Exhibit 10.15


 


FORM OF
TAX RECEIVABLE AGREEMENT


 


TAX RECEIVABLE AGREEMENT (this “Agreement”), dated
[Month] [Day], 2006 (the “Closing Date”), by and among Hawkeye Holdings
Inc., a Delaware corporation (the “Company”), Hawkeye Holdings, L.L.C.,
an Iowa limited liability company (“Hawkeye Holdings”), Thomas H. Lee
Equity Fund VI, L.P., a Delaware limited partnership, Thomas H. Lee Parallel
Fund VI, L.P., a Delaware limited partnership, Thomas H. Lee Parallel (DT) Fund
VI, L.P., a Delaware limited partnership, Putnam Investment Holdings, LLC, a
Delaware limited liability company, Putnam Investments Employees Security
Company III LLC, a Delaware limited liability company, THL Coinvestment
Partners, L.P., a Delaware limited partnership, THL Hawkeye Equity Investors,
L.P., a Delaware limited partnership, and Mission Enterprises, LLC, a Delaware
limited liability company (the preceding eight parties, “THL”).


 


WHEREAS, on June 30, 2006, Hawkeye Holdings
contributed 100% of the outstanding membership interests of Hawkeye Renewables,
LLC, an Iowa limited liability company (“Hawkeye Renewables”) to its
wholly-owned subsidiary Hawkeye Intermediate, LLC, an Iowa limited liability
company (“Hawkeye Intermediate”).


 


WHEREAS, on June 30, 2006, in a transaction
described in “Situation 1” of Revenue Ruling 99-5, 1999-1 C.B. 434, THL
indirectly acquired an interest in Hawkeye Intermediate, and Hawkeye
Intermediate was treated as acquiring certain assets from Hawkeye Holdings in a
“disguised sale” described in Treasury Regulation Section 1.707-3 (the “THL
Transactions”).


 


WHEREAS, on the Closing Date, THL caused the
corporations through which THL held its membership interests in Hawkeye
Intermediate to be merged with and into the Company in transactions (the “Mergers”)
intended to qualify as reorganizations described in Section 368(a)(1)(A) of
the Internal Revenue Code of 1986, as amended (the “Code”).


 


WHEREAS, on the Closing Date, Hawkeye Holdings
contributed all of its membership interests in Hawkeye Intermediate to the
Company (the “Contribution”), in a single integrated transaction with
the Mergers intended to qualify as an exchange described in Section 351 of
the Code.


 


WHEREAS, this Agreement was issued by the Company to
Hawkeye Holdings as partial consideration for the Hawkeye Intermediate
membership interests transferred to the Company by Hawkeye Holdings pursuant to
the Contribution and shall be treated as “other property” in a transaction
governed by Section 351(b) of the Code.


 

















 


WHEREAS, any cash paid to Hawkeye Holdings in
redemption of preferred stock of the Company (the “Redemption”) in
connection with an initial public offering of Shares (as defined below) shall
be treated as partial consideration for the Hawkeye Intermediate membership
interests transferred to the Company by Hawkeye Holdings pursuant to the
Contribution and shall be treated as “other property” received by Hawkeye
Holdings in a transaction governed by Section 351(b) of the Code.


 


WHEREAS, Hawkeye Holdings and/or its members may elect
to report the Company’s obligations under this Agreement as installment
obligations under Section 453 of the Code and likewise report any gain
recognized as a result of the receipt of this Agreement or payments made
pursuant to this Agreement (as the case may be) under the Installment
Method (as defined below).


 


WHEREAS, the THL Transactions and the Contribution
have resulted (and cash paid to Hawkeye Holdings in connection with the
Redemption and certain future payments pursuant to this Agreement will result)
in an adjustment to the tax basis of the assets owned by the Company as of the
Closing Date (such assets, and any asset whose tax basis is determined, in
whole or in part, by reference to the adjusted basis of any such asset, the “Original
Assets”).


 


WHEREAS, the income, gain, loss, expense and other
Tax (as defined below) items of the Company may be affected by the Basis
Adjustment (as defined below) and the Imputed Interest (as defined below).


 


WHEREAS, the parties to this Agreement desire to
make certain arrangements with respect to the effect of the Basis Adjustment
and Imputed Interest on the actual liability for Covered Taxes (as defined
below) of the Company.


 


NOW, THEREFORE, in consideration of the foregoing
and the respective covenants and agreements set forth herein, and intending to
be legally bound hereby, the parties hereto agree as follows:


 


ARTICLE I



DEFINITIONS


 


Definitions. As used in this Agreement, the terms set forth in this Article I
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined).


 


“Advisory Firm” means a nationally recognized
accounting or law firm that is nationally recognized as being expert in Covered
Tax matters that is agreed to by each of the Company, THL and Hawkeye Holdings.


 


“Advisory Firm Letter” shall mean a letter
from the Advisory Firm stating that the relevant schedule, notice or other
information to be provided by the Company to


 


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THL
and Hawkeye Holdings and all supporting schedules and work papers were prepared
in a manner consistent with the terms of this Agreement and, to the extent not
expressly provided in this Agreement, on a reasonable basis in light of the
facts and law in existence on the date such schedule, notice or other
information is delivered to THL or Hawkeye Holdings.


