NCG020858_Name-Owner Change Supporting Info_12/9/2019

EXECUTION VERSION
LIMITED LIABILITY COMPANY AGREEMENT
OF
DAURITY SPRINGS QUARRY, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT OF DAURITY SPRINGS
QUARRY, LLC (this "Agreement") is made as of August 15, 2018 (the "Effective Date"), by
and between TPS CONSTRUCTION MATERIALS, LLC, a Delaware limited liability company
("TPS" or a "Member"), and LITTLE TEXAS FARMS, LLC, a North Carolina limited liability
company ("Branch" or a "Member"), as the sole Members. Certain initially capitalized terms
used but not otherwise defined in this Agreement are defined in Exhibit B hereto.
Recitals
A. DAURITY SPRINGS QUARRY, LLC (the "Company") was established as a
limited liability company under the Delaware Limited Liability Company Act, 6 Del. C. Section
18-101, et sec., as amended from time to time (the "Delaware Act" or the "Act"), pursuant to
the Certificate of Formation (the "Certificate") of the Company filed with the Delaware
Secretary of State on August 7, 2018.
B. The Members desire to enter into this Agreement as the operating agreement of
the Company.
Agreements
NOW THEREFORE, the Members hereby agree as follows:
Formation, Schedule A.
(a) Formation. The Company was formed as a limited liability company under and
pursuant to the provisions of the Delaware Act. The Members hereby agree that the rights,
duties and liabilities of the Members shall be as provided in the Delaware Act except as
otherwise provided herein. Percival C. Olsen is hereby designated as an "authorized person"
within the meaning of the Delaware Act, and such "authorized person" has executed, delivered
and filed the Certificate with the Secretary of State of the State of Delaware. The Members
hereby ratify, confirm and approve all actions heretofore taken by Percival C. Olsen by or on
behalf of the Company in connection with the organization of the Company, in all respects as the
act and deed of the Company. Upon the filing of the Certificate, his power as an "authorized
person" ceased, and TPS thereupon became the designated "authorized person" and shall
continue as the designated "authorized person" within the meaning of the Delaware Act.
(b) Agreement. The Members hereby adopt this Agreement as the operating
agreement of the Company. Unless a provision of the Delaware Act expressly provides that the
Delaware Act supersedes any provision contained in this Agreement, the terms and conditions of
this Agreement, as the same may be amended, shall govern.
(c) Schedule A. The name, mailing address, initial Capital Contributions, and
Membership Interest of each Member shall be listed on Schedule A attached hereto. The
Manager (as defined herein) shall update Schedule A from time to time as necessary to
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accurately reflect the information therein. Any amendment or revision to Schedule A made in
accordance with this Agreement shall not be deemed an amendment to this Agreement. Any
reference in this Agreement to Schedule A shall be deemed to be a reference to Schedule A as
amended and in effect from time to time.
2. Name. The name of the Company is "DAURITY SPRINGS QUARRY, LLC."
The business of the Company may be conducted under any other name designated by the
Manager. The Manager may cause the Company to be qualified, formed or registered under
assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company
transacts business.
3. Purpose. The purpose of the Company is to (i) operate an aggregate quarry on the
Property, and (ii) undertake and conduct such other lawful business for which limited liability
companies may be organized under the Act. The Company (x) shall have and exercise all
powers necessary, convenient or incidental to accomplish its purposes, and (y) shall have and
exercise all of the powers and rights conferred upon limited liability companies formed pursuant
to the Act.
4. Term. The term of the Company commenced on the date the Certificate was filed
in the office of the Secretary of State of the State of Delaware and shall continue until dissolved
in accordance with the provisions of this Agreement.
5. Principal Office; Rc istered Office; -Registered Agent.
(a) The principal office of the Company is located on the Property, or such other
place as may from time to time be determined by the Manager. The Manager shall give prompt
notice of any such change to the Members.
(b) The registered office of the Company in the State of Delaware shall be the office
of the initial registered agent named in the Certificate or such other office (which need not be a
place of business of the Company) as the Manager may designate from time to time in the
manner provided by the Act and applicable law. The registered agent for service of process on
the Company in the State of Delaware shall be the initial registered agent named in the
Certificate or such other Person or Persons as the Manager may designate from time to time in
the manner provided by the Delaware Act and applicable law.
6. Units. The Membership Interests of the Members shall be represented by issued
and outstanding Units.
7. Members.
(a) TPS and Branch are the only current Members of the Company. New Members
may be added to the Company only upon the written approval of the Manager and all of the
Members (other than pursuant to Permitted Transfers).
(a) No Member, in its capacity as such, has the authority or power to act for or on
behalf of the Company in any manner or way, to bind the Company, or do any act that would be
(or could be construed as) binding on the Company, in any manner or way, or to make any
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expenditures on behalf of the Company, unless such specific authority has been expressly
granted to and not revoked from such Member by the Manager, and the Members hereby consent
to the exercise by the Manager of the powers conferred on it by law and this Agreement.
(b) No Member shall have (and each Member waives) the right to seek or obtain
partition by court decree or operation of law of any the Company property, or the right to own or
use particular or individual assets of the Company.
(c) A Member may not resign from the Company without the written consent of the
Manager.
(d) Books of account for the Company, together with a copy of this Agreement and
the Certificate shall be maintained at the principal place of business of the Company and shall be
open to inspection and examination at reasonable times by each Member and its duly authorized
representatives for any purpose reasonably related to such Member's interest in the Company.
(e) Competing Activities, Affiliate Transactions.
(i) Generally; Notwithstanding any duty otherwise existing at law or in
equity (but subject to the provisions of Section 7(e)(ii)), each Member understands and
acknowledges that Affiliates of the Members may be interested, directly or indirectly, in various
other businesses and undertakings not included in the Company and such businesses and
undertakings may compete, either directly or indirectly, with the conduct of the business of the
Company. Each of the Members hereby agree that (1) the creation of the Company and the
assumption by each of the Members of its duties hereunder shall be without prejudice to its rights
(or the rights of its Affiliates) to have such other interests and activities and to receive and enjoy
profits or compensation therefrom; (2) each of the Members waives any rights it might otherwise
have to share or participate in such other interests or activities of the other Members or their
Affiliates; (3) except as set forth in Section 7(e)(ii), each of the Members consents to the pursuit
of other ventures by the other Members, even if such other ventures are competitive with the
business of the Company; (4) except as set forth in Section 7(e)(ii), none of the Members or
Affiliates of any Member shall be obligated to present any particular investment opportunity to
the Company, even if such opportunity is of a character which, if presented to the Company,
could be taken by the Company; and (5) except as set forth in Section 7(e)(ii), each of the
Members and each Affiliate of the Members shall have the right to take for its own account or to
recommend to others, any such particular investment opportunity.
(ii) Radius Restrictions.
(1) Radius Restriction — Competitive Business, No Member, nor any
Affiliate of any Member, shall be permitted to own, manage, or operate (or authorize any Person
to do so) any quarry, fill pit, base rock pit, or other business that sells product to customers for
use in projects located within a 25-mile -radius of the Property (a "Competing Business"). For
purposes of this Section 7(e), a "Competing Business" shall be deemed to include the direct or
indirect investment in any corporation, partnership, limited liability company or other entity that
is the direct or indirect owner of the applicable Competing Business.
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(2) Radius Restriction/Right of First Offer — Customer of the
Company. No Member, nor any Affiliate of any Member, shall be permitted to own, manage, or
operate (or authorize any Person to do so) any business that is a customer of the business
operated by the Company within a 25-mile radius of the Property (a "Restricted Opportunity");
provided that a Member may engaged in a Restricted Opportunity so long as (i) such Member
submits such Restricted Opportunity to the other Member and provides the other Member with a
right of first offer to participate in such Restricted Opportunity in accordance with Exhibit 1{, and
(ii) the Company is provided with a right of first refusal to supply material to the Restricted
Opportunity at the then prevailing market rate.
(iii) Affiliate Transactions.
The Manager may cause the Company to (x) retain the services of a professional or
nonprofessional firm or entity controlled by or Affiliated with a Member to render services or
supply goods to the Company, and may pay reasonable compensation for such services or goods,
(y) enter into transactions with or otherwise deal with an entity controlled by or Affiliated with a
Member, or (z) borrow money from an Affiliate of the Company or a Member on such terms as
determined by the Manager; provided, However, that (1) all such transactions under clause x ,
� and/or Lz) shall be on an arm's-length basis and at market rates (or rates more favorable to the
Company than market rates).
8. Manager. The Members, acting unanimously, may from time to time designate a
person or entity to act as the manager of the Company (the "Manager"), and may at any time
remove the Manager, with or without cause. The Members hereby appoint TPS as the Manager,
and TPS hereby accepts such appointment and joins in the execution of this Agreement to
evidence such acceptance.
(a) Except as specifically provided in this Agreement or the Delaware Act to the
contrary, the business and affairs of the Company shall be carried on and managed by the
Manager, who shall have full, exclusive, and complete discretion, power, and authority, subject
in all cases to the other provisions of this Agreement and the requirements of applicable law, to
manage, control, administer, and operate the business and affairs of the Company, to act for and
to bind the Company in all matters in connection with or relating to the business and affairs of
the Company, and to make all decisions affecting such business and affairs. No person dealing
with the Company shall be required to inquire as to the authority of the Manager to take any
action on behalf of the Company. Except for the express right, if any, to consent to or approve
certain Company matters as expressly set forth herein, the Members shall not take any part
whatsoever in, or have any control over, the business or affairs of the Company nor shall the
Members have any right or authority to act for or bind the Company. All unauthorized acts by
the Members are voidable at the option of the Manager.
(b) Without limiting the generality of the foregoing, but subject to Section 8(d), the
Manager shall have the power and authority, on behalf of the Company, to:
(i) admit new Members to the Company;
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(ii) acquire by purchase, lease, or otherwise, any real or personal property,
tangible or intangible;
(iii) construct, operate, maintain, finance, or improve, and to own, sell, convey,
assign, mortgage, or lease, any real estate and any personal property;
(iv) sell, dispose, trade, or exchange assets of the Company;
(v) enter into agreements and contracts and to give receipts, releases, and
discharges;
(vi) purchase liability and other insurance to protect the properties and
business of the Company;
(vii) borrow money for and on behalf of the Company, for any purpose that the
Manager deems to be in the best interest of the Company in its sole discretion, unsecured or
secured by any pledge of or encumbrance against assets of the Company;
(viii) prepay, in whole or in part, refinance, amend, modify, or extend any
mortgages, trust deeds or security agreements that may affect any asset of the Company and in
connection therewith to execute for and on behalf of the Company any extensions, renewals, or
modifications of such mortgages, trust deeds or security agreements;
(ix) execute any and all other instruments and documents that may be
necessary or in the opinion of the Manager desirable to carry out the intent and purpose of this
Agreement, including, but not limited to, documents whose operation and effect extend beyond
the term of the Company;
(x) make any and all expenditures that the Manager, in its sole and absolute
discretion, deems necessary or appropriate in connection with the management of the affairs of
the Company and the carrying out of its obligations and responsibilities under this Agreement,
including, without limitation, all legal, accounting, and other related expenses incurred in
connection with the organization and financing and operation of the Company;
(xi) enter into any kind of activity necessary to, in connection with, or
incidental to, the accomplishment of the purposes of the Company;
funds; and
(xii) invest and reinvest reserves in short-term instruments or money market
(xiii) keep all books of account and other records of the Company.
(c) Officers. The Manager, 'by written instrument signed by it, shall also have the
power to appoint agents to act for the Company with such titles as the person or entity making
the appointment deems appropriate and to delegate to such agents such of the powers as the
Manager may determine. The agents so appointed may include persons holdings titles such as
Chief Executive Officer, President, one or more Vice -Presidents, Treasurer, Secretary, General
Manager, and/or other officers to manage the day to day affairs of the Company (each, an
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"Officer"), and may further retain such additional Persons as the Manager deems advisable to
assist or advise in the management and operation of the Company. Unless the authority of the
agent designated as the officer in question is limited in the document appointing such officer, any
officer so appointed shall have the same authority to act for the Company as a corresponding
officer of a Delaware corporation would have in the absence of a specific delegation of authority.
(d) Major Decisions and Fundamental Decisions. Notwithstanding anything herein to
the contrary, (i) the Manager shall not take any action that is (x) a Major Decision without the
approval of a Majority of the Members, or (y) a Fundamental Decision without the unanimous
approval of the Members, and (ii) no Officer shall be authorized to take any action that is a
Major Decision or a Fundamental Decision without (x) the approval of the Manager and (y) the
requisite Member approval set forth in the foregoing clause (i).
(e) Annual Budget. The Manager of the Company shall submit an annual capital and
operations budget of the Company to the Members at least thirty (30) days prior to the beginning
