Exhibit 10.6


 


EXECUTION COPY


 




 













HAWKEYE INTERMEDIATE, LLC










 


A Delaware Limited Liability
Company


 


SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT


 


Dated as of June 30, 2006


 


THE COMPANY UNITS REPRESENTED BY THIS SECOND 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 UNITS 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.


 


THE COMPANY UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY
AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN
THE SECURITYHOLDERS AGREEMENT, DATED AS OF THE DATE HEREOF, AS AMENDED OR
MODIFIED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN INVESTORS, AND THE
COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH UNITS UNTIL SUCH
TRANSFER IS IN COMPLIANCE WITH SUCH SECURITYHOLDERS AGREEMENT.  A COPY OF THE SECURITYHOLDERS AGREEMENT SHALL
BE FURNISHED BY THE COMPANY TO THE HOLDER OF SUCH UNITS UPON WRITTEN REQUEST
AND WITHOUT CHARGE.




 





 

















 


	
  ARTICLE
  I.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.2

  	
  Terms
  Generally

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II.

  	
  GENERAL
  PROVISIONS

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Formation

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.2

  	
  Name

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.3

  	
  Term

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.4

  	
  Purpose;
  Powers

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.5

  	
  Foreign
  Qualification

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.6

  	
  Registered
  Office; Registered Agent; Principal Office; Other Offices

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.7

  	
  No
  State-Law Partnership

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.8

  	
  Amendment
  and Restatement

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III.

  	
  UNITS

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Authorized
  Units

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.2

  	
  Profits
  Interests

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.3

  	
  Options

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.4

  	
  General

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.5

  	
  Voting

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV.

  	
  MANAGEMENT

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Board
  of Managers

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.2

  	
  Meetings
  of the Members

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.3

  	
  Chairman

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.4

  	
  Officers

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.5

  	
  Management
  Matters

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.6

  	
  Liability
  of Unitholders

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.7

  	
  Indemnification
  by the Company

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V.

  	
  CAPITAL
  CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Capital
  Contributions

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.2

  	
  Capital
  Accounts

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.3

  	
  Allocations
  of Net Income and Net Loss

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.4

  	
  Distributions

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.5

  	
  Security
  Interest and Right of Set-Off

  	
  27

  



 


i

















 


	
  ARTICLE
  VI.

  	
  WITHDRAWAL;
  DISSOLUTION; TRANSFER OF MEMBERSHIP

  INTERESTS; ADMISSION OF NEW MEMBERS

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Unitholder
  Withdrawal

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.2

  	
  Dissolution

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.3

  	
  Transfer
  by Unitholders

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.4

  	
  Admission
  or Substitution of New Members

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.5

  	
  Compliance
  with Law

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII.

  	
  REPORTS
  TO MEMBERS; TAX MATTERS

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Books
  of Account

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.2

  	
  Reports

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.3

  	
  Fiscal
  Year

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.4

  	
  Certain
  Tax Matters

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII.

  	
  MISCELLANEOUS

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Schedules

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.2

  	
  Governing
  Law

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.3

  	
  Successors
  and Assigns

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.4

  	
  Confidentiality

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.5

  	
  Amendments

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.6

  	
  Notices

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.7

  	
  Counterparts

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.8

  	
  Power
  of Attorney

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.9

  	
  Entire
  Agreement

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.10

  	
  Section
  Titles

  	
  35

  



 


	
  SCHEDULE A

  	
   

  	
  –

  	
   

  	
  PREFERRED UNITHOLDERS
  AND CLASS A UNITHOLDERS

  
	
  SCHEDULE B

  	
   

  	
  –

  	
   

  	
  CLASS B UNITHOLDERS

  
	
  SCHEDULE C

  	
   

  	
  –

  	
   

  	
  TRANSFEREE TAX
  REPRESENTATIONS

  
	
  SCHEDULE D

  	
   

  	
  –

  	
   

  	
  NOTICE ADDRESSES OF
  CURRENT MANAGERS

  
	
   

  	
   

  	
  –

  	
   

  	
   

  
	
  EXHIBIT I

  	
   

  	
  –

  	
   

  	
  INITIAL CAPITAL
  ACCOUNTS

  



 


ii

















 


SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

HAWKEYE INTERMEDIATE, LLC

A Delaware Limited Liability Company


 


THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
Hawkeye Intermediate, LLC, dated and effective as of June 30, 2006 (this “Agreement”),
is adopted, executed and agreed to, for good and valuable consideration, by and
among THL Hawkeye Acquisition Partners, THL Hawkeye Acquisition Partners II, and
THL Hawkeye Acquisition Partners III (each, a “THL Holder” and,
collectively, the “THL Holders”), Hawkeye Holdings, L.L.C. (“HH”),
the Persons listed on Schedule A and Schedule B attached hereto (which
Schedules also set forth the Units (as defined below) held by each such Person)
as of the date hereof upon their execution of this Agreement, and each other
Person who at any time becomes a Member in accordance with the terms of this
Agreement and the Act.  Any reference in
this Agreement to the THL Holders, HH or any other Member shall include such
Member’s Successors in Interest to the extent such Successors in Interest have
become Substitute Members in accordance with the provisions of this Agreement.


 


WHEREAS, on June 16, 2006, the Company was formed as a limited
liability company under the Delaware Limited Liability Company Act, Title 6, §§
18-101, et seq, as it may be amended from time to time (the “Act”), by
the execution of the Limited Liability Company Agreement of Hawkeye
Intermediate, LLC by HH (the “Original  Agreement”) and the filing
of a Certificate of Formation with respect thereto with the Secretary of State
of the State of Delaware on June 16, 2006;


 


WHEREAS, on June 30, 2006, by execution of the Amended and Restated
Limited Liability Company Agreement of Hawkeye Intermediate, LLC (the “Initial
Amended Agreement”), the Members amended and restated the Original
Agreement for the purpose of setting forth the agreements governing the
relations among the Members and to admit additional members; and


 


WHEREAS, the Members desire to amend and restate the Initial Amended
Agreement as set forth herein.


 


NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto, each intending to be legally bound, agree
as follows:


 


ARTICLE I.

DEFINITIONS


 


SECTION 1.1                 Definitions.


 


Unless the context otherwise requires, the following terms shall have
the following meanings for purposes of this Agreement:


 


“Act” has the meaning set forth in the recitals above.


 


1

















 


“Additional Member” means any Person that has been admitted to
the Company as a Member pursuant to Section 6.4 by virtue of having
received its Membership Interest from the Company and not from any other Member
or Assignee.


 


“Adjusted Capital Account Deficit” means, with respect to any
Unitholder, the deficit balance, if any, in such Unitholder’s Capital Account
as of the end of the relevant fiscal year, after giving effect to the following
adjustments:


 


(i)            credit
to such Capital Account any amounts that such Unitholder is obligated to
restore pursuant to this Agreement or is deemed to be obligated to restore
pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate
sentence of each of Regulations Sections 1.704-2(i)(5) and 1.704-2(g)(1); and


 


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


 


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


 


“Affiliate” when used with reference to another Person means any
Person (other than the Company), directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with, such
other Person.  In addition, Affiliates of
a Member shall include all partners, officers, employees and former partners,
officers or employees of, all consultants or advisors to, and all other Persons
who directly or indirectly receive compensation from, such Member.


 


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


 


“Assignee” means any transferee to which a Member or another
Assignee has transferred its Economic Interest in the Company in accordance
with the terms of this Agreement, but who is not a Member.


 


“Bankruptcy” means, with respect to any Person, the occurrence
of any of the following events:  (i) the
filing of an application by such Person for, or a consent to, the appointment
of a trustee or custodian of his assets; (ii) the filing by such Person of a
voluntary petition in Bankruptcy or the seeking of relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or the filing of a
pleading in any court of record admitting in writing his inability to pay his
debts as they become due; (iii) the failure of such Person to pay his debts as
such debts become due; (iv) the making by such Person of a general assignment
for the benefit of creditors; (v) the filing by such Person of an answer
admitting the material allegations of, or his consenting to, or defaulting in
answering, a Bankruptcy petition filed against him in any Bankruptcy proceeding
or petition seeking relief under Title 11 of the United States Code, as now
constituted or as hereafter amended; or (vi) the entry of an order, judgment or
decree by any court of competent jurisdiction adjudicating such Person a
bankrupt or insolvent or for relief in respect of such Person or appointing a
trustee or custodian of his assets and the continuance of such order, judgment
or decree unstayed and in effect for a period of 60 consecutive days.


 


2

















 


“Board of Managers” has the meaning set forth in Section 4.1.


 


“Capital Account” means, with respect to any Unitholder, the
account maintained for such Unitholder in accordance with the following
provisions:


 


(a)           To
each Unitholder’s Capital Account there shall be added such Unitholder’s
Capital Contributions, such Unitholder’s allocable share of Net Income and any items
in the nature of income or gain which are specially allocated to such
Unitholder pursuant to Section 5.3(c) hereof, and the amount of any
Company liabilities assumed by such Unitholder or which are secured by any
property distributed to such Unitholder.


 


(b)           From
each Unitholder’s Capital Account there shall be subtracted the amount of cash
and the Gross Asset Value of any property distributed to such Unitholder
pursuant to any provision of this Agreement, such Unitholder’s allocable share
of Net Losses and any items in the nature of expenses or losses which are
specially allocated to such Unitholder pursuant to Section 5.3(c)
hereof, and the amount of any liabilities of such Unitholder assumed by the
Company or which are secured by any property contributed by such Unitholder to
the Company.


 


(c)           In
the event any interest in the Company is transferred in accordance with the
terms of this Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the transferred interest.


 


(d)           In
determining the amount of any liability for purposes of subparagraphs (a) and
(b) hereof and Section 5.3(b) hereof, there shall be taken into account
Code Section 752(c) and any other applicable provisions of the Code and
Regulations.


 


(e)           The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Code
Section 704(b) and the Regulations promulgated thereunder, and shall be
interpreted and applied by the Board of Managers in a manner consistent with
such Regulations, including, to the extent applicable and without limitation,
conventions, rules, and regulations dealing with Options.


 


“Capital Contribution” means, with respect to any Unitholder,
the amount of cash and the initial Gross Asset Value of any property (other
than money) contributed from time to time to the Company by such Unitholder.  For the avoidance of doubt, the term “Capital
Contribution” shall be deemed to include, with respect to any Member, that
payment to the Company of the exercise price of an Option.


 


“Certificate” has the meaning set forth in Section 2.1.


 


“Class A Unitholders” means the holders of Class A
Common Units.


 


“Class B Unitholders” means the holders of Class B
Common Units.


 


“Class A Common Units” means the Class A Common Units
of the Company.


 


“Class B Common Units” means the Class B Common Units
of the Company.


 


3

















 


“Code” means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute. 
Any reference herein to a particular provision of the Code shall mean,
where appropriate, the corresponding provision in any successor statute.


 


“Common Units” means the Class A Common Units and the Class B Common
Units of the Company.


 


“Company” means Hawkeye Intermediate, LLC, a Delaware limited
liability company.


 


“Company Minimum Gain” has the meaning ascribed to the term “partnership
minimum gain” set forth in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).


 


“Depreciation” means, for each fiscal year or other period, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that
(i) if the Gross Asset Value of an asset differs from its adjusted basis
for federal income tax purposes at the beginning of such year or other period,
and which difference is being eliminated by use of the “remedial method”
defined by Regulations Section 1.704-3(d), Depreciation for such fiscal year or other period
shall be the amount of book basis recovered for such fiscal year or other
period under the rules prescribed by Regulations Section 1.704-3(d)(2), and
(ii) with respect to any other asset whose Gross Asset Value differs from its
adjusted basis for federal income tax purposes at the beginning of such fiscal
year or other period, Depreciation shall be an amount which bears the
same ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction for such year or
other period bears to such beginning adjusted tax basis; provided, however,
that if the federal income tax depreciation, amortization or other cost
recovery deduction for such year is zero, Depreciation shall be calculated with
reference to such beginning Gross Asset Value using any reasonable method
selected by the Board of Managers.


