Exhibit
10.1

    


    
      	
               

              THIRD
      AMENDED AND RESTATED

               

              LIMITED
      LIABILITY COMPANY AGREEMENT

               

              OF

               

              BIOFUEL
      ENERGY, LLC

               

              THE
      LLC INTERESTS REPRESENTED BY THIS THIRD AMENDED AND RESTATED LIMITED
      LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED
      STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE
      SECURITIES LAWS.  SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED,
      PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE
      REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND
      COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET
      FORTH HEREIN.

               

              CERTAIN
      OF THE LLC INTERESTS REPRESENTED BY THIS THIRD AMENDED AND RESTATED
      LIMITED LIABILITY COMPANY AGREEMENT ARE SUBJECT TO CONDITIONS AND
      RESTRICTIONS ON TRANSFER SET FORTH HEREIN, AND THE LLC RESERVES THE RIGHT
      TO REFUSE THE TRANSFER OF SUCH INTERESTS UNLESS AND UNTIL SUCH CONDITIONS
      HAVE BEEN FULFILLED WITH RESPECT TO THE REQUESTED TRANSFER.

                 

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    TABLE OF
CONTENTS

     

    
      
        
          
            
              
                
                  
                    	 
      	
                              

                          	 
      	
                              

                          	
                            Page

                          
	 
      	 
      	 
      	 
      	 
      
	
                            ARTICLE
      I

                          
	 
      
	
                            Definitions
      and Usage

                          
	 
      	 
      	 
      	 
      	 
      
	
                            SECTION
      1.01.

                          	 
      	
                            Definitions

                          	 
      	
                            1

                          
	
                            SECTION
      1.02.

                          	 
      	
                            Usage
      Generally; Interpretation

                          	 
      	
                            13

                          
	 
      	 
      	 
      	 
      	 
      
	
                            ARTICLE
      II

                          
	 
      
	
                            Organizational
      and Other Matters

                          
	 
      	 
      	 
      	 
      	 
      
	
                            SECTION
      2.01.

                          	 
      	
                            Formation
      and Continuation of LLC; Effective Time

                          	 
      	
                            13

                          
	
                            SECTION
      2.02.

                          	 
      	
                            Limited
      Liability Company Agreement

                          	 
      	
                            14

                          
	
                            SECTION
      2.03.

                          	 
      	
                            Name

                          	 
      	
                            14

                          
	
                            SECTION
      2.04.

                          	 
      	
                            Purpose

                          	 
      	
                            14

                          
	
                            SECTION
      2.05.

                          	 
      	
                            Principal
      Office; Registered Office

                          	 
      	
                            14

                          
	
                            SECTION
      2.06.

                          	 
      	
                            Term

                          	 
      	
                            14

                          
	
                            SECTION
      2.07.

                          	 
      	
                            Foreign
      Qualification

                          	 
      	
                            15

                          
	
                            SECTION
      2.08.

                          	 
      	
                            Tax
      Classification of LLC

                          	 
      	
                            15

                          
	 
      	 
      	 
      	 
      	 
      
	
                            ARTICLE
      III

                          
	 
      
	
                            Management

                          
	 
      	 
      	 
      	 
      	 
      
	
                            SECTION
      3.01.

                          	 
      	
                            Sole
      Manager

                          	 
      	
                            15

                          
	
                            SECTION
      3.02.

                          	 
      	
                            Authority
      of the Sole Manager

                          	 
      	
                            15

                          
	
                            SECTION
      3.03.

                          	 
      	
                            Authority
      of Members

                          	 
      	
                            15

                          
	
                            SECTION
      3.04.

                          	 
      	
                            Removal
      and Replacement of Manager

                          	 
      	
                            16

                          
	
                            SECTION
      3.05.

                          	 
      	
                            Reliance
      by Third Parties

                          	 
      	
                            16

                          
	
                            SECTION
      3.06.

                          	 
      	
                            Officers

                          	 
      	
                            16

                          
	 
      	 
      	 
      	 
      	 
      
	
                            ARTICLE
      IV

                          
	 
      
	
                            Distributions
      and Allocations

                          
	 
      	 
      	 
      	 
      	 
      
	
                            SECTION
      4.01.

                          	 
      	
                            Distributions

                          	 
      	
                            17

                          
	
                            SECTION
      4.02.

                          	 
      	
                            Liquidation
      Distribution

                          	 
      	
                            21

                          
	
                            SECTION
      4.03.

                          	 
      	
                            Limitations
      on Distribution

                          	 
      	
                            21

                          
	
                            SECTION
      4.04.

                          	 
      	
                            Allocations

                          	 
      	
                            21

                          
	
                            SECTION
      4.05.

                          	 
      	
                            Special
      Allocations

                          	 
      	
                            22

                          
	
                            SECTION
      4.06.

                          	 
      	
                            Tax
      Withholding; Withholding Advances

                          	 
      	
                            23

                          


                  

                

              

            

          

        

      

    


    
      
         


      

      
        i

        
          

        

      

      
         


      

    

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            	
                                                    ARTICLE
      V

                                                  
	 
      
	
                                                    Capital
      Contributions; Capital Accounts; Tax Matters

                                                  
	 
      	 
      	 
      	 
      	 
      
	
                                                    SECTION
      5.01.

                                                  	 
      	
                                                    Capital
      Contributions.

                                                  	 
      	
                                                    24

                                                  
	
                                                    SECTION
      5.02.

                                                  	 
      	
                                                    No
      Additional Capital Contributions

                                                  	 
      	
                                                    24

                                                  
	
                                                    SECTION
      5.03.

                                                  	 
      	
                                                    Capital
      Accounts

                                                  	 
      	
                                                    24

                                                  
	
                                                    SECTION
      5.04.

                                                  	 
      	
                                                    Negative
      Capital Accounts

                                                  	 
      	
                                                    25

                                                  
	
                                                    SECTION
      5.05.

                                                  	 
      	
                                                    Loans
      From Members

                                                  	 
      	
                                                    25

                                                  
	
                                                    SECTION
      5.06.

                                                  	 
      	
                                                    Preparation
      of Tax Returns

                                                  	 
      	
                                                    25

                                                  
	
                                                    SECTION
      5.07.

                                                  	 
      	
                                                    Tax
      Elections

                                                  	 
      	
                                                    26

                                                  
	
                                                    SECTION
      5.08.

                                                  	 
      	
                                                    Tax
      Matters Member

                                                  	 
      	
                                                    26

                                                  
	 
      
	
                                                    ARTICLE
      VI

                                                  
	 
      
	
                                                    Books,
      Records, Accounting and Reports

                                                  
	 
      	 
      	 
      	 
      	 
      
	
                                                    SECTION
      6.01.

                                                  	 
      	
                                                    Records
      and Accounting

                                                  	 
      	
                                                    26

                                                  
	
                                                    SECTION
      6.02.

                                                  	 
      	
                                                    Fiscal
      Year

                                                  	 
      	
                                                    26

                                                  
	 
	
                                                    ARTICLE
      VII

                                                  
	 
	
                                                    LLC
      Units

                                                  
	 
	
                                                    SECTION
      7.01.

                                                  	 
      	
                                                    Units

                                                  	 
      	
                                                    26

                                                  
	
                                                    SECTION
      7.02.

                                                  	 
      	
                                                    Cargill
      Stock Payment

                                                  	 
      	
                                                    27

                                                  
	
                                                    SECTION
      7.03.

                                                  	 
      	
                                                    Register

                                                  	 
      	
                                                    27

                                                  
	
                                                    SECTION
      7.04.

                                                  	 
      	
                                                    Splits,
      Distributions and Reclassifications of Common Stock

                                                  	 
      	
                                                    27

                                                  
	
                                                    SECTION
      7.05.

                                                  	 
      	
                                                    Splits,
      Distributions and Reclassifications of Series A Non-Voting Convertible
      Preferred Stock

                                                  	 
      	
                                                    27

                                                  
	
                                                    SECTION
      7.06.

                                                  	 
      	
                                                    Cancellation
      of Common Stock and Units

                                                  	 
      	
                                                    27

                                                  
	
                                                    SECTION
      7.07.

                                                  	 
      	
                                                    Incentive
      Plans

                                                  	 
      	
                                                    28

                                                  
	
                                                    SECTION
      7.08.

                                                  	 
      	
                                                    Offerings
      of Common Stock

                                                  	 
      	
                                                    28

                                                  
	
                                                    SECTION
      7.09.

                                                  	 
      	
                                                    Registered
      Members

                                                  	 
      	
                                                    28

                                                  
	
                                                    SECTION
      7.10.

                                                  	 
      	
                                                    Certification
      and Terms of Common Units

                                                  	 
      	
                                                    28

                                                  
	
                                                    SECTION
      7.11.

                                                  	 
      	
                                                    Certification
      and Terms of Preferred Units

                                                  	 
      	
                                                    30

                                                  
	 
      	 
      	 
      	 
      	 
      
	
                                                    ARTICLE
      VIII

                                                  
	 
	
                                                    Transfer
      of LLC Interests

                                                  
	 
      	 
      	 
      	 
      	 
      
	
                                                    SECTION
      8.01.

                                                  	 
      	
                                                    Restrictions
      on Transfer

                                                  	 
      	
                                                    31

                                                  
	
                                                    SECTION
      8.02.

                                                  	 
      	
                                                    Permitted
      Transfers

                                                  	 
      	
                                                    32

                                                  
	
                                                    SECTION
      8.03.

                                                  	 
      	
                                                    Permitted
      Exchanges

                                                  	 
      	
                                                    32

                                                  
	
                                                    SECTION
      8.04.

                                                  	 
      	
                                                    Further
      Restrictions

                                                  	 
      	
                                                    33

                                                  
	
                                                    SECTION
      8.05.

                                                  	 
      	
                                                    Transferee’s
      Rights

                                                  	 
      	
                                                    34

                                                  
	
                                                    SECTION
      8.06.

                                                  	 
      	
                                                    Transferor’s
      Rights and Obligations

                                                  	 
      	
                                                    34

                                                  
	
                                                    SECTION
      8.07.

                                                  	 
      	
                                                    Substituted
      Members

                                                  	 
      	
                                                    34

                                                  
	
                                                    SECTION
      8.08.

                                                  	 
      	
                                                    Additional
      Members

                                                  	 
      	
                                                    35

                                                  


                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
         

      

      
        ii

        
          

        

      

      
         

      

    

     

    
      
        
          
            
              
                
                  
                    
                      	
                              SECTION
      8.09.

                            	 
      	
                              Attempted
      Transfer Void

                            	 
      	
                              35

                            
	
                              SECTION
      8.10.

                            	 
      	
                              Withdrawal

                            	 
      	
                              35

                            
	
                              SECTION
      8.11.

                            	 
      	
                              Required
      Amendments; Continuation

                            	 
      	
                              35

                            
	
                              SECTION
      8.12.

                            	 
      	
                              Resignation

                            	 
      	
                              35

                            
	 
      	 
      	 
      	 
      	 
      
	
                              ARTICLE
      IX

                            
	 
	
                              Dissolution
      and Liquidation

                            
	 
      	 
      	 
      	 
      	 
      
	
                              SECTION
      9.01.

                            	 
      	
                              Dissolution

                            	 
      	
                              36

                            
	
                              SECTION
      9.02.

                            	 
      	
                              Liquidation
      and Termination

                            	 
      	
                              36

                            
	
                              SECTION
      9.03.

                            	 
      	
                              Certificate
      of Cancellation

                            	 
      	
                              38

                            
	
                              SECTION
      9.04.

                            	 
      	
                              Reasonable
      Time for Winding Up

                            	 
      	
                              38

                            
	
                              SECTION
      9.05.

                            	 
      	
                              Return
      of Capital

                            	 
      	
                              38

                            
	 
      	 
      	 
      	 
      	 
      
	
                              ARTICLE
      X

                            
	 
	
                              Rights
      and Obligations of Members

                            
	 
      	 
      	 
      	 
      	 
      
	
                              SECTION
      10.01.

                            	 
      	
                              Limitation
      of Liability

                            	 
      	
                              38

                            
	
                              SECTION
      10.02.

                            	 
      	
                              Exculpation

                            	 
      	
                              39

                            
	
                              SECTION
      10.03.

                            	 
      	
                              Lack
      of Authority

                            	 
      	
                              39

                            
	
                              SECTION
      10.04.

                            	 
      	
                              No
      Right of Partition

                            	 
      	
                              39

                            
	
                              SECTION
      10.05.

                            	 
      	
                              Indemnification

                            	 
      	
                              39

                            
	 
      	 
      	 
      	 
      	 
      
	
                              ARTICLE
      XI

                            
	 
	
                              General
      Provisions

                            
	 
      	 
      	 
      	 
      	 
      
	
                              SECTION
      11.01.

                            	 
      	
                              Power
      of Attorney

                            	 
      	
                              40

                            
	
                              SECTION
      11.02.

                            	 
      	
                              Further
      Action

                            	 
      	
                              41

                            
	
                              SECTION
      11.03.

                            	 
      	
                              Amendments

                            	 
      	
                              41

                            
	
                              SECTION
      11.04.

                            	 
      	
                              Title
      to LLC Assets

                            	 
      	
                              41

                            
	
                              SECTION
      11.05.

                            	 
      	
                              Remedies

                            	 
      	
                              41

                            
	
                              SECTION
      11.06.

                            	 
      	
                              Successors
      and Assigns

                            	 
      	
                              42

                            
	
                              SECTION
      11.07.

                            	 
      	
                              Severability

                            	 
      	
                              42

                            
	
                              SECTION
      11.08.

                            	 
      	
                              Counterparts

                            	 
      	
                              42

                            
	
                              SECTION
      11.09.

                            	 
      	
                              Applicable
      Law

                            	 
      	
                              42

                            
	
                              SECTION
      11.10.

                            	 
      	
                              Addresses
      and Notices

                            	 
      	
                              42

                            
	
                              SECTION
      11.11.

                            	 
      	
                              Creditors;
      Third Party Beneficiaries

                            	 
      	
                              42

                            
	
                              SECTION
      11.12.

                            	 
      	
                              Waiver

                            	 
      	
                              43

                            
	
                              SECTION
      11.13.

                            	 
      	
                              Entire
      Agreement

                            	 
      	
                              43

                            
	
                              SECTION
      11.14.

                            	 
      	
                              Delivery
      by Facsimile

                            	 
      	
                              43

                            
	
                              SECTION
      11.15.

                            	 
      	
                              Waiver
      of Certain Rights

                            	 
      	
                              43

                            
	
                              SECTION
      11.16.

                            	 
      	
                              Survival

                            	 
      	
                              43

                            


                    

                  

                

              

            

          

        

      

    


    
      
         


      

      
        iii

        
          

        

      

      
         


      

    

    


    
      	
              Schedule
      A – IPO Effective Time Unit Ownership

            
	
              Schedule
      B – Effective Time Unit Ownership

            
	
              Schedule
      C – Management Members

            
	
              Schedule
      D - Form of LLC Common Unit Certificate

            
	
              Schedule
      E - Form of LLC Preferred Unit
Certificate

            


    


    
      
         


      

      
        iv

        
          

        

      

      
         


      

    


    THIS
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of
BioFuel Energy, LLC (the “LLC” or the “Company”), is made as
of February 4, 2011, among the Members (as defined below).

     

    WHEREAS
the LLC was formed by the filing of a Certificate of Formation with the
Secretary of State of Delaware on January 25, 2006; and

     

    WHEREAS
the Members desire that this Agreement amend and restate in its entirety the
Second Amended and Restated Limited Liability Company Agreement of the LLC,
dated as of June 19, 2007 (the “Existing LLC
Agreement”).

     

    NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:

     

    ARTICLE
I


     

    Definitions and
Usage

     

    SECTION
1.01.  Definitions.  Capitalized
terms used but not otherwise defined herein shall have the following
meanings:

     

    “Accounting Firm” has
the meaning set forth in Section 4.01(d).

     

    “Additional Credit
Amount” has the meaning set forth in Section 4.01(f).

     

    “Adjusted Capital Account
Deficit” means with respect to any Capital Account as of the end of any
Fiscal Year, the amount by which the balance in such Capital Account is less
than zero.  For this purpose, a Member’s Capital Account balance shall
be:

     

    (i)  reduced
for any items described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6); and

     

    (ii)  increased
for any amount such Member is obligated to contribute or is treated as being
obligated to contribute to the LLC pursuant to the penultimate sentences of
Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5).

     

    The
foregoing definition of Adjusted Capital Account Deficit is intended to comply
with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.

     

    “Admission Date” has
the meaning set forth in Section 8.06.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    “Affiliate” of any
particular Person means any other Person controlling, controlled by or under
common control with such particular Person, where “control” means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities, by
contract or otherwise.

     

    “Agreement” has the
meaning set forth in the preamble.

     

    “Amended Tax Amount”
has the meaning set forth in Section 4.01(f).

     

    “A&R LLC
Agreement” means the First Amended and Restated Limited Liability Company
Agreement of the LLC, as such agreement was in effect on June 19,
2007.