of any fiscal year. Such annual budget is subject to the approval of a Majority of the Members.
9. Deadlock. In the event that the Manager and the Members fail to reach agreement
as to any action, decision or other matter requiring approval by the Members under this
Agreement (a "Deadlock"), any Member may provide written notice of such Deadlock to the
other Members (a "Deadlock Notice"). If, after using good faith efforts, the Manager and the
Members are unable to resolve such Deadlock for two consecutive meetings, or if such meetings
are not convened within ten Business Days after receipt of the Deadlock Notice (such period, the
"Resolution Period"), then, only for purposes of resolving such Deadlock, any Member may
submit the matter to a Deadlock Arbitrator for resolution.
(a) With respect to each Deadlock submitted for resolution by a Deadlock Arbitrator,
within five Business Days following the expiration of the Resolution Period, the Members shall
confer in person or by telephone to agree upon a mutually -acceptable neutral third party to serve
as the Deadlock Arbitrator. If the parties are unable to agree upon a Deadlock Arbitrator within
such five Business Day period, any Member may submit the matter to American Arbitration
Association, who shall designate as the Deadlock Arbitrator a person who (i) has at least ten
years' experience in the construction aggregate industry, and (ii) has not had any direct
relationship with either party in the preceding five year period. Any proceedings involving the
Deadlock Arbitrator shall be held in Raleigh, North Carolina, unless otherwise agreed to by the
Members.
(c) The Deadlock Arbitrator shall establish in its sole discretion the procedure for
resolving the Deadlock, including but not limited to what evidence to consider, whether to allow
written submissions, and whether to hold a hearing. The terms of engagement of a Deadlock
Arbitrator shall include an obligation on the part of the Deadlock Arbitrator to (i) notify the
parties in writing of his or her decision within 20 days from the date on which the Deadlock
Arbitrator has been selected (or such other period as the parties may agree); and (ii) establish a
timetable for the making of submissions and replies, if applicable. The Deadlock Arbitrator shall
follow the instructions for rendering his or her decision as expressly set forth in this Agreement,
as applicable, for resolving each Deadlock. The Deadlock Arbitrator shall have the right only to
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interpret and apply the terms of this Agreement and shall not change any such terms or deprive
any party to this Agreement of any rights provided in this Agreement.
(d) The Deadlock Arbitrator shall also furnish a decision as to which party, if either,
is the "prevailing party" for the purposes of allocating costs and expenses pursuant to
Section 20(h). In the absence of such a decision regarding allocation of costs and expenses, each
party shall pay its own costs and expenses, except that the costs and expenses of the Deadlock
Arbitrator shall be paid by the Company (and any Member may make a call for an Additional
Capital Contribution for the same). The decision of a Deadlock Arbitrator shall be final and
binding on the parties and shall be immediately enforceable and shall not be capable of
challenge, whether by arbitration, in court or otherwise.
(e) In addition, if the Deadlock is a Buy -Sell Event, each of TPS and Branch shall
have the ability to exercise its rights to pursue the Buy -Sell Option as set forth in Exhibit D
hereto without complying with the other provisions of this Section 9.
(f) The provisions of this Section are severable from the other provisions of this
Agreement and shall survive and not be merged into any termination or expiration of this
Agreement or any judgment or award entered in connection with any dispute, regardless of
whether such dispute arises before or after termination or expiration of this Agreement, and
regardless of whether the related arbitration or litigation proceedings occur before or after
termination or expiration of this Agreement. If any part of this Section is held to be
unenforceable, it shall be severed and shall not affect either the duties to arbitrate or any other
part of this Section.
10. Capital.
(a) Initial Capital Contribution. Each Member has contributed, or committed to
contribute, to the capital of the Company as its initial Capital Contribution, cash and other
property and rights valued in the amount set forth opposite its name under the column "Initial
Capital Contribution" on Schedule A attached hereto in exchange for the Units set forth opposite
such Member's name on Schedule A.
(b) Additional Capital Contributions. In addition to the initial Capital Contributions
of the Members, the Manager may, from time to time, subject to Section $(d), call for all
Members to make additional Capital Contributions in cash, pro rata in proportion to their
respective Units, as determined by the Manager from time to time to be necessary to pay any
operating, capital or other expenses relating to the business of the Company (such additional
Capital Contributions, the "Additional Capital Contributions"). Upon the Manager making
such determination for Additional Capital Contributions, the Manager shall deliver to the
Members a written notice that shall set forth, among other things, the amount of the Capital
Contribution to be made by each Member and the period within which such Capital Contribution
shall be made, which shall be no sooner than three Business Days after receipt of such notice,
and the purpose for such Additional Capital Contributions.
(c) Default Loan. If any Member shall fail to timely make, or notifies the Manager
that it shall not make, all or any portion of any Additional Capital Contribution under Section
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10Lb) above, then such Member shall be deemed to be a "Non -Contributing Member". The
non -defaulting Member(s) (the "Contributing Member(s)"), pro rata according to their
respective Units, or as they may otherwise agree, shall be entitled, but not obligated, to loan to
the Non -Contributing Member, by contributing to the Company on its behalf, all or any part of
the amount (the "Default Amount") that the Non -Contributing Member failed to contribute to
the Company (each such loan, a "Default Loan"); provided, however, that such Contributing
Member shall have contributed to the Company its pro rata share of the applicable Additional
Capital Contribution then due. Such Default Loan shall be treated as an Additional Capital
Contribution by the Non -Contributing Member. Each Default Loan shall bear interest
(compounded annually) on the unpaid principal amount thereof from time to time remaining
from the date advanced until repaid at a per annum rate equal to the lesser of (A) the greater of
(1) the applicable federal rate under Section 1274 of the Code, and (2) the Prime Rate plus five
percent (5%), and (B) the maximum rate permitted by applicable law (the "Default Rate").
Each Default Loan shall be recourse solely to the Non -Contributing Member's Membership
Interest. Default Loans shall be repaid out of the distributions of Net Cash Flow that would
otherwise be made to the Non -Contributing Member under this Agreement. So long as a Default
Loan is outstanding, the Non -Contributing Member shall have the right to repay the Default
Loan (and interest then due and owing) in whole or in part. Upon the repayment in full of all
Default Loans (but not upon their conversion as provided in Section IQ (d) made in respect of a
Non -Contributing Member (and so long as the Non -Contributing Member is not otherwise a
Non -Contributing Member as a result of a separate failure to contribute), such Non -Contributing
Member shall cease to be a Non -Contributing Member.
(d) Default Loan Conversion Contribution. If a Default Loan has not been repaid by
the Non -Contributing Member within 90 days (or such other period as unanimously agreed by
the Contributing Member and the Non -Contributing Member(s)) after such Default Loan is
made, then effective as of the expiration of such period: (i) such Default Loan may be converted
by any of the applicable Contributing Members into an Additional Capital Contribution of the
Contributing Member in an amount equal to the principal of its Default Loan pursuant to this
Section; (ii) the Non -Contributing Member shall be deemed to have received a return of its
Capital Contribution of an amount equal to the principal of its Default Loan; (iii) such
distribution shall be deemed paid to the applicable Contributing Member in repayment of the
Default Loan; (iv) such amount shall be deemed contributed by the applicable Contributing
Member as an Additional Capital Contribution (a "Default Loan Conversion Contribution");
and (v) the applicable Contributing Member's Capital Account shall be increased by, and the
Non -Contributing Member's Capital Account shall be decreased by, an amount equal to the
principal of such Default Loan. A Default Loan Conversion Contribution shall be deemed an
Additional Capital Contribution by the applicable Contributing Member making (or deemed to
be making) such Default Loan Conversion Contribution as of the date such Default Loan
Conversion Contribution is made or the date on which such Default Loan is converted to a
Default Loan Conversion Contribution. At the time of a Default Loan Conversion Contribution,
the Units of the applicable Contributing Member shall be increased proportionally by the amount
of such deemed contribution, thereby diluting the Membership Interest of the Non -Contributing
Member. Once a Default Loan Conversion Contribution has been made (or deemed made), no
subsequent payment or tender in respect of the Default Loan Conversion Contribution shall
affect the Membership Interests of the Members, as adjusted in accordance with this Section.
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(e) Additional Capital Contribution Units. In the event less than all of the Members
make their Additional Capital Contribution, either because (i) one or more Members fail to
timely make their Additional Capital Contribution and the other Member(s) elect not to make a
Default Loan or (ii) a Default Loan is made but not repaid prior to the expiration of the 90-day
period described in Section 10(d), the Company shall issue additional Units to the Member(s)
who have made their Additional Capital Contribution. The number of Units to be so issued shall
be based on the value of the Company at the time of such Additional Capital Contribution, as
determined by the Manager of the Company in its sole discretion.
(f) Emergency Iagans. Each bf TPS and Branch may advance funds to the Company
in excess of its Capital Contributions for the short-term emergency use of the Company (an
"Emergency Loan"). In such event, the amount of such Emergency Loan from such Member (i)
shall neither increase its Capital Account nor entitle it to any increase in its share of the
distributions of Net Cash Flow of the Company, (ii) shall not exceed, in the aggregate, $50,000
from time to time, (iii) shall be a debt obligation of the Company to such Member, and (iv) shall
be repaid to it by the Company as provided below with interest at a per annum rate equal to the
lesser of (A) the greater of (1) the applicable federal rate under Section 1274 of the Code, and (2)
the Prime Rate plus five percent (5%), and (B) the maximum rate permitted by applicable law.
Any such Emergency Loan shall be payable and collectible only out of Company assets, and the
other Member shall not be personally obligated to repay any part thereof. An Emergency Loan
shall not require a request to the Members for additional funds or approval of the Manager or the
Members.
Any Emergency Loan shall be repaid, prior to distributions to the Members of Net Cash
Flow in accordance with Section 11, as follows:
(i) First, to the Members, in payment of accrued but unpaid interest on any
Emergency Loan not theretofore repaid, pro rata in accordance with the respective amounts of
accrued but unpaid interest on any Emergency Loan due the Members; and
(ii) Second, to the Members in proportion to, and to the extent of, their
respective unreturned Emergency Loans.
(g) Capital Account. An individual capital account (each a "Capital Account") shall
be established and maintained for each Member. The original Capital Account established for
any Member who acquires an interest in the Company by virtue of an assignment shall be in the
same amount as, and shall replace, the Capital Account of the assignor of such interest, and, for
purposes of this Agreement, such Member shall be deemed to have made the Capital
Contributions to the Company made by the assignor of such interest (or made by such assignor's
predecessor in interest). To the extent such Member acquires less than the entire interest in the
Company of the assignor of the interest so acquired by such Member, the original Capital
Account of such Member and its Capital Contributions shall be in proportion to the interest it
acquires, and the Capital Account of the assignor who retains a partial interest in the Company,
and the amount of its Capital Contributions, shall be reduced to the proportion of the interest it
retains.
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The Capital Account of each Member shall be maintained in accordance with the
following provisions:
(i) to such Member's Capital Account there shall be credited such Member's
Capital Contributions, such Member's distributive share of Profits and the amount of any the
Company liabilities that are assumed by such Member or that are secured by any Company
assets distributed to such Member;
(ii) to such Member's Capital Account there shall be debited the amount of
cash and the Gross Asset Value of any the Company assets (less the amount of any liabilities to
which such asset is subject) distributed to such Member pursuant to any provision of this
Agreement, such Member's distributive share of Losses and the amount of any liabilities of such
Member that are assumed by the Company or that are secured by any property contributed by
such Member to the Company; and
(iii) in determining the amount of any liability for purposes of this Section,
there shall be taken into account Section 752(c) of the Code and any other applicable provisions
of the Code and the Treasury Regulations.
(h) Withdrawal. No Member shall have the right to withdraw its Capital Contribution
or to receive any interest, salary or drawing with respect to its Capital Contributions or for
services rendered on behalf of the Company or otherwise in its capacity as a Member, except as
otherwise specifically provided in this Agreement.
(i) No Requirement to. Fund. Except as otherwise provided herein (but subject to the
consequences for failure to fund provided for herein), the Members shall be liable only to
contribute as their Capital Contributions their respective initial Capital Contribution, and no
Member shall be required to lend any funds to the Company.
0) No Personal Liability. No Member shall have any personal liability for the
repayment of any Capital Contribution of any other Member. No Member shall be obligated to
restore a negative balance in such Member's Capital Account.
(k) Reserves. The Company shall establish reserves for such purposes and in such
amounts as the Manager may determine.
11. Distributions.
(a) Net Cash Flow. Net Cash Flow, if any, received or generated by the Company
shall be distributed to the Members, pro rata according to their respective Units, at such times
and frequency as the Manager shall determine in its sole discretion, subject to any withholding
obligation created by the Code or comparable provisions of state or local law; provided,
however, that Net Cash Flow shall be distributed no less frequently than annually.
(b) Tax Distributions.
(i) At least two business days prior to the due date for a Member's estimated
tax payment and in all events at least quarterly, the Company shall make distributions to the
SMRH:227707543.4 10