 


“Distributable Assets” means, with respect to any fiscal period,
all cash receipts (including from any operating, investing, and financing
activities) and (if distribution thereof is determined to be necessary by a
majority of the Board of Managers) other assets of the Company from any and all
sources, reduced by operating cash expenses, contributions of capital to the
Company or any subsidiaries of the Company and payments (if any) required to be
made in connection with any loan to the Company and any reserve for
contingencies or escrow required, in the good faith judgment of the Board of
Managers, in connection therewith.


 


“Economic Interest” means a Member’s or Assignee’s share of the
Company’s net profits, net losses and distributions pursuant to this Agreement
and the Act, but shall not include any right to participate in the management
or affairs of the Company, including the right to vote in the election of
Managers, vote on, consent to or otherwise participate in any decision of the
Members or Managers, or any right to receive information concerning the
business and affairs of the Company, in each case except as expressly otherwise
provided in this Agreement or required by the Act.


 


“Gross Asset Value” means, with respect to any asset, the asset’s
adjusted basis for federal income tax purposes, except as follows:


 


4

















 


(a)           The
initial Gross Asset Value of any asset contributed by a Unitholder to the
Company shall be the gross fair market value of such asset on the date of the
contribution, as reasonably determined by the Board of Managers.


 


(b)           The
Gross Asset Values of all Company assets shall be adjusted to equal their
respective gross fair market values, as reasonably determined by the Board of
Managers, as of the following times:


 


(i)            the
acquisition of an additional interest in the Company after the date hereof by a
new or existing Unitholder in exchange for more than a de minimis Capital
Contribution, if the Board of Managers reasonably determines that such
adjustment is necessary or appropriate to reflect the relative Economic
Interests of the Unitholders in the Company;


 


(ii)           the
distribution by the Company to a Unitholder of more than a de minimis amount of
Company property as consideration for an interest in the Company, if the Board
of Managers reasonably determines that such adjustment is necessary or
appropriate to reflect the relative Economic Interests of the Unitholders in
the Company;


 


(iii)          the
liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);


 


(iv)          the
grant of an interest in the Company (other than a de minimis interest) as
consideration for the provision of services to or for the benefit of the
Company by an existing Member acting in a Member capacity or by a new Member
acting in a Member capacity or in anticipation of being a Member; and


 


(v)           such
other times as the Board of Managers shall reasonably determine necessary or
advisable in order to comply with Regulations Sections 1.704-1(b) and
1.704-2.


 


(c)           The
Gross Asset Value of any Company asset distributed to a Unitholder shall be the
gross fair market value of such asset on the date of distribution, as
reasonably determined by the Board of Managers taking into account the
following proviso; provided that, in the case of such assets which are
securities, the fair market value thereof shall be reduced (i) if and to the
extent that a block sale of all of such securities is reasonably likely, in the
good faith judgment of a registered broker-dealer affiliated with a reputable,
nationally recognized brokerage house, to depress the trading price of such
securities, (ii) if and to the extent appropriate, in the good faith
judgment of the Board of Managers, due to illiquidity of such securities and
(iii) for any sales or other commissions reasonably likely to be incurred
or applied in a sale of such securities.


 


(d)           The
Gross Asset Values of Company assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such assets pursuant to Code
Section 734(b) or Code Section 743(b), but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to
the extent that the Board of Managers reasonably determines


 


5

















 


that an adjustment pursuant to subparagraph (b) of
this definition of Gross Asset Value is necessary or appropriate in connection
with a transaction that would otherwise result in an adjustment pursuant to
this subparagraph (d).


 


(e)           The
Gross Asset Value of a Company asset shall be adjusted by the Depreciation, if
any, taken into account by the Company with respect to computing Net Income or
Net Loss.


 


“HH” has the meaning set forth in the preamble above.


 


“Hurdle Amount” means, with respect to any Class B Common Units,
the applicable aggregate amount of distributions (as specified in the
applicable Restricted Unit Agreement) in respect of Units that must be made to
Unitholders under Section 5.4 hereof before the Class B Common Units
will participate in distributions under Section 5.4(c)(iii).


 


“Initial Amended Agreement” has the meaning set forth in the
recitals above.


 


 “Manager” means any
individual who from time to time is serving as a Manager on the Board of
Managers in accordance with the terms of this Agreement and the Securityholders
Agreement.


 


“Member” means each THL Holder, HH and the Persons listed on Schedule
A and Schedule B attached hereto and each other Person who is
hereafter admitted as a Member in accordance with the terms of this Agreement
and the Act. The Members shall constitute the “members” (as that term is
defined in the Act) of the Company.  Except as otherwise set forth
herein or in the Act, the Members shall constitute a single class or group of members
of the Company for all purposes of the Act and this Agreement.


 


“Member Minimum Gain” means minimum gain attributable to Member
Nonrecourse Debt determined in accordance with Regulations Section 1.704- 2(i).


 


“Member Nonrecourse Debt” has the meaning ascribed to the term “partner
nonrecourse debt” set forth in Regulations Section 1.704-2(b)(4).


 


“Member Nonrecourse Deduction” has the meaning ascribed to the
term “partner nonrecourse deduction” set forth in Regulations Section 1.704-
2(i)(2).


 


“Membership Interest” means, with respect to each Member, such
Member’s Economic Interest and rights as a Member.


 


“Net Income” or “Net Loss” means for each fiscal year of
the Company, an amount equal to the Company’s taxable income or loss for such
fiscal year, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss, or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:


 


6

















 


(a)           Any
income of the Company that is exempt from federal income tax and not otherwise
taken into account in computing Net Income or Net Loss pursuant to this
definition of Net Income or Net Loss shall be added to such taxable income or
loss;


 


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


 


(c)           In
the event the Gross Asset Value of any Company asset is adjusted pursuant to
subparagraph (b) or (c) of the definition of Gross Asset Value, the amount of
such adjustment shall be taken into account as gain (if the adjustment
increases the Gross Asset Value of the asset) or loss (if the adjustment
decreases the Gross Asset Value of the asset) from the disposition of such
asset for purposes of computing Net Income or Net Loss;


 


(d)           Gain
or loss resulting from any disposition of property with respect to which gain
or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of, notwithstanding
that the adjusted tax basis of such property differs from its Gross Asset
Value;


 


(e)           In
lieu of the depreciation, amortization, and other cost recovery deductions
taken into account in computing such taxable income or loss, Depreciation shall
be taken into account for such fiscal year;


 


(f)            To
the extent an adjustment to the adjusted tax basis of any Company asset
pursuant to Code Section 734(b) or 743(b) is required pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining
Capital Accounts as a result of a distribution other than in liquidation of a
Unitholder’s interest in the Company, the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases the basis of the asset) from the
disposition of the asset and shall be taken into account for purposes of
computing Net Income or Net Loss; and


 


(g)           Notwithstanding
any other provision of this definition of Net Income or Net Loss, any items
which are specially allocated pursuant to Section 5.3(c) hereof shall
not be taken into account in computing Net Income or Net Loss.  The amounts of the items of Company income,
gain, loss, or deduction available to be specially allocated pursuant to Section
5.3(c) hereof shall be determined by applying rules analogous to those set
forth in this definition of Net Income or Net Loss.


 


“Nonrecourse Deductions” has the meaning set forth in Regulations
Section 1.704-2(b) and 1.704-2(c).


 


“Officer” means each Person designated as an officer of the
Company pursuant to and in accordance with the provisions of Section 4.4,
subject to the terms of any resolution of the Board of Managers appointing such
Person as an officer or relating to such appointment.


 


“Option” shall have the meaning given to it in the Company’s
Unit Option Plan.


 


7

















 


“Original Agreement” has the meaning set forth in the recitals above.


 


“Preferred Return” with respect to each Preferred Unitholder
means, as of any date of determination, an amount, accrued on a daily basis
commencing on the date hereof and (beginning with the first such date occurring
after the date hereof) compounded annually on June 30 of each year, equal
to 8% per annum on such Preferred Unitholder’s Unreturned Capital from time to
time.  For purposes of computing the
Preferred Return, any Capital Contribution reflected in a Preferred Unitholder’s
Unreturned Capital shall be treated as having been made on the last day of the
calendar month in which such Capital Contribution is received by the Company,
and distributions reflected in a Preferred Unitholder’s Unreturned Capital
shall be deemed to have been made on the last day of the month in which they
are made.


 


“Preferred Unitholders” means the holders of Preferred Units.


 


“Preferred Units” means the Class A Redeemable Preferred
Units of the Company.


 


“Proceeding” has the meaning set forth in Section 4.7.


 


“Public Offering” shall mean a “Public Offering” (as defined in
the Securityholders Agreement).


 


“Regulations” means the Income Tax Regulations, including
temporary Regulations, promulgated under the Code, as such Regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).


 


“Regulatory Allocations” has the meaning set forth in Section
5.3(c)(i)(E).


 


“Restricted Unit Agreements” means the Restricted Unit
Agreements entered into by the Class B Unitholders with respect to the issuance
of Class B Units to such Class B Unitholder.


 


“Sale of the Company” shall mean a “Sale of the Company” (as
defined in the Securityholders Agreement) or a dissolution of the Company in
accordance with this Agreement (other than transactions effected for the
purpose of changing, directly or indirectly, the form of organization or the
organizational structure of the Company and/or any of its subsidiaries).


 


“Securities” means any debt or equity securities of any issuer,
including common and preferred stock and interests in limited liability
companies (including warrants, rights, put and call options and other options
relating thereto or any combination thereof), notes, bonds, debentures, trust
receipts and other obligations, instruments or evidences of indebtedness, other
property or interests commonly regarded as securities, interests in real
property, whether improved or unimproved, interests in oil and gas properties
and mineral properties, short-term investments commonly regarded as money market
investments, bank deposits and interests in personal property of all kinds,
whether tangible or intangible.


 


8

















 


“Securityholders Agreement” means the Securityholders Agreement
dated as of the date hereof among the Company and each Member, as it may be
amended or supplemented from time to time.


 


“Senior Debt Agreements” mean (i) that certain First Lien Credit Agreement
dated as of June 30, 2006 (the “First Lien Credit Agreement”), among the
Company, THL-Hawkeye Acquisition LLC, a Delaware limited liability company (“Merger
Sub”), to be merged with and into Hawkeye Renewables, LLC, a Delaware
limited liability company (the “Operating Company”), the lenders party
thereto (the “First Lien Lenders”), and Credit Suisse, as administrative
agent and as collateral agent for the First Lien Lenders, (ii) all other Loan
Documents (as defined in the First Lien Credit Agreement) delivered in
connection with the First Lien Credit Agreement, (iii) that certain Second Lien
Credit Agreement dated as of June 30, 2006 (the “Second Lien Credit
Agreement”), among the Company, Merger Sub, to be merged with and into the
Operating Company, the lenders party thereto (the “Second Lien Lenders”),
and Credit Suisse, as administrative agent and as collateral agent for the
Second Lien Lenders and (iv) all other Loan Documents (as defined in the Second
Lien Credit Agreement) delivered in connection with the Second Lien Credit
Agreement.


 


“Substitute Member” means any Person that has been admitted to
the Company as a Member pursuant to Section 6.4 by virtue of such Person
receiving all or a portion of a Membership Interest from a Member or its
Assignee and not from the Company.


 


“Successor in Interest” means any (i) trustee, custodian,
receiver or other Person acting in any Bankruptcy or reorganization proceeding
with respect to; (ii) assignee for the benefit of the creditors of; (iii)
trustee or receiver, or current or former officer, director or partner, or
other fiduciary acting for or with respect to the dissolution, liquidation or
termination of; or (iv) other executor, administrator, committee, legal
representative or other successor or assign of, any Unitholder, whether by
operation of law or otherwise.


 


“Tax Amount” has the meaning set forth in Section 5.4(c)(ii).


 


“Tax Distribution Differential” has the meaning set forth in Section
5.4(c)(ii).


 


“Tax Matters Member” has the meaning set forth in Section
7.4(b).


 


“THL Holder” or “THL Holders” has the meaning set forth
in the preamble.


 


“Unitholder” means a Member or Assignee who holds an Economic
Interest in Preferred Units, Class A Common Units or Class B Common Units.


 


“Unit Option Plan” shall have the meaning specified in Section
3.1.


 


“Units” has the meaning set forth in Section 3.1.


