 8 Q. Okay. 8 A. Dated, this one is dated July 25th, 2023. 9 MR. ALLISON: We'd offer Exhibit 717. 9 Q. And by -- by now when we see the name Troy 10 MR. REASONER: No objection. 10 Bethel, we're a little later in time. So, Troy is with 11 THE COURT: It's admitted. 11 who? 12 Q, (By Mr. Allison) I think this is probably what 12 A. Frost Bank. 13 he's referring to, this is Exhibit No. 718. What's 13 Q. And so Troy has sent something and then it 14 that? 14 looks like Rob is forwarding it; is that right? 15 A. "Please find the present" -- it's from Rob 15 A. That looks exactly right to me. 16 Powers to all of us. Please -- the records. "Please 16 Q. And then who is it to? Who is Rob forwarding 17 find attached presentation for tomorrow's meeting. 17 all this information to? 18 Rob." 18 A. ALB, Marty Berry, and Dennis Berry. 19 Q, Okay. 19 Q, And if you look at the reference line on 20 MR. ALLISON: And we'd offer 718. 20 attachments, go ahead and read that for the record. 21 MR. REASONER: No objection. 21 A. It says: Two arbitration and notice of final 22 THE COURT: It's admitted. 22 agreements, two certification (sic) of corporate 23 Q, (By Mr. Allison) Exhibit No. 722, is that an 23 resolutions, two loan agreements, two pledge and 24 email? 24 security agreements, two promissory notes, two security 25 A. It is. 25 agreements, two subordination agreements, two

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subordination agreements. text exchanges here. We're back to March 15, two days 2 Q, Is that an example -- the subordination 2 after the draft notice of default; right? 3 agreements, by the way, are the ones that you signed and 3 A. Uh-huh. 4 Dennis signed, subordinating your loans to Frost; right? 4 Q. Correct? 5 A. That's correct. 5 A. That's correct. 6 Q, All right. And so if -- 6 Q, And go ahead and read that one for us. It's a 7 MR. ALLISON: And we'd offer Exhibit 725. 7 text from Lawrence, again, to -- copy to you, copy to 8 MR. REASONER: No objection. 8 Dennis and to Rob; right? 9 THE COURT: It's admitted. 9 A. Yes. 10 Q, (By Mr. Allison) We go to 734 now. Now we're 10 Q, Go ahead and read that one. 11 in a little later time frame, December 7, 2023 1 do you 11 A. "Tonja and I just hung up with Walter Beard at 12 see that? 12 Cadence Bank. We have a meeting scheduled to discuss 13 A. Yes. 13 the revolving line of credit for receivables on Friday 14 Q. We talked -- you talked or gave testimony 14 at 10 a. m. Invitations have al ready gone out. We asked 15 earlier about how there were some problems, some issues, 15 for 100 million dollars line, which is within their 16 some wrinkles that had to -- or hurdles that had to be 16 limits. We have been banking there for around 15 17 cleared with Frost, especially complicated by the -- by 17 years." 18 the litigation, the TRO? 18 Q. So Lawrence, within two days of the draft 19 A. Correct. 19 notice of default, Lawrence has already contacted 20 Q, And was this an effort that, in time, helped to 20 Cadence Bank and is already trying to put together a 21 solve that? 21 deal up there with a revolving line of credit? 22 A. Absolutely. 22 A. That's correct. 23 Q, And what was this letter? 23 Q, Again, and then you had contacted, I think in 24 A. This is December 7, 2023: I approve Berry GP 24 that same time frame or soon thereafter, maybe very much 25 moving forward with any documents needed to secure the 25 same time frame, Frost; is that right?

50 million credit line with Frost Bank as long as it A. think Mike initiated the contact. 2 does not involve the sale of real property. 2 Q, believe you're correct. And was that an 3 Q. Okay. So, and Lawrence by that time had agreed 3 all-call, where all of you were working together? 4 they could be pledged as collateral and just not sold, I 4 A. I think everybody in the -- yes, everybody in 5 think is the distinction he was trying to make. 5 the company that had some kind of contact was working on 6 A. That -- that's how he voted, yes. 6 it at that time. 7 Q, Okay. And this is drafted by Mr. Hummell, or 7 Q, Okay. Then if you move on. And is that -- is 8 do you know? 8 that an example or does that demonstrate the 9 A. I don't know. 9 communication that is typical for the organization? 10 Q, Okay. 10 A. Yes. 11 MR. ALLISON: We'd offer Exhibit 734. 11 MR. REASONER: And, Your Honor, I just have 12 MR. REASONER: No objection. 12 to object to the leading narrative on the exhibit. 13 THE COURT: It is admitted. 13 THE COURT: Sustained. 14 Q, (By Mr. Allison) Going to Exhibit 740. These 14 MR. ALLISON: Okay. 15 are some more text messages? 15 Q, (By Mr. Allison) Here is an entry for March 29 16 A. Apparently. 16 from -- from Rob; what does that one say? 17 Q, Sorry, they're small. 17 A. "Mike Hummell has e-mailed you guys the IBC 18 A. Yes. You want me to read them? 18 letter with our comments. Please review as soon as 19 Q, Let her finish her note-taking. 19 possible so that we can send it back to them. Thanks." 20 A. Oh. 20 Q, Now, we talked earlier, I think, about that 21 Q. That's okay. When her fingers come off the 21 negotiation that occurred, where they were asking for 22 keyboard we stop talking. 22 personal financial, or personal guarantees, or you 23 A. I'm trying to talk slow. Sorry. 23 remember that whole line of discussion? 24 Q, It's okay. Okay, We're looking now in this 24 A. Yes, I do. 25 time frame actually earlier, on this particular set of 25 Q, Is that what's going on here, where we're in

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negotiations? Q, Dated? 2 A. Absolutely. 2 A. March 3rd, 2023. 3 Q. Okay. And would you say that -- how would you 3 Q. Now, this goes to the -- this here goes to -- 4 characterize it, in terms of, what information is Rob 4 Who is Dennis Nixon? He is mentioned in there. 5 trying to make sure all the brothers have? 5 A. He is the IBC CEO. 6 A. To know what the restrictions are going to be 6 Q, Okay. And does -- 7 on each one of us, what we're going to have to sign up 7 A. Or chairman of the board, rather. 8 for, that's what he's doing. 8 Q. Yeah. Go ahead go ahead and read this 9 Q. And then the next one is March 31. Things were 9 March 3, 2023 email. 10 moving obviously a little bit further on there. What 10 A. "Rob, hello. My boss, Dennis Nixon, would like 11 does that one say, from March? 11 to set up a meeting with the board of directors for 12 A. "Gents. We received the 25 million this 12 Berry the week of March 13th. Please let me know what 13 morning. We are depositing in Frost. We have another 13 date would work best for the meeting." 14 13 mi 11 ion coming today from VG." 14 Q. Now, you -- 15 Q, Okay. And does Lawrence respond? 15 A. "Thank you for your help. 16 A. "Let's go to Vegas. 16 Q, And that's from who? 17 Q, Okay. Did you take his, Lawrence's offer, to 17 A. Gus Barrera. 18 let's go Vegas as being unhappy or thinking that he was 18 Q. Okay. 19 not getting good communication during that time? 19 A. President and CEO of IBC. 20 A. I did not take it as that. 20 Q, Now, did he say we're going to meet on the 21 Q, Okay. Do you think that was meant as a Rwe're 21 13th, or did he say let's maybe meet on the week of 22 doing good, kind of keep spirits up"? 22 March 13th? 23 A. Absolutely. I think it was exactly that. 23 A. The week of the 13th. 24 Q. And Rob responds, by the way? What does he 24 Q. Okay. 25 say? 25 MR. ALLISON: Your Honor, we'd offer

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A. "Next year." Exhibit No. 823. 2 Q, Two thumbs up? 2 MR. REASONER: No objection. 3 A. Yeah. 3 THE COURT: All right. It's admitted. 4 Q. Okay. Then on April 3rd? 4 Q. (By Mr. Alli son) Exhibit No. 824, is that one 5 A. "I am scheduling emergency board meeting for 5 of the calendar business records of your business? 6 2 p.m. today -- tomorrow. There will be a call-in 6 A. I guess. I've never seen this before. 7 number. This meeting is to discuss current banking path 7 Q, It's kind of small type; is that right? 8 forward.• 8 A. It is very small type, and I can't read it. 9 Q. think we have read that one, so I'll go on. 9 Q. And when it's a -- 10 MR. ALLISON: Exhibit 740, we'd offer at 10 A. I see it. 11 this time. 11 Q, You see it's a -- 12 MR. REASONER: No objection. 12 A. Yeah. 13 THE COURT: It's admitted. 13 Q. -- series of emails? 14 MR. ABSMEIER: What exhibit is that? 14 A. Yeah, yeah, absolutely, I see a whole bunch of 15 MR. ALLISON: 740, sorry. Okay. 15 them. With a magnifying glass I can read them. Can you 16 PARALEGAL GONZALES: You missed one. 16 read them? 17 MR. ALLISON: Okay. 722? 17 Q, It's okay, it's okay. 18 PARALEGAL GONZALES: You didn't offer it. 18 MR. ALLISON: You know what, I can - - you 19 MR. ALLISON: Your Honor, I'd offer 722 at 19 want to bring them up on that, on my computer? I'll 20 this time. 20 blow them up for him. 21 MR. REASONER: No objection. 21 Q. (By Mr. Allison) I'll go ahead and go to the 22 THE COURT: It's admitted. 22 next one for the moment. 23 Q, (By Mr. Allison) Let's go to Exhibit 823. Is 23 A. They're about the same. 24 that an email? 24 Q, It's 824. 25 A. Yes, it is. 25 MR. ALLISON: Thank you.

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Q, (By Mr. Allison) Okay. I'm going to show it No. 824, 2 to you on the screen so we can blow it up. 2 MR. REASONER: Your Honor, the only 3 A. Okay. 3 objection to this one is hearsay. It's a lawyer-created 4 Q, First of all, make sure 824, is that same 4 document - - 5 document? Appear to be? 5 THE COURT: Can I see it? 6 A. Yes, it is. 6 MR. REASONER: with hearsay statements. 7 Q, Now I'm going to bl OW it up for you. 7 MR. ALLISON: Yes, sir. I'm going to give 8 A. Okay. 8 it to you here, if you want, because you can see it

9 Q, The ones I've highlighted -- 9 better. 10 A. Uh-huh. 10 THE COURT: Okay. Can you pop it up there? 11 Q, -- right here. 11 MR, ALLISON: I can do that, 12 A. That's the one he said at the meeting, uh-huh. 12 MR. REASONER: In addition to hearsay, Your 13 Q, Okay. That's the one you read a moment ago 13 Honor, lack of personal knowledge as to Mr. Powers' 14 that's dated March -- that refers -- it's dated March 14 email. 15 3rd, and it says: Let's maybe set up a meeting for the 15 THE COURT: Okay. 16 week of March 14th -- the 13th; correct? 16 MR. ALLISON: It's just having to load this 17 A. Uh-huh, correct. 17 off first. 18 Q, Now, if you look at his -- this, Rob's 18 THE COURT: Okay. 19 subsequent emails on the system, there is more that are 19 MR. ALLISON: But it's working, it's 20 here for March 7th; do you see that one? 20 happening. If you give me 15 more seconds, I kind of

21 A. I do. 21 think it will do it. 22 Q, And March 13th? 22 THE COURT: Okay. 23 A. Yes. 23 MR. ALLISON: And if the Court pl ease, I 24 MR. REASONER: Your Honor, I just need to 24 think I can run through the particulars of a business 25 object to counsel leading the gentleman through a 25 records' exception, but I don't think they're making

document he is not familiar with. that technical objection right now. 2 MR. ALLISON: And I' 11 just say it's 2 MR. REASONER: It's hearsay. 3 preliminary. All I'm doing is pointing out dates, so he 3 THE COURT: guess they are, because 4 can see it. I'll rephrase it the right -- or phrase it 4 they're saying hearsay. 5 correctly, I think. hear that he is about to object 5 MR. ALLISON: Okay. 6 again, so I' 11 do it, 6 THE COURT: And I guess it's hearsay, 7 Q, (By Mr. Allison) When you look at -- let me -- 7 MR. REASONER: Your Honor, first of all , 8 are there emails that are captured here that relate to 8 mean, this is -- Your Honor, there is lawyer commentary 9 IBC Bank? 9 on the right here. mean, this is a lawyer-created 10 A. All of these, yes. 10 document. 11 Q, For dates after March 3rd? 11 MR. ALLISON: There it is, Your Honor. 12 A. Yes. 12 THE COURT: Okay. 13 Q, And before? 13 MR. ALLISON: May do a series of -- I can 14 A. And before, 14 address the objection, I believe, Your Honor. 15 Q, Okay. Are there any additional emails that are 15 THE COURT: Okay. 16 recorded in Rob's computer, the company computer, where 16 MR. REASONER: May I approach, Your Honor? 17 Gus ever followed up to say what day, on the week of 17 You can look at our hard copy of it' 18 March 13th? 18 THE COURT: Okay. This is -- this is it? 19 A. None. 19 MR. ALLISON: Yes, sir, 20 Q, Okay. And do you think that this is a -- well, 20 THE COURT: Okay. 21 are the computer records your business records, for the 21 MR. ALLISON: And, Your Honor, we would 22 company? 22 offer, with the redaction of the comment in the right 23 A. Yes. 23 hand column. 24 Q, Okay, 24 MR. REASONER: I'm sorry, the offer -- 25 MR. ALLISON: And we would offer Exhibit 25 THE COURT: They are -- they're offer --

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they want to offer it, but redacting this piece right skipped. 2 here. 2 Q, (By Mr. Allison) Go ahead and read your text, 3 MR. REASONER: With that, Your Honor, we 3 or the text from Rob and then your response. 4 won't object. 4 A. Rob said, "Just had a bad meeting with IBC 5 THE COURT: Okay. John, will you cut this 5 Dennis Nixon. He came in attacking and cursing me and 6 part off? 6 Jim. Didn't end well." 7 COURT BAILIFF: Which part, Judge? 7 Q, And your response? 8 THE COURT: I guess, we need to move just 8 A. "Yes, I know. Time to change, I believe." 9 this piece here. See this little piece here? 9 Q. Okay. And you said "I know" because I guess 10 MR. BAILIFF: Just cut it off? 10 you'd already had a phone call? 11 THE COURT: Yeah, just cut it off. 11 A. He called me before they ever got a chance to 12 MR. ALLISON: Your Honor, we'd offer 824, 12 call me. 13 with that redaction. 13 Q. Okay. Now, we're at an email, it says 833. It 14 MR. REASONER: No objection with that 14 looks like -- what do we have there? 15 redaction, Your Honor. 15 A. It says: Meeting with Shanna, and the subject 16 THE COURT: Okay. 16 is "IBC Bank - attorney letter." 17 MR. ALLISON: Admitted? 17 Q, All right. And it looks like we're on -- let's 18 THE COURT: It's admitted, yes. 18 start down at the bottom. 19 MR. ALLISON: Okay. I didn't -- I didn't 19 A. The 15th? Okay, the bottom. March 13th. 20 know. 20 Q, And that March 13 one is from Gus at the bank? 21 THE COURT: We've got to get John to cut 21 A. That's right. 22 another piece off. 22 Q, To you? 23 MR. BOYD: Perhaps Doug can give us that 23 A. That's correct. 24 copy, since ours is getting cut up. 24 Q. Copying Dennis? 25 MR. ALLISON: Yeah, that's fair. 25 A. Uh-huh, correct.

THE COURT: Oh, yeah, I guess so, right? Q, And is that the one that -- do you remember 2 MR. ALLISON: missed it somehow, Judge. 2 what's attached to that one? 3 I'm sorry, I'm looking here. May I continue? 3 A. think that's like 20 pages of problems or 4 THE COURT: Sure. 4 something. I can't remember, to be honest. 5 MR. ALLISON: Okay. 5 Q, Okay. And who did you send it to? 6 THE COURT: So, I guess this -- this wi 11 6 A. I sent it to Lawrence Berry, on the 15th. 7 become the -- this wi 11 become the exhibit, because it's 7 Q, Two days later? 8 redacted. 8 A. Two days later; that's when I read it. 9 Q. (By Mr. Allison) Exhibit No. 827, is that a 9 Q. Okay. You hadn't opened it before that? 10 text message you received? 10 A. Huh-huh. 11 A. Pardon me? 11 Q, Exhibit 836, tell us what that is. Email? 12 Q, Yes, sir. Sorry. That's okay. 12 A. This is another email from Mike Hummell to 13 A. Yes, it's a text message I received from Rob 13 Lawrence or from -- down here, starting off, from 14 Powers. 14 Lawrence to Mike Hummell. It says: You can feel free 15 Q, On the day that Nixon showed up? 15 to mark this up. At this time, I'm not currently 16 A. On the -- on the famous -- infamous Nixon 16 planning to send it and anything until we have 17 meeting day. 17 collectively decided on a proper methodology and able to 18 Q, Okay. 18 execute. It says: Draft letter to Dennis Nixon. 19 MR. ALLISON: We'd offer 827, Your Honor. 19 Q, Okay, So, to make sure we' re understanding,

20 THE COURT: 827. Gentlemen? 20 you're reading that kind of quick there. 21 MR. REASONER: apologize, Your Honor, we 21 A. I know. 22 were looking at a different document. No ob -- if it's 22 Q, This is an email that has attached Lawrence's 23 just the text message, no objection. 23 draft letter to Nixon? 24 THE COURT: It's admitted. 24 A. That's correct. 25 MR. ALLISON: Sorry, I should have told you 25 Q, He is sending it to Mike?

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A. He is sending it to Mike Hummell. A. Evidently yes. 2 Q. And as part of 836, the next page, what is the 2 Q. And Lawrence is doing some of the texting? 3 date of that letter? 3 A. That's correct. 4 A. March 17, 2023. 4 Q. And Lawrence says, "Will do, I just got 5 Q. Okay. And just read the first line. 5 service"?

6 A. RWe are in receipt of your recent 6 A. Exactly. 7 communications to our executive team related to our 7 Q. And we're talking about bull et points with IBC. 8 revolver.ft 8 Is that the list of demands, where they wanted you to do 9 Q. Keep going. 9 your own guarantees and all those things? 10 A. "At IBC." 10 A. Yes. 11 Q. And? 11 Q. So, was that information being communicated, 12 A. "And we are shocked and disappointed at the 12 real time, with Lawrence? 13 tenor of that message and the content." 13 A. Yes. 14 Q. Okay. So, this is Lawrence, writing a letter 14 Q. Okay. And -- and foll owed up on by text? 15 to Nixon; right? 15 A. Obviously, yes. 16 A. That's -- that's correct. 16 Q. Okay. 17 Q. Was there, in any way, shape or form, any hint 17 MR. ALLISON: We offer Exhibit 839. 18 in that letter that you - and you can look at it - that 18 MR. REASONER: No objection, Your Honor. 19 Lawrence is saying, "Hey, I've been kept in the dark, no 19 THE COURT: It's admitted. 20 one has been sharing information with me," anything like 20 Q. (By Mr. Allison) Exhibit No. 840, it's an 21 that? 21 email; correct?

22 A. No, there is not. 22 A. Yes. 23 Q. In fact, he tells Dennis Nixon that Lawrence 23 Q. Give us a date. 24 says he, Dennis 24 A. This is March 29th, 2023, from Mike Hummell to 25 A. That's right. 25 Dennis and Lawrence, myself, where they're copying Rob

Q. -- RHe," meaning Lawrence, is shocked and Powers and James Klein, Jim Klein, 2 disappointed in Mr. Nixon; right? 2 Q. More sharing of information in advance? 3 A. Yes, he does. 3 A. About IBC, yeah. "Attached is the list of 4 Q. Okay. Again, did -- at this point in time has 4 demands from IBC for continuing our loans." 5 everybody been sharing information? 5 Q. Okay. 6 A. Yes, they have. 6 MR. ALLISON: And we'd offer Exhibit 840. 7 Q. And is that how it's always done? 7 MR. REASONER: No objection, Your Honor. 8 A. That's -- that's the way it's done. 8 THE COURT: It's admitted. 9 Q. Okay. 9 Q. (By Mr. Allison) And Exhibit 841? 10 MR. ALLISON: Your Honor, we'd offer 10 A. Yes. 11 Exhibit 836. 11 Q. Hore information about the loans, sharing 12 MR. REASONER: No objection. 12 information, texts? 13 THE COURT: It's admitted. 13 A. Absolutely. Dennis, Lawrence, and myself. 14 Q. (By Mr. Allison) Going a little bit later in 14 MR. ALLISON: Exhibit No. 841, we'd offer. 15 time now, we're March 29th, and this is Exhibit 839. 15 MR. REASONER: No objection. 16 What is that? 16 THE COURT: It's admitted. 17 A. I guess this is a text -- 17 Q. (By Mr. Alli son) Exhibit No. 843, is that an 18 Q. Yes, sir, 18 email? 19 A. to Lawrence, Marty, and somebody else. 19 A. That's an email. 20 "I heard back from Marty, and he approved the 20 Q. What it's got attached? 21 response to the IBC bullet points. We won't make any 21 A. Attorney's negotiations with IBC, it looks 22 progress on finalization (sic) of our extension on our 22 like. 23 credit line until the response (sic) to their proposal." 23 Q. Yeah. It says from Simank, that's you-all 24 Q. So, you're obviously doing some of the texting 24 lawyer, right? 25 here, right? 25 A. That's correct.

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Q, Date on it? tracks the discussion from the meeting. We are going to 2 A. March 30th, 2023. 2 send the signed paperwork back to them later today." 3 Q. And who is it being shared with, so that 3 Q. And what time was that sent? 4 everybody has 4 A. That was sent at 3:21 p.m. 5 A. It's being 5 Q, And on the same date did he get a response at 6 Q, it? 6 3:26 p.m.? 7 A. shared with Robert Powers, Marty Berry, 7 A. Yes, he did. "Got it, thanks, R from Lawrence.

8 Lawrence and Dennis. 8 Q. Okay. So that's Lawrence saying "Thank you" to 9 MR. ALLISON: Exhibit No. 843, we'd offer. 9 Mike Hummell; right? 10 MR. REASONER: No objection, Your Honor. 10 A. Correct. 11 THE COURT: It's admitted. 11 MR. ALLISON: Your Honor, we'd offer 12 Q, (By Mr. Allison) Then Exhibit 846, are you 12 Exhibit - - 13 familiar with that one? 13 MR. REASONER: Your Honor, that one just 14 A. Yeah, this is to to Robert Powers. 14 didn't happen to be in our binder. Can we take a quick 15 Q, Text message first? 15 l oak? 16 A. Text message, yes. 16 THE COURT: Yeah. 17 Q, What date? 17 MR. ALLISON: It's 853. 18 A. April 1st, and Lawrence is talking about 18 MR. ABSMEIER: Yeah. It's -- we don't have 19 contacting Mike Gallagher, to look over the documents 19 it. Our book is missing it' for some reason. 20 between us and IBC. 20 MR. ALLISON: Sorry. 21 Q, And what is he saying that Mike -- that Mike 21 MR. ABSMEIER: I think it is misprinted. 22 Gallagher is doing for you? 22 MR. ALLISON: Okay. 23 A. He's offered to rattle his saber for us by 23 MR. ABSMEIER: Thank you. 24 calling Tony Sanchez, so I accepted. 24 MR. REASONER: No objection, Your Honor. 25 Q, Okay. And so rattling the sword or rattling 25 THE COURT: All right, it's admitted.

the saber at Tony Sanchez, who is Tony Sanchez? MR. ALLISON: I'm told out of an abundance 2 A. Tony Sanchez is a lot of things, I guess. He 2 of caution hold on - that I need to offer Exhibit 827. 3 is an oil and gas man, he is - - he is part owner, but 3 We read it in the record. It's the one where he says he 4 not the majority owner of IBC, but he is a part owner of 4 came in attacking the person. 5 IBC. 5 MR. REASONER: To 853, no objection. 6 Q, Yeah. Was he -- 6 THE COURT: It's admitted. 7 THE COURT: Formerly running for Governor. 7 Q, (By Mr. Allison) Exhibit No. 859, would you 8 MR. ALLISON: Yes. 8 take a look at that, sir. 9 THE WITNESS: Yeah, Governor candidate. 9 A. Yes. This is this is a resolution of a 10 There is a lot of things. 10 special meeting of the directors of Berry, GP, December 11 MR. ALLISON: He is a lot of things. 11 7th, 2023. 12 THE WITNESS: A lot of things. Land guy. 12 The board of directors met in a special-called 13 MR. ALLISON: I'm not sure I offered that 13 meeting on the 7th day of December. All directors were 14 one, that is Exhibit 846. Offered at this time, Your 14 present and waived notice of the call and the purpose of 15 Honor. 15 the meeting. Be it resolved that the employee contract 16 MR. REASONER: No objection. 16 for CEO Robert Powers has been approved. 17 THE COURT: It's admitted. 17 Q, Who signed it? 18 Q, (By Mr. Allison) Now we're looking at another 18 A. Dennis, Marty, and Lawrence. 19 email dated, or excuse me, Exhibit 853; correct? 19 Q, So, all three of the brothers re-upped or 20 A. That's correct. 20 approved Rob Powers' -- Rob Powers' contract as of 21 Q. What's the date? 21 December, 2023? 22 A. April 13th, from Mike Hummell to -- in 2023, 22 A. That's correct. 23 from Mike Hummell to Lawrence Berry. 23 Q, Do you remember there being a discussion during 24 Q, And what does Mike Hummell say? 24 that board meeting about Lawrence being mad that Rob 25 A. "Did you get everything you need? The deal 25 hadn't kept him informed?

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A. No; no discussion. Lawrence would request information and have it sent to 2 Q, Exhibit No. 864, can you tell us what that is? 2 him? 3 A. "Resolution of special meeting of shareholders 3 A. Yes, I did. 4 of Becon, Inc., as general partner of LOMA, limited 4 Q, Did you see emails in there where he says, 5 partnership, the latter to be acting in its capacity as 5 "Hey, I'm mad, I'm not getting the stuff fast enough"? 6 the sole shareholder of Berry GP, Inc. The shareholders 6 A. Did not see those. 7 met in a special meeting called this 13th day of March, 7 Q, Did you see times when the Frost Bank documents 8 2024. All shareholders were present. Be it resolved 8 were sent to him? 9 that all actions taken by the shareholder/director of 9 A. Yes, I did. 10 Berry GP, Inc., or any employee of Bay Limited, 10 Q, Did you see places where the IBC notice of 11 including Robert Powers and Mike Hummell, in furtherance 11 default were sent by you directly to Lawrence? 12 of discontinuing the banking relationships between Berry 12 A. Yes, I did. 13 GP, Inc., and the International Bank -- Bank of Commerce 13 Q, Did you see where he's participating with 14 is hereby ratified." 14 with Mike Hummell on the March 17th letter that he 15 Q, Who signed that one? 15 drafted? 16 A. I signed it, and Bonnie Berry signed it, and 16 A. Yes. 17 Lawrence abstained. 17 MR. REASONER: Objection, leading. 18 MR. ALLISON: And we'll offer Exhibit No. 18 THE COURT: Leading, sustained. 19 864 at this time. 19 Q, (By Mr. Allison) Let me ask you, did you see 20 MR. REASONER: No objection. 20 any signs of -- how would you -- how would you 21 THE COURT: It's admitted. 21 characterize the communication? 22 MR. ALLISON: Do I need to go back one? 22 A. Open, very open communication, all the way 23 PARALEGAL GONZALES: Yes. 23 around. 24 MR. ALLISON: What number was it? 24 Q, Just recently, I think you guys had a board 25 PARALEGAL GONZALES: 859. 25 meeting in -- in March; do you remember that?

MR. ALLISON: Your Honor, we'd offer 859, A. Yes, I do. 2 that's the December 7th one we just looked at. 2 Q, Do you remember whether or not Lawrence asked 3 MR. REASONER: No objection. 3 for Jim to be there? 4 THE COURT: It's admitted. 4 A. He asked to have the financials presented by 5 Q, (By Mr. Allison) I think -- I think going 5 Jim, yes, I believe. don't know what the request 6 through the different documents we purposefully, right, 6 exactly was, but it was to Jim to show up with certain 7 tried to focus on your understanding -- you understand 7 financials, and he did. 8 the kind of time frame that this lawsuit is about? 8 Q, Yeah. Was it -- and how would you characterize 9 A. Yes. 9 the review? Was it a one-pager or extensive? 10 Q, Okay. And at kind of a real critical juncture, 10 A. It wasn't a one-pager, it was much more 11 was IBC sort of a critical transition? 11 extensive. 12 A. Yes, it was. 12 Q, Okay. And if Lawrence wants that, can Lawrence 13 Q, And the Berry dock, that's an -- is that an 13 ask for it? 14 important asset for the company? 14 A. Yes, he can. 15 A. It was. It's not as much today. 15 Q, Okay. 16 Q, Yeah. 16 A. He did; he did. 17 A. Obviously the access is important. 17 Q, Okay. 18 Q, Yeah, And was it common, sort of through all 18 THE COURT: Anything else for the witness? 19 of 2023, common for Bob, and you, and the brothers to be 19 MR. ALLISON: Just one other item, Your 20 texting each other? 20 Honor. 21 A. Yes. 21 Q, (By Mr. Allison) They asked you some questions 22 Q, If you -- if wanted information, do you feel 22 about Robert's Rules of Order, do you remember that? 23 like it's available to you? 23 A. Yes, I do. 24 A. Yes, I do. 24 Q, Have you -- I'm not going to make you a lawyer; 25 Q, Did you see some emails in there, where 25 are you familiar generally with whether or not

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shareholders, if they agree, can run their company? Q, Okay. And I appreciate you coming down here 2 A. I'm generally familiar with that, yes. 2 and talking with us about a few of the financial aspects 3 Q. I mean, we went through a lot of documents 3 that are at issue in this case. And we heard testimony 4 where the shareholders ratified conduct; do you remember 4 from Mr. Berry about Rob Powers' unfortunate health 5 that? 5 incident. Is that who, up until that point in time, you 6 A. Yes, I do. 6 directly reported to? 7 Q, And what's your understanding, as an owner, of 7 A. Correct. 8 the significance of having shareholders/owners ratify 8 Q. All right. Who do you directly report to 9 acts or ratify conduct? 9 presently? 10 A. Mistake or no mistake, you're just saying, 10 A. Now we -- there is quite a few vice-presidents, 11 "Hey, this is what we all agreed to. This is what we 11 there's maybe 8, I'm guessing. And we -- we speak 12 did, and it's fine." That's what it means, layman 12 amongst ourselves and kind of settle things out right 13 terms. 13 now. 14 Q. And whether you violated a rule of Robert's 14 Q. Okay. Has it always -- was it that way prior 15 order, and don't know if you did or not, but we're 15 to Mr. Powers? 16 not are we here on that? 16 A. No. It was more through Mr. Powers. 17 A. I'm not. 17 Q, Okay. Do you have any information about the 18 Q. Okay. 18 search for somebody to fill in -- 19 MR. ALLISON: Nothing further, Your Honor. 19 A. No. 20 MR. REASONER: I don't have anything else 20 Q, -- on an interim basis? 21 for him. 21 A. I haven't done -- seen anything there. 22 THE COURT: All right. You may stand down. 22 Q, All right. Mr. Berry, when I say "Mr. Berry" 23 We'll take a break. You got another witness coming up? 23 I'm talking about Marty Berry. 24 MR. REASONER: We do, Your Honor. 24 A. Sure. 25 THE COURT: Okay. Well , let's take a few. 25 Q, Mr. Berry testified under cross-examination of

COURT BAILIFF: All rise. Mr. Reasoner that he received some weekly financial 2 {Brief recess.) 2 reports. You were present during this testimony, right? 3 THE COURT: You-all can be seated. Call 3 A. Yeah. 4 your next witness. 4 Q. Okay. Do you provide Mr. Berry with weekly 5 MR. BOYD: Your Honor, at this time the 5 financial reports, or your office? 6 Plaintiff would call James Klein. 6 A. Perhaps, not -- I don't know of any like 7 THE COURT: Okay. Come forward. 7 regular weekly reports like that, that he did. 8 COURT BAILIFF: Raise your right hand, sir. 8 Q. How about a cash position report, is there such 9 {Oath was administered.) 9 a --

10 COURT BAILIFF: Watch your step. 10 A. Cash requirements 11 THE COURT: Watch your step. All right. 11 Q, Oh, and I - - 12 JAMES A. KLEIN 12 A. -- is what I think he had shown up here 13 having been first duly sworn, testified as follows: 13 earlier, yeah. 14 DIRECT EXAMINATION 14 Q, Okay. I think -- 15 BY MR. BOYD: 15 A. That's more like on a request basis. 16 Q. Good afternoon, Mr. Klein. Would you please 16 Q. Okay. 17 state your full name for the record. 17 A. If somebody wants it. 18 A. I'm James A. Klein. 18 Q, So, who has access to request that kind of 19 Q, And how are you employed, sir? 19 information? Is it just the owners or can the EVPs get 20 A. I'm CFO at Bay. 20 that? 21 Q. And how long have you held that position? 21 A. Perhaps. If there is a reason why they want 22 A. A couple of years; two years. 22 it, provide it to them, but I probably won't provide 23 Q, Okay. You and I just met for the first time 23 it if they just if a vice-president just asks for it. 24 i ust a few minutes ago, right? 24 Q, Okay. So in the past, that would have gone 25 A. Yes, sir. 25 through Mr. Powers?

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A, Correct. Q, Okay. Has there been any reduction in force on 2 Q, All right. And presently if - hypothetically 2 that particular job? 3 a vice-president asks you for a cash requirements 3 A. Yes. 4 report, who would you go to, to get authority to deliver 4 Q. And to what extent? How many employees have 5 that report? 5 been laid off that job? 6 A. I'd talk amongst, perhaps a couple of other 6 A. 2500, It's - - it's moving down, you know.

7 vice-presidents. 7 Q, Is that a function of the progress of the 8 Q. Okay. Which ones in particular? 8 project or -- 9 A. Perhaps Hummell, Chrissy Hino -- how do you say 9 A. Yes. 10 her last name? 10 Q, What is the completion estimate for that 11 MR. HUMMELL: Hinojosa. 11 project? 12 A. Hinojosa. 12 A. Time frame or -- 13 Q. (By Mr. Boyd) Okay. And what's her position? 13 Q. Yes. 14 A. She is vice-president, kind of 14 A. Essentially it's a couple of weeks away. 15 administratively. 15 Q, And how many Bay personnel or Bay/Berry 16 Q, Okay. 16 personnel are still working on that? 17 A. She's also -- 17 A. It's about a thousand. 18 Q. Would you also at times go to Mr. Berry, to get 18 THE COURT: Objection? 19 authority for such a request? 19 MR. ALLISON: I just have an objection on 20 A. I might ask him, i f he's -- i f he's available. 20 relevance, Your Honor. 21 Q, Presently we heard -- when we heard testimony 21 THE COURT: Yeah, sustained. I think we're 22 from Mr. Berry about several of the jobs that are 22 way off base here. 23 ongoing, do you have information relative to the 23 Q, (By Mr. Boyd) How about TESLA, how much is 24 financial position, as it relates to different projects 24 owed on that? 25 that the company is engaged in? 25 THE COURT: Okay. I'm not -- I'm not going

A. Sure. down this route. I mean, look, I mean, this is --

2 Q, Okay. For example, how much money the company 2 you're talking about a company here. We're talking 3 may be owed by a particular client? 3 about a temporary i nj unction hearing. What's the 4 A. Yes. 4 relevance of all this? 5 Q, Okay. What is the current position with 5 MR. BOYD: Fair enough, I' 11 move on. 6 Venture Global? 6 THE COURT: All right. 7 A. I always kind of look at it, it's revenues 7 Q, (By Mr. Boyd) All right. I'm going to ask you 8 versus billings, you know. In projects, cost drives 8 to take a look at PTX33, that should be in front of you. 9 revenue. So, right now we're upside down with them 9 A. Okay. 10 about 60 million, believe. 10 Q, Do you have it in front of you? 11 Q, And over what period, or how late is that 60 11 A. Yeah. 12 million? 12 Q, Do you recognize that this is a portion of a 13 A. It's not really late. This is relative to 13 much larger Excel spreadsheet? 14 bi 11 i ngs, you know, so we haven't bi 11 ed it yet because 14 A. Yeah. 15 there is pending change orders. 15 Q, Is this generated out of your department? 16 Q. When is the last time that you billed Venture 16 A. Yep. 17 Global? 17 Q, Okay. Can you tell us what exactly this is? 18 A. We bill them monthly. 18 A. This says that we owe Western Gulf this -- 19 Q, So, currently the receivable balance is 19 these amounts. 20 approximately 60 million dollars? 20 Q, Okay. Is this the -- or at least a portion of 21 A. No. I -- I answered that differently. The 21 the cash requirements report that we were talking about 22 receivable balance right now is probably 35. 22 just a little bit ago? 23 Q, Okay. What does the 60 million represent? 23 A. Yes. 24 A. Where revenue has been recognized above 24 Q, Okay, Is this the type of report that you 25 billings. 25 might provide to Mr. Berry on a weekly basis?

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A. Generally, no. mean, it's -- this is way -- please. 2 a lot more detailed than would -- I would give to him. 2 A. Okay. 3 And I don't -- like I said, I really don't give him 3 Q, Do you recognize this email chain and the 4 anything on a weekly basis at all, like nothing 4 attachments? 5 regularly. 5 A. I don't recall the email chain, but I recognize 6 Q, Okay. So, there's nothing that's just 6 the attachments. 7 automatic, you're going to send to it Mr. Berry? 7 Q, Okay. And it's -- the first page is an email 8 A. No. 8 from you to Tonja Fulghum; correct? 9 Q, Or somebody else? Okay. And what this is 9 A. Yeah. 10 saying is presently, or at least as of the date this 10 Q, Who is who is Ms. Fulghum? 11 report was generated, that there was 4,3 million dollars 11 A. She works for Lawrence. 12 due to Western Gulf Equipment; correct? 12 Q, Okay. Did she, up until recently, work for 13 A. Yep. 13 Bay/Berry? 14 Q, Okay. Do you know what the present balance is 14 A. Yes. 15 of this account is? 15 Q, Okay. And what was her position with 16 A. I don't think we've paid him anything, so -- 16 Bay/Berry? 17 and believe we're incurring about 450,000 a month. 17 A. I'm not really sure. 18 Looks like this is through October. No, there it is. 18 Q, How long had she worked there? 19 This is probably pretty close, because it's through 19 A. I don't know that either. 20 March 1st. 20 Q, As an aside, how long have you worked there? 21 Q, Okay. So presently, you're accruing about 21 A. Two years. 22 450,000 in lease obligations per month? 22 Q, And if you can turn over to the last page, 23 A. Approximately, yeah. 23 which is ALB 000881. 24 Q, Okay. And how many cranes does that cover, do 24 A. Yep. 25 you know? 25 Q, Are you with me?

A. I'm not certain, but I think he said six A. Yes. 2 earlier; that sounds reasonable. 2 Q, All right. Do you see the -- if you come down 3 Q, Okay. And do you have the lease agreements for 3 to the l i abilities and equity, long-term debt, excluding 4 each of those cranes? 4 current installments? 5 A. I believe we do. 5 A. Yep. 6 Q, Would that be kept in your department? 6 Q, What -- and out to the right is the number 100 7 A. I'm not sure, but I usually have copies of 7 million, 227; right? 8 those. I don't know if that's where it's kind of 8 A. Yep. 9 officially kept, but I haven't seen them. I haven't 9 Q, And what is -- what makes up that hundred 10 looked for them. 10 million? 11 Q, Have you ever reviewed them? 11 A. I think probably the brother loans at that 12 A. No. 12 time. 13 Q, Okay. Is that anything pertinent to what 13 Q, The 75 million? 14 you're trying to accomplish, relative to this 14 A. Oh, yeah; yep. And then -- 15 A. No. 15 Q, Okay. 16 Q, -- account payable? 16 A. -- about 35 million or so from Wells Fargo. 17 A. Not unless something -- a reason -- a reason 17 Q, Oh, on the equipment line of credit? 18 would come up for me to look at it, I haven't looked at 18 A. Yeah. 19 it, 19 Q, Okay. So that would be lumped in here with 20 Q, Okay, fair enough. 20 this as well? 21 MR. BOYD: May approach, Your Honor? 21 A. Yep. 22 THE COURT: Yes, sir. 22 Q, What about on the revolver with -- with Frost 23 MR, ALLISON: Thank you, 23 or IBC? That would have probably been IBC at this point 24 Q, (By Mr, Boyd) I'm going to hand you, sir, what 24 in time. 25 is marked as PTX50 and ask you to take a look at that, 25 A. But that's the -- well, that seems too high.