Members in amounts intended to enable the Members (or their direct or indirect owners) to
discharge their United States federal, state and local income tax liabilities arising from the
allocations of income or gain (each a "Tax Distribution"). The amount of any such Tax
Distribution shall be determined in good faith by the Manager, and shall be equal to the product
of (x) the Company's net income for the quarter multiplied by (y) forty-two percent (42%), or, if
approved by the Manager, such other percentage equal to the maximum combined federal, state,
and local marginal income tax rates (including, for the avoidance of doubt the tax imposed by
Section 1411(a)(1) of the Code) generally applicable to any Member. The amount otherwise
distributable to any Member pursuant to Section i i (a) shall be reduced by the amount distributed
to such Member pursuant to this Section 1 i b .
(ii) Notwithstanding any provision of this Section 11(b), the Company shall
not be required to incur indebtedness, nor shall any Member be required to make any Capital
Contribution, to permit the Company to make a Tax Distribution.
(iii) The Company shall not incur any indebtedness or enter into any loan
agreement or other agreement that would prohibit, limit or restrict the Company's making of Tax
Distributions hereunder.
(c) Distribution to Transferor and Transferee. If any Units are Transferred during
any accounting period, all distributions on or before the date of such Transfer shall be made to
the transferor, and all distributions after such date shall be made to the transferee.
(d) Amounts Witliheld. The Company is hereby authorized and directed by each
Member to withhold from distributions or other amounts payable to such Member such amount
or amounts as shall be required by the Code, the Treasury Regulations and/or applicable
provisions of state or local tax law, and to remit such amount or amounts to the Internal Revenue
Service and/or such other applicable state or local taxing authority at such time or times as may
from time to time be required by the relevant taxing authority. Any amount so withheld (as well
as any tax imposed on the Company by reference to the status of a Member or an adjustment by
a governmental agency in the amount of Company income, gain, loss, deduction or credit, or the
allocation of such items among the Members, that gives rise to an imputed underpayment of any
tax by the Company that is attributable, to such Member) shall be treated for purposes of this
Agreement as a distribution (or other payment, if applicable) by the Company to such Member.
If at any time the amount required to be withheld with respect to any Member exceeds the
amount distributable (or other amount payable) to such Member at such time, such Member shall
immediately make a cash contribution (or payment) to the Company equal to the amount of such
excess, which amount, together with any amount actually withheld, shall be remitted by the
Company to the relevant taxing authority or authorities.
(e) Proceeds Available Upon Dissolution. Upon the dissolution and winding up of
the Company, subject to (i) the requirements of Section 16, (ii) the payment, or the making of
reasonable provision for payment, of all liabilities of the Company, including any debts owed to
the Manager or a Member (e.g., Emergency Loans), and (iii) the establishment of such reserves
as the Manager deems necessary for any contingent or unforeseen liabilities or obligations, the
proceeds from such liquidation shall be distributed, as expeditiously as possible, to Members in
accordance with this Section.
SMM:227707543.4 I I

(f) In Kind Distributions. If any assets of the Company shall be distributed in kind,
such assets shall be distributed to Members entitled to such distribution as tenants -in -common in
the same proportion as such Members would have been entitled to cash distributions.
(g) Limitation Upon Distribution. No distribution shall be made to Members if
prohibited by the Act or this Agreement.
12. Allocation of Profits and Losses, Special AIlocation Rules.
(a) Allocation of Profits and Losses. Subject to the Special Allocation Rules, Profits
and Losses for each year shall be allocated among the Members in a manner such that, to the
extent possible, the Capital Account balance of each Member at the end of such year shall be
equal to the excess (which may be negative) of-
(i) The amount that would be distributed to such Member if (A) all of the
assets of the Company were to be sold for their Gross Asset Values, (B) all of the liabilities of
the Company were settled in cash according to their terms (limited, with respect to each
nonrecourse liability, to the Gross Asset Values of the assets securing such liability), and (C) the
net proceeds thereof were distributed in full pursuant to the distribution provisions set forth in
Section 16, over
(ii) The sum of (A) the amount, if any, without duplication, that such Member
would be obligated to contribute to the capital of the Company, (B) such Member's share of the
Company minimum gain determined pursuant to Treasury Regulation Sections 1.704-2(d) and
1.704-2(g), and (C) such Member's share of Member Nonrecourse Debt minimum gain
determined pursuant to Treasury Regulation Section 1.704-2(i)(5), all computed as of the date of
the hypothetical sale described in clause (i) above.
It is the intention of the parties that Profits and Losses shall be allocated among
the Members in such a manner that if all of the Company's assets were sold for cash and the
proceeds were distributed in liquidation in accordance with Section 16, the distributions would
be the same as if distributed in accordance with positive Capital Account balances.
It is intended that (x) the Capital Accounts be maintained at all times in
accordance with Section 704 of the Code and applicable Treasury Regulations, (y) the Capital
Accounts be increased or decreased by any items required by the Treasury Regulations under
Section 704(b) of the Code to increase or decrease, respectively, a Member's Capital Account,
and (z) the provisions hereof relating to the Capital Accounts be interpreted in a manner
consistent therewith. The Manager shall be authorized to make appropriate amendments to the
allocations of items pursuant to this Section if necessary in order to comply with Section 704 of
the Code or applicable Treasury Regulations thereunder.
(b) Special Allocation Rules. The allocation of Profits and Losses is also subject to
the Special Allocation Rules.
SMRH:227707543.4 12

(c) General Rules; Other Items.
(i) Subject to Special Allocation Rules, all items of Company income, gain,
loss, deduction, credits for federal and state income tax purposes for any Fiscal Year, and any
other allocations not otherwise provided for, shall be divided among the Members, if any, in the
same proportions as they share Profits or Losses for the year.
(ii) For purposes of determining the Profits, Losses, or any other items
allocable to any period, Profits, Losses, and any such other items shall be determined on a daily,
monthly, or other basis, as determined by the Members using any permissible method under
Section 706 of the Code and Treasury Regulations.
13. Additional Members and Units.
(a) Subject to Section 8(d), the Manager is authorized to raise additional capital by
offering and selling, or causing to be offered and sold, additional Units ("Additional Units") to
any Person in such amounts and on such terms and conditions as the Manager and the Members
may determine. Each Person that is not already a Member who subscribes for any of the
Additional Units shall be admitted as an additional member of the Company (each, an
"Additional Member" and collectively, the "Additional Members") at the time such Person (i)
executes this Agreement or a counterpart of this Agreement and (ii) is named as a Member on
Schedule A hereto. The legal fees and expenses of the Company associated with such admission
shall be borne by the Company.
(b) Additional Units shall not be entitled to any retroactive allocation of the
Company's income, gains, losses, deductions, credits or other items; provided, however, that,
subject to the restrictions of Section 706(d) of the Code, Additional Units shall be entitled to
their respective share of the Company's income, gains, losses, deductions, credits and other
items arising under contracts entered into or from securities acquired before the effective date of
the issuance of any Additional Units to the extent that such income, gains, losses, deductions,
credits and other items arise after such effective date. To the extent consistent with Section
706(d) of the Code and Treasury Regulations, the books maintained by the Company for the
Company may be closed at the time Additional Units are issued (as though the Company's tax
year had ended) or the Company may credit to the Additional Units pro rata allocations of the
Company's income, gains, losses, deductions, credits and items for that portion of the
Company's Fiscal Year after the effective date of the issuance of the Additional Units, as
determined by the Manager in its sole discretion.
14. Transfers.
(a) Prohibition on Transfers.. A Member may not Transfer or permit the Transfer of
all or any portion of its Membership Interest except to a Permitted Transferee pursuant to a
Permitted Transfer in accordance with Section lib) (a Transfer permitted pursuant to Section
14�b) is a "Permitted Transfer" and the transferee of a Permitted Transfer is a "Permitted
Transferee").
(b) Permitted Transfers. A Member may Transfer all or any part of its Membership
Interest: (i) to an Affiliate of such transferor, so long as the voting control over such Membership
SMRH:227707543.4 13