 


“Agreed Rate” means, for any day, a rate per
annum equal to the Prime Rate in effect on such day plus 2% per annum.


 


“Agreement” is defined in the preamble.


 


“Amended Basis Schedule” is defined in Section 2.02(c)(ii) of
this Agremeent.


 


“Amended Basis Schedule Objector” is
defined in Section 2.02(c)(ii) of this Agreement.


 


“Amended Tax Benefit Schedule” is defined in Section 2.03(b)(ii) of
this Agreement.


 


“Amended Tax Benefit Schedule Objector”
is defined in Section 2.03(b)(ii) of this Agreement.


 


“Applicable State Tax Code” shall mean the
Iowa Tax Code and/or any subsequent or additional state or local tax code
applicable to the Company or any Company Affiliated Group.


 


“Applicable Treasury Rate” means a rate equal
to the yield to maturity as of the date an Early Termination Notice is
delivered of United States Treasury securities with a constant maturity (the “Applicable
Maturity”) (as compiled and published in the most recent Federal Reserve
Statistical Release H 15 (519)) equal to (a) if such Early Termination
Notice is delivered prior to the fifth anniversary of the Closing Date, 10
years, (b) if such Early Termination Notice is delivered on or after the
fifth anniversary of the Closing Date but prior to the fifteenth anniversary of
the Closing Date, the number of years from the date such Early Termination
Notice is delivered through the fifteenth anniversary of the Closing Date, or (c) if
such Early Termination Notice is delivered on or after the fifteenth
anniversary of the Closing Date, two years. If there are no United States
Treasury securities with a constant maturity equal to the Applicable Maturity,
the yield to maturity shall be interpolated from the United States Treasury
securities with constant maturities that are most nearly longer than and
shorter than the Applicable Maturity.


 


“Basis Adjustment” means the increase or
decrease to the tax basis of an Original Asset as a result of the THL
Transactions and the Contribution (including by reason of the receipt by
Hawkeye Holdings of this Agreement or the accrual or payment


 


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of
any amount due to Hawkeye Holdings under this Agreement), as shown on the Basis
Schedule or any Amended Basis Schedule, as applicable.


 


“Basis Schedule” is defined in Section 2.02(a)(i) of
this Agreement.


 


“Basis Schedule Objector” is defined in Section 2.02(a)(ii) of
this Agreement.


 


“Business Day” means any calendar day that is
not a Saturday, Sunday or other calendar day on which banks are required or
authorized to be closed in the City of Boston.


 


“Change of Control Event” means the
occurrence of any of the following events, not including any events occurring
prior to or in connection with an initial public offering of Shares (as defined
below):


 


(i)                                     during any period of 14 consecutive calendar
months, individuals who were directors of the Company on the first day of such
period (the “Incumbent Directors”) cease for any reason to constitute a
majority of the Board of Directors of the Company (the “Board”); provided,
however, that any individual becoming a director subsequent to the first
day of such period whose election, or nomination for election, by the Company’s
stockholders was approved by a vote of at least a majority of the Incumbent
Directors shall be considered as though such individual were an Incumbent
Director, but excluding, for purposes of this proviso, any such individual
whose initial assumption of office occurs as a result of an actual or
threatened proxy contest with respect to election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on behalf
of a “person” (as such term is used in Section 13(d) of the Exchange
Act), in each case other than the management of Company or the Board;


 


(ii)                                  the consummation of (A) a merger,
consolidation, statutory share exchange or similar form of corporate
transaction involving (x) the Company or (y) any of its Subsidiaries, but in
the case of this clause (y) only if Company Voting Securities (as defined
below) are issued or issuable (each of the events referred to in this clause (A) being
hereinafter referred to as a “Reorganization”) or (B) the sale or
other disposition of all or substantially all the assets of the Company to an
entity that is not an affiliate of the Company (a “Sale”) if such
Reorganization or Sale requires the approval of the Company’s stockholders
under the law of the Company’s jurisdiction of organization (whether such
approval is required for such Reorganization or Sale or for the issuance of
securities of the Company in such Reorganization or Sale), unless, immediately
following such Reorganization or Sale, (1) all or substantially all the
individuals and entities who were the “beneficial owners” (as such term is
defined in Rule 13d-3 under the Exchange Act (or a successor rule thereto))
of the shares of common stock of the Company, $0.001 par value, or such other
securities of the


 