 


“Unpaid Preferred Return” with respect to each Preferred
Unitholder means the excess, if any, of (i) such Preferred Unitholder’s
Preferred Return as of the date of any such determination over (ii) the
aggregate amount of all distributions made to such Preferred Unitholder
pursuant to or in accordance with Section 5.4(a)(ii).


 


9

















 


“Unreturned Capital” with respect to each Preferred Unitholder
means, as of any date of determination, the excess, if any, of
(i) the sum of such Preferred Unitholder’s (x) initial capital
account with respect to the Preferred Units as set forth on Exhibit I
hereto plus (y) the aggregate Capital Contributions, if any, made by such
Preferred Unitholder with respect to the Preferred Units after the date hereof over
(ii) the aggregate amount of all distributions made to such Preferred
Unitholder with respect to the Preferred Units pursuant to or in accordance
with Section 5.4(a)(i) after the date hereof, provided, however, that
such distributions shall not include a distribution pursuant to Section 5.4(c)(i)
which creates or increases a Preferred Unitholder’s Tax Distribution
Differential.


 


SECTION 1.2                 Terms
Generally.  The definitions in Section
1.1 shall apply equally to both the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The term “person” or “Person”
includes individuals, partnerships (whether general or limited), joint ventures,
corporations, limited liability companies, trusts, estates, custodians,
nominees, governments (or agencies or political subdivisions thereof) and other
associations, entities or groups (as defined in the Securities Exchange Act of
1934, as amended).  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  All terms herein that
relate to accounting matters shall be interpreted in accordance with generally
accepted accounting principles from time to time in effect.  All references to “Sections” and “Articles”
shall refer to Sections and Articles of this Agreement unless otherwise
specified.  The words “hereof” and “herein”
and similar terms shall relate to this Agreement.


 


ARTICLE II.

GENERAL PROVISIONS


 


SECTION 2.1                 Formation.  The Company has been organized as a Delaware
limited liability company by the execution and filing of a Certificate of
Formation on June 16, 2006 with the Secretary of State of the State of
Delaware (as amended, the “Certificate”), under and pursuant to the
Act.  The rights, powers, duties,
obligations and liabilities of the Members shall be determined pursuant to the
Act and this Agreement. To the extent that the rights, powers, duties, obligations
and liabilities of any Member are different by reason of any provision of this
Agreement than they would be in the absence of such provision, this Agreement
shall, to the extent permitted by the Act, control.  In the event of any conflict between the
terms of this Agreement and the terms of the Securityholders Agreement, the
Securityholders Agreement shall control.


 


SECTION 2.2                 Name.  The name of the Company is “Hawkeye
Intermediate, LLC,” and all Company business shall be conducted in that name or
in such other names that comply with applicable law as the Board of Managers
may select from time to time.


 


SECTION 2.3                 Term.  The term of the Company commenced on the date
the Certificate was filed with the office of the Secretary of State of the
State of Delaware and shall continue in existence perpetually until termination
or dissolution in accordance with the provisions of Section 6.2.


 


10

















 


SECTION 2.4                 Purpose;
Powers.


 


(a)           General
Powers.  The nature of the business
or purposes to be conducted or promoted by the Company is to engage in any
lawful act or activity for which limited liability companies may be organized
under the Act. The Company may engage in any and all activities necessary,
desirable or incidental to the accomplishment of the foregoing. Notwithstanding
anything herein to the contrary, nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the laws
of the State of Delaware.


 


(b)           Company
Action.  Subject to the provisions of
this Agreement and the Securityholders Agreement, and except as prohibited by
applicable law, (i) the Company may, with the approval of the Board of
Managers, enter into and perform any and all documents, agreements and
instruments contemplated thereby, all without any further act, vote or approval
of any Member and (ii) the Board of Managers may authorize any Person
(including any Member or Officer) to enter into and perform any document on
behalf of the Company.


 


SECTION 2.5                 Foreign
Qualification.  Prior to the Company’s
conducting business in any jurisdiction other than Delaware, the Board of
Managers shall cause the Company 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 Company as a foreign limited liability
company in that jurisdiction.


 


SECTION 2.6                 Registered
Office; Registered Agent; Principal Office; Other Offices.  The registered office of the Company required
by the Act to be maintained in the State of Delaware shall be the office of the
initial registered agent named in the Certificate or such other office (which
need not be a place of business of the Company) as the Board of Managers may
designate from time to time in the manner provided by law. The registered agent
of the Company in the State of Delaware shall be the initial registered agent
named in the Certificate or such other Person or Persons as the Board of
Managers may designate from time to time in the manner provided by law. The
principal office of the Company shall be at such place as the Board of Managers
may designate from time to time, which need not be in the State of Delaware, and
the Company shall maintain records at such place.  The Company may have such other offices as
the Board of Managers may designate from time to time.


 


SECTION 2.7                 No
State-Law Partnership.  The
Unitholders intend that the Company shall not be a partnership (including a
limited partnership) or joint venture, and that no Unitholder, Manager or
Officer shall be a partner or joint venturer of any other Unitholder, Manager
or Officer by virtue of this Agreement, for any purposes other than as set
forth in the last sentence of this Section 2.7, and this Agreement shall
not be construed to the contrary.  The
Unitholders intend that the Company shall be treated as a partnership for
federal and, if applicable, state or local income tax purposes, and each Unitholder
and the Company shall file all tax returns and shall otherwise take all tax and
financial reporting positions in a manner consistent with such treatment.  Notwithstanding anything to the contrary in
this Agreement, no transfer of any Unit shall be permitted or recognized by the
Company and the Company shall not issue any Units if and to the extent that
such Transfer or issuance would cause the Company to be treated as a
corporation for federal income tax purposes.


 


11

















 


SECTION 2.8                 Amendment
and Restatement.  This Agreement
amends, restates and supersedes in its entirety the Original Agreement.


 


ARTICLE III.


UNITS


 


SECTION 3.1                 Authorized
Units.  The total number of units (“Units”)
of beneficial interest in the Company that the Company shall have authority to
issue is 625,000,000 Units, classified as (i) 500,000,000 Preferred Units,
(ii) 100,000,000 Class A Common Units, 1,516,667 of which have been reserved
for issuance under the Hawkeye Intermediate, LLC Unit Option Plan (the “Unit
Option Plan”) in accordance with its terms and (iii) 25,000,000 Class
B Common Units.


 


SECTION 3.2                 Profits
Interests.


 


(a)           The
Company and each Class B Unitholder hereby acknowledges and agrees that each
Unitholder’s Class B Common Units, and the rights and privileges associated
with such Class B Common Units, collectively are intended to constitute a “profits
interest” in the Company within the meaning of Revenue Procedure 93-27, 1993-2
C.B. 343, or any successor Internal Revenue Service or Treasury Department
regulation or other pronouncement applicable at the date of issuance of Class B
Common Units.  Each Class B Unitholder
shall have the right to make a timely election under Code Section 83(b) with
respect to such Class B Common Units upon their issuance.


 


(b)           By
executing this Agreement, the Members and the Company agree to take such
actions as may be required by any authority that may be issued in the future
with respect to the taxation of “profits interests” transferred in connection
with the performance of services to conform the tax consequences to any Member
that receives such “profits interest” as closely as possible to the
consequences under Revenue Procedure 93-27 and Revenue Procedure 2001-43.


 


(c)           Each
Member authorizes the Tax Matters Member to amend this Section 3.2 to
the extent necessary to achieve substantially the same tax treatment with
respect to any profits interest in the Company transferred to a service
provider by the Company in connection with services provided to the Company as
is set forth in, as applicable, Revenue Procedure 93-27, Revenue Procedure 2001-43
or any future authority described in Section 3.2(b), provided
that such amendment is not materially adverse to any Member.


 


SECTION 3.3                 Options.  From time to time and after the date hereof,
the Board of Managers shall have the authority to cause the Company to issue,
under the Unit Option Plan, such number of Options to employees or other
service providers of the Company or its Subsidiaries as the Board of Managers
shall deem appropriate, subject to Section 3.1.


 


SECTION 3.4                 General.  Except as otherwise provided herein or in the
Restricted Unit Agreement or the Securityholders Agreement or as otherwise
provided by applicable law, all Units shall have identical rights and
privileges in every respect.


 


12

















 


SECTION 3.5                 Voting.  Except as otherwise required by applicable
law, neither the Preferred Unitholders nor the Class B Unitholders shall have
any voting rights.


 


ARTICLE IV.

MANAGEMENT


 


SECTION 4.1                 Board
of Managers.


 


(a)           Management
by Board of Managers.  The business
and affairs of the Company shall be managed and controlled by or under the
direction of a Board of Managers (the “Board of Managers”), which may
exercise all such powers of the Company and do all such lawful acts and things
as are not by law or by this Agreement or the Securityholders Agreement
directed or required to be exercised or done by the Members.  Unless authorized by the Board of Managers,
no Member and no individual Manager, in his or her capacity as such, shall have
the authority to act on behalf of or bind the Company.  The initial Board of Managers shall be
comprised of the individuals set forth on Schedule D.


 


(b)           Duties.  The Managers, in the performance of their
duties, shall owe to the Company and the Members duties of loyalty and due care
of the type owed by the directors of a corporation to such corporation and its
stockholders under the laws of the State of Delaware.


 


(c)           No
Individual Authority.  No Manager has
the authority or power to act for or on behalf of the Company, to do any act
that would be binding on the Company or to make any expenditures or incur any
obligations on behalf of the Company or authorize any of the foregoing, other
than acts that are expressly authorized by the Board of Managers.


 


(d)           Number
and Qualifications.  Except as
otherwise provided in the Securityholders Agreement, the Board of Managers
shall consist of up to nine (9) Managers and shall initially consist of seven
(7) Managers.  The Managers shall be
elected by the Class A Unitholders in accordance with the provisions of the
Securityholders Agreement.  Managers need
not be Members, nor officers of Members.


 


(e)           Vacancies.  Except as otherwise provided in the
Securityholders Agreement, vacancies and newly created Manager positions
resulting from any increase in the number of Managers may be filled by the
Class A Unitholders holding a majority of the Class A Common Units, and each
Manager so chosen shall hold office until his or her successor is elected and
qualified or until his or her earlier death, resignation or removal.  If there are no Managers in office, then an
election of Managers by Class A Unitholders may be held in accordance with the
Securityholders Agreement.


 


(f)            Resignation.  A Manager may resign at any time by giving
written notice to the Members and other Managers.


 


(g)           Removal.  Except as otherwise provided in the
Securityholders Agreement, a Manager may be removed with or without cause at
any time by the Class A Unitholders.


 


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(h)           Place
of Meetings; Waiver.  All meetings of
the Board of Managers may be held either within or without the State of
Delaware at such place or places as shall be determined from time to time by
resolution of the Board.  Attendance of a
Manager at a meeting shall constitute a waiver of notice of such meeting,
except where a Manager attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.


 


(i)            Regular
Meetings.  Regular meetings of the
Board of Managers shall be held at such times and places as shall be designated
from time to time by resolution of the Board of Managers.  Written notice of each regular meeting of the
Board of Managers shall be given to each Manager at least five (5) business
days before the date of the meeting.


 


(j)            Special
Meetings.  Special meetings of the
Board of Managers may be called on at least two (2) business days notice to
each Manager and may be called by the chairman of the Board of Managers or any
two Managers.  Such notice need not state
the purpose or purposes of, nor the business to be transacted at, such meeting,
except as may otherwise be required by law or provided for in this Agreement or
the Securityholders Agreement.


 


(k)           Notice.  Notice of any regular or special meeting of
the Board of Managers or other committee may be given personally, by mail,
facsimile or courier and, if other than personally, shall be deemed given upon
any of the following:  (i) personal
delivery to the Manager, (ii) when telecopied to the Manager (with hard copy
sent to the Manager by reputable overnight courier service that same day or the
next business day (charges prepaid)), (iii) one business day after being sent
to the Manager by reputable national overnight courier service (charges
prepaid) or (iv) three (3) business days after being deposited in the mails
(first class or airmail postage prepaid), in the case of (ii), (iii) and (iv),
at the address or facsimile number, as applicable, of the Manager as listed on
the books and records of the Company. 
The names, address, facsimile and telephone number of the current members
of the Board of Managers are as set forth on Schedule D.