Interest does not change as a result of such Transfer, (ii) to another Member, or (iii) in the case
where the transferor in question is natural Person, (A) an Immediate Family Member of such
Person, or (B) a trust set up for the benefit of such Person or an Immediate Family Member of
such Person; provided, if a transfer made pursuant to this clause (iii) results in a change of voting
control over such Membership Interest or results from the death of the transferor, the
Membership Interest so transferred shall, notwithstanding anything to the contrary herein, cease
to have voting or approval rights over any matter whatsoever. Notwithstanding the foregoing,
(x) no Prohibited Person may become a Permitted Transferee or be a Member or own any direct
or indirect interests in a Member, and (y) no Transfer of any Membership Interest or a direct or
indirect interest in a Member shall be a Permitted Transfer if such a Transfer it violates any
Major Agreement. A Member shall provide the Manager with notice of any Permitted Transfer
at least 30 days prior the effective date of such Transfer.
(c) Admission. A Permitted Transferee of a Membership Interest may be admitted as
a Member only upon satisfaction of all conditions deemed necessary and appropriate by the
Manager, including: (i) the Transfer is a Permitted Transfer; (ii) the Permitted Transferee of a
Membership Interest becomes a party to this Agreement as a Member and executes such
documents and instruments as may be necessary or appropriate to confirm such transferee as a
Member and such transferee's agreement to be bound by the terms and conditions of this
Agreement; (iii) the Permitted Transferee pays or reimburses the Company for all legal, filing,
and publication costs that it incurs in connection with the admission of the transferee as a
Member with respect to the Transferred Membership Interest; (iv) the Permitted Transferee
provides the Company with evidence satisfactory to counsel for the Company of the authority of
the Permitted Transferee to become a Member or own a direct or indirect interest in a Member
and to be bound by the terms and conditions of this Agreement, and that such Transfer will be
made in compliance with all applicable state and federal securities laws; and (v) the transferor
shall provide to the Company and the other Member(s) an opinion of counsel for the Company,
or of other counsel satisfactory to the Manager, that such proposed Transfer: (A) may be
effected without registration of such interest under the Securities Act of 1933, as amended, (B)
would not be in violation of any applicable securities law of any state or other jurisdiction, and
(C) would not result in a termination of the Company pursuant to Section 708(b)(1)(B) of the
Code.
(d) Effectiveness. Any Permitted Transfer of a Membership Interest shall be
effective as of the close of business on the last day of the calendar month in which the Manager
gives its prior approval to such Transfer (or the last day of the calendar month in which such
Transfer occurs, if later or if no such approval is required).
15. Treatment for Tax Purposes; Tax Matters Member.
(a) So long as the Company has more than one Member, the Company shall be
treated as a partnership for United States federal income tax purposes.
(b) Partnership's Tax Representative. The Members hereby designate TPS to serve
as the Company's "partnership representative" under Section 6223(a) of the Code (the
"Partnership Representative"). The Partnership Representative shall have the power to (i)
manage and control, on behalf of the Company, any administrative proceeding at the Company
SMM:227707543.4 14

level with the Internal Revenue Service relating to the determination of any item of Company
income, gain, loss, deduction, or credit for federal income tax purposes, and (ii) take such actions
as are permitted by Code Sections 6221 through 6235, which includes the authority to make
decisions regarding an election under Code Section 6226. The Partnership Representative shall,
within ten days of the receipt of any notice or communication from the Internal Revenue Service
in any administrative proceeding at the Company level relating to the determination of any
Company item of income, gain, loss, deduction, or credit, mail a copy of such notice to each
Member. The Members (or if appointed, the Manager) may at any time hereafter designate a
new Partnership Representative in accordance with applicable rules of the Code, Treasury
Regulations, and the IRS (the "Applicable Rules"), and the Partnership Representative shall take
such action, including notifying the IRS of its designation, as may be necessary or appropriate
under the Applicable Rules; provided, however, that only a Member (or the control person
thereof) may be designated as the Partnership Representative of the Company.
(c) Indemnification. Each Member shall indemnify, defend and hold harmless the
Company for any "imputed underpayment" under Section 6225(b) of the Code, including any
related penalties, interest, or additions to tax that are attributable to any "partnership adjustment"
within the meaning of Section 6241(2) of the Code, to any of such Member's items of income,
gain, loss, deduction or credit.
16. Termination.
(a) The Company shall be dissolved and its affairs shall be wound up only upon the
occurrence of any of the following events: (i) the unanimous approval of the Members to
dissolve the Company; or (ii) the entry of a decree of judicial dissolution under Section 18-802
of the Delaware Act.
(b) Upon the dissolution of the Company, the Company shall be deemed dissolved
and its business and affairs shall be promptly wound up in accordance with such plan as the
Manager may approve. The Manager may approve a plan for paying the Company's debts and
distributing assets and properties of the Company to the Members. If the Manager does not
approve such a plan, all assets and properties of the Company shall be promptly liquidated. In
either event, the following order of priority of payment shall apply: (i) to creditors of the
Company, including the Members who are creditors, to the extent otherwise permitted by law, in
satisfaction of the liabilities of the Company, including Emergency Loans (whether by payment
or the making of reasonable provision for payment thereof), other than liabilities for distributions
to Members; (ii) to distribute to the Members in the manner and priority set forth in Section I I
hereof (provided that amounts distributed to a Member pursuant to this Section shall not exceed
the positive Capital Account balance of such Member); and (iii) to distribute to the Members the
remaining proceeds of liquidation in accordance with their Capital Account balances, after
giving effect to all Capital Contributions, distributions and allocations for all periods as provided
in Section 11 hereof.
17. Liability of Covered Persons.
(a) Liability. Except as otherwise provided by the Delaware Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be
SMRH:227707543.4 15

solely the debts, obligations and liabilities of the Company, and no Covered Person shall be
obligated personally for any such debt, obligation or liability of the Company solely by reason of
being a Covered Person. Except as otherwise expressly required by law, a Member, in its
capacity as such, shall have no liability with respect to its Membership Interest in excess of (i)
the amount of the Capital Contributions made by it, (ii) its share of any assets and undistributed
profits of the Company, (iii) its obligation to make other payments expressly provided for in this
Agreement, if any, and (iv) the amount of any distributions wrongfully distributed to it.
(b) Exculpation. No Covered Person shall be liable to the Company or any other
Covered Person for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Covered Person in good faith on behalf of the Company and in a
manner reasonably believed to be within the scope of authority conferred on such Covered
Person by this Agreement, except that the foregoing exculpation shall not apply to any such loss,
damage or claim incurred by reason of such Covered Person's gross negligence or willful
misconduct.
(c) Indemnification. To the fullest extent permitted by applicable law, a Covered
Person shall be entitled to indemnification from the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed or omitted by such
Covered Person in good faith on behalf of the Company and in a manner reasonably believed to
be within the scope of authority conferred on such Covered Person by this Agreement, except
that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Covered Person by reason of gross negligence or willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity under this Section shall
be provided out of and to the extent of Company assets only, and no Covered Person shall have
any personal obligation to indemnify on account hereof. To the fullest extent permitted by
applicable law, expenses (including legal fees) incurred by a Covered Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company,
at the sole and absolute discretion of the Manager, prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on
behalf of the Covered Person to repay such amount if it shall be determined that the Covered
Person is not entitled to be indemnified as authorized in this Section.
18. Representations and Warranties. Each Member (with respect to itself only)
hereby represents and warrants to and acknowledges with the Company and each other Member
that:
(a) in the case where the Member in question is an entity, it is duly organized, validly
existing and in good standing under the laws of the state of its formation and it has all necessary
power and authority to execute and deliver this Agreement and to perform its obligations under
this Agreement;
(b) it has duly executed and delivered this Agreement, and this Agreement constitutes
the valid and binding obligation of such Member, enforceable against it in accordance with its
terms, except as the enforceability of this Agreement may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws
relating to the enforcement of creditors' rights generally and by general principles of equity;
SMRH:227707543.4 16

(c) its execution and delivery of this Agreement and its performance of its obligations
under this Agreement will not (i) conflict with, result in a breach of or constitute a default (or
any event that, with notice or lapse of time, or both, would constitute a default) or result in the
acceleration of any obligation under any of the terms, conditions or provisions of any other
agreement or instrument to which it is a party or by which it is bound or to which any of its
property or assets are subject, (ii) in the case where the Member in question is an entity, conflict
with or violate any of the provisions of its organizational documents, or (iii) violate any statute
or any order, rule or regulation of any governmental authority, in any manner that would
adversely affect the performance of its duties under this Agreement;
(d) no consent, approval, authorization or order of any third party or governmental
authority is required for its execution, delivery and performance of this Agreement or its
obligations under this Agreement;
(e) there is no action, suit or proceeding pending, or, to its knowledge, threatened
against it in any court or by or before any other governmental authority that would prohibit or
limits its entering into or performing its obligations under this Agreement;
(f) neither such Member nor any of its Affiliates, nor any of their respective brokers
or other agents acting in any capacity in connection with such Member's interest in the
Company, is or will be (i) conducting any business or engaging in any transaction or dealing
with any Prohibited Person, including the making or receiving of any contribution of funds,
goods or services to or for the benefit of any such Prohibited Person; (ii) engaging in certain
dealings with countries and organizations designated under Section 311 of the USA PATRIOT
Act as warranting special measures due to money laundering concerns; (iii) dealing in, or
otherwise engaging in any transaction relating to, any property or interests in property blocked
pursuant to Executive Order No. 13224 dated September 24, 2001, relating to "Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism"; (iv) a foreign shell bank or any person that a financial institution would be
prohibited from transacting with under the USA PATRIOT Act; or (v) engaging in or conspiring
to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempting to violate, any of the prohibitions set forth in (A) any U.S. anti -money laundering
law, (B) the Foreign Corrupt Practices Act, (C) the U.S. mail and wire fraud statutes, (D) the
Travel Act, (E) any similar or successor statutes, or (F) any regulations promulgated under the
foregoing statutes.
19. Notices. All notices, waivers, demands, requests or other communications
required or permitted hereunder shall, unless otherwise expressly permitted to be oral, be in
writing and be deemed to have been properly given, served and received (a) if delivered by
messenger, when delivered, (b) if mailed, on the third Business Day after deposit in the United
States Mail, certified or registered, postage prepaid, return receipt requested, (c) if sent by
electronic mail, on the date of transmission, provided that such transmission has been made on a
Business Day within the hours of 9:00 a.m. through 5:00 p.m. of the time in effect at the place of
receipt, or at 9:00 a.m. on the next Business Day thereafter if such transmission is made later
than 5:00 p.m., provided also that the sender receives a receipt indicating that the electronic mail
message was received, or (d) if delivered by reputable overnight express courier, freight prepaid,
the next Business Day after delivery to such courier; in every case addressed to the party to be
SMM:227707543.4 17