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Q, Or would that be above it, the revolving line? of America. 2 A. Wells Fargo would be above it. 2 Q, Yeah, and I think if you turn over to the 3 Q. Okay. 3 second page of this exhibit, that would confirm what you 4 A. It's changed now, so that's what this means. 4 just said; right? 5 Q, Okay. 5 A. Yeah. 6 A. So, that's Wells Fargo and IBC, the line above 6 Q, All right. Tell me what was going on with Bank 7 it. 7 of America at this point in time. Was this relative to 8 Q. Okay. So, do we know what makes up the excess 8 try to secure a new loan? 9 above the 75 million dollar related party, what we've 9 A. Yes. 10 been calling the Berry loans? 10 Q, Okay. And so, you were forwarding certain 11 A. You know, I should know, but I -- I don't know 11 information to Bank of America? 12 what it was back then. 12 A. Yeah. 13 Q. Okay. 13 Q. Okay. Well, let's turn over -- but first, 14 A. There were other loans back then. That was 14 before we do, Mr. Schrauff, at the bottom of PTX37, he 15 before we had cleared the IBC debt. 15 says he is meeting you vi a this email. Had you ever met

16 Q, Okay. But sitting here today, you don't 16 him before? 17 know -- 17 A. I'm not sure of the timing of this email, but 18 A. No, sir. 18 it was right around that time that I met him. 19 Q. -- to whom those loans were payable? 19 Q. Okay. And then he mentions Lawrence's name -- 20 A. Well, they were -- they were payable to IBC. 20 A. Yeah. 21 There is one for for American Bank, or other long 21 Q, -- in introduction? 22 term loans -- 22 A. That's how we met. 23 Q, Okay. 23 Q, Okay. So, Mr. Lawrence Berry set up this 24 A. that we had. 24 meeting? 25 Q, So above it, the revel vi ng lines of credit, you 25 A. Yes.

feel , would be the equipment line of credit and the - - Q, Okay. In an effort to try to facilitate the 2 A. IBC loan. 2 company's securing of a new line of credit? 3 Q. IBC. Okay. 3 A. Yes. 4 MR. ALLISON: We just object to relevance, 4 Q. All right. If you'll turn over to ALB 506

5 Your Honor. 5 (sic), which is a combined and consolidated balance 6 MR. BOYD: It's extremely relevant. It 6 sheet. Are you with me? 7 strikes to the Berry loans and how they're booking these 7 A. Yeah. 8 numbers, and I'm going to be - - 8 Q. All right. On this, under the liabilities, we 9 THE COURT: I think this is more relevant 9 have a notes payable, related party; that would be the 10 than what you were getting into before, I agree with 10 Berry loans, right? 11 that, but 11 A. Yeah. 12 Q, (By Mr. Body) I'm going to hand you now, 12 Q, And what is the amount that's booked at this 13 sir 13 point in time? 14 MR. BOYD: If I may approach? 14 A. 76,403,687. 15 THE COURT: Yes, sir. 15 Q, Okay. And then if you come up, you see the 16 Q. (By Mr. Boyd) -- PTX37. I'm going to ask you 16 long-term debt, excluding current installments? 17 to review that, please. 17 A. Yep. 18 A. Yes. 18 Q, What is that amount? 19 Q, All right. Do you recognize this email chain? 19 A. 24,090,686, 20 A. Yes. 20 Q, All right. Is that -- is it possible that that 21 Q. Okay. And this is -- at least if we start at 21 was what was lumped in with -- 22 the top and work our way back down to the opposite of 22 A. It is. 23 probably the chronology, there is an email from you to 23 Q, Okay. Do you know who that is payable to? 24 who? 24 A. It's quite a few of them, quite a few; IBC. 25 A. Bill Schrauff from -- I believe he is from Bank 25 The the reason why I combined them during that time,

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when I prepared this, the audit had not been done, and A. Right. 2 RSM combined them on on the audit report, so I was 2 Q, Did you have anything in writing at this point 3 just following their their tactic. 3 in time, either, number one, related to the Berry loans? 4 Q. Okay, fair enough. 4 A. Yes. 5 MR. BOYD: May approach, Your Honor. 5 Q, Okay. What did you have at this time? 6 THE COURT: Yes, sir. 6 A. A note that I -- I made up. 7 Q, (By Mr. Boyd) I'm going to hand you what's 7 Q, Did you have anything that was related to the 8 been marked as PTX58. 8 ten million dollar payment, in writing? 9 MR. BOYD: And, Your Honor, just to clean 9 A. Where we made it. 10 up, we would offer PTX37 and PTX50. 10 Q, Did -- did you have anything in writing saying 11 THE COURT: All right. Any objection? 11 that was part of the arrangement when the -- 12 MR. ALLISON: No objection. 12 A. Not in writing. 13 THE COURT: All right. Hearing none, 13 Q. -- when the arrangement was made? 14 they're admitted. 14 A. Not in writing. 15 Q, (By Mr. Boyd) All right. PTX58, have you had 15 Q, Who instructed you, and I assume it was you who 16 a chance to look that over? 16 made the ten million dollar payment? 17 A. Okay. 17 A. Yes. 18 Q. Again, this is the first page of an exhibit, an 18 Q. Who instructed you to do that? 19 email from you to Ms. Fulghum; is that right? 19 A. Perhaps Rob, but actually when we got the money 20 A. Yeah. 20 from Marty and Dennis, Marty told me at the ti me, "I'm 21 Q, Okay. And is she -- what's the purpose of you 21 going to want ten million or so back to pay those 22 sending this to her? 22 taxes." 23 A. She asked for it. 23 Q, All right. 24 Q. Okay. And was she one of the folks on the 24 A. So, it was known for the longest time. And I 25 approved list to receive certain financial information? 25 also told the banks, all the banks, that this was part

A. I saw her as an agent of Lawrence. I pretty of the arrangement, so that it wouldn't surprise them. 2 much sent her what she asked for. 2 Q, Which banks were those? 3 Q. Okay, fair enough. If we turn over to the 3 A. It would have been Wells Fargo and IBC at the 4 second to last page, which is actually the last sheet, 4 time. 5 but it's double-sided. 5 Q, Did you tell them that in writing, or how did 6 A. Right. 6 you convey that? 7 Q, What is the date of this combined and 7 A. probably talked to them. I don't -- I don't 8 consolidated balance sheet, please, sir? 8 really know, but I probably just talked to them. I had 9 A. April 30th, '23. 9 regular phone conversations with them regularly. 10 Q, All right. And so this is just one month after 10 Q, Okay. If we look at PTX37, the amount there is 11 what we just looked at, at PTX50; correct? 11 76,463 (sic), right? 12 A. Yep. 12 A. Let me see. I'm sorry, 37? 13 Q. And what is the amount booked for the long-term 13 Q. Yes, sir. The -- 14 notes payable, related parties, which is the Berry 14 A. Is 37 the one we looked at previously? 15 loans? 15 Q, Yeah, it was the February 28th. 16 A. 68,061,301. 16 A. Yeah. I'm sorry, go ahead. 17 Q, Okay. And what caused that to drop some 18 - - 17 Q, Okay. So it's 76,403; right? 18 well , some - - 18 A. Right. 19 A. 10. 19 Q, And this balance, on April 30th is 68, so it's 20 Q, -- 10, yeah, about 10,000; 10 million? 20 not quite ten million, it's a little less than ten 21 A. Yeah. 21 million; is that because of interest accrual? 22 Q, What caused that? 22 A. Correct. 23 A. We paid Marty 10 million dollars for his taxes. 23 MR. BOYD: May I approach, Your Honor? 24 Q, Okay, We heard Mr. Berry talk about that tax 24 Q, (By Mr. Boyd) Okay. I'm going to hand you 25 payment that he needed to make. 25 what I've marked as PTX46.

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A. Okay. MR. ALLISON: No objection. 2 Q, And just ask you to look at this. 2 THE COURT: It's admitted. 3 A. I'm kind of messing these up. Is that going to 3 MR. BOYD: And then if I may approach, Your 4 matter? Okay. 4 Honor? 5 Q, All right. The note payable to Berry loans is 5 THE COURT: Yes, sir. 6 now at what number? 6 Q, (By Mr. Boyd) I'm looking for PTX27. 7 A. 71,401,884. 7 A. I'm not sure. 8 Q. Okay. Again, is this up to - - related to 8 Q. It's have you seen that document before? 9 interest accrual on the books? 9 A. Yes. 10 A. Yes. 10 Q, Can you identify it for me? 11 MR. BOYD: May I approach, Your Honor? 11 A. This is the promissory note for Marty Berry. 12 THE COURT: Yes, sir. 12 Q, Okay. In -- and you'd seen that promissory 13 Q. (By Mr. Boyd) Mr. Klein, I'm going to hand you 13 note? 14 PTX45. And this is dated October 31st, 2023; correct? 14 A. Yes. 15 A. Yep. 15 Q, Okay. When did you first see that note, do you 16 Q, All right. And what is the balance on the 16 remember?

17 Berry loan? 17 A. Probably December of 2022. 18 A. 71,871,130. 18 Q. Okay. In January of 2023, Rob Powers sent an 19 Q. Okay. So in that month period, from Exhibit 46 19 email to Lawrence stating that the paperwork hadn't been 20 to Exhibit 45, it only ti eked up a small amount; right? 20 drawn up; is it possible it was in January?

21 A. Yeah. 21 A. Yes. 22 Q, Can you explain why that's such a small amount 22 Q, Was it a result of the auditor's requesting -- 23 over that 30-day period? 23 A. Yes. 24 A. I think he had an error in the previous one, 24 Q. -- that? 25 the my accountant that had done that. 25 A. Well, yes. I mean, we needed to do it anyway,

Q, Okay. Who is that? but yes. 2 A. John Gibson. 2 Q, Had you ever done such a large transaction, 3 Q. All right. And how would that error be 3 where you didn't paper it, contemporaneous with the 4 documented? 4 funds changing hands? 5 A. More corrected. Where we corrected it, I guess 5 A. No. 6 we could probably see it there. 6 Q, And you'd agree with me that that note does not 7 Q, And how was that error detected? 7 require any payments of principal or interest until 8 A. believe this would have been just from -- I 8 maturity; correct? 9 don't know if it was noticed during the audit, when they 9 A. Yeah. 10 came back down to -- I think he just -- he found it 10 Q, Do you agree with that? 11 himself. 11 A. That's what the note says. 12 Q, Okay. 12 Q, Okay. And if you can find in that stack I was 13 A. I didn't find it. 13 just thumbing through, PTX2, please, sir. 14 Q, Is there a reconciliation somewhere that 14 A. 2? 15 corrects it, or how is that 15 Q, Yes. First off, do you recognize that? 16 A. There is an entry. 16 A. Yes. 17 Q, Okay. 17 Q, Again, this is financial information that 18 MR. BOYD: At this time we would offer 18 you're sending to Ms. Fulghum, right? 19 PTX45, 19 A. Yeah. 20 MR. ALLISON: No objection, Your Honor. 20 Q, Okay. If we go over to the third page of the 21 THE COURT: It's admitted. 21 exhibit, which is the consolidated balance sheet for 22 MR. BOYD: PTX46. 22 July 31st, 2022. 23 MR. ALLISON: No objection. 23 A. Yep. 24 THE COURT: Admitted. 24 Q, All right. And if you look back at Exhibit 27, 25 MR. BOYD: And PTX58. 25 what is the date of the promissory note?

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A. July - I'm sorry - 8th. A. Yeah. 2 Q, Okay. And so this is, I don't know, what, 23 2 Q, Okay. So in July of 2022, when you were 3 days later? 3 accruing the interest payable on the Berry notes, you 4 A. Uh-huh. 4 were accruing it at 12-and-a-half percent; correct? 5 Q, Okay. And so you-all, at this point in time, 5 A. That's what it appears. 6 had already booked the Berry loans onto the balance 6 Q, Okay. 7 sheet; correct? 7 MR. BOYD: May I approach? 8 A. Yeah. 8 THE COURT: Yes. 9 Q, And what is the amount of the Berry loans at 9 Q, (By Mr. Boyd) While you're reviewing that. 10 this point in time? 10 MR. BOYD: I'm going to mark this as 11 A. 75,590,920, 11 Plaintiff's 66, and offer it as a summary of the 12 Q, Okay. And same question I'd asked earlier, 12 witness' testimony. 13 initially on July 8th, it was a 75 million dollar 13 THE COURT: Any objection? 14 transaction; correct? 14 MR. HUSEMAN: No. 15 A. Yes. 15 MR. ALLISON: No, Your Honor. 16 Q, And so, would that be the interest that had 16 THE COURT: Okay, Hearing none, then it's 17 accumulated up till July 31st? 17 admitted. 18 A. Yes. 18 Q, (By Mr. Boyd) Mr. Klein, would you look at 19 Q, 2022? 19 Plaintiff's Exhibit 57. 20 A. Yes. 20 A. Yeah. 21 Q, All right. Do you have an I-Phone with you? 21 Q, And do you recognize this document? 22 A. Yes. 22 A. Yes. 23 Q, Is it there? 23 Q, And what is this document? 24 A. Yeah. 24 A. It's just a schedule of all the debt. 25 Q, Okay. Do you mind doing some calculations for 25 Q, Okay. All the debt of what?

me? A. Of Bay/Berry, 2 A. I'm not supposed to do math in front of people. 2 Q, Okay. 3 Q, I'm sorry? 3 A. Bay and Berry. 4 MR. BOYD: May I approach, Your Honor? 4 Q, As we work our way down to the Berry GP, Inc., 5 THE COURT: Yes. 5 column, do you see the note payable to Mr. Berry? 6 A. Actually, I don't even know where the 6 A. Yes. 7 calculator is. 7 Q, All right. And out to the right of that it has 8 Q, (By Mr. Boyd) You don't? 8 "TBD". Correct? 9 A. I'm just an accountant. never look at that, 9 A. Yes. 10 though, 10 Q, And that means "to be determined," correct? 11 Q, You don't? 11 A. Right. 12 A. Here it is. 12 Q, All right. And above it we see American Bank, 13 Q, Did you find it? 13 variable, it's got an interest rate of 4.5; correct? 14 A. Yeah. 14 A. I'm not sure that's accurate, the 4,5, 15 Q, Okay. So, I want you to, sir - for me - take 15 Q, But it reflects an interest rate, correct? 16 590 590,920; and then I would like you to divide that 16 A. At -- at some time. 17 by 23 days and tell me what you get, please, sir. 17 Q, Okay. And then below that there is one, and 18 A. $25,692. 18 it's hard for me to read, I believe it says 5,25, 19 Q, Okay. And then I want you to multiply that by 19 A. Yes. 20 365 days, please, sir. 20 Q, Okay. 21 A. 9 million -- did do that right? 9,377,643. 21 A. But again, I think it's at a time, it's not 22 Q, Then I want you to divide that 9,377,643 by 75 22 necessarily at this time. 23 million. 23 Q, Okay. 24 A. 12,5, 24 A. I think those are titles, and he is not 25 Q, 12.5 percent? 25 necessarily changing that.

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Q, Who is "He"? A. Yes. 2 A. Juan Sotelo would do this. 2 Q, Okay. And you were working through those with 3 Q. Okay. We got his name down in the lower right 3 Mr. Fulghum? 4 hand corner; right? 4 A. Yes. 5 A. Correct. 5 Q, Okay. Did that tax situation get resolved? 6 Q, And he works for you? 6 A. No. 7 A. Yes. 7 Q, It's still pending? 8 Q. All right. If we come down to the Bay Limited 8 A. Yes. 9 debt, are you with me? 9 MR. BOYD: May I approach, Your Honor? 10 A. Yeah. 10 THE COURT: Yes, sir. 11 Q, We have a note payable to Laura Berry; do you 11 Q, (By Mr. Boyd) I'm going to hand you PTX40, 12 see that? 12 A. Okay. 13 A. Yes. 13 Q. All right. Do you recognize this email? 14 Q. And it's fixed at 3.75 percent; right? 14 A. I don't remember it. 15 A. Yes. 15 Q, Do you remember March 31st, 2023? It was about 16 Q, And are you familiar with her promissory note? 16 the time that you-all were in this -- having this issue 17 A. Yes. 17 with IBC and the line of credit. 18 Q. And it was at 3.75 percent; right? 18 A. Yes. 19 A. It appears to be. 19 Q. And apparently the 31st was a deadline of some 20 Q, Okay. So as of the date of this maturity 20 sort? 21 schedule we have the correct interest amount for her 21 A. Yeah. 22 note; and for Mr. Berry's note it's to be determined, 22 Q, What was that deadline? 23 correct? 23 A. I believe it was the deadline to come up with a 24 A. Yes. 24 plan to continue it for extensions. 25 MR. BOYD: Plaintiff would offer 25 Q, Continue extensions?

Plaintiff's 57, A. Continuing extensions for the -- the line. 2 MR. ALLISON: No objection. 2 Q, Okay. And at this point in time, are you-all 3 THE COURT: It's admitted. 3 active in trying to secure a different lender for your 4 MR. BOYD: May I approach, Your Honor? 4 revolver? 5 THE COURT: Yes, sir. 5 A. Yes, but it's towards the beginning. I mean, 6 Q, (By Mr. Boyd) Mr. Klein, I'm going to hand you 6 it's -- 7 Plaintiff's Exhibit 38 and ask you to review that. 7 Q, And it takes time? 8 A. Okay. 8 A. Yes. 9 Q. What is the subject matter of this email 9 Q. Okay. We know that Mr. Nixon, the chairman of 10 exchange? And again, is this with Ms. Fulghum? 10 the board of IBC, showed up at the Bay/Berry office; 11 A. think it's where they're -- she's trying to 11 correct? 12 wrap up the crane with Canadian -- Canadian CPH. 12 A. Yes. 13 can't remember what she is trying to wrap up a crane 13 Q. Did you meet with him? 14 that we own with -- or that we are renting, it's that 14 A. Yes. 15 one crane with CPH and it's 15 Q, All right. And was he indeed very angry, as we 16 Q. I think you're exactly right, actually. 16 saw in an earlier exhibit? 17 A. Yeah, I'm not explaining it. 17 A. Yes. 18 Q, So, you heard Mr. Berry testify about the first 18 Q, Okay. And why was he angry? Did he express 19 crane that was bought? 19 why he was angry? 20 A. Yes. 20 A. Yes. 21 Q. In conjunction with Gulf Western and Bay 21 Q. What was that about? 22 Canada; correct? 22 A. Primarily that none of the brothers were there. 23 A. Yeah. 23 Q, Okay. And do you know why the brothers weren't 24 Q, And there were some, I guess, lingering tax 24 there? 25 issues? 25 A. There wasn't really a meeting set. I was

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called up that morning to meet with him, like no plan. A. Not widely. That's -- not widely. 2 Q, Okay. How long did that meeting last? 2 Q, Okay. 3 A. It was really pretty quick. 3 A. It probably was just Hummell, and Rob and I, 4 Q. Okay. 4 and perhaps Marty; I'm not sure. 5 A. I'd say 20 minutes, maybe. 5 Q, Okay, fair enough. 6 Q, All right. Certainly Mr. Nixon believed there 6 MR. BOYD: Offer Plaintiff's Exhibit 41. 7 to be a meeting and flew all the way -- 7 THE COURT: Okay. 8 MR. ALLISON: Objection, Your Honor, he's 8 MR. ALLISON: No objection. 9 asking for speculation. 9 THE COURT: It's admitted. 10 Q, (By Mr. Boyd) Well, did he tell you he thought 10 MR. BOYD: May I approach? 11 there was a meeting? 11 THE COURT: Yes. 12 THE COURT: All right, sustained then. 12 Q, (By Mr. Boyd) I'm going to show you, Mr. 13 MR. ALLISON: Hearsay. 13 Klein, Plaintiff's Exhibit 43, I think. Maybe we can 14 THE COURT: Sustained. 14 share mine, if that's all right. 15 Q, (By Mr. Boyd) But he showed up at your office 15 A. Sure. 16 and had a meeting with you and Mr. Powers? 16 Q, Do you recognize this document? 17 A. He showed at our office. 17 A. I know what it is. 18 MR. BOYD: I'd offer Plaintiff's Exhibit 18 Q. Okay. And what is it? 19 40. 19 A. It's sent in to Lawrence, what I sent to Frost, 20 THE COURT: Any objection? 20 probably as a package. 21 MR. ALLISON: No objections. 21 Q, Okay. So, this is information that you were 22 THE COURT: All right. Hearing none, it's 22 providing to Frost, to facilitate securing a new line? 23 admitted. 23 A. Yes. 24 MR. BOYD: And also Plaintiff's Exhibit 38. 24 Q. All right. I want to go over to page 23 of 25 THE COURT: All right, any objection? 25 the of the RSM independent auditor's report.

MR. ALLISON: No objection, Your Honor. A. Okay. 2 THE COURT: All right. It's admitted. 2 Q, And that is your auditor? 3 MR. BOYD: May I approach, Your Honor? 3 A. Yes. 4 THE COURT: You may. 4 Q. Okay. If we go to page 23, if you can read 5 Q, (By Mr. Boyd) Mr. Klein, I'm going to hand you 5 that paragraph right there. 6 Plaintiff's Exhibit No. 41. Have you had a chance to 6 A. The whole paragraph? 7 review that, Mr. Klein? 7 Q, Yes, sir. 8 A. Yeah. 8 A. "The related party notes are collateralized by 9 Q. Do you recognize that? 9 certain oil and gas leases, life insurance policies, and 10 A. Yes. 10 interest in part, real property. Management believes 11 Q, If you go to the second page of PTX41, which is 11 that there is no -- there is a reasonable possibility 12 the letter that you see there? 12 that the notes maturing in 2023 will be amended to 13 A. Yeah. 13 extend the maturity date to a subsequent period. 14 Q, Okay. There are some handwritten notes out 14 Accordingly, the notes have not been classified as 15 beside each of the IBC requirements. 15 current assets.ft 16 A. Yes. 16 Q. Okay, fair enough. And that was because 17 Q, Were you involved in formulating these 17 management conveyed to the auditors that they 18 responses to IBC for these requirements? 18 anticipated that that note would be extended? 19 A. I don't recall, but I agree with them, I think. 19 A. Likely. 20 Q, Okay. Were there any meetings that you 20 Q, Okay. And it indeed was not, right? 21 attended, where this document was analyzed by anybody in 21 A. Is that the -- the Orea note? 22 management at Bay/Berry? 22 Q, Yeah. 23 A. Not that I recall, but there probably were. 23 A. Correct. 24 Q, Was it circulated to various people? I mean, 24 Q, Correct, it was not extended? 25 obviously we 25 A. Correct.

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Q, And that came up after this lawsuit was filed; Q, Okay. And the appraisal is of collateral for 2 correct? 2 the equipment revolver? 3 A. It came up? 3 A. Right. 4 Q, Yeah. 4 Q, Okay. And what they're evaluating here is 5 A. Well, it just did not get extended. 5 equipment owned by? 6 Q, But it was -- I'm sorry, 6 A. Bay. 7 A. I believe it -- I thought it had matured in 7 Q, Okay. 8 June or July. It was October? 8 A. Basically. 9 Q, Yeah, okay. 9 Q, All right. So, this wouldn't include any of 10 A. My bad. 10 the cranes that are owned by Mr. Berry and his wife? 11 Q, And what I'm talking about, just so we're on 11 A. No. 12 the same page, and then I'll get away from you. 12 MR. BOYD: We offer Plaintiff's Exhibit 44. 13 A. You won't. 13 MR. ALLISON: Objection, relevance. 14 Q, Are you feeling all right? 14 THE COURT: Well -- 15 A. (Moving head up and down.) 15 MR. ALLISON: This is Wells Fargo 16 Q, Okay. The -- when Mr. Hummell declared the 16 equipment. 17 default was after we had filed the lawsuit; correct? 17 MR. BOYD: I didn't -- I'm sorry, I didn't 18 A. Yes. 18 hear his objection. 19 Q, Okay. 19 MR. ALLISON: Relevance. 20 MR. BOYD: The Plaintiff would offer 20 THE COURT: He is asking for relevance. 21 Exhibit No, 43, 21 MR. BOYD: The relevance is that they're 22 THE COURT: Okay, 43? 22 using their equipment to secure lines of credit. Mr. 23 MR. ALLISON: No objection, Your Honor. 23 Berry talked about how cash is very important, but yet 24 THE COURT: It's admitted. 24 we have cranes that are off the books and are not being 25 (Court reporter talking.) 25 included.

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MR, BOYD: I'm going to have to switch out, THE COURT: All right. I'll -- I'll allow 2 Maybe if Mr. Allison would be so kind. 2 it, it's admitted. 3 MR. ALLISON: To do what? What are you 3 Anything else? 4 doing? 4 MR. BOYD: Yes, but I am nearing the end. 5 MR. BOYD: Let me borrow your clean copy, 5 Q, (By Mr. Boyd) Earlier when Mr. Berry was 6 THE COURT: Here, you can take this one. 6 testifying, he said that it was you that came up with 7 MR. BOYD: got it from the Judge. 7 the interest rate for his promissory note; do you recall 8 MR. ALLISON: We've got an extra over here. 8 that? 9 MR. BOYD: May I approach? 9 A. Yes. 10 THE COURT: Yes, sir. 10 Q, Okay. And how did you - - did you come up with 11 Q, (By Mr, Boyd) I'm going to hand you 11 it? 12 Plaintiff's Exhibit 44. I'm going to ask you to review 12 A. Yes. 13 it please, sir. 13 Q, Okay. Did you consult with anybody, in coming 14 A. Okay. 14 up with it? 15 Q, Can you tell us what this relates to? 15 A. Well, I probably asked Rob and I think he said, 16 A. This looks like I'm trying to give Lawrence the 16 "Be fair" is what Marty had said. And I used the IBC 17 Wells Fargo loan. 17 rate, which is prime, pl us a quarter. 18 Q, Is this the equipment line of credit that we 18 Q, Okay. Why did you pick that rate, versus the 19 had talked about earlier? 19 rate where Berry's note was positioned at? 20 A. Yes, yes. 20 A. Because it's the market, it's what we would 21 Q, And this Iron Tracks appraisal report? 21 have been able to pay, if we were lucky. 22 A. That was Wells Fargo's appraisal . 22 Q, And so Mrs. Berry's note was in the below 23 Q, And you're familiar with Iron Tracks? 23 market rates? 24 A. Yes, they're the appraisal firm that they 24 A. I'm not sure. The interest rates went up a lot 25 hired. 25 during that time. I'm not certain. I'm not certain how

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Mrs. Berry's rate was set. A. Yes. 2 Q. Okay, fair enough. You weren't involved with 2 Q. And this is something that you need to rely on, 3 that particular -- 3 to figure out how to calculate the interest related to 4 A. I may have been, but I just don't recall. It 4 the Berry loans; correct? 5 may have been set, this is what it was before, you know, 5 A. Yes. 6 It -- because she has -- she had loaned us money 6 Q. And if you wanted to do the analysis that I 7 occasionally, and it might have been just taking that 7 just talked about, to determine how that note compares 8 note from before and just changing it. 8 to the two-year treasuries, what would you rely on, to 9 Q. You mean keeping the interest rate historically 9 determine the two-year treasury? 10 consistent? 10 A. Probably the Internet. 11 A. Yeah. It may have been that. I'm not -- this 11 Q. Okay. Are you familiar with the FRED website? 12 is -- I'm not sure. 12 A. No. 13 Q. Okay, fair enough. Si nee we - - I don't know if 13 Q. Federal reserve? 14 this is in evidence, but just out of an abundance of 14 A. I would find it' but no. 15 caution. 15 Q. What's that? 16 THE COURT: All right. 16 A. No. don't know FRED. 17 Q. (By Mr. Boyd) All right. I'm going to hand 17 Q. You don't know FRED? 18 you Plaintiff's Exhibit 56, which is Ms. Berry's note. 18 A. No. 19 And indeed, that note confirms that her interest rate 19 Q. Certainly the federal reserve would be an 20 was at 3.75, right? 20 authoritative source for that; right? 21 A. Yes. 21 A. Yeah, sure. 22 MR. BOYD: Your Honor, we'd offer 22 Q. Are you a CPA? 23 Plaintiff's Exhibit 56. 23 A. Yes. 24 MR. ALLISON: No objection. 24 Q. I'm sorry? 25 THE COURT: Admitted. 25 A. Yes.

Q. (By Mr. Boyd) And you would agree that a note Q. Okay. 2 positioned at 3.75 percent is much more beneficial to 2 A. Can't practice, but yes. 3 the company than one at prime, plus a quarter; correct? 3 Q. And so, these would be the types of 4 A. Yes. 4 authoritative sources that you would rely upon to, 5 Q. All right. Have you done any kind of analysis 5 number one, calculate the appropriate interest accrual 6 on prime, plus a quarter, compared to the rate of return 6 on the Berry notes; right? 7 on US treasuries, two-year US treasuries? 7 A. Yes. 8 A. No. 8 Q. Okay. 9 Q. You're certainly capable of doing such an 9 MR. BOYD: Your Honor, I'd ask that you 10 analysis, right? 10 take judicial notice of Plaintiff's Exhibit 54 and 59. 11 A. Sure. 11 THE COURT: Well, okay. 12 Q. Where do you look to determine what JP Morgan 12 MR. ALLISON: Your Honor, I don't know that 13 prime is? 13 they are relevant, but can I take the witness on voir 14 A. Internet. 14 dire very briefly? 15 Q. The Internet? 15 THE COURT: There is no relevance to what, 16 A. Yeah. 16 the interest rate? 17 MR. BOYD: If I may approach, Your Honor? 17 MR. ALLISON: To talking about T-Bills. 18 THE COURT: Yes. 18 THE COURT: Well , maybe about T-Bi 11 s, but 19 Q. (By Mr. Boyd) I hand you Exhibit 59 and ask 19 I think the interest prime rate is 20 you to review it. Is this the type of source that you 20 MR. ALLISON: Oh, no, the prime rate, I'm 21 would rely on 21 fine with him talking about that. 22 A. Yes. 22 THE COURT: Okay. Well , I mean, I guess 23 Q. -- to determine JP Morgan prime 23 you can take the witness on voir dire, just make sure 24 A. Yes. 24 it's not cross. 25 Q. -- over a period of time? 25 MR. ALLISON: It wi 11 not be.

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THE COURT: Fair enough. Okay. a professional evaluating the loans; right? 2 VOIR DIRE EXAMINATION 2 A. Someone could. 3 BY MR. ALLISON: 3 MR. BOYD: Your Honor, I don't think 4 Q. The note with IBC, was it based on prime? 4 offered Plaintiff's Exhibit 56, the Laura Berry 5 A. Yes. 5 promissory note. 6 Q, The note with Frost, was it based on prime? 6 MR. ALLISON: No objection. 7 A. Yes. 7 THE COURT: Okay, it's admitted. Anything 8 Q. How long have you been aware of how banks 8 else? 9 normally use, or excuse me, loan money? How many years 9 Q. (By Mr. Boyd) Do you know what the prime rate 10 have you been around for that? 10 was in July of 2022? 11 A. 20, 30, 11 A. can look; 5.5, or it looks like it was 4.7. 12 Q, Okay. So, you do it based on prime? 12 MR. BOYD: Your Honor, may I approach? 13 A. Yes. 13 THE COURT: Oh, sure. 14 Q. You know, T-Bills, are they always a lower 14 Q. (By Mr. Boyd) I'm going to hand you what is 15 rate? 15 marked as Plaintiff's Exhibit 60. Have you had a chance 16 A. Yes. 16 to review Plaintiff's Exhibit 60? 17 Q, Do -- does that have anything to do with how 17 A. Yes. 18 you calculated interest or brought about interest? 18 Q. Can you tell me what's going on in the back and 19 A. No, I didn't -- I didn't look at the T-Bills. 19 forth with yourself, and Gretchen Reed, and Tonja 20 Q, Do they have any relevance to you, for how you 20 Fulghum? 21 would come up with a fair interest rate? 21 A. think they're -- we're trying to get 22 A. No. I probably wouldn't invest in T-Bills. 22 reconciled what Lawrence owes the company, just for 23 MR. ALLISON: That's all, Your Honor. 23 services used and stuff. 24 THE COURT: Okay. Go ahead. 24 Q. All right. And they had made, through the 25 MR. BOYD: I'm sorry? 25 months ending in 2023, really for a long ti me, that's

THE COURT: You' re up. 2023 and into 2024, requests for certain information to 2 MR. BOYD: Yeah. Your Honor, I'm asking 2 try to reconcile the related party reconciliation -- 3 the Court to take judicial notice of both the Treasury 3 A. Yes. 4 and JP Morgan prime, as it relates to fairness of the 4 Q. -- that they were undertaking, right? 5 transaction. 5 A. Yes. 6 MR. ALLISON: Your Honor, with regard to 6 Q, And this is related to the Orea ICI debt, in 7 the prime we have no objection. With regard to T-Bills, 7 part? 8 there is no predicate for it. 8 A. Not really. 9 THE COURT: Well, sustained. But with 9 Q. How so? 10 regards to the prime, I mean, the witness has testified 10 A. This is -- all the brothers had this type of 11 he takes that into consideration so -- 11 fund, where they would have services that they used on 12 MR. BOYD: Well, the next exhibit doesn't 12 their ranches or such. 13 just focus on prime, it also focus on treasuries, to 13 Q. Let me make sure I understand. So, the related 14 show the comparison of the rate of return of each. 14 part of reconciliation may be broader than only the Orea 15 MR. ALLISON: Which the witness has said 15 ICI, but it rel ates to all three brothers? 16 has no relevance, Your Honor. 16 A. Each one has an account where they might use 17 THE COURT: Yeah, so I agree. 17 some manpower or something. 18 MR. BOYD: Okay. 18 Q, Okay. 19 DIRECT EXAMINATION 19 A. And we would -- we would charge them for it, (Continued) 20 20 and this is over years and years. BY MR. BOYD: 21 Q. As I understand your testimony with Mr. 21 MR. ALLISON: Yeah, I'm just - - Your Honor, 22 Allison, you didn't consider the US Treasury rate of 22 if he - - if that's it, I mean, I'm done, but if - - 23 return? 23 THE COURT: Okay. 24 A. No. 24 MR. ALLISON: -- if he is going make -- 25 Q, But it's something that could be considered by 25 mean, we didn't even gone into this, this is a whole

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other animal . MR. BOYD: Fair enough. 2 THE COURT: Well , I agree we hadn't gone 2 Q, (By Mr. Boyd) Are you familiar with demand 3 into this but -- 3 letters that Mr. Hummell sent, relative to the Orea ICI? 4 Q. (By Mr. Boyd) Well, I want to go back to what 4 A. Yes, I saw it too. 5 you said earlier, that this is not really related to the 5 Q, Okay. And that's what Tonja and Ms. Reed are 6 Orea ICI, okay? 6 requesting information for, they're trying to reconcile 7 A. Correct. 7 how much Mr. Berry made on that note; right? 8 Q. If you'll turn over to ALB, three zeros, 902. 8 A. This is on -- this is talking about the balance 9 MR. ALLISON: And, Your Honor, we'd object. 9 that we discussed just recently. I mean, it's for his 10 If it's not related to Orea, it's something we haven't 10 services and stuff. 11 entered at all. And what he is talking about is each of 11 Q,

12 the brothers, for example, I think Lawrence has millions 12 A. don't see the ICI note on here, unless I'm 13 of dollars upside down with the company, in addition to 13 missing it. I don't I could be. I don't see it, I 'm 14 the tens of millions that he owes to Orea, 30 million 14 sorry. This -- this is regard to where we're trying to 15 more owed here, but we haven't even gone there, nor do 15 reconcile to what his team says they owe us. 16 we need to, nor does it relate to any of the loans 16 THE COURT: So -- so -- so, let me see if I 17 received from Marty, or from Dennis, or -- and it 17 get this straight. 18 doesn't relate to real estate and it doesn't relate to 18 THE WITNESS: Yeah. 19 him being a director, it doesn't relate to any of those. 19 THE COURT: There is -- there is the Orea 20 MR. BOYD: I - - I haven't even asked him my 20 note and then there is also -- each brother has his 21 question. 21 own - -

22 THE COURT: Yeah. Okay, I just wondered 22 THE WITNESS: Account. 23 where -- 23 THE COURT: -- account, right? 24 MR. BOYD: It will be clear. 24 THE WITNESS: Yeah. 25 THE COURT: All right. 25 THE COURT: And this is dealing with the

MR. BOYD: And if not, I know you'll shut account? 2 me down. 2 THE WITNESS: I believe this is dealing 3 THE COURT: Well, I might. 3 with the account. 4 Q. (By Mr. Boyd) Are you with us? 4 THE COURT: Okay. 5 A. Oops, sorry. 5 THE WITNESS: And I don't think it has ICI 6 Q, So, on Wednesday, February 28, 2024, Tonja 6 in it. It may have been a result -- I don't know if he 7 writes to you: Jim, good morning. Any update on the 7 sent a demand letter for this also, I'm not sure. 8 status of this request for more information. Lawrence 8 MR. BOYD: Well, if we go to page -- 9 is receiving demand letters from Mr. Hummell for 9 THE WITNESS: But he did send that. 10 payment. Right? 10 MR. BOYD: 6, Your Honor. 11 MR. ALLISON: Your Honor, that is on a 11 THE COURT: Okay. 12 completely unrelated, millions more that he owes, it's 12 THE WITNESS: It may have been at the same 13 not part of any of this. 13 ti me, but this is separate. 14 THE COURT: I mean, okay. I'm going to 14 THE COURT: All right. So, let's go to 15 give you a little latitude but, I mean, does this -- 15 page 6. Show the witness. 16 does this have any part to do with this? 16 Q. (By Mr. Boyd) ALB 000906. 17 MR. BOYD: Yeah. It's totally related to 17 A. 906. 18 the Orea ICI that they went into earlier in the day. 18 Q, Do you have water? Are you okay? 19 MR. ALLISON: The only -- 19 A. Yeah, I'm sorry. 906, 20 THE COURT: He says it's not. 20 Q, Do you see at the top? 21 MR. ALLISON: He said it's not. 21 A. Yes. 22 THE COURT: mean, you take -- look, I' 11 22 Q, ALB, Orea properties, and they're trying to 23 let you clarify, but the witness has said it is not 23 reconcile, to figure out if there are offsets to the 24 related to it. So unless the witness says it is related 24 Orea debt; correct? 25 to it, I'm not going to let you go into it. 25 A. don't really know what -- what this is.

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THE COURT: Look, let's do this - - got there, the CFO, it was reconciled yearly. 2 A. I'm unfamiliar with this. 2 Q, This was -- this transaction was long before 3 THE COURT: I'm going to take -- I'm going 3 you started with the company? 4 to take a break and maybe you-all could figure this out, 4 MR. ALLISON: And, Your Honor -- 5 and then when I'll come back we'll continue on, 5 A. No. 6 MR. BOYD: Okay. 6 MR. ALLISON: -- and at this point in 7 THE COURT: Okay? 7 time I think he's talking about still the personal 8 MR. BOYD: Fair enough. 8 items. 9 THE COURT: All right. 9 THE COURT: What's your legal objection? 10 COURT BAILIFF: All rise, please. 10 A. Yeah, this isn't -- this is -- 11 (Brief recess.) 11 MR. ALLISON: Relevance. 12 THE COURT: Okay. Next question? 12 A. still not -- 13 Q. (By Mr. Boyd) Mr. Klein, let's go back to page 13 THE COURT: I mean, here -- here's the 14 6. I just want to make sure I understand your 14 problem with -- with getting someone to talk about a 15 testimony. 15 document somebody else generated, he is not sure what 16 MR. ALLISON: We're on PX-60? 16 they're talking about. 17 MR. BOYD: Yes, PTX60. 17 MR. BOYD: understand, it was just a 18 MR. ALLISON: Thank you. 18 request to his department. 19 Q. (By Mr. Boyd) There is a reference there to 19 THE COURT: Right. And -- and maybe he 20 the worker properties but as I understand your 20 knew, maybe he didn't, but I don't think he's really 21 testimony, you don't know what that relates to? 21 sure.

22 A. I've been - - I've just been told, but Orea 22 MR. BOYD: Well, and I think that's where 23 Properties owns one of Lawrence's ranches. 23 I'm concluding. 24 Q. Well, why what does that 24 Q. (By Mr. Boyd) Is that accurate, you don't 25 A. I think that's what 25 know?