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Company into which such shares shall be exchanged by
reason of a recapitalization, merger, consolidation, split-up, combination,
exchange of shares or other similar transaction (the “Shares”) or other
securities eligible to vote for the election of the Board (together with the
Shares, “Company Voting Securities”) outstanding immediately prior to
the consummation of such Reorganization or Sale, beneficially own, directly or
indirectly, more than 50% of the combined voting power of the then-outstanding voting
securities of the corporation resulting from such Reorganization or Sale
(including, without limitation, a corporation that as a result of such
transaction owns the Company or all or substantially all the Company’s assets
either directly or through one or more subsidiaries) (the “Continuing
Corporation”) in substantially the same proportions as their ownership,
immediately prior to the consummation of such Reorganization or Sale, of the
outstanding Company Voting Securities (excluding any outstanding voting
securities of the Continuing Corporation that such beneficial owners hold
immediately following the consummation of the Reorganization or Sale as a
result of their ownership prior to such consummation of voting securities of
any company or other entity involved in or forming part of such
Reorganization or Sale other than the Company), (2) no “person” (as such
term is used in Section 13(d) of the Exchange Act), excluding any
employee benefit plan (or related trust) sponsored or maintained by the Continuing
Corporation or any corporation controlled by the Continuing Corporation,
beneficially owns, directly or indirectly, 35% or more of the combined voting
power of the then outstanding voting securities of the Continuing Corporation
and (3) at least a majority of the members of the board of directors of
the Continuing Corporation were Incumbent Directors at the time of the
execution of the definitive agreement providing for such Reorganization or Sale
or, in the absence of such an agreement, at the time at which approval of the
Board was obtained for such Reorganization or Sale;


 


(iii)                               the stockholders of the Company approve a
plan of complete liquidation or dissolution of the Company; or


 


(iv)                              any “person” (as such term is used in Section 13(d) of
the Exchange Act), corporation or other entity or “group” (as used in Section 14(d)(2) of
the Exchange Act) (other than (A) the Company, (B) any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company or an affiliate of the Company or (C) any company owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of the voting power of Company Voting
Securities) becomes the beneficial owner, directly or indirectly, of securities
of the Company representing 35% or more of the combined voting power of Company
Voting Securities; provided, however, that for purposes of this
subparagraph (iv), the following acquisitions shall not constitute a Change of
Control: (x) any acquisition directly from the Company or (y) any acquisition
by any employee benefit plan (or related trust) sponsored or maintained by the
Company or an affiliate of Company.


 


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“Change of Control Termination Payment” is
defined in Section 4.03(c) of this Agreement.


 


“Closing Date” is defined in the preamble.


 


“Code” is defined in the recitals.


 


“Company” is defined in the preamble.


 


“Company Affiliated Group” means any
affiliated group of domestic corporations within the meaning of Section 1504(a) of
the Code or the comparable provision of any Applicable State Tax Code, as
applicable, of which the Company may become, or may be from time to
time, a member.


 


“Company Payment” is defined in Section 5.01
of this Agreement.


 


“Company Senior Debt Agreements” mean (i) that
certain First Lien Credit Agreement dated as of June 30, 2006 (the “First
Lien Credit Agreement”), among Hawkeye Intermediate, THL-Hawkeye
Acquisition LLC, a Delaware limited liability company (“Merger Sub”),
having been merged pursuant to the THL Transactions with and into Hawkeye
Renewables, 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 Hawkeye Intermediate,
Merger Sub, having been merged pursuant to the THL Transactions with and into
Hawkeye Renewables, 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.


 


“Contribution” is defined in the recitals.


 


“Covered Taxable Year” means any Taxable Year
of the Company ending after the Closing Date and on or before the end of the
Taxable Year including the date which is the twentieth (20th) anniversary of
the Closing Date.


 


“Covered Taxable Quarter” means any and each
calendar quarter of a Covered Taxable Year. For the avoidance of doubt, the
Covered Taxable Quarters of each Covered Taxable Year shall end respectively on
March 31, June 30, September 30, and December 31 of each
such Covered Taxable Year.


 


“Covered Taxes” means Federal Income Taxes
and State and Local Income Taxes.


 


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“Determination” shall have the meaning
ascribed to such term in Section 1313(a) of the Code or comparable
provision of any Applicable State Tax Code, as applicable.


 


“Early Termination Notice” is defined in Section 4.02(a) of
this Agreement.


 


“Early Termination Objection” is defined in Section 4.02(b) of
this Agreement.


 


“Early Termination Objector” is defined in Section 4.02(b) of
this Agreement.


 


“Early Termination Payment” is defined in Section 4.03(b) of
this Agreement.


 


 “Early
Termination Rate” means the Applicable Treasury Rate.


 


“Excess Payment” is defined in Section 3.01(c)(i) of
this Agreement.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, or any successor statute thereto.


 


“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.


 


“Federal Income Tax” means any tax imposed
under Subtitle A of the Code or any other provision of U.S. federal income tax
law (including, without limitation, the taxes imposed by Sections 1, 11, 55,
59A, and 1201(a) of the Code), and any interest, additions to tax or
penalties applicable or related to such tax.


 


“Gain Recognition Statement” is defined in Section 2.02(b).


 


“Governmental Entity” means any federal,
state, local, provincial or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, whether domestic or foreign.


 


“Hawkeye Holdings” is defined in the
preamble.


 


“Hawkeye Intermediate” is defined in the
recitals.


 


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“Hawkeye Renewables” is defined in the
recitals.


 


“Hypothetical Tax Basis” means, with respect
to any asset at any time, the tax basis that such asset would have at such time
if no Basis Adjustment had been made.