     

    “Assumed Tax Rate”
means the highest effective marginal combined U.S. federal, state and local
income tax rate for a Fiscal Year for an individual or corporate resident in New
York, New York (taking into account (a) the nondeductibility of expenses subject
to the limitation described in Section 67(a) of the Code and (b) the character
(e.g.,
long-term or short-term capital gain or ordinary or tax-exempt income) of the
applicable income).  For the avoidance of doubt, the Assumed Tax Rate
will be the same for all Members.

     

    “Available Cash” means
cash of the LLC which the Manager determines is available for distribution to
the Members.

     

    “Book Value” means,
except as set forth below, the adjusted basis of any LLC property for federal
income tax purposes:

     

    (i)   Initial Book
Value.  The initial Book Value of any property contributed by a
Member to the LLC shall be the gross fair market value of such property at the
time of such contribution.

     

    (ii)  Adjustments.  The
Book Value of all of the LLC’s property shall be adjusted by the LLC to equal
the respective gross Fair Market Values of such property, as determined by the
Manager, as of the following times: (a) immediately before the admission of a
new Member to the LLC or the acquisition by an existing Member of an additional
interest in the LLC from the LLC; (b) immediately before the Distribution by the
LLC of money or property to a retiring or continuing Member in consideration for
the retirement of all or a portion of such Member’s interest in the LLC; and (c)
immediately before the dissolution of the LLC under Section 9.02 of this
Agreement.  The Book Value of all of the LLC’s property may also be
adjusted by the LLC to equal its Fair Market Value, as determined by the
Manager, at such other times as determined by the Manager.

     

    (iii) Depreciation and
Amortization.  The Book Value of LLC property shall be adjusted
for the depreciation and amortization of such property taken into account in
computing Net Income and Net Loss and for LLC expenditures and transactions that
increase or decrease the property’s federal income tax basis.


    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

    “Bridge Loan” means
the term loan made pursuant to the Bridge Loan Agreement.

     

    “Bridge Loan
Agreement” means the Loan Agreement by and among the Corporation and the
lenders party thereto and Greenlight APE, L.L.C., as Administrative Agent, dated
September 24, 2010, as such may be amended from time to time.

     

    “Bridge Loan Capital
Contribution” has the meaning set forth in Section 5.01(b).

     

    “Bridge Loan Principal
Amount” means $19,420,620.

     

    “Bridge Preferred
Distributions” has the meaning set forth in Section 4.01(g).

     

    “Bridge Preferred Interest
Liquidation Preference” means an amount equal to the unpaid Bridge
Preferred Distributions.

     

    “Bridge Preferred LLC
Interest” means a membership interest of the Bridge Preferred Member in
Net Income, Net Losses and Distributions in the LLC having a priority with
respect to Distributions as specified in Article IV.

     

    “Bridge Preferred
Member” means the Corporation in its capacity as the sole holder of the
Bridge Preferred LLC Interest.

     

    “Bridge Preferred
Return” means a cumulative yield on the Bridge Loan Capital Contribution,
calculated using the same Interest Rate (as defined in the Bridge Loan
Agreement) and rate of accrual used to compute all interest due on the principal
balance of the Bridge Loan outstanding (as determined pursuant to Articles 3 and
4 of the Bridge Loan Agreement).

     

    “Business Day” means
any day other than Saturday, Sunday and any day that is a legal holiday in New
York, New York or a day on which banking institutions in New York, New York are
authorized by law or other governmental action to close.

     

    “Capital Account” has
the meaning set forth in Section 5.03.

     

    “Capital
Contributions” means, with respect to any Member, any contribution,
whether in cash or other property, made by such Member to the LLC pursuant to
the terms of this Agreement.

     

    “Cargill” means
Cargill Biofuels Investments, LLC, a Delaware limited liability company, and any
of its Affiliates, so long as such Affiliate is also an Affiliate of Cargill,
Incorporated, a Delaware corporation.

     

    “Cargill Letter” means
the letter agreement dated September 23, 2010 among the Corporation, Cargill,
Inc., Cargill Commodity Services, Inc., BFE Operating Company, LLC, Pioneer
Trail Energy, LLC and Buffalo Lake Energy, LLC, as such may be amended from time
to time.


    
      
         


      

      
        3

        
          

        

      

      
         


      

    

     

    “Cargill Stock
Payment” shall mean the issuance of Depositary Shares to Cargill, Inc. in
connection with the stock payment to Cargill, Inc. contemplated by clause (B) of
the second sentence of the third to last paragraph of the Cargill
Letter.

     

    “Certificate” means
the LLC’s Certificate of Formation as filed with the Secretary of State of
Delaware, as amended to the date hereof.

     

    “Certificate of
Incorporation” means the certificate of incorporation, as may be amended
from time to time, of the Corporation.

     

    “Class B Stock” means
the Class B Common Stock, par value $0.01 per share, of the Corporation
authorized and issued under Section 4.01(b) of the Certificate of Incorporation
or any applicable successor provision.

     

    “Code” means the
United States Internal Revenue Code of 1986, as amended from time to time, or
any successor statute.

     

    “Common LLC Interest”
means a membership interest of a Member in Net Income, Net Losses and
Distributions having the rights, powers and duties set forth in this
Agreement.

     

    “Common Stock” means
the Common Stock, par value $0.01 per share, of the Corporation authorized and
issued under Section 4.01(a) of the Certificate of Incorporation or any
applicable successor provision.

     

    “Common Unit” means a
Common LLC Interest of a Member in the LLC representing a fractional part of the
Common LLC Interests of all Members; provided that any Common Units issued shall
have rights, powers and duties set forth in this Agreement.

     

    “Common Unit
Percentage” means, with respect to any Member, a fraction (expressed as a
percentage) established at the time of determination by dividing (i) the number
of Common Units held by such Member at such time by (ii) the total number of
Common Units held by all Members at such time.

     

    “Corporation” means
BioFuel Energy Corp., a Delaware corporation.

     

    “Covered Person” has
the meaning set forth in Section 10.01.

     

    “Credit Amount” has
the meaning set forth in Section 4.01(f).

     

    “Delaware Act” means
the Delaware Limited Liability Company Act, 6 Del. L. Section 18-101,
et seq., as it may be
amended from time to time, and any successor to the Delaware
Act.


    
      
         


      

      
        4

        
          

        

      

      
         


      

    

     

    “Depositary Shares”
means the depositary shares, each representing a fractional interest in a share
of Series A Non-Voting Convertible Preferred Stock of the Corporation, to be
issued in connection with the consummation of the Rights Offering and the making
of the Cargill Stock Payment.

     

    “Disabling Event”
means the Manager ceasing to be the managing member of the LLC.

     

    “Distribution” means
each distribution made by the LLC to a Member, whether in cash, property or
securities of the LLC and whether by distribution, redemption, repurchase or
otherwise.

     

    “Edelman” means Thomas
J. Edelman.

     

    “Effective Time” has
the meaning set forth in Section 2.01.

     

    “Escrow Agent” means
JPMorgan Chase Bank, N.A. in its capacity as escrow agent under the Escrow
Agreement.

     

    “Escrow Agreement”
means the escrow agreement dated June 19, 2007 among the Management Members
(other than Edelman), the other Members party thereto and the Escrow
Agent.

     

    “Escrowed Securities”
has the meaning set forth in Section 4.01(b).

     

    “Excess Amount” has
the meaning set forth in Section 4.01(e).

     

    “Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.

     

    “Exchange Rate” has
the meaning set forth in Section 8.03(a).

     

    “Existing LLC
Agreement” has the meaning set forth in the preamble to this
Agreement.

     

    “Fair Market Value”
has the meaning set forth in Section 9.02(c).

     

    “Family Members” has
the meaning set forth in Section 8.02(a).

     

    “Final Tax Amount” has
the meaning set forth in Section 4.01(f).

     

    “Fiscal Period” means
any interim accounting period within a Fiscal Year established by the Manager
and which is permitted or required by Section 706 of the Code.

     

    “Fiscal Year” means
the LLC’s annual accounting period established pursuant to
Section 6.02.


    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    “Greenlight”  means,
collectively, Greenlight Capital, L.P., Greenlight Capital Qualified, L.P.,
Greenlight Capital Offshore, Ltd. and Greenlight Reinsurance, Ltd.

     

    “Greenlight/Third Point
Sale” means a sale by Greenlight or Third Point of shares of Common Stock
that occurs after the IPO Effective Time and prior to the True-Up Date; provided, however, that a
Greenlight/Third Point Sale shall only be deemed to occur:

     

    (a)  for
Greenlight, with respect to sales by Greenlight of an aggregate number of shares
of Common Stock not to exceed 9,353,500 (as such number may be adjusted for
stock splits, stock dividends, recapitalizations, reorganizations and other
similar transactions) shares, with any sales by Greenlight of shares of Common
Stock in excess of such amount not being deemed to be Greenlight/Third Point
Sales for any purpose of this Agreement; and

     

    (b)  for
Third Point, with respect to sales by Third Point of an aggregate number of
shares of Common Stock not to exceed 4,676,750 (as such number may be adjusted
for stock splits, stock dividends, recapitalizations, reorganizations and other
similar transactions) shares, with any sales by Third Point of shares of Common
Stock in excess of such amount not being deemed to be Greenlight/Third Point
Sales for any purpose of this Agreement.

     

    For
purposes of this definition, the word “sale” shall include any pledge, sale,
contract to sell, or the grant of any option, right or warrant to purchase, or
other disposition or transfer for value of, or the entry into any swap or other
agreement that transfers, in whole or in part, the economic consequences of
ownership of, shares of Common Stock.

     

    “Greenlight/Third Point
Specified A Unit Percentage” shall mean a percentage that is determined
by adding together the respective Specified A Unit Percentages of Greenlight and
Third Point.

     

    “Incapacity” means,
with respect to any Person, the bankruptcy, dissolution, termination, entry of
an order of incompetence, or the insanity, permanent disability or death of such
Person.

     

    “Incentive Plan” means
any equity incentive or similar plan pursuant to which the Corporation may issue
shares of its Common Stock from time to time.

     

    “Indebtedness” means
at a particular time, without duplication, (i) any indebtedness for
borrowed money or issued in substitution for or exchange of indebtedness for
borrowed money, (ii) any indebtedness evidenced by any note, bond,
debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade payables
and other current liabilities incurred in the ordinary course of business which
are not more than six months past due), (iv) any commitment by which a
Person assures a creditor against loss (including, without limitation,
contingent reimbursement obligations with respect to letters of credit),
(v) any indebtedness guaranteed in any manner by a Person (including
guarantees in the form of an agreement to repurchase or reimburse),
(vi) any obligations under capitalized or synthetic leases with respect to
which a Person is liable, contingently or otherwise, as obligor, guarantor or
otherwise, or with respect to which obligations a Person assures a creditor
against loss, (vii) any indebtedness secured by a Lien on a Person’s assets
and (viii) any fees, penalties or accrued and unpaid interest with respect
to the foregoing.


    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

    “Indemnified Person”
has the meaning set forth in Section 10.05(a).

     

    “Individual Sale Company
Valuation” shall be determined upon the occurrence of each
Greenlight/Third Point Sale and shall be the product of (i) the price per
share of Common Stock sold by Greenlight or Third Point in such Greenlight/Third
Point Sale, (ii) 23,000,000 and (iii) the quotient obtained by
dividing (A) the number of shares sold by Greenlight or Third Point in such
Greenlight/Third Point Sale by (B) 14,030,250; provided, however,
that:

     

    (a)  if
on the True-Up Date Greenlight has sold less than an aggregate of 9,353,500 (as
such number may be adjusted for stock splits, stock dividends,
recapitalizations, reorganizations and other similar transactions) shares of
Common Stock, then for purposes of calculating Individual Sale Company
Valuations, Greenlight shall be deemed to have sold on the True-Up Date a number
of shares of Common Stock equal to the excess of (i) 9,353,500 (as such number
may be adjusted for stock splits, stock dividends, recapitalizations,
reorganizations and other similar transactions) shares of Common Stock, over
(ii) the aggregate number of shares of Common Stock actually sold by Greenlight
prior to the True-Up Date, at a price per share equal to the Trading Price of
the Common Stock as of the True-Up Date; and

     

    (b)  if
on the True-Up Date Third Point has sold less than an aggregate of 4,676,750 (as
such number may be adjusted for stock splits, stock dividends,
recapitalizations, reorganizations and other similar transactions) shares of
Common Stock, then for purposes of calculating Individual Sale Company
Valuations, Third Point shall be deemed to have sold on the True-Up Date a
number of shares of Common Stock equal to the excess of (i) 4,676,750 (as such
number may be adjusted for stock splits, stock dividends, recapitalizations,
reorganizations and other similar transactions) shares of Common Stock, over
(ii) the aggregate number of shares of Common Stock actually sold by Third Point
prior to the True-Up Date, at a price per share equal to the Trading Price of
the Common Stock as of the True-Up Date.

     

    “IPO” means the
initial public offering of Common Stock, pursuant to a Registration Statement on
Form S-1 (Registration No. 333-139203).

     

    “IPO Effective Time”
means June 19, 2007.

     

    “IPO Effective Time
Units” means, with respect to any Member, the number of Units held by
such Member as of the IPO Effective Time as set forth on Schedule A; provided, however, that,
notwithstanding Schedule A, Edelman’s IPO Effective Time Units shall be
1,156,834.


    
      
         


      

      
        7

        
          

        

      

      
         


      

    

     

    “Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance, lien
(statutory or other) or preference, priority, right or other security interest
or preferential arrangement of any kind or nature whatsoever (excluding
preferred stock and equity-related preferences), including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease obligation, or any
financing lease having substantially the same economic effect as any of the
foregoing.

     

    “Liquidation” has the
meaning set forth in Section 9.02.

     

    “Liquidation Assets”
has the meaning set forth in Section 9.02(b).

     

    “Liquidation FMV” has
the meaning set forth in Section 9.02(b).

     

    “Liquidator” has the
meaning set forth in Section 9.02.

     

    “LLC” or “Company” has the
meaning set forth in the preamble to this Agreement.

     

    “LLC Common
Certificate” has the meaning set forth in Section 7.09.

     

    “LLC Interest” means
the Common LLC Interests, Preferred LLC Interests and the Bridge Preferred LLC
Interests.

     

    “LLC Preferred
Certificate” has the meaning set forth in Section 7.11.

     

    “Losses” has the
meaning set forth in Section 10.05(a).

     

    “Management Member”
means each Member designated as a Management Member in Schedule C hereto,
as updated from time to time, and any Permitted Transferee thereof to whom Units
are transferred in accordance with this Agreement.

     

    “Manager” means the
Corporation or any successor manager admitted to the LLC pursuant to this
Agreement.

     

    “Member” means any
Person admitted to the LLC as a Member pursuant to the terms of this Agreement;
but only so long as such Person is shown on the LLC’s books and records as the
owner of one or more Units.  The Persons listed on Schedule B hereto
are all of the Members as of the Effective Time.

     

    “Minimum Gain” means
Company minimum gain determined pursuant to Treasury Regulation
Sections 1.704-2(b)(2) and 1.704-2(d).


    
      
         


      

      
        8

        
          

        

      

      
         


      

    


    “Net Income” and
“Net Loss”
means, for each Fiscal Year or Fiscal Period, the taxable income or loss of the
LLC determined in accordance with Section 703(a) of the Code (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 shall be included in
taxable income or loss) and with the accounting method used by the LLC for
federal income tax purposes with the following
adjustments:  (a) all items of income, gain, loss, or deduction
allocated pursuant to Section 4.05 (relating to Special Allocations) shall
not be taken into account in computing such taxable income or loss; (b) any
income of the LLC that is exempt from federal income taxation and not otherwise
taken into account in computing Net Income and Net Loss shall be added to such
taxable income or loss; (c) if the Book Value of any asset differs from its
adjusted tax basis for federal income tax purposes, any gain or loss resulting
from a disposition of such asset shall be calculated with reference to such Book
Value; (d) if the Book Value of any asset differs from its adjusted tax
basis for federal income tax purposes, the amount of depreciation, amortization
or cost recovery deductions with respect to such asset shall for purposes of
determining Net Income and Net Loss be an amount which bears the same ratio to
such Book Value as the federal income tax depreciation, amortization or other
cost recovery deductions bears to such adjusted tax basis (provided that if the
federal income tax depreciation, amortization or other cost recovery deduction
is zero, the Manager may use any reasonable method for purposes of determining
depreciation, amortization or other cost recovery deductions in calculating Net
Income and Net Loss); (e) any expenditures of the LLC that are described in
Section 705(a)(2)(B) of the Code or are treated as 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 Net Income and Net Loss shall be treated as deductible items; and
(f) in the event the Book Value of any LLC asset is adjusted in accordance
with the definition of Book Value and Section 5.04, the amount of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Net Income or Net Loss.

     

    “Net Taxable Income”
has the meaning set forth in Section 4.01(f).

     

    “Nonrecourse Debt Minimum
Gain” means the partnership nonrecourse debt minimum gain determined
pursuant to Treasury Regulation Section 1.704-2(i).

     

    “Notice of
Disagreement” has the meaning set forth in Section 4.01(e).