Q, -- have to do with what you-all were A. Yes. I -- I took this and I passed it on to 2 communicating about? 2 somebody. 3 A. Well, they didn't -- the work that had been 3 Q. Fair enough. I want to make sure I heard 4 done may have been done on that ranch, it might have 4 something and I don't want to belabor the point, but 5 been included in this balance. 5 asked you if you were a CPA, and you said "Yes," but you 6 Q, Okay. Which ranch does Orea Properties own, do 6 couldn't practice? 7 you know? 7 A. Yeah, I can't practice in Texas. I -- to be 8 A. don't know the ranches very well. 8 a --

9 Q. Regardless, on PTX60 and, you know, we'll get 9 Q. You're not licensed in Texas? 10 clarification as -- as this goes along, but starting 10 A. Right. 11 back in January there were requests for information; 11 THE COURT: Okay. 12 correct? 12 A. passed the CPA, but I'm a -- 13 A. Yes. 13 THE COURT: You don't have a Texas license 14 Q, And there was some snafu within your 14 that's active -- 15 department, somebody didn't do what they were tasked? 15 THE WITNESS: Right. 16 A. Yes. And this goes back, this balance goes 16 THE COURT: -- at this time? 17 back more than a decade. And there's holes in it 17 THE WITNESS: Right, and it's not active in 18 from from that. 18 Iowa either, where I'm from. 19 Q, Okay. 19 THE COURT: Okay. You just let it -- you 20 A. That's what she is -- is talking about in this, 20 let the -- you let your license lapse? 21 where she said we weren't able to gather up all the 21 THE WITNESS: Correct. 22 documents. We're trying to fill in those gaps from ten 22 THE COURT: It's as if you're not paying 23 years ago, and it's just hard. 23 the dues? 24 Q, All right. 24 THE WITNESS: But I passed the test. 25 A. But this is -- this is reconciled. Before I 25 MR. BOYD: Well, you did better than I did,

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I failed it' A. Yes. 2 MS. CANALES: Better than I did. 2 Q, Okay. Do you perceive that as good for the 3 THE WITNESS: The first time, too. 3 companies right now? 4 THE COURT: Now you're showing off. 4 A. Yes, especially with the payment terms. 5 MR. ALLISON: Now he's showing off, Your 5 Q, And why doesn't he get paid? 6 Honor. 6 A. We' re paying vendors, He had he had said 7 MR. BOYD: I pass the witness, Your Honor. 7 "Pay vendors first• because we owed some. 8 THE COURT: All right. 8 Q, Okay. Now, and I know you've been clear, 9 CROSS-EXAMINATION 9 you're the one who set the interest rate for Marty 10 BY MR. ALLISON: 10 Berry's and I guess Dennis Berry's note; is that right? 11 Q, Real quickly, on the cranes I want to make sure 11 A. Yes. 12 we have kind of some kind of broad parameters on it. 12 Q, And do you intend to pay Marty Berry any more 13 Apparently it's been months, many months since any 13 than that interest rate? 14 payments have been made to Marty Berry; is that right? 14 A. No. 15 A. Yes. 15 Q, Do you 16 Q, How much do -- does the Berry companies make 16 A. Well, some day we'll hopefully pay him back the 17 per month, direct or indirect, because of those cranes 17 principal too. 18 that Marty Berry leases to Berry companies? 18 Q, Okay. If you ever -- if the day comes where he 19 A. think it's -- it's about -- they cost about 19 gets to get paid back, according to the terms of the 20 450,000 total-ish. And the cranes themselves, we make 20 note, whether it's extended or extended again, whatever 21 about 700,000 of revenue. And then but because we have 21 all that is, are you ever going to pay him more than the 22 those cranes, we get jobs where we can charge labor and 22 interest rate stated in the note? 23 other equipment, so we probably get about over a million 23 A. No. 24 each month for -- for that. 24 Q, And I think he pointed out some calculation 25 Q, Okay. And so, I'm going to be real rough 25 errors, I guess, or some - - are you going to pay him

numbers here, is -- are Berry companies profiting? And 12-and-a-half percent, or whatever that number is on the 2 understand if -- if you were paying Marty on time 2 board? 3 A. Yes. 3 A. No. I think -- I'm sure at the time I just 4 Q, -- would you still be profiting -- 4 said do it he probably did it from the beginning of 5 A. Yes. 5 the month, and I don't know how he got to 12-and-a-half. 6 Q, -- 500,000 plus, per month? 6

7 A. It's hard to say how much the difference 7 Q, Is -- are you 8 between the 700 and the million 1, million 2 is profit. 8 A. I just wanted to see some interest there, and 9 Q, Okay. 9 -- I'm not sure how I got that. 10 THE COURT: But let's say the 700. 10 Q, Is Marty back there calculating the interest? 11 THE WITNESS: But the 700, yes, that's 11 A. I don't think Marty has a clue. He has 12 pretty much profit. 12 probably never l coked at it' 13 Q, (By Mr. Allison) So -- 13 Q, Okay. 14 THE COURT: Minus the cost of the rig? 14 A. He has not asked for it, I don't think, 15 THE WITNESS: The cost, yes. 15 Q, Okay. Do you intend to ever pay more than the 16 Q, (By Mr. Allison) So the amount you're 16 amount that's on the note? 17 making 17 A. No; well, the interest. 18 A. We do probably have some maintenance and stuff 18 Q, And will that be reconciled, whenever you get 19 that would go against it but 19 to a point where you can, hopefully if that day comes 20 Q, Let me do this: The cost to Berry companies, 20 and he gets paid for it? 21 if you paid, and I understand you haven't been paying, 21 A. Yes. And I'm also sure at 10/31 our year-end, 22 but the cost to Berry companies, what you're carrying is 22 during the audit, it got reconciled in and it is 23 money you owe to him, is hundreds of thousands of 23 correct. 24 dollars less per month, than what you're making with 24 Q, So in fact - - 25 him? 25 A. In fact what he got may have been the

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correction of July even, I mean. collateralized? 2 Q, Okay. So you think it's already been 2 A. No, not those. don't know. I'd try to find 3 corrected? 3 something if I had to, but it would have been hard. 4 A. Yes. 4 Q. But in candor, the ranches and all the property 5 Q, Okay. The terms, that the amount of interest 5 had already been pledged over at IBC; right? 6 rate that you applied, would do you believe that 6 A. Yes. Like - - well , most of it. 7 would have been available in the market place, that, or 7 Q, Okay. Anything that you that you know of, 8 a better rate? 8 that would have supported tens of millions? 9 A. The rate might have been, but the terms, the 9 A. Not that high; not - - not even close. 10 lack of collateral, able to subrogate it, and that much, 10 Q, Not even close, right? 11 don't -- I don't think so. 11 A. No. 12 Q, In other words, you feel like you had a -- for 12 Q, Okay, thanks. 13 that amount of need, did you feel like you had any other 13 THE COURT: Then you may stand down. Call 14 option 14 your next witness. 15 A. No. 15 MR. ABSMEIER: Your Honor, the Plaintiffs 16 Q, -- to go shop it out on the market? 16 call Tonja Fulgum -- Fulghum, I'm sorry. I think she is 17 A. No. 17 downstairs, so we may need a quick break. 18 Q. And if that had not gotten received or done for 18 THE COURT: Okay. Let me know when. 19 the company, what is your perception, as the CFO, in 19 (Brief recess.) 20 terms of where the company would have been, financially? 20 COURT BAILIFF: Raise your right hand. 21 A. I know that earlier they said that we really 21 (Oath was administered.) 22 needed it for the VG job and everything, but I think we 22 COURT BAILIFF: Watch your step. 23 needed it for survival. mean, it was -- there are 23 THE COURT: Don't trip. All right. Let's 24 times when I'm like trying to make payroll, and payroll 24 see, whose witnesses is this? 25 is key, you know. But we were behind on a lot of 25 MR. ABSMEIER: Mine, Your Honor.

vendors also. But with that, we also paid off a lot of THE COURT: All right. You're up. 2 other notes to for cranes, and to American Bank, and 2 TONJA FULGHUM 3 Wells Fargo, it's separate notes. 3 having been first duly sworn, testified as follows: 4 Q. So if Dennis and Marty had not stepped -- if 4 DIRECT EXAMINATION 5 Dennis and Marty had not stepped up, how dire was it? 5 BY MR. ABSMEIER: 6 A. It was getting pretty dire. 6 Q, All right. Ma'am, would you please state your 7 MR. ALLISON: That's all. Thank you, sir. 7 name for the record. 8 MR. BOYD: One quick question. 8 A. Tonja Fulghum. 9 THE COURT: Wait, do you have anything? 9 Q. Ms. Fulghum, who is your current employer? 10 MR. BOYD: Sorry. 10 A. Riverway Group. 11 MR. HUSEMAN: I wouldn't dare. 11 Q, And who was your employer prior to February 1st 12 REDIRECT EXAMINATION 12 of this year? 13 BY MR. BOYD: 13 A. Berry Contracting. 14 Q, One quick followup. At the time when it was 14 Q, And how long did you work for Berry? 15 dire, you didn't go out and shop into the market, did 15 A. About 27 years. 16 you? 16 Q. What happened, that caused your employment with 17 A. No. 17 Berry to end? 18 MR. BOYD: Nothing further. 18 A. I'm not sure. I was told I was being 19 RECROSS-EXAMINATION 19 transferred to Riverway Group. I think maybe reduction 20 BY MR. ALLISON: 20 of force. 21 Q. What did you have to trade? 21 Q. And 22 A. There is probably they've got a lot of 22 A. Maybe because of this lawsuit. 23 property. There might have been something I could have 23 Q, Okay. So, what is Ri verway Group? 24 used. 24 A. A company that Lawrence owns, that is focused 25 Q, The ranches already -- they were 25 on pursuing large international and national engineering

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construction projects, with the intent of pushing that background, tell me what you -- what your role was when 2 work over to Bay, where it's construction. 2 you first joined up with Berry and how you came to be 3 Q. Is Riverway Group part of the Berry companies, 3 employed by Berry? 4 Berry GP, Inc., group of companies? 4 A. Okay. Yes, so I was working for Coastal as a 5 A. No, sir. 5 contracts administrator on a project that Berry was on. 6 Q, How is it that you could be transferred from 6 The project manager approached me for a job when the 7 Berry, to a company that is not owned by Berry? 7 work was done, and I worked as an executive assistant at 8 A. I think that the young lady that called me in 8 Berry GP for two years in Corpus Christi, and then I 9 and described what was happening to me did not 9 moved to Houston to open the Friendswood yard. I worked 10 understand that. 10 directly for Lawrence, from that point forward, on the 11 Q, And who was the young lady that called you? 11 same thing that I'm doing now, basically, development 12 A. Chrissy Hinojosa. 12 projects. 13 Q. What's her position with Berry? 13 Q. Okay. And how long have you worked out of the 14 A. She's a vice-president. 14 Houston office of -- of Berry? 15 Q, Did she ever explain to you what she meant 15 A. That's a good question. I would have to say, 16 by 16 it's 20 - - si nee 2006; si nee 2006 17 MR. ALLISON: Your Honor, we'll just object 17 Q, Okay. 18 to relevance. I mean, her employment? I mean, at some 18 A. -- maybe. 19 point it was background, but it sounds like now we're 19 Q. Okay. And very generally can you tell us what 20 getting into an employment case. 20 your job duties were with Berry, over the past few years 21 THE COURT: I mean, if this is just 21 of your employment? 22 preliminary that's fine, but let's move on pretty quick. 22 A. Okay. So, we worked on international project 23 MR. ABSMEIER: It is preliminary, Your 23 development, funding development on large projects. We 24 Honor, but it also kind of shows that there was some 24 did a large Canadian project. We did some other 25 retaliatory behavior towards her. 25 projects in •· like in Proman, Valenzuela, things of

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THE COURT: Well, I think -- I think Mr. that nature. Most recently we've been working on the 2 Berry already testified about that, I think; I think. 2 Lone Star Ports project. It's been quite an ordeal, 3 MR. ALLISON: I think it is redundant, and 3 don't know mind telling you. I did a lot of stuff 4 I think it gets us into things that are -- 4 directly for the trust, for Canada project holdings and 5 THE COURT: But I'll give you a little bit 5 for Berry Y & V. There is still a lot of wind-down 6 of latitude. 6 stuff that I'm working on, related to that. 7 MR. ABSMEIER: Okay. Thank you, Your 7 Q, Okay. And you said -- I think you said front 8 Honor. 8 end development, that means pursuing projects? 9 Q. (By Mr. Absmeier) In your current role with 9 A. Yes, sir. 10 Riverway Group, do you still work on Berry GP projects? 10 Q, And setting them up? 11 A. I still work on projects associated with the 11 A. Yes, putting them together, the concepts, the 12 Berri es, yes. 12 relationships. 13 Q. But you are no longer being paid by Berry GP? 13 Q. Okay. Did you have supervisory 14 A. No, sir. 14 responsibilities in the Houston office, for Berry GP? 15 Q, Okay. Do you know of any reason why Berry GP 15 A. Yes, I did; not for Berry GP so much, as 16 would have wanted to fire you or terminate your 16 was unofficially had responsibility for Berry Y & V 17 employment? 17 Fabricators and the personnel, and the office management 18 MR. ALLISON: Objection, Your Honor, 18 of that. liked to say, more or less, I'm air traffic 19 speculation. 19 control. So if it hits my desk, it's got a good chance 20 THE COURT: Sustained. 20 of getting somewhere it's supposed to be. 21 Q. (By Mr. Absmeier) Did you ever get a negative 21 Q. Did the employees in the Houston office report 22 performance review, during your time period at Berry GP? 22 to you? 23 A. No, sir. 23 A. Yes, sir. 24 Q, Okay, want to talk to you briefly about your 24 Q, And you reported directly to Lawrence Berry? 25 27-year career with Berry. Can you, just by way of 25 A. Yes.

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Q, Okay. Have your duties changed since you've A. No, sir, I did not, 2 become employed with Riverway Group? 2 Q, And did you have any concerns, when you saw 3 A. No, sir. 3 this? 4 Q, Okay, new topic. I want to talk a little bit 4 A. I did. was concerned about what had been -- 5 about the lines between Marty and Dennis Berry and Berry 5 if he had given up equity or his portion of equity in 6 GP; are you familiar with those, generally? 6 the company in exchange for that note, I didn't know 7 A. I am, generally, yes. 7 what it -- what supported it. 8 Q, Okay. You should have before you a document 8 Q, Okay. What did you do, when you noticed this 9 labeled PTX2, Plaintiff's Exhibit 2. 9 entry? 10 A. Okay. 10 A. I asked him. 11 Q, Can you get that? 11 Q, You asked who? 12 A. Yes. 12 A. Lawrence, sorry. 13 MR. ABSMEIER: May I approach? 13 Q, Okay. And what did you ask him? 14 THE COURT: Yeah, yeah. 14 A. I asked him what -- what is this. 15 A. Here it is. 15 Q, And did Mr. Berry, did Lawrence have any 16 Q, (By Mr, Absmei er) Okay, PTX2 is an email from 16 knowledge of it? 17 Jim Klein to you; do you see that, ma'am? 17 A. No. He had a deer in the headlights look, 18 A. Yes, sir. 18 whenever he looked at it. 19 Q, And if you go to the second page, the bottom 19 Q, Okay. Are you aware of any efforts by your 20 email in that chain, it starts with an email from you to 20 office to reach out to Rob Powers, or Jim Klein, or 21 Jim Klein, requesting a copy of the current P & Land 21 anybody from Berry GP, to get information about this 22 BS, the balance sheet, I take it; right? 22 related party note? 23 A. Yes, sir. 23 A. At that point Lawrence told me he was going to 24 Q, For the combined companies, right? 24 ask. 25 A. Yes. 25 Q, Okay. Did - - did your office, to your

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Q, Okay. As -- as part of your duties in the knowledge, ever receive any information about that 2 Houston office, did you often correspond with Berry GP 2 related party note? 3 management, in order to get financial information? 3 A. No, sir.

4 A. Yes, I did. 4 Q, Okay. When was the first ti me that you ever 5 Q, Okay. Do you know, or do you recall why 5 received information about that related party note? 6 Lawrence was -- or you or Lawrence were requesting this 6 A. I think it was after this suit was filed. 7 information in September of '22? 7 Q, Okay. So, and this suit was filed in November 8 A. believe that this instance, we were 8 of 2023? 9 requesting it, because of his covenants with his Capital 9 A. (Moving head up and down.) 10 Farm loan for one of the ranches. We have to provide 10 Q, Okay. 11 financials for various entities on an annual basis. 11 THE COURT: Is that a "Yes"? 12 Q, Yes, ma'am. If you'll look at the third page 12 THE WITNESS: Yes, sir, sorry.

13 of the document, the combined and consolidated balance 13 Q, (By Mr. Absmeier) You can set that aside. 14 sheet for July 31st, '22; do you see that? 14 MR. ABSMEIER: May I approach? 15 A. Yes. 15 THE COURT: Yes, sir. 16 Q, Was there anything that stood out to you on 16 Q, (By Mr. Absmeier) I'm going to hand you what's 17 this balance sheet? 17 been marked Exhibit 50. 18 A. Yes, the related party note payable. 18 THE COURT: Yes, sir, 19 Q, Okay. And -- and what portion of the balance 19 Q, (By Mr. Absmeier) Ma'am, do you recognize 20 sheet does that appear in? 20 Exhibit 50 as an email I another email from Jim Klein to 21 A. Liabilities and equity, yeah. 21 you? 22 Q, Okay. And that's in the long term liability? 22 A. Yes. 23 A. Long term liability section, sorry, yes. 23 Q, And this is a March 2023 balance sheet; is that 24 Q, Did -- did you know what this entry was, when 24 right? 25 you reviewed this document? 25 A. Yes, sir.

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Q, Okay. I thought I had given you the wrong for Capital Farm, 2 document. 2 Q, And Mr. Klein did in fact provide some 3 A. It is March. 3 financials for the company, from April of '23? 4 Q, Okay, yeah. 4 A. He did, yes. 5 A. It's March 2023. 5 Q, Okay. And if you'll go to the second to last 6 Q, Okay, And if you look at the last page of that 6 page. The first page is the balance sheet, do you see 7 document, does that "related party, note payable" appear 7 that? 8 as an individual line item on the balance sheet? 8 A. Yes, sir. 9 A. It is not described the same. It appears that 9 Q, Okay. And then the long term notes payable, 10 it might be there as a 68 mi 11 ion dollar liability, but 10 related parties has reappeared on the balance sheet a 11 I'm it's hard to tell. 11 month later, right? 12 Q. Could you tell, in March of 2023, what the 12 A. Yes, sir. 13 balance of that related party note was, from the 13 Q, Did you notice anything different about the 14 information that you were receiving in the Houston 14 balance, as of April 2023? 15 office? 15 A. It's a little bit different, it looks like, 16 A. No, sir. 16 yes. 17 Q, Okay. Was that something that you were 17 Q, It's gone down, right? 18 interested in, or that Lawrence was interested in you 18 A. It's gone -- yes; yes, sir. 19 finding out? 19 Q, Okay. Was that something that you flagged, 20 A. It was something that Lawrence was certainly 20 when you reviewed this document? 21 interested in, yes. 21 A. For my own purposes, yes, but I don't think 22 Q, Okay. 22 brought it to Lawrence's attention at the time. 23 MR. ABSMEIER: Your Honor, I'd move for the 23 Q, Okay. Could you tell at that point in time 24 admission of Exhibit 50. 24 that some amount that had been repaid on the Berry 25 THE COURT: Okay. Any objection? 25 loans?

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MR. ALLISON: It's already in evidence, A. I assumed something had been repaid. 2 Your Honor. 2 Q, Could you tell how much was principal, versus 3 THE COURT: It is? 3 how much was interest? 4 MR. ALLISON: We already had it -- we 4 A. No, sir. There is no - -

5 already had it -- we already had it over here, from when 5 MR. ALLISON: We'll just object. We just 6 they were handing us stuff. 6 got finished with a witness who has first-hand knowledge 7 THE COURT: Well, okay. If it's in 7 of this, and she's making assumptions. She doesn't have 8 evidence, then I guess that's -- it's already in then, 8 any foundation. Predicate, lack of predicate. 9 guess it's already in. 9 THE COURT: Lack of predicate. Response? 10 Q, (By Mr. Absmeier) I'm going to hand you 10 MR. ABSMEIER: Yes, Your Honor. She's 11 Exhibit 58, 11 testified that is the head of the Houston office and 12 A. Okay. 12 would request financial information from Mr. Klein and 13 MR. ABSMEIER: PTX58. 13 others, that she - - 14 THE COURT: Okay. 14 THE COURT: I mean, to the extent that she 15 (Court reporter speaking.) 15 was requesting the information, I think it's getting 16 MR. ABSMEIER: So this may already have 16 repetitive because we've already heard it, but yeah, 17 been admitted, as to 58. 17 mean -- 18 THE COURT: Let's make sure. 18 MR. ABSMEIER: I'm -- I'm about to wrap 19 MR. ABSMEIER: I'll take that back. It is 19 this up. 20 already in as 58, it's the same document. 20 THE COURT: She's -- I got you, she's the 21 THE COURT: Okay. 21 other half of the conversations that we've already heard 22 Q, (By Mr. Absmeier) Can you tell us what Exhibit 22 about. 23 58 is, Ms. Fulghum? 23 MR. ABSMEIER: That's exactly right. And 24 A. It's an email from me, or a response from Jim 24 then it just goes to the difficulty of getting the 25 Klein to me, where I was requesting, again, financials 25 information and understanding the information of what

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was submitted. Q. What is that company? 2 THE COURT: All right. 2 A. It is a company that I believe Marty owns, that 3 Q. (By Mr. Absmei er) All right. One more and 3 is -- we used to do a crane transaction with a Canadian 4 then we'll switch topics. 4 entity back in 2019. 5 Exhibit 51 is that -- has that been admitted 5 Q. Can you generally explain that transaction? 6 already? 6 A. Yes. So, we had some money sitting at Bay 7 (Court reporter speaking.) 7 International Canada, Canadian money from a company that 8 Q. (By Mr. Absmeier) I hand to the witness PTX51. 8 we have up there. Barry Peterson needed to buy a crane. 9 THE COURT: Thank you. 9 We'd already done a transaction similar to this a couple 10 MR. ALLISON: 51? 10 of years previously, but Bay International Canada didn't 11 THE COURT: 51. 11 have enough money to pay for the whole crane. The 12 MR. ALLISON: Thank you. 12 money -- the crane was coming from Ireland, so the 13 Q. (By Mr. Absmeier) This is now a balance sheet 13 Canadian money worked well for that. I believe Marty 14 for September 2023; correct? 14 had the rest of the money, so he put that -- his half 15 A. Yes, sir. 15 up, and Bay International Canada put the other half up 16 Q. And what is the balance of that note payable, 16 to purchase that crane, with the agreement that both 17 as of September of '23? 17 companies entered into a lease agreement with Bay. Bay 18 A. 71,401,884. 18 International Canada's lease was deferred for a year, 19 Q. Okay. And so just to walk through that 19 believe, and Western Gulf's was going to be paid, and 20 quickly, we looked at a series of balance sheets where 20 then at that point in time Bay would own that portion of 21 the amount went from 75 million, down into the 60s, up 21 the crane, and Bay International Canada would start to 22 into the low 70s, and is here at 71.4 million as of a 22 receive their rentals. The reason that that is fresh 23 year later; right? 23 for me is because we've been trying repatriate that 24 A. Uh-huh. 24 crane into the United States and get it out of the 25 Q. Okay. At any point during this period of time, 25 Canadian company, so that we can avoid the Canadian

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did you receive information setting out what portion of revenue agency because there's been deferred rent that 2 that note payable was principal, versus what was 2 hasn't been paid. So, it's been fresh on my mind. I've 3 interest? 3 been working with Jim Klein to try and get that moved 4 A. No, sir. 4 back and get that cleaned up, so we stay out of trouble. 5 Q. Did you ever receive information about the 5 Q. Okay. want to talk to you a little bit about 6 terms of the note? 6 that transaction that took place in 2019. 7 A. No, sir. 7 A. Okay. 8 Q. When was the first time that you ever saw the 8 Q. The email before you in Exhibit 49, at the 9 promissory note? 9 bottom of the first page, somebody named Miguel Fuentes 10 A. I'm sorry, the first time I ever saw what? 10 forwards you some documentation on the subject, Liebherr 11 Q. The actual promissory note. 11 Crane invoices from BIC? 12 A. It's been since this case started, or since 12 A. Yes, sir. 13 this lawsuit was filed. 13 Q. Okay. Who is Miguel Fuentes? 14 Q. Okay. New topic. Oh, I'm sorry. 14 A. He was the CFO at the Berry Y & V Fabricators. 15 MR. ABSMEIER: Your Honor, I offer for 15 Q. Okay. And if you' 11 skim down to the third 16 admission PTX51. 16 page. At the top of the third page, there is an email 17 THE COURT: All right. Any objection? 17 from Miguel Fuentes to Diane DeCou. And who is Diane 18 MR. ALLISON: No objection. 18 Decou? 19 THE COURT: It's admitted. 19 A. She was the CFO at Bay, previously. 20 Q. (By Mr. Absmeier) I' 11 hand you what's been 20 Q. Okay. Mr. Fuentes says: Attached pl ease find 21 marked as PTX49. 21 the purchased summary prepared by Berry and the lease 22 THE COURT: Okay. 22 contract due. 23 Q. (By Mr. Absmeier) Ms. Fulghum, are you 23 He also says: I'm also including as well a 24 familiar with a company called Western Gulf Equipment? 24 report with BIC/Bay intercompany accounts, right? 25 A. Yes. 25 A. Uh-huh.

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Q, And I want to look at just one of the Q, And was that something that your office 2 attachments that he included, and that is at the very 2 requested from Mr. Klein? 3 last page of Exhibit 49. 3 A. Yes. 4 A. Okay. 4 Q. And what did you notice in the accounts payable 5 Q, You see that the last page of Exhibit 49 is a 5 report of Western Gulf Equipment? 6 summary of the transaction regarding this one crane? 6 A. That it looks like there is multiple pieces of 7 A. Yes, sir. 7 equipment, potentially, that Western Gulf Equipment owns 8 Q. Okay. And can you read the second sentence 8 that's owed money. 9 there? 9 Q. Can you tell from Exhibit 17 how many pieces of 10 A. "After discussion with the board the purchase 10 equipment Western Gulf Equipment was providing to the 11 and funding will be structured as follows." 11 Berry companies? 12 Q, Okay. So, did you understand that there had 12 A. It looks like there might be seven different 13 been board discussions about the way this one crane 13 pieces but I can't -- it's not clear. 14 would be purchased? 14 Q. Were you ever provided or your office ever 15 A. Yes, sir. 15 provided any notice about the fact that Western Gulf 16 Q, Okay. And if you skip down to the second and 16 Equipment would be leasing additional cranes to Berry 17 third bullet points, it indicates that Bay International 17 GP? 18 Canada would fund half, and Western Gulf Equipment would 18 A. No, not that I'm aware of, no, sir. 19 fund the other half; right? 19 Q. Okay. And what did you infer from PTX17, when 20 A. That's correct. 20 you saw it? 21 Q, And about five bullets down: After one year 21 A. Well, I recognized the name right away because 22 Bay Ltd will purchase 100 percent of the ownership held 22 had been working, like I said, with trying to get 23 by WGE. 23 the -- the Canadian crane, or owned portion of the crane 24 Is that correct? 24 moved into the United States, so it was fresh in my 25 A. That's true. 25 mind.

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Q, You may have testified to this, but is it your Q, And what did you do when you saw the -- the 2 understanding that Western Gulf Equipment is owned by 2 accounts payable report? 3 Marty Berry? 3 A. think Lawrence and I were looking at it 4 A. Yes, sir. 4 together. 5 Q, Mr. Lawrence Berry does not have an ownership 5 Q, Okay. 6 in it - - 6 A. Okay. 7 A. No. 7 Q, New topic, and perhaps the last topic. There's 8 Q. -- right? Aside from this single crane 8 been some discussion today about requests for 9 purchase that Exhibit 49 indicates that the board had 9 information that have been made to the company and about 10 approved, were you aware of any other business that 10 account balances going both ways between the company and 11 Berry GP was doing with Western Gulf Equipment? 11 Lawrence Berry or his companies. I want to talk with 12 A. No, sir. 12 you a little bit about those accounts and your attempts 13 Q. You should have in the stack before you a 13 to get information from the company. 14 document labeled PTX -- 14 A. Okay. 15 MR. ABSMEIER: Oh, I'm sorry. And I offer 15 Q, So there's an entity, I understand, called 16 for admission Exhibit 49, PTX49. 16 Orea? 17 THE COURT: Okay. 17 A. Yes, sir. 18 MR. ALLISON: No objection. 18 Q, Can you explain briefly what Orea is? 19 THE COURT: It's admitted. 19 A. It was a company that Lawrence put together 20 Q, (By Mr. Absmeier) You should before you, ma'am, 20 that was pursuing oil and gas leases in the Eagle Ford, 21 a document labeled PTX17. Do you recognize PTX17? 21 ori gi nall y. 22 A. do. 22 Q, And did Orea originally have a loan agreement 23 Q, What is it? 23 with Berry GP? 24 A. It is an accounts payable report, a page from 24 A. They did, yes. 25 an accounts payable report. 25 Q, And at some point was that loan converted to

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some kind of partnership equity arrangement? rule, please? They brought up this Orea issue 2 A. Yes, sir. 2 repeatedly today, to imply that Lawrence is refusing to 3 Q. Okay. When did that occur? 3 pay amounts due. There are genuine disputes as to the 4 A. This should be fresh in my mind, but I don't 4 legitimacy of some of the amounts going back and forth 5 remember the exact date. 5 between the companies, and that's all I'm trying to 6 Q, Do you recall why that occurred? 6 establish. 7 A. So, I know that Ed and Jonna came to Houston. 7 THE COURT: Okay. I mean, this is 8 think there may have been some other discussions 8 really -- mean, I've heard a lot about Orea. This is 9 previous to that, but our first awareness of it was they 9 the first time I've heard really anything substantive 10 came to Houston and wanted to convert it to a 10 about Orea, right? 11 partnership. think they were trying to move some 11 MR. REASONER: All you hear from him is 12 stuff around in the financials, in order to qualify for 12 tens of millions of dollars is owed, and to let that 13 a highway bid or something. 13 MR. ALLISON: Your Honor, that was -- 14 Q. And by converting from a loan to Orea -- 14 MR. REASONER: Let me finish, let me 15 A. When they converted from the loan to the 15 finish. 16 partnership they did a mark to market adjustment. I'm 16 MR. ALLISON: - - that was our witness. 17 not an accountant, I don't pretend to be, but they did a 17 MR. REASONER: Can I please finish? 18 mark to market adjustment that got Lawrence's 18 MR. ALLISON: Sure. 19 accountants very excited and upset, that it inflated the 19 MR. REASONER: Your Honor, I think we're 20 value of the company - they felt like - falsely. 20 entitled to briefly respond to the suggestion that it's 21 Lawrence was agreeable because it was doing something to 21 undisputed that tens of millions of dollars is owed; 22 help Berry GP, so we -- we cooperated. 22 that's the point of the testimony. 23 Q, Okay. So, let me back up and 23 THE COURT: Okay. 24 A. Okay. 24 Q. (By Mr. Absmeier) Ms. Fulghum, do you have an 25 Q, -- parse that a little bit. First you 25 understanding as to what effect it would have for Berry

286 288

mentioned Ed and Jonna, can you tell the Court who they GP's balance sheet, if the loan to Orea was converted to 2 are. 2 equity and mark to market? 3 A. I'm sorry, yes. Ed Martin and Jonna Jones. Ed 3 A. do. I don't know what they were trying to 4 Martin was the CEO previously and Jonna Jones was the 4 achieve, except that they felt like it was something 5 CFO. 5 that was important. It was important enough that I got 6 Q, Okay. And you said that they were pursuing 6 an email from Jonna. 7 some highway work? 7 MR. ALLISON: Now, she is saying why 8 A. I - - from what I understood, yes, sir. I don't 8 they -- 9 have the firsthand, but from what I understood from the 9 THE COURT: So doesn't -- she doesn't know. 10 conversations, yes. 10 MR. ALLISON: She doesn't know. 11 Q, Okay. And did you have an understanding why 11 THE COURT: Yeah, I hear you. hear you. 12 converting a loan to an equity interest would help them 12 A. But what I do know is that they -- they did the 13 with that highway work? 13 mark to market adjustment for about 6.9 million, 7 14 MR. ALLISON: We object on relevance. We 14 million dollars. And by converting the loan to a 15 are years - - 15 partnership, the revenue that came in from the oil and 16 THE COURT: agree. 16 gas leases then became part of the company and then they 17 MR. ALLISON: -- we're years ago and things 17 mark -- 18 that -- 18 THE COURT: Became part of what company? 19 THE COURT: Yeah, I agree. 19 THE WITNESS: From Orea. The partnership 20 MR. ALLISON: I brought up the 20 became Orea ICI, sorry. 21 THE COURT: Sustained. I mean 21 THE COURT: Okay. 22 MR. ABSMEIER: Your Honor, if I could 22 THE WITNESS: Yeah. 23 respond. 23 THE COURT: There is a lot of companies. 24 THE COURT: 24 THE WITNESS: There is a lot, it is, it is, 25 MR. ABSMEIER: Can I respond, before you 25 and it's just a spaghetti bowl.

292 289 291

THE COURT: Right. arguments after all that. 2 THE WITNESS: Yes, sir. But i t - - i t did 2 MR. REASONER: I don't know what they might 3 some things to the numbers that our accountants didn't 3 have. 4 agree with. 4 THE COURT: And he's got his motion to 5 THE COURT: Okay. 5 dismiss, and you've got a response and you've got a 6 THE WITNESS: But Lawrence assured us that 6 reply, so - - 7 it was some sort of an agreement that they had with the 7 MR. ALLISON: We're all over the place, 8 board, that that was all going to get taken care of, and 8 Your Honor. 9 so we proceeded with that understanding. 9 THE COURT: All right. 10 THE COURT: Okay. Next question. 10 MS. CANALES: Your Honor, it's 10:30 on 11 MR. ABSMEIER: Okay. 11 Monday, correct? 12 Q, (By Mr. Absmeier) Thank you, ma'am. I'm going 12 THE COURT: 10:30 on Monday. I will do my 13 to hand you what has been marked as Exhibit 60. 13 best to be ready for you. 14 THE COURT: All right. This is what? 14 COURT MANAGER: If you want to be here at 15 MR. ABSMEIER: That's Exhibit 60, Your 15 10, that's fine. 16 Honor. 16 THE COURT: If you want to be here at 10, 17 THE COURT: Okay. 17 and I get I got one 10:00, if it goes away, maybe 18 MR. ABSMEIER: PTX60. 18 I' 11 wipe it out quick, maybe we can get started a 19 MR. ALLISON: Six zero? 19 little early. 20 MR. ABSMEIER: Six zero. 20 MS. CANALES: With that, may I be excused? 21 THE COURT: All right. You're up. 21 THE COURT: Yes, ma'am. 22 MR. ABSMEIER: Is it in evidence? 22 MS. CANALES: Thank you, Judge. 23 MR. ALLISON: Yeah, i t should be. 23 MR. REASONER: Thank you, Your Honor. 24 MR. ABSMEIER: Yeah? 24 MR. HUSEMAN: Thank you. 25 MR. ALLISON: It is. 25 MR. ABSMEIER: Thank you, Your Honor.

290 292

MR. HUSEMAN: Yeah. MR. ALLISON: Thank you. 2 MR. REASONER: Is it in? 2 MR. BALDTREE: Thank you, Judge. 3 MR. ABSMEIER: Yeah. Was i t -- was i t 3

4 offered and admitted? 4 (End of hearing.) 5 MR. ALLISON: It was one of the ones that 5

6 was handed to us and I think -- I don't think I object 6

7 to any of them. 7

8 MR. REASONER: I don't think -- I don't 8

9 think -- once you offer it -- why don't you just offer 9

10 i t in. 10

11 MR. ABSMEIER: Your Honor, offer for 11 12 admission Exhibit 60. 12 13 THE COURT: Okay. Any objection? 13 14 MR. ALLISON: No objection. 14 15 THE COURT: Look, that takes us to about 15 16 the end of the day. I know you-all are coming back on 16 17 Monday, and I' 11 give you the ti me I have. Well, I'm 17 18 going to give you guys all the time you need on this 18

19 case, so that's about all we got for today. 19 20 MR. REASONER: And, Your Honor, just to - - 20

21 I think -- don't hold me to it, but I think at most we 21

22 would have one other witness after Ms. Fulghum and then 22

23 closing arguments. 23 24 THE COURT: No, that's fine. And -- but, 24 25 mean, you-all are going to need some time for closing 25

293 293

STATE OF TEXAS 2 3 COUNTY OF NUECES• 4 5 I, OLIVIA OBALLE-AGUILAR, official court 6 reporter in and for the 117th District Court of Nueces 7 County, Texas, certify that the above and foregoing 8 contains a transcript of all portions of evidence and 9 other proceedings requested by counsel for the parties 10 to be transcribed, 11 WITNESS MY HAND, this the 27th day of 12 April, 2024. 13 14 /s/ Olivia Oballe-Aguilar 15 16 OLIVIA OBALLE-AGUILAR Texas C.S.R. 2152 17 Expiration date: 12/31/25 117th District Court 18 Official court reporter Nueces County, Texas 19 Corpus Christi, Texas 78401 Telephone: 361-888-0662 ~

21 ~

n M ~

294 EXHIBIT 8

295 1

1 REPORTER'S RECORD TRIAL COURT CAUSE NO. 2024DCV-0045-C 2

3 ) LAWRENCE BERRY, ) IN THE DISTRICT COURT 4 Individually and ) derivatively on behalf of ) 5 BERRY GP, INC., ) ) 6 Plaintiff, ) ) 7 BERRY GP, INC., ) ) 8 Nominal Plaintiff ) ) 9 ) NUECES COUNTY, TEXAS VS. ) 10 ) ) 11 MARTY BERRY, ROBERT RICKETT, ) ROBERT POWERS, MICHAEL ) 12 HUMMELL, BERRY GP, INC., ) BERRY OPERATING COMPANY, ) 13 LLC, and BERRY CONTRACTING ) LOP ) 14 ) Defendant ) 94TH JUDICIAL DISTRICT 15

16 -------------------------------- 17 TEMPORARY INJUNCTION HEARING (March 25, 2024) 18 --------------------------------

20 On the 25th day of March, 2024, the following proceedings

21 came on to be heard in the above-entitled and numbered cause

22 before the Honorable BOBBY GALVAN, Judge presiding, held in

23 Corpus Christi, Nueces, Texas;

25 Proceedings reported by machine shorthand.

296 2

1 A P P E A R A N C E S

2 FOR THE PLAINTIFF, LAWRENCE BERRY: 3 MR. BARRETT REASONER SBOT NO. 16441980 4 MR. MICHAEL ABSMEIER SBOT NO. 24050195 5 MR. BRUCE BALDTREE SBOT NO. 24116064 6 Gibbs & Bruns, LLP Houston, Texas 7 Telephone: (713) 650-8805

8 AND

9 MR. BUTCH BOYD SBOT NO. 00783694 10 Butch Boyd Law Firm 2905 Sackett Street 11 Houston, Texas 77002 Telephone: (713) 589-8744 12 AND 13 MS. GABBIE S. CANALES 14 SBOT NO. 24012376 Law Office of Gabbie Canales 15 5262 South Staples, Suite 100 Corpus Christi, Texas 78411 16 Telephone: (361) 887-4700

17 FOR THE DEFENDANTS, BERRY GP, BERRY OPERATING, BERRY CONTRACTING, AND MARTY BERRY: 18 MR. DOUGLAS A. ALLISON SBOT NO. 01083500 19 Law Office of Douglas Allison 403 North Tancahua Street 20 Corpus Christi, Texas 78401 Telephone: (361) 888-6002 21 AND 22 MR. MICHAEL H. 'MIKE' HUMMELL, PRO SE 23 SBOT NO. 10271100 Berry Contracting LP 24 1414 Corn Product Rd Corpus Christi, TX 78409-3020 25 Telephone: (361) 693-2909

297 3

1 P R O C E E D I N G S March 25, 2024 2 (In open court.)

3 THE COURT: Still under oath.

4 Okay. I don't know who was doing the

5 questioning. I can't remember.

6 MR. ABSMEIER: I was, Your Honor.

7 THE COURT: All right. Then you're on.

8 MR. ABSMEIER: Thank you.

9 DIRECT EXAMINATION, CONTINUED

10 BY MR. ABSMEIER:

11 Q. Good morning, Ms. Fulghum.

12 A. Good morning.

13 Q. At the end of the day Friday we were finishing up our

14 discussion of the Orca transaction and the amounts owed back

15 and forth between Lawrence and the company; do you recall that?

16 A. Yes, sir.

17 Q. Okay. I want to quickly try to wrap that issue up.

18 I'm gonna hand you what I'm marking 67.

19 MR. ABSMEIER: May I approach, Your Honor?

20 THE COURT: You may.

21 Q. (By Mr. Absmeier) This is 67.

22 A. Okay.

23 THE COURT: Yes, sir.

24 Q. (By Mr. Absmeier) Ms. Fulghum, do you recognize

25 Exhibit 67 as an e-mail chain between you and Johnna Jones from

298 4

1 January of 2014?

2 A. Yes, sir.

3 Q. And the subject on that e-mail is "Update on Orca

4 Promissory Note", correct?

5 A. Correct.

6 Q. Okay. If you go to the bottom e-mail Ms. Jones

7 indicates that she had called you to see if you had an update

8 in regards to the amount on the promissory note, right?

9 A. Yes.

10 Q. And you respond and indicate essentially that you

11 hadn't spoken to Lawrence about it, right?

12 A. Yes.

13 Q. And you say, third sentence, "Have the financials

14 been closed to accommodate the TxDOT bids", right?

15 A. Right.

16 Q. What was going on with the TxDOT bids at that point?

17 A. I think that they were trying to get --

18 MR. ALLISON: Your Honor, we just object to

19 speculation. It sounds like she was not in the conversation.

20 THE COURT: Okay. All right.

21 MR. ABSMEIER: Your Honor, she's discussing the

22 TxDOT bids in this e-mail.

23 THE COURT: Okay. Well, I guess you can

24 rephrase the question in a way that it's not speculative.

25 MR. ABSMEIER: Okay.

299 5

1 Q. (By Mr. Absmeier) Ms. Fulghum, did you have an

2 understanding as to what was going on with the TxDOT bids at

3 that point in time?

4 A. What I understood was that they were pushing Lawrence

5 to sign a document that converted a loan to a partnership

6 agreement with some adjusted financials in support of getting

7 bonding for TxDOT bids.

8 Q. Okay. And that is the conversion of the Orca entity

9 from -- or the Orca transaction from a loan to a partnership

10 where --

11 A. Yes, sir.

12 Q. Okay. That we talked about Friday, right?

13 A. Yes, sir.

14 Q. Okay. And was the point of that to enhance the

15 Bay/Berry balance sheet to allow them to bid on this TxDOT

16 work?

17 A. I assume that's what it was, yes.

18 Q. Okay. And you indicated there was some sort of mark

19 to market component of that transaction?

20 A. That's right. They did a mark to market adjustment

21 of the valuation of the leases of about 7 million dollars.

22 Q. And so at that point when the loan was converted to

23 equity, was the equity valued the same as the loan amount or

24 more?

25 A. More.

300 6

1 Q. Okay. So setting aside that conversion of the

2 partnership and the mark to market adjustment you just

3 explained, has Lawrence paid off the original loan amount plus

4 interest?