 


(l)            Quorum.  A majority of the total number of Managers
shall constitute a quorum for the transaction of business of the Board of
Managers and the act of a majority of the Managers present at a meeting of the
Board of Managers at which a quorum is present shall be the act of the Board of
Managers. A Manager who is present at a meeting of the Board of Managers at
which action on any matter is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the Person acting
as secretary of the meeting before the adjournment thereof or shall deliver
such dissent to the Company immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Manager who voted in favor of such
action.


 


(m)          Action
without Meeting.  Unless otherwise
restricted by this Agreement, or the Securityholders Agreement, any action
required or permitted to be taken at any meeting of the Board of Managers or of
any committee thereof may be taken without a meeting, if all members of the
Board of Managers or the committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Managers or the committee, as the case may be.


 


14

















 


(n)           Attendance
by Telephone.  Members of the Board
of Managers, or of any committee of the Board of Managers, may participate in
any meeting of the Board of Managers, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at a meeting.


 


(o)           Compensation.  The Board of Managers shall have the
authority to fix the compensation of Managers, which compensation may include
reimbursement of the expenses, if any, of attendance at meetings of the Board
of Managers or of a committee.


 


(p)           Committees.  The Board of Managers shall, by resolution
adopted by a majority of the Managers then in office, designate nominating,
compensation and audit committees and such other committees as the Board of
Managers from time to time may determine, each such committee to consist of
three (3) Managers (subject to the requirements in the Securityholders
Agreement regarding representation from the various constituencies represented
on the Board of Managers).  Except as
expressly limited by applicable law and the Securityholders Agreement, any such
committee shall have and may exercise such powers and authority as the Board of
Managers may determine and specify in the resolution designating such committee
or any amendment thereto.


 


(q)           Securityholders
Agreement.  Each provision of this Section
4.1 is subject to the terms and provisions of the Securityholders
Agreement, and to the extent any such provisions apply, they are then to be
construed as being incorporated in this Agreement and made a part hereof.


 


SECTION 4.2                 Meetings
of the Members.


 


(a)           Meetings.  All meetings of the Class A Unitholders for
the election of Managers or for any other purpose shall be held at such time
and place, within or without the State of Delaware as shall be designated by
the Board of Managers.  In the absence of
any such designation by the Board of Managers, each such meeting shall be held
at the principal office of the Company.


 


(b)           Annual
Meetings.  The Company shall not be
required to hold annual meetings.  An
annual meeting of the Class A Unitholders may be held for the purpose of
electing Managers and transacting such other business as may properly be
brought before the meeting.  The date of
the annual meeting, if held, shall be determined by the Board of Managers.


 


(c)           Special
Meetings.  Special meetings of the
Class A Unitholders, for any purpose or purposes, unless otherwise prescribed
by law, may be called by the chairman or the chief executive officer and shall
be called by the Secretary at the direction of any two Managers, or at the
request in writing of the Class A Unitholders holding a majority of the
outstanding Class A Common Units.


 


(d)           Notice
of Meetings.  Written notice of each
meeting of the Class A Unitholders setting the place, date and time of the
meeting shall be given, not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each Class A Unitholder.  Preferred Unitholders and Class B Unitholders
shall neither be entitled to attend a meeting of the


 


15

















 


Class A
Unitholders nor receive written notice of such meeting.  The noting of any special meeting of Class A
Unitholders shall state the purpose or purposes for which the meeting is
called.


 


(e)           Quorum.
 The Class A Unitholders holding at least
a majority of the outstanding Class A Common Units, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at all meetings of the Members, except as otherwise required by the
Securityholders Agreement with respect to actions requiring the approval of a
greater percentage of Class A Common Units or by law.  If a quorum is not present or represented,
the Class A Unitholders present in person or represented by proxy at the meeting
shall have power, by the affirmative vote of the Class A Unitholders holding a
majority of the Class A Common Units so present or represented, to adjourn
the meeting to another time and/or place with notice to the other Class A
Unitholders.  At such adjourned meeting,
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting.


 


(f)            Voting.  At
all meetings of the Members, each Class A Unitholder shall be entitled to cast
one vote, in person or by proxy, for each Class A Common Unit held by such
Member on the record date for the meeting. 
When a quorum is present or represented at any meeting, the vote of the
Class A Unitholders holding a majority of the Class A Common Units present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of law,
the Securityholders Agreement or this Agreement, a different vote is required,
in which case such express provision shall govern and control the decision of
such question.


 


(g)           Informal
Action by Members.  Any action
required to be taken at a meeting of the Members, or any other action which may
be taken at a meeting of the Members, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the Class A Unitholders having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all Class A Common Units entitled to vote
thereon were present and voted.  Notice
of any such action shall be delivered to all Class A Unitholders as promptly as
practicable (but in no event later than five (5) business days following such
action).


 


(h)           Approval
or Ratification of Acts or Contracts. 
Any act or contract that shall be approved or be ratified by the Board
of Managers shall be as valid and as binding upon the Company and upon all the
Members (in their capacity as Members) as if it shall have been approved or
ratified by every Member of the Company.


 


(i)            Actions
Requiring Member Approval. 
Notwithstanding any other provision of this Agreement, certain actions
provided by law require consent of the Members.


 


(j)            Securityholders
Agreement.  Each provision of this Section
4.2 is subject to the terms and provisions of the Securityholders
Agreement, and to the extent any such provisions apply, they are then to be
construed as being incorporated in this Agreement and made a part hereof.


 


16

















 


SECTION 4.3                 Chairman.  The Board of Managers shall designate a
Manager to serve as chairman. The chairman shall preside at all meetings of the
Board of Managers. If the chairman is absent at any meeting of the Board of
Managers, a majority of the Managers present shall designate another Manager to
serve as interim chairman for that meeting. The chairman shall have no
authority or power to act for or on behalf of the Company, to do any act that
would be binding on the Company or to make any expenditure or incur any
obligations on behalf of the Company or authorize any of the foregoing.


 


SECTION 4.4                 Officers.


 


(a)           Designation
and Appointment.  The Board of
Managers may, from time to time, employ and retain Persons as may be necessary
or appropriate for the conduct of the Company’s business (subject to the
supervision and control of the Board of Managers), including employees, agents
and other Persons (any of whom may be a Member or Manager) who may be
designated as Officers of the Company, with titles including “chief executive
officer,” “chairman,” “president,” “vice president,” “treasurer,” “secretary,” “general
manager,” “director” and “chief financial officer,” as and to the extent authorized
by the Board of Managers.  Any number of
offices may be held by the same Person. 
In its discretion, the Board of Managers may choose not to fill any
office for any period as it may deem advisable. Officers need not be residents
of the State of Delaware or Members.  Any
Officers so designated shall have such authority and perform such duties as the
Board of Managers may, from time to time, delegate to them.  The Board of Managers may assign titles to
particular Officers.  Each Officer shall
hold office until his successor shall be duly designated and shall qualify or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided.  Effective
as of the execution of this Agreement, the Officers of the Company shall be as
set forth below, each in the capacity or capacities specified opposite his name
until his successor is chosen by the Board of Managers, or, if earlier, until
his or her death, resignation or removal as an Officer:


 




	
  Bruce Rastetter

  	
   

  	
  Chief Executive Officer

  
	
  J.D. Schlieman

  	
   

  	
  President and Chief Financial Officer

  






 


(b)           Resignation/Removal.  Any Officer 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 is
specified, at the time of its receipt by the Board of Managers.  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 at any time by the Board of Managers,
subject to the terms of any applicable employment agreement. Designation of an
Officer shall not of itself create any contractual or employment rights.


 


(c)           Duties
of Officers Generally.  The Officers,
in the performance of their duties as such, shall owe to the Company duties of
loyalty and due care of the type owed by the officers of a corporation to such
corporation and its stockholders under the laws of the State of Delaware.


 


17

















 


(d)           Chief
Executive Officer.  The chief
executive officer of the Company (i) shall be in general and active charge of
the entire business and affairs of the Company, and shall be its chief policy
making officer and (ii) shall have the power and authority to cause the Company
to enter into and perform contracts and agreements in the ordinary course of
business without action of the Board of Managers.


 


(e)           President.  If at any time a president is appointed, such
president shall, subject to the powers of the Board of Managers and chief
executive officer, have general and active management of the business of the
Company; and shall see that all orders and resolutions of the Board of Managers
are carried into effect. The president shall have such other powers and perform
such other duties as may be prescribed by the chief executive officer or the
Board of Managers.


 


(f)            Chief
Financial Officer.  The chief
financial officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and
business transactions of the Company, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses and capital.  The chief financial officer shall have the
custody of the funds and securities of the Company, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Company, and shall deposit all moneys and other valuable effects in the name
and to the credit of the Company in such depositories as may be designated by
the Board of Managers.  The chief
financial officer shall have such other powers and perform such other duties as
may from time to time be prescribed by the chief executive officer or the Board
of Managers.


 


(g)           Vice
President(s).  The vice president(s)
shall perform such duties and have such other powers as the chief executive
officer or the Board of Managers may from time to time prescribe.


 


(h)           Secretary.


 


(i)            The
secretary shall attend all meetings of the Board of Managers, and shall record
all the proceedings of the meetings in a book to be kept for that purpose, and
shall perform like duties for the standing committees of the Board of Managers
when required.


 


(ii)           The
secretary shall keep all documents described in Article VII and such
other documents as may be required under the Act.  The secretary shall perform such other duties
and have such other authority as may be prescribed elsewhere in this Agreement
or from time to time by the chief executive officer or the Board of Managers.  The secretary shall have the general duties,
powers and responsibilities of a secretary of a corporation.


 


(iii)          If
the Board of Managers chooses to appoint an assistant secretary or assistant
secretaries, the assistant secretaries, in the order of their seniority, in the
absence, disability or inability to act of the secretary, shall perform the
duties and exercise the powers of the secretary, and shall perform such other
duties as the chief executive officer or the Board of Managers may from time to
time prescribe.


 


18

















 


SECTION 4.5                 Management
Matters.  The Board of Managers may
take all action which may be necessary or appropriate (i) for the continuation
of the Company’s valid existence as a limited liability company under the laws
of the State of Delaware (and of each other jurisdiction in which such
existence is necessary to enable the Company to conduct the business in which
it is engaged) and (ii) for the maintenance, preservation and operation of the
business of the Company in accordance with the provisions of this Agreement and
applicable laws and regulations.  The
Board of Managers may file or cause to be filed for recordation in the office
of the appropriate authorities of the State of Delaware, and in the proper
office or offices in each other jurisdiction in which the Company is formed or
qualified, such certificates (including certificates of limited liability
companies and fictitious name certificates) and other documents as are required
by the applicable statutes, rules or regulations of any such jurisdiction or as
are required to reflect the identity of the Members and the amounts of their
respective Capital Accounts.


 


SECTION 4.6                 Liability
of Unitholders.


 


(a)           No
Personal Liability.  Except as
otherwise required by applicable law and as expressly set forth in this
Agreement, no Unitholder shall have any personal liability whatsoever in such
Person’s capacity as a Unitholder, whether to the Company, to any of the other
Unitholders, to the creditors of the Company or to any other third party, for
the debts, liabilities, commitments or any other obligations of the Company or
for any losses of the Company.


 


(b)           Return
of Distributions.  In accordance with
the Act and the laws of the State of Delaware, a member of a limited liability
company may, under certain circumstances, be required to return amounts
previously distributed to such member. 
It is the intent of the Members that no distribution to any Member
pursuant to Article V hereof shall be deemed a return of money or other
property paid or distributed in violation of the Act.  The payment of any such money or distribution
of any such property to a Member shall be deemed to be a compromise within the
meaning of the Act, and the Member receiving any such money or property shall
not be required to return to any Person any such money or property.  However, if any court of competent
jurisdiction holds that, notwithstanding the provisions of this Agreement, any
Member is obligated to make any such payment, such obligation shall be the
obligation of such Member and not of any Manager or other Member.