notified at the address set forth on Schedule A or to such other address(es) or addressee(s) as any
party entitled to receive notice hereunder shall designate to the others in the manner provided
herein for the service of notices. Rejection or refusal to accept or inability to deliver because of
changed address or because no notice of changed address was given, shall be deemed receipt.
20. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes any prior understandings, agreements, or representations by or between
the parties, written or oral, to the extent they relate in any way to the subject matter hereof.
(b) Successors and Assign. This Agreement shall be binding upon and inure to the
benefit of all of the parties and, to the extent permitted by this Agreement, their successors, legal
representatives and assigns.
(e) Remedies. The failure of any party to seek redress for violation of, or to insist
upon the strict performance of, any provision of this Agreement shall not prevent a subsequent
act, which would have originally constituted a violation, from having the effect of an original
violation. The rights and remedies provided by this Agreement are cumulative and the use of
any one right or remedy by any party shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the parties may have
by law, statute, ordinance or otherwise.
(d) No Third Party Beneficiary. The provisions of this Agreement are intended solely
to benefit the Members and, to the fullest extent permitted by law, shall not be enforceable by
any creditor of the Company or the Members and shall not be construed as conferring any benefit
upon any creditor of the Company or the Members. Nothing in this Agreement shall be deemed
to create any right in any person not a party hereto, and except as expressly provided herein, this
Agreement shall not be construed in any respect to be a contract in whole or in part for the
benefit of any third person.
(e) Severability. The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision were omitted.
(f) Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original copy and all of which, when taken together, will be
deemed to constitute one and the same agreement. The exchange of copies of this Agreement
and of signature pages by facsimile transmission or electronic transmission of portable document
format (pdf) shall constitute effective execution and delivery of this Agreement as to the parties
and may be used in lieu of the original agreement for all purposes. Signatures of the parties
transmitted by facsimile or electronic transmission of a pdf shall be deemed to be their original
signatures for all purposes.
(g) Governing Law. This Agreement shall be governed by, and construed under, the
laws of the State of Delaware, all rights and remedies being governed by said laws.
SMRH:227707543.4 18

(h) 11revailin Party. The non -prevailing party shall pay upon demand all of the
reasonable costs, charges and expenses including the court costs and fees and out-of-pocket
expenses of counsel, agents and others retained by the prevailing party incurred by the prevailing
party in enforcing the terms of the Agreement, and a party shall also pay such costs and expenses
incurred by the other party in any litigation, negotiation or transaction in which said party causes
the other party without the other party's fault to become involved or concerned. A party shall be
deemed a "prevailing party" only after all rights of appeal from a favorable adjudication shall
have expired or been waived.
(i) Confidentiality. Each party agrees not to disclose the terms or conditions of this
Agreement or to any person other than a Permitted Person, provided, however, that the
restrictions of this Section shall not apply to any information required to be disclosed by
applicable law or to information that becomes public other than by virtue of a breach of this
Section. Permitted Persons shall be informed of the confidential nature of the information
disclosed to them and shall be required to agree to act in accordance with the provisions of this
Section with respect to such information. This Section shall survive termination of this
Agreement.
0) Counsel.
(i) The Members acknowledge and agree that TPS's internal legal counsel
may from time to time provide legal advice to the Company and its Subsidiaries. The Members
consent to such representation and waive any conflict of interest that may arise from such dual
representation. Moreover, the Members agree that in no event shall any Member make any
argument (and each Member hereby waives the right) to seek to bar TPS's internal legal counsel
from advising the Company or its Subsidiaries or representing it or its Subsidiaries in any dispute
between the Company or any of its Subsidiaries and a Member.
(ii) The Members acknowledge and agree that (1) in the negotiation and
preparation of this Agreement and with respect to the matters contemplated hereby, (A) TPS has
been independently represented by the law firm of Sheppard Mullin Richter & Hampton LLP
("SMRH"), and (B) Branch has been independently represented by the law firm of Harrington,
Gilleland, Winstead, Feindel & Lucas LLP ("HGWFL" ); (2) SMRH has represented Affiliates
of TPS in other related and unrelated matters; (3) each Member hereby waives any potential
conflict of interest resulting from SMRH's representation of (x) TPS and its Affiliates with
respect to this Agreement and (y) the Company or any of its Subsidiaries with respect to other
related and unrelated matters; and (4) each Member other than TPS acknowledges and agrees
that in the event of a default on the part of such Member under this Agreement, SMRH shall be
free to represent the Company and its Subsidiaries or TPS and its Affiliates in the enforcement of
this Agreement.
[Signature Pages Follow]
SMRH:227707543.4 19

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
TPS:
TPS CONSTRUCTION MATERIALS, LLC
By:d��?
Name: 4 John Cross
Its: VmaTinclPY
BRANCH:
LITTLE TEXAS FARMS, LLC
By: _
Name:
Its:
[Signature Page to LLC Agreement of Daurity Springs Quarry, LLC]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
TPS:
TPS CONSTRUCTION MATERIALS, LLC
By:
Name:
Its:
BRANCH:
LITTLE TEXAS FARMS, LLC
By:
Name: obb A. B ch
Its:
[Signature Page to LLC Agreement of Daurity Springs Quarry, LLC]

SCHEDULE A
INITIAL CAPITAL NUMBER OF PERCENTAGE
MEMBER AND MAILING ADDRESS CONTRIBUTION UNITS INTEREST
TPS
c/o Aligned Equity Partners, LLC
28639 Davis Parkway, #407 $5,950,000 500 50%
Warrenville, IL 60555
Attn: Legal Department
Branch
c/o Camel Saddle Properties, LLC $5,950,000* 500 50%
402 Forestwood Park Rd.
Sanford, NC 27330
Totals 1,000 100%
* The Members acknowledge and agree that $1,200,000 of Branch's Initial Capital Contribution
was funded as a Default Loan from TPS (the "Initial Default Loan"), subject to the following
modifications to the terms of the Default Loan and any associated Default Loan Conversion
Contribution:
• The repayment period is 24 months from the date of this Agreement
• The interest rate is 5% per annum, compounding annually
• All distributions (other than Tax Distributions) that would otherwise go to Branch during the
24-month repayment period will instead be paid to TPS in payment of the Initial Default
Loan, until the Initial Default Loan and all accrued interest thereon is paid in full
• All payments made in respect of the Initial Default Loan will be applied first to unpaid
accrued interest and then to principal
Notwithstanding the provisions of Section 10, if Branch fails to repay the Initial Default
Loan and all accrued interest thereon in full with the 24-month repayment period, in lieu of
any Default Loan Conversion Contribution, as TPS' sole and exclusive remedy, certain of
Branch's Units, in an amount set forth below, will be automatically transferred from Branch
to TPS, without any further action required on the part of any Person.
o The number of Units transferred in connection with a failure to repay the Initial
Default Loan in full will be calculated as follows:
Units Transferred = 126 x (1 -
Total principal paid by Branch in respect of the Initial Default Loan
)
$1,200,000
By way of example, and not of limitation, if, at the end of the repayment period, (i) Branch has
repaid $600,000 of principal, 53 Units would be transferred to TPS, (ii) Branch has repaid $300,000
of principal, 94.5 Units would be transferred to TPS, and (iii) Branch has repaid $900,000 of
principal, 31.5 Units would be transferred to TPS.
SMRH:227707543.4

EXHIBIT B
CERTAIN DEFINED TERMS
Initially capitalized terms used in this Agreement but not otherwise defined herein or in
the Agreement are defined below.
"Additional Capital Contributions" has the meaning given it in Section 10(b) hereof.
"Affiliate" means, with respect to a specified Person, any Person that directly or
indirectly controls, is controlled by, or is under common control with, the specified Person.
"Anti -Terrorism Law" means (a) the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001,
Pub. Law No. 107-56, 115 Stat. 296 (2001); (b) the International Emergency Economic Powers
Act, 50 U.S.C. §§ 1701 et. seq. (2003); (c) the Trading with the Enemy Act, 50 U.S.C. App. §§ 1
et. seq. (2003); and (d) other similar laws enacted or promulgated from time to time; in each
case, together with any executive orders, rules or regulations promulgated thereunder, including,
without limitation, temporary regulations, all as amended or otherwise modified from time to
time.
"Business Day" means a day when commercial banks in Raleigh, North Carolina are
generally open for business.
"Buy -Sell Event" means the occurrence of a Deadlock with respect to a Fundamental
Decision and the failure of the parties to resolve such Deadlock through agreement or mediation
as set forth in Section 9.
"Capital Contribution" means, with respect to any Member, the aggregate amount of
money and the initial Gross Asset Value of any property (other than money) contributed to the
Company as capital pursuant to this Agreement. The original Capital Account established for
any Member that acquires a Membership Interest by virtue of an assignment shall be in the same
amount as, and shall replace, the Capital Account of the assignor of such interest, and, for
purposes of this Agreement, such Member shall be deemed to have made the Capital
Contributions made by the assignor of such interest (or made by such assignor's predecessor in
interest). To the extent such Member acquires less than the entire Membership Interest of the
assignor of the interest so acquired by such Member, the original Capital Account of such
Member and its Capital Contributions shall be in proportion to the interest it acquires, and the
Capital Account of the assignor who retains a partial interest in the Company, and the amount of
its Capital Contributions, shall be reduced to the proportion of the interest it retains.
"Code" means the Internal Revenue Code of 1986, as amended.
"Control," "controlled" or "controlling" or words or phrases of similar import means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
SMRH:227707543.4