5 A. Everything that Lawrence borrowed from the company

6 has been paid, plus interest.

7 Q. Okay.

8 MR. ABSMEIER: Your Honor, move for the

9 admission of Exhibit 67.

10 THE COURT: Okay.

11 MR. ALLISON: No objection.

12 THE COURT: It's admitted.

13 Q. (By Mr. Absmeier) After this lawsuit was filed,

14 ma'am, did Berry begin -- Berry GP I'm talking about -- begin

15 making demands for Lawrence to repay those amounts and other

16 amounts due to the company?

17 A. Yes, sir.

18 Q. Okay. I want to talk with you briefly about some of

19 your requests for information to the company on Lawrence's

20 behalf. First, did you have a role in helping manage the

21 balances, or track the balances that were owed back and forth

22 between Lawrence and the company?

23 A. I had a role in helping to communicate the balances

24 owed, yes.

25 Q. Okay. Did you periodically review the amounts that

301 7

1 you were tracking as due to the company and vise versa?

3 Q. Did Lawrence attempt to pay the items that you agreed

4 were due?

5 A. Oh, yes, we did. We did clear some balances that

6 were on the related party receivable schedule as we were able

7 to confirm the amounts due, yes, sir.

8 Q. Did you find the times that the amounts charged were

9 improper --

10 A. Yes.

11 Q. -- or things were being charged that weren't actually

12 --

13 MR. ALLISON: Your Honor, we'll just object on

14 relevance. It sounds like we're getting now into the --

15 there's this Orca thing, and there's the -- sometimes the

16 partners would I think do something that was personal that

17 would get charged to their account, which are personal

18 accounts. And we haven't gone into that before and it just

19 seems like once we go down that road --

20 THE COURT: I mean, look, it seems to me that

21 the witness has testified that Lawrence paid back what was due.

22 And I -- I allowed you to get into the Orca because they made a

23 fuss about it. If what she's saying is he's paid back what's

24 due then I think that's the end of it.

25 MR. ABSMEIER: Right. And, Your Honor, that's

302 8

1 fine. This is sort of a predicate for requests for information

2 that are going unanswered. And it's a five-minute part of the

3 direct. But I'm not gonna get into the amounts or fight about

4 the numbers.

5 THE COURT: Okay. But I mean, if this is a

6 discovery issue that's fine, but, I mean, we're here on a

7 temporary injunction.

8 MR. ABSMEIER: Well, this is actually -- Your

9 Honor, this goes to the point that Lawrence or his office

10 requested information over and over again and doesn't get it.

11 THE COURT: Okay. Well, I'll give you a little

12 bit of leeway on that point only.

13 MR. ABSMEIER: Okay.

14 Q. (By Mr. Absmeier) Do you have before you Exhibit 60?

15 I guess you may recall this was the document that I had just

16 put in front of you when we broke at the end of the day Friday;

17 do you recall?

18 A. Yes.

19 MR. ABSMEIER: And, Your Honor, I offered this

20 for admission at the end of the day. And there was no

21 objection from Mr. Allison, but I don't -- in the transcript at

22 least it doesn't reflect that it was admitted.

23 THE COURT: Okay. Well, then I guess it's

24 admitted.

25 MR. ABSMEIER: Okay. Thank you, Your Honor.

303 9

1 Q. (By Mr. Absmeier) Ms. Fulghum, this is an e-mail

2 from Lawrence Berry to Shanna Gohlke copying you, right?

3 A. Yes.

4 Q. And it's responding to an e-mail from Mr. Hummell

5 with the subject, "Notice of Delinquent Account"; do you see

6 that?

7 A. Yes, sir.

8 Q. Okay. And the e-mail that Lawrence sent attached a

9 couple of documents. And, briefly, if you look at the last

10 page there's a letter. And the letter in the second paragraph

11 references an attached e-mail chain reflecting some

12 conversations, right?

13 A. Yes.

14 Q. Okay. I want to look at that e-mail chain. If you

15 start at the page base labeled ALB904. Do you see that that's

16 a January 8th, 2024 e-mail from Gretchen Reed to Jim Klein

17 Ccing you, right?

18 A. Yes, sir.

19 Q. And the subject's "Related Party Reconciliation"?

20 A. Yes.

21 Q. Who's Gretchen Reed by the way?

22 A. Lawrence's CPA.

23 Q. And does she report to you?

24 A. Yes, sir.

25 Q. Okay. And she says, "After an initial review of the

304 10

1 Berry Family Related Expense Excel analysis, we are sending the

2 attached request lists", right?

4 Q. And if you go down to the second paragraph she says,

5 "We're also sending you a reconciliation of amounts that Bay

6 owes to Lawrence", and then it talks about 1.7 million dollars

7 in expenses that should be netted against Lawrence's balance,

8 right?

9 A. Correct.

10 Q. Okay. And I won't belabor this, but if you kind of

11 scan down the next two pages of that e-mail there are some

12 spreadsheets embedded in the e-mail, right?

13 A. That's right.

14 Q. And those are the various expenses back and forth

15 that are trying to be reconciled here?

17 Q. Okay. Go to page ALB903, please.

18 A. Okay.

19 Q. The page before the one we were just looking at.

20 This is a February 3rd e-mail from Gretchen Reed to Jim Klein;

21 you see that, ma'am?

22 A. Yes.

23 Q. Okay. And so that's almost a month after that

24 initial request for reconciliation, right?

25 A. That's correct.

305 11

1 Q. And Gretchen says, "Hi, Jim. Following up on the

2 below request as we would like to continue to move forward

3 reviewing the balances but need additional information", right?

4 A. Yes.

5 Q. Okay. And is it consistent with your recollection

6 that no information -- that information that you had requested

7 in early January still had not been provided as of early

8 February?

9 A. It's been difficult to get this information for

10 years.

11 Q. Okay. If you go up to the e-mail above that, which

12 starts at the bottom prior page, Monday, February 12th, Ms.

13 Reed, again, Ccing you follows up yet again, right?

14 A. Yes.

15 Q. She says, "Following up again on our request for

16 supporting information"?

17 A. Right.

18 Q. And at that point you still hadn't received the

19 information?

20 A. No, sir.

21 Q. Okay. If you go up to the e-mail above that, Mr.

22 Klein says on February 13th, he apologizes. He said, "This has

23 been slowed by the lack of effort by an admin that was assigned

24 to the project", right?

25 A. (Moving head up and down.)

306 12

1 Q. And he says, "She's been replaced and the new admin

2 should be getting this to you", right?

4 Q. A couple weeks later you e-mail, right?

5 A. I did.

6 Q. This is February 28th now. And you say, "Jim, good

7 morning. Any update on the status of this request for more

8 information"; do you see that?

9 A. Yes, sir.

10 Q. At the top of 902?

11 A. Uh-huh.

12 Q. Following page -- or I'm sorry, the preceding page is

13 ALB901; are you there?

14 A. Yes, sir.

15 Q. And this is February 29th. Mr. Klein says, "Tonja,

16 they were attempting to gather up all the supporting documents

17 to send with the detail. I told them to just send it with what

18 they can get together quickly. Tomorrow they will send such",

19 right?

20 A. Correct.

21 Q. And tomorrow as of February 29th would have been

22 March 1 of '24?

23 A. Yes, sir.

24 Q. Did he send anything to you the next day?

25 A. I have not received anything.

307 13

1 Q. Did he ever send anything to you?

2 A. No, sir.

3 Q. Okay. So as you sit here today you still have not

4 received any information from Mr. Klein?

5 A. None of the supporting document, no.

6 Q. Do you know if today exactly what, if anything, is

7 logistically owed between the parties?

8 A. I don't know what is owed between the parties.

9 Q. You can set that aside, ma'am. Are you aware of

10 other information requests that you or Lawrence has made to the

11 company that have not been responded to?

12 A. I think in general there's a general lack of response

13 of information.

14 Q. And why is it important for you to receive

15 information to know what's going on with the company?

16 A. I mean, I received the information on Lawrence's

17 request and give it to Lawrence so he can make decisions or

18 understand what's happening with his company.

19 Q. Is Lawrence pursuing new jobs for the Berry entity?

20 A. Yes, he is.

21 Q. And does that lack of information affect his ability

22 to do that?

23 A. It does. The lack of information and the lack of

24 collaboration with the team in Corpus does, in fact, impact

25 that.

308 14

1 Q. In the past year or two where have you and Lawrence

2 gotten most of your information of about the company?

3 A. The Board meetings.

4 Q. And if Lawrence doesn't get updates of the monthly

5 Board meetings, is there another way that you know of to get

6 that information?

7 A. I think then the information could only come from the

8 field, which is not always accurate.

9 Q. Okay. And are your requests to company management

10 being responded to? Requests for information?

11 A. In some instances, yes, and in most instances, no.

12 Q. Okay. I want to briefly talk to you about your

13 interactions with the CEO at Berry GP over the years.

14 A. Okay.

15 Q. You testified you worked for Berry for 27 years

16 before you were terminated; is that right?

18 Q. Okay. In your job did you interact regularly with

19 the various CEO's that have been in place at the entities?

20 A. I did.

21 Q. Okay. What in your experience was the role of the

22 CEO?

23 A. Well, Mr. Martin I think was primarily involved in

24 the financial wellbeing of the company, and they had a

25 president Ken Luhan who oversaw the operations.

309 15

1 Q. Was that -- did you view that CEO role as an

2 important role in the company?

3 A. Absolutely.

4 Q. Did Lawrence, to your knowledge, have any role in

5 selecting or hiring the CEOs prior to the current CEO?

6 A. Yes.

7 Q. What was that role?

8 A. I think that they -- the brothers generally got along

9 and talked and engaged in conversations about who they were

10 going to put in that position.

11 Q. What has Lawrence's role been in the company just

12 directly?

13 A. He mainly oversees the industrial division and large

14 international projects.

15 Q. And I think you talked earlier in your testimony

16 about front end development of projects?

17 A. Uh-huh.

18 Q. And by that do I understand correctly that Lawrence

19 has pursued and obtained large projects on behalf of Berry GP?

21 Q. Can you just give a couple of examples?

22 A. I mean, go back to CNRL Horizon project, there's some

23 modular projects for Sunoco, Proman, Kazamba. I mean, I can go

24 through a litany of projects that he's pursued; some that he

25 got and some that didn't pan out.

310 16

1 Q. What has Marty's role with the company been to your

2 knowledge?

3 A. That he's a director and he's primarily overseeing

4 equipment from my understanding.

5 Q. And that would be the equipment division of the

6 company?

8 Q. What does the equipment division of the company do?

9 A. It's the largest -- one of the largest heavy haul

10 companies in the United States I believe.

11 Q. And --

12 A. Cranes, heavy haul equipment.

13 Q. And the equipment division of the company, does that

14 provide cranes to --

15 A. Internal and -- it's inside sales and outside sales,

16 yeah. So it supports the industrial division and it also has

17 its own business.

18 Q. Okay. And you understand now that Marty's running

19 his own equipment company, Western Gulf Equipment, on the side?

20 A. I don't know what that -- I understand that there is

21 some cranes that belong to Western Gulf Equipment, yes.

22 Q. Okay. And if -- if there are cranes with Western

23 Gulf Equipment running inside or outside leasing, that would be

24 in direct competition with the equipment division of the

25 company?

311 17

1 A. We don't have any transparency into those lease

2 agreements. But it would sound like that would be the case,

3 yes.

4 Q. Okay. Thank you.

5 MR. ABSMEIER: I'll pass the witness.

6 THE COURT: Cross.

7 MR. ALLISON: Thank you, Your Honor.

8 CROSS EXAMINATION

9 BY MR. ALLISON:

10 Q. You were asked some questions about, I guess, these

11 personal expenses that the company says are owed by Lawrence

12 but have not been paid back to the company?

14 Q. And that goes back for, what, about ten years?

15 A. Even longer I believe. There's --

16 Q. 15 years?

17 A. Yeah.

18 Q. Okay.

19 A. Yeah. I think that's probably true.

20 Q. Right. So it's been about 15 years since he squared

21 up?

22 A. It's been about that long, too, that we've been

23 asking for the backup for the data for the charges. So, to be

24 fair we did make it a wholesale effort.

25 Q. And those are personal charges? Things that Lawrence

312 18

1 went out and charged that were personal expenses but got the

2 company to pay?

3 A. I don't have any idea, because I don't have the

4 backup.

5 Q. Okay. And the backup document would be those

6 receipts whenever Lawrence got whatever he got, it would be

7 those receipts related to that transaction?

8 A. I don't think it's receipts, sir.

9 Q. Pardon?

10 A. Respectfully, I don't believe it's receipts. What I

11 believe it is is probably where he used equipment or labor

12 resources.

13 Q. Okay. And has -- did Lawrence keep his personal

14 records on those transactions?

15 A. I don't know that we even knew they were being

16 charged to him, so how would we have the personal records.

17 Q. I mean, did Lawrence keep track for himself how much

18 he's using company assets without permission? What do you

19 know?

20 A. I don't know.

21 Q. Okay. Because one source to go to -- and Jim Klein,

22 for example, doesn't have 'em back 15 years ago, the other

23 person you should ask is the guy who actually was at Alamo

24 Ranch using the equipment and maybe kept a document on how much

25 time he was using something for, right?

313 19

1 A. I would guess that would be okay.

2 Q. Have you asked Lawrence for that information?

3 A. Lawrence has --

4 Q. Have you asked him?

5 A. No, sir.

6 Q. Okay. And you talked a little bit about Rob and his

7 role, right?

8 A. I don't think I talked about Rob and his role.

9 Q. You talked about the CEO?

10 A. Yes, sir, the CEO.

11 Q. Okay. Now, and first of all it looks like from the

12 e-mails you've been going through most of that happens is it

13 fair to say at the staff level?

15 Q. Most of the exchange of the --

16 A. Sure, yes.

17 Q. Okay. And we have stacks of other e-mails where

18 information has been provided. Certainly you're not arguing

19 those exchanges don't occur?

20 A. Oh, absolutely not.

21 Q. Right. There's a lot of information that trades

22 hands, financial and otherwise, with Lawrence?

23 A. Yes.

24 Q. And with you as his representative or agent there

25 sometimes?

314 20

1 A. Yes, sir.

2 Q. And I think if I've been -- and I've kind of looked

3 at it and summarized it, but I'm gonna give you a chance to

4 just say some of it. There are multiple people that you reach

5 out to with the Berry companies that get you information,

6 whether it's business or personal information for Lawrence,

7 right?

8 A. I would say that's true.

9 Q. Jim Klein?

10 A. Jim Klein.

11 Q. Go ahead and go through the list with me here. Who

12 do you reach out to? Who are your go-to people at the company?

13 A. When it comes to financial information?

14 Q. Start there, sure.

15 A. Only Jim Klein.

16 Q. Okay.

17 A. Is the only one. But prior to him it was Diane Decou

18 if we needed personal information. On the related party

19 receivables we do reach out direct to John Gibson from time to

20 time, because I think he's the keeper of the records.

21 Q. Okay.

23 Q. Are all those people good people?

24 A. Are they good people?

25 Q. Yes.

315 21

1 A. Yes, of course.

2 Q. Do you think they're trying to -- and I understand

3 some of it's 15 years old, some of what documents they have,

4 what they don't have. Do you think there's -- I mean, I guess

5 any compliant you're making is against those people; is that

6 what you're saying?

7 A. No, sir.

8 Q. Okay. And you know for example -- and I don't -- I

9 guess maybe I want to make sure I didn't hear it incorrectly.

10 I don't think you're complaining about Rob Powers or his not

11 providing information, correct?

12 A. I am -- I don't know how to say I'm not complaining.

13 What I'm saying is that we have made repeated requests for the

14 backup. For instance, 20 -- 2002 might be difficult to

15 produce. 2023 should be relatively easy with the push of a

16 button, right? And so we did -- I did go and sit in 2019,

17 2020, 2021 with Diane and Barry Peterson and go through

18 documents, and we did find instances where Lawrence had been

19 charged when he shouldn't have been charged.

20 Q. Okay.

21 A. So, it's fair that we're asking for the backup.

22 Q. It's fair you're asking and it's fair they're doing

23 their best to try to respond?

24 A. Sure, sure. But 2023 should be -- 2022, 2023 we

25 should be able to see it.

316 22

1 Q. And everything --

2 A. We ask for it on a quarterly basis.

3 Q. And everything we're talking about right now really

4 is limited to personal expenses?

5 A. That's correct.

6 Q. Okay. And because you know, too, in terms of Rob and

7 him doing his role, that Lawrence just voted to sort of reup or

8 extend his contract, right?

9 A. Sure.

10 Q. Okay. So there's -- it's not that level of discord

11 there at all obviously?

12 A. I don't know where it gets stopped.

13 Q. Okay.

15 Q. Do you also have -- did you while you were working

16 there for many of those 20-some-odd years -- I apologize. I

17 don't remember the exact number.

18 A. Too many.

19 Q. Okay. For many of those years did you have your own

20 key?

21 A. My own key to what?

22 Q. To access the building?

23 A. No, sir.

24 Q. To access files?

25 A. I had my own key to the building in Houston.

317 23

1 Q. To the building?

2 A. In Houston. But I do not have access to any of the

3 files in Corpus Christi; electronic or physical.

4 Q. Isn't there a file room there that you were given

5 assess to?

6 A. In Corpus Christi?

7 Q. Yes.

8 A. No, sir.

9 Q. You never copied files in Corpus Christi?

10 A. I've copied files with permission in Corpus Christi

11 where somebody went and got them for me.

12 Q. Hopefully it's always with permission, right?

13 A. Always with permission.

14 Q. You're not supposed to be stealing files, and I'm not

15 saying you are.

16 A. No, no. I would not. I would not.

17 Q. Okay. So, when you copied them it was always with

18 permission?

19 A. And always that somebody brought me the file that I

20 requested.

21 Q. Okay. And that happened many, many times?

22 A. No, it did not happen many, many times.

23 Q. How many times?

24 A. Recently it happened one time. Before that I did not

25 go into the files. I always request from the person

318 24

1 responsible the information. I don't go into a file room. I

2 don't have a key.

3 Q. So the practice was for you to make a request, they

4 bring you the file, they do the copies?

5 A. Or they'd e-mail it to me, yes, sir.

6 Q. Okay. And that's been done whether by e-mail or

7 otherwise --

8 A. Most of the information transferred to me has been

9 done by e-mail.

10 Q. Okay.

11 A. Okay.

12 Q. But then some of it is I'll hand you the file and let

13 you work on it?

14 A. One time that I can think of recently that -- where

15 that happened, yes.

16 Q. And who was it that handed you that file?

17 A. I believe it was Mrs. Berry.

18 Q. Okay. Has Mr. Hummell also been involved?

19 A. Yes, Mr. Hummell came in and helped me find some

20 things, yes.

22 A. And Georgie helped me find some things, yes.

23 Q. Okay. Because sometimes it's hard to find and it's

24 good to get help from people?

25 A. I wouldn't even know where to begin to look there. I

319 25

1 haven't worked at that office in years, sir.

2 Q. Good to have help from them, and they provided it at

3 times?

5 Q. Okay. And it sounds like in this process of

6 reconciliation on the personal items that there has been some

7 progress made, and some things have been credited, and --

8 you've made some headway, just not enough headway like you'd

9 like?

10 A. Sure. So -- and if you look at the request that's in

11 front of me right here, there are some math issues that need to

12 be reconciled as well.

14 A. So it's -- it's --

15 MR. ALLISON: Nothing further, Your Honor.

16 THE COURT: Okay.

17 MR. HUMMELL: Just a few questions, Judge.

18 THE COURT: Yes, sir.

19 CROSS-EXAMINATION

20 BY MR. HUMMELL:

21 Q. Good morning, Tonja.

22 A. Good morning, Mr. Hummell.

23 Q. Just to touch on --

24 MR. ABSMEIER: Your Honor.

25 THE COURT: Excuse me?

320 26

1 MR. ABSMEIER: Mr. Hummell's a party.

2 THE COURT: Yeah, well.

3 MR. ALLISON: Just so you know, Mr. Huseman

4 couldn't be here today, and Mr. Hummell is pro se today.

5 THE COURT: Well, I don't think there's anything

6 in the rules that prohibit him from representing himself.

7 MR. ABSMEIER: No, sir. I don't think they do,

8 Your Honor.

9 THE COURT: We all know the idiom, but you know.

10 MR. ALLISON: I apologize. I figured you saw he

11 had a tie on today, and there was a reason for that. I should

12 have given you --

13 THE COURT: All right.

14 MR. ALLISON: Sorry about that.

15 THE COURT: Go ahead.

16 Q. (By Mr. Hummell) Recognizing that I might have a

17 fool for a client, I have a few questions for you, Tonja.

19 Q. You mentioned earlier -- and I'm gonna stay focused

20 on this stuff that you just covered this morning. You

21 mentioned earlier about the 2023 stuff should be easy to find?

22 A. Uh-huh.

23 Q. Is that a yes?

25 Q. Okay. So can we agree that Lawrence should know if

321 27

1 he had company equipment, company labor doing something for him

2 personally in the calendar year of 2023?

3 A. So, what we would do when we're given the backup

4 information for what comprises that I think it's like close to

5 1.2 million dollars, and some of it is labor, right? And some

6 of it is labor that we weren't expecting because that was

7 supposedly on Bay, but that's okay. We can recognize that.

8 But I -- we would take what is being invoiced and cross-check

9 it with what we know that he has that's out there deployed.

10 Q. Did you understand my question?

11 A. Maybe I didn't.

12 Q. Okay. I understand why you, Lawrence, maybe other

13 folks that work for Lawrence personally might need backup for

14 company equipment, company labor charges that are on his

15 personal account going back 10, 12, 14 years, however far back

16 it goes. I get that. But I'm talking about 2023. And my

17 question was, do you think he should be able to remember -- he

18 should be able to know and you should be aware of the 2023

19 charges that were occurring in the past six or eight months?

20 A. We don't see what's being invoiced to him on a

21 regular -- on a weekly basis, a monthly basis. It just gets

22 applied somewhere in the accounting department. And so I don't

23 think it's out of the realm of possibility that we could ask

24 for a printed report of what's been charged.

25 Q. And you can't know?

322 28

1 A. I can't --

2 Q. Lawrence can't know?

3 A. I can't know.

4 Q. And Lawrence can't know?

5 A. I don't know that he would know. He's not out there

6 wherever if the charges are being applied every day.

7 Q. And he doesn't know what he's asking to be done.

8 Okay. I'll move on.

9 You testified earlier that Lawrence has paid

10 back all of the money plus interest that -- I think you used

11 the term that he has borrowed, right, on the Orca side?

12 A. On the Orca ICI, correct.

13 Q. Right. How much money was that?

14 A. There was -- I'd have to look at the spreadsheet, but

15 it was 30,198,000 I think, or somewhere around there.

16 Q. Right around 30 million --

17 A. And he's paid all of that back.

18 Q. Paid all of it back?

19 A. Plus four million in interest.

20 Q. Okay. Are you familiar with the loan extensions that

21 he was signing every year?

22 A. Yes, I am.

23 Q. Okay. And did he sign one last year, or two years

24 ago that took him up to 2023?

25 A. I believe he did, yes.

323 29

1 Q. Okay. And that loan amount on the paper that he

2 signed with the extension was 12.6 million more or less?

3 A. Yes, sir.

4 Q. All right. And that loan was gonna mature in July?

6 Q. Of 2023? And all that money was due and payable

7 under that document last summer, right?

8 A. Yes, sir.

9 Q. And he didn't pay it; did he?

10 A. No, he did not.

11 Q. Okay. Now, he didn't get an extension either like he

12 had had for the past seven or eight years, right?

13 A. Not to my knowledge.

14 Q. All right. So you say he's paid all the interest he

15 owes. He was paying around $250,000 twice a year in interest

16 right up until July of '23, right?

17 A. Yes.

18 Q. Okay. But you're saying he didn't owe any money.

19 He's just paying a half million dollars in interest every year,

20 but he doesn't owe the money, right? Would you say?

21 A. I am saying that.

22 Q. Okay. And he even made another interest payment just

23 a few months ago?

24 A. Yes, he did.

25 Q. On money you say he doesn't owe?

324 30

1 A. Yes, he did.

2 Q. And you know that check wasn't cashed because the

3 note's in default and we're not accepting the interest

4 payments; we want the money, right?

5 A. I did not know the check hadn't been cashed. I'd

6 have to ask Gretchen.

7 Q. Okay. All right. I'm gonna change subjects now.

8 Talking about cooperation. Every time you've ever asked me for

9 anything I've gotten it for you; haven't I?

10 A. Yes. We have a good relationship.

11 Q. Okay. And Shanna and Georgie always try to help you

12 with anything you want, and it's always for Lawrence, right?

14 Q. Okay. When you wanted to come down from Houston and

15 get in the file room and, you know, pick this and pick that and

16 get me this and get me that, we had people devoted to helping

17 you make sure you got everything you were asking for, right?

19 Q. And there won't be an e-mail or a document or a

20 single complaint that they can bring to the Court to show the

21 Judge that you had any problems getting anything you wanted

22 from us, right?

23 A. No, I had no problems with that. As a matter of fact

24 we still work well together, Shanna.

25 Q. All right. I want to talk briefly about I -- think

325 31

1 you said something about the cranes and Marty's company, right,

2 competing against --

3 A. What I believe I said was, "I don't have any

4 transparency into what those agreements look like".

5 Q. Okay. Southern Comfort Equipment, you heard that?

6 A. I have.

7 Q. Is that Lawrence's equipment company?

8 A. It's a company that he set up that never -- it's not

9 even open anymore. It never had one financial transaction in

10 it.

11 Q. And you know you're saying that, but tell me about

12 the transparency there. What have you given us that tells us

13 what Southern Comfort Equipment was --

14 A. I don't even --

15 Q. Or what it did, or how much money it made?

16 A. It never made any money. I don't think he ever did

17 anything with it. I'm not even sure I remember what it was

18 for.

19 Q. How about Zilker Acquisitions? What's that?

20 A. A Shell company for buying oil and gas leases in the

21 oil field.

22 Q. Okay. Is that a Lawrence company?

24 Q. Okay. What about Three Rivers Pipe and Rental?

25 A. Yes.

326 32

1 Q. Is that a Lawrence company?

2 A. It was.

3 Q. Okay. What about Halcon Mineral Interests; is that a

4 Lawrence company?

5 A. It was, yes, sir.

6 Q. Okay. It got merged into West 17th Resources, right?

7 A. It did.

8 Q. And West 17th Resources is the company that Lawrence

9 uses to pay the interest on the money that you say he no longer

10 owes, right?

11 A. Yes.

12 Q. Okay.

13 MR. HUMMELL: That's all I have. Thank you,

14 Judge.

15 THE COURT: Okay. Anything else?

16 MR. ABSMEIER: Briefly, Your Honor.

17 REDIRECT EXAMINATION

18 BY MR. ABSMEIER:

19 Q. Ms. Fulghum, can you just give a few examples of

20 charges that you have seen that turned out to be incorrect?

21 A. They are charges mostly related to whenever the

22 equipment division goes and picks up equipment at auctions or

23 small tools consumables at auctions. Whenever they go do that

24 they write on the ticket A-L Berry auction, and that gets

25 invoiced in some cases to his personal account whenever it was

327 33

1 really for the benefit of Bay. So that's why we sat with Diane

2 and Barry Peterson and went through all of the tickets to make

3 sure that he was -- if it was Lawrence's stuff, it's Lawrence,

4 and if it's Bay/Berry, it's Bay.

5 Q. And when you sat with Mr. Peterson and others, did

6 you-all at least tentatively reconcile some of those charges?

7 A. We did. I'm not sure the credits were ever applied.

8 That's one of those things that we haven't been able to get

9 clarity on, but we did go through and reconcile for one year, a

10 year and a half.

11 Q. Did anyone at the company explain to you why the

12 credits never got applied?

13 A. No.

14 Q. Okay.

15 A. I think I have one e-mail from John Gibson that says

16 it's upstairs.

17 Q. Okay. Are the amounts due on the Orca note entirely

18 related to this mark to market transaction?

19 A. The 7 million dollars of it is related to the mark to

20 market. The rest of it we'd have to get with the accounting to

21 see what that is.

22 Q. Is that -- is the additional amount related to the

23 conversion to a limited partnership?

25 MR. ABSMEIER: I have no further questions, Your

328 34

1 Honor.

2 THE COURT: All right. Anything else?

3 MR. ALLISON: Nothing further, Your Honor.

4 THE COURT: Anything else?

5 MR. HUMMELL: No, Your Honor.

6 THE COURT: You may stand down. You're free to

7 go about your business.

8 THE WITNESS: Thank you.

9 THE COURT: Call your next witness.

10 MR. REASONER: Yes, Your Honor. We call

11 Professor Doug Moll as an expert witness, please.

12 THE COURT: Okay. Come forward.

13 COURT BAILIFF: Raise your right hand, sir.

14 (Oath was administered.)

15 THE COURT: Be seated.

16 COURT BAILIFF: Watch your step, sir.

17 THE COURT: You may proceed.

18 DOUGLAS MOLL,

19 having been first duly sworn, testified as follows:

20 DIRECT EXAMINATION

21 BY MR. REASONER:

22 Q. Sir, could you please state your name for the record?

23 A. Sure. Douglas Moll.

24 Q. And what is your occupation, Mr. Moll?

25 A. I am a law professor at the University of Houston Law

329 35

1 Center.

2 Q. And what is your specialization, if any, there as a

3 professor at University of Houston law school?

4 A. My specialty is business organizations law and

5 business law generally.

6 Q. And can you give the Court a flavor of what kind of

7 courses do you typically teach?

8 A. Sure. I teach business organizations. I teach

9 business torts. I teach a doing deals class. I teach some UCC

10 classes. Secured financing.

11 Q. And can you tell us just prior to going into

12 teaching, what academic degrees do you have, sir?

13 A. I got a Bachelor's of Science in Commerce from the

14 University of Virginia, and then I went to law school at

15 Harvard Law School and, you know, just got a J.D.

16 Q. And did you go right into teaching?

17 A. No. I spent a year clerking for Judge King on the

18 Fifth Circuit Court of Appeals, and then I worked at what was

19 called Fulbright & Jaworski at the time for approximately two

20 years.

21 Q. And then how long have you been a professor at

22 University of Houston?

23 A. So I've been at U of H since 1997. So I think it's

24 27. I think it's -- I always get confused if this is the start

25 or end of my 27th year, but it's somewhere --

330 36

1 Q. In that range?

2 A. Yes, correct.

3 Q. All right. How would you define, sir, the phrase

4 "corporate governance"?

5 A. So corporate governance is a term that's used a lot.

6 I guess from the 20,000 foot view I would say that corporate

7 governance is how a business organization operates. In other

8 words, it involves the rights and the duties of the managers of

9 the organization, as well as the rights and the duties of the

10 owners of the organization. Corporate governance -- some

11 people use corporate governance to refer to all forms of

12 business organizations.

13 Maybe it's just me, that personally drives me

14 crazy, just because there's LLC's, there's partnerships,

15 there's --

16 THE COURT: Partnerships, sole proprietorships.

17 THE WITNESS: Indeed. So, I like to say, you

18 know, organizational governance is probably for my picky self a

19 slightly better term. But I think we just mean generally when

20 we're talking about business organizations how that

21 organization operates. What are the roles and duties of the

22 managers? What are the roles and duties of the owners?

23 Q. Then to use your phrase "organizational governance",

24 do you teach or lecture on that?

25 A. Yes. I mean, the -- I mean, I almost want to say the

331 37

1 entirety of the business organizations course, but certainly

2 the bulk of the business organizations course is on the rights

3 and duties of the managers of corporations, LLC's,

4 partnerships, as well as the rights and duties of the owners of

5 corporations, LLC's, partnerships, et cetera.

6 Q. And how long have you been teaching those type of

7 courses?

8 A. I've taught business organizations since I got there,

9 so, since 1997.

10 Q. And do you have any publications in the field of

11 organizational governance, or corporate governance?

12 A. I mean, I would say every single one of my

13 publications is on -- so, the answer's yes. And, I mean,

14 that's what I write in. So everything I've done since I've

15 been an academic has been in sort of that field of

16 organizational governance as I defined.

17 Q. As a subset of this organizational governance

18 concept, is there -- does the issue of related-party

19 transactions, does that live within that subject matter?

20 A. Absolutely. I mean, problems related to conflicts of

21 interest and the fiduciary duty of loyalty are many would argue

22 perhaps one of the more important issues in organizational

23 governance.

24 Q. So getting more specifics on your publications, have

25 you published materials on the issue of related-party

332 38

1 transactions?

2 A. Yes. I have a treatise on closely held corporations

3 where we have an entire section on the duty of loyalty in

4 conflict of interest transactions. I have case books where we

5 have entire, you know, large chapters on the duty of loyalty in

6 conflict of interest transactions. I'm trying to think of any

7 -- I mean, I certainly reference that material in some of my

8 law review articles.

9 At the moment as I sit here I can't think of a,

10 you know, law review article that was solely on that topic.

11 But certainly the treatise and the case books have materials

12 solely on that topic.

13 Q. Over the course of your, I think you said 27 years --

14 in the neighborhood of 27-year career, have you from time to

15 time over that period of time served as an expert witness as

16 you are today?

18 Q. And have you given testimony -- well, why -- tell us

19 kind of what context you have sort of testified in over the

20 years?

21 A. I mean, sure. Again, if I was gonna generalize I

22 would say most of the disputes where I've been asked to

23 participate are in sort of a breach of duty, fiduciary duty or

24 otherwise, whether someone has authority to do X or Y. So as I

25 defined corporate or organizational governance earlier, I would

333 39

1 say with the exception of maybe one or two UCC cases, every

2 case I've ever been retained on is in this organization

3 governance, fiduciary duty space.

4 Q. And have some of those cases involved related-party

5 transactions?

6 A. Absolutely. I mean, in terms of duty and loyalty

7 issues, conflict of interest transactions, I would say many of

8 them have.

9 Q. Have any -- you've talked about your publications.

10 Have any of those been cited in judicial opinions, sir?

11 A. My publications? Yes.

12 MR. REASONER: May I have one moment, Your

13 Honor?

14 THE COURT: Yes.

15 MR. REASONER: May I approach, Your Honor?

16 THE COURT: You may.

17 Q. (By Mr. Reasoner) Sir, I'm handing you what's been

18 marked as Exhibit 68. Can you please identify that for us?

19 A. It looks like my CV.

20 Q. Okay. And can you take a moment to tell us if that

21 appears to be a current -- current CV for you?

22 A. Sure. Yes. It does appear to have my latest law

23 review article, so, yes. It looks -- it looks current.

24 Q. All right.

25 MR. REASONER: Your Honor, we offer Plaintiff's

334 40

1 Exhibit 68 into evidence, please.

2 MR. ALLISON: No objection.

3 THE COURT: Admitted.

4 Q. (By Mr. Reasoner) Now is it fair to say, sir, that

5 you are still getting up the -- up to the learning curve in

6 terms of the background of this matter that's now at an early

7 stage?

8 A. Yes. I think that's very fair to say.

9 Q. Well, I want to -- with that in mind I want to ask

10 you a couple of assumption questions. Sir, if you assume that

11 directors of a corporation loaned money to that corporation,

12 how would you characterize that transaction in general terms?

13 A. I mean, that is definitively a conflict of interest

14 transaction. You have a fiduciary of the corporation who is

15 loaning money personally to that corporation.

16 Q. And what concerns, if any, does a transaction of that

17 kind raise for a closely held company?

18 A. Sure. By the way, let me just point out, when I say

19 conflict of interest transaction, and you heard Mr. Reasoner

20 related-party transaction, and sometimes people call them

21 self-interested transactions, these are all as far as I'm

22 concerned the same idea. The same concept.

23 And the reason they're the same concept and the

24 concern that they raise is at the most simple level the

25 fiduciary. In your example, a director owes a fiduciary duty

335 41

1 to the company. That means they're supposed to be thinking

2 about the interest of the company. If the company -- I think

3 your example was is the borrower just to make things really

4 easy, what would be the company's interest be; borrow for a low

5 rate of interest or borrow for a high rate of interest?

6 Obviously, it would be the borrow at the lower rate of

7 interest.

8 But the concern is that the fiduciary is also

9 the lender. And so we're worried that instead of thinking

10 about the company's interest, borrow at a low rate of interest,

11 the fiduciary is thinking about his interest as a lender, which

12 would be loan at a high rate of interest. That's why it's a

13 conflict. That's what we would call a conflict or

14 related-party transaction.

15 Q. And does that concern exist whether or not the lender

16 is benevolent, well-meaning, nefarious, I mean, whatever their

17 intent are? Is there a concern from a corporate governance

18 standpoint about a transaction regardless?

19 A. Yes. I mean, we're always concerned. I mean, again,

20 some people would argue the number 1 concern of corporate

21 governance is conflicts and conflict of interest transactions.

22 So, the first question is is it a conflict transaction? The

23 answer in your hypothetical question is definitively yes. Now

24 what someone's intentions were, or motives were, or something

25 else is sort of a second question.

336 42

1 But it doesn't change that the law is concerned

2 any time a fiduciary -- we're worried that the fiduciary

3 because of their bias, their conflict, we're worried that that

4 transaction is not on the up and up.

5 Q. Let me ask you to assume another scenario. And that

6 is -- and, again, I'm gonna use names here just to orient us on

7 the record, but with the understanding that at this point you

8 haven't done a deep dive into -- nor has anyone, frankly, to

9 the facts here. But assume a company owned by Marty Berry, who

10 is a director of Berry GP, is leasing cranes to Berry GP or

11 another entity of which he is a fiduciary. How would you

12 characterize that transaction?

13 A. Well, again, that's clearly a conflict of interest

14 transaction.

15 MR. HUMMELL: Judge --

16 THE WITNESS: Because --

17 MR. HUMMELL: I hate to slow up the proceedings

18 here, but it seems to me that Mr. Reasoner's trying to get a

19 witness to instruct you on the law. I don't think that's

20 proper. I think that the Court having heard the facts already,

21 and being familiar with the corporation code can determine the

22 extent to which any of these transactions were interested-party

23 transactions. We need a hired lawyer from Houston to come tell

24 you how to interpret the corporation code.

25 I object to a witness attempting to instruct the

337 43

1 Court on the law.

2 MR. REASONER: And, Your Honor, I'm not asking

3 him to interpret the code. I have simply asked him about these

4 types of transactions, and he has written extensively and work

5 in the corporate governance area, and he simply talking about

6 how one would categorize them. I've not put a statute --

7 THE COURT: I'll allow it.

8 THE WITNESS: I hate to say this, but I kind of

9 forgot the question.

10 THE COURT: Yeah. Reask the question.

11 MR. REASONER: Okay.

12 Q. (By Mr. Reasoner) Sir, if you assume a company owned

13 by Marty Berry, who is a director of Berry GP, is leasing

14 cranes to Berry GP or another entity of which he is a

15 fiduciary, how would you characterize that transaction?

16 A. Yeah. So, again, that's a classic conflict of

17 interest transaction, because you have a director of the

18 company who owes a fiduciary duty to that company and is

19 supposed to be thinking about the best interest of that

20 company. And if the company is leasing -- again, if just to

21 make it easy, if you want to lease for a high price or lease

22 for a lower price, if you're the company who's leasing you want

23 to lease for a low price.

24 But what are we worried about? We're worried

25 that the fiduciary who's supposed to be thinking about our

338 44

1 company's interest is also over here as the lessor. And as the

2 lessor he's thinking, do I want to lease for a high price or

3 lease for a low price? We are worried that as the lessor I

4 want to lease for a high price. So you should be thinking

5 about lease for a low price, because you're a fiduciary of the

6 company. We're worried that you're thinking about lease for a

7 high price because you're also the lessor. That's a conflict.

8 Q. Can a conflict of interest or related-party

9 transaction ever pass muster or be okay?

10 A. Absolutely.

11 Q. I used a couple of Latin phrases there. I hope I

12 didn't lose you. No, is that -- can it ever be okay to do a

13 conflict of interest transaction?

14 A. Absolutely. And just to be clear, I'm certainly not

15 trying to say that conflict of interest transactions are per se

16 illegal. They are not. The only thing that a conflict of

17 interest -- the reason why it's important to identify a

18 conflict of interest transaction is because we scrutinize those

19 transactions more because of the concern over the conflict,

20 over the bias.

21 Q. And based on your experience with closely held

22 companies, how should a conflict of interest transaction or

23 related-party transaction between a company and one of its

24 directors be handled?

25 A. Well, of course, the Judge is -- you know, it's

339 45

1 certainly the Judge's province to apply the law. But, you

2 know, there's three methods; there has to be full disclosure of

3 material facts to disinterested directors, or full disclosure

4 of material facts -- and I realize this is disputed a bit, but

5 it would certainly be my opinion to disinterested sharers, or

6 the transaction has to be fair to the company.

7 Q. All right. And those -- and let me ask you, sir, on

8 the fairness. Is that a factual analysis that goes on if that

9 comes up?

10 A. Yes, fairness is presumably a totality of the

11 circumstances inquiry into everything related to the fairness

12 of the transaction; from the fair price, to fair dealing, to --

13 yes, it's a factually --

14 THE COURT: An issue for the fact finder;

15 whether it be the Court or the jury?

16 THE WITNESS: Did you say --

17 THE COURT: It would be an issue for the fact

18 finder?

19 THE WITNESS: Absolutely.

20 THE COURT: Whether it be the Court or a jury?

21 THE WITNESS: Absolutely. I've never heard of

22 -- I mean, I've just never heard of -- no one would describe

23 fairness as a question of law. I've certainly never seen that.