 


“Hypothetical Tax Liability” means, with
respect to any Covered Taxable Year or Covered Taxable Quarter, the liability
for Covered Taxes of the Company using the same methods, elections, conventions
and similar practices used on the relevant Tax Return (including estimated Tax
Returns) of the Company, but using the Hypothetical Tax Basis instead of the
actual tax basis of each relevant asset and excluding any deduction
attributable to the Imputed Interest.


 


“Imputed Interest” shall mean any interest
imputed with respect to any of the Company’s payment obligations under this
Agreement at an annual rate of 18% compounded quarterly on the Payment Dates (the
“Imputed Interest Rate”).


 


“Installment Method” means the “installment
method” as described in Section 453 of the Code.


 


“IRS” means the United States Internal
Revenue Service.


 


“Mergers” is defined in the recitals.


 


“Objecting Party” is defined in Section 7.11.


 


 “Original
Assets” is defined in the recitals.


 


 “Person”
means and includes any individual, firm, corporation, partnership (including,
without limitation, any limited, general or limited liability partnership),
company, limited liability company, trust, joint venture, association, joint
stock company, unincorporated organization or similar entity or Governmental
Entity.


 


“Prime Rate” shall mean the rate of interest
per annum announced from time to time by Credit Suisse as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective as of the opening of business on the date such change is
announced as being effective. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually available.


 


“Proceeding” is defined in Section 7.10
of this Agreement.


 


“Realized Tax Benefit” means, for any Covered
Taxable Year or Covered Taxable Quarter, the excess, if any, of the
Hypothetical Tax Liability over the actual liability for Covered Taxes of the
Company for such Covered Taxable Year or Covered Taxable Quarter.


 


“Reconciliation Procedures” shall mean those
procedures set forth in Section 7.11 of this Agreement.


 


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“Redemption” is defined in the recitals.


 


“Scheduled Termination Date” shall mean the
date on which this Agreement would terminate in the absence of an Early
Termination Notice.


 


“State and Local Income Tax” means any
income, franchise or similar Tax imposed by the state of Iowa (including,
without limitation, the Tax imposed on corporations by Chapter 422, Division
III of Article X of the Code of Iowa (such Article, the “Iowa Tax Code”),
and any interest, additions to Tax or penalties applicable or related to such
Tax, and/or any other subsequent or additional state or local income Taxes to
which the Company (or a Company Affiliated Group) may become subject.


 


“Subsidiary” means any entity in which the
Company, directly or indirectly, possesses fifty percent (50%) or more of the
total combined voting power of all classes of its stock.


 


“Tax Benefit Payment” is defined in Section 3.01(d) of
this Agreement.


 


“Tax Benefit Schedule” is defined in Section 2.03(a)(i) of
this Agreement.


 


“Tax Benefit Schedule Objector” is
defined in Section 2.03(a)(ii).


 


“Taxable Year” means a taxable year as
defined in Section 441(b) of the Code or comparable section of
any Applicable State Tax Code, as applicable, (and, therefore, for the
avoidance of doubt, may include a period of less than 12 months for which
a Tax Return is made).


 


“Taxes” means (i) all forms of taxation
or duties imposed, or required to be collected or withheld, including, without
limitation, charges, together with any related interest, penalties or other
additional amounts, (ii) liability for the payment of any amount of the
type described in the preceding clause (i) as a result of being a member
of an affiliated, consolidated, combined or unitary group, and (iii) liability
for the payment of any amounts as a result of being party to any tax sharing
agreement (other than this Agreement) or as a result of any express or implied
obligation to indemnify any other person with respect to the payment of any
amount described in the immediately preceding clauses (i) or (ii) (other
than an obligation to indemnify under this Agreement).


 


“Tax Return” means any return, filing,
report, questionnaire, information statement or other document required to be
filed, including amended returns that may be filed, for any taxable period
with any Taxing Authority (whether or not a payment is required to be made with
respect to such filing).


 


“Taxing Authority” means the IRS and any
other state, local, foreign or other Governmental Entity responsible for the
administration and collection of Taxes.


 


“THL” is defined in the preamble.


 


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“Transferee Representative” is defined in Section 7.07
of this Agreement.


 


“Treasury Regulations” means the final,
temporary and proposed regulations under the Code promulgated from time to time
(including corresponding provisions of succeeding provisions) as in effect for
the relevant taxable period.


 


“Valuation Assumptions” shall mean, as of any
Valuation Date, the assumptions that (1) in each Covered Taxable Year
ending after such Valuation Date, the Company will have taxable income
sufficient to fully utilize the deductions arising from the Basis Adjustment
and the Imputed Interest during such Covered Taxable Year, (2) the
effective Federal Income Tax rates for each such Covered Taxable Year will be
those specified for each such Covered Taxable Year by the Code as in effect on
the Valuation Date, (3) the effective combined State and Local Income Tax
rates for such Covered Taxable Year will be those specified for such Covered
Taxable Year under the Iowa Tax Code as in effect on the Valuation Date, (4) in
each Covered Taxable Year, 100 percent of the taxable income of the Company is
subject to the Federal Income Tax and combined State and Local Income Tax rates
and (5) that the Federal Income and State and Local Income Taxes for a
taxable period are due on the original date prescribed for filing the Company’s
Federal Income and State and Local Tax Returns.