     

    “Officer” means any
officer of the LLC appointed pursuant to Section 3.06.

     

    “Permitted Transferee”
has the meaning set forth in Section 8.02(a).

     

    “Person” means an
individual or a corporation, partnership, limited liability company, trust,
unincorporated organization, association or other entity.

     

    “Preferred LLC
Interest”  means a membership interest of a Member in Net
Income, Net Losses and Distributions having the rights, powers and duties set
forth in this Agreement.

     

    “Preferred Unit” means
a Preferred LLC Interest of a Member in the LLC representing a fractional part
of the Preferred LLC Interests of all Members; provided that any Preferred Units
issued shall have rights, powers and duties set forth in this
Agreement.


    
      
         


      

      
        9

        
          

        

      

      
         


      

    

     

    “Preferred Unit Liquidation
Preference” shall mean an amount per Preferred Unit equal to
$0.56.

     

    “Preferred Unit
Percentage” means, with respect to any Member, a fraction (expressed as a
percentage) established at the time of determination by dividing (i) the number
of Preferred Units held by such Member at such time by (ii) the total number of
Preferred Units held by all Members at such time.

     

    “Preferred Stock
Conversion” means the conversion of all shares of Series A Non-Voting
Convertible Preferred Stock into shares of Common Stock.

     

    “Private Placement”
means the private placement and sale of Preferred Units to Members to occur
concurrently with the completion of the Rights Offering at the Effective
Time.

     

    “Rights Offering”
means the public rights offering relating to the sale of Depositary Shares
pursuant to a Registration Statement on Form S-1 (Registration No.
333-169982).

     

    “SEC” means the
Securities and Exchange Commission.

     

    “Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.

     

    “Series A Non-Voting
Convertible Preferred Stock” means the Series A Non-Voting Convertible
Preferred Stock, par value $0.01 per share, of the Corporation.

     

    “Shortfall Amount” has
the meaning set forth in Section 4.01(e).

     

    “Specified A Unit
Percentage” means, with respect to Greenlight, 53.4331% and, with respect
to Third Point, 26.7165%.

     

    “Subsidiary” means,
with respect to any Person, any corporation, limited liability company,
partnership, association or business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof or (ii) if a limited liability company,
partnership, association or other business entity (other than a corporation), a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof.  For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity (other than a corporation) if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association or other business entity.  For purposes hereof, references
to a “Subsidiary” of any Person shall be given effect only at such times that
such Person has one or more Subsidiaries, and, unless otherwise indicated, the
term “Subsidiary” refers to a Subsidiary of the LLC.


    
      
         


      

      
        10

        
          

        

      

      
         


      

    

     

    “Substituted Member”
means any Person becoming a Member pursuant to Section 8.07.

     

    “Tax Amount” has the
meaning set forth in Section 4.01(f).

     

    “Tax Benefit Sharing
Agreement” means the Tax Benefit Sharing Agreement by and among the
Corporation and the Members, dated as of June 19, 2007.

     

    “Tax Distributions”
has the meaning set forth in Section 4.01(f).

     

    “Tax Matters Member”
has the meaning set forth in Section 5.08.

     

    “Third Point” means,
collectively, Third Point Partners, L.P., Third Point Partners Qualified, L.P.,
Daniel S. Loeb, Lawrence J. Bernstein and Todd Q.
Swanson.

     

    “Trading Price” means
the price per share of the Common Stock determined as follows:

     

    (a)  if
traded on a securities exchange (including the Nasdaq Global Market), the
Trading Price shall be deemed to be the average of the closing prices of the
Common Stock on such exchange on the applicable date, or, if there have been no
sales on any such exchange on any day, the average of the highest bid and lowest
asked prices on such exchange as of 4:00 p.m., New York time, or, if
on any day the Common Stock is not traded on an exchange, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated or any similar
successor organization, in each such case averaged over a period of
thirty (30) days consisting of the Business Day as of which the Trading
Price is being determined and the twenty-nine (29) consecutive Business
Days prior to such day; or

     

    (b)  if
at any time the Common Stock is not traded on a securities exchange or quoted in
the domestic over-the-counter market, the Trading Price shall be the fair value
thereof, as determined by the Manager.

     

    “Transfer” has the
meaning set forth in Section 8.01.

     

    “Treasury Regulations”
means the income tax regulations promulgated under the Code as amended from time
to time or any successor regulations.

     

    “True-Up Certificate”
has the meaning set forth in Section 4.01(d)


    
      
         


      

      
        11

        
          

        

      

      
         


      

    

     

    “True-Up Date” means
the earlier of (i) the date on which both (x) Greenlight shall have sold an
aggregate of 9,353,500 (as such number may be adjusted for stock splits, stock
dividends, recapitalizations, reorganization and other similar events) or more
shares of Common Stock after the IPO Effective Time and (y) Third Point shall
have sold an aggregate of 4,676,750 (as such number may be adjusted for stock
splits, stock dividends, recapitalizations, reorganization and other similar
events) or more shares of Common Stock after the IPO Effective Time and
(ii) the expiration of five years from the IPO Effective
Time.  For purposes of this definition, the word “sold” shall include
any pledge, sale, contract to sell, or the grant of any option, right or warrant
to purchase, or other disposition or transfer for value of, or the entry into
any swap or other agreement that transfers, in whole or in part, the economic
consequences of ownership of, shares of Common Stock.

     

    “True-Up Value” means
a dollar amount equal to the aggregate Individual Sale Company
Valuations.

     

    “Trued-Up Units”
means, for each Member, the number of Common Units that would have been issued
to such Member under Section 4.1(a) of the A&R LLC Agreement, assuming
that:

     

    (a)  the
IPO had occurred on the True-Up Date, rather than on June 19, 2007;

     

    (b)  the
date of distribution for purposes of such Section 4.1(a) is the True-Up Date,
rather than June 19, 2007, such that (i) the A/B Unit Preferred Return, (ii) the
M Unit Preferred Return, and (iii) the preferred return referred to in Section
4.1(a)(vii) of the A&R LLC Agreement, shall each be deemed to accrue through
the True-Up Date, rather than only through June 19, 2007;

     

    (c)  the
valuation applied for purposes of such Section 4.1(a) was equal to the
True-Up Value, rather than $241,500,000 (the value applied at the IPO Effective
Time);

     

    (d)  (i)
each of the A Unit Percentages, B Unit Percentages, M Unit Percentages, A/B Unit
Percentages, C Unit Percentages, the A/B/M Unit Percentages and C/D Unit
Percentages (each as defined in the A&R LLC Agreement) are the same for each
Member as they were on June 19, 2007, and (ii) no Transfers of Common Units had
taken place from and after June 19, 2007; and

     

    (e)  no
distributions have ever been made pursuant to Section 4.1(a) of the A&R LLC
Agreement.

     

    “Unit” means the
Common Units, Preferred Units; provided that any class of Units issued shall
have relative rights, powers and duties set forth in this Agreement and any LLC
Interest represented by such class of Units shall be determined in accordance
with such relative rights, powers and duties.


    
      
         


      

      
        12

        
          

        

      

      
         


      

    

     

    “Unit Percentage”
means, with respect to any Member, a fraction (expressed as a percentage)
established at the time of determination by dividing (i) the number of Units
held by such Member at such time by (ii) the total number of Units held by all
Members at such time.

     

    “Withholding Advances”
has the meaning set forth in Section 4.06(b).

     

    SECTION
1.02.  Usage
Generally; Interpretation.  Whenever the context may require,
any pronoun includes the corresponding masculine, feminine and neuter
forms.  Words in the singular or the plural include the plural or the
singular, as the case may be.  The use of the word “or” is not
exclusive.  All references herein to the preamble, Articles, Sections,
Subsections, paragraphs, Exhibits and Schedules shall be deemed to be references
to the preamble, Articles, Sections, Subsections, paragraphs, Exhibits and
Schedules of this Agreement unless the context otherwise
requires.  The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement
refer to this Agreement as a whole and not to any particular provision of this
Agreement.  Unless otherwise expressly provided herein, any statute or
law defined or referred to herein means such statute or law as from time to time
amended, modified or supplemented, including by succession of comparable
successor statutes.  Except to the extent a provision of this
Agreement expressly incorporates federal income tax rules by reference to
sections of the Code or Treasury Regulations or is expressly prohibited or
ineffective under the Delaware Act, this Agreement shall govern, even when
inconsistent with, or different from, the provisions of the Delaware Act or any
other law or rule.

     

    ARTICLE
II


     

    Organizational and Other
Matters

     

    SECTION
2.01.  Formation and Continuation
of LLC; Effective Time.  The LLC was formed on January 25,
2006, pursuant to the provisions of the Delaware Act, and the Members hereby
agree to continue the LLC as a limited liability company pursuant to the
Delaware Act, upon the terms and subject to the conditions set forth in this
Agreement.  Upon consummation of the Private Placement, (a) this
Agreement shall become effective (the “Effective Time”)
immediately and without any further action on the part of any party hereto and
(b) the terms, rights and obligations under the Existing LLC Agreement
shall cease.  As of the Effective Time, (a) the Units under the
Existing LLC Agreement shall be automatically converted into Common
Units and (b) the holders of Units under the Existing LLC Agreement will be
entitled to receive Preferred Units in amounts as are determined in accordance
with the terms of the Private Placement (which amounts are set forth on Schedule
B).  Also at the Effective Time, the Corporation will contribute all
proceeds of the Rights Offering to the LLC, and the LLC will issue to the
Corporation a number of Preferred Units equal to the number of Depositary Shares
that the Corporation issued in the Rights Offering (which amount is also set
forth on Schedule B). Also as of the Effective Time, in accordance with
Section 7.11 and pursuant to the Preferred Stock Conversion, all Preferred Units
shall automatically convert into Common Units, on a one-for-one basis, with the
result that the Members as of the Effective Time hold the Common Units set forth
on Schedule B, and the holders of the Preferred Units so converted will also
receive one share of Class B Common Stock for each Common Unit received upon
such conversion.  An authorized officer or representative of the LLC
shall file and record any amendments and/or restatements to the Certificate and
such other documents as may be required or appropriate under the laws of the
State of Delaware and of any other jurisdiction in which the LLC may conduct
business.  The LLC shall, upon request, provide any Member with copies
of each such document as filed and recorded.


    
      
         


      

      
        13

        
          

        

      

      
         


      

    

     

    SECTION
2.02.  Limited Liability Company
Agreement.  The Members agree that this Agreement serves the
purpose of establishing the affairs of the LLC and the conduct of its business
in accordance with the provisions of the Delaware Act.  The Members
hereby agree that during the term of the LLC set forth in Section 2.06 the
rights and obligations of the Members with respect to the LLC will be determined
in accordance with the terms and conditions of this Agreement and, except where
the Delaware Act provides that such rights and obligations specified in the
Delaware Act shall apply “unless otherwise provided in a limited liability
company agreement” or words of similar effect and such rights and obligations
are set forth in this Agreement, the Delaware Act; provided that
notwithstanding the foregoing, Section 18-210 of the Delaware Act (entitled
“Contractual Appraisal
Rights”) shall not apply to or be incorporated into this
Agreement.

     

    SECTION
2.03.  Name.  The
name of the LLC shall be “BioFuel Energy, LLC.”  The Manager in its
sole discretion may change the name of the LLC at any time and from time to
time.  Notification of any such change shall be given to all
Members.  The LLC’s business may be conducted under its name and/or
any other name or names deemed advisable by the Manager.

     

    SECTION
2.04.  Purpose.  The
purpose and the business of the LLC shall be to engage in any lawful business
for which a limited liability company may be organized under the Delaware
Act.  The LLC shall have any and all powers necessary or desirable to
carry out the purposes and business of the LLC, to the extent that the same may
be lawfully exercised by limited liability companies under the Delaware
Act.

     

    SECTION
2.05.  Principal Office; Registered
Office.   The principal office of the LLC shall be located
at 1600 Broadway, Suite 2200, Denver, CO 80202, or at such other place as the
Manager may from time to time designate, and all business and activities of the
LLC shall be deemed to have occurred at its principal office.  The LLC
may maintain offices at such other place or places as the Manager deems
advisable.  The address of the registered office of the LLC in the
State of Delaware shall be as set forth in the Certificate and the registered
agent for service of process on the LLC in the State of Delaware at such
registered office shall be Corporation Service Company.

     

    SECTION
2.06.  Term.  The
term of the LLC shall continue in existence until termination and dissolution
thereof in accordance with the provisions of Article IX.


    
      
         


      

      
        14

        
          

        

      

      
         


      

    

     

    SECTION
2.07.  Foreign
Qualification.  Prior to the LLC’s conducting business in any
jurisdiction other than Delaware, the Manager shall cause the LLC to comply, to
the extent procedures are available and those matters are reasonably within the
control of the Officers, with all requirements necessary to qualify the LLC as a
foreign limited liability company in that jurisdiction.  At the
request of the Manager or any Officer, each Member shall execute, acknowledge,
swear to and deliver any or all certificates and other instruments conforming
with this Agreement that are necessary or appropriate to qualify, continue and
terminate the LLC as a foreign limited liability company in all such
jurisdictions in which the LLC may conduct business.

     

    SECTION
2.08.  Tax
Classification of LLC.  The Members intend that the LLC shall
be treated as a partnership for federal and state or local income tax purposes,
and that each Member and the LLC shall file all tax returns and shall otherwise
take all tax and financial reporting positions in a manner consistent with such
treatment.

     

    ARTICLE
III


     

    Management

     

    SECTION
3.01.  Sole
Manager.  The Members shall not manage and control the business
and affairs of the LLC, except for situations in which the approval of the
Members is required by this Agreement or by non-waivable provisions of
applicable law.  The Manager shall exclusively manage and control the
LLC’s business, affairs and day-to-day operations and, in such capacity, shall
be the “manager” of the LLC within the meaning of the Delaware Act.

     

    SECTION
3.02.  Authority of the Sole
Manager.  Except for situations in which the approval of the
Members is otherwise required by this Agreement, or by non-waivable provisions
of applicable law, (i) the powers of the LLC shall be exercised by or under
the sole, absolute and exclusive direction of the Manager, (ii) the Manager
may make all decisions and take all actions for the LLC not otherwise provided
for in this Agreement, and (iii) the Manager shall possess all powers
necessary, convenient or appropriate to carry out the business of the LLC,
including doing all things and taking all actions necessary to carry out the
terms and provisions of this Agreement (and is hereby authorized and directed,
on behalf of the LLC and in accordance with Section 18-404(c) of the Delaware
Act, to do all such things and to take all such actions without any further act,
vote, consent or approval of any Member or the Board, unless otherwise
specifically required by this Agreement).

     

    SECTION
3.03.  Authority of
Members.  In all matters relating to or arising out of the
conduct of the operation of the LLC, the decision of the Manager shall be the
decision of the LLC.  Except as required or permitted by applicable
law, or expressly provided in the ultimate sentence of this Section 3.03 or
by separate agreement with the LLC, no Member who is not also the Manager (and
acting in such capacity) shall take any part in the management or control of the
operation or business of the LLC in its capacity as a Member, nor shall any
Member who is not also the Manager (and acting in such capacity) have any right,
authority or power to act for or on behalf of or bind the LLC in his or its
capacity as a Member in any respect or assume any obligation or responsibility
of the LLC or of any other Member.  Notwithstanding the foregoing, the
LLC may employ one or more Officers from time to time, and such Officers, in
their capacity as employees of the LLC, may take part in the control and
management of the business of the LLC to the extent such authority and power to
act for or on behalf of the LLC has been delegated to them by the
Manager.


    
      
         


      

      
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    SECTION
3.04.  Removal and Replacement of
Manager.  The Manager may not be removed or replaced at any
time with or without the consent of the Manager.

     

    SECTION
3.05.  Reliance by Third
Parties.  Any Person dealing with the LLC, other than a Member,
may rely on the authority of the Manager (or any Officer authorized by the
Manager) in taking any action in the name of the LLC without inquiry into the
provisions of this Agreement or compliance herewith, regardless of whether that
action actually is taken in accordance with the provisions of this
Agreement.  Every agreement, instrument or document executed by the
Manager (or any Officer authorized by the Manager) in the name of the LLC with
respect to any business or property of the LLC shall be conclusive evidence in
favor of any Person relying thereon or claiming thereunder that (i) at the
time of the execution or delivery thereof, this Agreement was in full force and
effect, (ii) such agreement, instrument or document was duly executed
according to this Agreement and is binding upon the LLC and (iii) the
Manager or such Officer was duly authorized and empowered to execute and deliver
such agreement, instrument or document for and on behalf of the
LLC.