24 Q. (By Mr. Reasoner) And, sir, why is it important that

25 a process along the lines you have described is followed with

340 46

1 respect to these conflict of interest transactions?

2 A. Well, I mean, I guess let me first say because

3 there's a statute, but obviously the Judge is -- you know,

4 that's in the Judge's province. But if I would give my -- you

5 know, if I could give my own sort of policy thought; the

6 rational is when there's -- normally we trust our fiduciaries.

7 We have a concept called the business judgment rule, and it's

8 all about the idea that we trust fiduciaries.

9 When there is a conflict, we worry that the

10 fiduciary's conflict has made that fiduciary less trustworthy.

11 And so the statute is there to say, if we can find a

12 substitute, trustworthy party, then we're okay. We can't trust

13 the fiduciary anymore. We've got to look for a substitute

14 trustworthy party. Who might that substitute trustworthy party

15 be? Disinterested directors, disinterested sharers, or the

16 Court, or a jury who would have to determine whether the

17 transaction was fair.

18 So the whole concept behind conflicts of

19 interest are, we're worried that our fiduciary can't be

20 trusted. We're worried -- we're not saying definitively, but

21 we're worried, and so we look for an substitute trustworthy

22 party. And that's what the statute is doing.

23 Q. Thank you, first of all.

24 MR. REASONER: I'll pass the witness, Your

25 Honor.

341 47

1 THE COURT: Cross.

2 CROSS-EXAMINATION

3 BY MR. ALLISON:

4 Q. I just want to be very clear. I know that Mr.

5 Reasoner has said that you had limited information so far; fair

6 enough?

7 A. That's fair.

8 Q. And I think you know just generally we're here

9 because I guess Marty Berry -- one of the reasons anyway is

10 Marty Berry made a loan to support the company at the time it

11 needed capital. I think that's agreed to by everybody, right?

12 A. I don't know enough about the loan transaction and

13 what the details were. I'm happy to take your word for it.

14 Q. Okay. And are you aware, for example, that his

15 brother, Dennis, who's not been sued, that his brother Dennis

16 also made a loan to the company in the same timeframe?

17 A. I think I am aware that Dennis made a loan. I'm not

18 sure I was aware about the timeframe.

19 Q. If it's in the same timeframe, any reason to make

20 those transactions different from each other, or are they same

21 in the sense that they at least raise the issue you've said

22 should be raised or looked at?

23 A. Assuming Dennis is a fiduciary, which I think he's a

24 director, and he's loaned --

25 Q. He was. He's passed.

342 48

1 A. Okay. Yeah. And he's personally loaning money to a

2 corporation in which he is a director, then, yes, that would be

3 a conflict of interest transaction.

4 Q. And same thing for Mrs. Berry? If she's loaning

5 money to the company and she's family and she's got an

6 interest, then she's also in that category?

7 A. And she's a director of the company that she's

8 loaning to?

9 Q. At the time I'm not sure. She's family. What if

10 she's just family?

11 A. Well, the normal problem is you have a fiduciary

12 loaning money to a company of which that fiduciary is a

13 fiduciary. So I would just need to know more about Ms. Berry's

14 relationship.

15 Q. And, for example, for Lawrence Berry -- Lawrence

16 Berry I think you were in the courtroom when they were talking

17 about that there's a -- this 31 million dollars that Lawrence

18 Berry borrowed from the company; you heard that when you were

19 in the courtroom, right?

20 A. I definitely heard you-all having some discussion

21 about 30 million dollars.

22 Q. Maybe that caught you ear?

23 A. Yeah. I just don't -- I'm not sure I remember the

24 context being a loan. There was something about -- you-all

25 used some acronym.

343 49

1 Q. There was 31 million dollars that Lawrence took from

2 the company in order to start up a business for the company,

3 then that would also fall in that category? If he's given full

4 control of it as a director?

5 A. I kind of lost you. What category? Conflict of

6 interest category?

7 Q. If Lawrence takes 31 million dollars is that a

8 related-party transaction?

9 A. You say takes 31 million dollars. Are you saying

10 Lawrence borrowed 31 million dollars?

11 Q. Yes, sir.

12 A. From the company that he is a director of?

13 Q. Yes, sir.

14 A. So that would be a conflict of interest transaction

15 because you have a fiduciary, Lawrence as a director,

16 transacting with the company that he owes a fiduciary duty to.

17 So, yes, that would be a conflict of interest.

18 Q. And, for example, if he still owes -- if the document

19 still shows that he owes 12 million of those dollars, he's

20 still in that conflict of interest situation?

21 A. I mean, I think that's fair, yes. I mean, even if

22 you pay the loan off it doesn't change the fact that it was a

23 conflict of interest transaction.

24 Q. Right. And so all of these -- you're not saying --

25 and I want to make sure -- you're not saying any of those

344 50

1 transactions are necessarily inappropriate? You're saying that

2 they have to be looked at to be evaluated?

3 A. I think that's fair. At this point I'm not saying

4 that there's anything per se illegal or improper. It's just

5 that they fall in the category where additional scrutiny is

6 needed as we discussed.

7 Q. And the person to do that additional scrutiny should

8 either be -- one person that can do it is the directors of the

9 company if they're interested, right?

10 A. With the full disclosure caveat. A majority of the

11 disinterested directors, I agree with you.

12 Q. Okay. And what you're referring to there we both

13 know -- we all know probably in the courtroom is 21.408, right?

14 A. I wish I could tell you I've memorized the section

15 number, but I -- it's in 21, but I don't know if it's 408.

16 Q. Okay. Maybe I'm wrong on the number, but I'm --

17 we're on the same page, right? There's a section that deals

18 specifically with it?

19 A. Correct.

20 Q. And --

21 A. In the corporations code. There's also one on the

22 LLC code.

23 Q. Okay. But on the corporations code -- let's stick on

24 Chapter 21. In the corporations code -- and I know you know

25 this because of the way you answered the question. It also

345 51

1 says that shareholders can also evaluate what -- and accept

2 that transaction as fair or not in conflict, right?

3 A. The statute does say that another body, in my

4 opinion, a trustworthy body. It says shareholders, and then

5 that has produced a question in the number of jurisdictions

6 about whether that means all shareholders including the

7 interested shareholders, or simply the disinterested

8 shareholders.

9 Q. And you made that distinction very lightly when you

10 were being asked questions a moment ago, but you made that

11 distinction, right?

13 Q. Yes. And because you and I both know that Texas

14 statute when it's talking about directors says the -- it uses

15 the word -- it's got to be a vote of the disinterested

16 directors, right?

17 A. It does.

18 Q. And you and I both know that when you look at that

19 same Texas statute in Chapter 21 now when it talks about -- and

20 it's in the same rule -- when it talks about shareholders it

21 does not use the word "disinterested", correct?

22 A. Well, it uses good faith. And one would argue you

23 could not make the decision in good faith if you're interested.

24 But the word "disinterested" is not technically in that

25 subsection, I agree with you.

346 52

1 Q. It's not not technically, I mean, it's just not in

2 it?

3 A. Well, that's fair. It's not in it with good faith;

4 isn't it?

5 Q. Okay. But, well -- and do you feel the need to

6 banter because you're on their side?

7 MR. REASONER: Objection, argumentative.

8 THE WITNESS: I feel the need to banter only in

9 the sense that you're trying to suggest that it does not

10 require disinterested shares and I think you are wrong.

11 Q. (By Mr. Allison) Okay. That's your opinion even

12 though the word -- even though the Legislature put the word in

13 there "disinterested", they put that word in there for

14 directors, but the Legislature did not put the word in there

15 for shareholders; that much we agree?

16 A. I would say it's my opinion the opinion of the

17 overwhelming number of jurisdictions in the country, the

18 opinion of Delaware when has the same statute that does not

19 include the word "disinterested", and the opinion of the

20 Delaware cases have interpreted their almost exact wording

21 statute to conclude that it has to be disinterested shares.

22 Q. And so the answer to my question -- I know you want

23 to give your argument, but the answer to my question is

24 "correct", right?

25 A. I mean, I thought I answered your question, but now

347 53

1 you'd have to ask it again.

2 THE COURT: So, I guess, what you're saying is

3 that there's no Texas cases that interpret this issue? Because

4 you said there's Delaware cases that interpret the issue.

5 THE WITNESS: I am not aware of a Texas case

6 that has interpreted that issue. I am aware of Delaware cases,

7 New York cases, there's cases from a number of other

8 jurisdictions. And there's treatises in Texas that have talked

9 about the issue, but I am not aware of a Texas case.

10 THE COURT: Got you.

11 Q. (By Mr. Allison) And when you look at all of that,

12 those circumstances you probably -- you want to look at the

13 interest rate that was being charged, right?

14 A. What are we now talking about? We look at what?

15 Q. When a shareholder -- if the shareholder -- some of

16 the factors to consider in terms of the fairness that you

17 should look at the --

18 A. So now we're on the fairness prong?

19 Q. Sure. If you want to look at it that way, that's

20 fine. One of the factors to consider in terms of whether or

21 not there's anything improper, that's a word you used earlier,

22 would be the amount of interest charged? The interest rate?

23 A. Let me just make sure I'm following you, because we

24 just jumped from -- remember, there are three options --

25 Q. He asked his question --

348 54

1 (Simultaneous speaking.)

2 MR. REASONER: If you'd let him finish his

3 answer.

4 THE COURT: Okay. But we don't address one

5 another, let's be clear, okay?

6 MR. REASONER: I'm sorry, Your Honor.

7 THE COURT: All right. Why don't you ask

8 another question, because it was --

9 Q. (By Mr. Allison) One of the -- if not the directors

10 -- and by the way, are you aware that the shareholders in this

11 case have voted and ratified the loan that we're talking about?

12 A. I have seen written documentation, but when you say

13 the shareholders?

14 Q. There's only one shareholder, right?

15 A. In a number of instances -- when you talk about

16 shareholder ratification, the shareholder is -- I forgot the

17 acronym for limited partnership.

18 Q. Let me help you there. I'll go ahead and do it so

19 you have a clearer question. The sole shareholder of Berry GP

20 is LDMA Limited Partnership, correct?

21 A. Of Berry GP, Inc., and you called it?

22 Q. LDMA.

23 A. I'm gonna take your word for it. I think that's

24 correct.

25 Q. Okay.

349 55

1 A. It's certainly a limited partnership.

2 Q. Okay. And that limited partnership, LDMA -- just so

3 we have a record over there. LDMA is solely controlled by a

4 corporation called Becon, Inc., right?

5 A. So as a limited partnership it will have a general

6 partner. I believe the general partner is a corporation, and

7 you say it's Becon -- Becon, Inc.?

8 Q. Yes, sir.

9 THE COURT: It might be helpful to show him the

10 chart.

11 MR. ALLISON: I don't have it handy. I'll do it

12 on the board.

13 THE COURT: I mean, I think --

14 MR. ALLISON: I don't disagree. Let me just --

15 that way you can refer to it.

16 THE WITNESS: Okay.

17 MR. ALLISON: I can do it, but I think it will

18 be quicker here.

19 THE COURT: Okay.

20 MR. REASONER: Your Honor, may I approach?

21 THE COURT: Yeah.

22 MR. REASONER: It might help move us along.

23 This is PTX48, which is that chart.

24 MR. ALLISON: If you have it that would be

25 great. Everybody can have one to look at. Your Honor, they're

350 56

1 being helpful.

2 THE COURT: Perfect. All right.

3 MR. REASONER: Here you go.

4 THE COURT: Yeah. Thank you. Okay. Now we can

5 all look together.

6 Q. (By Mr. Allison) Just looking at the chart as a

7 reference point it's -- this particular copy's called

8 ALB000866. Generally speaking if it helps your refresh your

9 recollection, we have Becon, Inc., which is the sole general

10 partner of LDMA, right?

11 A. That's what the chart shows, yes.

12 Q. And they are the sole shareholder of Berry GP, right?

13 A. They being LDMA Limited Partnership?

14 Q. Is the sole shareholder of Berry GP, Inc.?

15 A. I agree according to the chart.

16 Q. And my question then to you was just an awareness

17 question. Are you aware that the sole shareholders -- excuse

18 me, that the shareholders of Becon, Inc. have voted to ratify

19 the loan that you've been talking about, or that's been talked

20 about here?

21 A. I definitely saw some shareholder ratification

22 documents. I'd have to look at them again to see exactly who

23 ratified it.

24 Q. Okay. And --

25 A. But, again -- well, you know that we disagree over

351 57

1 whether that's a factor or not.

2 Q. And I appreciate you pointed out, that's your

3 Delaware disinterested argument?

4 A. Well, it's my Texas disinterested argument. But

5 anyway. Yes, I realize you and I disagree about this.

6 Q. Okay. And then the -- another safeguard -- well, and

7 this is where we were going a minute ago -- both places. The

8 Judge also obviously can look at that transaction, or a jury --

9 I think you've said that -- and evaluate it?

10 A. For fairness.

11 Q. Yes, right?

12 A. That's a third safe harbor so to speak.

13 Q. Okay. And the second one being shareholder

14 ratification?

15 A. Yeah. I think of it as disinterested director

16 authorizations, one; disinterested shareholder authorization,

17 two; fairness, three. But that's just the way I think about

18 it. That's nowhere in the statute.

19 Q. Any one of those three, then it's a proper

20 transaction?

21 A. Well, technically any one of those three the

22 transaction can't be challenged on the grounds of a conflict.

23 If there's some other problem with the transaction, it of

24 course can be challenged. But what the statute says you can no

25 longer challenge the transaction on the grounds if there's a

352 58

1 conflict.

2 Q. Right. It actually says there's no cause of action

3 is the word it uses, right?

4 A. I mean, we'd have to look. But the meaning of it is

5 there is no -- you cannot challenge that transaction on the

6 grounds of the conflict, but it makes it clear that if there is

7 some other problem such as a duty of care problem, such as a

8 waste problem, you could.

9 Q. Okay. But if it says you have no cause of action,

10 you'd agree with the statute, right?

11 A. If it says no cause of action, it says no cause of

12 action on the grounds of the conflict. That's the important

13 part. It's not immunization. That statute is resolving the

14 conflict problem. If there's another problem, you address the

15 other problem separately.

16 Q. And it says, if at least one of the conditions of

17 Subsection (b) -- and that's what we've been talking about --

18 is satisfied neither the corporation nor any other corporation

19 shareholder will have a cause of action against any of the

20 persons described in Subsection (a), which would be the person

21 who made the loan?

22 A. Yeah. But there's more in there about if you have no

23 cause of action for the conflict.

24 Q. You don't disagree with what I just read; that's

25 Texas law, right?

353 59

1 A. If you read it accurately, I don't disagree.

2 Q. Okay. And so would -- in -- when looking, whether

3 it's a Judge, or the jury, or shareholders, or disinterested

4 directors -- you and I both know we say that a little bit

5 differently for the reasons we discussed. Let's not argue

6 about it now, right? Fair enough?

7 A. Sure.

8 Q. Okay. The interest rate would be one thing to look

9 at, right?

10 A. Again, I think now we're talking about the third

11 prong, which is fairness. And if we're looking at fairness and

12 you're talking about loans, I would assume the interest rate is

13 something you would look at.

14 Q. And whether or not it was collateralized? In other

15 words, was there any security given to make sure it gets paid

16 back? That's another issue in terms of fairness, right?

17 A. Let me just be clear. I'm not sure that I'm an

18 expert in what makes a particular loan fair or not. I don't

19 really see myself giving opinions on that. But if you're just

20 asking me in general for a loan, I would imagine interest rates

21 are relevant, and whether it's secured or unsecured is probably

22 relevant as well.

23 Q. And whether it's subordinated or not to other loans

24 to help the business do well and excel, that's another thing to

25 consider?

354 60

1 A. I would imagine the purpose of the loan is important.

2 Q. Yeah. If it was used to pay off debt, for example,

3 that could be important, right?

4 A. Again, I would imagine the purpose of the loan is

5 important. If the company needed it or not need it.

6 Q. If it was used to pay off, for example, lines of

7 credit so as to free up capital for the business to do more

8 projects, that would be important, right?

9 A. Yeah. I mean, we're sitting here in a vacuum with me

10 not knowing anything in the transaction, but sure. As a

11 general matter what would go into whether a transaction is fair

12 to the company. If it's a loan I would imagine you'd look at

13 the sorts of things you're talking about.

14 Q. And, by the way, I just want to correct this a small

15 thing: You said, we're in a vacuum. Really you're speaking

16 for yourself only. You're a vacuum, right?

17 A. I guess I was parroting Mr. Reasoner's comment that

18 -- when he said we're all a little bit at the beginning of

19 this, but okay. Fair enough. I'll say, I'm in a vacuum.

20 Q. Okay. And that goes back to why he doesn't make

21 assumptions because you haven't really completed a full

22 analysis? You don't have the information to make certain

23 judgments?

24 A. That's certainly true.

25 Q. Okay. And you just said it a moment ago, and you're

355 61

1 not an expert, and you're not giving any testimony as to

2 whether or not this was a fair transaction?

3 A. Yeah. I don't think I have the background to be

4 saying whether a particular loan transactions -- unless it's

5 just so obvious that it's beyond the canon. But I don't think

6 that's going to be my province or role in this case.

8 A. I may piggy back off of somebody who does have that

9 expertise, but I don't think I'm the person who will provide

10 the expertise with about whether a loan transaction --

11 Q. You're not climbing out on that limb yet?

12 A. I don't think I will ever climb out on that limb

13 unless I can piggy back off of someone who does have that

14 expertise.

15 Q. Would one other factor in terms of evaluating the

16 transaction be that Lawrence, for example, had an opportunity

17 and was continued to give an opportunity to participate as a --

18 in the -- on the exact same terms?

19 A. Well, the question is whether it's fair to the

20 corporation, to the company. So whether some shareholder was

21 given an opportunity at the moment I'm not seeing how that's

22 relevant.

23 Q. Okay. That's all. Thank you, sir.

24 MR. HUMMELL: No questions.

25 THE COURT: All right. Anything else?

356 62

1 MR. REASONER: Just briefly, Your Honor.

2 REDIRECT EXAMINATION

3 BY MR. REASONER:

4 Q. Sir, you had testified that on the second prong, the

5 shareholder approval prong, there -- you say commentators have

6 indicated that they believe that that -- that the good faith

7 shareholder approval requires disinterested shareholders; is

8 that what you testified to?

9 A. So some people have argued that even though the

10 statute in that shareholder approval prong doesn't say

11 disinterested as we were discussing, that perhaps that

12 requirement gets read in through the good faith requirement,

13 which is in that -- which is in that second provision.

14 Q. And you indicated that a number of states with the

15 same or similar statutes have held -- in that way have held

16 that shareholder approval requires disinterested shareholders?

17 A. Yes. So a number of states -- I mean, Delaware is

18 always sort of particularly persuasive in this area, at least

19 in my field. But Delaware has sort of done the deepest dive

20 into this.

21 And if I could just say one other very quick

22 thing, I mean, conflicts of interest are probably the most

23 important issue in business organization. If you could bless a

24 conflict of interest transaction via interested parties, it's

25 -- it makes absolutely no sense. What would be the point of

357 63

1 giving additional scrutiny to a conflict transaction if the

2 person who could bless it is also conflicted? It just -- which

3 is the reason why Delaware in my opinion and all these other

4 states have come to the same conclusion.

5 Q. All right. Are Kansas, Louisiana and New York among

6 the other states that have come to that conclusion?

7 A. Kansas follows Delaware so I feel pretty confident.

8 New York I have definitely read a case on. Louisiana, I don't

9 quite remember.

10 Q. But your point -- again, hypothetically, if someone

11 had -- was the majority shareholder and had stolen something

12 from a company, the idea is it would not be appropriate to let

13 that person as the majority shareholder bless his or her own

14 theft; is that the concept?

15 A. Exactly. And, you know, I mean no disrespect, but to

16 me it sort of shows the absurdity of the provision or of the

17 position that interested shareholders could bless the

18 transaction. Because if you owned a majority of the shares --

19 you being the interested party -- you could bless all of your

20 conflicted transactions, which is absurd. What would be the

21 point of having a statute that is designed to give more

22 scrutiny to those transactions if it was just a fiction?

23 Q. And then finally, counsel was asking you about the

24 third prong, the fairness prong, and you talked about that

25 analysis. Are there subsets of that -- of the fairness

358 64

1 analysis?

2 A. So I guess Texas is probably less clear about this in

3 terms of cases, but generally speaking -- the question that

4 everybody's clear on is it has to be fair to the company. And

5 so normally we look at both fair price, which is what's

6 considered to be the substantive aspects of the transaction, as

7 well as fair dealing, which is forget the substance, just how

8 did -- how did these fiduciary treat the corporation? Did they

9 make full disclosure to the company? Were they on the up and

10 up?

11 And so normally you look at both sort of the

12 procedural aspects of fairness as well as the substantive

13 aspects of fairness.

14 Q. Thank you, sir.

15 MR. REASONER: That's all. I pass the witness,

16 Your Honor.

17 THE COURT: Anything else?

18 MR. ALLISON: Just very quickly.

19 RECROSS-EXAMINATION

20 BY MR. ALLISON:

21 Q. With regard to -- do you know of any place where

22 there's a stated reason on why the Legislature put the word

23 "disinterested" for directors, and did not use the word

24 "disinterested" for shareholders?

25 A. So when you say --

359 65

1 Q. -- a paper for us?

2 A. Yeah. When you say do you know, I mean, I suppose

3 the short answer is no. But all the statutes, probably they're

4 following the first statute that got passed.

5 Q. I'm not asking you to guess. The answer is no?

6 A. Well, no, then. I do not know the definitive reason.

7 Q. And you're familiar --

8 A. I just want point to point out that Delaware and most

9 states have the same phraseology.

10 Q. And you keep going back to Delaware. You're

11 familiar, of course, with the Richie case out of the Texas

12 Supreme Court?

14 Q. And is that also the law in Delaware?

15 A. Well, Delaware doesn't have a shareholder oppression

16 doctrine, but there's no shareholder oppression cause of action

17 in this dispute, so I'm not sure why it matters.

18 Q. Okay. Well, whether it matters or not, is the Richie

19 case the law in the State of Texas?

21 Q. Is it the law in the State of Delaware?

22 A. I guess I'm not sure what you mean. It would not be

23 the law in the State of Delaware because it's a Texas case and

24 Delaware doesn't have the shareholder oppression doctrine that

25 Richie dealt with.

360 66

1 Q. Okay. That's all. Thank you.

2 MR. HUMMELL: Just a couple questions.

3 THE COURT: Okay.

4 RECROSS-EXAMINATION

5 BY MR. HUMMELL:

6 Q. You said something that intrigued me. I'd like to

7 follow up on. And that is basically why would you ever allow

8 shareholders to come back and ratify the misconduct of the

9 directors? Or say it's okay, right? I mean, why would it ever

10 be authorized or permitted for them to rubber stamp their

11 misconduct, right? Is that kind of?

12 A. Well, their own conflicted transactions.

13 Q. Right. Okay. So let's talk about that for just a

14 second, because I want to the make sure we're really clear on

15 this. Prong number 1, one of the three methods, it's okay to

16 have a disinterested -- or have an interested transaction,

17 right?

18 A. It's okay on -- it's okay -- when you say it's okay,

19 prong number 1 -- one, two, and three are all methods of saying

20 you can no longer challenge the transaction on the grounds of

21 the conflict.

22 Q. Right. So the first one was full disclosure to

23 disinterested directors, right? That was the first one?

24 A. I agree.

25 Q. Okay. And the disinterested directors, in our case

361 67

1 since two of the three directors were involved in actually

2 helping prop up the company in dire times, you would say that

3 as long as they told Lawrence the disinterested director about

4 it, that they could go ahead and have their vote and approve

5 it; is that right?

6 A. I would not agree with that.

7 Q. Okay. They can't vote on it, they can't approve it

8 at all because they're interested? Before the loans are even

9 made, you're saying it can't be done, right?

10 A. I'm not entirely sure I know what you're talking

11 about, but there's two things going on. Number 1 is somebody

12 has to vote to actually authorize the transaction. That can be

13 can done with interested parties, but if that's a conflict of

14 interest transaction that doesn't -- there's whether it was

15 authorized and there's whether it was a breach of fiduciary

16 duty. If interested parties authorized a transaction, you

17 still have the breach of fiduciary duty question.

18 That's the question that the statute speaks to.

19 And so you would have to get a vote by a majority of

20 disinterested directors, which if I take your hypothetical

21 would mean the one disinterested director would have to

22 separately approve the transaction.

23 Q. That's where I was going. Thank you. So on number

24 2, full disclosure to all the shareholders, right? It's your

25 same -- and your same theory applies under the Delaware rule,

362 68

1 there's only one person that gets to vote, right?

2 A. Well, I cannot --

3 Q. -- the disinterested --

4 A. Under the hypothetical that you just gave me if

5 there's only one disinterested shareholder, then I agree.

6 That's the shareholder that matters.

7 Q. Okay. And then finally the third one is a

8 determination of whether or not the transaction is fair by

9 somebody on the outside looking in?

10 A. I mean.

11 Q. And that would be I think you said either a jury or

12 the Judge, right?

13 A. Oh, that's what you mean. Yeah, well, right. Some

14 fact finder is going to have to determine that it is fair to

15 the company.

16 Q. Okay. And you know who our fact finder is here

17 today, right?

18 A. You mean the Judge?

19 Q. Well, I'm asking if you know. I don't want to

20 suggest an answer.

21 A. I believe it is the Judge.

22 Q. Okay. And you went through the list of things that

23 the Court can take into consideration in deciding fairness, and

24 that included the purpose of the loan, right?

25 A. Well, again, I mentioned that I'm not sure I have any

363 69

1 particular expertise in this area. I mean, I'm not an expert

2 in loan transactions, but I would imagine if you're trying to

3 determine the fairness of the loan transaction one of the

4 things you would ask is what is the purpose of the loan?

5 Q. Okay. And payment terms, and on, and on, and on,

6 right?

7 A. Seems relevant to me.

8 MR. HUMMELL: That's all I have, Judge.

9 THE COURT: Okay. Anything else?

10 MR. REASONER: Nothing further, Your Honor.

11 THE COURT: All right. You may stand down.

12 You're free to go about your business.

13 THE WITNESS: Thank you. Should I return the

14 exhibit?

15 MR. ALLISON: Just leave it there, sir.

16 MR. REASONER: We rest, Your Honor.

17 THE COURT: Okay. Do you have any witnesses you

18 wish to present?

19 MR. ALLISON: We rest, Your Honor.

20 THE COURT: Okay. Well.

21 MR. ALLISON: Your Honor, it's probably

22 appropriate to inform the Court -- may I confer with him one

23 second?

24 THE COURT: Yeah. Yeah. In fact, let's take a

25 short break and then we'll come back.

364 70

1 COURT BAILIFF: All rise, please.

2 MR. REASONER: Your Honor, would sort of a half

3 hour each side on closing arguments?

4 THE COURT: Yeah, that's fine.

5 (Brief recess.)

6 THE COURT: Okay. We ready? Your motion.

7 MR. REASONER: Yes, Your Honor. May I approach?

8 THE COURT: You may. I've got that. Now, you

9 may have updated it.

10 MR. REASONER: Oh, no. This is new and

11 improved.

12 THE COURT: 2.0?

13 MR. REASONER: Hot off the presses.

14 THE COURT: All right. 2.0.

15 MR. REASONER: And, Your Honor, with the Court's

16 permission, I'm gonna after a bit turn it over to Ms. Canales.

17 THE COURT: Okay.

18 MR. REASONER: We're gonna share the argument.

19 THE COURT: All right.

20 MR. REASONER: Your Honor, first, thank you on

21 behalf of Mr. Lawrence Berry and our team for your time and

22 careful attention. This is -- as you might imagine in a

23 situation where it's family is involved and important issues,

24 it's a very serious situation from Mr. Berry's perspective and

25 the issues are important so we appreciate that.

365 71

1 If at you look at the second page, Your Honor,

2 again, the requested relief that we've asked for -- and it's

3 very I think focused -- and Ms. Canales will talk a little bit

4 more about this, but focused and tailored at this point. One

5 is the removal of Lawrence Berry from the Board, and then

6 secondly simply notice on voting about sale of real property.

7 And as to the former, Your Honor, one of the

8 things that the Court raised was the idea that keeping someone

9 on the Board would be inconsistent with a procedure that exists

10 for removal of folks from the Board and that sort of thing

11 within the bylaws. But fundamentally -- and Ms. Canales will

12 talk about the equitable power that the Court has here and in

13 similar cases.

14 But fundamentally whenever the Court is asked to

15 do irreparable harm to -- say this cannot happen until trial,

16 or this must remain the same, that sort of thing, it is always

17 something that is superimposed on the existing bylaws. Because

18 in a typical situation the bylaws will allow a majority to do

19 what they will. Here in a case that's like this where it's

20 appropriate, the Court is saying you can't do this particular

21 thing because we want to preserve the status quo because of the

22 irreparable harm.

23 And I think the evidence has been clear, Your

24 Honor. If we could go to slide -- well, and the second part --

25 the two weeks notice, there's been a suggestion by the other

366 72

1 side, well, you want that just for Lawrence. No. Of course,

2 it would be for everyone.

3 The issue is that these folks, Mr. Marty Berry,

4 has shown a propensity here to engage in transactions

5 important, substantial, self-interested transactions while

6 keeping Lawrence Berry totally in the dark. So there is a

7 demonstrated need for some notice that would allow Lawrence

8 Berry to -- he can still be outvoted, but to the extent

9 anything untoward is going on, he would have the opportunity to

10 have adequate notice.

11 And he has shown as a practical matter that he

12 would -- when there is a short fuse and something is in the

13 best interest of the company, he has voted in favor of

14 transactions of that kind.

15 The third slide, Your Honor, is just to

16 emphasize we really don't have a dispute here on the key

17 transactions that we are focused on. The loan. The

18 45-million-dollar loan in particular from Marty Berry.

19 Undisputed. You will not -- you haven't heard them say and you

20 won't hear them say --

21 THE COURT: A lot of the facts aren't in much of

22 a dispute.

23 MR. REASONER: Exactly, Your Honor.

24 THE COURT: I agree with that.

25 MR. REASONER: So, it was not disclosed to

367 73

1 Lawrence Berry, and it was not approved by the Board. And it

2 is -- and I know Professor Moll said, and I know the Court

3 knows, I mean, it is a quintessential conflict of interest or

4 self-interested party, you know, related-party transaction.

5 It's undeniable that that's what it is; a loan from one side or

6 the other of the company.

7 Also you had a principle repayment that went on

8 without disclosure in the amount of ten million dollars. And

9 also the cranes. There is no dispute that Mr. Marty Berry said

10 he has no idea, has no information that Lawrence Berry was told

11 about the additional six cranes that are being rented to the

12 tune of 450,000 in additional debt for the company every month,

13 and that he does not contend that there was Board approval.

14 The Court is aware -- on the temporary

15 injunction standard there on slide four, we believe those

16 things have been absolutely shown. The irreparable harm here

17 -- we had pointed the Court to cases saying in situations where

18 someone will lose their place on the Board, their connection to

19 the company, that that can be irreparable harm.

20 On the probable right to relief in slide five,

21 again, we don't need to show the Court that we absolutely are

22 going to win.

23 THE COURT: No.

24 MR. REASONER: We believe we will, but we --

25 what is the -- what's the key here, Your Honor, and we cited

368 74

1 the International Terminals case. You plead the causes of

2 action and show some evidence that tends to sustain them. And

3 we believe we have absolutely met that burden here,

4 particularly in the self-dealing context where there is a

5 presumption.

6 When you talk about a related-party or

7 self-interested transaction, the law is clear that there is a

8 presumption of unfairness that must be overcome by the

9 defendants here. And they certainly cannot do that at the

10 temporary injunctions stage.

11 Slide six. Again, these transactions where

12 they're not disclosed and not approved during the realtime,

13 that those are breaches of fiduciary duty. They certainly show

14 some evidence of that for purposes of this stage.

15 Slide seven, Your Honor. On the safe harbor

16 issue, the 21.418. I'm glad we finished with a very good

17 discussion about that. They simply cannot fit themselves into

18 any of the safe harbors. There's no contention on their part

19 that disinterested directors voted later to approve these

20 transactions.

21 And the shareholder piece. In Mr. Moll's

22 testimony I think it became completely clear and obvious why

23 other states that have the same statutory language that Texas,

24 and Kansas, and others adopted from Delaware, why those states

25 saw a good faith approval by the shareholder -- shareholders,

369 75

1 plural, needs to be disinterested shareholders. For the

2 obvious reason that, you know, if a fraud fees or someone

3 engaged in misconduct, if that person can just come in and say,

4 yeah, I've got 51 percent and I've blessed it, that would gut

5 the entire meaning of the statute. So that's why the

6 commentators and why the cases have been consistent in how they

7 interpret that.

8 And if we look, Your Honor, on the slide eight,

9 the fairness piece. Fairness is something I think counsel was

10 suggesting and you may hear them suggest, oh, well, the Judge

11 can simply find it was fair today. That is a totality of

12 circumstances analysis that needs to take place in this case by

13 the fact finder.

14 And as we -- on slide eight as we've laid out

15 there for the Court in the Estate of Poe case from the Texas

16 Supreme Court, it's a two prong inquiry. You look at the

17 decision making process. The failure to make full disclosure

18 is an issue there. You look at the substantive fairness of the

19 transaction. You do a deep dive, full analysis of the fairness

20 of the transaction. They certainly have not been able to meet

21 a burden at a temporary injunction stage at proving fairness of

22 the transaction, nor could they.

23 On slide nine, again, these loans -- these

24 undisputed -- the testimony is clear that they were not

25 approved by the Board.

370 76

1 Slide ten. Undisputed testimony that Lawrence

2 was not told of the loans. Remember Mr. Powers' e-mail there

3 in Plaintiff's Exhibit 35 when Lawrence said in January 2023, I

4 know nothing of this? And there on slide ten Plaintiff's

5 Exhibit 35, Mr. Powers says, sorry, here's what it's all about.

6 He tells about the loans. He says here's what it was used for.

7 Didn't bring it up on a Board member, because some kids of the

8 owners were there. Doesn't make any contention that Lawrence

9 knew, nor has the other side presented any evidence that he

10 did.

11 Slide 11, the fairness issue. Remember that Mr.

12 Klein testified that the loans were initially accrued at 12 and

13 a half percent interest, which would be a quite a high rate.

14 His testimony is, well, that was -- that was -- somebody made a

15 mistake, et cetera. All we know is that's the way it was be

16 accrued on the front end, and then once Lawrence Berry was

17 raising questions and concerns, and they documented it later --

18 months and months later -- then they added a more realistic

19 interest rate. But, of course, still one that was higher than

20 Mrs. Berry was being paid on hers.

21 If you look at slide 12. Remember that Laura

22 Berry was being paid 3.75 percent interest, whereas Marty was

23 being paid prime plus a quarter. So there's a lot to be delved

24 into on the fairness of these particular undisclosed,

25 unapproved transactions.

371 77

1 Slide 13, Judge, just a reminder there on the

2 ten-million-dollar payment -- this -- Marty testified that that

3 was, you know, a small payment that took place by preagreement.

4 That -- ten million I think in any measure is substantial, and

5 it was done again without any disclosure here in any way,

6 shape, or form, and not approved by the Board.

7 14. On the Western Gulf issue. We went back

8 and forth and there on the left -- because Marty Berry

9 originally thought I was asking him about the original

10 transaction between Bay Canada and Western Gulf Equipment where

11 they bought one crane together. And I asked him, what about

12 the six additional cranes that your company then bought and

13 started renting to Bay? And he said, I have no clue if

14 Lawrence Berry knew about those. And there was never any Board

15 approval.

16 And I thought it was telling, Your Honor, during

17 part of the back and forth on that, on the right-hand side

18 where he was saying -- Mr. Marty Berry was saying, you know,

19 there's a fiduciary duty on your part to know these things.

20 Well, that has it backwards, Your Honor. The important thing

21 under the law as the Court is aware is when you have a

22 fiduciary duty and you're engaged in a related-party

23 transaction, you've got the duty to disclose and get proper

24 approval. It's not the case that they can never be okay and

25 never be kosher, but you have the duty and you have the burden

372 78

1 as the party engaged in the related-party transaction.

2 Slide 15. These are significant, Your Honor,

3 separate and apart from the loans, the Western Gulf

4 transactions. Marty was not certain what the total was at this

5 point. He said, at this snapshot in time that we looked at

6 there on slide 15 it was 4.3 million dollars but he said it may

7 be more. He said I have not been paid since June or July of

8 last year. And that matters.

9 I mean, on the one hand he would argue, well,

10 I'm not being benevolent. I'm not making them pay. On the

11 other hand, this is saddling the company with a very high

12 amount of debt going into the future to add with the loan. So,

13 again, it is a totality of the circumstances analysis that

14 needs to take place on this undisclosed, unapproved

15 transaction.

16 Slide 16, just emphasizes the point that on the

17 -- on the Western Gulf transactions -- well, on the loans,

18 excuse me, the approval of the loans where they've tried to

19 ratify things after this lawsuit. There's only one party who

20 was not part of the loans, Ms. Bonnie Berry was through her

21 husband and the estate.

22 THE COURT: In all fairness the loans are

23 separate.

24 MR. REASONER: Yes.

25 THE COURT: Okay. So presumably Dennis Berry

373 79

1 could vote on Marty Berry's loan. But if he votes "no" and

2 Dennis votes "yes" or "no" -- his wife -- you still don't have

3 a majority. I get that, okay?

4 MR. REASONER: Yes. So you've got -- either way

5 -- even if you say they can vote on the loans that they weren't

6 a part of --

7 THE COURT: Which I think they could.

8 MR. REASONER: Yes. I think that's fair, Your

9 Honor. They have a deadlock.

10 THE COURT: Yeah. They have a deadlock.

11 MR. REASONER: They have a deadlock and this --

12 but, of course, on the corporate documents they wrote passed.

13 And you raised a good point, Your Honor, because on the Western

14 Gulf Equipment, that is the situation. It was a deadlock in

15 their after-the-fact attempt to ratify it because Bonnie Berry

16 has no interest in Western Gulf Equipment.

17 THE COURT: Right.

18 MR. REASONER: She voted to ratify it later.

19 Lawrence voted "no". So that was a deadlock on the Western

20 Gulf Equipment.

21 THE COURT: But I think the same analysis goes

22 with the loans.

23 MR. REASONER: I think that's fair, Your Honor.

24 THE COURT: All right.

25 MR. REASONER: A deadlock situation. And,

374 80

1 again, in 17, this is -- we talked about this during Mr. Moll's

2 testimony, there are Courts that have -- Delaware, Kansas,

3 Louisiana, and New York. And if you look in the Texas practice

4 series on the right-hand side there on slide 17, that makes the

5 point that we were talking about.

6 However, it would be odd if interested directors

7 could bless their -- could not bless their self-dealing

8 transactions at the Board level, but could bless their

9 self-dealing at the shareholder level if they owned enough

10 shares. Cases from other jurisdictions refuse to allow an

11 interested shareholder to vote to bless a self-dealing

12 transaction. This is -- this would seem to be the preferable

13 view.

14 And below that Professor Moll and Professor

15 Ragazo, who wrote a book on the closely held corporations, they

16 made the same argument. And that's what the other courts have

17 followed. And just as we talked through it, it makes all the

18 sense in the world that you would want to protect from that

19 kind of a situation.

20 So, as we talked about on slide 18, the

21 shareholder resolutions. Again, they have not -- in either the

22 crane situation or the loans, they have not had a majority of

23 shareholders -- disinterested shareholders approve the

24 transactions.

25 19, the marketing of the dock. Again, that is

375 81

1 simply a situation they're entitled to outvote him, but to take

2 key and material assets and freeze out one of the directors

3 from knowledge of an attempt to market, that is what is

4 problematic and one of the sources of our compliant here.

5 They've talked less about it, Your Honor, on the

6 defect of the parties at this point, but just to sort of close

7 the loop on that on slide 20. It is under Sneed v Webre,

8 shareholder -- owning shares in a parent company would allow

9 you to bring claim derivatively involving the subsidiary. And

10 that's Texas Supreme Court very clear. But regardless --

11 THE COURT: But you cleaned that up, so.

12 MR. REASONER: Yeah. All the players are here.

13 So, and if you look at slide 21, we have talked about who -- I

14 went through with Marty Berry about who owns what, and I don't

15 think that's -- that is in dispute at this point. So with that

16 I'll turn it over to Ms. Canales.

18 MR. REASONER: Thank you.

19 MS. CANALES: Your Honor, may I proceed?

20 THE COURT: Yeah.

21 MS. CANALES: Judge, basically we're here to

22 protect the status quo, okay, for injunctive relief. Currently

23 Lawrence is basically asking for two things; that the status

24 quo be kept -- one, that he not be removed from the Board while

25 this litigation is pending, and, two, that he gets two weeks

376 82

1 notice prior to the sale of property.

2 THE COURT: And that he gets to vote on that?

3 MS. CANALES: Correct. So -- but he can be

4 outvoted. So, in essence, what he is asking for would in no

5 way affect the day-to-day operations of the company. They

6 could still do what they wanted to do assuming they outvoted

7 him. But he is in no way asking for anything to change the

8 day-to-day operation of the company.

9 The reason we're here before this Court today is

10 because it is imperative to keep the current status quo of this

11 business. And the reason for that, Your Honor, is what

12 potentially could happen would be irreparable harm, things that

13 we could not undo, Judge. If they sell things. If they do

14 things that the courts have long recognized that, especially

15 with real estate, once it's gone, it's gone.