 


SECTION 4.7                 Indemnification
by the Company.  Subject to the
limitations and conditions provided in this Section 4.7, each Person who
was or is made a party or is threatened to be made a party to or is involved in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or arbitrative (hereinafter a “Proceeding”), or
any appeal in such a Proceeding or any inquiry or investigation that could lead
to such a Proceeding, by reason of the fact that he, she, or it, or a Person of
which he, she or it is the legal representative, is or was a Unitholder,
Officer or Manager shall be indemnified by the Company to the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment) against all
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including


 


19

















 


reasonable attorneys’
fees and expenses) (“Expenses”) actually incurred by such Person in
connection with such Proceeding, appeal, inquiry or investigation if such
Person acted in Good Faith, and indemnification under this Section 4.7
shall continue as to a Person who has ceased to serve in the capacity which
initially entitled such Person to indemnity hereunder.  The Company shall advance Expenses incurred
by or on behalf of such an indemnified Person within twenty (20) days after
receipt by the Company from such Person of a statement requesting such advances
from to time; provided such statement provides reasonable documentary evidence
of such Expenses and provides a written undertaking by the indemnified Person
to repay any and all advanced Expenses in the event such indemnified Person is
ultimately determined to not be entitled to indemnification by the
Company.  The Company may enter into
agreements with its Managers to provide for indemnification consistent with the
terms and conditions set forth in this Section. The Company will purchase and
maintain director and officer liability insurance at appropriate levels of
coverage as determined by the Board of Managers.  The rights granted pursuant to this Section
4.7 shall be deemed contract rights, and no amendment, modification or
repeal of this Section 4.7 shall have the effect of limiting or denying
any such rights with respect to actions taken or Proceedings, appeals,
inquiries or investigations arising prior to any amendment, modification or
repeal.  It is expressly acknowledged
that the indemnification provided in this Section 4.7 could involve
indemnification for negligence or under theories of strict liability.  “Good Faith” shall mean a Person
having acted in good faith and in a manner such Person reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
a criminal proceeding, having had no reasonable cause to believe such Person’s
conduct was unlawful.


 


ARTICLE V.

CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS


 


SECTION 5.1                 Capital
Contributions.  The initial Capital
Accounts of the Preferred Unitholders and Class A Unitholders listed on Schedule A
are as set forth in Exhibit I hereto.  The Class B Unitholders as of the date hereof
are listed on Schedule B hereto.  The
Class B Units have been issued to the Class B Unitholders in connection with a
Restricted Unit Agreement and in accordance with such agreement, no Class B
Unitholder is required to make a Capital Contribution in connection with the
issuance of his or her Class B Units. 
Except as set forth in Section 5.4(c), the Members shall not be
required to make any additional Capital Contribution.


 


SECTION 5.2                 Capital
Accounts.


 


(a)           Creation.  There shall be established for each
Unitholder on the books of the Company a Capital Account which shall be
increased or decreased in the manner set forth in this Agreement.


 


(b)           Negative
Balance.  A Unitholder shall not have
any obligation to the Company or to any other Unitholder to restore any
negative balance in the Capital Account of such Unitholder.


 


20

















 


SECTION 5.3                 Allocations
of Net Income and Net Loss.


 


(a)           Timing
and Amount of Allocations of Net Income and Net Loss.  Net Income and Net Loss of the Company shall
be determined and allocated with respect to each fiscal year of the Company as
of the end of each such year or as circumstances otherwise require or
allow.  Subject to the other provisions
of this Section 5.3, an allocation to a Unitholder of a share of Net
Income or Net Loss shall be treated as an allocation of the same share of each
item of income, gain, loss or deduction that is taken into account in computing
Net Income or Net Loss.  For each fiscal year, the Regulatory Allocations
in Section 5.3(c) hereof shall be made immediately prior to the general
allocations of Section 5.3(b) hereof.


 


(b)           General
Allocations.


 


(i)            Hypothetical
Liquidation.  The items of income,
expense, gain and loss of the Company comprising Net Income or Net Loss for a
fiscal year shall be allocated among the Unitholders which were Unitholders
during such fiscal year in a manner that will, as nearly as possible, cause the
Capital Account balance of each Unitholder at the end of such fiscal year to
equal the excess (which may be negative) of:


 


(A)          the
hypothetical distribution (if any) that such Unitholder would receive if, on
the last day of the fiscal year, (w) all Company assets, including cash,
were sold for cash equal to their Gross Asset Values, taking into account any
adjustments thereto for such fiscal year, (x) all Company liabilities were
satisfied in cash according to their terms (limited, with respect to each
nonrecourse liability, to the Gross Asset Value of the assets securing such
liability) and (y) the net proceeds thereof (after satisfaction of such
liabilities) were distributed in full pursuant to Section 6.2 hereof;
over


 


(B)           the
sum of (x) the amount, if any, which such Unitholder is obligated to
contribute to the capital of the Company, (y) such Unitholder’s share of
the Company Minimum Gain determined pursuant to Regulations Section 1.704-2(g),
and (z) such Unitholder’s share of Member Minimum Gain determined pursuant
to Regulations Section 1.704-2(i)(5), all computed immediately prior to the
hypothetical sale described in Section 5.3(b)(i)(A) above.


 


For purposes of the foregoing hypothetical sale described in Section
5.3(b)(i)(A) above, all assets and liabilities of any entity that is
wholly-owned by the Company and disregarded as an entity separate from the
Company for federal income tax purposes shall be treated as assets and
liabilities of the Company.


 


(ii)           Determination
of Items Comprising Allocations.


 


(A)          In
the event that the Company has Net Income for a fiscal year,


 


(1)           for
any Unitholder as to whom the allocation pursuant to Section 5.3(b)(i)
hereof would reduce its Capital Account, such allocation shall be comprised of
a proportionate share of each of the


 


21

















 


Company’s items of expense or loss entering into the
computation of Net Income for such fiscal year; and


 


(2)           the
allocation pursuant to Section 5.3(b)(i) hereof in respect of each
Unitholder (other than a Unitholder referred to in Section 5.3(b)(ii)(A)(1)
hereof) shall be comprised of a proportionate share of each Company item of
income, gain, expense and loss entering into the computation of Net Income for
such fiscal year (other than the portion of each Company item of expense and
loss, if any, that is allocated pursuant to Section 5.3(b)(ii)(A)(1)
hereof).


 


(B)           In
the event that the Company has a Net Loss for a fiscal year,


 


(1)           for
any Unitholder as to whom the allocation pursuant to Section 5.3(b)(i)
hereof would increase its Capital Account, such allocation shall be comprised
of a proportionate share of the Company’s items of income and gain entering
into the computation of Net Loss for such fiscal year; and


 


(2)           the
allocation pursuant to Section 5.3(b)(i) hereof in respect of each
Unitholder (other than a Unitholder referred to in Section 5.3(b)(ii)(B)(1)
hereof) shall be comprised of a proportionate share of each Company item of
income, gain, expense and loss entering into the computation of Net Loss for
such fiscal year (other than the portion of each Company item of income and
gain, if any, that is allocated pursuant to Section 5.3(b)(ii)(B)(1)
hereof).


 


(c)           Additional
Allocation Provisions.  (i)
Notwithstanding the foregoing provisions of this Section 5.3:


 


(A)          If
there is a net decrease in Company Minimum Gain or Member Minimum Gain during
any fiscal year, the Unitholders shall be allocated items of Company income and
gain for such fiscal year (and, if necessary, for subsequent fiscal years) in
accordance with Regulations Section 1.704-2(f) or 1.704-2(i)(4), as
applicable.  It is intended that this Section
5.3(c)(i)(A) qualify and be construed as a “minimum gain chargeback” and a “chargeback
of partner nonrecourse debt minimum gain” within the meaning of such
Regulations, which shall be controlling in the event of a conflict between such
Regulations and this Section 5.3(c)(i)(A).


 


(B)           Any
Nonrecourse Deductions for any fiscal year shall be specially allocated to the
holders of Class A Common Units and Preferred Units in accordance with the
relative Economic Interest of each such Unitholder.  Any Member Nonrecourse Deductions for any
fiscal year shall be specially allocated to the Unitholder(s) who bears the
economic risk of loss with respect to the


 


22

















 


Member Nonrecourse Debt to which such Member
Nonrecourse Deductions are attributable, in accordance with Regulations Section
1.704-2(i).


 


(C)           If
any Unitholder unexpectedly receives an adjustment, allocation or distribution
described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Company income and gain shall be allocated, in accordance with Regulations
Section 1.704-1(b)(2)(ii)(d), to the Unitholder in an amount and manner
sufficient to eliminate, to the extent required by such Regulations, the
Adjusted Capital Account Deficit of the Unitholder as quickly as possible.  It is intended that this Section
5.3(c)(i)(C) qualify and be construed as a “qualified income offset” within
the meaning of Regulations 1.704-1(b)(2)(ii)(d), which shall be controlling in
the event of a conflict between such Regulations and this Section
5.3(c)(i)(C).


 


(D)          To the extent that an adjustment to the adjusted
tax basis of any Company assets pursuant to Code Section 734(b) or Code Section
743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or
Regulations Section 1.704-l(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts
as the result of a distribution to a Member in complete liquidation of its
Units, 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 accordance with their interests in the
Company in the event that Regulations Section 1.704-l(b)(2)(iv)(m)(2) applies, or
to the Members to whom such distribution was made in the event that Regulations
Section 1.704-1(b)(2)(iv)(m)(4) applies.


 


(E)           The
allocations set forth in Sections 5.3(c)(i)(A), (B), (C) and (D)
(the “Regulatory Allocations”) are intended to comply with certain
regulatory requirements, including the requirements of Regulations Sections
1.704-1(b) and 1.704-2.  Notwithstanding
the provisions of Section 5.3(b), the Regulatory Allocations shall be
taken into account in allocating other items of income, gain, loss and
deduction among the Unitholders so that, to the extent possible, the net amount
of such allocations of other items and the Regulatory Allocations to each
Unitholder shall be equal to the net amount that would have been allocated to
each such Unitholder if the Regulatory Allocations had not occurred.


 


(ii)           For
any fiscal year during which a Unitholder’s interest in the Company is assigned
by such Unitholder, the portion of the Net Income and Net Loss of the Company
that is allocable in respect of such Unitholder’s interest shall be apportioned
between the assignor and the assignee of such Unitholder’s interest using any
permissible method under Code Section 706 and the Regulations thereunder, as determined
by the Board of Managers.


 


(iii)          In
the event that any amount claimed by the Company to constitute a deductible
expense in any fiscal year is treated for federal income tax purposes as a


 


23

















 


distribution made to a Unitholder in its capacity as a
partner of the Company and not a payment to a Unitholder not acting in its
capacity as a partner under Code Section 707(a), then the Unitholder who is
deemed to have received such distribution shall first be allocated an amount of
Company gross income equal to such payment, its Capital Account shall be
reduced to reflect the distribution, and for purposes of Section 5.3,
Net Income and Net Loss shall be determined after making the allocation
required by this Section 5.3(c)(iii).


 


(iv)          In
the event that any amount claimed by the Company to constitute a distribution
made to a Unitholder in its capacity as a partner of the Company for federal
income tax purposes is treated for federal income tax purposes as a deductible
expense of the Company for a payment to a Unitholder not acting in its capacity
as a partner of the Company, then the Unitholder who is deemed to have received
such payment shall first be allocated the Company expense item attributable to
such payment, its Capital Account shall be reduced to reflect the allocation,
and for purposes of Section 5.3, Net Income and Net Loss shall be
determined after making the allocation required by this Section 5.3(c)(iv).