     

    SECTION
3.06.  Officers.  (a)  Designation and
Appointment.  The officers of the Corporation shall
automatically be designated and appointed as Officers of the LLC, with titles,
duties and authority corresponding to the titles, duties and authority held by
such Officers in their capacity as officers of the Corporation, and with no
specific action required by the Manager in order to appoint such
persons.  In addition, the Manager may (but need not), from time to
time, designate and appoint one or more persons as additional Officers of the
LLC.  No Officer need be a resident of the State of Delaware or a
Member.  Any additional Officers so designated shall have such
authority and perform such duties as the Manager may, from time to time,
delegate to them, and no Officer shall be deemed to be a Manager as a result of
his or her status as an Officer.  The Manager may assign titles to
particular Officers and create officer
positions in its discretion.  Unless the Manager otherwise decides, if
the title is one commonly used for officers of a business corporation, the
assignment of such title shall constitute the delegation to such Officer of the
authority and duties that are normally associated with that office, subject to
any specific delegation of authority and duties made to such Officer by the
Corporation or by the Manager pursuant to this
Section 3.06(a).  Each Officer shall hold office until such
Officer’s successor shall be duly designated and shall qualify or until such
Officer’s death or
until such Officer shall resign or shall have been removed in the manner
hereinafter provided.  Any number of offices may be held by the same
individual.  The salaries or other compensation, if any, of the
Officers and agents of the LLC shall be fixed from time to time by the
Corporation or the Manager, as applicable.


    
      
         


      

      
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    (b)  Resignation/Removal.  Any
Officer (subject to any contract rights available to the LLC, if applicable) may
resign as such at any time.  Such resignation shall be made in writing
and shall take effect at the time specified therein, or if no time be specified,
at the time of its receipt by the Manager.  The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.  Any Officer may be removed as such,
either with or without cause, by the Manager in its discretion at any time;
provided,
however,
that such removal shall be without prejudice to the contract rights, if any, of
the individual so removed.  Designation of an Officer shall not of
itself create contract rights.  Any vacancy occurring in any office of
the LLC may be filled by the Manager.

     

    ARTICLE
IV

       

    Distributions and
Allocations

     

    SECTION
4.01.  Distributions.  (a)  After
all Bridge Preferred Distributions have been made pursuant to Section 4.01(g),
the Manager, in its discretion, may authorize distributions by the LLC to the
Members (including in the event of an extraordinary dividend, refinancing,
recapitalization, merger or other restructuring transaction), which
distributions shall be made pro rata in accordance with the Members’ respective
Unit Percentages.

     

    (b)  At
the IPO Effective Time, each Management Member (other than Edelman) deposited
with the Escrow Agent one-half of the number of IPO Effective Time Units issued
to such Management Member in respect of the C Units and/or D Units held by such
Management Member under the A&R LLC Agreement, together with an equal number
of shares of Class B Stock (collectively, the “Escrowed
Securities”).  The Escrowed Securities are held by the Escrow
Agent pursuant to the terms of the Escrow Agreement.

     

    (c)  Greenlight
and Third Point shall provide to the Manager within five Business Days after the
True-Up Date a certificate setting forth (i) the date of each
Greenlight/Third Point Sale, (ii) the price per share of Common Stock sold
by Greenlight and/or Third Point in such Greenlight/Third Point Sale,
(iii) the number of shares of Common Stock sold by Greenlight and/or Third
Point in such Greenlight/Third Point Sale, (iv) the number of Common Units
and number of shares of Common Stock held by each of Greenlight and Third Point
as of the True-Up Date, if any (and the number of shares that are deemed to have
been sold on the True-Up Date for purposes of this Section 4.01(c)), and
(v) the Trading Price as of the True-Up Date.

     

    (d)  Within
ten Business Days after the True-Up Date, Greenlight shall prepare, in
consultation with the Manager, Third Point and the Management Members, and
deliver to each of the Manager, Third Point and each Management Member a
certificate (the “True-Up
Certificate”) setting forth the True-Up Value and each Management
Member’s IPO Effective Time Units, Trued-Up Units and the related Excess Amount
or Shortfall Amount, as applicable.  The True-Up Certificate shall set
forth computations and other information in reasonable detail sufficient to
demonstrate the calculation of such amounts.  Each of the Manager,
Third Point and each Management Member shall assist Greenlight in the
preparation of the True-Up Certificate as reasonably requested by
Greenlight.


    
      
         


      

      
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    (i) The
True-Up Certificate shall become final and binding upon the parties upon the
tenth Business Day following the receipt by the Manager, Third Point and the
Management Members of the True-Up Certificate, unless the Manager, Third Point
or a Management Member gives written notice of its disagreement with the True-Up
Certificate (a “Notice
of Disagreement”) to Greenlight, with a copy to the Manager, prior to
such date.  Any Notice of Disagreement shall specify in reasonable
detail the nature of any disagreement so asserted.  If a Notice of
Disagreement is received by Greenlight and the Manager in a timely manner, then
the True-Up Certificate shall become final and binding upon the parties upon the
earlier of (A) the date that the Manager, Greenlight, Third Point and the
Management Members resolve in writing any differences they have with respect to
the matters specified in the Notice of Disagreement or (B) the date any disputed
matters are finally resolved in writing by the Accounting Firm.

     

    (ii)
During the ten Business Day-period following the delivery of a Notice of
Disagreement, the Manager, Greenlight, Third Point and the Management Members
shall seek in good faith to resolve in writing any differences that they may
have with respect to the matters specified in the Notice of
Disagreement.  At the end of such ten Business Day-period, Greenlight
and the Manager shall submit to an independent accounting firm (the “Accounting Firm”) for
arbitration any and all matters that remain in dispute and were included in the
Notice of Disagreement.  The Accounting Firm shall be such nationally
recognized independent public accounting firm as shall be agreed upon by the
Manager, Greenlight, Third Point and the Management Members in
writing.  Judgment may be entered upon the determination of the
Accounting Firm in any court having jurisdiction over the party or parties
against which such determination is to be enforced.

     

    (e)  In
the event that:

     

    (i) a
Management Member’s IPO Effective Time Units are greater than such Management
Member’s Trued-Up Units (the excess being the “Excess Amount”),
then

     

    (A)  with
respect to such Management Member (other than Edelman), a number of Common Units
equal to the product of (A) the Greenlight/Third Point Specified A Unit
Percentage and (B) the lesser of (x) the Excess Amount and (y) the number of
such Management Member’s Escrowed Securities, shall be released and distributed
in accordance with the Escrow Agreement to Greenlight and Third Point pro rata
based on their respective Specified A Unit Percentages, and all of such
Management Member’s Escrowed Securities that are not required to be distributed
to Greenlight or Third Point shall be released and distributed to such
Management Member in accordance with the Escrow Agreement; and

    


    
      
        
           


        

        
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    (B)  with
respect to Edelman, he shall either (x) distribute a number of Common Units
equal to Edelman’s Excess Amount to Greenlight and Third Point pro rata based on
their respective Specified A Unit Percentages, or (y) pay an amount in
cash equal to the product of (i) Edelman’s Excess Amount, multiplied by
(ii) the Trading Price as of the date of payment, to Greenlight and Third Point
pro rata based on their respective Specified A Unit Percentages;
and

     

    (ii) a
Management Member’s IPO Effective Time Units are less than such Management
Member’s Trued-Up Units (the shortfall being the “Shortfall Amount”),
then both:

     

    (A)  Greenlight
and Third Point shall deliver to such Management Member either (or any
combination of):

     

    (x)   a
number of Common Units equal to the product of (I) such Management Member’s
Shortfall Amount, multiplied by (II) Greenlight’s or Third Point’s
applicable Specified A Unit Percentage; or

     

    (y)   an
amount in cash equal to the product of (I) such Management Member’s Shortfall
Amount, multiplied by (II) the Trading Price as of the date of payment,
multiplied by (III) Greenlight’s or Third Point’s applicable Specified A
Unit Percentage; and

     

    (B)  all
of such Management Member’s Escrowed Securities shall be released and delivered
to such Management Member in accordance with the Escrow Agreement;
and

     

    (iii) to
the extent a Member is obligated to deliver, or cause to be delivered, Common
Units pursuant to this Section 4.01(e), (I) such Member may deliver, or cause to
be delivered, a number of shares of Common Stock equal to the number of Common
Units required to be delivered in lieu of delivering such Common Units (or any
combination of shares of Common Stock and Common Units) and (II) to the extent
such Member does not deliver shares of Common Stock in accordance with clause
(I) above (and does not deliver cash in lieu of Common Units, if permitted),
shall also deliver with such Common Units a number of shares of Class B Stock
equal to the number of Common Units required to be delivered.

     

    (iv) In
furtherance of the foregoing, promptly upon the True-Up Certificate becoming
final and binding upon the parties, as provided in this Section 4.01, the
Manager, in consultation with Greenlight and Third Point, shall prepare the
release certificate contemplated by the Escrow Agreement and deliver such
release certificate to the Escrow Agent.

    


    
      
        
           


        

        
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    (f)  (i) In
addition to the foregoing, if the Manager reasonably determines that the
operations of the LLC for a Fiscal Year will give rise to net taxable income for
any of the Members (“Net
Taxable Income”), the Manager shall cause the LLC to distribute Available
Cash for purposes of allowing each of the Members to fund their respective
income tax liabilities attributable to the LLC (the “Tax
Distributions”).  The Tax Distributions payable to a Member
with respect to any Fiscal Year shall be computed based upon the Manager’s
estimate of the Net Taxable Income allocable to such Member for such Fiscal Year
in accordance with this Article IV (taking into account the effect of
Section 4.04(b)), multiplied by the Assumed Tax Rate (the “Tax
Amount”).  For purposes of computing the Tax Amount, the effect
of any benefit to a Member under Section 743(b) of the Code will be ignored
but any tax credits allocated to a Member for such Fiscal Year shall be taken
into account.  No Tax Distributions shall be made with respect to the
Bridge Preferred LLC Interests.

     

    (ii) Tax
Distributions shall be calculated and paid no later than one day prior to each
quarterly due date for the payment by corporations of estimated taxes under the
Code in the following manner: (A) for the first quarterly period, 25% of
the Tax Amount, (B) for the second quarterly period, 50% of the Tax Amount,
less the prior Tax Distributions for the Fiscal Year, (C) for the third
quarterly period, 75% of the Tax Amount, less the prior Tax Distributions for
the Fiscal Year and (D) for the fourth quarterly period, 100% of the Tax
Amount, less the prior Tax Distributions for the Fiscal
Year.  Following each Fiscal Year, and no later than one day prior to
the due date for the payment by corporations of income taxes for such Fiscal
Year, the Manager shall make an amended calculation of the Tax Amount for such
Fiscal Year (the “Amended Tax Amount”),
and shall cause the LLC to distribute a Tax Distribution, out of Available Cash,
to the extent that the Amended Tax Amount so calculated exceeds the cumulative
Tax Distributions previously made by the LLC in respect of such Fiscal
Year.  If the Amended Tax Amount is less than the cumulative Tax
Distributions previously made by the LLC in respect of the relevant Fiscal Year,
then the difference (the “Credit Amount”) shall
be applied against, and shall reduce, the amount of Tax Distributions made to
the Members for subsequent Fiscal Years.  Within 30 days following the
date on which the LLC files a tax return on IRS Form 1065 (or any successor
form), the Manager shall make a final calculation of the Tax Amount of such
Fiscal Year (the “Final Tax Amount”)
and shall cause the LLC to distribute a Tax Distribution, out of Available Cash,
to the extent that the Final Tax Amount so calculated exceeds the Amended Tax
Amount.  If the Final Tax Amount is less than the Amended Tax Amount
in respect of the relevant Fiscal Year, then the difference (“Additional Credit
Amount”) shall be applied against, and shall reduce, the amount of Tax
Distributions made to the Members for subsequent Fiscal Years.  Any
Credit Amount and Additional Credit Amount applied against future Tax
Distributions shall be treated as an amount actually distributed pursuant to
this Section for purposes of the computations herein.  In the event
that the Tax Distributions made to a Member for any Fiscal Year shall be less
than the Final Tax Amount for such Member due to an insufficiency of Available
Cash, then such Member shall receive additional Tax Distributions out of the
first Available Cash in subsequent Fiscal Years to make up for such
shortfall.

    


    
      
        
           


        

        
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    (iii) For
the avoidance of doubt, any Tax Distributions distributed to a Member pursuant
to this Section 4.01(f) shall not affect the amount of distributions that
may be made to such Member pursuant to Section 4.01(a).

     

    (g)  The
LLC shall make priority Distributions to the Bridge Preferred Member with
respect to its Bridge Preferred LLC Interest in an amount equal to the sum of
(i) the Bridge Loan Capital Contribution and (ii) all accrued and unpaid Bridge
Preferred Returns (collectively, the “Bridge
Preferred Distributions”).  The LLC shall make the Bridge
Preferred Distributions at such times and in such amounts so as to enable the
Bridge Preferred Member to timely make all required payments under the Bridge
Loan Agreement; provided
that any Bridge Preferred Distributions to be made with the proceeds of the
Rights Offering or the Private Placement shall be made promptly upon receipt of
such proceeds.

     

    SECTION
4.02.  Liquidation
Distribution.  Distributions made upon Liquidation of the LLC
shall be made as provided in Section 9.02.

     

    SECTION
4.03.  Limitations on
Distribution.  Notwithstanding any provision to the contrary
contained in this Agreement, the Manager shall not authorize a distribution to
any Member if such distribution would violate Section 18-607 of the
Delaware Act or other applicable law.

     

    SECTION
4.04.  Allocations.  (a)  Net Income and Net
Loss.  Except as otherwise provided in this Agreement, Net
Income and Net Loss (and, to the extent necessary, individual items of income,
gain, loss, deduction or credit) of the LLC shall be allocated among the Members
in a manner such that, after giving effect to the special allocations set forth
in Section 4.05, the Capital Accounts of all Members, immediately after
making such allocation, are, as nearly as possible, equal to the Distributions
that would be made to such Member if the LLC were dissolved, its affairs wound
up and its assets sold for cash equal to their Book Value, all LLC liabilities
were satisfied (limited with respect to each nonrecourse liability to the Book
Value of the assets securing such liability) and the net assets of the LLC were
distributed in accordance with Section 4.01(a) to the Members immediately after
making such allocation.  If the application of the foregoing
allocation provision results in unintended consequences as determined by the
Manager, then the Manager shall have the authority to direct the LLC’s
accountants or other Persons responsible for maintaining the Members’ Capital
Accounts to make such curative or remedial allocations as may be deemed
appropriate by the Manager, provided that the general effect of such allocations
is consistent with Section 704(b) of the Code and the Treasury Regulations
thereunder.  In determining Net Income and Net Loss, the Bridge
Preferred Return shall be treated as a “guaranteed payment” described in Section
707(c) of the Code.

    


    
      
        
           


        

        
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    (b)  Tax
Allocations.  For federal, state and local income tax purposes,
items of income, gain, loss, deduction and credit shall be allocated to the
Members in accordance with the allocations of the corresponding items for
Capital Account purposes under Sections 4.01(a) and 4.05, except that tax items
attributable to each asset with respect to which there is a difference between
tax basis and Book Value will be allocated in accordance with
Section 704(c) of the Code and the Treasury Regulations
thereunder.  Such allocations shall be made using any reasonable
method specified in Treasury Regulation Section 1.704-3 as the Tax Matters
Member determines reasonably and in good faith; provided
that with respect to the assets contributed by Cargill the Tax Matters Member
shall use either (i) the traditional method with curative allocations or
(ii) the remedial method.

     

    SECTION
4.05.  Special
Allocations.  (a)  Minimum Gain
Chargeback.  Notwithstanding any other provision of
Section 4.04, if there is a net decrease in Minimum Gain or Nonrecourse
Debt Minimum Gain (determined in accordance with the principles of Treasury
Regulation Sections 1.704-2(d) and 1.704-2(i)) during any Taxable Year, the
Members shall be specially allocated items of Net Income for such year (and, if
necessary, subsequent years) in an amount equal to their respective shares of
such net decrease during such year, determined pursuant to Treasury Regulation
Sections 1.704-2(g) and 1.704-2(i)(5).  The items to be so
allocated shall be determined in accordance with Treasury Regulation
Sections 1.704-2(f), 1.704-2(i)(4), 1.704-2(j)(2).  This
Section 4.05(a) is intended to comply with the minimum gain chargeback
requirements in such Treasury Regulation Sections and shall be interpreted
consistently therewith; including that no chargeback shall be required to the
extent of the exceptions provided in Treasury Regulation
Sections 1.704-2(f) and 1.704-2(i)(4).

     

    (b)  Qualified
Income Offset.  In the event any Member unexpectedly receives
any adjustments, allocations, or distributions described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Net Income shall be
specially allocated to such Member in an amount and manner sufficient to
eliminate the Adjusted Capital Account Deficit created by such adjustments,
allocations or distributions as promptly as possible; provided
that an allocation pursuant to this Section 4.05(b) shall be made if and
only to the extent that such Member would have an Adjusted Capital Account
Deficit after all other allocations provided for in Section 4.01 and this
Section 4.05 have been tentatively made as if this Section 4.05(b)
were not in the Agreement.  This Section 4.05(b) is intended to
comply with the “qualified income offset” requirement in such Treasury
Regulation Section and shall be interpreted consistently therewith.

     

    (c)  Nonrecourse
Liabilities.  For purposes of Treasury Regulation
Section 1.752-3(a), any Member’s interests in LLC profits shall be in
proportion with the respective Unit Percentage.