16 Your Honor, you can see through the testimony

17 that has come out that Lawrence has had trouble getting

18 information. Tonja testified that sometimes the only way he

19 got information was attending the Board meetings. Having

20 Lawrence sit in a Board meeting so that he can understand and

21 take part of what's going on with his business until this

22 litigation is resolved is not asking too much, Judge. It's

23 asking that he be able to have a seat at the table so that he

24 can hear what's going on.

25 And the reason he needs to do that, Judge, is

377 83

1 because if something is wrong, then he gets to come to you.

2 Obviously there's something wrong, Judge. We're making huge

3 loans -- two huge loans that later they're trying to ratify.

4 And Mr. Marty Berry said, well, I can come back and ratify it

5 even if it's wrong. Your Honor, that's not what the spirit of

6 the law is. That's not what we -- that is why we as directors

7 and as shareholders, we owe a upmost duty of loyalty to the

8 corporation, so much so that you have to put its interest

9 before yours. It has to be an uncorrupted interest.

10 So, for example, when they make these loans,

11 it's okay as you heard the expert testify, but then let's get

12 one of these uninterested persons to ratify it. But in essence

13 what this does, Judge, is dilute Mr. Lawrence Berry's shares.

14 This crane debacle and having -- that's clearly self-dealing,

15 Your Honor.

16 THE COURT: Well, I mean, there's no doubt about

17 that. But as the witness testified, that doesn't make it

18 illegal.

19 MS. CANALES: No, it doesn't, Judge, but where

20 we're at today is -- because at the end of this we're all gonna

21 hash this out. And at the end when we actually come to trial

22 and we all have more evidence, and depositions are taken, and

23 we figure out what's going on, maybe it is in the best interest

24 of the company. Maybe it was fair. But it on its face nobody

25 has shown you that it is.

378 84

1 We've seen that 12 percent interest. That's

2 what they -- they later come back and say, oh, no. We didn't

3 mean that. But that was after this suit, Judge. The harm that

4 would be caused would be irreparable, not only to the company,

5 but to Mr. Berry himself, so both entities would be harmed.

6 The Court at the end -- another issue, Judge,

7 that I know was somewhat telling to me -- and, of course, this

8 didn't happen at the beginning, but we've got our CEO, Mr.

9 Powers, who, you know, prayers to Mr. Powers and we hope for a

10 speedy recovery, but we've been operating this company with

11 nobody at the helm. And Mr. Marty Berry testified, we're not

12 even looking. But he's over there acting, which, again, Your

13 Honor, presents a problem for this immediate situation.

14 Because we've got an interested person, who's now loaned

15 millions of dollars, who is gonna be able to ratify actions and

16 do things that would cause irreparable harm to the business as

17 well as to Mr. Berry.

18 How can we not even have an interim search? Who

19 is driving this train right now? Who do we have protecting the

20 interest of Berry? Who do we have protecting the corporation?

21 I know, Your Honor, at the beginning when we first started this

22 hearing you made a statement, and you said, I am not inclined

23 to alter what the bylaws say.

24 THE COURT: Bylaws say.

25 MS. CANALES: But, Your Honor, this Court on a

379 85

1 daily basis hears injunctions, and it hears equitable relief.

2 And this Court --

3 THE COURT: I'm not saying I can't.

4 MS. CANALES: No, I understand, Judge. But --

5 and I think that we have shown why you should. But because the

6 bylaws suggest, Your Honor, that the -- how you can and can't

7 remove a director, the whole purpose of injunctive relief is an

8 equitable one. And just like, Your Honor, until death do us

9 part. You hear injunctions and restraining orders daily.

10 And when you go to marry somebody, you make a

11 contract. It's basically your bylaws, I'm not gonna -- you

12 know, this -- and we change those rules daily, Judge. No, you

13 can't spend money. No, you can't do this, you know, because

14 it's the Court's right to protect the assets. It's the Court's

15 right to protect and keep the status quo while the litigation

16 is pending. And this is no different from that, Your Honor.

17 And, again, what is imperative to know or to

18 recognize is that Mr. Lawrence Berry is not asking for special

19 treatment. He's not asking -- he's just asking, I want to sit

20 here until this litigation is over so that I can protect and

21 come to you, Judge, if something happens. He can always be

22 outvoted. So he's not asking for any special treatment.

23 Everybody should have the two weeks notice before they sell

24 property. I think it's imperative that they get that.

25 I think that -- and in the past I think it was

380 86

1 in the testimony, Judge, that when they needed to do a quick

2 sale Lawrence ratified one of those. He's not here to do what

3 is not in the best interest of the company. He's in the -- he

4 wants to make sure that everybody is acting on the up and up,

5 Judge.

6 And based on why we're seeking injunctive

7 relief, and based on what Mr. Berry is asking for, I believe

8 that our injunction should be granted and that our two prongs

9 that we should have. That Mr. Berry should be allowed at least

10 pending this litigation to sit on the Board, and then that he

11 should be allowed to have notification as to the property.

12 And, again, Your Honor, I believe you said that there was no --

13 nothing in the bylaws on the sale of property.

14 THE COURT: I don't think so unless you guys

15 found it. I didn't.

16 MS. CANALES: No, Your Honor, we did not.

17 THE COURT: I found it for the acquisition, but

18 I didn't find it for the sale.

19 MS. CANALES: You know, Your Honor, because as

20 the Court heard and the evidence before this Court is because

21 Mr. Lawrence is having difficulties getting information, and it

22 is imperative that he get that. And as such, Your Honor, we

23 would ask that the injunction be granted.

24 THE COURT: Okay.

25 MR. ALLISON: Thank you, Your Honor. I'm gonna

381 87

1 kind of jump right into something, and then I'm gonna back up a

2 little bit.

4 MR. ALLISON: The part I want to jump into real

5 hard is status quo, because the status quo for decades -- this

6 is -- was that the shareholders get to choose, nominate, elect,

7 or remove directors. That's even been the status quo before

8 Lawrence, or Marty, or Dennis were ever directors. That goes

9 back to Mr. And Mrs. Berry. That goes back to a document that

10 I know you've read that I think was written in the 50's. It is

11 very clear that the status quo is that the shareholder -- it's

12 really a shareholder, but it's then shareholders of Becon that

13 direct LDMA, who those directors nominated and elected are.

14 It has long, long, and always for those Berry

15 companies been that the status quo is that the shareholder or

16 shareholders get to nominate, elect, or remove directors.

17 That's the status quo. If it were not in the document, which

18 it is, you're right, then we also know -- and I don't have the

19 provision, because I don't think there's any disagreement about

20 this -- we also know Texas law allows the exact same thing.

21 Period.

22 There is no reason to change that status quo.

23 I'm gonna get into that discussion in a minute. I do want to

24 jump to something you just raised. The status quo for decades

25 has been -- and I know exactly what you read, and I've read the

382 88

1 same thing, and it uses the word "acquire", and you got to read

2 the rest of the document to see how all that kind of fits

3 together. And I'm gonna start with where we agree, and tell

4 you what we think.

5 I think everybody probably agrees that the

6 status quo is to acquire property, that there has to be a vote

7 of the directors, okay? That's very clear. Now, for decades

8 -- because -- and, again, you got to read the whole document.

9 I'm sure you're familiar. I thought it was kind of interesting

10 that it wasn't said more specifically. But I think when you

11 read the entire document and the way that they --

12 THE COURT: And the addendum from the -- there

13 was an addendum from the 80's I think.

14 MR. ALLISON: Right. When you read all of it, I

15 think that the clear intent or the upshot, the spirit of it, if

16 not the written word that also has been lived by as though it

17 was written word for decade, is they follow the same practice

18 for selling real property. I don't think you've heard anybody

19 --

20 THE COURT: Well, and your client testified as

21 to such.

22 MR. ALLISON: Absolutely. And nobody's

23 disagreed with that.

24 Now, if -- so in his mind it's in there, okay?

25 And in the Board -- in the members -- in the director's minds,

383 89

1 that's what they've been doing. That's been the status quo for

2 decades. If it weren't in there -- and I'm suggesting that

3 from their reading it is, but I understand the gap, okay --

4 then if you look at from Chapter 21, and I think from the last

5 witness we're clear, that's the right one that applies to

6 for-profit corporations. 21.462 says, a corporation -- that

7 would be Berry GP, and -- that's Berry docks owned by Berry GP,

8 it says, quote, a corporation may convey real property of the

9 corporation when authorized by appropriate resolution of the

10 Board of Directors.

11 So, if we want to read the document to say it's

12 not in there -- and you understand why we think it's really in

13 there and it's been the status quo for decades -- it's still in

14 the law. And we would follow that -- and nobody said we've

15 ever violated that law. No one ever said we've gone against

16 that law. No one ever said, I need a safeguard from the law

17 protection that's already there.

18 I mean, they -- everybody -- it was a month ago

19 that Lawrence Berry went in, they had the sale of real

20 property -- it was a two-day notice because the Board of

21 Directors doesn't require much notice. He goes in and he looks

22 at it and everybody agreed unanimously to sell real property.

23 THE COURT: To TxDOT?

24 MR. ALLISON: Yeah. To TxDOT, okay? And

25 there's not been a problem with that status quo for decades.

384 90

1 Now, I want to say this at the outset: This

2 idea that here's a loan that they say is self-dealing and bad,

3 and here's the crane business, and somehow that has a nexus to

4 don't let us -- don't let us change the rules, change the

5 status quo on sale of real property? If they sold the real

6 property -- and I'm just going straight to kind of the guts of

7 it, and then like I said I want to step back.

8 But what does the crane business have to do with

9 whether or not they sell a dock that is collateralizing -- by

10 everyone's agreement -- collateralizing the Frost line of

11 credit? If they sell the dock, gonna go to Bay Frost, okay?

12 It's at least gonna be a big discussion that everybody here --

13 gonna hear about, talk about. Number 1. So, I mean, there's

14 just no nexus.

15 Also, what did it have them do this idea of -- I

16 mean, come on, the crane business has been going on since 2019.

17 The loan has been out there for over a year now. Nothing's

18 changed. There's no panic. It has nothing to do with --

19 really, quite frankly this idea of who gets to serve as

20 director? Who gets to serve as director is a function of the

21 bylaws and Texas law. So I think there's just -- there's so --

22 they're trying to make a huge leap by saying because he made a

23 loan over a year ago that somehow now I get to stay on the

24 Board forever and you can't sell property.

25 Now -- and I want to jump again to the heart of

385 91

1 something here. Selling property that's been on the market for

2 a year, since before May -- since -- been talked about

3 apparently in a Board meeting Lawrence said remembered in

4 February or March of 2023, been on the market clearly since May

5 of 2023, here we are about a year later. We've got no nibbles.

6 No bites -- magic word, nothing imminent.

7 And we're gonna enjoin people from doing

8 something when there's nothing imminent? When we don't even

9 have an offer. When we don't even have a nibble. We don't

10 even have a thought about -- and quite frankly, there would

11 have to be, because we would do what we've done for decades and

12 follow Texas laws as far as what -- requiring, you know, the

13 directors to talk about it and take a vote on it. I've read

14 that section.

15 And so we think -- we know the discussion goes

16 something like this, that the dock is not getting its highest

17 and best use. They use it, what, a week or two out of the

18 every six months? They're just not getting value of it. It

19 may be -- may be, we're not there yet -- maybe that if they get

20 a company that wants to run liquids across it, that will make

21 it hugely valuable to that company when it's not that valuable

22 to our needs, and we reserve use of the dock when we offload

23 large modules.

24 And then there may be a situation that quite

25 frankly -- I honestly believe this, and maybe I'm just naive, I

386 92

1 actually think there is -- that Marty, and Bonnie, and Lawrence

2 would agree if the right deal presents itself, I have an idea

3 they'd agree. We don't even have a reason to think they'd

4 disagree on it, other than he has fear of it. Marty has been

5 very clear that he's not gonna sell it unless there are a

6 reservation of a right to allow it to be used when they need to

7 have use of it. Whether you it call that an easement or some

8 sort of contracted for right where they get to use it a certain

9 numbers of weeks per year at a certain rate, there's a million

10 ways to cut that deal.

11 So, I guess what I wanted to say at the very

12 outset is in terms -- I want to be very, very clear. The

13 status quo is not, you know, Lawrence gets to be on the Board

14 for life. That's not the status quo. Or Lawrence gets to be

15 on the Board even if the other shareholders and directors want

16 him, that's not the status quo. The status quo has always been

17 that that Board -- that serving as a director is at the

18 pleasure of the shareholders. It's been the way before they

19 got there, and it's been that way ever since they got there,

20 and it's been that way in the Texas laws and it's that way in

21 the bylaws.

22 The status quo has also been that the piece of

23 property -- any piece of property -- I mean, I guess he wants

24 you to just enjoin one piece of property really. When you get

25 down to it, he's voting for the rest of them, you know, to the

387 93

1 extent that's going to come up. It's rare we've heard from the

2 witness stand that they sell real property. But there is

3 absolutely no justification for changing the way it has worked

4 well for years.

5 And as -- he is a director right now. I'm not

6 even gonna speculate on what will happen. I will say on

7 December 7th they could have removed him if they wanted to.

8 They didn't. They appointed Bonnie, okay? They could have

9 made that motion. It's within the confines what was noticed

10 for a meeting for consideration of directors.

11 They got all up in arms about it, ran down here,

12 lit their hair on fire, and here we are. And I'm not saying

13 they won't, especially now, but it is their prerogative to have

14 that conversation in accord with the bylaws and the Texas law.

15 So we think the status quo is very cleer and very, very much in

16 our favor.

17 I do want to back up a little bit and I do have

18 -- in a reply that's on file, I want to the point out they

19 really have been a moving target. Originally they wanted

20 relief that we not interfere with Lawrence's right to vote as a

21 shareholder. There's never been a hint of that. There's never

22 been a suggestion of that. There's never been any inkling of

23 that. And then they have since amended and withdrawn that

24 request, and so I think it clearly is also denied.

25 They originally -- you'll remember, Your Honor,

388 94

1 they wanted to have you forbid the directors, which their

2 witness on the stand for them says the directors --

3 disinterested directors have a right to consider whether or not

4 they ratify the loan, or ratify the crane business, or ratify

5 as they have the dealings with Frost Bank and IBC. Their own

6 witness says they have a right to have those votes, okay? And

7 originally they wanted to deprive us of the right to do that as

8 directors. They're no longer asking for that relief.

9 They also want you to -- or they used to want

10 you to forbid us from ratification as shareholders. They're no

11 longer asking for that relief. So all of those requests should

12 be denied.

13 They originally also were asking that we not be

14 allowed to elect new directors. They have -- and then he voted

15 for Bonnie to be elected as a director. He not only voted for

16 that on December 7th, but he also voted -- Lawrence did -- for

17 Bonnie to be a director of Becon -- which is the top company --

18 voted for her to be a director as of March 13th or 14th, 2024,

19 this year. So they've withdrawn that request and we should

20 prevail on that.

21 They've also -- and the one that becomes more

22 germane here they originally asked that all of the people --

23 Ricketts (sic.), Marty, Powers, Hummell, Berry entities -- be

24 enjoined from selling, mortgaging, or otherwise encumbering any

25 real property that were Berry entities. They went and got a

389 95

1 TRO that says that -- ex parte, we were not there -- up in

2 Houston. Then they got -- then they backed off of it now and

3 said, okay, we realize that we cannot enjoin you from selling

4 -- by the way, they've since agreed to it because they realized

5 they were interfering grossly with the Frost Bank line of

6 credit negotiations, and then they backed off, and now they're

7 just saying, well, we just want two weeks notice, okay?

8 And, I mean, I just got to say this at the

9 outset: I don't know why we're here asking, you know, for the

10 Court to rewrite bylaws for us. Or to be the one who pens a

11 bylaw. Something that Marty has said, you know what, you know,

12 I can't do it the way you asked for it in your new pleading --

13 very clear, because in his new pleading what they're asking for

14 right now is special treatment for Lawrence that he get notice.

15 I know Mr. Reasoner just said, oh, that's not

16 the way we meant that. That's what it asked for. So they're

17 really asking you then to step into the shoes of the company

18 and rewrite the rules even though there's never been a problem

19 with it in the it past and I don't think I'll be a problem with

20 it now.

21 Sorry I said that so fast.

22 THE COURT: You broke the speed limit.

23 MR. ALLISON: I did on that one.

24 I mean, there's just -- there's no -- there's no

25 threat whatsoever. No one's ever said we're gonna let a

390 96

1 shareholder know. No one's ever said that. In fact, we always

2 let him know. In fact, he usually votes with us on it. In

3 fact, he's been in this discussion. And we know they have this

4 whole discussion about, he doesn't want to sell it at all,

5 Bonnie's okay with selling it, and we know that Lawrence --

6 excuse me, that Marty's real big on, hey, we're not getting

7 full value out of that piece of property. If we can sell it

8 and maintain the use and benefit for our company by having an

9 access agreement or whatever you want to call it, a use

10 agreement, then he thinks maybe there's a window out there

11 where that can happen.

12 But there's -- we've worked together on this for

13 years. They can't point to a single time we've tried to sell

14 real property without letting him know. He's a shareholder.

15 He has a right to know. He'll get to know. We don't need you

16 to rewrite -- with all due respect, rewrite bylaws, or rewrite

17 Texas law which already says that there's a requirement of a

18 director vote. And we quite frankly don't think we need help

19 with the bylaws. We think -- we read them that way already,

20 and that, you know, maybe they want to put it in there more

21 express. He can make a motion. But I -- it's just beyond me

22 on why we're here trying to get you to write bylaws.

23 So all of that said, I think it is very, very

24 clear that they are here not on the original TI that needs to

25 -- that's denied by having been be abandoned, but we want a

391 97

1 ruling on it. I think you understand --

2 THE COURT: No, I agree.

3 MR. ALLISON: You understand --

4 THE COURT: I agree with that.

5 MR. ALLISON: That's why I bring it up.

6 THE COURT: They've got two specific requests

7 today and that's all I'm considering.

8 MR. ALLISON: And now we're down to that --

9 those other ones need to be denied because of the --

10 THE COURT: All right. So they're denied.

11 MR. ALLISON: All right. So we're here on two

12 things that, first of all, have no nexus to the causes of

13 action pleaded, right? There's no nexus between the cranes and

14 the property. There's no nexus between the cranes or between

15 the -- Marty's loan, and Dennis' loan, and his mother's loan

16 that are at very low interest rates, in this case set by the

17 company. That in this case there's only one person, and it's

18 in an e-mail that Rob Powers says we took those loans and we

19 paid off debt and we paid off lines of credit. We needed those

20 loans in order to continue to do business.

21 We did those loans and they were disclosed. And

22 I know they think they should have been disclosed sooner, but

23 they were disclosed as of September of 2022, and it's been more

24 than a year before he decides to make it an issue. Those loans

25 have been in place, were disclosed to the bank, have been

392 98

1 subordinated to the Frost line of credit and the Wells Fargo

2 line of credit.

3 We have professional staff that has done it, and

4 they come up with this 12.5 calculation, which is hog wash and

5 I don't even want to beat on it too much. But, I mean, they

6 tried to scope up something when -- and they put in, by the

7 way, a lot of other documents, Your Honor, that when you do the

8 calculation I think it's like five percent.

9 All of those documents are in the record to show

10 that the loan has been carried, just like their bookkeeper said

11 -- or I shouldn't say that, accountant, CFO. CFO is the

12 correct term. Just like their CFO said, hey, if that was a

13 mistake then we've obviously corrected it, okay? And now they

14 want to latch on to one piece of evidence to, you know, try to

15 say you're criminal, you're horrible, you're bad, and you're,

16 you know, a bad actor. That's just not what's going on here.

17 They are asking for those two specific forms of

18 relief. Both of the relief sought by them, which is advanced

19 notice, okay? They will get notice of the director's meeting,

20 and he's a shareholder. He'll get information and continue to

21 get information. He does. I think the record has shown he

22 gets a lot of information. Apparently, there's a breakdown on

23 some of that when it comes to some personal expenses that go

24 back 15 years, but, I mean, the (indiscernible).

25 And that the status quo also is we have a right

393 99

1 under the Texas law if we want to to notice it and remove him

2 or affirm him as a director, and we would like to continue to

3 follow Texas law. There is no imminent harm. There is

4 nobody's hair that should be on fire. There's -- truly we

5 think there is no probable right of recovery. I think under

6 the Richie case, and knowing what we know about 21.418, there

7 is no probable right for recovery. In fact, it says there's no

8 cause of action that arises out of that. There is a safe

9 harbor.

10 I mean, there are so many reasons I think that

11 the requests to, quite frankly, interfere with an important

12 business in this community, there are so many reasons to try to

13 deescalate. And we need to deescalate. And the idea that --

14 that there's gonna be a word out on the street, if they got

15 their way, that now Lawrence is in charge and that now, you

16 know, the Court's running the company, it's a train wreck. And

17 its just not supported by Texas law. Thank you.

18 THE COURT: Okay. All right. So, the Court has

19 heard evidence over a three-day period. Temporary injunction's

20 requested. Bylaws provide for the removal and appointment of a

21 Board of Director, so I'm not gonna interfere with that.

22 With regards to the second issue the Court will

23 partially grant for any sale of real property there must be 48

24 hours notice to all of the Board members; whoever they may be

25 at the time. Board members may participate by phone in the

394 100

1 vote if they choose. This only applies to real property.

2 Granted and rendered.

3 (End of proceedings.)

395 101

1 REPORTER'S CERTIFICATE

2 THE STATE OF TEXAS ) COUNTY OF NUECES ) 3

4 I, ALICIA BROOKS, Deputy Official Court Reporter in and

5 for the District Courts of Nueces County, State of Texas, do

6 hereby certify that the above and foregoing contains a true and

7 correct transcription of all portions of evidence and other

8 proceedings requested in writing by counsel for the parties to

9 be included in this volume of the Reporter's Record, in the

10 above-styled and numbered cause, all of which occurred in open

11 court or in chambers and were reported by me.

12 I further certify that the total cost for the preparation

13 of this Reporter's Record is $702 and was paid by Gibbs &

14 Bruns, LLP.

15 WITNESS MY OFFICIAL HAND this the 29th day of April, 2024.

17 /S/Alicia Brooks ALICIA BROOKS, Texas CSR #8726 18 Expiration Date: 03/31/2025 Deputy Official Court Reporter 19 Nueces County, Texas 901 Leopard St. Rm 402 20 Corpus Christi, Texas 78401 361-888-0751 21 Alicia.brooks@nuecescountytx.gov

396 EXHIBIT 9

397 Filed 3/14/2024 1:36 PM Anne Lorentzen District Clerk Nueces County, Texas

CAUSE NO.: 2024DCV-0045-C

LAWRENCE BERRY, individually and as § IN THE DISTRICT COURT OF Trustee of the ALLEN LAWRENCE § BERRY TRUST, directly and derivatively § on behalf of BECON, INC.; LDMA § LIMITED PARTNERSHIP; and BERRY § GP, INC.; § § Plaintiff, § § NUECES COUNTY, TEXAS BERRY GP, INC.; LDMA LIMITED § PARTNERSHIP; and BECON, INC.; § § Nominal Plaintiffs, § § JURY TRIAL DEMANDED v. § § MARTY BERRY; MICHAEL § HUMMELL; BERRY GP, INC.; BERRY § 94TH JUDICIAL DISTRICT OPERATING COMPANY LLC; and § BERRY CONTRACTING LP; § § Defendants. §

PLAINTIFF’S FIRST AMENDED VERIFIED PETITION AND APPLICATION FOR TEMPORARY INJUNCTION

TO THE HONORABLE JUDGE OF THIS COURT:

Lawrence Berry (“Lawrence” or “Plaintiff”), in his personal capacity and as Trustee of the

Allen Lawrence Berry Trust, directly and derivatively on behalf of Becon, Inc., LDMA Limited

Partnership, and Berry GP, Inc. (with Lawrence, “Plaintiffs”), files this First Amended Verified

Petition and Application for Temporary Injunction against Marty Berry (“Marty”), Michael

“Mike” Hummell (“Hummell”), Berry GP, Inc., Berry Operating Company LLC, and Berry

Contracting LP (collectively, “Defendants”). Plaintiff asserts claims for breach of fiduciary duty,

declaratory judgment, conversion, corporate waste, a demand for an equitable accounting, a

1 398 demand for books and records, and an application for temporary injunction as described herein.

In support of these claims, Plaintiff respectfully shows as follows:

I. INTRODUCTION

1. This action concerns the management and finances of several Texas companies—

Berry GP, Inc.; Berry Operating Company LLC; and Berry Contracting LP (collectively, the “Berry

Entities”)—which are majority owned in equal shares by Plaintiff Lawrence Berry and his two

brothers, Marty Berry (“Marty”) and Dennis Berry (“Dennis”). In the past several months, it has

become apparent that the Berry Entities have been unlawfully usurped, controlled, and

mismanaged in secret by Defendants Marty Berry and Mike Hummell, Berry GP, Inc.’s Vice

President and General Counsel.

2. The Berry Entities operate a large organization of companies engaged in the

construction, fabrication, and maintenance contracting industries throughout the United States, and

have successfully done so since the 1950s. While the Berry Entities were founded and originally

controlled by Lawrence’s father, ownership passed to Lawrence and his brothers beginning in the

1990s.

3. In recent months, Lawrence—an officer, director, and shareholder of the Berry

Entities—has come to learn that Marty Berry, with assistance from Mike Hummell and other

management personnel, has been mismanaging the Berry Entities’ finances such that he imperiled

a long-standing line of credit that represented the Berry Entities’ primary source of operational

funding, causing that line of credit to be placed in default. Further, Hummell and other

management personnel colluded in secret to authorize self-dealing loan agreements from Marty

and Dennis—themselves officers, directors, and shareholders of the Berry Entities—to the Berry

Entities without notice or consultation with the other officers and directors. What is more, Marty

2 399 has been secretly usurping corporate opportunities by buying cranes through a personally owned

company, and then leasing the cranes back to the Berry Entities in a series of undisclosed self-

dealing transactions. Finally, presumably in an attempt to repay the self-interested loans,

Defendants have recently begun secretly attempting to sell the company’s real property, including

an important and valuable dock facility, without notice to or authorization from the Board of

Directors. This type of undisclosed engagement in self-dealing and ultra vires transactions violates

the Defendants’ fiduciary obligations and Texas law.

4. When Lawrence inquired about this mismanagement and apparent covert self-

dealing through valid requests for books and records information, his requests went ignored, in

further violation of Texas law.

5. Lawrence, both directly and derivatively on behalf of the Berry Entities, brings this

lawsuit against Marty Berry, Hummell, and the Berry Entities, to recover damages, enforce his

rights to inspect the Berry Entities’ books and records, and to demand an accounting of the Berry

Entities’ finances.

II. DISCOVERY LEVEL

6. Discovery should be conducted in accordance with a Level 3 tailored discovery

control plan under Rule 190.4 of the Texas Rules of Civil Procedure.

III. JURISDICTION AND VENUE

7. Plaintiff seeks monetary relief of over $1,000,000, including damages, penalties,

costs, expenses, pre- and post-judgment interest, and attorney fees, as well as non-monetary relief.

The relief sought by Plaintiff is within the jurisdiction of this Court.

8. The Court has subject matter jurisdiction to hear this matter because the amount in

controversy exceeds the jurisdictional minimum of this Court.

3 400 9. This Court has personal jurisdiction over Defendant Marty Berry because he is a

resident of Texas and Plaintiff’s claims against him arise directly from his contacts with and

activities in this state.

10. This Court has personal jurisdiction over Defendant Michael Hummell because he

is a resident of Texas and Plaintiff’s claims against him arise directly from his contacts with and

11. This Court has personal jurisdiction over Defendant Berry Contracting LP because

it is a Texas limited partnership headquartered in this state.

12. This Court has personal jurisdiction over Berry GP, Inc. because it is a Texas

corporation headquartered in this state.

13. This Court has personal jurisdiction over Becon, Inc. because it is a Texas

14. This Court has personal jurisdiction over LDMA Partnership because it is a Texas

limited partnership.

15. This Court has personal jurisdiction over Defendant Berry Operating Company

LLC because it is a Texas limited liability corporation headquartered in this state.

16. Venue is proper in Nueces County, Texas because it is the county of the Berry

Entities’ principal offices in this state.

IV. PARTIES AND SERVICE

17. Plaintiff Lawrence Berry is an individual residing in Harris County, Texas. At all

relevant times, Lawrence has owned shares of Berry GP, Inc., Berry Operating Company LLC,

and Berry Contracting LP individually, through a series of holding companies, including Becon,

Inc. and LDMA Limited Partnership. Lawrence is also the beneficial owner of the shares in those

4 401 companies held in the Allen Lawrence Berry Trust. Finally, at all relevant times, Lawrence has

been an Officer, Director, partner, and/or shareholder of LDMA Limited Partnership; Becon, Inc.;

Berry GP, Inc.; Berry Operating Company LL;, and Berry Contracting LP.

18. Nominal Plaintiff LDMA Limited Partnership is a Texas limited partnership with a

registered address at 1414 Valero Way, Corpus Christi, Texas 78409. Berry GP, Inc. is its registered

agent for service of process and it can be served at 1414 Valero Way, Corpus Christi, Texas 78409.

19. Nominal Plaintiff Becon, Inc. is a Texas corporation with a registered address at

1414 Corn Products Road, Corpus Christi, Texas 78409. Charles Vanaman is its registered agent

for service of process and it can be served at 1414 Corn Products Road, Corpus Christi, Texas

78409.

20. Defendant Berry Contracting LP, doing business as Bay Ltd., is a Texas limited

partnership with a registered address at 1414 Corn Products Road, Corpus Christi, Texas 78409.

Berry GP, Inc. is its registered agent for service of process and it can be served at 1414 Corn

Products Road, Corpus Christi, Texas 78409.

21. Defendant Berry Operating Company LLC is a Texas limited liability company

with a registered address at 1414 Corn Products Road, Corpus Christi, Texas 78409. Mike

Hummell is its registered agent for service of process and it can be served at 1414 Corn Products

Road, Corpus Christi, Texas 78409.

22. Defendant Berry GP, Inc. is a Texas corporation with a registered address at 1414

Corn Products Road, Corpus Christi, Texas 78409. Mike Hummell is its registered agent for

service of process and it can be served at 1414 Corn Products Road, Corpus Christi, Texas 78409.

23. Defendant Marty Berry is a natural person. Marty Berry is an Officer, Director, and

shareholder of Berry GP, Inc., Berry Operating Company LLC, and Berry Contracting LP, and he

5 402 maintains custody and control over the corporate records of Berry GP, Inc., Berry Operating

Company LLC, and Berry Contracting LP. Marty Berry can be served at his office at 1414 Corn

24. Defendant Mike Hummell is a natural person. He is the Vice President and General

Counsel of Berry GP, Inc. Mr. Hummell can be served at his office at 1414 Corn Products Road,

Corpus Christi, Texas 78409.

V. STANDING

25. Plaintiff Lawrence Berry is a 19% limited partner of LDMA Limited Partnership

(“LDMA”). Lawrence Berry is also the Trustee of the Allen Lawrence Berry Trust, which is a 11

2/3% limited partner of LDMA. LDMA owns Berry GP, Inc., which is the umbrella company over

the Berry Entities and their subsidiaries.

26. Lawrence Berry is also a 1/3 shareholder of Becon, Inc., which is the 3% general

partner of LDMA.

27. Lawrence Berry—in his personal capacity and as Trustee of the Allen Lawrence

Berry Trust—has standing to bring these claims directly and derivatively on behalf of LDMA

Limited Partnership, Becon, Inc., and Berry GP, Inc. pursuant to Texas Business Organizations

Code §§ 21.563 & 153.413, as well as Texas common law providing for representative actions in

closely held limited partnerships and corporations.

VI. FACTUAL BACKGROUND

A. The Berry Entities are a family operation.

28. The Berry Entities and their subsidiaries are a group of companies focused on the

construction, fabrication, and maintenance contracting industries throughout the United States.

6 403 The Berry Entities were founded in the 1950s by Lawrence Berry’s father, Marvin Berry, who ran

the organization for several decades.

29. Marvin Berry had four sons: Plaintiff Lawrence Berry, Marty Berry, Dennis Berry,

and Kenneth Berry. When Marvin passed away in 1997, control of the Berry Entities began

shifting to his sons, although the other brothers bought Kenneth out several years ago. LDMA sits

at the top of the Berry organization. LDMA’s 3% general partner is Becon, Inc., which is owned

in equal shares by Lawrence, Marty, and Dennis. Lawrence, Marty, and Dennis are each direct

19% limited partners of LDMA, and each is also a beneficial owner of trusts which are 11 2/3%

limited partners of LDMA. The remaining 5% limited partner of LDMA is Lone Star Equipment,

Inc., which is a subsidiary of Berry Contracting LP. Dennis Berry passed away in 2024 and, on

information and belief, his shares passed via his estate plan.

30. LDMA owns Berry GP, Inc., which in turn owns several holding companies which

own Berry Operating Company LLC, which in turn functions as the 1% owner and general partner

of Berry Contracting LP.

31. An organizational chart reflecting the structure and ownership of the various

entities at issue is attached hereto as Exhibit A.

32. While the Berry Entities employ several officers who are not members of the Berry

Family—including Robert Powers, who has served as President and Chief Executive Officer of

Berry GP, Inc., and Defendant Hummell, who serves as Vice President and General Counsel of

Berry GP, Inc.—ownership and control of the Berry Entities is vested with Lawrence and the other

shareholders.

7 404 33. The Berry Entities are governed by the Board of Directors of Berry GP, Inc. (the

“Board”), in accordance with the Bylaws of Berry GP, Inc., which are attached hereto as Exhibit

B. The Board consists of directors Lawrence, Marty, and Dennis Berry’s wife—Bonnie Berry.

B. Defendants have excluded Lawrence from key decisions related to the Berry Entities, including improper self-interested transactions.

34. Despite Marvin Berry’s wishes that the Berry Entities operate as a family business,

it has become clear that Marty, with Hummell’s assistance, has gone behind Lawrence’s back to

exclude him from key decisions related to the Berry Entities, instead choosing to engage in self-

dealing and attempt major corporate transactions without informing the other officers and directors

of his actions.

35. For instance, in the past several years, Defendants have, among many other things:

 Purported to approve the acquisition of major equipment such as cranes and “yellow iron” without Board discussion or authorization;

 Negotiated and purported to approve terms with major equipment lenders that include significant potential negative impacts to the Berry Entities without Board discussion or authorization;

 Marketed corporate aircraft owned by the Berry Entities for resale without Board discussion or authorization; and

 Deliberately dissolved the largest revenue producing division of the Berry Entities by systematically terminating key individuals material to that division’s structure and revenue development.

36. Of particular concern, Lawrence recently came to learn that Marty has engaged in

multiple improper self-dealing transactions with the Berry Entities.

37. Specifically, it appears that Rob Powers and Defendant Hummell approved and

executed two loan agreements, each between Marty and Dennis on the one hand, and one of the

Berry Entities on the other, by which Marty and Dennis loaned a total of approximately $75 million

to the Berry Entities (the “Berry Loans”). For nearly a year, Defendants refused to provide the

8 405 loan documents or information about the loan terms despite requests from Lawrence. After being

forced to file this lawsuit, Lawrence was finally provided with the purported loan documents and

learned that Marty loaned $45 million and Dennis loaned $30 million to one or more of the Berry

Entities.

38. Despite being an officer, director, and shareholder of the Berry Entities, Lawrence

was never directly informed about the Berry Loans, never consulted about their propriety, and

never asked to vote on them as an officer, director, or shareholder. Nor was Lawrence informed

about the terms of the Berry Loans; how the proceeds of the Berry Loans were used; or how, when,

and to what extent Marty and Dennis expected repayment from the Berry Entities with respect to

the Berry Loans.

39. Review of the limited financial information to which Lawrence has been privy since

the filing of this lawsuit indicates that the Berry Entities have made payments to Marty and Dennis

in service of the Berry Loan. In particular, Marty approved payments to himself of at least $10

million in principal, despite the purported promissory note governing his loan indicating that the

loan is not payable until December 31, 2024. Because the self-dealing loans were made without

Board authorization and Defendants have largely refused to provide the requested documentation

to Lawrence, the extent of further improper payments is presently unclear.

40. Prior to the filing of this lawsuit, the Berry Loan transactions were never discussed

by the directors of Berry GP, Inc., were not voted on at any meeting of the directors, and do not

appear in any minutes of Board meetings. In fact, it appears that Powers, Hummell, Marty, and

Dennis were the only individuals at the Berry Entities who were aware that they were encumbering

the Berry Entities with this $75 million unauthorized debt.

9 406 41. Lawrence also recently came to learn that Defendant Marty Berry has been

purchasing “rolling stock” equipment such as motor cranes through a company unaffiliated with

the Berry Entities called Western Gulf Equipment LLC (“Western Gulf”). Western Gulf was

originally established as a special purpose entity that would purchase a portion of a crane in Canada

in conjunction with a Canadian affiliate of the Berry Entities, and then lease the crane back to that

Canadian affiliate. This original transaction was fully disclosed and approved by the Board.

However, Western Gulf now appears to have purchased at least six (6) additional cranes without

first presenting the opportunity to the Board or the Berry Entities, and then leased those cranes

back to the Berry Entities in a self-dealing transaction—again, without disclosing the transaction

to the Board or seeking Board approval. According to the limited financial information presented

to Lawrence, it appears that Western Gulf is leasing seven (7) cranes to the Berry Entities at a total

rate of $449,000 per month. To date, the full extent of Marty’s undisclosed, self-dealing

transactions with Western Gulf remains unclear.

42. Plaintiff understands that Western Gulf is wholly owned by Marty Berry and his

wife, Courtenay Berry, and that the registered address for Western Gulf is the Berry Entities’

headquarters in Corpus Christi. What is more, the registered agent for Western Gulf is Mike

Hummell, indicating that Defendant Hummell is aware of Marty’s self-dealing transactions

perpetrated through Western Gulf. On information and belief, Marty uses corporate assets of the

Berry Entities to operate Western Gulf for his own personal gain.

43. Plaintiff also recently learned that Defendants have offered to sell some of the Berry

Entities’ vital real property assets, including a dock facility and adjacent real property that

generates tens of thousands of dollars in monthly revenue, presumably in an effort to repay the

unauthorized and self-interested loans. Plaintiff believes that Marty intends to sell the Berry real

10 407 property to raise funds for additional unauthorized self-dealing payments to himself in service of

44. Plaintiff recently was made aware that in or around late May 2023, Defendants

began an effort to sell the dock facility and other real property to at least one third party. In their

communications to that third party, Defendants falsely represented that “the principals at Berry

G.P. have decided to open two strategic properties to the marketplace.” See Ex. C (May 30, 2023

Letter from Berry G.P. to Port of Corpus Christi). In truth, the decision to sell significant company

assets was made unilaterally by Marty and without calling a Board meeting and without discussion

with or notice to Lawrence.

C. Defendants have threatened the financial operations of the Berry Entities.

45. Until recently, the Berry Entities relied on a $50,000,000.00 revolving line of credit

(the “LOC”) with International Bank of Commerce (“IBC”) for general operations. This LOC was

governed by a loan agreement between several of the Berry Entities and IBC, dated March 31,

2019 (the “Loan Agreement”).

46. The Loan Agreement contained provisions allowing IBC to invoke default if certain

conditions were not met, including particular thresholds for EBITDA and combined net profit after

taxes.

47. Under Defendants’ mismanagement, the Berry Entities recently failed to meet

certain of the thresholds detailed in the Loan Agreement.

48. In fact, IBC recently made repeated requests to members of the Berry Entities’

management team for information related to standard reporting as part of the Loan Agreement

covenants. This includes quarterly financials, WIP reports, financial projections, and more. It

appears as if the management team either refused or was unable to produce this information to

11 408 IBC. Further, when IBC made an effort to schedule a meeting with the Board of Directors to

discuss the status of the Berry Entities in person, Marty did not show up, imperiling the 30-year

banking relationship with IBC. Lawrence was never informed that IBC was sending repeated

requests for information, that the Berry Entities were struggling to produce accurate or timely

reporting, or that IBC had attempted to schedule meetings with the Board of Directors to discuss

the problems in person.

49. Accordingly, on March 13, 2023, IBC sent a letter to the Berry Entities informing

them that IBC had placed the LOC in default. IBC asserted that the Berry Entities had failed to

achieve the minimum EBITDA and net profits targets for the 2022 fiscal year. Defendants did not

share this letter with Lawrence at the time.

50. Because of these claimed defaults, IBC (1) elected to limit future advances to the

Berry Entities on the LOC to $30 million rather than the full $50 million, and (2) accelerated

maturation of the LOC to March 31, 2023, at which time IBC was going to require the entire

balance to be due and payable.

51. Following this March 13, 2023 letter, IBC and counsel for the Berry Entities

engaged in additional correspondence regarding the extension of the LOC. On March 28, 2023,

IBC proposed an extension of the LOC to October 1, 2023, pursuant to several terms, including a

reduction of the LOC from $50 million to $30 million, a requirement that the $75 million debt

purportedly owed by the Berry Entities to Marty and Dennis be subordinated to the LOC debt

owed to IBC, and a requirement that no payments be made on that debt until the Berry Entities’

indebtedness to IBC was fully satisfied. On March 30, 2023, counsel for the Berry Entities

responded and rejected many of these terms, including the subordination and repayment proposals.

12 409 Lawrence was not consulted regarding these decisions, nor was he made aware of the IBC proposal

at the time.

52. As a result of the March 30, 2023 rejection letter from the Berry Entities, IBC

appears to have placed the LOC into default. Despite being an officer, director, and shareholder

of the Berry Entities, Lawrence was not informed of the precise status of the LOC with IBC, nor

of the Berry Entities’ plan for ensuring sufficient liquidity to fund its operations. Defendants

apparently decided to keep Lawrence in the dark regarding the Berry Entities’ financial status.