 


“Valuation Date” means the date of an Early
Termination Notice for purposes of determining an Early Termination Payment or
Change of Control Termination Payment.


 


ARTICLE II



DETERMINATION OF REALIZED TAX BENEFIT OR REALIZED TAX

DETRIMENT


 


SECTION 2.01. (a)                        Tax Treatment. The Company, THL and Hawkeye Holdings
hereby agree to treat the issuance of this Agreement as property received by
Hawkeye Holdings as partial consideration for the Contribution, and by THL as
partial consideration for the Mergers, on the Closing Date for all Tax purposes.
It is further understood that Hawkeye Holdings and its members may elect
to report any gain realized on account of the receipt of this Agreement (or
payments hereunder) under the Installment Method.


 


(b)                   Agreed Valuation. The parties agree that, for all relevant
Federal Income Tax and State and Local Income Tax purposes, the value of this
Agreement (or any portion thereof) shall be determined by discounting the
expected future cash flows (or any portions thereof) projected to be received
pursuant to this Agreement at the Imputed Interest Rate.


 


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SECTION 2.02. (a)  Basis Schedule. (i) 
Within 45 calendar days after the Closing Date, the Company shall deliver to
THL and Hawkeye Holdings a schedule (the “Basis Schedule”) that
shows, in reasonable detail, for Covered Tax purposes (x) the actual tax basis
as of the Closing Date of each Original Asset and (y) the Basis Adjustment with
respect to each Original Asset. 


 


(ii)  At the time the Company delivers the
Basis Schedule to THL and Hawkeye Holdings, it shall (x) also deliver to
THL and Hawkeye Holdings schedules and work papers providing reasonable detail
regarding the preparation of the Basis Schedule and an Advisory Firm
Letter supporting such Basis Schedule and (y) allow THL and Hawkeye
Holdings reasonable access to the appropriate representatives at the Company
and the Advisory Firm in connection with its review of such schedule. The Basis
Schedule shall become final and binding on the Company, THL and Hawkeye
Holdings unless either THL or Hawkeye Holdings, within 15 calendar days after
receiving such Basis Schedule, provides the Company with notice of a material
objection to such Basis Schedule made in good faith (such person a “Basis
Schedule Objector”). If the Company and such Basis Schedule Objector,
using their best efforts, are unable to resolve the issues raised in such
notice within 35 calendar days after the Basis Schedule was delivered to
the Basis Schedule Objector, the Company and such Basis Schedule Objector
shall employ the Reconciliation Procedures.


 


(b)                                 Gain Recognition Statement. Within 60 days of the conclusion of the
calendar year in which the consummation of the Contribution takes place,
Hawkeye Holdings must submit to the Company a statement (the “Gain
Recognition Statement”) that shows, in reasonable detail, the amount of
gain recognized by Hawkeye Holdings as a result of the Contribution for U.S.
Federal Income Tax and state and local income tax purposes; provided
that the failure to submit such Gain Recognition Statement shall not impact the
Company’s obligation to Hawkeye Holdings under the terms of this Agreement; provided
further, that Hawkeye Holdings shall also inform the Company at such
time if it is electing out of the Installment Method pursuant to Section 453(d) of
the Code; provided further, that if Hawkeye Holdings does not elect out
of the Installment Method, Hawkeye Holdings shall provide to the Company data
sufficient to enable the Company to calculate the gain to be recognized by
Hawkeye Holdings and/or its members upon its or such members’ receipt of future
payments under this Agreement.


 


(c)                                  Amended Basis Schedule. (i)  The Basis Schedule may be
amended from time to time by the Company (x) in connection with a Determination,
(y) to correct inaccuracies in the original Basis Schedule identified
after the Closing Date as a result of the receipt of additional information
relating to facts or circumstances on or prior to the Closing Date or (z) to
comply with the expert’s determination under the Reconciliation Procedures; provided,
however, that notwithstanding anything in this Agreement to the
contrary, the Company must amend the Basis Schedule not less frequently
than annually to account for any and all Gain Recognition Statements previously
received pursuant to Section 2.02(b). 


 


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(ii)  At the time the Company delivers such
amended Basis Schedule pursuant to this Section 2.02(c) (an “Amended
Basis Schedule”) to THL and Hawkeye Holdings, it shall (x) also deliver to
THL and Hawkeye Holdings schedules and work papers providing reasonable detail
regarding the preparation of the Amended Basis Schedule and an Advisory
Firm Letter supporting such Amended Basis Schedule and (y) allow THL and
Hawkeye Holdings reasonable access to the appropriate representatives at the
Company and the Advisory Firm in connection with its review of such schedule.
The Amended Basis Schedule shall become final and binding on the Company,
THL and Hawkeye Holdings unless either THL or Hawkeye Holdings, within 15
calendar days after receiving such Amended Basis Schedule, provides the Company
with notice of a material objection to such Amended Basis Schedule made in
good faith (such person, an “Amended Basis Schedule Objector”). If
the Company and such Amended Basis Schedule Objector, using their best
efforts, are unable to resolve the issues raised in such notice within 35
calendar days after the Amended Basis Schedule was delivered to such
Amended Basis Schedule Objector, the Company and such Amended Basis Schedule Objector
shall employ the Reconciliation Procedures.