     

    (d)  Nonrecourse
Deductions.  Any Member nonrecourse deductions (as defined in
Treasury Regulation Section 1.704-2(i)(1) and (2)) for any Fiscal Period
shall be allocated to the Member who bears the economic risk of loss with
respect to the liability to which such Member nonrecourse deductions are
attributable in accordance with Treasury Regulation
Section 1.704-2(i)(1).  Nonrecourse Deductions (as such term is
defined in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c)) of
the LLC shall be allocated to the Members in proportion with the respective Unit
Percentage.

    


    
      
        
           


        

        
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    (e)  Section 754
Adjustment.  To the extent an adjustment to the adjusted tax
basis of any Company asset pursuant to Sections 734(b) or 743(b) of the
Code is required, pursuant to Treasury Regulation
Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining the
Capital Accounts, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases such basis), and such gain or loss shall be
specially allocated to the Members in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such
regulation.

     

    (f)  Ordering
Rules.  Notwithstanding anything to the contrary in this
Agreement, allocations for any Fiscal Year or other period of nonrecourse
deductions or of items required to be allocated pursuant to the minimum gain
chargeback requirements contained in Section 4.05 shall be made before any
other allocations hereunder.

     

    SECTION
4.06.  Tax
Withholding; Withholding Advances.  (a)  Tax
Withholding.  If requested by the Manager, each Member shall
deliver to the LLC:  (i) documentation in form reasonably
satisfactory to the Manager that the applicable Member is not subject to
withholding under the provisions of any federal, state, local, foreign or other
law; and/or (ii) any other form or instrument reasonably requested by the
Manager relating to any Member’s status under such law.  In the event
that a Member fails or is unable to deliver to the Manager the documentation
described in subclause (i) of this clause (a), the Manager will
withhold amounts from such Member in accordance with Section 4.06(b)
(relating to Withholding Advances).

     

    (b)  Withholding
Advances – General.  To the extent the LLC is required by law
to withhold or to make tax payments on behalf of or with respect to any Member
(e.g.,
backup withholding) (“Withholding
Advances”), the Manager may withhold such amounts and make such tax
payments as so required; provided
that, unless such withholding or payment is required by law or regulation to be
made in a lesser amount of time, the Manager shall provide not less than ten
(10) Business Days’ notice to the applicable Member prior to making such
withholding or payment.

     

    (c)  Repayment
of Withholding Advances.  Any Withholding Advances made on
behalf of a Member that are not satisfied by withholding from cash distributable
to such Member, plus interest thereon at a rate equal to the prime rate
announced by Citibank, N.A. as of the date of such Withholding Advances plus two
percent (2%) per annum, shall (i) be paid by the Member on whose behalf
such Withholding Advances were made on demand by the LLC or (ii) with the
consent of the Manager in its sole discretion be repaid by reducing the amount
of the current or next succeeding Distribution or Distributions which would
otherwise have been made to such Member or, if such Distributions are not
sufficient for that purpose, by so reducing the proceeds of liquidation
otherwise payable to such Member.  Whenever repayment of a Withholding
Advance by a Member is made as described in clause (ii) above, for all
other purposes of this Agreement such Member shall be treated as having received
all the applicable Distributions unreduced by the amount of such Withholding
Advance and interest thereon.

    


    
      
        
           


        

        
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    (d)  Withholding
Advances – Reimbursement of Liabilities.  Each Member hereby
agrees to reimburse the LLC for any liability with respect to Withholding
Advances (including interest thereon) required or made on behalf of or with
respect to such Member (including penalties imposed with respect
thereto).

     

    ARTICLE
V


     

    Capital Contributions;
Capital Accounts; Tax Matters

     

    SECTION
5.01.  Capital
Contributions.

     

    (a)  The
Members have made, on or prior to the date hereof, Capital Contributions and
have acquired the number and class of Units as specified opposite their
respective names on Schedule B, which shall be updated by the Manager from
time to time as appropriate.

     

    (b)  The
Bridge Preferred Member has made, on September 24, 2010, a Capital Contribution
(the “Bridge
Loan Capital Contribution”) to the LLC in exchange for the Bridge
Preferred LLC Interest in an amount equal to the Bridge Loan Principal
Amount.

     

    SECTION
5.02.  No
Additional Capital Contributions.  No Member (x) shall be
required to make additional Capital Contributions to the LLC without the prior
written consent of such Member or (y) shall, except as otherwise provided
in this Article, be permitted to make additional Capital Contributions to the
LLC without the consent of the Manager.

     

    SECTION
5.03.  Capital
Accounts.  (a)  The LLC shall maintain on its books
and records a separate capital account for each Member according to the rules of
Treasury Regulation Section 1.704-1(b) (each such account, a “Capital
Account”).  The amount in the Capital Account of any Member at
any time shall be equal to the sum of:

     

    (i) the
amount of such Member’s Capital Contributions, plus

     

    (ii) the
amount of Net Income allocated to such Member pursuant to Section 4.04 or
any items in the nature of income or gain which are specially allocated pursuant
to Section 4.05; plus

     

    (iii) the
amount of any LLC liabilities that are assumed by such Member (other than
liabilities that are secured by any LLC property distributed to such Member that
the Member is considered to assume or take subject to Section 752 of the
Code)

     

    and the
sum of subsections (i) through (iii) shall be reduced by the sum
of:

    


    
      
        
           


        

        
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    (iv) the
amount of Net Losses allocated to such Member pursuant to Section 4.04 or
any items in the nature of expenses or losses which are specially allocated
pursuant to Section 4.05; plus

     

    (v) the
amount of cash and the Book Value of property, if any, distributed to such
Member by the LLC (net of liabilities secured by such distributed property that
such Member is considered to assume or take subject to Section 752 of the
Code); plus

     

    (vi) the
amount of any liabilities of such Member that are assumed by the LLC (other than
liabilities that are secured by any property contributed by such Member to the
LLC).

     

    (b)  (i)
The Manager shall adjust the Book Values and Capital Account balances as of the
IPO Effective Time in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f)-(g) based upon the price of the Common Stock in the IPO and
(ii) the Manager may adjust the Book Values and Capital Account balances in
connection with any subsequent event described in Treasury Regulation Section
1.704-1(b)(2)(iv)(f); provided,
however,
that the Manager shall so adjust the Book Values and Capital Account balances if
the aggregate amount of such an adjustment would be material.

     

    (c)  In
the event that any Person is transferred Units of a Member in accordance with
the provisions of Article VIII, such Person shall succeed to the Capital
Account of the transferor Member to the extent the Capital Account relates to
the transferred interest (or a portion thereof).

     

    SECTION
5.04.  Negative
Capital Accounts.  No Member shall be required to pay to any
other Member or the LLC the amount of any deficit or negative balance that may
exist from time to time in such Member’s Capital Account (including upon
Liquidation).

     

    SECTION
5.05.  Loans
From Members.  Loans by Members to the LLC shall not be
considered Capital Contributions.  If any Member shall loan funds to
the LLC in excess of the amounts required hereunder to be contributed by such
Member to the capital of the LLC, the making of such loans shall not result in
any increase in the amount of the Capital Account of such Member.  The
amount of any such loans shall be a debt of the LLC to such Member and shall be
payable or collectible in accordance with the terms and conditions upon which
such loans are made.

     

    SECTION
5.06.  Preparation of Tax
Returns.  The Manager shall cause the LLC to accurately prepare
and timely file all tax returns required to be filed by the LLC and its
Subsidiaries.  In furtherance of the foregoing, the LLC shall provide
the Members with estimated Schedule K-1s by March 15 of each calendar
year, which shall address the immediately preceding year.

    


    
      
        
           


        

        
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    SECTION
5.07.  Tax
Elections.  The Manager shall cause the LLC and any Subsidiary
that is a partnership for tax purposes to make an election pursuant to Section
754 of the Code (and any comparable elections under the applicable state and
local tax laws) to adjust the tax basis of its assets in connection with
transfers of Units.  Except as otherwise expressly provided herein,
the Manager shall, in its sole discretion, determine whether to make or revoke
any available election pursuant to the Code (or any state or local tax
laws).  Each Member will upon request supply any information
reasonably necessary to give proper effect to any election.

     

    SECTION
5.08.  Tax
Matters Member.  The Manager is hereby designated the “Tax Matters Member”
and is authorized and required to represent the LLC (at the LLC’s expense) in
connection with all examinations of the LLC’s affairs by tax authorities,
including resulting administrative and judicial proceedings, and to expend LLC
funds for professional services reasonably incurred in connection
therewith.  Each Member agrees to cooperate with the LLC and the Tax
Matters Member, and to do or refrain from doing any or all things reasonably
requested by the LLC with respect to the conduct of such proceedings, including
providing the Tax Matters Member with such information as the Tax Matters Member
may reasonably request.  The Tax Matters Member shall keep all Members
fully informed of the progress of any examinations, audits or other
proceedings.  Each Member may, at its own expense, participate in any
meetings with the relevant tax authorities.

     

    ARTICLE
VI


     

    Books, Records, Accounting
and Reports

     

    SECTION
6.01.  Records and
Accounting.  The LLC shall keep, or cause to be kept,
appropriate books and records with respect to the LLC’s business, including all
books and records necessary to provide any information, lists and copies of
documents required to be provided pursuant to applicable laws.  All
matters concerning (i) the determination of the relative amount of
allocations and distributions among the Members pursuant to Article IV and
(ii) accounting procedures and determinations, and other determinations not
specifically and expressly provided for by the terms of this Agreement, shall be
determined by the Manager, whose determination shall be final and conclusive as
to all of the Members absent manifest clerical error.

     

    SECTION
6.02.  Fiscal
Year.  The fiscal year (the “Fiscal Year”) of the
LLC for financial statement and federal income tax purposes shall be the same
and shall, except as otherwise required in accordance with the Code, end on
December 31.

     

    ARTICLE
VII


     

    LLC
Units

     

    SECTION
7.01.  Units.   LLC
Interests, other than the Bridge Preferred LLC Interest, shall be represented by
Units.  The authorized Units which the LLC has authority to issue
consist of 140,000,000 Common Units and 100,000,000 Preferred
Units.  The Manager may establish other classes from time to time in
accordance with such procedures and subject to such conditions and restrictions
as the Manager shall determine from time to time.  Except as expressly
provided in this Agreement to the contrary, any reference to “Units” shall
include any other classes that may be established in accordance with this
Agreement.  All Units of a particular class shall have identical
rights in all respects as all other Units of such class, except in each case as
otherwise specified in this Agreement.

    


    
      
        
           


        

        
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    SECTION
7.02.  Cargill Stock
Payment.  Concurrent with the issuance of Depositary Shares to
Cargill in connection with the Cargill Stock Payment, the LLC will issue to the
Corporation a number of Preferred Units equal to the number of Depositary Shares
issued to Cargill and such issuance shall be reflected on the register of the
LLC.

     

    SECTION
7.03.  Register.  The
register of the LLC shall be the definitive record of ownership of each Unit and
all relevant information with respect to each Member.  Unless the
Manager shall determine otherwise, Units shall be certificated as provided in
Section 7.10, 7.11 or 7.12, as applicable, and recorded in the books and records
of the LLC.

     

    SECTION
7.04.  Splits, Distributions and
Reclassifications of Common Stock.  The LLC shall not in any
manner subdivide (by any Unit split, Unit distribution, reclassification,
recapitalization or otherwise) or combine (by reverse Unit split,
reclassification, recapitalization or otherwise) the outstanding Units unless an
identical event is occurring with respect to the Common Stock. In the event of
any such subdivision or combination of the Common Stock, the Units shall
automatically be subdivided or combined concurrently with and in the same manner
as the Common Stock.  The register of the LLC shall be adjusted
accordingly and on a timely basis.

     

    SECTION
7.05.  Splits, Distributions and
Reclassifications of Series A Non-Voting Convertible Preferred
Stock.  The LLC shall not in any manner subdivide (by any
Preferred Unit split, Preferred Unit distribution, reclassification,
recapitalization or otherwise) or combine (by reverse Preferred Unit split,
reclassification, recapitalization or otherwise) the outstanding Preferred Units
unless an identical event is occurring with respect to the Series A Non-Voting
Convertible Preferred Stock. In the event of any such subdivision or combination
of the Series A Non-Voting Convertible Preferred Stock, the Preferred Units
shall automatically be subdivided or combined concurrently with and in the same
manner as the Series A Non-Voting Convertible Preferred Stock. The register of
the LLC shall be adjusted accordingly and on a timely basis.

     

    SECTION
7.06.  Cancellation of Common Stock
and Units.  At any time a share of Common Stock is redeemed,
repurchased, acquired, cancelled or terminated by the Corporation, one Common
Unit registered in the name of the Manager will hereby automatically be
cancelled for no consideration by the LLC so that the number of Common Units
held by the Corporation at all times equals the number of shares of Common Stock
outstanding.  The register of the LLC shall be adjusted accordingly
and on a timely basis.

    


    
      
        
           


        

        
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    SECTION
7.07.  Incentive
Plans.  At any time the Corporation issues a share of Common
Stock pursuant to an Incentive Plan (whether pursuant to the exercise of a stock
option or the grant of a restricted share award or otherwise), the following
shall occur:  (a) the Corporation shall be deemed to contribute
to the capital of the LLC an amount of cash equal to the current per share
market price of a share of Common Stock on the date such share is issued (or, if
earlier, the date the related option is exercised) and the Capital Account of
the Corporation shall be adjusted accordingly; (b) the LLC shall be deemed
to purchase from the Corporation a share of Common Stock for an amount of cash
equal to the amount of cash deemed contributed by the Corporation to the LLC in
clause (a) above (and such share is deemed delivered to its owner under the
Incentive Plan); (c) the net proceeds (including the amount of any payments
made on a loan with respect to a stock purchase award) received by the
Corporation with respect to such share, if any, shall be concurrently
transferred and paid to the LLC (and such net proceeds so transferred shall not
constitute a Capital Contribution); and (d) the LLC shall issue to the
Corporation one Common Unit registered in the name of the
Corporation.  The LLC shall retain any net proceeds that are paid
directly to the LLC.

     

    SECTION
7.08.  Offerings of Common
Stock.  At any time the Corporation issues a share of Common
Stock other than pursuant to an Incentive Plan, the net proceeds received by the
Corporation with respect to such share, if any, shall be concurrently
transferred to the LLC and the LLC shall issue to the Corporation
one Common Unit registered in the name of the Corporation.

     

    SECTION
7.09.  Registered
Members.  The LLC shall be entitled to recognize the exclusive
right of a Person registered on its records as the owner of Units for all
purposes and shall not be bound to recognize any equitable or other claim to or
interest in Units on the part of any other Person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the Delaware
Act.

     

    SECTION
7.10.  Certification and Terms of
Common Units.  Each Common Unit shall be represented by a
certificate in the form attached hereto as Schedule D (an “LLC Common
Certificate”) and shall be imprinted with a legend in substantially the
following form, in addition to any applicable legends required under the Escrow
Agreement:

     

    “THE
UNITS REPRESENTED BY THIS LLC CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES
LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT OR STATE
ACTS OR AN EXEMPTION THEREFROM.  THE TRANSFER OF THE UNITS REPRESENTED
BY THIS LLC CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE THIRD
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF __, 2011,
AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE “COMPANY”)
AND BY AND AMONG CERTAIN INVESTORS.  A COPY OF SUCH CONDITIONS SHALL
BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE.”

    


    
      
        
           


        

        
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    (a)  Upon
any issuance of Common Units to any Member in accordance with the provisions of
this Agreement (including upon conversion of any Preferred Units), the LLC shall
issue one or more LLC Common Certificates in the name of such
Member.  Each such LLC Common Certificate shall be denominated in
terms of the number of Common Units evidenced by such LLC Common Certificate and
shall be signed by the Manager on behalf of the LLC.

     

    (b)  The
LLC shall issue a new LLC Common Certificate in place of any LLC Common
Certificate previously issued if the holder of the Common Units represented by
such LLC Common Certificate, as reflected on the books and records of the
LLC:

     

    (i) makes
proof by affidavit, in form and substance satisfactory to the Manager, that such
previously issued LLC Common Certificate has been lost, stolen or
destroyed;

     

    (ii)
requests the issuance of a new LLC Common Certificate before the Manager has
notice that such previously issued LLC Common Certificate has been acquired by a
purchaser for value in good faith and without notice of an adverse
claim;

     

    (iii) if
requested by the Manager, delivers to the LLC a bond, in form and substance
satisfactory to the Manager, with such surety or sureties as the Manager may
direct, to indemnify the LLC and the Manager against any claim that may be made
on account of the alleged loss, destruction or theft of the previously issued
LLC Common Certificate; and

     

    (iv)
satisfies any other reasonable requirements imposed by the Manager and any
applicable requirements under the Escrow Agreement.

     

    (c)  Upon
a Member’s Transfer of any or all of the Common Units represented by an LLC
Common Certificate in compliance with Article VIII hereof, the transferee
of such Common Units shall deliver such LLC Common Certificate to the Manager
for cancellation, and the Manager shall thereupon issue a new LLC Common
Certificate to such transferee for the Common Units being transferred and, if
applicable, cause to be issued to such transferor a new LLC Common Certificate
for that number of Common Units represented by the canceled LLC Common
Certificate which are not being transferred.