 


(d)           Required
Tax Allocations.  All items of
income, gain, loss, deduction and credit for federal income tax purposes shall
be allocated to each Unitholder in the same manner as the Net Income or Net
Loss (and each item of income, gain, loss and deduction related thereto) that
is allocated to such Unitholder pursuant to Section 5.3(a), (b)
and (c) to which such tax items relate; provided, however,
that such tax allocations shall be made, and, for purposes of such tax
allocation, all references to fiscal years shall be construed, in accordance
with the requirements of Section 706 of the Code.  Notwithstanding the foregoing provisions of
this Section 5.3, items of
income,
deduction, gain and loss with respect to Company assets reflected
hereunder in the Members’ capital accounts and on the books of the Company at
values that differ from the Company’s adjusted tax basis in such assets (any such
difference a “book-tax difference”) shall be allocated among the Members
so as to take account of those differences in a manner which will comply with
Code Sections 704(b) and 704(c) and the Regulations promulgated thereunder.  The Company shall account for any book-tax
difference using the “traditional” allocation method (within the meaning of
Regulations Section 1.704-3); provided that the Company shall, at the discretion
of the Board of Managers, make, or not make, “curative” or “remedial”
allocations (within the meaning of Regulations Section 1.704-3) with respect to
any book-tax difference existing on the date hereof.  Allocations pursuant to this Section
5.3(d) are solely for purposes of federal, state and local income taxes and
shall not affect, or in any way be taken into account in computing, any
Unitholder’s Capital Account or share of Net Income, Net Loss, other tax items
or distributions pursuant to any provision of this Agreement.


 


(e)           Unitholders’
Tax Reporting.  The Unitholders
acknowledge and are aware of the income tax consequences of the allocations
made by this Section 5.3 and, except as may otherwise be required by
applicable law or regulatory requirements, hereby agree to be bound by the
provisions of Section 5.3 in reporting their shares of Company income,
gain, loss, deductions, and credits for federal, state and local income tax
purposes and each Unitholder agrees not to
take a position in preparing a tax return that requires it to file a notice of
inconsistent treatment under Code Section 6222(b).


 


24

















 


(f)            Withholding.  Each Unitholder hereby authorizes the Company
to withhold and to pay over any taxes payable by the Company or any of its
Affiliates as a result of the participation by such Unitholder (or any Assignee
of, or Successor in Interest to, such Unitholder) in the Company. 
If and to the extent that the Company shall be required to withhold any
taxes, such Unitholder shall be deemed for all purposes of this Agreement to
have received a payment from the Company as of the time such withholding is
required to be paid, which payment shall be deemed to be a distribution to such
Unitholder under Section 5.4(a) or Section 6.2 to the extent that
the Unitholder is entitled to receive a distribution and shall be taken into
account in determining the amount of future distributions to such
Unitholder.  To the extent that the
aggregate of such payments to a Unitholder for any period exceeds the
distributions to which such Unitholder is entitled for such period, the amount
of such excess shall be considered a demand loan from the Company to such
Unitholder, with interest at an interest rate of 9% compounded annually, which
interest shall be treated as an item of Company income until discharged by such
Unitholder by repayment, which may be made in the sole discretion of the Board
of Managers out of distributions to which such Unitholder would otherwise be subsequently
entitled.  The withholdings referred to
in this Section 5.3 shall be made at the maximum applicable statutory
rate under applicable tax law unless the Board of Managers receives
documentation, satisfactory to the Board of Managers, to the effect that a
lower rate is applicable, or that no withholding is applicable.


 


(g)           Other
Provisions.


 


(i)            In the event that the Code or any Regulations
require allocations of items of income, gain, loss, deduction or credit
different from those set forth in this Section 5.3, the Tax Matters
Member is hereby authorized to make new allocations in reliance on the Code and
such Regulations, provided that if any such new allocation shall be proposed to
be made in a manner that disproportionately adversely impacts any member, such
member shall have the right to consent to such allocation (such consent not to
be unreasonably withheld).  No such new
allocation shall give rise to any claim or cause of action by any Unitholder.


 


(ii)           For purposes of determining a Unitholder’s
proportional share of the Company’s “excess nonrecourse liabilities” within the
meaning of Regulations Section 1.752-3(a)(3), each Unitholder’s interest in Net
Income shall be such Member’s Economic Interest.


 


SECTION 5.4                 Distributions.


 


(a)           Priority.  Distributable Assets will be distributed (or
set aside for the benefit of the applicable Unitholder in the discretion of the
Board of Managers) as soon as reasonably practicable after such Distributable
Assets become available to the Company, subject to Sections 5.4(b) and (c)
as follows:


 


(i)            First,
100% of the Distributable Assets shall be distributed to the Preferred
Unitholders pro rata in accordance with each such Preferred Unitholder’s
Unreturned Capital until each such Preferred Unitholder’s Unreturned Capital
has been reduced to zero;


 


25

















 


(ii)           Second,
after the required distributions pursuant to subparagraph (i) above, 100%
of the Distributable Assets shall be distributed to the Preferred Unitholders,
pro rata in accordance with the aggregate amount of such Preferred Unitholders’
Unpaid Preferred Return until each such Preferred Unitholder’s Unpaid Preferred
Return has been reduced to zero; and


 


(iii)          Third,
to the holders of the Common Units, pro rata, based on the number of vested
Common Units held by such holder; provided, however,
notwithstanding any provision herein to the contrary, Class B Unitholders
subject to a Hurdle Amount will not be entitled to receive any distributions
pursuant to this Section 5.4(a)(iii) unless and until the aggregate
distributions by the Company in respect of all Units entitled to distributions
under this Section 5.4 exceed the Hurdle Amount applicable to such Class
B Common Units as set forth in the applicable Restricted Unit Agreement;


 


provided that, if the Distributable
Assets being distributed consist of more than one kind of asset, all
Distributable Assets consisting of cash must be distributed before any other
kind of asset is distributed.


 


(b)           Successors.  For purposes of determining the amount of
distributions under this Section 5.4, each Unitholder shall be
treated as having received amounts received by its predecessors in respect of
any of such Unitholder’s Units.


 


(c)           Tax
Distributions.  (i)  Subject to the Act and to any restrictions
contained in any agreement to which the Company is bound, including the Senior
Debt Agreements, no later than the tenth day of each September, December, March
and June, the Company shall, to the extent of available cash, (A) make a tax
distribution to each Class B Unitholder in an amount equal to each such Class B
Unitholder’s Tax Amount and (B) make a tax distribution to each Preferred
Unitholder and Class A Unitholder, pro rata in accordance with their relative
Economic Interests, such that each such Unitholder receives an amount at least
equal to such Unitholder’s Tax Amount, it being understood that such
distributions may cause certain Unitholders to receive a distribution hereunder
in excess of such Unitholder’s Tax Amount. 
If the Senior Debt Agreements restrict the Company from making
distributions sufficient to fund the distributions under this Section 5.4(c),
then, prior to the occurrence of any of the events listed in clauses (i), (ii)
and (iii) of the immediately succeeding sentence, the distributions to HH
pursuant to this Section 5.4(c) shall be increased, and the
distributions pursuant to this Section 5.4(c) to the THL Holders shall
be decreased, in an amount sufficient to ensure that HH receives an amount
equal to its Tax Amount.  HH shall pay
its Tax Distribution Differential to the THL Holders, without interest or
yield, on the first to occur of (i) consummation of the Company’s initial
Public Offering, (ii) the fourth anniversary of the date hereof, (iii) a
Sale of the Company or a winding up of its affairs, or (iv) a distribution by
the Company to HH under Section 5.4(a), provided that (x) in the instance
described in clause (iv), the payment to the THL Holders on account of the Tax
Distribution Differential shall not exceed the amount distributed by the
Company to HH under Section 5.4(a), and (y) in the instances described in
clauses (i) through (iii), HH shall pay the full amount of its Tax Distribution
Differential to the THL Holders, less any amounts previously paid to the


 


26

















 


THL Holders pursuant to clause (iv).  All distributions made to a Unitholder
pursuant to this Section 5.4(c) on account of the taxable income
allocated to such Unitholder shall be treated as advance distributions under Section
5.4(a) or Section 6.2 and shall be taken into account in determining
the amount of future distributions to such Unitholder, and for purposes of
determining the amount of distributions to be made to the Unitholders pursuant
to Section 5.4(a) or Section 6.2, distributions made pursuant to
this Section 5.4(c) shall be deemed made at such time as they
offset distributions being made pursuant to Section 5.4(a) or Section
6.2; provided, however, that distributions which create or
increase a Unitholder’s Tax distribution Differential shall not be treated as
an advance on, and shall be disregarded for purposes of determining the amount
of distributions to be made to the Unitholders pursuant to Section 5.4(a)
or Section 6.2.


 


(ii)           For
purposes of this Section 5.4(c), (A) “Tax Amount” means, with
respect to each Unitholder, an amount that, when combined with all
distributions to such Unitholder in the current and all preceding years, equals
the product of (x) the excess, if any, of (1) the aggregate taxable
income (as determined for federal income tax purposes) of the Company allocated
to such Unitholder (including any guaranteed payments for services that are not
actually received by the Unitholder in cash and after giving effect to any adjustments
pursuant to Sections 734(b) or 743(b) of the Code) for such taxable year and
all preceding taxable years, over (2) the aggregate taxable loss (as
determined for federal income tax purposes) of the Company allocated to such
Unitholder for all preceding taxable years, as determined for federal income
tax purposes, and (y) the aggregate maximum federal, state and local marginal
income tax rate applicable to corporations doing business in Iowa Falls, Iowa
(taking into account the deductibility of state and local taxes for federal
income tax purposes), and (B) “Tax Distribution Differential” for a
Unitholder means the excess of (x) the amount actually distributed to such
Unitholder under this Section 5.4(c) (disregarding any distributions
made pursuant to this Section 5.4(c) to Class B Unitholders) over (y)
the amount that would have been distributed to such Unitholder under this Section
5.4(c) (disregarding any distributions made pursuant to this Section
5.4(c) to Class B Unitholders) were all distributions actually made to such
Unitholder based on such Unitholder’s pro rata share of Class A Common Units
outstanding (giving appropriate effect to any changes in the number of Class A
Common Units outstanding or held by such Unitholder).


 


SECTION 5.5                 Security
Interest and Right of Set-Off.  As
security for any withholding tax or other liability or obligation to which the
Company may be subject as a result of any act or status of any Unitholder, or
to which the Company may become subject with respect to the interest of any
Unitholder, the Company shall have (and each Unitholder hereby grants to the
Company) a security interest in all Distributable Assets distributable to such
Unitholder to the extent of the amount of such withholding tax or other
liability or obligation.  The Company
shall have a right of setoff against such distributions of Distributable Assets
in the amount of such withholding tax or other liability or obligation.  The Company may withhold distributions or
portions thereof if it is required to do so by the Code or any other provision
of federal, state or local tax or other law. 
Any amount withheld pursuant to the Code or any other provision of
federal, state or local tax or other law with respect to any distribution to a
Unitholder shall be treated as an amount distributed to such Unitholder for all
purposes under this Agreement.


 


27

















 


ARTICLE VI.

WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW
MEMBERS


 


SECTION 6.1                 Unitholder
Withdrawal.  No Unitholder shall have
the power or right to withdraw or otherwise resign or be expelled from the
Company prior to the dissolution and winding up of the Company except pursuant
to a transfer permitted under this Agreement, the Securityholders Agreement or
the Restricted Unit Agreements of all of such Unitholder’s Units to an
Assignee, a Unitholder or the Company. 
Notwithstanding anything to the contrary contained in the Act, in no
event shall any Unitholder be deemed to have withdrawn from the Company or
cease to be a Unitholder upon the occurrence of any of the events specified in
this Agreement, or any events similar thereto, unless the Unitholder, after the
occurrence of any such event, indicates in a written instrument that the Unitholder
has so withdrawn.


 


SECTION 6.2                 Dissolution.


 


(a)           Events.  The Company shall be dissolved and its
affairs shall be wound up on the first to occur of the following:


 


(i)            the
vote of the Board of Managers;


 


(ii)           subject
to the Securityholders Agreement, the written consent of the Class A
Unitholders holding a majority of the outstanding Class A Common Units; and


 


(iii)          the
entry of a decree of judicial dissolution of the Company under Section 18-802
of the Act.


 


Except as provided in this Agreement, the death, retirement,
resignation, expulsion, incapacity, bankruptcy or dissolution of a Member, or
the occurrence of any other event that terminates the continued membership of a
Member in the Company, shall not cause a dissolution of the Company, and the Company
shall continue in existence subject to the terms and conditions of this
Agreement.


 


(b)           Actions
Upon Dissolution.  When the Company
is dissolved, the business and property of the Company shall be wound up and
liquidated by the Board of Managers or, in the event of the unavailability of
the Board of Managers, such Member or other liquidating trustee as shall be
named by the Board of Managers.