 


SECTION 2.03. (a)  Tax Benefit Schedule.
(i)  Within 10 calendar days after each of (A) April 15, June 15
and September 15 of a Covered Taxable Year and January 15 of the
taxable year immediately succeeding such Covered Taxable Year and (B) the
filing of the Federal Income Tax Return of the Company for a Covered Taxable
Year, the Company shall provide to THL and Hawkeye Holdings a schedule showing,
in reasonable detail, the calculation of the Realized Tax Benefit for such
Covered Taxable Year or Covered Taxable Quarter, as applicable (each schedule,
a “Tax Benefit Schedule”).


 


(ii)                             At the time the Company delivers the Tax
Benefit Schedule to THL and Hawkeye Holdings it shall (x) also deliver to
THL and Hawkeye Holdings schedules and work papers providing reasonable detail
regarding the preparation of the Tax Benefit Schedule and an Advisory Firm
Letter supporting such Tax Benefit Schedule and (y) allow THL and Hawkeye
Holdings reasonable access to the appropriate representatives at the Company
and the Advisory Firm in connection with its review of such schedule. The Tax
Benefit Schedule shall become final and binding on the Company, THL and
Hawkeye Holdings unless either THL or Hawkeye Holdings, within 15 calendar days
after receiving such Tax Benefit Schedule, provides the Company with notice of
a material objection to such Tax Benefit Schedule made in good faith (such
person, a “Tax Benefit Schedule Objector”). If the Company and such
Tax Benefit Schedule Objector, using their best efforts, are unable to
resolve the issues raised in such notice within 35 calendar days after the Tax
Benefit Schedule was delivered to such Tax Benefit Schedule Objector,
the Company and such Tax Benefit Schedule Objector shall employ the
Reconciliation Procedures.


 


(b)                                 Amended Tax Benefit Schedule. (i)  The Tax Benefit Schedule for
any Covered Taxable Year may be amended from time to time by the Company
(s) in connection with a Determination, (t) to correct inaccuracies in the
original Tax Benefit


 


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Schedule identified
as a result of the receipt of additional factual information relating to a
Covered Taxable Year after the date the Tax Benefit Schedule was provided
to THL and Hawkeye Holdings, (u) to reflect a change in the Realized Tax
Benefit for such Covered Taxable Year attributable to a carryback or
carryforward of a loss or other tax item to such Covered Taxable Year, (v) to
reflect a change in the Realized Tax Benefit for such Covered Taxable Year
attributable to an amended Tax Return filed for such Covered Taxable Year (provided,
however, that such a change attributable to an audit of a Tax Return by
an applicable Taxing Authority shall not be taken into account on an Amended
Tax Benefit Schedule unless and until there has been a Determination with
respect to such change), or (w) to comply with the expert’s determination under
the Reconciliation Procedures.


 


(ii)  At the time the
Company delivers such an amended Tax Benefit Schedule pursuant to this Section 2.03(b) (an
“Amended Tax Benefit Schedule”) to THL and Hawkeye Holdings it shall (x)
also deliver to THL and Hawkeye Holdings schedules and work papers providing reasonable
detail regarding the preparation of the Amended Tax Benefit Schedule and
an Advisory Firm Letter supporting such Amended Tax Benefit Schedule and
(y) allow THL and Hawkeye Holdings reasonable access to the appropriate
representatives at the Company and the Advisory Firm in connection with its
review of such schedule. Such Amended Tax Benefit Schedule shall become
final and binding on the Company, THL and Hawkeye Holdings unless either THL or
Hawkeye Holdings, within 15 calendar days after receiving such Amended Tax
Benefit Schedule, provides the Company with notice of a material objection to
such Amended Tax Benefit Schedule made in good faith (such person, an “Amended
Tax Benefit Schedule Objector”). If the Company and such Amended Tax
Benefit Schedule Objector, using their best efforts, are unable to resolve
the issues raised in such notice within 35 calendar days after the Amended Tax
Benefit Schedule was delivered to such Amended Tax Benefit Schedule Objector,
the Company and such Amended Tax Benefit Schedule Objector shall employ
the Reconciliation Procedures.


 


(c)                                  Applicable Principles. The Realized Tax Benefit for each Covered
Taxable Year or Covered Taxable Quarter, as applicable, is intended to measure
the decrease in the actual Covered Tax Year or Covered Taxable Quarter
liability, as applicable, of the Company for such Covered Taxable Year or
Covered Taxable Quarter, as applicable, attributable to the Basis Adjustment
and Imputed Interest, determined using a “with and without” methodology. Carryovers
or carrybacks of any tax item attributable to the Basis Adjustment and Imputed
Interest (determined using such “with and without” methodology) shall be
considered to be subject to the rules of the Code and the Treasury
Regulations or the Applicable State Tax Code, as applicable, governing the use,
limitation and expiration of carryovers or carrybacks of the relevant type. If
a carryover or carryback of any tax item includes a portion that is
attributable to the Basis Adjustment or Imputed Interest and another portion
that is not, such portions shall be considered to be used in the order
determined using such “with and without” methodology. For the avoidance of
doubt, Hypothetical Tax Liability shall be computed


 


13

















 


without
regard to any tax attributes attributable to the Basis Adjustment or Imputed
Interest.