"Covered Person" means a Member, Manager, any Affiliate of a Member or Manager,
or any officers, managers, directors, shareholders, partners, members, employees, representatives
or agents of a Member or Manager, and their respective Affiliates, and any officer, employee or
agent of the Company or its Affiliates.
"Depreciation" means for each Fiscal Year or other period, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for
the Fiscal Year or other period, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of the Fiscal Year or other period,
Depreciation will be an amount that bears the same ratio to the beginning Gross Asset Value as
the federal income tax depreciation, amortization or other cost recovery deduction for the Fiscal
Year or other period bears to the beginning adjusted tax basis; provided that if the federal income
tax depreciation, amortization, or other cost recovery deduction for the Fiscal Year or other
period is zero, Depreciation will be determined with reference to the beginning Gross Asset
Value using any reasonable method selected by the Manager.
"Fair Market Value" or "FMV" means, as of any date, the price at which a willing
seller would sell and at which a willing buyer would purchase the asset(s) in question, neither of
whom is under any compulsion to sell or purchase, as determined by the Manager by whatever
means or methods as the Manager, in the good faith exercise of its discretion, deems appropriate.
"Fundamental Decision" means any of the matters listed on Part B of Exhibit E, all of
which require unanimous approval of the Members.
"Governmental List" means any lists relevant to any Anti -Terrorism Law maintained by
the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation
and Development, U.S. Department of the Treasury's Office of Foreign Assets Control,
Financial Action Task Force, U.S. Securities & Exchange Commission, U.S. Federal Bureau of
Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country
or organization, all as may be amended from time to time.
"Gross Asset Value" means, with respect to any asset, such asset's adjusted basis for
federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed by a Member to the
Company shall be the gross fair market value of such asset, as agreed to by the contributing
Member and the Manager;
(ii) the Gross Asset Value of all Company assets shall be adjusted to equal
their respective gross fair market values, as determined by the Manager, as of the following
times: (a) the acquisition of an additional interest in the Company by any new or existing
Member in exchange for more than a de minimis Capital Contribution; (b) the distribution by the
Company to a Member of more than a de minimis amount of Company assets as consideration
for an interest in the Company; and (c) the liquidation of the Company within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant
to clause (a) of this sentence shall be made only if the Manager determines that such adjustments
are necessary or appropriate to reflect the relative economic interests of the Members; and
2

(iii) the Gross Asset Value of any Company asset distributed to any Member
shall be the gross fair market value of such asset on the date of distribution, as determined by the
distributee Member and the Manager.
"Immediate Family Member" means, with respect to any individual, any of such
individual's parents, grandparents, spouse, children (natural or adopted), grandchildren (natural
or adopted), siblings (natural or adopted). and children of siblings (natural or adopted).
"Major Agreement" means any agreement to which the Company is a party, the breach
or violation of which by the Company would materially adversely affect the operations of the
Company's business or the Company's financial results.
"Major Decision" means any of the matters listed on Part A of Exhibit E, all of which
require approval of a Majority of the Members.
"Majority of the Members" means Members holding a majority of the outstanding
Units.
"Membership Interest" means a Member's entire interest in the Company (based on the
number of Units held by such Member), including the right to vote on, consent to, or otherwise
participate in any decision or action of or by the Members granted pursuant to this Agreement or
the Delaware Act, and the right to receive distributions of Net Cash Flow and allocations of
Profits and Losses.
"Net Cash Flow" means the cash, revenues, and funds received by the Company, less the
sum of the following to the extent paid or set aside by the Manager: (i) all principal and interest
payments on indebtedness of the Company (including Emergency Loans) and all other sums paid
to lenders; (ii) all cash expenditures incurred by the Company; and (iii) such reserves as the
Manager deems necessary or advisable in connection with the business of the Company.
"Permitted Person" means (i) the partners, shareholders, members, managers, directors,
officers and employees of a party, and (ii) accountants, attorneys, consultants and other
professionals engaged to render services in connection with the Company.
"Person" or "person" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company, or other legal entity or
organization.
"Prime Rate" means the annual rate of interest announced from time to time by The
Wall Street Journal as the "Prime Rate," changing as and when such rate changes, unless a lesser
rate shall then be the maximum rate permissible by law with respect to the matter for which
interest is being computed, in which case such lesser rate shall be charged, or in the event The
Wall Street Journal no longer publishes a "Prime Rate," such other similar rate of interest
published or announced from time to time by a similar publication or major bank with offices in
Chicago, Illinois chosen by the Manager.
3

"Profits" and "Losses" means, for each Fiscal Year, an amount equal to the Company's
taxable income or loss for such Fiscal Year, determined in accordance with Section 703(a) of the
Code (but including in taxable income or loss, for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Section 703(a)(1) of the Code), with the
following adjustments:
(i) any income of the Company exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to this definition shall be
added to such taxable income or loss;
(ii) any expenditures of the Company described in Section 705(a)(2)(B) of the
Code (or treated as expenditures described in Section 705(a)(2)(B) of the Code pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in
computing Profits or Losses pursuant to this definition shall be subtracted from such taxable
income or loss;
(iii) in the event the Gross Asset Value of any Company asset is adjusted in
accordance with paragraph (ii) or paragraph (iii) of the definition of "Gross Asset Value" above,
the amount of such adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Profits or Losses;
(iv) gain or loss resulting from any disposition of any asset of the Company
with respect to which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Gross Asset Value of the asset disposed of, notwithstanding that
the adjusted tax basis of such asset differs from its Gross Asset Value;
(v) gain or loss resulting from any adjustment attributable to an in -kind
distribution of assets to any Member shall be taken into account as gain or loss from disposition
of the asset for purposes of computing Profits or Losses hereunder;
(vi) in lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing taxable income or loss, there shall be taken into
account Depreciation for such Fiscal Year or other period;
(vii) the amount of any gross income specially allocated to the Members
pursuant to clauses (iv), (v), (vi) and (x) of the definition of Special Allocation Rules shall not be
included as income or revenue; and
(viii) any amount allocated pursuant to clauses (vii), (viii) and (x) of the
definition of Special Allocation Rules shall not be included as a loss or deduction.
"Prohibited Person" means any person who (a) is designated by the United States
federal government as a terrorist or as a suspected terrorist, whether on a Governmental List or
otherwise, (b) is otherwise subject to trade, anti -money laundering or anti -terrorism restrictions
under United States federal or state law from time to time, including, without limitation, under
any Anti -Terrorism Law, (c) has been convicted of a felony, fraud or a crime of moral turpitude,
4

or (d) has a reputation that would adversely affect the operation and management of the
Company.
"Property" means the real property, consisting of approximately 220 acres, and the
improvements thereon, located between -South Main Street and Daurity Road, Goldston, North
Carolina, as more fully described on Exhibit C.
"Related Party" means, with respect to any Person, an employee, officer, director,
trustee, direct or indirect owner, manager, general partner or Affiliate of such Person or of an
Affiliate of such Person.
"Special Allocation Rules" means the following provisions regarding the allocation of
Profits and Losses of the Company:
(i) Allocable Cash Basis Items. Any "allocable cash basis item" of the
Company (as defined in Section 706(d) of the Code) for any Fiscal Year that is required to be
allocated to the Members in the manner provided in Section 706(d) of the Code shall be allocated
to such Members in the manner so required.
(ii) Section 704(c) Allocations. In accordance with Code Section 704(c) and
the related Treasury Regulations, income, gain, loss and deduction with respect to any property
contributed to the capital of the Company, solely for tax purposes, will be allocated among such
Members so as to take account of any variation between the adjusted basis of the property for
federal income tax purposes and the initial Gross Asset Value of the property. If the Gross Asset
Value of any the Company asset is adjusted as described in the definition of Gross Asset Value,
subsequent allocations of income, gain, loss and deduction with respect to that asset will take
account of any variation between the adjusted basis of the asset for federal income tax purposes
and its Gross Asset Value in the same manner as under Code Section 704(c) and the related
Treasury Regulations. Any elections or -other decisions relating to allocations under this clause
(ii) will be made in any manner that the Manager determines reflects the purpose and intention of
this Agreement. Allocations under this clause (ii) are solely for purposes of federal, state and
local taxes and will not affect, or in any way be taken into account in computing, any Member's
or Economic Interest Owner's Capital Account or share of Profits, Losses or other items or
distributions under any provision of this Agreement.
(iii) Limitation on Net Loss Allocation. If the amount of net Losses that would
otherwise be allocated to a Member in- any Fiscal Year under Section 12(a) would create or
increase such Member's or Economic Interest Owner's adjusted Capital Account deficit as of the
last day of such Fiscal Year, then a proportionate part of such net Losses equal to the deficit so
caused shall be allocated to the other Member(s) and Economic Interest Owner(s), if any, to the
extent such allocation can be made without violating the provisions of this clause (iii) with
respect to such other Member(s) and Economic Interest Owner(s).
(iv) Qualified Income Offset. If a Member unexpectedly receives in any Fiscal
Year any adjustment, allocation or distribution described in Regulations Sections 1.704-
I (b)(2)(ii)(d)(4), (5) or (6), and if such Member has an adjusted Capital Account deficit as of the
last day of such Fiscal Year, then items of income and gain of the Company (consisting of a pro
5

rata portion of each item of Company income and gain) for such Fiscal Year (and, if necessary,
for subsequent Fiscal Years) shall be allocated to such Member in the amount and in the manner
necessary to eliminate such adjusted Capital Account deficit as quickly as possible.
(v) Gross Income Allocation. If a Member has an adjusted Capital Account
deficit as of the last day of any Fiscal Year, then items of income and gain of the Company
(consisting of a pro rata portion for each item of Company income and gain, including gross
income) for such Fiscal Year shall be allocated to such Member in the amount and in the manner
necessary to eliminate such adjusted Capital Account deficit as quickly as possible.
(vi) Minimum Gain Char eback. Any item of Company income or gain for
any Fiscal Year (or any portion of any such item) that is required to be allocated to the Members
under Regulations Sections 1.704-2(f) or 1.704-2(i)(4) shall be allocated for such Fiscal Year in
the manner so required by such Regulations, including Section 1.704-20)(2).
(vii) Losses from Member Nonrecourse Debt. Any Losses or deductions
attributable to Member Nonrecourse Debt related to the Property shall be allocated to the
Member who bears the economic risk of loss with respect to such debt.
(viii) Nonrecourse Deductions. Nonrecourse Deductions related to the Property
for any Fiscal Year or other period shall be allocated among the Members (and the related
Economic Interest Owners) in accordance with their respective total Units.
(ix) Code Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Company asset under Code Sections 734(b) or 743(b) is required to be
taken into account in determining Capital Accounts under Treasury Regulation Section 1.704-
1(b)(2)(iv)(m), the amount of the adjustment to the Capital Accounts will be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the
basis), and the gain or loss will be specially allocated to the Members in a manner consistent
with the manner in which their Capital Accounts are required to be adjusted under Treasury
Regulation Section 1.704-1(b)(2)(iv)(m).
(x) Curative Allocations. The allocations set forth in clauses (iii) through (ix)
of this definition of Special Allocation Rules (the "Regulatory Allocations") are intended to
comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the Regulations. The
Regulatory Allocations shall be taken into account in allocating Company Profits, Losses and
items of Company income, gain, loss and deduction to the Members so that, to the extent
possible, the net amount of such allocations of Profits, Losses and other items and the Regulatory
Allocations to each Member shall be equal to the net amount that would have been allocated to
each such Member if the Regulatory Allocations had not occurred. In applying this clause (x),
the Members agree that, subject to Section 16 upon sale of all or substantially all of the assets of
the Company, the intent of the Members is to distribute the net proceeds with respect to such sale
in the same order and priority as the distributions of Net Cash Flow.
(xi) Transfer of Units. If one or more Units are Transferred to a Permitted
Transferee during any Fiscal Year, the Profits or Losses attributable to such Unit(s) for such
Fiscal Year shall be allocated between the transferor and the transferee in any manner permitted
2