     

    (d)  As
of the Effective Time, the Units under the Existing LLC Agreement shall be
automatically converted into Common Units and the then existing certificates for
such Units shall continue to be valid in all respects as LLC Common
Certificates.

    


    
      
        
           


        

        
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    SECTION
7.11.  Certification and Terms of
Preferred Units.  Each Preferred Unit shall be represented by a
certificate in the form attached hereto as Schedule E (an “LLC Preferred
Certificate”) and shall be imprinted with a legend in substantially the
following form:

     

    “THE
UNITS REPRESENTED BY THIS LLC CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES
LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT OR STATE
ACTS OR AN EXEMPTION THEREFROM.  THE TRANSFER OF THE UNITS REPRESENTED
BY THIS LLC CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE THIRD
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF __, 2011,
AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE “COMPANY”)
AND BY AND AMONG CERTAIN INVESTORS.  A COPY OF SUCH CONDITIONS SHALL
BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE.”

     

    (a)  Upon
any issuance of Preferred Units to any Member in accordance with the provisions
of this Agreement, the LLC shall issue one or more LLC Preferred Certificates in
the name of such Member.  Each such LLC Preferred Certificate shall be
denominated in terms of the number of Preferred Units evidenced by such LLC
Preferred Certificate and shall be signed by the Manager on behalf of the
LLC.

     

    (b)  The
LLC shall issue a new LLC Preferred Certificate in place of any LLC Preferred
Certificate previously issued if the holder of the Units represented by such LLC
Preferred Certificate, as reflected on the books and records of the
LLC:

     

    (i) makes
proof by affidavit, in form and substance satisfactory to the Manager, that such
previously issued LLC Preferred Certificate has been lost, stolen or
destroyed;

     

    (ii)
requests the issuance of a new LLC Preferred Certificate before the Manager has
notice that such previously issued LLC Preferred Certificate has been acquired
by a purchaser for value in good faith and without notice of an adverse claim;
and

     

    (iii) if
requested by the Manager, delivers to the LLC a bond, in form and substance
satisfactory to the Manager, with such surety or sureties as the Manager may
direct, to indemnify the LLC and the Manager against any claim that may be made
on account of the alleged loss, destruction or theft of the previously issued
LLC Preferred Certificate.

    


    
      
        
           


        

        
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    (c)  Upon
a Member’s Transfer of any or all of the Preferred Units represented by an LLC
Preferred Certificate in compliance with Article VIII hereof, the
transferee of such Preferred Units shall deliver such LLC Preferred Certificate
to the Manager for cancellation, and the Manager shall thereupon issue a new LLC
Preferred Certificate to such transferee for the Preferred Units being
transferred and, if applicable, cause to be issued to such transferor a new LLC
Preferred Certificate for that number of Preferred Units represented by the
canceled LLC Preferred Certificate which are not being transferred.

     

    (d)  Effective
immediately upon the Preferred Stock Conversion, all Preferred Units shall
automatically and without action by the holder or the LLC convert into Common
Units, on a one-for-one basis, and the holders of the Preferred Units so
converted will also receive one share of Class B Common Stock for each Common
Unit received upon conversion.  Upon such conversion, the LLC shall
cause to be issued to each holder of Preferred Units a new LLC Common
Certificate for that number of Common Units to be received upon such
conversion.  For purposes of clarity, any Common Units received upon
the conversion of Preferred Units shall be exchangeable for shares of Common
Stock pursuant to Section 8.03.

     

    (e)  The
LLC will not, without the approval of the holders of at least a majority of the
Preferred Units then outstanding, (i) authorize or issue additional Preferred
Units (provided,
however,
that no such approval shall be required in respect of any Preferred Units to be
authorized and issued in connection with the Cargill Stock Payment) or (ii)
authorize or issue any other series of preferred interests or preferred units
which are senior or on parity with respect to liquidation or dividend payments
to the Preferred Units (provided,
however,
that no such approval shall be required in respect of any Preferred Units issued
in connection with the Private Placement or the Bridge Preferred LLC Interest
outstanding immediately after the Effective Time).  In addition,
notwithstanding anything set forth in Section 11.03, this Agreement shall not be
amended in such a way as would adversely affect the holders of the Preferred
Units, in their capacity as such, without the approval of the holders of at
least a majority of the Preferred Units then outstanding and the Manager shall
not take any action under this Agreement in contravention of this
sentence.

     

    ARTICLE
VIII


     

    Transfer of LLC
Interests

     

    SECTION
8.01.  Restrictions on
Transfer.  No Member may sell, assign, pledge, transfer or
otherwise dispose of all or any portion of such Member’s Units (whether with or
without consideration and whether voluntarily or involuntarily or by operation
of law) (a “Transfer”), unless
(i) the prior written consent of the Manager is obtained, which consent may
be given or withheld, or made subject to such conditions (including the receipt
of such legal opinions and other documents that the Manager may require) as are
determined by the Manager, in each case in the Manager’s sole discretion
(ii) such Transfer complies with the provisions of this Article VIII
and the relevant provisions of any agreements to which the LLC and such Member
are parties and (iii) such transfer is accompanied by the delivery of an
endorsed LLC Certificate.  In the event that a Member transfers any
Units pursuant to this Section 8.01, in connection with such transfer it
shall also transfer a pro rata portion of its (i) Capital Account and
(ii) credits for Capital Contributions to such transferee.

    


    
      
        
           


        

        
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    SECTION
8.02.  Permitted
Transfers.  (a)  Notwithstanding anything to the
contrary in this Agreement, (i) each Member who is an individual may
transfer all or a portion of his Units without consideration to (A) a
member of such Member’s immediate family, which shall include his spouse,
siblings, children or grandchildren (“Family Members”) or
(B) a trust (including any grantor retained annuity trust), corporation,
partnership or limited liability company, all of the beneficial interests in
which shall be held by such Member and/or one or more Family Members of such
Member; provided, however, that during
the period that any such trust, corporation, partnership or limited liability
company holds any Units, no Person other than such Member or one or more Family
Members of such Member may be or may become beneficiaries, stockholders, limited
or general partners or members thereof, (ii) each Member that is an entity
may transfer all or a portion of its Units to any of its Affiliates (it being
understood, in furtherance of and not in limitation of the foregoing, that
Greenlight and Third Point may transfer Units held by them to an entity in which
both Greenlight and Third Point hold equity interests that is an Affiliate of
either Greenlight or Third Point) and (iii) each Member that is a party to the
Escrow Agreement may transfer all or a portion of its Units to any other party
to the Escrow Agreement in connection with the true-up contemplated by
Section 4.01(e) (the Persons referred to in the preceding clauses (i),
(ii) and (iii) are each referred to hereinafter as a “Permitted
Transferee”).  A Permitted Transferee of Units pursuant to this
Section 8.02 may transfer its Units pursuant to this Section 8.02 only
to the transferor Member or to a Person that is a Permitted Transferee of such
transferor Member (and in the case of a transfer by a Member who is an
individual, only without consideration), provided, however, that all
Permitted Transferees shall be subject to this Agreement and, if applicable, the
Escrow Agreement and the Tax Benefit Sharing Agreement, in the same manner as
the transferor.  Transfers pursuant to this Section 8.02 shall
not require the consent of the Manager.

     

    SECTION
8.03.  Permitted
Exchanges.  (a)   Notwithstanding
Section 8.01, each Member (other than the Corporation) shall be entitled to
exchange, at any time and from time to time, any or all of such Member’s Common
Units, on a one-for-one basis, for the same number of shares of Common Stock
(the number of shares of Common Stock for which a Common Unit is entitled to be
exchanged referred to herein as the “Exchange Rate”) by
delivering a written notice to the Manager (and to the Corporation, if the
Corporation is not the Manager) stating that such Member desires to exchange a
number of Common Units specified in such notice into an equal number of shares
of Common Stock, accompanied by instruments of transfer to the Corporation, duly
executed by such Member or such Member’s duly authorized attorney, and transfer
tax stamps or funds therefor, if required pursuant to this Article VIII, in
respect of the Common Units to be exchanged, in each case delivered during
normal business hours at the principal executive offices of the Manager (and the
Corporation, if the Corporation is not the Manager).  The Manager
shall use commercially reasonable efforts to effect any such exchange within one
Business Day of receiving the requisite notice, instruments of transfer and
transfer tax stamps or funds therefor, if required, as set forth in the
preceding sentence.  Notwithstanding the foregoing, no holder of a
Common Unit shall be entitled to exchange such Common Unit for a share of Common
Stock if such exchange would be prohibited under applicable federal or state
securities laws or regulations.

    


    
      
        
           


        

        
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    (b)  Upon
the date any such Common Units are surrendered for exchange pursuant to this
Section 8.03, all rights of the holder of such Common Units as such holder shall
cease.

     

    (c)  The
Exchange Rate shall be adjusted accordingly if there is: (1) any
subdivision (by any unit split, unit distribution, reclassification,
recapitalization or otherwise) or combination (by reverse unit split,
reclassification, recapitalization or otherwise) of the Common Units that is not
accompanied by an identical subdivision or combination of the Common Stock; or
(2) any subdivision (by any stock split, stock dividend, reclassification,
recapitalization or otherwise) or combination (by reverse stock split,
reclassification, recapitalization or otherwise) of the Common Stock that is not
accompanied by an identical subdivision or combination of the Common
Units.  In the event of a reclassification or other similar
transaction as a result of which the shares of Common Stock are converted into
another security, then a Member shall be entitled to receive upon exchange the
amount of such security that such Member would have received if such exchange
had occurred immediately prior to the effective date of such reclassification or
other similar transaction.

     

    SECTION
8.04.  Further
Restrictions.  Notwithstanding any contrary provision in this
Agreement, in no event may any Transfer of a Unit be made by any Member or
transferee if:

     

    (a) such
Transfer is made to any Person who lacks the legal right, power or capacity to
own such Unit;

     

    (b) such
Transfer would require the registration of such transferred Unit or of any class
of Unit pursuant to any applicable United States federal or state securities
laws (including, without limitation, the Securities Act or the Exchange Act) or
other foreign securities laws or would constitute a nonexempt distribution
pursuant to applicable state securities laws;

     

    (c) such
Transfer would cause any portion of the assets of the LLC to constitute assets
of any employee benefit plan pursuant to the regulations issued by the U.S.
Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV,
Title 29 of the Code of Federal Regulations, or any successor
regulations;

     

    (d) such
Transfer would cause any portion of the assets of the LLC to become “plan
assets” of any benefit plan investor within the meaning of regulations issued by
the U.S. Department of Labor at Section 2510.3-101 of Part 2510 of
Chapter XXV, Title 29 of the Code of Federal Regulations, or any
successor regulations, or to be regulated under the Employee Retirement Income
Security Act of 1974, as amended from time to time; or

    


    
      
        
           


        

        
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    (e) to
the extent requested by the Manager (except in the case of a Transfer
contemplated by Section 4.01(e) or Section 8.02), the LLC does not receive
such legal and/or tax opinions and written instruments (including copies of any
instruments of Transfer and such transferee’s consent to be bound by this
Agreement as a transferee) that are in a form satisfactory to the Manager, as
determined in the Manager’s sole discretion.

     

    SECTION
8.05.  Transferee’s
Rights.  (a)  A transfer of Units permitted hereunder
shall be effective as of the date of assignment and compliance with the
conditions to such transfer and such transfer shall be shown on the books and
records of the LLC.  Net Income, Net Losses and other LLC items shall
be allocated between the transferor and the transferee according to
Section 706 of the Code.  Distributions made before the effective
date of such transfer shall be paid to the transferor, and Distributions made
after such date shall be paid to the transferee.

     

    (b)  Unless
and until a transferee becomes a Substituted Member pursuant to
Section 8.07, the transferee shall not be entitled to any of the rights
granted to a Member hereunder or under applicable law, other than the rights
granted specifically to transferees pursuant to this Agreement and to have the
other rights granted to transferees pursuant to the Delaware Act.

     

    SECTION
8.06.  Transferor’s Rights and
Obligations.  Any Member who shall transfer any Units or other
interest in the LLC shall cease to be a Member with respect to such Units or
other interest and shall no longer have any rights or privileges of a Member
with respect to such Units or other interest except that unless and until the
transferee is admitted as a Substituted Member in accordance with the provisions
of Section 8.07 (the “Admission Date”),
(i) such assigning Member shall retain all of the duties, liabilities and
obligations of a Member with respect to such Units or other interest and
(ii) the Manager may, in its sole discretion, reinstate all or any portion
of the rights and privileges of such Member with respect to such Units or other
interest for any period of time prior to the Admission Date.

     

    SECTION
8.07.  Substituted
Members.  In connection with the transfer of a Unit of a Member
permitted under the terms of this Agreement, and the other agreements
contemplated hereby and thereby, the transferee shall become a Substituted
Member on the later of (i) the effective date of such transfer and
(ii) the date on which the Manager approves such transferee as a
Substituted Member, and such admission shall be shown on the books and records
of the LLC and the Substituted Member signs a letter of acceptance, in form
satisfactory to the Manager, of all the terms and conditions of this Agreement,
including, if applicable, the Escrow Agreement and the Tax Benefit Sharing
Agreement, and signs such other documents and instruments as may be necessary or
appropriate to effect such Person’s admission as a Substituted
Member.

    


    
      
        
           


        

        
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    SECTION
8.08.  Additional
Members.  A Person may be admitted to the LLC as an additional
Member only in connection with a transfer of Units permitted under this
Article VIII and only upon such Person furnishing to the LLC (a) a
letter of acceptance, in form satisfactory to the Manager, of all the terms and
conditions of this Agreement, and (b) such other documents or instruments
as may be necessary or appropriate to effect such Person’s admission as a
Member.  A Person may be admitted to the LLC as an additional Member
through the issuance of new Units or other securities of the LLC with the prior
written consent of the Manager and only upon such Person furnishing to the LLC
(a) a letter of acceptance, in form satisfactory to the Manager, of all the
terms and conditions of this Agreement, including, if applicable, the Tax
Benefit Sharing Agreement, and (b) such other documents or instruments as
may be necessary or appropriate to effect such Person’s admission as a
Member.  Any admission of an additional Member pursuant to this
Agreement shall become effective on the date on which the Manager determines in
its sole discretion that such conditions have been satisfied and when any such
admission is shown on the books and records of the LLC.

     

    SECTION
8.09.  Attempted Transfer
Void.  Any attempted Transfer which violates the provisions of
this Agreement shall be void and the purported buyer, transferee, pledgee,
mortgagee or other recipient shall have no interest in or rights to LLC assets,
profits, losses or distributions, and neither the Members nor the LLC shall be
required to recognize any such interest or rights.

     

    SECTION
8.10.  Withdrawal.  No
Member may, or may be required to, withdraw from the LLC, except upon a Transfer
of such Member’s Units in accordance with the provisions of this Agreement or
upon a permitted repurchase or redemption of such Member’s Units pursuant to the
provisions of this Agreement or any other agreement to which the LLC and such
Member are parties.

     

    SECTION
8.11.  Required Amendments;
Continuation.  If and to the extent any transferee is admitted
as a Member pursuant to Section 8.07, this Agreement shall be amended to
admit such transferee as a Member and to reflect the elimination of the
transferor (or the reduction of such Member’s interest) and (if and to the
extent then required by the Delaware Act) a certificate of amendment to the
Certificate reflecting such admission and elimination (or reduction) shall be
filed in accordance with the Act.

     

    SECTION
8.12.  Resignation.  No
Member shall have the right to resign or withdraw as a Member without the prior
written consent of the Manager, which may be given or withheld in its sole
discretion except to the extent that such resignation or withdrawal is
effectuated in connection with a transfer, permitted under this
Article VIII, by such Member of all Units held by it.  Any Member
that resigns without any required consent of the Manager in contravention of
this Section 8.12 shall be liable to the LLC for all damages (including all
lost profits and special, indirect and consequential damages) directly or
indirectly caused by the resignation of such Member, and such Member shall be
entitled to receive the fair value of his, her or its interest in the LLC as of
the date of his, her or its resignation (or, if less, the fair value of his, her
or its interest as of the date of the occurrence of a liquidation or other
winding-up of the LLC), as conclusively determined by the Manager, only promptly
following the occurrence of a liquidation or other winding-up of the
LLC.

    


    
      
        
           


        

        
          35

          
            

          

        

        
           


        

      

    

     

    ARTICLE
IX


     

    Dissolution and
Liquidation

     

    SECTION
9.01.  Dissolution.  The
LLC shall not be dissolved by the admission of additional Members or Substituted
Members.  The LLC shall dissolve, and its affairs shall be wound up,
upon the first to occur of the following:

     

    (a) the
entry of a decree of judicial dissolution of the LLC under Section 35-5 of
the Delaware Act or an administrative dissolution under Section 18-802 of
the Delaware Act;

     

    (b) any
other event not inconsistent with any provision hereof causing a dissolution of
the LLC under the Delaware Act; or

     

    (c) the
Incapacity or removal of the Manager or the occurrence of a Disabling Event with
respect to the Manager; provided that the LLC
will not be dissolved or required to be wound up in connection with any of the
events specified in this Section 9.01 if:  (i) at the time
of the occurrence of such event there is at least one other Member who is hereby
authorized to, and elects to, carry on the business of the LLC; or (ii) all
remaining Members consent to or ratify the continuation of the business of the
LLC and the appointment of another managing member of the LLC within 90 days
following the occurrence of any such Incapacity or removal, which consent shall
be deemed (and if requested each Member shall provide a written consent for
ratification) to have been given for all Members if the holders of more than
two-thirds of the Units then outstanding agree in writing to so continue the
business of the LLC.