 


ARTICLE III



TAX BENEFIT PAYMENTS


 


SECTION 3.01. Payments. (a)  Quarterly
Payments. On April 1, July 1 and October 1 of each Covered
Taxable Year and January 1 of the taxable year immediately succeeding such
Covered Taxable Year (each such date, a “Payment Date”), the Company shall pay
to THL and Hawkeye Holdings an amount equal to the sum of (i) the product
of (x) such person’s percentage share (as set forth in Exhibit A) of 50%
of the Realized Tax Benefit (if any) for the relevant prior Covered Taxable
Quarter, other than any Realized Tax Benefit attributable to any Basis
Adjustment created by the accrual or payment of any amount due to Hawkeye Holding
pursuant to this Agreement or the Imputed Interest and (y) 0.90 and
(ii) the product of (x) such person's percentage share (as set forth
in Exhibit A) of 100% of the Realized Tax Benefit (if any) for the
relevant prior Covered Taxable Quarter that is attributable to any Basis
Adjustment created by the accrual or payment of any amount due to Hawkeye
Holding pursuant to this Agreement or the Imputed Interest and (y) 0.90.


 


(b)  Annual Adjustment Payments. Not
later than the deadline described in Section 2.03(a)(i)(B) for delivery by
the Company to THL and Hawkeye Holdings of a Tax Benefit Schedule for the prior
Covered Taxable Year, the Company shall pay to THL and Hawkeye Holdings, based
on the Tax Benefit Schedule delivered pursuant to Section 2.03(a)(i)(B) for
such prior Covered Taxable Year, an amount equal to the excess (if any) of
(x) the amount such person would have been entitled to receive under this
Agreement in respect of the previous Covered Taxable Year (based on such Tax
Benefit Schedule and, for the avoidance of doubt, assuming the number in
clause (y) of Section 3.01(a) was 1.00) over (y) the cumulative
amount the person actually received in respect of such Covered Taxable Year
under Section 3.01(a).


 


(c)  Increase or Decrease in Future Payments.
(i)  In the event that either (A) the amount determined in clause (y)
of Section 3.01(b) exceeds the amount determined in clause (x) of Section 3.01(b) or
(B) an Amended Tax Benefit Schedule for any Covered Taxable Year
reflects a decrease in the Realized Tax Benefit for such year (including,
without limitation, by reason of net operating loss carryovers or carrybacks)
and payments have previously been made based on the higher Realized Tax Benefit
(either such excess, an “Excess Payment”), future payments to be made
under this Section 3.01 shall be reduced by the amount of the Excess
Payment until such Excess Payment has effectively been repaid.


 


(ii)  Within 3 calendar days of the delivery of
an Amended Tax Benefit Schedule to THL and Hawkeye Holdings for any
Covered Taxable Year, the Company shall pay to THL and Hawkeye Holdings an
amount equal to the excess, if any, of (x) the amount such person is
entitled to receive under this Agreement in respect of the relevant Covered
Taxable Year (based on such Amended Tax Benefit Schedule) over (y) the
cumulative amount the person actually received in respect of such Covered
Taxable Year pursuant to this Agreement.


 


(d)  Method of Payment. Each payment
made pursuant to this Section 3.01 (a “Tax Benefit Payment”) shall
be made by wire transfer of immediately available


 


14

















 


funds
to a bank account of the recipient previously designated by it to the other
party.


 


SECTION 3.02. No Duplicative Payments.
For the avoidance of doubt, no duplicative payment of any amount (including
interest) will be required under this Agreement.


 


ARTICLE IV



TERMINATION


 


SECTION 4.01. Early Termination of Agreement.
The Company may terminate this Agreement at any time by paying to THL and
Hawkeye Holdings (according to their percentage interests as reflected on Exhibit A)
the Early Termination Payment as of the date of the Early Termination Notice.
The Company may terminate this Agreement upon the occurrence of a Change
of Control Event by paying to THL and Hawkeye Holdings (according to their
percentage interests as reflected on Exhibit A) the Change of Control
Termination Payment as of the date of the Early Termination Notice. Upon
payment of the Early Termination Payment or the Change of Control Termination
Payment by the Company, the Company shall not have any further payment
obligations under this Agreement, other than for any (x) Tax Benefit Payment
agreed to by the Company as due and payable but unpaid as of the Early
Termination Notice and (y) Tax Benefit Payment due for the Covered Taxable Year
ending with or including the date of the Early Termination Notice (except to
the extent that the amount described in clause (x) or (y) is included in the
Early Termination Payment or Change of Control Termination Payment).