by Section 706(d) of the Code and the Treasury Regulations thereunder upon which they shall
agree; provided, however, that if the Company does not receive on or before January 31 of the
year following the year in which the Transfer occurs written notice stating the manner in which
such parties have agreed to allocate such Profits or Losses, such Profits or Losses shall be
allocated between the transferor and transferee as determined by the Members in accordance
with Code Section 706(d) and the Treasury Regulations thereunder.
"Subsidiary" means, with respect to any Person, any other Person of which a majority of
the outstanding shares or other equity interests having the power to vote for directors or
comparable managers are owned, directly or indirectly, by the first Person.
"Transfer" means, as a noun, any voluntary or involuntary transfer, sale, pledge,
hypothecation, or other disposition, and as a verb, voluntarily or involuntarily to transfer, sell,
pledge, hypothecate, or otherwise dispose of, whether for consideration or gratuitously.
"Treasury Regulations" means the income tax regulations, including temporary
regulations, promulgated under the Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Unit" means a unit representing a fractional part of the Membership Interests of the
Members.
7

EXHIBIT C
LEGAL DESCRIPTION OF PROPERTY
BEGINNING AT AN EXISTING IRON PIPE ON THE WEST SIDE OF S.R. 2306, THENCE CROSSING SAID
ROAD S 83DEG48MIN02"E 92.05' TO AN EXISTING IRON ON THE EASTERN RIGHT OF WAY OF SAID
ROAD, THENCE S 83DEG.53MIN39SEC E 687.27' TO AN EXISTING IRON, THENCE N
08DEG23MIN03SEC E 160.53' TO AN AXLE, THENCE S 80DEG47MIN02SEC E 839.05, TO AN EXISTING
IRON, THENCE N I IDEG37MIN49SEC E 774.46TO A NEW IRON, THENCE S 83DEG29MIN16SEC E
1539.95' TO AN EXISTING IRON THENCE N 08DEG14MIN19SEC E 122.36' TO AN IRON IN THE RIGHT
OF WAY OF THE NORFOLK SOUTHERN RAILWAY, THENCE N 05DEG59MIN51 SEC E 28.45, TO AN
EXISTING PK NAIL IN THE CENTERLINE OF SAID RAILWAY, THENCE AS THE CENTERLINE OF SAID
RAILWAY S 60DEG I 8MIN48SEC E 136.85' TO AN EXISTING PK NAIL(EPK), THENCE S
60DEG I 8MIN57SEC E 187.56' TO AN EPK, THENCE S 60DEG. 14MIN 1 2SEC E 90.93, TO AN EPK, THENCE
S 60DEG13MIN04SEC E 46.99' TO AN EPK, THENCE S 60DEG06M1N16SEC E 74.05' TO AN EPK, THENCE
S 59DEG37MIN23SEC E 100.72' TO AN EPK, THENCE S 55DEG27MIN08SEC E 99.51' TO AN EPK,
THENCE S 48DEG25MIN37SEC E 100.10' TO AN EPK, THENCE S 41DEG03MIN52SEC E 99.29' TO AN
EPK, THENCE S33DEG3 8MIN I 2SEC E 104.9F TO AN EPK, THENCE S 29DEG47MIN50ZSEC E 18.79, TO
AN EPK, THENCE S 26DEG35MIN25SECE 49.08' TO AN EPK, THENCE S 23DEG40MIN15SEC E 26.35, TO
AN EPK, THENCE S 21DEG58MIN31SEC E 8.09' TO AN EPK, THENCE S21DEG56MINI ISEC E 16.29, TO
AN EPK, THENCE S 19DEG14MIN34SEC E 47.50' TO AN EPK, THENCE S 16DEG57MINI ISEC E 25.58, TO
AN EPK, THENCE S 16DEGOIMIN46SEC E 20.90' TO AN EPK, THENCE S 14DEG58MIN43SEC E 46.73 ' TO
AN EPK, THENCE S 13DEG50MINOI SEC E 20.54 ' TO AN EPK, THENCE S 14DEG 17MIN57SEC E 12.91' TO
AN EPK, THENCE S 13DEG32MIN44SEC E 1075.93' TO AN EPK, THENCE S 13DEG35MIN52SEC E 121.72,
TO A NEW IRON, THENCE LEAVING THE CENTERLINE OF SAID RAILWAY 8 1 DEG45MIN 15 SEC W
36.50' TO AN EXISTING IRON IN THE RIGHT OF WAY OF SAID RAILWAY, THENCE CONTINUING
N8 I DEG45MIN 15 SEC W 120.15' CROSSING A GRAVEL ROAD (DAURITY ROAD) TO AN EXISTING
IRON, THENCE N 8 1 DEG 13MIN40SECW 1288.53' TO AN EXISTING IRON, THENCE S 08DEG44MIN07SEC
W 640.37TO AN EXISTING IRON, THENCE S82DEG46MIN18SEC E 1152.35' TO A NEW IRON IN THE
CENTER OF A GRAVEL ROAD (DAURITY ROAD), THENCE AS THE CENTERLINE OF SAID ROAD S
34DEG38MIN07SEC W 21.50' TO A NEW IRON, THENCE LEAVING CENTERLINE OF SAID ROAD S
8 1 DEG53MIN37SECE 504.05' TO AN EXISTING IRON ON THE RIGHT OF WAY OF SAID RAILWAY,
THENCE S 81DEG53MIN37SEC E 11.30' TO A POINT WITHIN SAID RAILWAY, THENCE S
14DEG 13MINI ISEC E 635.61' TO A POINT WITHIN SAID RAILWAY, THENCE N82DEG25MIN52SECW
18.95' TO AN EXISTING IRON ON THE RIGHT OF WAY OF SAID RAILWAY, THENCE LEAVING SAID
RAILWAY N82DEG25MIN52SEC W 1063.94' TO AN EXISTING IRON IN THE CENTERLINE OF A
GRAVEL ROAD (DAURITY ROAD) LOCATED S46DEGI IMIN39 W 260.39' FROM USGS MONUMENT
"GOLDSTON" , THENCE N 82DEG39MIN06SEC W 148.18' TO AN EXISTING IRON, THENCE S
I IDEG20MIN09SEC W 222.04' TO AN EXISTING IRON, THENCE N 83DEG05MIN49SEC W 1419.06, TO AN
EXISTING IRON, THENCE N 75DEG29MIN17SEC W 928.66' TO AN EXISTING IRON, THENCE N
09DEG 12MIN31 SEC E 885.39' TO AN EXISTING IRON, THENCE N 09DEG08MIN07SEC E 539.23' TO AN
EXISTING IRON, THENCE N 8 1 DEG49MIN3 2 SEC W 135.27' TO AN EXISTING S-IRON, THENCE N
81DEG51MIN46SEC W 427.86' TO AN EXISTING S-IRON, THENCE N 81DEG54MIN29SEC W 196.69' TO
AN EXISTING S-IRON, THENCE N 81DEG51MIN2ISEC W 62.87' TO AN EXISTING S-IRON, THENCE S
07DEG38MIN16SEC W 107.69' TO AN EXISTING IRON, THENCE N 8 IDEG33MIN21 SEC W 899.30, TO AN
EXISTING IRON ON THE EASTERN RIGHT OF WAY OF S.R. 2306, THENCE N 8 IDEG33MIN21 SEC W
44.80' TO A POINT WITHIN THE RIGHT OF WAY OF SAID ROAD, THENCE N 2 1 DEG22MIN09SEC E
378.27' TO AN EPK 4' EAST OF CENTERLINE OF SAID ROAD, THENCE N 21DEG24MIN30SEC E 417.71'
TO THE BEGINNING CONTAINING 220.11 AC. MORE OR LESS AND BEING ALL OF TRACTS 1-4 AS
RECORDED AT P.B. 2013, PG. 8 AND TRACT 5 AS RECORDED AT P.B. 2103, PG. 121 CHATHAM
COUNTY REGISTRY.
SMRH:227707543.4

EXHIBIT D
BUY -SELL OPTION
(a) Buy -Sell Notice. Notwithstanding any provision of this Agreement to the
contrary, upon the occurrence of a Buy -Sell Event, either TPS or Branch (the "Initiating
Member") may give written notice (the "Buy -Sell Notice") to the other (the "Responding
Member") of its intent to invoke its option under Section 9 to cause, at the election of the
Responding Member, a buyout of the Responding Member's Membership Interest by the
Initiating Member, or a buyout of the Initiating Member's Membership Interest by the
Responding Member.
(b) Determination of FMV. The purchase price for the buyout under this Exhibit D
shall be determined as follows:
(i) Within five Business Days after the Initiating Member delivers the Buy -
Sell Notice, the Initiating Member shall select one appraiser and shall give written notice of its
selection to the Responding Member.
(ii) Within five Business Days after the Responding Member receives notice
of the Initiating Member's selection of an appraiser, the Responding Member shall select a
second appraiser and shall give written notice of its selection to the Initiating Member.
(iii) Each appraiser selected pursuant to this Exhibit D shall have not less than
ten (10) years' experience valuing companies in the aggregate industry.
(iv) Each appraiser so selected shall be instructed to make a determination of
the FMV in accordance with this Agreement within 15 days after such appraiser's selection. For
purposes of this Exhibit D, "FMV" shall mean the price at which a willing seller would sell and
at which a willing buyer would purchase the Company (or all or substantially all of the assets of
the Company) free and clear of all third party debt and all liens and security interests, neither of
whom is under any compulsion to sell or purchase.
(v) If only one appraiser has been so selected within five Business Days after
the Responding Member receives the Initiating Member's notice of the appraiser selected by the
Initiating Member, or if two appraisers have been so selected but only one appraiser has
determined the FMV within 15 days after the Initiating Member receives the Responding
Member's notice of the appraiser selected by the Responding Member, then the FMV shall be as
determined by such single appraiser.
(vi) If two appraisers have been so selected and both appraisers have made
their determination of the FMV within the aforesaid 15-day period, and
(A) if the difference between the two appraiser's determinations of the
FMV does not exceed five percent of the lesser of the two determinations, then the FMV shall be
the average of the two appraisers' determinations of the FMV; or