 


(c)           Priority.  Within one hundred twenty (120) calendar days
after the effective date of dissolution of the Company, whether by expiration
of its full term or otherwise, the assets of the Company shall be distributed
in the following manner and order:


 


(i)            All
debts and obligations of the Company, if any, shall first be paid, discharged
or provided for by adequate reserves; and


 


(ii)           The
balance shall be distributed to the Unitholders in accordance with Section
5.4.


 


28

















 


(d)           Cancellation
of Certificate.  On completion of the
distribution of Company assets as provided herein, the Company is terminated,
and shall file a certificate of cancellation with the Secretary of State of the
State of Delaware, cancel any other filings made and take such other actions as
may be necessary to terminate the Company.


 


SECTION 6.3                 Transfer
by Unitholders.  Subject to the
provisions of the Securityholders Agreement, the Restricted Unit Agreements and
this Agreement, a Unitholder may transfer or assign all or part of its interest
as a Unitholder in the Company to any Person that agrees in writing to assume
the responsibility of a Unitholder; provided, however, that
Preferred Units or Class A Common Units may not be transferred separately.  If a Unitholder proposes to transfer
Preferred Units or Class A Common Units, it shall also transfer a pro rata
amount of the other class of interests, as the case may be.  Any Member who shall assign any Units in the
Company shall cease to be a Member of the Company with respect to such Units
and shall no longer have any rights or privileges of a Member with respect to
such Units.  Any Member or Assignee who
acquires in any manner whatsoever any Units, irrespective of whether such
Person has accepted and adopted in writing the terms and provisions of this
Agreement, shall be deemed by the acceptance of the benefits of the acquisition
thereof to have agreed to be subject to and bound by all of the terms and
conditions of this Agreement that any predecessor in such Units or other
interest in the Company was subject to or by which such predecessor was bound.  No Member shall cease to be a Member upon the
collateral assignment of, or the pledging or granting of a security interest
in, its entire interest in the Company. 
Notwithstanding anything to the contrary contained herein, no transfer
shall be given effect unless the transferee delivers to the Company the
representations set forth in Schedule C.


 


SECTION 6.4                 Admission
or Substitution of New Members.


 


(a)           Admission.  The Board of Managers shall have the right,
subject to Section 6.3, and subject to compliance with Section 6.1
of the Securityholders Agreement, to admit as a Substitute Member or an
Additional Member, any Person who acquires an interest in the Company, or any
part thereof, from a Member or from the Company; provided  that,
the Board of Managers shall admit as a Substitute Member, subject to Section
6.4(b), any transferee who acquires an interest in the Company pursuant to
an Exempt Transfer (as such term is defined in the Securityholders
Agreement).  Concurrently with the
admission of a Substitute Member or an Additional Member, the Board of Managers
shall forthwith cause any necessary papers to be filed and recorded and notice
to be given wherever and to the extent required showing the substitution of a
transferee as a Substitute Member in place of the transferring Member, or the
admission of an Additional Member, all at the expense, including payment of any
professional and filing fees incurred, of the Substitute Member or the
Additional Member.


 


(b)           Conditions.  The admission of any Person as a Substitute
or Additional Member shall be conditioned upon (i) such Person’s written
acceptance and adoption of all the terms and provisions of this Agreement,
either by (X) execution and delivery of a counterpart signature page to this
Agreement countersigned by a Manager on behalf of the Company or (Y) any other
writing evidencing the intent of such Person to become a Substitute Member or
Additional Member and such writing is accepted by the Board of Managers on
behalf of the Company and (ii) if required by the Securityholders Agreement (at
the request of the Board of Managers), such Person’s execution and delivery of
a counterpart to the Securityholders


 


29

















 


Agreement if such Person
is a Preferred Unitholder or a Class A Unitholder and the execution and
delivery of a counterpart to the applicable Restricted Unit Agreement if such
Person is a Class B Unitholder.


 


SECTION 6.5                 Compliance
with Law.  Notwithstanding any
provision hereof to the contrary, no sale or other disposition of an interest
in the Company may be made except in compliance with all federal, state and
other applicable laws, including federal and state securities laws.  Nothing in this Section 6.5 shall be
construed to limit or otherwise affect any of the provisions of the
Securityholders Agreement or the Restricted Unit Agreements, and to the extent
any such provisions apply, they are then to be construed as being incorporated
in this Agreement and made a part hereof.


 


ARTICLE VII.

REPORTS TO MEMBERS; TAX MATTERS


 


SECTION 7.1                 Books
of Account.  Appropriate books of
account shall be kept by the Board of Managers, in accordance with generally
accepted accounting principles, at the principal place of business of the
Company, and each Member shall have access to all books, records and accounts
of the Company and the right to make copies thereof for any purpose reasonably
related to the Member’s interest as a member of the Company, in each case,
under such conditions and restrictions as the Board of Managers may reasonably
prescribe.


 


SECTION 7.2                 Reports.


 


(a)           Financial
Statements.  As promptly as
practicable after the close of each fiscal year of the Company, the Board of
Managers shall cause an examination of the financial statements of the Company
as of the end of each such fiscal year to be made in accordance with generally
accepted auditing standards as in effect on the date thereof, by a firm of
certified public accountants selected by the Board of Managers.  Within 120 days after the close of each fiscal
year, a copy of the financial statements of the Company, including the report
of such certified public accountants, shall be furnished to each Unitholder
holding more than one percent (1%) of the outstanding Units, and shall include,
as of the end of such fiscal year:


 


(i)            a
statement prepared by the Company setting forth the balance of each Unitholder’s
Capital Account and the amount of that Unitholder’s allocable share of the
Company’s items of Net Income or Net Loss and deduction, capital gain and loss
or credit for such year; and


 


(ii)           a
balance sheet, a statement of income and expense and a statement of changes in
cash flows of the Company for that fiscal year.


 


In addition, within sixty (60) days after the close of each taxable
year, the Unitholders shall be supplied with all other Company information
necessary to enable each Unitholder to prepare its federal, state, and local
income tax returns, which information shall include a Schedule K-1.


 


(b)           Determinations.  All determinations, valuations and other
matters of judgment required to be made for accounting purposes under this
Agreement shall be made in good faith by the Board of Managers and shall be
conclusive and binding on all Unitholders,


 


30

















 


their Successors in
Interest and any other Person, and to the fullest extent permitted by law, no
such Person shall have the right to an accounting or an appraisal of the assets
of the Company or any successor thereto.


 


SECTION 7.3                 Fiscal
Year.  The fiscal year of the Company
shall end on December 31 of each calendar year unless otherwise determined
by the Board of Managers in accordance with Section 706 of the Code.


 


SECTION 7.4                 Certain
Tax Matters.


 


(a)           Preparation
of Returns.  The Board of Managers
shall cause to be prepared all federal, state and local tax returns of the
Company for each year for which such returns are required to be filed and shall
cause such returns to be timely filed. 
The Board of Managers shall determine the appropriate treatment of each
item of income, gain, loss, deduction and credit of the Company and the
accounting methods and conventions under the tax laws of the United States, the
several states and other relevant jurisdictions as to the treatment of any such
item or any other method or procedure related to the preparation of such tax
returns.  The Board of Managers may cause
the Company to make or refrain from making any and all elections permitted by
such tax laws.  Each Unitholder agrees
that it shall not, except as otherwise required by applicable law or regulatory
requirements, (i) treat, on its individual income tax returns, any item of
income, gain, loss, deduction or credit relating to its interest in the Company
in a manner inconsistent with the treatment of such item by the Company as
reflected on the Form K-1 or other information statement furnished by the
Company to such Unitholder for use in preparing its income tax returns or (ii)
file any claim for refund relating to any such item based on, or which would
result in, such inconsistent treatment. 
In respect of an income tax audit of any tax return of the Company, the
filing of any amended return or claim for refund in connection with any item of
income, gain, loss, deduction or credit reflected on any tax return of the
Company, or any administrative or judicial proceedings arising out of or in
connection with any such audit, amended return, claim for refund or denial of
such claim, (A) the Tax Matters Member (as defined below) shall be authorized
to act for, and its decision shall be final and binding upon, the Company and
all Unitholders except to the extent a Unitholder shall properly elect to be
excluded from such proceeding pursuant to the Code, (B) all expenses incurred
by the Tax Matters Member in connection therewith (including attorneys’,
accountants’ and other experts’ fees and disbursements) shall be expenses of,
and payable by, the Company, (C) no Unitholder shall have the right to (1)
participate in the audit of any Company tax return, (2) file any amended return
or claim for refund in connection with any item of income, gain, loss,
deduction or credit (other than items which are not partnership items within
the meaning of Section 6231(a)(4) of the Code or which cease to be partnership
items under Section 6231(b) of the Code) reflected on any tax return of the
Company, (3) participate in any administrative or judicial proceedings
conducted by the Company or the Tax Matters Member arising out of or in
connection with any such audit, amended return, claim for refund or denial of
such claim, or (4) appeal, challenge or otherwise protest any adverse findings
in any such audit conducted by the Company or the Tax Matters Member or with
respect to any such amended return or claim for refund filed by the Company or
the Tax Matters Member or in any such administrative or judicial proceedings
conducted by the Company or the Tax Matters Member and (D) the Tax Matters
Member shall keep the Unitholders reasonably apprised of the status of any such
proceeding.  Notwithstanding the previous
sentence, if a petition for a readjustment to any


 


31

















 


partnership item included
in a final partnership administrative adjustment is filed with a District Court
or the Court of Claims and the Internal Revenue Service has elected to assess
income tax against a Member with respect to that final partnership
administrative adjustment (rather than suspending assessments until the
District Court or Court of Claims proceedings become final), such Member shall
be permitted to file a claim for refund within such period of time to avoid
application of any statute of limitation provisions which would otherwise
prevent the Member from having any claim based on the final outcome of that
review.


 


(b)           Tax
Matters Member.  The Company and each
Member hereby designate THL Hawkeye Acquisition Partners as the “tax matters
partner” for purposes of Section 6231(a)(7) of the Code (the “Tax Matters
Member”).


 


(c)           Certain
Filings.  Upon the sale of the
Company assets or a liquidation of the Company, Unitholders shall provide the
Board of Managers with certain tax filings as reasonably requested by the Board
of Managers and required under applicable law.


 


ARTICLE VIII.

MISCELLANEOUS


 


SECTION 8.1                 Schedules.  Without in any way limiting the provisions of
Section 7.2, a Manager may from time to time execute on behalf of the
Company and deliver to the Unitholders schedules which set forth the then
current Capital Account balances of each Unitholder and any other matters
deemed appropriate by the Board of Managers or required by applicable law.  Such schedules shall be for information
purposes only and shall not be deemed to be part of this Agreement for any
purpose whatsoever.


 


SECTION 8.2                 Governing
Law.  THIS AGREEMENT IS GOVERNED BY
AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE,
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE
GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION.  In the event of a direct
conflict between the provisions of this Agreement and any provision of the
Certificate or any mandatory provision of the Act, the applicable provision of
the Certificate or the Act shall control. 
If any provision of this Agreement or the application thereof to any
Person or circumstance is held invalid or unenforceable to any extent, the
remainder of this Agreement and the application of that provision to other
Persons or circumstances is not affected thereby and that provision shall be
enforced to the greatest extent permitted by law.


 


SECTION 8.3                 Successors
and Assigns.  This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective Successors in Interest; provided that no Person claiming by, through
or under a Member (whether as such Member’s Successor in Interest or
otherwise), as distinct from such Member itself, shall have any rights as, or
in respect to, a Member (including the right to approve or vote on any matter
or to notice thereof).


 


SECTION 8.4                 Confidentiality.  By executing this Agreement, for three years
from the receipt thereof, each Member expressly agrees to maintain the
confidentiality of,


 


32

















 


and not to disclose to
any Person other than the Company, another Member or a Person designated by the
Company or any of their respective financial planners, accountants, attorneys
or other advisors, any information relating to the business, financial
structure, financial position or financial results, clients or affairs of the
Company that shall not be generally known to the public, except (i) as
otherwise required by law or by any regulatory or self-regulatory organization
having jurisdiction, (ii) in the case of any Member who is employed by any entity
controlled by the Company in the ordinary course of its duties, or (iii) the
delivery by a Member to its partners, stockholders or members, provided that
such parties are bound by these confidentiality provisions.