     

    Except as
otherwise set forth in this Article IX, the LLC is intended to have
perpetual existence.  A withdrawal by a Member shall not cause a
dissolution of the LLC, and the LLC shall continue in existence subject to the
terms and conditions of this Agreement.

     

    SECTION
9.02.  Liquidation and
Termination.  On the liquidation, dissolution or winding-up of
the LLC (“Liquidation”), the
Manager, or any other Person or Persons designated by the Manager, shall act as
liquidator (the “Liquidator”).  The
Liquidator shall proceed diligently to wind up the affairs of the LLC and make
final distributions as provided herein and in the Delaware Act.  The
costs of Liquidation shall be expenses of the LLC.  Until final
distribution, the Liquidator shall continue to operate the LLC properties with
all of the power and authority of the Manager.  The steps to be
accomplished by the Liquidator are as follows:

     

    (a) The
Liquidator shall pay, satisfy or discharge from LLC funds all of the debts,
liabilities and obligations of the LLC (including all expenses incurred in
Liquidation) or otherwise make adequate provision for payment and discharge
thereof (including the establishment of a cash fund for contingent liabilities
in such amount and for such term as the Liquidator may reasonably
determine).

    


    
      
        
           


        

        
          36

          
            

          

        

        
           


        

      

    

     

    (b) In
the event that the LLC holds assets other than cash at the time of the
Liquidation, then as promptly as practicable after dissolution, the Liquidator
shall (i) determine the Fair Market Value (the “Liquidation FMV”) of
such assets (the “Liquidation Assets”)
in accordance with this Article IX, and (ii) deliver to each Member a
statement setting forth the Liquidation FMV.

     

    (c) The
“Fair Market
Value” of any Liquidation Assets shall be conclusively determined by the
Liquidator, and shall be determined with the consultation of an independent
appraiser and with good faith and fair dealing.

     

    (d) As
soon as the Liquidation FMV has been determined in accordance with Sections
9.02(b) and (c) above, the Liquidator shall promptly distribute the LLC’s
Liquidation Assets to the holder of the Bridge Preferred LLC Interest, before
any payment or distribution is made to the holders of the Preferred Units or the
Common Units, in an amount equal to the Bridge Preferred Interest Liquidation
Preference, if any.  If there are remaining Liquidation Assets after
the payment in full of the Bridge Preferred Interest Liquidation Preference,
such remaining Liquidation Assets shall be distributed to the holders of the
Preferred Units, pro rata based on their Preferred Unit Percentages, before any
payment or distribution is made to holders of the Common Units, in an amount per
Preferred Unit equal to the Preferred Unit Liquidation
Preference.  If, after the payment in full of the Bridge Preferred
Interest Liquidation Preference, the Liquidation Assets are not sufficient to
pay the aggregate Preferred Unit Liquidation Preferences payable on all
Preferred Units in full, the holders of the Preferred Units will share, pro rata
based on their Preferred Unit Percentages, in the distribution of the
Liquidation Assets.  If there are remaining Liquidation Assets after
the payment in full of the Bridge Preferred Interest Liquidation Preference and
the aggregate Preferred Unit Liquidation Preferences, such remaining Liquidation
Assets shall be distributed by the Liquidator, on a pro rata basis based on
their Common Unit Percentages, to the holders of the Common
Units.  Any non-cash Liquidation Assets will first be written up or
down to their Fair Market Value, thus creating Net Income or Net Loss (if any),
which shall be allocated in accordance with Section 4.04.  In making
such distributions, the Liquidator shall allocate each type of Liquidation
Assets (i.e.,
cash or cash equivalents, stock or securities, etc.) among the Members ratably
based upon the aggregate amounts to be distributed with respect to the Units
held by each such holder.

     

    The
distribution of cash and/or property to a Member in accordance with the
provisions of this Section 9.02 constitutes a complete return to the Member
of its Capital Contributions and a complete distribution to the Member of its
interest in the LLC and all the LLC’s property and constitutes a compromise to
which all Members have consented within the meaning of the Delaware
Act.  To the extent that a Member returns funds to the LLC, it has no
claim against any other Member for those funds.

    


    
      
        
           


        

        
          37

          
            

          

        

        
           


        

      

    

    


    SECTION
9.03.  Certificate of
Cancellation.  On completion of the distribution of LLC assets
as provided herein, the LLC is terminated (and the LLC shall not be terminated
prior to such time), and the Manager (or such other Person or Persons as the
Delaware Act may require or permit) shall file a certificate of cancellation
with the Secretary of State of Delaware, cancel any other filings made pursuant
to this Agreement that are or should be canceled and take such other actions as
may be necessary to terminate the LLC.  The LLC shall be deemed to
continue in existence for all purposes of this Agreement until it is terminated
pursuant to this Section 9.03.

     

    SECTION
9.04.  Reasonable Time for Winding
Up.  A reasonable time shall be allowed for the orderly winding
up of the business and affairs of the LLC and the liquidation of its assets
pursuant to Section 9.02 in order to minimize any losses otherwise
attendant upon such winding up.

     

    SECTION
9.05.  Return of
Capital.  The Liquidator shall not be personally liable for the
return of Capital Contributions or any portion thereof to the Members (it being
understood that any such return shall be made solely from LLC
assets).

     

    ARTICLE
X

       

    Rights and Obligations of
Members

     

    SECTION
10.01.  Limitation of
Liability.  Except as otherwise provided by applicable law, the
debts, obligations and liabilities of the LLC, whether arising in contract, tort
or otherwise, shall be solely the debts, obligations and liabilities of the LLC,
and no Member shall be obligated personally for any such debt, obligation or
liability of the LLC solely by reason of being a Member or acting as a Member of
the LLC; provided that a
Member shall be required to return to the LLC any Distribution made to it in
clear and manifest accounting or similar error.  The immediately
preceding sentence shall constitute a compromise to which all Members have
consented within the meaning of the Delaware Act.  Notwithstanding
anything contained herein to the contrary, the failure of the LLC to observe any
formalities or requirements relating to the exercise of its powers or management
of its business and affairs under this Agreement or the Delaware Act shall not
be grounds for imposing personal liability on the Members for liabilities of the
LLC.  Each Member’s and the Manager’s liability shall be limited as
set forth in this Agreement, the Delaware Act and other applicable
law.  The Manager shall have no liability for taking or failing to
take any action required to be taken by it under this Agreement to the extent
the Manager or the Members have agreed that such action shall be taken or not be
taken, as the case may be.  To the fullest extent permitted under the
Delaware Act, no Member, the Manager or any officer of the LLC (each, a “Covered Person”)
shall be liable to the LLC or to any of the Members for any losses, claims,
damages or liabilities arising (i) by reason of being or having been a
Covered Person or (ii) from any act or omission performed or omitted by the
Covered Person in connection with this Agreement or the LLC’s business or
affairs (including any error in judgment in making any investment decisions),
including losses due to the negligence of other agents of the LLC, except for
any losses, claims, damages or liabilities primarily attributable to such
Covered Person’s willful misconduct, recklessness, or gross negligence, as
finally determined by a court of competent jurisdiction, or as otherwise
required by law.

    


    
      
        
           


        

        
          38

          
            

          

        

        
           


        

      

    

     

    SECTION
10.02.  Exculpation. (a)  No
Covered Person shall be liable, including under any legal or equitable theory of
fiduciary duty or other theory of liability, to the LLC or to any other Covered
Person for any losses, claims, damages or liabilities incurred by reason of any
act or omission performed or omitted by such Covered Person on behalf of the LLC
unless such act or omission was performed or omitted by such Covered Person in
bad faith.  Whenever in this Agreement a Covered Person is permitted
or required to make decisions in good faith, the Covered Person shall act under
such standard and shall not be subject to any other or different standard
(including any legal or equitable standard of fiduciary or other duty) imposed
by this Agreement or any relevant provisions of law or in equity or
otherwise.

     

    (b)  A
Covered Person shall be fully protected in relying in good faith upon the
records of the LLC and upon such information, opinions, reports or statements
presented to the LLC by any Person as to matters the Covered Person reasonably
believes are within such Person’s professional or expert
competence.

     

    SECTION
10.03.  Lack
of Authority.  No Member in its capacity as such has the
authority or power to act for or on behalf of the LLC in any manner, to do any
act that would be (or could be construed as) binding on the LLC or to make any
expenditures on behalf of the LLC, and the Members hereby consent to the
exercise by the Manager of the powers conferred on it by law and this
Agreement.

     

    SECTION
10.04.  No
Right of Partition.  No Member shall have the right to seek or
obtain partition by court decree or operation of law of any LLC property, or the
right to own or use particular or individual assets of the LLC.

     

    SECTION
10.05.  Indemnification.  (a)  The
LLC hereby agrees to indemnify and hold harmless any Covered Person (each an
“Indemnified
Person”) to the fullest extent permitted under the Delaware Act, as the
same now exists or may hereafter be amended, substituted or replaced (but, in
the case of any such amendment, substitution or replacement only to the extent
that such amendment, substitution or replacement permits the LLC to provide
broader indemnification rights than the LLC is providing immediately prior to
such amendment), against all expenses, liabilities and losses (including
attorney fees, judgments, fines, excise taxes or penalties) (collectively “Losses”) reasonably
incurred or suffered by such Person (or one or more of such Person’s Affiliates)
by reason of the fact that such Person is or was a Member, Manager or
Officer.  The LLC may, as determined by the Manager, also indemnify
and hold harmless any Indemnified Person to the fullest extent permitted under
the Delaware Act who is or was serving as an employee or agent of the LLC or is
or was serving at the request of the LLC as a managing member, officer,
director, principal, member, employee or agent of another corporation,
partnership, joint venture, limited liability company, trust or other enterprise
(including any of the LLC’s Subsidiaries).  Expenses, including
attorney fees, incurred by any such Indemnified Person in defending a proceeding
otherwise indemnifiable hereunder shall be paid by the LLC in advance of the
final disposition of such proceeding, including any appeal therefrom, upon
receipt of an undertaking by or on behalf of such Indemnified Person to repay
such amount if it shall ultimately be determined that such Indemnified Person is
not entitled to be indemnified by the LLC.  Notwithstanding the
foregoing, no indemnification shall be provided by the LLC with respect to any
Losses that resulted from action or inaction of such Indemnified Person that, in
each case, constituted gross negligence, willful misconduct, a breach of the
Indemnified Party’s fiduciary duty to the LLC or an act that was not in good
faith, that involved a knowing violation of law or from which the Indemnified
Person derived an improper personal benefit.

    


    
      
        
           


        

        
          39

          
            

          

        

        
           


        

      

    

     

    (b)  The
right to indemnification and the advancement of expenses conferred in this
Section 10.05 shall not be exclusive of any other right which any Person
may have or hereafter acquire under any statute, agreement, by-law or
otherwise.

     

    (c)  The
LLC may maintain insurance, at its expense, to protect any Indemnified Person
against any expense, liability or loss described in Section 10.05(a) above
whether or not the LLC would have the power to indemnify such Indemnified Person
against such expense, liability or loss under the provisions of this
Section 10.05.

     

    (d)  Notwithstanding
anything contained herein to the contrary (including in this
Section 10.05), any indemnity by the LLC relating to the matters covered in
this Section 10.05 shall be provided out of and to the extent of LLC assets
only and no Member (unless such Member otherwise agrees in writing or is found
in a final decision by a court of competent jurisdiction to have personal
liability on account thereof) shall have personal liability on account thereof
or shall be required to make additional Capital Contributions to help satisfy
such indemnity of the LLC.

     

    (e)  If
this Section 10.05 or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the LLC shall nevertheless
indemnify and hold harmless each Indemnified Person pursuant to this
Section 10.05 to the fullest extent permitted by any applicable portion of
this Section 10.05 that shall not have been invalidated and to the fullest
extent permitted by applicable law.

     

    ARTICLE
XI


     

    General
Provisions

     

    SECTION
11.01.  Power of
Attorney.  (a)  Each Member hereby constitutes and
appoints the Manager and the Liquidator, with full power of substitution, as his
true and lawful agent and attorney-in-fact, with full power and authority in his
or its name, place and stead, to execute, swear to, acknowledge, deliver, file
and record in the appropriate public offices:  (i) this
Agreement, all certificates and other instruments and all amendments thereof
which are in accordance with the terms of this Agreement and which the Manager
deems appropriate or necessary to form, qualify, or continue the qualification
of, the LLC as a limited liability company in the State of Delaware and in all
other jurisdictions in which the LLC may conduct business or own property,
(ii) all instruments which the Manager deems appropriate or necessary to
reflect any amendment, change, modification or restatement of this Agreement
which is in accordance with its terms, (iii) all conveyances and other
instruments or documents which the Liquidator deems appropriate or necessary to
reflect the dissolution and liquidation of the LLC pursuant to the terms of this
Agreement, including a certificate of cancellation and (iv) all instruments
relating to the admission, withdrawal or substitution of any Member pursuant to
this Agreement.

    


    
      
        
           


        

        
          40

          
            

          

        

        
           


        

      

    

     

    (b)  The
foregoing power of attorney is irrevocable and coupled with an interest, and
shall survive the death, disability, incapacity, dissolution, bankruptcy,
insolvency or termination of any Member and the transfer of all or any portion
of his or its Units and shall extend to such Member’s heirs, successors, assigns
and personal representatives.

     

    SECTION
11.02.  Further
Action.  The parties shall execute and deliver all documents,
instruments, and certificates, provide all information, and take or refrain from
taking all such further actions as may be necessary or appropriate to achieve
the purposes of this Agreement and effect the provisions hereof, as determined
by the Manager.

     

    SECTION
11.03.  Amendments.  This
Agreement may not be amended except in writing and with the consent of the
Manager, which may be withheld in its sole discretion; provided, however, that any
amendment or modification that adversely affects the rights of one or more
Members under this Agreement, in their capacity as such, in a manner that is
materially different from the manner in which such amendment or modification
affects the rights of other Members under this Agreement, in their capacity as
such, shall require the consent of each such adversely affected Member;
provided, further, however, that any
amendment to Sections 4.01(b), (c), (d) or (e), 5.02, 8.03 and this 11.03, and
any defined terms that are used in those sections, shall require the consent of
each of Greenlight, Third Point and each Management Member.

     

    SECTION
11.04.  Title to LLC
Assets.  LLC assets shall be deemed to be owned by the LLC as
an entity, and no Member, individually or collectively, shall have any ownership
interest in such LLC assets or any portion thereof.  Legal title to
any or all LLC assets may be held in the name of the LLC, the Manager or one or
more nominees, as the Manager may determine.  The Manager hereby
declares and warrants that any LLC assets for which legal title is held in its
name or the name of any nominee shall be held in trust by the Manager or such
nominee for the use and benefit of the LLC in accordance with the provisions of
this Agreement.  All LLC assets shall be recorded as the property of
the LLC on its books and records, irrespective of the name in which legal title
to any such LLC asset is held.

     

    SECTION
11.05.  Remedies.  Each
Member shall have all rights and remedies set forth in this Agreement and all
rights and remedies which such Person has been granted at any time under any
other agreement or contract and all of the rights which such Person has under
any law.  Any Person having any rights under any provision of this
Agreement or any other agreements contemplated hereby shall be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.

    


    
      
        
           


        

        
          41

          
            

          

        

        
           


        

      

    

     

    SECTION
11.06.  Successors and
Assigns.  All covenants and agreements contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors, legal representatives
and permitted assigns, whether so expressed or not.

     

    SECTION
11.07.  Severability.  Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or the effectiveness or
validity of any provision in any other jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.

     

    SECTION
11.08.  Counterparts.  This
Agreement may be executed simultaneously in two or more separate counterparts,
any one of which need not contain the signatures of more than one party, but
each of which will be an original and all of which together shall constitute one
and the same agreement binding on all the parties hereto.

     

    SECTION
11.09.  Applicable
Law.  This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.

     

    SECTION
11.10.  Addresses and
Notices.  All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given or made when
(a) delivered personally to the recipient, (b) telecopied to the
recipient (with hard copy sent to the recipient by reputable overnight courier
service (charges prepaid) that same day) if telecopied before 5:00 p.m. New
York time on a Business Day, and otherwise on the next Business Day, or
(c) one (1) Business Day after being sent to the recipient by
reputable overnight courier service (charges prepaid).  Such notices,
demands and other communications shall be sent to the address for such recipient
set forth on the signature pages or Schedules hereto, and/or to such other
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.  Any notice to
the Manager or the LLC shall be deemed given if received by the Manager at the
principal office of the LLC, designated pursuant to
Section 2.05.