53. Following the collapse of the IBC banking relationship, Marty unilaterally caused

the Berry Entities to repay himself $10 million in principal on his loan, despite the fact that the

terms of the purported promissory note governing his loan did not require Berry GP to make any

principal or interest payments to Marty until December 31, 2024.

54. Around the same time, Defendants began negotiations with Frost Bank to obtain a

new revolving line of credit. As part of these negotiations, Defendants pledged the Berry Entities’

real property as collateral, including the Entities’ commercial property in Corpus Christi.

Lawrence was not fully apprised of the situation with Frost Bank, nor was he initially consulted

about or asked to approve the collateralization of any of the Berry Entities’ real property.

55. Indeed, as part of the negotiations with Frost Bank, Marty executed a “Certificate

of Corporate Resolutions” that purports to set forth “resolutions duly adopted either: (a) at a

meeting of [Berry GP, Inc.’s] Board of Directors duly called and held, at which meeting a quorum

was present and acting throughout, or (b) by unanimous written consent of the Board of Directors

of [Berry GP, Inc.], which resolutions save not in any way been amended or modified[.]”. See Ex.

D. No such Board meeting was ever held, and Lawrence was never notified of or asked to approve

13 410 any written consents adopting the purported resolutions contained in this “Certificate of Corporate

Resolutions.”

56. Lawrence has since signed resolutions authorizing the creation of a Frost Bank

relationship because it is in the best interest of the Berry Entities to receive outside financing.

D. Defendants refuse to honor Lawrence’s legitimate requests for information related to the Berry Entities.

57. On April 18, 2023, Lawrence sent an email to Powers and Jim Klein—CFO of

Berry GP, Inc.—copying Marty and Dennis. This email attached a memorandum of “Key

Concerns” that the Berry Entities apparently received from IBC and requested information from

Powers and Klein related to the financial condition of the Berry Entities.

58. Lawrence sent the information request so that he could better understand the Berry

Entities’ present financial condition and what may have caused the Berry Entities to purportedly

fail to meet the thresholds included in the Loan Agreement with IBC. Lawrence also requested

information related to the Berry Loans, since he has still been kept in the dark as to the nature and

terms of that debt.

59. As an officer, director, and shareholder of the Berry Entities, Lawrence is entitled

to inspect the books and records of the Berry Entities, and a valid request such as the April 18,

2023 email should have been honored. However, Lawrence never received a response to his April

18, 2023 request, much less access to any of the books and records he requested.

60. Lawrence has made numerous other requests for information since April 18, 2023,

including since filing this lawsuit, but all have been ignored or refused.

E. Defendants attempt to ratify their own improper conduct.

61. Immediately after filing his Original Petition on November 27, 2023, Plaintiff

secured a hearing on the application for temporary restraining order and provided notice to

14 411 Defendants. The hearing took place on November 28, 2023 in the Harris County Ancillary Court

before the Honorable Lauren Reeder. Despite receiving notice from Plaintiff nearly 24 hours

previously, Defendants did not appear at the temporary restraining order hearing.

62. After considering Plaintiff’s Original Petition and evidence, Judge Reeder granted

the Berry TRO on November 28, 2023, enjoining Defendants from selling, mortgaging, or

otherwise encumbering any of the Berry Entities’ real property without the approval of the

disinterested members of the Board of Directors.

63. On the evening of December 1, 2023, Defendants sent an email to Lawrence,

attaching two “notices of special meetings.”

64. The first purported to give notice that a “Special Meeting of the Board of Directors”

of Berry GP, Inc. was called by Marty and Dennis Berry to be held on December 7, 2023 (the

“Board Notice”). The Board Notice, which was signed by Marty and Dennis Berry, indicated that

the purpose of the Board meeting was to discuss the following agenda items:

a. Defense and indemnity for Marty Berry, Robert Powers, Robert Rickett, and Mike Hummell in Cause No 2023-81703 in the District Court of Harris County, and any location to which such claims may be transferred;

b. Discussion and action regarding the employment contract of CEO Robert Powers;

c. Clarification and ratification concerning previous board action on loans from shareholders Dennis Berry and Marty Berry to Berry Contracting, L.P. and offer to Lawrence Berry to participate in said loans for up to 100%;

d. Clarification and ratification of previous board and employee action concerning the sale of the Berry Dock and adjacent real property, and of moving forward with the sale after resolution of pending litigation;

e. Discussion and action on marketing corporate aircraft and use of corporate aircraft pending sale;

f. Consider and take action on need to transfer title to property acquired in Robert Rickett’s name, using Berry funds, to any Berry owned Company;

15 412 g. Discussions and ratification of previous board action concerning the discontinuation of banking relations with International Bank of Commerce;

h. Discussion and ratification of previous board action establishing a banking relationship with Frost Bank;

i. Discussion and ratification of previous board action establishing an operational credit line and any other action needed to provide security for loans;

j. Evaluation of accounts as to any and all director debt (individually or director owned or controlled entities) to any Berry owned Company and development of plans for repayment; and

k. Other business.

65. The second purported to give notice that a “Special Meeting of the Shareholders”

of Berry GP, Inc. was called by Marty and Dennis Berry to be held on December 7, 2023

immediately following the Special Meeting of the Board of Directors (the “Shareholder Notice”).

The Shareholder Notice, which was also signed by Marty and Dennis Berry, indicated that the

purpose of the shareholder meeting was to discuss the following agenda items:

a. Discussion and action concerning the election of and/or removal of Directors.

66. The Special Meetings of the Board of Directors and Shareholders took place on

December 7, 2023 while counsel for the parties were reaching agreement on the Agreed TRO. At

the Special Meeting of the Board of Directors, Marty and Dennis Berry purported to ratify—

frequently over Lawrence’s objection—all of the topics and actions listed in the Board Notice.

This included topics on which Marty and Dennis were unquestionably interested Directors, such

as “defense and indemnity” and “loans from shareholders Dennis Berry and Marty Berry.”

67. After the meeting, Defendant Hummell circulated proposed meeting minutes to the

members of the Board, including Lawrence. The minutes incorrectly reflected that certain of the

agenda items had passed, despite the fact that they required—and had not gotten—approval by

disinterested members of the Board of Directors. Accordingly, Lawrence sent redlines of the

16 413 minutes back to Defendant Hummell in advance of the upcoming December 12, 2023 Board

meeting, which properly reflected what had occurred at the December 7, 2023 meeting.

68. At the December 12, 2023 meeting, Defendant Hummell claimed that he “could

not open” the redlines that Lawrence had sent—despite the fact that they were sent as PDFs.

Further, Marty and Dennis purported to accept Hummell’s incorrect meeting minutes, over

Lawrence’s objection.

69. The same conduct occurred again at the February 13, 2024 meeting of the

Shareholders of Berry GP, Inc., at which Marty and Bonnie Berry purported to ratify post hoc a

number of actions over Lawrence’s objections. Several of those votes should not have passed,

since they failed to garner approval from a majority of the disinterested shareholders.

VII. CAUSES OF ACTION

COUNT 1 Breach of Fiduciary Duty (against Marty Berry and Mike Hummell)

70. Plaintiff incorporates the above paragraphs as if set forth herein in their entirety.

71. Defendant Marty Berry has been a shareholder, officer, and director of Berry GP,

Inc. at all relevant times. Defendant Mike Hummell has served as Vice President and Chief

Executive Officer of Berry GP, Inc. at all relevant times. In those positions, Marty and Hummell

owe certain fiduciary duties to the Berry Entities, including the duty of loyalty and the duty of

utmost good faith, fairness, and honesty. These duties that Marty and Hummell owe to the Berry

Entities encompass obligations and/or duties to refrain from allowing self-dealing and to make full

disclosure of information.

17 414 72. While serving in their respective positions, Marty and Hummell have engaged in,

directed, approved, and/or taken actions in contravention of the fiduciary duties they owe to the

Berry Entities, including without limitation the following willful and intentional misconduct:

A. Self-Dealing

i. Marty and Hummell approved and directed at least one of the Berry Entities to

enter into loan agreements with Marty and Dennis—who are themselves

officers, directors, and shareholders of Berry GP, Inc. and the other Berry

Entities—without giving notice to or obtaining the consent or approval of Berry

GP, Inc.’s Board;

ii. At a minimum, Marty’s and Hummell’s actions breached their fiduciary duties

of loyalty to Berry GP, Inc. and amounted to self-dealing.

B. Unauthorized Acts and Failure to Make Full and Adequate Disclosure

i. Marty and Hummell failed to disclose their unauthorized decision to sell vital

company assets and the self-dealing Berry Loans and failed to properly seek or

obtain board approval or approval of the sole disinterested director for those

self-dealing transactions;

ii. Marty and Hummell similarly failed to disclose the Berry Entities’ financial

information to Lawrence before IBC held the Berry Entities in default with

respect to the LOC.

C. Usurpation of Corporate Opportunity and Self-Dealing

i. Marty directed his wholly owned company—Western Gulf Equipment—to

purchase cranes without first presenting the opportunities to the Board or the

Berry Entities. Then, Marty directed Western Gulf to lease those cranes back

18 415 to the Berry Entities, without disclosing such lease transactions to the Board or

seeking approval by the disinterested members of the Board. Mike Hummell

participated in these actions as the registered agent for Western Gulf Equipment.

These and other actions by Marty and Hummell amounted to breaches of their fiduciary duties of

loyalty to the Berry Entities and to behave with the utmost good faith, fairness, and honesty.

73. The Berry Entities and Lawrence have been damaged by the Defendants’ self-

dealing, unauthorized acts, breaches of fiduciary duty, and failure to make full disclosure.

74. Because Berry GP, Inc., Becon, Inc., and LDMA Limited Partnership operate as

closely held entities—and Defendants have concealed information and refused to share requested

information with Lawrence—an officer, director, and shareholder—about the operations of the

Berry Entities, justice requires treating this claim as a direct action by Lawrence, with any recovery

being paid directly to Lawrence, pursuant to Tex. Bus. Org. Code §§ 21.563 and 153.413.

75. Alternatively, Plaintiff brings these claims derivatively on behalf of LDMA Limited

Partnership, Becon Inc., and Berry GP, Inc.

COUNT 2 Demand for an Equitable Accounting

76. Plaintiff incorporates the above paragraphs as if set forth herein in their entirety.

77. As an officer and director of Berry GP, Inc. at all relevant times, Marty owed

fiduciary duties to Berry GP, Inc. that give rise to grounds for an accounting. Additionally, as an

officers of Berry GP, Inc. at all relevant times, Hummell owes fiduciary duties to Berry GP, Inc.

that give rise to grounds for an accounting.

78. Defendants have provided Lawrence with almost no financial records related to the

Berry Entities. The task of determining whether those records are accurate or complete, and the

need to verify details about the concealment, wrongdoing, and mismanagement detailed above, is

19 416 likely to be complex. Adequate relief is unlikely to be obtained at law or through traditional

discovery. Performing an accurate accounting for the Berry Entities is likely to require the creation

of accurate financial records where none exist, as opposed to merely granting Plaintiff access to

the Berry Entities’ existing records.

79. Plaintiff therefore seek an order appointing an independent auditor and requiring

the Berry Entities, Marty, and Hummell to prepare and present accurate financial records, which

properly account for all corporate receipts, expenditures, assets, and liabilities for Berry GP, Inc.

and its subsidiaries, including without limitation the other Berry Entities, since January 2023. See

TEX. R. CIV. P. 172.

80. Plaintiff bring this claim derivatively on behalf of LDMA Limited Partnership,

Becon Inc., and Berry GP, Inc.

COUNT 3 Demand for Books and Records

81. Plaintiff incorporates the above paragraphs as if set forth in their entirety.

82. At all relevant times, Plaintiff Lawrence Berry has been a shareholder of at least

5% of Berry GP, Inc. through his interests in LDMA Limited Partnership and Becon, Inc.

83. On April 18, 2023, Lawrence sent a good faith written demand to Defendants for

books and records related to Berry GP, Inc. and its subsidiaries, including without limitation the

other Berry Entities. However, this request was ignored, and Lawrence never received a response.

84. As a shareholder of Berry GP, Inc. for at least six months immediately preceding

that April 18, 2023 demand, and as a holder of at least 5% of all of the outstanding shares in Berry

GP, Inc., Lawrence is entitled to examine and copy Berry GP, Inc.’s books, records of account,

minutes, and share transfer records. TEX. BUS. ORG. CODE § 21.218.

20 417 85. The Bylaws of Berry GP, Inc. do not alter or limit Lawrence’s right to inspect Berry

GP, Inc.’s books and records. Indeed, Section XXIV states that “the books, accounts and records

of [Berry GP, Inc.] shall be open to inspection by the shareholders at all reasonable times[.]” See

Ex. B, at 11.

86. Defendants never responded to Lawrence’s lawful request, let alone provided any

reason why Lawrence would not be entitled to inspect the books and records of Berry GP, Inc. and

its subsidiaries.

87. Plaintiff Lawrence Berry therefore seeks an order compelling the production for

examination of the books and records of Berry GP, Inc. and its subsidiaries, including but not

limited to the other Berry Entities, pursuant to Section 21.218(c) of the Texas Business

Organizations Code.

88. Plaintiff Lawrence Berry brings this claim directly and derivatively on behalf of

LDMA Limited Partnership, Becon Inc., and Berry GP, Inc.

COUNT 4 Declaratory Judgment

89. Plaintiff incorporates the above paragraphs as if set forth in their entirety.

90. Pursuant to TEX. CIV. PRAC. & REM. CODE § 37.001 et. seq., Plaintiff seeks a

judicial declaration of his rights, status, and other legal relations with respect to Defendants under

the Berry GP bylaws and laws of the State of Texas.

91. First, Plaintiff seeks a judicial declaration that the purported December 7, 2023

“ratifications” of the following agenda items were ineffectual, because they were not procured

with the approval of a majority of the fully informed and disinterested members of the Board of

Directors, nor were they approved in good faith by a vote of the disinterested shareholders after

disclosure of all material facts:

21 418 a. Defense and indemnity for Marty Berry, Robert Powers, Robert Rickett, and Mike Hummell in Cause No 2023-81703 in the District Court of Harris County, and any location to which such claims may be transferred;

b. Clarification and ratification concerning previous board action on loans from shareholders Dennis Berry and Marty Berry to Berry Contracting, L.P. and offer to Lawrence Berry to participate in said loans for up to 100%;

c. Clarification and ratification of previous board and employee action concerning the sale of the Berry Dock and adjacent real property, and of moving forward with the sale after resolution of pending litigation;

d. Discussion and action on marketing corporate aircraft and use of corporate aircraft pending sale; and

e. Discussions and ratification of previous board action concerning the discontinuation of banking relations with International Bank of Commerce;

92. Second, Plaintiff seeks a judicial declaration that the purported February 13, 2024

“ratifications” or “resolutions” were ineffectual, because they were not approved by a majority of

the fully informed and disinterested members of the Board of Directors, nor were they approved

in good faith by a vote of a majority of the fully informed and disinterested shareholders:

a. BE IT RESOLVED that all action previously taken by any Director of Berry GP, Inc. or any employee of Bay Ltd. to promote, advertise, or seek offers for the sale of the Berry Dock is hereby ratified. The Board further determines that the Berry Dock and adjacent property is to remain listed for sale and that no sale shall take place pending the resolution of the TRO currently in place in Nueces County, Texas.

b. BE IT RESOLVED that the loans made to Berry GP Inc. by Dennis Berry and Marty Berry in July 2022 are recognized as fair, and in the best interest of Berry GP, and are ratified.

c. BE IT RESOLVED that the two (2) aircraft owned by Berry GP Inc. are to remain listed for sale, and are to be sold upon approval of an acceptable offer to purchase.

d. BE IT RESOLVED that all actions taken by any director of Berry GP, Inc. or any employee of Bay Ltd. including Robert Powers and Mike Hummell, in furtherance of discontinuing the banking relations between Berry GP, Inc. and International Bank of Commerce is hereby ratified.

e. BE IT RESOLVED that the acquisition of cranes or other equipment by Marty Berry, individually or through any company he owns or controls, and the

22 419 subsequent leasing of that company to any Berry company for performing the work of that Berry company, is approved. To the extent such conduct has occurred in the past, it is ratified.

93. Each of the “ratifications” or “resolutions” detailed above required informed

approval by a majority of the disinterested Directors or Shareholders, pursuant to TEX. BUS. ORGS.

CODE § 21.418. However, they were not approved by a majority of the disinterested Directors or

Shareholders, because Lawrence Berry objected.

94. Plaintiff brings this claim individually and derivatively on behalf of LDMA Limited

COUNT 5 Conversion

95. Plaintiff incorporates the above paragraphs as if set forth in their entirety.

96. Pursuant to Texas law, Defendants are liable to Plaintiff for conversion.

97. Becon Inc., LDMA Limited Partnership and Berry GP, Inc. have the right to possess

property of the Berry Entities.

98. By unlawfully voting to indemnify themselves and advance themselves litigation

costs—over the objection of Lawrence as the sole disinterested member of the Board for such

vote—Defendants are depriving Plaintiffs of their rightful interest in the property of the Berry

99. Lawrence’s objection to the vote constitutes his demand for the return of the

advanced litigation fees. Alternatively, demand was not required.

100. As a result of Defendants’ unlawful vote and improper squandering of the Berry

Entities’ money, LDMA Limited Partnership, Becon Inc., and Berry GP, Inc. have suffered

damages within the jurisdictional limits of this Court. Further, under the Texas Damages Act and

23 420 Texas common law, Plaintiff is entitled to recover exemplary damages because Defendants acted

with actual malice when converting the Berry Entities’ property.

101. Because Berry GP, Inc., Becon, Inc., and LDMA Limited Partnership operate as

closely held entities—and Defendants have concealed information and refused to share requested

information with Lawrence—an officer, director, and shareholder—about the operations of the

Berry Entities, justice requires treating this claim as a direct action by Lawrence, with any recovery

being paid directly to Lawrence, pursuant to Tex. Bus. Org. Code §§ 21.563 and 153.413.

102. Alternatively, Plaintiff brings this claim derivatively on behalf of LDMA Limited

COUNT 6 Corporate Waste (against Marty Berry)

103. Plaintiff incorporates the above paragraphs as if set forth in their entirety.

104. Defendant Marty Berry’s use of corporate assets for personal applications

constitutes corporate waste.

105. In particular, on information and belief, Defendant Marty Berry uses assets of the

Berry Entities to operate his personally-owned company, Western Gulf Equipment. Defendant

Marty Berry does not provide adequate consideration to the Berry Entities in return for these uses

of Berry Entity assets, and instead further encumbers the Berry Entities by charging lease payments

for the Berry Entities’ use of Western Gulf cranes. There is no business justification for using the

Berry Entities’ corporate assets for Defendant Marty Berry’s personal applications without

adequate consideration.

106. Further, Defendant Marty Berry approved payments to himself from the Berry

Entities of at least $10 million in principal on his undisclosed and improper self-dealing loan,

despite the purported promissory note governing his loan indicating that the loan is not payable

24 421 until December 31, 2024. There is no business justification for using the Berry Entities’ corporate

assets to make such voluntary payments for Marty’s personal benefit, thus depriving the Berry

Entities’ of vital liquidity.

107. Finally, on information and belief, Plaintiff understands that Defendant Marty

Berry engages in additional corporate waste by using other Berry Entity assets for personal

applications without adequate consideration. However, because Plaintiff has been denied adequate

access to the Berry Entities’ books and records, the scope and extent of that additional corporate

waste is not yet clear. Plaintiff reserves the right to add additional claims for corporate waste after

a proper accounting has been made and Plaintiff has been able to perform a fulsome review of the

Entities’ books and records.

108. The Berry Entities and Lawrence have been damaged by Defendant Marty Berry’s

waste of corporate assets.

109. Because Berry GP, Inc., Becon, Inc., and LDMA Limited Partnership operate as

closely held entities—and Defendants have concealed information and refused to share requested

information with Lawrence—an officer, director, and shareholder—about the operations of the

Berry Entities, justice requires treating this claim as a direct action by Lawrence, with any recovery

being paid directly to Lawrence, pursuant to Tex. Bus. Org. Code §§ 21.563 and 153.413.

110. Alternatively, Plaintiff brings this claim derivatively on behalf of LDMA Limited

VIII. APPLICATION FOR TEMPORARY INJUNCTION

111. Plaintiff incorporates the above paragraphs as if set forth in their entirety.

112. Plaintiff also incorporates its February 15, 2024 Brief in Support of Temporary

Injunction as if set forth in its entirety.

25 422 113. Plaintiff attaches and incorporates by reference the Verification of Lawrence Berry,

which verifies the allegations relevant to this application for injunctive relief.

114. Pursuant to Rules 680 and 681 of the Texas Rules of Civil Procedure and Texas

Civil Practice and Remedies Code §§ 65.011(1), (3), and (5), Plaintiff requests that the Court issue

a temporary injunction enjoining Defendants from selling any of the Berry Entities’ real property

without first giving two weeks written notice to Lawrence Berry, including details of the proposed

transaction. Further, Plaintiff requests that the court issue a temporary injunction enjoining

Defendants from removing Lawrence Berry from the Board of Directors of Berry GP, Inc. or any

related entities. Plaintiff further requests that upon final trial on the merits, the Court award a

permanent injunction against Defendants for the same activity.

115. By this filing, Plaintiff merely seeks to “preserve the status quo of the litigation’s

subject matter pending a trial on the merits.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204

(Tex. 2002). In the injunction context, “status quo” is defined as the “last, actual peaceable, non-

contested status which preceded the pending controversy.” See In re Newton, 146 S.W.3d 648,

651 (Tex. 2004) (citations omitted). Here, the status quo that should be preserved is that Plaintiff

Lawrence Berry is one of the three Directors of Berry GP, Inc., he has not ratified or approved any

of the Defendants’ self-dealing or unauthorized actions as the only disinterested Director, and

Defendants are not authorized to sell any of the Berry Entities’ real property absent notice to and

approval of the Berry GP Board of Directors.

116. To obtain a temporary injunction to preserve this status quo, Plaintiff must show a

cause of action against Defendants, a probable right to relief, and probable injury. See, e.g.,

Butnaru, 84 S.W.3d at 204. The “probable injury” requirement has been divided into subcategories

of: (1) imminent harm; (2) irreparable injury; and (3) inadequate remedy at law. See id. In cases

26 423 involving real or personal property such as this one, the movant need not show the lack of an

adequate remedy at law. TEX. CIV. PRAC. & REM. CODE § 65.011(5).

A. Defendants have committed and threaten to commit further torts against Plaintiff. Plaintiff has a right to relief from such torts.

117. Defendants are already liable for causes of action 1-5, above. If Defendants are

permitted to direct the Berry Entities to sell the Berry Entities’ real property without proper notice

to Lawrence, they will continue to commit breaches of fiduciary duty and deprive the company of

critical assets, causing additional damage to Plaintiff.

118. To be entitled to a temporary injunction, Plaintiff need not show that he will prevail

at trial on these causes of action. Rather, Plaintiff must merely plead a cause or causes of action

and present some evidence that tends to sustain them. Intercont’l Terminals Co., LLC v. Vopak

North America, Inc., 354 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The

unauthorized sale of the Berry Entities’ unique and valuable real property—especially if done in

furtherance of the repayment of the self-dealing Berry Loan—would not only bolster the causes of

action above but would supply all the evidence necessary for Plaintiff to prevail on them.

119. Further, in the fiduciary self-dealing context at issue here, a “presumption of

unfairness” attaches to the transactions of the fiduciary, shifting the burden to the defendant to

prove the fairness of the transactions. See Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508-

09 (Tex. 1980). If that presumption cannot be rebutted at the temporary injunction stage, then the

injunction should be granted if the plaintiff has presented a prima facie case of the existence of a

fiduciary relationship and a probable breach of that duty. See Health Discovery Corp. v. Williams,

148 S.W.3d 167, 169-70 (Tex. App.—Waco 2004, no pet.). Here, Lawrence will easily establish

a prima facia case that Defendants owed fiduciary duties to the Berry Entities and to the other

officers of the Berry Entities and that Defendants have breached those duties.

27 424 B. The harm facing Plaintiff is imminent.

120. For the purposes of obtaining an injunction, an injury is “imminent” if one has

expressed “demonstrable intent to do that for which injunctive relief is sought,” Harbor Perfusion,

Inc. v. Floyd, 45 S.W.3d 713, 717-18 (Tex. App.—Corpus Christi 2001, no pet.), or if the

“defendant will engage in the activity sought to be enjoined.” Schmidt v. Richardson, 420 S.W.3d

442, 447 (Tex. App.—Dallas 2014, no writ).

121. Defendants have already made unauthorized offers to sell real property belonging

to the Berry Entities, including a unique and valuable commercial dock and other real property.

Defendants are believed to be selling such assets to raise money for further unauthorized payments

in service of the self-dealing Berry Loan. This past behavior, coupled with the Defendants recent

purported Board and shareholder resolutions, demonstrates that Defendants intend to engage in

activity that will undoubtedly alter the status quo—and irreparably harm Lawrence—if they are

not enjoined from doing so until resolution of the merits of Plaintiff’s claims.

C. The harm facing Plaintiff is irreparable.

122. If Defendants are not enjoined as requested above, the harm Plaintiff will suffer is

irreparable. “An injury is irreparable if the injured party cannot be adequately compensated in

damages or if the damages cannot be measured by any certain pecuniary standard.” Butnaru, 84

S.W.3d at 204. Injury is likewise irreparable if “damages [are] not presently ascertainable or

readily subject to calculation.” Wright v. Sport Supply Group, Inc., 137 S.W.3d 289, 294 (Tex.

App.—Beaumont 2004, no pet.) (citing Butnaru, 84 S.W.3d at 204). The loss of management

rights over a company can constitute irreparable harm, because those rights are “unique,

irreplaceable, and ‘cannot be measured by any certain pecuniary standard.’” Cheniere Energy, Inc.

v. Parallax Enters., 585 S.W.3d 70, 83 (Tex. App.—Houston [14th Dist.] 2019, pet. dism’d (citing

28 425 Sonwalkar v. St. Luke’s Sugar Land P’ship, L.L.P., 394 S.W.3d 186, 201 (Tex. App.—Houston [1st

Dist.] 2012, no pet.)). Additionally, “a trial court may grant injunctive relief when the enjoined

conduct threatens to disrupt an ongoing business.” Sonwalkar, 394 S.W.3d at 199; see also

Intercont’l Terminals Co., LLC, 354 S.W.3d at 896 (“[d]isruption to a business can be irreparable

harm,” and “assigning a dollar amount to such intangibles as a company’s loss of clientele,

goodwill, marketing techniques, and office stability, among others, is not easy.”).

123. Further, trial courts typically grant injunctive relief in “actions involving real

property because real estate is generally considered unique” and “irreplaceable,” such that money

damages are generally inadequate. See Chenier Energy, 585 S.W.3d at 76-77 (citing cases).

124. First, as explained above, Plaintiff has already been damaged by Defendants’

actions, but the extent of that damage is not readily ascertainable because of Defendants intentional

concealment of information and the lack of clear records detailing the financial status of the Berry

Entities. Additionally, Defendants actions have already caused irreparable harm to the Berry

Entities’ decades-long banking relationship with IBC and could cause similar harm to the new

banking relationship with Frost Bank. Assigning a dollar amount to remedy this kind of intangible

but serious harm is not easy.

125. Second, Plaintiff understands that Defendants have pledged the Berry Entities’ real

property as collateral to secure an increase to the new Frost Bank line of credit. Should

unauthorized self-dealing payments made in service of the Berry Loans imperil the line of credit

with Frost Bank such that the company’s real property interests are threatened, Plaintiff will be

irreparably harmed as a result.

126. Third, Defendants have been secretly attempting sell—without notice to or

authorization from the Board—other real property belonging to the Berry Entities, including the

29 426 company’s valuable dock facility, presumably to raise funds to make additional self-dealing

payments. If Defendants dispose of such real property without the requisite notice or approval,

Plaintiff will be irreparably harmed.

D. Plaintiff lacks an adequate remedy at law, or in the alternative, is not required to prove lack of an adequate remedy at law.

127. Because Plaintiff moves for a temporary injunction under Section 65.011(5) of the

Texas Civil Practice and Remedies Code, he is not required to prove lack of an adequate remedy

at law. See TEX. CIV. PRAC. & REM. CODE § 65.011(5) (“A writ of injunction may be granted if:

(5) irreparable injury to real or personal property is threatened, irrespective of any remedy at law.”)

(emphasis added).

128. Alternatively, Plaintiff has no adequate remedy at law, so a temporary injunction

must issue. An irreparable injury is one that, by definition, has no adequate remedy at law. See,

e.g., Kennedy v. Gulf Coast Cancer & Diag. Center at Southeast, Inc., 326 S.W.3d 352, 260 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (“An injury is irreparable if there is no adequate remedy

at law; if for example, a prevailing applicant could not be compensated adequately in damages or

if damages cannot be measured by any certain pecuniary standard.”) (citations omitted). As

explained above, the injuries Plaintiff will suffer—including the likely loss of management rights

and of unique and valuable real property belonging to the company—cannot be adequately

compensated in damages, and Plaintiff thus has no adequate remedy at law.

129. Further, to justify denial of an application for injunction, a remedy at law must be

as “complete, practical, and efficient to the prompt administration of justice as is equitable relief.”

Tex. Black Iron, Inc. v. Arawak Energy Int.’l Ltd., 572 S.W.3d 579, 584 (Tex. App.—Houston [14th

Dist.] 2017, no pet.). Here, the equitable relief that Plaintiff seeks is for the purpose of avoiding

harm that could not be responded to fully in money damages, including threatening the status of

30 427 the Berry Entities’ real property interests and of Plaintiff’s management rights in the Berry Entities.

Damages would be an incomplete remedy at best, because the harm Defendants threatens to

impose on Plaintiff is non-monetary in part. See RWI Constr., Inc. v. Comerica Bank, 583 S.W.3d

269, 275 (Tex. App.—Dallas Apr. 12, 2019, no pet.) (“Generally, an adequate remedy at law exists

and injunctive relief is improper where any potential harm may be adequately cured by monetary

damages.”).

E. Plaintiff is entitled to a temporary injunction and is willing to post bond.

130. For the reasons set forth above, Plaintiff is entitled to a temporary injunction.

Plaintiff requests that upon notice and hearing, the Court enjoin Defendants from (1) removing

Lawrence Berry from the Board of Directors of Berry GP, Inc. or any related entities; and (2)

voting on the sale of the Berry Entities’ real property without first giving two weeks’ written notice

to Lawrence Berry, including details of the proposed transaction. Plaintiff further requests that

upon final hearing, the Court award a permanent injunction against Defendants for the same

conduct.

IX. ATTORNEY’S FEES

131. Plaintiff Lawrence Berry is entitled to recover his attorneys’ fees incurred in this

matter pursuant to Sections 21.222 and 21.561 of the Texas Business Organizations Code and

Section 37.009 of the Texas Civil Practice and Remedies Code.

X. JURY DEMAND

132. Plaintiff hereby requests a jury trial.

XI. CONDITIONS PRECEDENT

133. Plaintiff pleads that all conditions precedent to the relief requested have been

satisfied, waived, excused, and/or are deemed as a matter of law to have been satisfied.

31 428 XII. PRAYER

134. Plaintiff respectfully prays that Defendants be cited to appear and answer herein,

and that the Court:

(1) Enter a temporary injunction restraining Defendants from (1) removing Lawrence Berry from the Board of Directors of Berry GP, Inc. or any related entities; and (2) voting on the sale of the Berry Entities’ real property without first giving two weeks’ written notice to Lawrence Berry, including details of the proposed transaction;

(2) Order that Plaintiff recover from Defendants the reasonable costs and expenses Plaintiff incurred in obtaining the temporary injunction;

(3) Order that Defendants produce the books and records of the Berry Entities for inspection by Plaintiff Lawrence Berry;

(4) Order that Plaintiff Lawrence Berry recover from Defendants the reasonable costs and expenses Plaintiff incurred in obtaining the books and records;

(5) Appoint an independent auditor and order Defendants to prepare and present accurate financial records, which properly account for all corporate receipts, expenditures, assets, and liabilities for Berry GP, Inc. and its subsidiaries, including without limitation the other Berry Entities, since January 2023;

(6) Set a trial date and upon final hearing enter a permanent injunction that enjoins Defendants from performing the acts described above, and order that Plaintiff have final judgment against Defendants for breach of fiduciary duty and award:

(i) compensatory, actual, consequential, restitutionary, and disgorgement damages,

(ii) exemplary damages,

(iii) pre-judgment interest,

(iv) post-judgment interest,

(v) reasonable and necessary attorneys’ fees and costs, and

(vi) any other relief to which Plaintiff may show himself justly entitled.

Dated: March 14, 2024 Respectfully submitted,

By: /s/ Barrett Reasoner

32 429 Barrett Reasoner State Bar No. 16641980 breasoner@gibbsbruns.com Michael Absmeier State Bar No. 24050195 mabsmeier@gibbsbruns.com L. Bruce Baldree State Bar No. 24116064 bbaldree@gibbsbruns.com GIBBS & BRUNS LLP 1100 Louisiana, Suite 5300 Houston, Texas 77002 Tel: 713.650.8805 Fax: 713.750.0903

and

Butch Boyd State Bar No. 00783694 butchboyd@butchboydlawfirm.com BUTCH BOYD LAW FIRM 2905 Sackett Street Houston, Texas 77098 Tel: 713.589.8477

Gabi S. Canales State Bar No. 24012376 gabilaw14@gmail.com GABI CANALES LAW OFFICE 5262 South Staples St., Suite 100 Corpus Christi, Texas 78411 Tel: 361.887.4700 Fax: 361.887.4761

ATTORNEYS FOR PLAINTIFF

I hereby certify that on March 14, 2024, a true and correct copy of this document was served on all counsel of record pursuant to the Texas Rules of Civil Procedure.

/s/ Bruce Baldree L. Bruce Baldree

33 430 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Christina Pena on behalf of Barrett Reasoner Bar No. 16641980 cpena@gibbsbruns.com Envelope ID: 85562149 Filing Code Description: Amended Petition Filing Description: Plaintiff's First Amended Verified Petition and Application For Temporary Injunction Status as of 3/20/2024 8:57 AM CST

Associated Case Party: Lawrence Berry

Barrett H.Reasoner breasoner@gibbsbruns.com 3/14/2024 1:36:43 PM SENT

Michael R.Absmeier mabsmeier@gibbsbruns.com 3/14/2024 1:36:43 PM SENT

Roxanne Graham rgraham@gibbsbruns.com 3/14/2024 1:36:43 PM SENT

Christina Pena cpena@gibbsbruns.com 3/14/2024 1:36:43 PM SENT

Bruce Baldree bbaldree@gibbsbruns.com 3/14/2024 1:36:43 PM SENT

Sherry Rakestraw srakestraw@gibbsbruns.com 3/14/2024 1:36:43 PM SENT

Butch Boyd butchboyd@butchboydlawfirm.com 3/14/2024 1:36:43 PM SENT

Katrina Chamblee-Boyd katrinaboyd@butchboydlawfirm.com 3/14/2024 1:36:43 PM SENT

Associated Case Party: Marty Berry

Douglas Allison doug@dallisonlaw.com 3/14/2024 1:36:43 PM SENT

Kim Brunkenhoefer kim@dallisonlaw.com 3/14/2024 1:36:43 PM SENT

Susan Gonzales susan@dallisonlaw.com 3/14/2024 1:36:43 PM SENT

Shanna Gohlke gohlkes@bayltd.com 3/14/2024 1:36:43 PM SENT

Stephanie Jennings sjennings@porterhedges.com 3/14/2024 1:36:43 PM SENT

Cheri Deason cdeason@porterhedges.com 3/14/2024 1:36:43 PM SENT

Associated Case Party: Robert Rickett 431 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Christina Pena on behalf of Barrett Reasoner Bar No. 16641980 cpena@gibbsbruns.com Envelope ID: 85562149 Filing Code Description: Amended Petition Filing Description: Plaintiff's First Amended Verified Petition and Application For Temporary Injunction Status as of 3/20/2024 8:57 AM CST

Associated Case Party: Robert Rickett

Van Huseman vhuseman@husemanlawfirm.com 3/14/2024 1:36:43 PM SENT

John Swallow jswallow@husemanlawfirm.com 3/14/2024 1:36:43 PM SENT

Associated Case Party: Robert Powers

Clay Steely csteely@porterhedges.com 3/14/2024 1:36:43 PM SENT

William Stukenberg I I wstukenberg@porterhedges.com 3/14/2024 1:36:43 PM I I SENT

Associated Case Party: Michael Hummell

Van Huseman vhuseman@husemanlawfirm.com 3/14/2024 1:36:43 PM SENT

John Swallow I I jswallow@husemanlawfirm.com 3/14/2024 1:36:43 PM I SENT I

432 EXHIBIT A

433 LDMA Limited Partnership General Partner Limited Partners – 97% Becon, Inc. • Dennis – 1/3 • Marty, Dennis, & Lawrence – 19% each • Marty – 1/3 • Marty, Dennis, & Lawrence Trusts – 11 2/3% each • Lawrence – 1/3 • Lone Star Equipment – 5%

Becon Holdings, Inc. (Nevada Corp.) 99% ownership Limited Partner

Berry Contracting LP (Texas) (dba Bay Ltd.) 434 EXHIBIT B

435 BYLAWS OF

1414 Corn Products Road in the City of Corpus Christi, Nueces County,

be managed and controlled by a board of directors consisting of

'not less than three nor more than seven members. They shall hold

office until the next annual meeting of the shareholders or until

V. POWERS OF DIRECTORS: The board of directors shal I have the

:management of the business of the company and in addition to the

powers and authorities by these bylaws expressly conferred upon

•things as may be exercised or done by the corporation, but subject,

nevertheless, to the provisions of the statute, of the charter

436 and of these bylaws and to ·any regulations from time to time made ,_"" ,·?·Y the share ho I de rs _, provided that no reg u I at ions so made sh a 11 I invalidate any prior act of the direcl-ors which would have been

last preceding clause and other powers conferred by these bylaws,

it is hereby express I y declared that the board of directors shal I

To purchase and otherwise acquire for the company and proper-

ty,rights or privileges which the company is authorized to acquire,

iat _such prices and on such terms and conditions and for such con- ' Is1. d era t.10n as they think proper. At their discretion, to pay for

any property or rights acquired by the company, either wholly or ;

partially, in money or in stocks, bonds, debentures, or other securi-

such subordinate managers, officers, assistants, clerks, agents,

.and servants, permanent! y or temporari I y, as they may from time to

time think fit, and to determine their duties and fix, and from

time to time change their sol aries or emoluments, and to requ·ire

security in such instances and in such amounts as_.they think

the right to choose, remove or suspend such subordinate officers,

t-rust for the company any property belonging to the company or in

437 • - - r , "• • --,.•--o_-,)

which it is interested or for any other purpose, and to execute

and do al I such duties and things as may be requisit~ in relation

.{ )" ijo any such trust. "·r I To create, make and issue mortgages, bonds, deeds of trust,

trust agreements and negotiable or transferable instruments and

securities, secured by mortgage or otherwise, and to do every other i act and thing necessary to effectuate the same.

the company bills, notes, receipts, acceptances, endorsements,

From time to time to provide for the management of the affairs

,of the company in such manner as they think proper and in part i cu I a r , / \ ... •'; from time to time to delegate any of the powers of the board of

directors to any committee, officer or agent, and to appoint any

person to be the agent of the company with such powers, including

the powers to subdelegate, and upon such terms as may be thought

annual meeting of the shareholders shall meet immediately follow-

ing each such meeting for the purpose of electing officers and (; • .. i considering any other business that may come before the board.

at such places and upon such notice as may be determined from

438 A majority of the whole board of directors shall be

necessary to constitute a quorum for the transaction of business

t· \ :•,..._,..I a t a I I me e t i n g s . vJ-11 ._/{UUU~ J/ Jtl

shall be held in the City of Corpus Christi, Nueces County, Texas,

pnless otherwise specified in the notice of any such meeting or

Al I shareholders entitled to vote may vote at al I meetings,

:either in person ·or by proxy in writing. All proxies shall be !

filed with the secretary of the meeting before being voted upon. I 1A m a j o r i t y o f t h e s h a r e h o I d e r s i n a m o u n t o f s to c k i s s u e d a n d o u t -

standing, represented by the holders in person or by proxy, shal I

be requisite at all meetings to constitute a quorum for an election

·in each year, beginning•with the year 1963, if not a legal holiday,

and if a legal holiday, then on the day following, when they shall

elect by a plurality vote, by ballot, a board of directors to serve

.for one year and until their successors are elected and have quali-

(~)" ·fied, each shareholder being entitled to vote· for each share of

s t .o c k s t a n d i n g r e g i s t e r e d i n h i s o r h e r n a m e o n t h e t w e n t i e t h d a y

preceding the election, exclusive of the date of such election.