 


SECTION 8.5                 Amendments.  Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Members unless such modification,
amendment or waiver is approved in writing by each of (i) the Company, (ii) the
THL Holders holding a majority of the Class A Common Units held by all THL
Holders, and (iii) HH; provided, that, if HH has made a distribution in
kind to its members as permitted by Section 3.1 of the Securityholders
Agreement, the consent of holders of a majority of the Class A Common Units
held by the HH Members (as defined in the Securityholders Agreement) shall be
required for any amendment; provided further, however, that if
any modification, amendment or waiver adversely affects the rights of the Class
B Unitholders, the consent of the holders of a majority of the Class B Common
Units also shall be required for such modification, amendment or waiver.  The failure of any party to enforce any of
the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its
terms.  Notwithstanding the foregoing,
any amendment or modification that adversely affects any Member of a class of
Members and such modification is not applicable to all Members of such class of
Members, such affected Member must approve such amendment or modification; provided
that, no such amendment shall adversely affect the relationship among the
Preferred Units, Class A Common Units and Class B Common Units as set forth
herein unless such amendment has been approved by the Preferred Unitholders
holding a majority of the Preferred Units, Class A Unitholders holding a
majority of the Class A Common Units and by the Class B Unitholders holding a
majority of the Class B Common Units, as the case may be.


 


SECTION 8.6                 Notices.  Whenever notice is required or permitted by
this Agreement to be given, such notice shall be in writing and shall be given
to any Unitholder at its address or telecopy number shown in the Company’s
books and records, or, if given to the Company, at the following address:


 


Hawkeye
Intermediate, LLC


c/o Hawkeye
Renewables, LLC

21050 140th Street

Iowa Falls, IA 50126

Attention:  Chief Executive Officer


Telecopy:  (641) 648-8925


 


33

















 


with copies to:


 


c/o Thomas H. Lee
Partners, L.P.

100 Federal Street

Boston, MA 02110

Attention:  Scott Sperling

Attention:  Thomas Hagerty

Attention:  Soren Oberg

Telecopy:  (617) 227-3514


 


and


 


Weil, Gotshal
& Manges LLP

100 Federal Street

Boston, MA 02110

Attention:  James Westra, Esq.


                 Marilyn
French, Esq.

Telecopy:  (617) 772-8333


 


Each proper notice shall be effective upon any of the following: (i)
personal delivery to the recipient, (ii) when telecopied to the recipient (with
hard copy sent to the recipient by reputable overnight courier service that
same day or the next business day (charges prepaid)), (iii) one business day after
being sent to the recipient by reputable overnight courier service (charges
prepaid) or (iv) two business days after being deposited in the mails (first
class or airmail postage prepaid).


 


SECTION 8.7                 Counterparts.  This Agreement may be executed in any number
of counterparts (including by means of telecopied signature pages), all of
which together shall constitute a single instrument.


 


SECTION 8.8                 Power
of Attorney.  Each Member hereby
irrevocably appoints each Manager as such Member’s true and lawful
representative and attorney-in-fact, each acting alone, in such Member’s name,
place and stead, (i) to make, execute, sign and file all instruments, documents
and certificates which, from time to time, may be required to set forth any
otherwise approved amendment to this Agreement or which may be required by this
Agreement or by the laws of the United States of America, the State of Delaware
or any other state in which the Company shall determine to do business, or any
political subdivision or agency thereof and (ii) to execute, implement and
continue the valid and subsisting existence of the Company or to qualify and
continue the Company as a foreign limited liability company in all
jurisdictions in which the Company may conduct business.  The chief executive officer, as
representative and attorney-in-fact, however, shall not have any rights, powers
or authority to amend or modify this Agreement when acting in such capacity,
except as expressly provided herein. 
Such power of attorney is coupled with an interest and shall survive and
continue in full force and effect notwithstanding the subsequent withdrawal
from the Company of any Member for any reason and shall survive and shall not
be affected by the disability or incapacity of such Member.


 


34

















 


SECTION 8.9                 Entire
Agreement.  This Agreement amends,
restates and supersedes in its entirety the Initial Amended Agreement.  This Agreement and the other documents and
agreements referred to herein or entered into concurrently herewith embody the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein; provided that, such other agreements and
documents shall not be deemed to be a part of, a modification of or an amendment
to this Agreement.  There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein.  This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter, including, without limitation, the Original Agreement and the Initial
Amended Agreement.


 


SECTION 8.10               Section
Titles.  Section titles and headings
are for descriptive purposes only and shall not control or alter the meaning of
this Agreement as set forth in the text hereof.


 


 


*****


 


35

















 


IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Limited Liability Company Agreement as of the day and year first above
written.


 


	
   

  	
  HAWKEYE INTERMEDIATE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Rastetter

  
	
   

  	
   

  	
  Name: Bruce Rastetter

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEMBERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  THL HAWKEYE ACQUISITION PARTNERS

  
	
   

  	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors VI, LLC, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Soren L. Oberg

  
	
   

  	
   

  	
  Name: Soren L. Oberg

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THL HAWKEYE ACQUISITION PARTNERS II

  
	
   

  	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors VI, LLC, its General

  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Soren L. Oberg

  
	
   

  	
   

  	
  Name: Soren L. Oberg

  
	
   

  	
   

  	
  Title: Managing Director

  



 


 


Signature Page to


Hawkeye Intermediate, LLC
Second Amended and Restated LLC Agreement


 

















 


	
   

  	
  THL HAWKEYE ACQUISITION PARTNERS III

  
	
   

  	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors VI, LLC, its General

  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Soren L. Oberg

  
	
   

  	
   

  	
  Name: Soren L. Oberg

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HAWKEYE HOLDINGS,
  L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Rastetter

  
	
   

  	
   

  	
  Name: Bruce Rastetter

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Robert Kaplan

  	
   

  
	
   

  	
  Robert Kaplan

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Andrew Leitch

  	
   

  
	
   

  	
  Andrew Leitch

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Bruce Rastetter

  	
   

  
	
   

  	
  Bruce Rastetter

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ J.D. Schlieman

  	
   

  
	
   

  	
  J.D. Schlieman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Timothy Callahan

  	
   

  
	
   

  	
  Timothy Callahan

  	
   

  
				



 


 


Signature Page to


Hawkeye Intermediate, LLC
Second Amended and Restated LLC Agreement


 

















 


SCHEDULE A


 


PREFERRED UNITHOLDERS AND CLASS A
UNITHOLDERS


 


	
  Unit
  Holder

  	
   

  	
  Preferred Units Held

  	
   

  	
  Class A Units Held

  	
   

  
	
  THL Hawkeye Acquisition
  Partners

  	
   

  	
  166,791,240

  	
   

  	
  18,532,360

  	
   

  
	
  THL Hawkeye Acquisition
  Partners II

  	
   

  	
  92,529,360

  	
   

  	
  10,281,040

  	
   

  
	
  THL Hawkeye Acquisition
  Partners III

  	
   

  	
  17,879,400

  	
   

  	
  1,986,600

  	
   

  
	
  Hawkeye Holdings,
  L.L.C.

  	
   

  	
  70,200,000

  	
   

  	
  7,800,000

  	
   

  
	
  Mission Enterprises,
  LLC

  	
   

  	
  3,600,000

  	
   

  	
  400,000

  	
   

  



 

















 


SCHEDULE B


 


CLASS B UNITHOLDERS


 


	
  Unit
  Holder

  	
   

  	
  Class B Units Held

  	
   

  
	
  Robert Kaplan

  	
   

  	
  5,000

  	
   

  
	
  Andrew Leitch

  	
   

  	
  5,000

  	
   

  
	
  Bruce Rastetter

  	
   

  	
  1,083,333

  	
   

  
	
  J.D. Schlieman

  	
   

  	
  1,083,333

  	
   

  
	
  Timothy Callahan

  	
   

  	
  650,000

  	
   

  



 

















 


SCHEDULE C


 


TRANSFEREE TAX REPRESENTATIONS


 


•              The
transferee is, and will at all times continue to be, the sole beneficial owner
of the interest to be registered in its name;


 


•              such
transferee is not a trust, estate, partnership or “S corporation” for federal
income tax purposes;


 


•              such
transferee did not purchase, and will not sell, its interest through (a) a
national, foreign, regional, local or other Securities exchange, (b) PORTAL or
(c) over-the-counter market (including an interdealer quotation system that
regularly disseminates firm buy or sell quotations by identified brokers or
dealers by electronic means or otherwise);


 


•              such
transferee did not purchase, and will not sell, its interest from, to or
through (a) a person, such as a broker or dealer, that makes a market in, or
regularly quotes prices for, the Interest or (b) a person that regularly makes
available to the public (including customers or subscribers) bid or offer
quotes with respect to the Interest and stands ready to effect, buy or sell
transactions at the quoted prices for itself or on behalf of others; and


 


•              such
transferee will only sell its interest to a buyer who provides the
representations similar to these.


 


*   *   *


 


The representations set forth above are intended to ensure that the
Company will not be treated as a corporation for federal income tax purposes as
a result of any transfer.  The Board of
Managers shall waive representations set forth above on the advice of counsel
that the transfer of an interest to such transferee will not cause the Company
to be treated as a corporation for federal income tax purposes. These
representations may from time to time be revised by the Board of Managers on
the advice of counsel to the extent necessary to ensure that a transfer will
not cause the Company to be treated as a corporation for federal income tax
purposes.  Notwithstanding anything to
the contrary, none of the following transferees shall be required to make the
representations set forth above:  (i) in
the case of a Member that is a natural person, (A) any person to which Units
are transferred upon the Member’s death, incapacity or otherwise by operation
of law, judgment or decree, or (B) any member of such person’s Family Group (as
defined below), or (ii) any distributions in kind by HH to its members and
distributions in kind by such members to their respective shareholders,
partners, or members).  “Family Group”
means, with respect to any individual, such individual’s spouse, parents,
siblings and descendants (whether natural or adopted) and any trust,
partnership, limited liability company or similar vehicle established and
maintained solely for the benefit of (or the sole members or partners of which
are) such individual, such individual’s spouse and/or such individual’s
parents, siblings and descendants.


 

















 


SCHEDULE D


 


NOTICE ADDRESSES OF CURRENT
MANAGERS


 


	
  THL Managers

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
  Scott Sperling

  Thomas Hagerty

  Soren Oberg

  Joshua Nelson

  	
   

  	
  c/o Thomas H. Lee
  Partners, L.P.

  100 Federal Street

  Boston, MA 02110

  Telephone: (617) 227-1050

  Telecopy: (617) 227-3514

  
	
   

  	
   

  	
   

  
	
  HH Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Andrew M. Leitch

  	
   

  	
  410 South Granados Ave.

  Solana Beach, CA 92075

  Telephone: (858) 350-4424

  Telecopy: (858) 350-4422

  
	
   

  	
   

  	
   

  
	
  Independent Managers

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert Kaplan

  	
   

  	
  21 East 90th Street, Apt. 12A

  New York, NY 10128

  
	
   

  	
   

  	
   

  
	
  Chief Executive Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Bruce Rastetter

  	
   

  	
  c/o Hawkeye Renewables, LLC

  21050 140th Street

  Iowa Falls, IA 50126

  Telecopy: (641) 648-8925

  



 

















 


EXHIBIT I


 


INITIAL CAPITAL ACCOUNTS


 


	
  Member

  	
   

  	
  Preferred Units

  Capital Contribution

  	
   

  	
  Class A Units Capital

  Contribution

  	
   

  
	
  THL Hawkeye Acquisition
  Partners

  	
   

  	
  168,957,360

  	
   

  	
  18,773,040

  	
   

  
	
  THL Hawkeye Acquisition
  Partners II

  	
   

  	
  93,731,040

  	
   

  	
  10,414,560

  	
   

  
	
  THL Hawkeye Acquisition
  Partners III

  	
   

  	
  18,111,600

  	
   

  	
  2,012,400

  	
   

  
	
  Hawkeye Holdings,
  L.L.C.

  	
   

  	
  70,200,000

  	
   

  	
  7,800,000