     

    SECTION
11.11.  Creditors; Third Party
Beneficiaries.  None of the provisions of this Agreement shall
be for the benefit of or enforceable by any creditors of the LLC or any of its
Affiliates, and no creditor who makes a loan to the LLC or any of its Affiliates
may have or acquire (except pursuant to the terms of a separate agreement
executed by the LLC in favor of such creditor) at any time as a result of making
the loan any direct or indirect interest in Net Income, Net Losses,
Distributions, capital or property other than as a secured
creditor.  Except to the extent contemplated by Section 10.05,
there are no third party beneficiaries having rights under or with respect to
this Agreement.

    


    
      
        
           


        

        
          42

          
            

          

        

        
           


        

      

    

     

    SECTION
11.12.  Waiver.  No
failure by any party to insist upon the strict performance of any covenant,
duty, agreement or condition of this Agreement or to exercise any right or
remedy consequent upon a breach thereof shall constitute a waiver of any such
breach or any other covenant, duty, agreement or condition.

     

    SECTION
11.13.  Entire
Agreement.  This Agreement, those documents expressly referred
to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any
way.

     

    SECTION
11.14.  Delivery by
Facsimile.  This Agreement, the agreements referred to herein,
and each other agreement or instrument entered into in connection herewith or
therewith or contemplated hereby or thereby, and any amendments hereto or
thereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person.  At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties.  No party hereto or to any such agreement
or instrument shall raise the use of a facsimile machine to deliver a signature
or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.

     

    SECTION
11.15.  Waiver of Certain
Rights.  Each Member irrevocably waives any right it may have
to demand any Distributions or withdrawal of property from the LLC or to
maintain any action for dissolution (except pursuant to Section 18-802 of
the Delaware Act) of the LLC or for partition of the property of the
LLC.

     

    SECTION
11.16.  Survival.  Section 10.01
(Limitation of Liability) and Section 10.05 (Indemnification) shall survive
and continue in full force in accordance with its terms notwithstanding any
termination of this Agreement or the dissolution of the LLC.

    


    
      
        
           


        

        
          43

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the undersigned have executed or caused to be executed on their
behalf this Third Amended and Restated Limited Liability Company Agreement as of
the date first above written.

    


    
      
        
          
            
              
                	
                        BIOFUEL
      ENERGY, LLC,

                      
	 
      	 
      	 
      
	
                        by  

                      	
                        /s/ Scott H. Pearce

                      
	 
      	
                        Name:

                      	
                        Scott
      H. Pearce

                      
	 
      	
                        Title:

                      	
                        President
      and Chief

                      
	 
      	 
      	
                        Executive
      Officer

                      
	 
      	 
      	 
      
	
                        BIOFUEL
      ENERGY CORP.,

                      
	 
      	 
      	 
      
	      
                        by  

                      	/s/ Scott H. Pearce
	 
      	
                        Name:

                      	
                        Scott
      H. Pearce

                      
	 
      	
                        Title:

                      	
                        President
      and Chief

                      
	 
      	 
      	
                        Executive
      Officer

                      
	 
      
	
                        Address
      for Notices:

                      
	 
      
	
                        BioFuel Energy Corp.

                      
	 
      
	
                        1600 Broadway, Suite
2200

                      
	 
      
	
                        Denver, CO
80202

                      


              

            

          

        

      

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      Schedule
A

    

    


    IPO
Effective Time Unit Ownership

     

    
      
        
          
            
              	
                      Investor

                    	 	
                      IPO Effective

                      Time Units

                    	 
	 
      	 	 	 
	
                      Greenlight
      Capital, L.P.

                    	 	 	953,568	 
	 
      	 	 	 	 
	
                      Greenlight
      Capital Qualified, L.P.

                    	 	 	3,357,828	 
	 
      	 	 	 	 
	
                      BioFuel
      Energy Corp. (formerly BFE Holdings, Inc.)

                    	 	 	5,042,104	 
	 
      	 	 	 	 
	
                      Third
      Point Partners L.P.

                    	 	 	2,690,782	 
	 
      	 	 	 	 
	
                      Third
      Point Partners Qualified L.P.

                    	 	 	1,638,018	 
	 
      	 	 	 	 
	
                      Daniel
      S. Loeb

                    	 	 	224,484	 
	 
      	 	 	 	 
	
                      Lawrence
      J. Bernstein

                    	 	 	112,242	 
	 
      	 	 	 	 
	
                      Todd
      Q. Swanson

                    	 	 	11,224	 
	 
      	 	 	 	 
	
                      Thomas
      J. Edelman

                    	 	 	2,849,370	 
	 
      	 	 	 	 
	
                      WCIOSAQ
      Corp.

                    	 	 	561,210	 
	 
      	 	 	 	 
	
                      SFI
      L.P.

                    	 	 	420,908	 
	 
      	 	 	 	 
	
                      Nancy
      and John Snyder Foundation

                    	 	 	140,303	 
	 
      	 	 	 	 
	
                      Barrie
      M. Damson

                    	 	 	233,838	 
	 
      	 	 	 	 
	
                      Lance
      T. Shaner

                    	 	 	46,768	 
	 
      	 	 	 	 
	
                      Elliot
      Jaffe

                    	 	 	93,535	 
	 
      	 	 	 	 
	
                      Scott
      H. Pearce

                    	 	 	928,837	 
	 
      	 	 	 	 
	
                      Daniel
      J. Simon

                    	 	 	873,860	 
	 
      	 	 	 	 
	
                      Irik
      P. Sevin

                    	 	 	419,856	 
	 
      	 	 	 	 
	
                      BioFuel
      Partners, LLC

                    	 	 	294,635	 
	 
      	 	 	 	 
	
                      Eric
      D. Streisand

                    	 	 	84,587	 
	 
      	 	 	 	 
	
                      JonAlan
      C. Page

                    	 	 	21,147	 


            

          

        

      

    

     

    
      
         

      

      
        A-1

        
          

        

      

      
         

      

    

     

    
      
        
          	
                  Investor

                	 	
                  IPO Effective

                  Time Units

                	 
	 
      	 	 	 
	
                  Ethanol
      Business Group, LLC

                	 	 	187,070	 
	 
      	 	 	 	 
	
                  Michael
      N. Stefanoudakis

                	 	 	21,147	 
	 
      	 	 	 	 
	
                  William
      W. Huffman, Jr.

                	 	 	10,573	 
	 
      	 	 	 	 
	
                  David
      J. Kornder

                	 	 	84,587	 
	 
      	 	 	 	 
	
                  Timothy
      S. Morris

                	 	 	12,359	 
	 
      	 	 	 	 
	
                  Cargill
      Biofuels Investments, LLC

                	 	 	1,675,596	 
	 
      	 	 	 	 
	
                  Christine
      Eklund

                	 	 	6,180	 
	 
      	 	 	 	 
	
                  Robert
      Crockett

                	 	 	1,692	 
	 
      	 	 	 	 
	
                  Marc
      Smyth

                	 	 	846	 
	 
      	 	 	 	 
	
                  Timothy
      DeFoe

                	 	 	846	 
	 
      	 	 	 	 
	
                  TOTAL

                	 	 	23,000,000	 


        

      

    

    


    
      
        
           


        

        
          A-2

          
            

          

        

        
           


        

      

    

    


    Schedule
B

     

    Effective
Time Unit Ownership

    


    
      
        
          	
                  Investor

                	 	
                  Common Units

                  (Pre-Preferred

                  Stock

                  Conversion)

                	 	 	
                  Preferred Units

                  (Pre-Preferred

                  Stock

                  Conversion)

                	 	 	
                  Common Units

                  (Post-Preferred

                  Stock

                  Conversion)

                	 
	 
      	 	 	 	 	 	 	 	 	 
	
                  Greenlight
      Capital, L.P.

                	 	 	828,371	 	 	 	2,170,278	 	 	 	2,998,649	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Greenlight
      Capital Qualified, L.P.

                	 	 	3,057,599	 	 	 	8,021,776	 	 	 	11,079,375	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Greenlight
      Capital (Gold), LP

                	 	 	425,426	 	 	 	1,115,675	 	 	 	1,541,101	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  BioFuel
      Energy Corp.

                	 	 	25,465,728	 	 	 	63,773,603	 	 	 	89,239,331	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Thomas
      J. Edelman

                	 	 	1,352,811	 	 	 	4,134,878	 	 	 	5,487,689	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Scott
      H. Pearce

                	 	 	478,837	 	 	 	850,000	 	 	 	1,328,837	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Daniel
      J. Simon

                	 	 	310,946	 	 	 	784,033	 	 	 	1,094,979	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Irik
      P. Sevin

                	 	 	419,856	 	 	 	800,000	 	 	 	1,219,856	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Eric
      D. Streisand

                	 	 	84,587	 	 	 	213,282	 	 	 	297,869	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  JonAlan
      C. Page

                	 	 	10,573	 	 	 	0	 	 	 	10,573	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Michael
      N. Stefanoudakis

                	 	 	10,573	 	 	 	0	 	 	 	10,573	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  William
      W. Huffman

                	 	 	10,573	 	 	 	0	 	 	 	10,573	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  David
      J. Kornder

                	 	 	103,294	 	 	 	260,450	 	 	 	363,744	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Timothy
      S. Morris

                	 	 	12,359	 	 	 	0	 	 	 	12,359	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  Christine
      Eklund

                	 	 	6,180	 	 	 	18,890	 	 	 	25,070	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                  TOTAL

                	 	 	32,577,713	 	 	 	82,142,865	 	 	 	114,720,578	 


        

      

    

    


    
      
        
           


        

        
          B-1

          
            

          

        

        
           


        

      

    

    
       


      Schedule
C

    

      

    Management
Members

    


    
      	
              Thomas
      J. Edelman

            
	 
      
	
              Scott
      H. Pearce

            
	 
      
	
              David
      J. Kornder

            
	 
      
	
              Daniel
      J. Simon

            
	 
      
	
              Timothy
      S. Morris

            
	 
      
	
              JonAlan
      C. Page

            
	 
      
	
              Irik
      P. Sevin

            
	 
      
	
              Michael
      N. Stefanoudakis

            
	 
      
	
              Eric
      D. Streisand

            


    

    


    
      
        
           


        

        
          C-1

          
            

          

        

        
           


        

      

    

      

      Schedule
D

    

     

    BIOFUEL
ENERGY, LLC

    


    COMMON
UNIT CERTIFICATE

    


    THE UNITS
REPRESENTED BY THIS LLC CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES
LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT OR STATE
ACTS OR AN EXEMPTION THEREFROM.  THE TRANSFER OF THE UNITS REPRESENTED
BY THIS LLC CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE THIRD
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF __, 2011,
AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE “COMPANY”)
AND BY AND AMONG CERTAIN INVESTORS.  A COPY OF SUCH CONDITIONS SHALL
BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE.

     

    
      	
              LLC
      Certificate Number  ____

            	
              ____
      of Common Units

            


    

    


    BIOFUEL
ENERGY, LLC, a Delaware limited liability company (the “Company”), hereby
certifies that ______________________________(the “Holder”) is the
registered owner of _____ Common Units in the Company (the “Units”).  THE
RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND
LIMITATIONS OF THE UNITS ARE SET FORTH IN, AND THIS LLC CERTIFICATE AND THE
UNITS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE
TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT, DATED AS OF __, 2011, AS AMENDED AND MODIFIED FROM TIME TO
TIME, (THE “AGREEMENT”).  THE
TRANSFER OF THIS LLC CERTIFICATE AND THE UNITS REPRESENTED HEREBY IS RESTRICTED
AS DESCRIBED IN THE AGREEMENT.  By acceptance of this LLC Certificate,
and as a condition to being entitled to any rights and/or benefits with respect
to the Units evidenced hereby, the Holder is deemed to have agreed to comply
with and be bound by all the terms and conditions of the
Agreement.  The Company will furnish a copy of the Agreement to the
Holder without charge upon written request to the Company at its principal place
of business.  The Company maintains books for the purpose of
registering the transfer of Units.

    


    This LLC
Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to principles of conflicts of
laws.

    


    
      
        
           


        

        
          D-1

          
            

          

        

        
           


        

      

    

    


    


    IN
WITNESS WHEREOF, the Company has caused this LLC Certificate to be executed by
the Manager on behalf of the Company as of the date set forth
below.

    


    Dated:
_____________________


    


    
      
        
          
            
              
                
                  	
                          BIOFUEL ENERGY, LLC, a Delaware limited liability
      company,

                        
	 
      	 
      	 
      	 
      
	 
      	
                          by:

                        	
                          BioFuel
      Energy Corp., its Manager,

                        
	 
      	 
      	
                          by:  

                        	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                          Name:

                        
	 
      	 
      	 
      	
                          Title:

                        


                

              

            

          

        

      

    

    


    
      
        
           


        

        
          D-2

          
            

          

        

        
           


        

      

    

    


    (REVERSE
SIDE OF CERTIFICATE

    FOR
COMMON UNITS OF BIOFUEL ENERGY, LLC)

    


    FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto
_____________________________________________________ (print or typewrite name
of Transferee), __________________ (insert Social Security or other taxpayer
identification number of Transferee), the following number of Units:
______________ (identify the number of Units being transferred), and irrevocably
constitutes and appoints __________________________, as attorney-in-fact, to
transfer the same on the books and records of the Company, with full power of
substitution in the premises.

    


    
      
        
          
            	
                    Dated:

                  	
                      

                  	 
      	
                    Signature:

                  	 
      
	 
      	 
      	 
      	
                    (Transferor)

                  
	 
      	 
      	 
      	
                    Addresses:

                  


          

        

      

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Schedule
E

    


    BIOFUEL
ENERGY, LLC

    


    PREFERRED
UNIT CERTIFICATE

    


    THE UNITS
REPRESENTED BY THIS LLC CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES
LAWS (“STATE ACTS”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT OR STATE
ACTS OR AN EXEMPTION THEREFROM.  THE TRANSFER OF THE UNITS REPRESENTED
BY THIS LLC CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE THIRD
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF __, 2011,
AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE “COMPANY”)
AND BY AND AMONG CERTAIN INVESTORS.  A COPY OF SUCH CONDITIONS SHALL
BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE.

     

    
      	
              LLC
      Certificate Number  ____

            	
              ____
      of Preferred Units

            


    

    


    BIOFUEL
ENERGY, LLC, a Delaware limited liability company (the “Company”), hereby
certifies that ______________________________(the “Holder”) is the
registered owner of _____ Preferred Units in the Company (the “Units”).  THE
RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND
LIMITATIONS OF THE UNITS ARE SET FORTH IN, AND THIS LLC CERTIFICATE AND THE
UNITS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE
TERMS AND PROVISIONS OF, THE THIRD AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT, DATED AS OF __, 2011, AS AMENDED AND MODIFIED FROM TIME TO
TIME, (THE “AGREEMENT”).  THE
TRANSFER OF THIS LLC CERTIFICATE AND THE UNITS REPRESENTED HEREBY IS RESTRICTED
AS DESCRIBED IN THE AGREEMENT.  By acceptance of this LLC Certificate,
and as a condition to being entitled to any rights and/or benefits with respect
to the Units evidenced hereby, the Holder is deemed to have agreed to comply
with and be bound by all the terms and conditions of the
Agreement.  The Company will furnish a copy of the Agreement to the
Holder without charge upon written request to the Company at its principal place
of business.  The Company maintains books for the purpose of
registering the transfer of Units.

    


    This LLC
Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to principles of conflicts of
laws.

    


    
      
        
           


        

        
          E-1

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the Company has caused this LLC Certificate to be executed by
the Manager on behalf of the Company as of the date set forth
below.

    


    
      
        	
                Dated:
      _____________________

              


      

    

    


    
      
        
          
            
              
                
                  
                    	BIOFUEL
      ENERGY, LLC, a Delaware limited liability company,
	 	 
      	 
      
	 	
                            by:

                          	
                            BioFuel
      Energy Corp., its Manager,

                          
	 	 
        	
                            by:  

                          	 
      
	 	 
      	 
      	 
      
	 	 
      	 
      	
                            Name:

                          
	 	 	 	      
                            Title:

                          


                  

                

              

            

          

        

      

    

    


    
      
        
           


        

        
          E-2

          
            

          

        

        
           


        

      

    

    


    (REVERSE
SIDE OF CERTIFICATE

    FOR
PREFERRED UNITS OF BIOFUEL ENERGY, LLC)

    


    FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto
_____________________________________________________ (print or typewrite name
of Transferee), __________________ (insert Social Security or other taxpayer
identification number of Transferee), the following number of Units:
______________ (identify the number of Units being transferred), and irrevocably
constitutes and appoints __________________________, as attorney-in-fact, to
transfer the same on the books and records of the Company, with full power of
substitution in the premises.

    


    
      
        
          
            	
                    Dated:

                  	 
      	 
      	
                    Signature:

                  	 
      
	 
      	 
      	 
      	
                    (Transferor)

                  
	 
      	 
      	 
      	
                    Addresses:

                  


          

        

      

    

    


    
      
        
           


        

        
          E-3