Notice of the annual meeting shall be mailed by the secretary

.to each shareholder entitled to vote at his or her last known post

439 6ffice address, at least ten days prior to the meeting.

president, and sh al I be cal led at the re9uest in writing or by I ,' i vote of a majority of the board of directors or at the request in

writing of·the holders of a majority of the stock of the company

issued and outstanding.· Notice of each special meeting, indicating

briefly the object or objects thereof, shall be mailed by the

secretary to each shareholder at his or her last known post office

Jr o m t h e i r n u m b e r , s t a n d i n g ·c om h1 i tt e es a n d m a y i n v e s t t he m w i t h I !

al·I their own powers, subject to such conditions as they may pre-

-scribe , a-n d a 11 committees thus appointed sh a 11 keep reg u I a r min -

utes of their transactions and shall cause them to be recorded in

books to be kept for that pu-rpose in the office of the company

·and shall report the same to the board of directors at their regular

IX~/) l'Ji I OFFICERS: T h e o ff i c e r"S o f th e c o m p a n y s h a I I c o n s i s t o f

a presjdent, one or more vice presidents, a secretary and treasurer, . fl'"~---.... 1,1 \ I\~• - ,- .a n d on e or more ass i s tan t s e c re tar i es or treas u re rs , an d s u c h

subordinate officers as may from time to time be elected or ap-

pointed by the board of directors. Any person may hold more than

one such office, except that the president and secretary shall not

440 xjt;1r~ll1 Jq'il OFFICERS - HOW CHOSEN: At the first meeting after their

~lection and annually thereafter beginning on the second Tuesday

,{ , b! f Au g us t , 1 9 6 3·, th e cl i r e c to rs s h a I I e I e c t t he o ff i c e rs "-._j

year and until their successors are elected and have qualified,

They shall be subject to removal during their respective terms

of office for cause and may be removed at any time by a majority

officer of the company; he shall preside at all meetings of the

,directors; he shall have general and active management of the

'business of the company; and shall see that all orders and resolu-

tions of the board are carried into effect. He shall execute all

contracts and agreements authorized by the board, He shall have

the general supervision and direction of all the other officers

·of the company and shall see that their duties are properly per-

formed, He shall be ex-afficio member of all standing committees

and shall have the general powers and duties of supervision and

management usually vested in the office of the president of a

the company for the fiscal year to the directors at their first

regular meeting in each year, and to the shareholders at their !

441 )annual meeting, and from time to time shall report to the

dire.ctors all matters within his knowledge which the i~terests

;of the company ,may require to be brought to their notice. I X/-A - ~ ~ I I, /t/ 'ifI X 11 ~ , d u t ~ ii; /4'1/ VICE PRESIDENT: Any vice president sh al I be vested with

all the powers and shall perform all the duties of the president

in his absence, and sh al I perform such other duties as may be pre-

scribed by the board of directors. f //1'// XI l-11 ~ ~ I1 -, • X 111.

minutes of all proceedings in a book to be kept by him for that

purpose and sh al I perform I ike duties for the standing committees

when required. • ,Hhe sh al I keep in safe custody the seal of the

company and when authorized to do so shal I affix the seal of

said corporation to any instrument requiring the same, and the

seal when so affixed shall be attested by the signature of the

of the shareholders of the company and of the board of directors

and sh al I perform al I such other duties as may be prescribed

from time to time by the board of direct@lts or the president.

records of receipts and disbursements in books of accounts be-

valuable effects in the name and to442the credit of the company Iin the depository or depositories designated from time to time by resolution of the board of directors. I 1 He shall disburse funds of the company as may be ordered

by the board, or the president, taking proper vouchers for such

disbursements, and shall render to the president and directors

·at the regular meetings of the board, or whenever they may re-

quire it, an account of all his transactions as treasurer and

accounts of stock regrstered and transferred in such form and ' I •manner I and under such regulations as the board of directors may

prescribe. If required by the board of directors, he sh al I give '•

the company a bond in form and in a sum with security satisfactory

to the board of directors, for the faithful perfor~ance of the

duties of his office and the restoration to the company, in case

of his death, resignation or removal from office, of all books,

papers, vouchers, money and other property of whatever kind in

his possession belonging to the company. He shall perform such

x v ~ / / , ,qr/I VACANCIES: If the office of any director, or of the

president, vice president, any secretary or treasurer or other

death, resignation, retirement, disquali'fication, removal from

443 ,_.,,,,_..,,~,~,,,-., . lthan . um , by a m a j or i t y vote , rn·a y c ho o s e a s u c c es so r or a q u or I

I I XVl_j)1¢~/I, 111' 1 D·U T I E S D E l E GA T E D : I n the case of the abs enc e of a n y

the powers and duties of such officer to any other officer or

certificate, signed by the president or vice president, and either

the treasurer or the secretary, certifying the number of shares I / 'owned by him in such corporation.

company shall be made as required by the Uniform Stock Transfer

time of transfer. No transfer of stock shall be made within ten

of a certificate of stock, another may be issued in its place

. s a t i s fa c t o r y &10 n d o f i n de mn i t y . The p r o v i s i o n s o f t h e Un i f o r m

DIVIDENDS: Dividends upon the capital stock of the 444 6' o m p a n y w· h e n e a r n e d m a y b e d e c 1a r e d b y t h e b o a r d o f d i r e c to r s

at a_ny regular or special meeting. Before the payment of any I

" dividends or m a,k in g any dist rib u ti on of profits there may be ·-.~ / ·'r set aside out of the net profits of the company such sum or ' . sums as the directors from time to time in their absolute

cies, or for equalizing dividends, or for any such other purpose

payment of money shall be signed as directed by resolution of I .. / the board of directors from time to time.

shall be designated from time to time by the board of directors,

orders for the payment of money drawn in this corporation's

·or signers thereof, when bearing or purporting to bear the sig-

n a t u r e o f a n y p e r s o n o r p e r s o n s a u t h o r i z· e d t o s i g n t h e s a m e b y

corporation with such checks, drafts, or other orders so drawn

445 •• • ••• - - 0 n t i I a n d un I e s s s u c h a u t h o r i t y a n d d e s i g n a t i on i s r e v o k e d b y

res o·I u ti on of the board of di rectors of said corporation and J ) 'i ypon due notice· to said depository or dep~sitories. '-~..., .,.,/

the company shall be open to inspection by the shareholders at

all reasonable times which are to be fixed by resolution of the

by these byla\¥s notice is required to be given to any director,

officer or shareholder, it shall not be construed to mean personal

notice, but such notice may be given in writing by depositing the

wrapper, addressed to sue h director, officer or shareholder at

his or her address as the same appears in the books of the cor-

poration; and the time when the same shall be mailed shall be

deemed to be the time of the giving of such notice, , .J) 1q~(p XXVl~~q1,

. or required to be given to any director, officer or shareholder, ("-•~''.' .• .. __ f .. a waiver thereof in writing, signed by said shareholder, director/

AMENDMENT OF BYLAWS: T h e s e b y I a w s m a y b e a m e n d e d . a _t a n y 446 ,;.,.~--· , ...., ········- •.

time. and from time to time by a majority of the entire board of .-· . :) directors then i,n office at any regular c;>r special meeting of the ''"'-..,...!

board of directors or by the vote of a majority !:of the shareholders

i ·n a m o u n t o f t h e s to c k t he n i s s u e d a n d o u ts t a n d i n g a t a n y r e g u I a r

o r s p e c i a 1. m e e t i n g. o f t h e s h a r e h o I d e rs .

447 j !

BE- IT RESOLVED th.at the By=Laws of Be1"ry Contracting!' Inco be amended as follows: - That A-tt:i.cle XXV and XXVI be amended by adding the following phrase to said Art:lcle XXVI: "Attendance i.n pei.. son or by proxy at any meeting of shareholders, either annual or special, shall constitute waiver of notice of such shareholders meeting and it will not ·he necessary fo1a a fo1·mal written waiver of not:i..ce to be executed by·such shareholde:rs.u "Attendance in person at any directors meeting~ whether annual p regular, special or called s, shall constitute waiver of notice of call of I' y. ' such meeting and shall not be necessary for \.~ ,) such director so attending in person to execute a formal wri.tten W8iver of notice of sameo" By-La.ws adopted this 9th day of August, 1966, a.t tlre annual meeti.ng of sha1·eholders and a copy ordered slgned and affixed to the By-La.'1.•15 of the Corporationo Certified correct:

ATTEST: ~~~ Marvhi Y. Berry 1• Presldent anc Chairman of Shareholders Meet

Sha1rnholde1.·s Meetin1g and Secretary~ Treasurer of Corporation

448 v1-M

NOTICE OF DIRECTORS MEETINGS: No notice of annual meeting need be given di rectors.

OFFICERS: The officers of the company shall consist of a President, an Exe~µtive Vice President, one or more Vice Presidents, a General Counsel, a Secretary and Treasurer and one or more assis- tant Secretaries or Treasur¢rs and such subordinate officers as may from time to time be elesterj py the Board of Directors or appointed by the President. '

OFFICERS - HOW CMOS~N AND REMOVED: The President, Executive Vice President, Vice Presidents and the Secretary of the Corporation shall be elected by the' Baahl'pf Directors at either its annual meeting (to be held•on the second Tuesday of August of each year immediately following the annual meeting of the Shareholders) and shall serve for one year or 4ntil their successors have been elected provided however, that vacancies may be fi] led ,or new officers elected at any special meeting of the Board of Directors called for such purpose. All other Corporation employees shall be appointed by the President. The salarie~•'-nd emoluments of all officers shall be determined by the President s~pject only to the right of review by the Board of Directors on the''ijritten request of a majority of the entire Board of Directors,'tiut':provided that no such review shall have retroactive effect'on ?nY officer. Any officer may be removed by a majority vote of the Boi[d' of Directors. '.(.

EXECUTIVE VICE PRESIDENT: There is hereby created the office of. Executive Vice President, The Executive Vice President shall be a person thoroughly familiar 0iih the broad spectrum of activities and projects of the Corporail~n and its subsidiary entities and shall be a person knowledgeable in the·bµsiness and professional affairs of the Corporation. The Executive.Vice President shal 1 act for, as and in the place of the Presi~jni'ln the event of absence or dis- ability of the President. Iri ·acJdition, the Executive Vic_e President shal 1 supervise the Vice Pr¢$}~ents, the Secretary, managers, • departments and activities ~i directed by the President and is vested with broad executive management of the Corporation subject to direction of the Board of Directors and the President.

VICE PRESIDENT: If both the President and the Executive Vice President be absent, disabled or unable to serve or fulfill their duties, any vice president may and shall serve in the place of and perform all or any of the duties of the President and/or Executive Vice President; and shall1 In addition, perform such regular and other duties, including superv(sipn of ·departments, as may be prescribed ·by the Board of Dir,ctors or delegated or assigned by the President or Executive Vi·tij '- .. P~esident. \

GENERAL COUNSEL: There is herewith created _the office of General Counsel of Berry Contracting, Inc. The person appointed General Counsel may be also d

449 -2- generally perform the duties of Corporate Attorney under the direction of the President~ Executive Vice President and the Board of Directors~ The ·~eneral Counsel shall be a licensed attorney at law and a person schooled and knowledgeab1e in general corporatlo~ ia~ and other attivlties in which the company engages. -if the General Counsel is also na~ed Vice President, he shall perfqr~ .. ~4Fh executive duties as pertains to the office of Vjc~•PrD~i~,rit' and as be assigned and being in addition to that of'. Girier~r:·counsel. .~ .. ~

·VACANCIES: !f the Rff1~~ of any director or any officer becomes vacant by reaspn"af·d~?th, resignation, retirement, disqualification or removal from office or otherwise, the Directors then fn office, although.less than a quorum may, by a majority vote, choose a-sµccessor or successors who shall hold such office for th~ unexpired term of such officer orofficers and until th~ir successors be nominated and elected. •• : ~ I • •

XV.I ........ ... ,• (As Arnen~ed) .., r DUTIES DELEGATED: In tR~.case of the absence of any officer of the Company, th~:ao~rd of Directors or the President may delegate for temporary pyrposes the powers and duties of such officer to any other officer· or to any other Director.

I, R. W. Black, being Secretary of Berry Contracting, Inc. do certify that the foregoing amendments to the Bylaws of Berry Contracting, Inc. were duly, lawfully and legally adopted at an annual meeting of the Board of Directors held pursuant to the Bylaws on the 11th day of August, 1981. WITNESS my hand and the seal of the corporation .

450 -3- AMENDMENT TO THE BY-LAWS BERRY CONTRACTING, INC.

BE IT RESOLVED that the By-Laws of Berry Contracting, Inc. be amended as follows: •

The Board of Directors shall consist of not less than two directors.

Marvin L. Berry, President and Chairman of Shareholders Meeting

451 EXHIBIT C

452 P.O. Box 4858 1414 Valero Way Corpus Christi, Texas GP, Inc. 78469-4858 Bus: (361) 693-2100

Sean Strawbridge, Director Port Of Corpus Christ 400 Harbor Drive Corpus Christi, TX 7840 I

After immense consideration, the principals at Berry G.P. have decided to open two strategic properties to the marketplace. The property's synergy directly enhances one another and will be packaged as one. This asset's development would greatly benefit the port and the immediate properties contiguous, thus Berry G.P. would like to offer this to the Port as a first option. The Port of Corpus Christi will be responsible for the offer, based on knowledge of future growth and economic strategy. Please be respectful in timing of response, as this divestment will be presented for open offers. Attached you will fin s and legal descriptions for both tracts. Thank you very much.

obert Rickett Berry, G.P. 361-693-2841 409-771-1267 RickettR@Bayltd.com

453 EXHIBIT D

454 CERTIFICATE OF CORPORATE RESOLUTIONS OF BERRY GP, INC

I, M. G. Berry, Secretary of BERRY GP, INC, a Texas corporation (the "Corporation"), do hereby certify as follows:

1. I am the duly elected and qualified Secretary of the Corporation and the custodian of the Corporation's records.

2. Set forth below is a true and correct extract from the records of the Corporation showing resolutions duly adopted either: (a) at a meeting of its Board of Directors duly called and held, at which meeting a quorum was present and acting throughout, or (b) by unanimous written consent of the Board of Directors of the Corporation, which resolutions have not in any way been amended or modified and are in full force and effect:

RESOLVED, that the President, any Vice President, or Secretary of the Corporation be and is hereby authorized and directed to obtain a loan in the amount of$20,000,000.00 from FROST BANK ("Lender"), upon such terms and conditions as the said officer shall in his or her sole discretion deem necessary or advisable; to execute and deliver on behalf of the Corporation all promissory notes, deeds of trust, security instruments, documents, certificates and agreements (collectively, the "Loan Documents") required by Lender, and to pledge as security for the loan such assets of the Corporation as such officer deems necessary or advisable; and to do any and all things in connection with such loan or any renewal, extension or rearrangement thereof that such officer deems necessary or advisable and in the best interests of the Corporation.

FURTHER RESOLVED, that the President, any Vice President, or the Secretary of the Corporation be and hereby is authorized and empowered on behalf of the Company from time to time to execute, acknowledge and deliver any interest rate swap agreement, interest rate exchange agreement, currency exchange agreement, foreign exchange agreement, interest rate and currency exchange agreement, forward rate agreement, rate floor agreement, interest rate protection agreement, interest rate cap agreement, rate collar agreement, any option agreement respecting the foregoing, International Swaps and Derivatives Association, Inc. (ISDA) Master Agreement, or any similar agreement or arrangement and any schedule, confirmation, exhibit, document or instrument evidencing any interest in a transaction covered by any such agreement as the same may be modified, supplemented, amended or revised and in effect from time to time;

FURTHER RESOLVED, that all acts of the President, any Vice President, or the Secretary of the Corporation authorized and directed herein, including the execution and delivery of the Loan Documents and all other documents referenced herein relating to the loan herein referenced, are reasonably expected to benefit, directly or indirectly,

Corporate Resolutions Rev. June 2012 G:\Forms\Attyfrm\Resolution - Corp Res.Docx

455 the Corporation;

FURTHER RESOLVED, that the officers of the Corporation are hereby severally authorized to (a) sign, execute, certify to, verify, acknowledge, deliver, accept, file and record any and all instruments and documents, and (b) take, or cause to be taken, any and all such action, in the name and on behalf of the Corporation or otherwise, as in any such officer's judgment is necessary, desirable or appropriate in order to consummate the transactions contemplated by or otherwise to effect the purposes of the foregoing resolutions;

FURTHER RESOLVED, that all actions heretofore taken by the directors or the officers of the Corporation, and all things done by their authority, in connection with the transaction described herein, be and the same are hereby ratified, approved and adopted as the acts of the Corporation;

FURTHER RESOLVED, that said officers are authorized and empowered to perform all acts and execute and deliver all instruments, documents and agreements required by Lender to carry out the purposes of these resolutions;

3. The following are duly elected, qualified and serving officers of the Corporation, and that the signature set out opposite the name of each officer is the genuine signature of such person, to-wit:

4. (a) all franchise and other taxes required to maintain the Corporation's corporate existence have been paid when due and that no such taxes are delinquent; (b) no proceedings are pending for the forfeiture of the Corporation's Certificate of Incorporation or the Corporation's dissolution, voluntary or involuntary; (c) the Corporation is duly qualified to do business in the State of Texas and any other states in which it is doing business, and is in good standing in such states; (d) there is no provi- sion of the Articles of Incorporation or Bylaws of the Corporation limiting the power of the Board of Directors to pass the resolutions set out above, and that such resolutions are in conformity with the provisions of said Articles of Incorporation and Bylaws.

IN WITNESS WHEREOF, I have hereto set my hand this 29th day of June, 2023.

Corporate Resolutions Rev. Junc2012 2 G:\Forms\Attyfrm\Rcsolution - Corp Res.Docx

456 DocuSign Envelope ID: 1E884C27-F225-4399-946F-E288C4CB3586

DECLARATION OF LAWRENCE BERRY

My name is Allen Lawrence Berry. I am of sound mind and capable of making this

declaration. I have read the foregoing First Amended Verified Petition and Application for

Temporary Injunction and have personal knowledge of the facts and statements contained therein.

I declare under penalty of perjury that the facts and statements contained therein are within my

personal knowledge and true and correct.

Declarant states nothing further.

• _ Executed m Houston ___ _ _ _ _ _ _ _ _ _ on the l4th day ofM arch, 2024 . Texas

457 EXHIBIT 10

458 1

1 REPORTER'S RECORD TRIAL COURT CAUSE NO. 2024DCV-0045-C 2

3 LAWRENCE BERRY, ) Individually and ) IN THE DISTRICT COURT 4 Derivatively on behalf ) Of BERRY GP, INC. ) 5 ) Plaintiff ) 6 ) BERRY GP, INC., ) 7 Normal Plaintiff ) ) 8 VS. ) NUECES COUNTY, TEXAS ) 9 MARTY BERRY, ROBERT ) RICKETT; ) 10 ROBERT POWERS; ) MICHAEL HUMMELL; ) 11 BERRY GP, INC.; BERRY ) OPERATING COMPANY, LLC; ) 12 and BERRY CONTRACTING, ) LOP ) 94TH JUDICIAL DISTRICT 13

16 ------------------------------

17 JUDGE'S RULING

18 ------------------------------

20 On the 25th day of March, 2024, the following

21 proceedings came on to be heard in the above-entitled

22 and numbered cause before the Honorable BOBBY GALVAN,

23 Judge presiding, held in Corpus Christi, Nueces, Texas;

459 2

2 MR. BARRETT REASONER 3 SBOT NO. 16441980 MR. MICHAEL ABSMEIER 4 SBOT NO. 24050195 MR. BRUCE BALDTREE 5 SBOT NO. 24116064 Gibbs & Bruns, LLP 6 Houston, Texas Telephone: (713) 650-8805 7 AND 8 MR. BUTCH BOYD 9 SBOT NO. 00783694 Butch Boyd Law Firm 10 2905 Sackett Street Houston, Texas 77002 11 Telephone: (713) 589-8744

12 AND

13 MR. DOUGLAS A. ALLISON SBOT NO. 01083500 14 Law Office of Douglas Allison 403 North Tancahua Street 15 Corpus Christi, Texas 78401 Telephone: (361) 888-6002 16 AND 17 MR. VAN HUSEMAN 18 Huseman Law Firm 615 North Upper Broadway, Suite 2000 19 Corpus Christi, Texas 78401 Telephone: (361) 883-3563 20 AND 21 MS. GABBIE S. CANALES 22 SBOT NO. 24012376 Law Office of Gabbie Canales 23 5262 South Staples, Suite 100 Corpus Christi, Texas 78411 24 Telephone: (361) 887-4700

460 3

3 THE COURT: Okay. All right. So, the

4 Court has heard evidence over a three-day period.

5 Temporary injunction's requested. Bylaws provide for

6 the removal and appointment of a Board of Director, so

7 I'm not gonna interfere with that.

8 With regards to the second issue the Court

9 will partially grant for any sale of real property there

10 must be 48 hours notice to all of the Board members;

11 whoever they may be at the time. Board members may

12 participate by phone in the vote if they choose. This

13 only applies to real property. Granted and rendered.

14 (End of requested portion.)

461 4

4 I, ALICIA BROOKS, Deputy Official Court Reporter in

5 and for the District Courts of Nueces County, State of

6 Texas, do hereby certify that the above and foregoing

7 contains a true and correct transcription of all

8 portions of evidence and other proceedings requested in

9 writing by counsel for the parties to be included in

10 this volume of the Reporter's Record, in the

11 above-styled and numbered cause, all of which occurred

12 in open court or in chambers and were reported by me.

13 I further certify that the total cost for the

14 preparation of this Reporter's Record is $12 and was

15 paid by Gibbs & Bruns, LLP.

16 WITNESS MY OFFICIAL HAND this the 26th day of

17 March, 2024.

19 /S/Alicia Brooks ALICIA BROOKS, Texas CSR #8726 20 Expiration Date: 03/31/2025 Deputy Official Court Reporter 21 Nueces County, Texas Corpus Christi, Texas 22 361-888-0751

462 EXHIBIT 11

463 464 EXHIBIT 12

465 466 EXHIBIT 13

467 468 EXHIBIT 14

469 From: "Albert Theodore Powers" To: "Bill Schoppe" , "Scott Baker" <1952scottrbaker@gmail.com>, "Robert Blaney" Cc: "Lawrence Berry" , "Tonja Fulghum" , "Boyd Butch" , "Dennis Berry" , "Berry Marvin (Marty)" Subject: Diligence Documents Date: Thu, 23 Apr 2020 23:56:08 +0000 Importance: Normal Attachments: TRANSFER_OF_AXIS_INTERESTS_FROM_BERRY_GP_TO_REDFISH_BAY_TERMI NAL,_INC_(042120).pdf; TRANSFER_OF_AXIS_INTERESTS_FROM_REDFISH_BAY_TERMINAL,_INC_TO_L SPH_(042120).pdf; TRANSFER_OF_AXIS_INTERESTS_FROM_LSPH_TO_LSPE_(042120).pdf; TRANSFER_OF_INTERESTS_IN_LSP_TEXAS,_MJP,_RFB,_HIP,_AND_AXIS_FROM_ LSPH_TO_LSPE_(042120).pdf; TRANSFER_OF_LSPE_INTERESTS_FROM_LSPH_TO_LSPV_(042220).pdf

Good Evening,

I attach the following additional documents:

1. Transfer of Interests in Axis Midstream Holdings, LLC from Berry GP, Inc, to Redfish Bay Terminal, Inc

2. Transfer of Interests in Axis Midstream Holdings LLC from Redfish Bay Terminal, Inc to Lone Star Ports Holdings LLC

3. Transfer of Interests in Axis Midstream Holdings LLC from Lone Star Ports Holdings LLC to Lone Star Ports Enterprises, LLC

4. Transfer of Interests in Lone Star Ports, LLC (Texas), Midway Junction Properties, LLC, Redfish Bay Properties, LLC. Harbor Island Properties, LLC, and Axis Midstream Holdings, LLC from Lone Star Ports Holdings, LLC to LOne Star Ports Enterprises, LLC

5. Transfer of Interests in Lone Star Ports Enterprises, LLC from Lone Star Ports Holdings, LLC to Lone Star Ports Ventures LLC

If you have any questions, please give me a call.

Ted

-- Albert Theodore Powers Allied Pacific Group Email: atpowers@allied-pacific-group.com

New York Telephone: +(1) (212) 899-9889 Mobile: +(1) (212) 899-9888 Hong Kong 470 Telephone: +(852) 8108-8380 Mobile: +(852) 9099-3909

471 TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT THIS TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT is made and entered into as of this 21st day of April, 2020 (the "Effective Date"), by and between Berry GP, Inc. a Texas corporation (the "Transferor"), and Redfish Bay Terminal, Inc, a Texas corporation (the "Transferee"). RECITALS: WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Transferee; and WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Axis Midstream Holdings, LLC, a Texas limited liability company ("Axis"); and WHEREAS, Transferor is the sole Member and Manager of Axis; and WHEREAS, Transferor wishes to transfer to Transferee all equity and operating interests in Axis; and WHEREAS, Transferee wishes to acquire from Transferor all equity and operating interests in Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferor wishes to cease being the sole Member and Manager of Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferee wishes to commence being the sole Member and Manager of Axis; NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Transferor and the Transferee hereby agree as follows:

1. Transfer of Operating Interests. Effective as of the Effective Date, Transferor hereby irrevocably transfer to Transferee all equity and operating interests in Axis, free and clear of all liens, charges, pledges, options, mortgages, deeds of trust, hypothecations, encumbrances, security interests, claims, limitations, restrictions, or other rights or interests of any kind (including any restrictions on the right to vote, sell, or otherwise dispose of such right or interest). After such transfer, Transferor shall have no further direct interest in the equity and operating interests in Axis and Transferee shall own One Hundred Percent (100%) of all equity and operating interests in Axis.

2. Acceptance of Operating Interests. Effective as of the Effective Date, Transferee hereby accepts the transfer from Transferor of all equity and operating interests in Axis.

472 After such transfer, Transferee shall own One Hundred Percent (100%) of all equity and operating interests in Axis.

3. Cessation By Transferor as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferor shall cease to be the sole Member and Manager of Axis.

4. Commencement By Transferee as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferee shall commence being the sole Member and Manager of Axis.

IN WITNESS WHEREOF, the signatories to this Transfer of Interests and Change of Managers Agreement, intending to be bound, have executed this Agreement as of the date first written above.

For and on behalf of BERRY GP, INC. a Texas corporation

By Z Name:

For and on behalf of REDFISH BAY TERMINAL, INC. a Texas corporation

473 TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT THIS TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT is made and entered into as of this 21' day of April, 2020 (the "Effective Date"), by and between Redfish Bay Terminal, Inc. a Texas corporation (the "Transferor"), and Lone Star Ports Holdings, LLC, a Delaware limited liability company (the "Transferee"). RECITALS: WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Transferee; and WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Axis Midstream Holdings, LLC, a Texas limited liability company ("Axis"); and WHEREAS, Transferor is the sole Member and Manager of Axis; and WHEREAS, Transferor wishes to transfer to Transferee all equity and operating interests in Axis; and WHEREAS, Transferee wishes to acquire from Transferor all equity and operating interests in Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferor wishes to cease being the sole Member and Manager of Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferee wishes to commence being the sole Member and Manager of Axis; NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Transferor and the Transferee hereby agree as follows:

1. Transfer of Operating Interests. Effective as of the Effective Date, Transferor hereby irrevocably transfer to Transferee all equity and operating interests in Axis, free and clear of all liens, charges, pledges, options, mortgages, deeds of trust, hypothecations, encumbrances, security interests, claims, limitations, restrictions, or other rights or interests of any kind (including any restrictions on the right to vote, sell, or otherwise dispose of such right or interest). After such transfer, Transferor shall have no further direct interest in the equity and operating interests in Axis and Transferee shall own One Hundred Percent (100%) of all equity and operating interests in Axis.

2. Acceptance of Operating Interests. Effective as of the Effective Date, Transferee hereby accepts the transfer from Transferor of all equity and operating interests in Axis.

474 After such transfer, Transferee shall own One Hundred Percent (100%) of all equity and operating interests in Axis.

3. Cessation By Transferor as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferor shall cease to be the sole Member and Manager of Axis.

4. Commencement By Transferee as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferee shall commence being the sole Member and Manager of Axis.

IN WITNESS WHEREOF, the signatories to this Transfer of Interests and Change of Managers Agreement, intending to be bound, have executed this Agreement as of the date first written above.

For and on behalf of REDFISH BAY TERMINAL, INC. a Texas corporation

By ,a . Name:

For and on behalf of LONE STAR PORTS HOLDINGS, LLC, a Delaware limited liability company

475 TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT THIS TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT is made and entered into as of this 21' day of April, 2020 (the "Effective Date"), by and between Lone Star Ports Holdings, LLC, a Delaware limited liability company (the "Transferor"), and Lone Star Ports Enterprises, LLC, a Delaware limited liability company (the "Transferee"). RECITALS: WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Transferee; and WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Axis Midstream Holdings, LLC, a Texas limited liability company ("Axis"); and WHEREAS, Transferor is the sole Member and Manager of Axis; and WHEREAS, Transferor wishes to transfer to Transferee all equity and operating interests in Axis; and WHEREAS, Transferee wishes to acquire from Transferor all equity and operating interests in Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferor wishes to cease being the sole Member and Manager of Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferee wishes to commence being the sole Member and Manager of Axis; NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Transferor and the Transferee hereby agree as follows:

1. Transfer of Operating Interests. Effective as of the Effective Date, Transferor hereby irrevocably transfer to Transferee all equity and operating interests in Axis, free and clear of all liens, charges, pledges, options, mortgages, deeds of trust, hypothecations, encumbrances, security interests, claims, limitations, restrictions, or other rights or interests of any kind (including any restrictions on the right to vote, sell, or otherwise dispose of such right or interest). After such transfer, Transferor shall have no further direct interest in the equity and operating interests in Axis and Transferee shall own One Hundred Percent (100%) of all equity and operating interests in Axis.

2. Acceptance of Operating Interests. Effective as of the Effective Date, Transferee hereby accepts the transfer from Transferor of all equity and operating interests in Axis.

476 After such transfer, Transferee shall own One Hundred Percent (100%) of all equity and operating interests in Axis.

3. Cessation By Transferor as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferor shall cease to be the sole Member and Manager of Axis.

4. Commencement By Transferee as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in Axis, Transferee shall commence being the sole Member and Manager of Axis.

IN WITNESS WHEREOF, the signatories to this Transfer of Interests and Change of Managers Agreement, intending to be bound, have executed this Agreement as of the date first written above.

For and on behalf of LONE STAR PORTS ENTERPRISES, LLC a Delaware limited liability company

By Name:

For and on behalf of LONE STAR PORTS HOLDINGS, LLC, a Delaware limited liability company

477 TRANSFER OF INTERESTS AND CHANGE OF MANAGERS AGREEMENT THIS TRANSFER OF INTERESTS AND CHANGE OF MANAGERS AGREEMENT is made and entered into as of this 21st day of April, 2020 (the "Effective Date"), by and between Lone Star Ports Holdings, LLC, a Delaware limited liability company (the "Transferor"), and Lone Star Ports Enterprises, LLC, a Delaware limited liability company (the "Transferee"). RECITALS: WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Transferee; and WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in each of (a) Lone Star Ports, LLC, a Texas limited liability company ("LSP Texas"), (b) Midway Junction Properties, LLC, a Delaware limited liability company ("MJP"); (c) Redfish Bay Properties, LLC, a Delaware limited liability company ("RBP"), (d) Harbor Island Properties, LLC, a Delaware limited liability company ("HIP"), and (e) Axis Midstream Holdings, LLC, a Texas limited liability company ("Axis"); and WHEREAS, Transferor is the sole Member and Manager of each of LSP Texas, MP, RBP, HIP, and Axis; and WHEREAS, Transferor wishes to transfer to Transferee all equity and operating interests in each of LSP Texas, MP, RBP, HIP, and Axis; and WHEREAS, Transferee wishes to acquire from Transferor all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis, Transferor wishes to cease being the sole Member and Manager of LSP Texas, MJP, RBP, HIP, and Axis; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis, Transferee wishes to commence being the sole Member and Manager of LSP Texas, MJP, RBP, HIP, and Axis; NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Transferor and the Transferee hereby agree as follows:

1. Transfer of Operating Interests. Effective as of the Effective Date, Transferor hereby irrevocably transfer to Transferee all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis, in each case free and clear of all liens, charges, pledges, options, mortgages, deeds of trust, hypothecations, encumbrances, security interests, claims, limitations, restrictions, or other rights or interests of any kind (including any restrictions on the right to vote, sell, or otherwise dispose of such right or interest). After

478 such transfer, Transferor shall have no further direct interest in the equity and operating interests in any of LSP Texas, MJP, RBP, HIP, or Axis and Transferee shall own One Hundred Percent (100%) of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis.

2. Acceptance of Operating Interests. Effective as of the Effective Date, Transferee hereby accepts the transfer from Transferor of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis. After such transfer, Transferee shall own One Hundred Percent (100%) of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis.

3. Cessation By Transferor as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis, Transferor shall cease to be the sole Member and Manager of each of LSP Texas, MJP, RBP, HIP, and Axis.

4. Commencement By Transferee as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in each of LSP Texas, MJP, RBP, HIP, and Axis, Transferee shall commence being the sole Member and Manager of LSP Texas, MJP, • RBP, HIP, and Axis.

IN WITNESS WHEREOF, the signatories to this Transfer of Interests and Change of Managers Agreement, intending to be bound, have executed this Agreement as of the date first written above.

For and on behalf of LONE STAR PORTS ENTERPRISES, LLC, a Delaware limited liability company:

By a -Z Name:

479 For and on behalf of LONE STAR PORTS VENTURES, LLC, a Delaware limited liability company

By ( Name:

480 TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT THIS TRANSFER OF INTERESTS AND CHANGE OF MANAGER AGREEMENT is made and entered into as of this 21st day of April, 2020 (the "Effective Date"), by and between Lone Star Ports Holdings, LLC, a Delaware limited liability company (the "Transferor"), and Lone Star Ports Ventures, LLC, a Delaware limited liability company (the "Transferee"). RECITALS: WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Transferee; and WHEREAS, Transferor owns One Hundred Percent (100%) of all equity and operating interests in Lone Star Ports Enterprises, LLC, a Texas limited liability company ("LSPE"); and WHEREAS, Transferor is the sole Member and Manager of LSPE; and WHEREAS, Transferor wishes to transfer to Transferee all equity and operating interests in LSPE; and WHEREAS, Transferee wishes to acquire from Transferor all equity and operating interests in LSPE; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in LSPE, Transferor wishes to cease being the sole Member and Manager of LSPE; and WHEREAS, simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in LSPE, Transferee wishes to commence being the sole Member and Manager of LSPE; NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Transferor and the Transferee hereby agree as follows:

1. Transfer of Operating Interests. Effective as of the Effective Date, Transferor hereby irrevocably transfer to Transferee all equity and operating interests in LSPE, free and clear of all liens, charges, pledges, options, mortgages, deeds of trust, hypothecations, encumbrances, security interests, claims, limitations, restrictions, or other rights or interests of any kind (including any restrictions on the right to vote, sell, or otherwise dispose of such right or interest). After such transfer, Transferor shall have no further direct interest in the equity and operating interests in LSPE and Transferee shall own One Hundred Percent (100%) of all equity and operating interests in LSPE.

2. Acceptance of Operating Interests. Effective as of the Effective Date, Transferee hereby accepts the transfer from Transferor of all equity and operating interests in LSPE.

481 After such transfer, Transferee shall own One Hundred Percent (100%) of all equity and operating interests in LSPE.

3. Cessation By Transferor as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in LSPE, Transferor shall cease to be the sole Member and Manager of LSPE.

4. Commencement By Transferee as Member and Manager. Effective as of the Effective Date and simultaneously with the transfer by Transferor to Transferee of all equity and operating interests in LSPE, Transferee shall commence being the sole Member and Manager of LSPE.

IN WITNESS WHEREOF, the signatories to this Transfer of Interests and Change of Managers Agreement, intending to be bound, have executed this Agreement as of the date first written above.

For and on behalf of LONE STAR PORTS VENTURES, LLC a Delaware limited liability company

By a-2 Name:

For and on behalf of LONE STAR PORTS HOLDINGS, LLC, a Delaware limited liability company

By 24 Name:

482 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Rosa Brennan on behalf of Barrett Reasoner Bar No. 16641980 rbrennan@gibbsbruns.com Envelope ID: 94875127 Filing Code Description: Answer/Response Filing Description: Exhibits to Defendants Response to Motion to Remand, Dismiss, or Transfer Venue Status as of 12/3/2024 2:50 PM CST

Barrett H.Reasoner breasoner@gibbsbruns.com 12/3/2024 11:55:08 AM SENT

Michael R.Absmeier mabsmeier@gibbsbruns.com 12/3/2024 11:55:08 AM SENT

Rosa Brennan rbrennan@gibbsbruns.com 12/3/2024 11:55:08 AM SENT

Douglas Allison 1083500 doug@dallisonlaw.com 12/3/2024 11:55:08 AM SENT

Alistair Dawson 5596100 adawson@beckredden.com 12/3/2024 11:55:08 AM SENT

Michael Hummell 10271100 hummellm@bayltd.com 12/3/2024 11:55:08 AM SENT

Michael McClellan 24109525 jmcclellan@beckredden.com 12/3/2024 11:55:08 AM SENT

Sydney Ballesteros sballesteros@gibbsbruns.com 12/3/2024 11:55:08 AM SENT

Madeline Gay mgay@beckredden.com 12/3/2024 11:55:08 AM SENT

Business Court 11A BCDivision11A@txcourts.gov 12/3/2024 11:55:08 AM SENT

Roxanne Graham rgraham@gibbsbruns.com 12/3/2024 11:55:08 AM SENT

Christina Pena cpena@gibbsbruns.com 12/3/2024 11:55:08 AM SENT

Kim Brunkenhoefer kim@dallisonlaw.com 12/3/2024 11:55:08 AM SENT

Susan Gonzales susan@dallisonlaw.com 12/3/2024 11:55:08 AM SENT

Bruce Baldree bbaldree@gibbsbruns.com 12/3/2024 11:55:08 AM SENT 0123435ÿ78ÿ

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ÿ 01ÿ EXHIBIT 16

469 DEFENDANT LAWRENCE BERRY’S DEMONSTRATIVE HANDOUT Lawrence’s Petition in the Nueces County Lawsuit makes clear that it relates to management and

finances of Berry GP, Inc.; Berry Operating Company LLC; and Berry Contracting LP:

See Ex. 4 to Lawrence’s Response.

1 DEFENDANT LAWRENCE BERRY’S DEMONSTRATIVE HANDOUT Lawrence’s Nueces County Petition specifies the entities at issue in the Nueces County Lawsuit:

See id.

Exhibit A to Lawrence’s Nueces County Petition confirms this scope:

2 LDMA Limited Partnership General Partner Limited Partners – 97% Becon, Inc. • Dennis – 1/3 • Marty, Dennis, & Lawrence – 19% each • Marty – 1/3 • Marty, Dennis, & Lawrence Trusts – 11 2/3% each • Lawrence – 1/3 • Lone Star Equipment – 5%

Bay, Inc. 1% ownership General Partner

Becon Holdings, Inc. (Nevada Corp.) 99% ownership Limited Partner

Berry Contracting LP (Texas) (dba Bay Ltd.) DEFENDANT LAWRENCE BERRY’S DEMONSTRATIVE HANDOUT The Berry Entities at issue in the Nueces County Lawsuit are not parties to the Harris County

Lawsuit:

See Pet.

3 DEFENDANT LAWRENCE BERRY’S DEMONSTRATIVE HANDOUT Plaintiffs in the Harris County Lawsuit do not seek relief related to control or finances of the Berry

Entities. Instead, they bring a breach of contract action pertaining to Agreements unrelated to the

Berry Entities or Nueces County Lawsuit:

4 DEFENDANT LAWRENCE BERRY’S DEMONSTRATIVE HANDOUT Plaintiffs in the Harris County Lawsuit also seek declaratory relief to confirm their alleged

ownership in the Lone Star Ports Project, which is also unrelated to the Nueces County Lawsuit:

5 DEFENDANT LAWRENCE BERRY’S DEMONSTRATIVE HANDOUT Plaintiffs’ Petition confirms that the Harris County Lawsuit does not include disputes about control

over the Berry Entities, but rather ownership and control of separate Project entities:

6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Susan Gonzales on behalf of Douglas Allison Bar No. 1083500 susan@dallisonlaw.com Envelope ID: 97255570 Filing Code Description: Appendix Filing Description: Relators' Appendix Volume 4 of 5 Status as of 2/11/2025 4:47 PM CST

Douglas AAllison doug@dallisonlaw.com 2/11/2025 3:55:15 PM SENT

Vanessa AGilmore vg@robertsmarkland.com 2/11/2025 3:55:15 PM SENT

Kim Brunkenhoefer kim@dallisonlaw.com 2/11/2025 3:55:15 PM SENT

Susan Gonzales susan@dallisonlaw.com 2/11/2025 3:55:15 PM SENT

Rosa Brennan rbrennan@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Michelle Bultman MBultman@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Roxanne Graham rgraham@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Christina Pena cpena@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Associated Case Party: AllenLawrenceBerry

Michael Absmeier 24050195 mabsmeier@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Barrett Reasoner 16641980 breasoner@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Sydney Ballesteros sballesteros@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Bruce Baldree bbaldree@gibbsbruns.com 2/11/2025 3:55:15 PM SENT

Associated Case Party: AlbertTheodorePowers

Name BarNumber Email TimestampSubmitted Status Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Susan Gonzales on behalf of Douglas Allison Bar No. 1083500 susan@dallisonlaw.com Envelope ID: 97255570 Filing Code Description: Appendix Filing Description: Relators' Appendix Volume 4 of 5 Status as of 2/11/2025 4:47 PM CST

Alistair Dawson 5596100 adawson@beckredden.com 2/11/2025 3:55:15 PM SENT

Associated Case Party: Allied Ports, LLC

Roland Garcia 7645250 garciar@gtlaw.com 2/11/2025 3:55:15 PM SENT