(B) if the difference between the two appraisers' determinations of the
FMV exceeds five percent of the lesser of the two determinations, then the two appraisers shall
be instructed to and shall have ten days after the. expiration of the 15-day period provided for in
clause (iv) above within which to select a third appraiser. If the two appraisers fail to select a
third appraiser within such ten-day period, either party may request the American Arbitration
Association, or any equivalent successor organization, to select a third appraiser within ten days
after receiving such request, and the parties shall be bound by any such selection made within
such ten-day period. If the American Arbitration Association, or any such successor
organization, fails to select the third appraiser meeting the qualifications set forth in the
foregoing clause (b)(iii) of this Exhibit D within such ten-day period, either party may apply to
any court having jurisdiction to make such selection. Any appraiser selected by the first two
appraisers, by the American Arbitration Association or such successor organization or by such
court shall be instructed to determine the FMV in accordance with this Agreement within 15
days after such selection. If the determination of the FMV by the third appraiser exceeds the
higher of the determinations of the FMV made by the first two appraisers, the FMV shall be the
higher of the determinations of the FMV made by the first two appraisers. If the determination
of the FMV by the third appraiser is less than the lower of the determinations of the FMV made
by the first two appraisers, the FMV shall be the lower of the determinations of the FMV made
by the first two appraisers. In all other cases, the FMV shall be the FMV as determined by the
third appraiser.
The determination of the FMV in accordance with this Section shall be final and binding
on the parties. The provisions of this Section for determination of the FMV by arbitration shall
be specifically enforceable, to the extent such remedy is available under applicable law. Each
party shall pay the cost of the appraiser selected by it and shall pay one-half (1/2) of the cost of
the third appraiser, if any. The Initiating Member and the Responding Member will use all
reasonable diligence to select appraisers in good faith and in a timely manner and to cause the
appraisers to perform in good faith and in a timely manner in order to make a determination of
the FMV on or before the date of the commencement of the applicable event.
(c) Exercise of Buy -Sell Option. Upon receipt of the Buy -Sell Notice, the
Responding Member shall then be obligated to either (i) sell to the Initiating Member for cash all
of its Membership Interest in the Company at a price equal to the amount that would be
distributed to the Responding Member in respect of its Units and any outstanding Default Loan
and Emergency Loans owed to the Responding Member in the event the Company was sold for a
price equal to FMV; or (ii) purchase all of the Membership Interest of the Initiating Member for
cash at a price equal to the amount that would be distributed to the Initiating Member in respect
of its Units and any outstanding Default Loan and Emergency Loans owed to the Initiating
Member in the event the Company was sold for a price equal to FMV.
The Responding Member shall notify the Initiating Member of its election within 60 days
after the date of its receipt of the Buy -Sell Notice. Failure by the Responding Member to give
such notice within the required time period shall be deemed an election by the Responding
Member to sell under subsection (c)(i) above. If, following an election by the Responding
Member to purchase under such subsection (c)(ii) above, the Responding Member shall fail to
timely consummate the purchase of the Initiating Member's Membership Interest in accordance
2

with the provisions of this Section, then, at the election of the Initiating Member, the Responding
Member shall sell to the Initiating Member pursuant to the provisions of subsection (c)(i) at
eighty-five percent (85%) of the original FMV.
(d) Closing, of Buy -Sell Option. The closing of any sale of a Membership Interest
pursuant to this Section (the "Closing") shall be held at the principal offices of the Company,
unless otherwise mutually agreed, on a mutually acceptable date not more than (i) 30 days (or
such longer period of time as the purchasing Member may request, not to exceed 15 additional
days, so long as it provides evidence reasonably acceptable to the selling Member that the
purchasing Member has adequate funds or financing from an institutional lender), after (A)
receipt by the Initiating Member of the Responding Member's written notice of election provided
in subsection (c) above, or (B) the expiration of the time within which the Responding Member
must so elect, as provided in subsection (c) above, if the Responding Member fails to give a
timely notice, or (ii) 120 days after the original closing date in the case where the Responding
Member (who elected to purchase under subsection (c)(ii)) fails to timely close (as described in
the last paragraph of subsection (c) above). If a closing date is not mutually agreed upon, closing
shall be at 2:00 P.M., Central Time, on- the date the foregoing time period expires or the next
Business Day thereafter if such date is not a Business Day.
Any Member transferring any Membership Interest pursuant to this Section shall transfer
such Membership Interest free and clear of any liens, encumbrances or interests of any third
party and shall execute or cause to be executed any and all documents required to fully transfer
such Membership Interest to the acquiring Member (or its designee), including, but not limited
to, any documents necessary to evidence such transfer and all documents required to release any
interest of any other party who may claim an interest in such Membership Interest. Any existing
monetary default of the selling Member under this Agreement shall be cured out of the proceeds
from such sale at the closing. Following the date of closing, the selling Member shall have no
further rights to any distributions, allocations or other income, and all such rights shall vest in the
selling Member's transferee. A purchasing Member pursuant to this Section shall have the right
to seek specific performance in the event the selling member defaults in its obligation to sell
under this Section. If the Responding Member (who elected to purchase under such subsection
(c)(ii) above) fails to timely close, and, consequently, the Initiating Member elects to become the
purchasing Member (all as further described in this Section), but thereafter the Initiating Member
also fails to timely close, then the Buy -Sell Notice arising from the particular Buy -Sell Event
shall expire, provided that either Member may thereafter become an Initiating Member again.
(e) No Buy -Sell Notice. If neither TPS nor Branch delivers a Buy -Sell Notice within
20 days following the delivery of a Deadlock Notice, then the Buy -Sell Event shall be deemed
cancelled and no further Deadlock resolution procedures shall be taken with respect to such
Deadlock without recommencing the Deadlock resolution procedures in accordance with
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3

EXHIBIT E
MAJOR DECISIONS AND FUNDAMENTAL DECISIONS
PART A — MAJOR DECISIONS
(a) The granting of any incentive equity to any Person pursuant to a plan or scheme
approved pursuant to Part B of Exhibit E, or granting of or changes to the remuneration paid to
any Member or Affiliate of any Member pursuant to an agreement with the Company;
(b) Entering into any long term contract (including any loan or line of credit) or
commitment involving the Company in an amount above $200,000 total or $20,000 monthly or
that cannot be terminated within 60 days' or less notice or a contract involving any other material
obligation, in each case that is not provided for in or contemplated by the applicable annual
budget;
(c) Entering into a contract which contains any guarantee, indemnity or pledge over
any of the assets or similar of the Company or any Subsidiary (other than a purchase money
security interest);
(d) Approving, or making any material amendments to, the Company's annual
budget;
(e) Any expenditure which deviates from the annual budget (including any item of
material expenditure not contemplated by the annual budget) or is a single item in excess of
$25,000 or series of payments in excess of $250,000 or any step in relation to the Company
which could lead to a material change in the operations or financial prospects of the Company;
(f) The formation of any Subsidiary;
(g) Making a call for Additional Capital Contributions in excess of the amount
provided for the same in the applicable annual budget; and
(h) Any buy-back of Units by the Company,
PART B — FUNDAMENTAL DECISIONS
(a) Materially amending the rights of the Members of the Company expressly set
forth in this Agreement;
(b) Acquiring the stock or equity interests or substantially all of the assets of any
other entity or merging therewith, regardless of the nature or amount of consideration given
therefor;
(c) Establishing or increasing the benefits of any deferred compensation, profit
sharing, equity option, phantom equity, pension or retirement arrangement or plan, if any;
(d) Investing in any other entity;

(e) Amending the Certificate of Formation or this Agreement;
(f) Issuance of additional Units (except as provided in Section 1 Q(c));
(g) Any change in the purpose of the Company;
(h) Any sale, merger, consolidation, corporate reorganization, or similar transaction
with respect to the Company;
(i) Any sale, lease or disposition of any material assets of the Company or any
Subsidiary other than in the ordinary course of business;
0) Any material amendment to, or any decision to exercise or not to exercise any
material right under, or any material step taken in relation to, any material agreement relating to
(i) the Company or any Subsidiary or (ii) the Company and its Subsidiaries taken as a whole;
(k) Admitting a new member to the Company, except in connection with a Permitted
Transfer;
(1) Entering into any bankruptcy or insolvency proceedings or similar; and
(m) Any transaction between the Company and any Member or an Affiliate of a
Member (other than a transaction described in Section 7�e)(jW).
2

EXHIBIT F
RIGHT OF FIRST OFFER
A Member desiring to engage in a Restricted Opportunity (the "Restricted Member")
shall not be permitted to do so unless such Restricted Member submits such Restricted
Opportunity to the other Member (the "Responding Member") and provides the Responding
Member with a right of first offer to participate in such Restricted Opportunity as set forth
below:
(i) The Restricted Member shall submit to the Responding Member in writing the
reasonable information regarding such Restricted Opportunity reasonably required for
consideration of such Restricted Opportunity (including, without limitation, a description of the
applicable Restricted Opportunity, a budget, a business plan, an offering memorandum (if
available), any term sheet, and other underwriting materials, if any, prepared by any Restricted
Party or made available to any of them with respect to the Restricted Opportunity) (the foregoing
being collectively referred as to the "ROFO Restricted Opportunity Terms").
(ii) Within ten (10) Business Days after receipt of any such submission of the ROFO
Restricted Opportunity Terms (the "ROFO Investment Response Period"), the Responding
Member shall deliver a response (the "ROFO Investment Response Notice") stating either (x)
that the Responding Member elects to waive its right to invest in any such Restricted
Opportunity or (y) that the Responding Member desires to invest and participate in such
Restricted Opportunity, which investment may be made by the Responding Member or any of its
Affiliates (which election made under this subsection (y) shall constitute a preliminary non-
binding election).
(iii) If the Responding Member delivers a ROFO Investment Response Notice under
subsection (ii)(x) above (or fails to timely deliver a response pursuant to subsection (ii)(y)
above), thereafter the Restricted Member shall have the right to pursue such Restricted
Opportunity for its own account without the participation of the Responding Member or its
Affiliates (it being understood that if such Restricted Opportunity is to be pursued on terms
substantially more favorable than those offered to the Responding Member or if such Restricted
Opportunity does not close within one hundred eighty (180) days after the date the Restricted
Member notified the Responding Member of such Restricted Opportunity, then the applicable
Restricted Party shall not pursue such Restricted Opportunity until such Restricted Opportunity
is again offered to the Responding Member in accordance with the terms of this Exhibit F).
(iv) If the Responding Member delivers a ROFO Investment Response Notice under
subsection (ii)(y) above, the Restricted Member and the Responding Member shall negotiate the
terms of such co -investment in such Restricted Opportunity which will be substantially the same
form and substance of this Agreement modified to reflect the description of the ROFO Restricted
Opportunity Terms as applicable (each, a "Co -Investment Agreement"); provided, however, the
Responding Member may withdraw from such negotiations at any time, for any reason or for no
reason, without liability to any party.