 


SECTION 4.02. Early Termination Notice. (a) 
If the Company chooses to exercise its right of early termination under Section 4.01
above, it shall deliver to THL and Hawkeye Holdings a notice (the “Early
Termination Notice”) specifying the Company’s intention to exercise such
right and showing in reasonable detail the calculation of the Early Termination
Payment or the Change of Control Termination Payment, as the case may be.


 


(b)  At the time the Company delivers the Early
Termination Notice to THL and Hawkeye Holdings it shall (x) also deliver to THL
and Hawkeye Holdings schedules and work papers providing reasonable detail
regarding the calculation of the Early Termination Payment or the Change of
Control Termination Payment, as the case may be, in a manner consistent
with the guidelines set forth in Section 4.03 of this Agreement and an
Advisory Firm Letter supporting such Early Termination Notice and (y) allow THL
and Hawkeye Holdings reasonable access to the appropriate representatives at
the Company and the Advisory Firm in connection with its review of such Early
Termination Notice. Such Early Termination Notice shall become final and
binding on the Company, THL and Hawkeye Holdings unless either THL or Hawkeye
Holdings, within 15 calendar days after receiving such Early Termination
Notice, provides the Company with notice of a material objection to such Early


 


15

















 


Termination
Notice (an “Early Termination Objection”) made in good faith (such
person, an “Early Termination Objector”). If the Company and such Early
Termination Objector, using their best efforts, are unable to resolve the
issues raised in such notice within 35 calendar days after the Early
Termination Notice was delivered to such Early Termination Objector, the
Company and such Early Termination Objector shall employ the Reconciliation
Procedures.


 


SECTION 4.03. Payment upon Early Termination.
(a)  Within 3 calendar days of the delivery to THL and Hawkeye Holdings of
the Early Termination Notice (or, in the case of an Early Termination
Objection, the date such Early Termination Objection is finally resolved as
provided for in Section 4.02(b)), the Company shall pay to THL and Hawkeye
Holdings an amount equal to such person’s percentage interest (as set forth on Exhibit A)
of the Early Termination Payment or the Change of Control Termination Payment,
as the case may be. Such payment shall be made by wire transfer of
immediately available funds to a bank account designated by the relevant party.


 


(b)                                 The Early Termination Payment as of the date
of an Early Termination Notice shall equal the present value, discounted at the
Early Termination Rate, of all Tax Benefit Payments that would be required to
be paid by the Company to THL and Hawkeye Holdings during the period from the
date of the Early Termination Notice through the Scheduled Termination Date
(taking into account the impact of the Early Termination Payment) assuming (1) the
Valuation Assumptions are applied and (2) any loss carryovers generated by
the Basis Adjustment or the Imputed Interest are available as of the date of
the Early Termination Notice and will be utilized by the Company in the taxable
period in which the Early Termination Notice is delivered.


 


(c)                                  The Change of Control Termination Payment as
of the date of an Early Termination Notice shall equal the Early Termination
Payment as of such date multiplied by 70%.


 


SECTION 4.04. No Other Right of Early
Termination. For the avoidance of doubt, neither THL nor Hawkeye Holdings
shall be entitled to cause an early termination of this Agreement.


 


ARTICLE V



SUBORDINATION AND LATE PAYMENTS


 


SECTION 5.01. Subordination.
Notwithstanding any other provision of this Agreement to the contrary, any Tax
Benefit Payment, Early Termination Payment or Change of Control Termination
Payment required to be made by the Company to THL and Hawkeye Holdings under
this Agreement (a “Company Payment”) shall rank subordinate and junior
in right of payment to any principal, interest or other amounts due and payable
in respect of any Company Senior Debt Agreements and shall rank pari passu with
all current or future unsecured obligations of the Company that are not Company
Senior Debt Agreements.


 


16

















 


SECTION 5.02. Late Payments by the Company.
The amount of all or any portion of a Company Payment not made to THL or
Hawkeye Holdings when due under the terms of this Agreement shall be payable
together with any interest thereon, computed at the Agreed Rate and commencing
from the date on which such Company Payment was due and payable.


 


ARTICLE VI



NO DISPUTES; CONSISTENCY; COOPERATION


 


SECTION 6.01. THL and Hawkeye Holdings
Participation In Company Tax Matters. Except as otherwise provided herein,
the Company shall have full responsibility for, and sole discretion over, all
Tax matters concerning any member of the Company or any of its Subsidiaries,
including, without limitation, the preparation, filing or amendment of any Tax
Return and defending, contesting or settling any issue pertaining to Taxes.
Notwithstanding the foregoing, the Company shall notify THL and Hawkeye
Holdings of, and keep each such person reasonably informed with respect to, and
each such person shall have the right to participate in and monitor (but, for
the avoidance of doubt, not to control) the portion of any audit of the Company
or any of its Subsidiaries by a Taxing Authority the outcome of which is
reasonably expected to affect such person’s rights and obligations under this
Agreement, and shall provide to such person reasonable opportunity to provide
information and other input to the Company and its advisors concerning the
conduct of any such portion of such audits. Neither the Company nor any of its
Subsidiaries shall settle or otherwise resolve any audit or other challenge by
a Taxing Authority relating to the basis of the Original Assets or the
deduction of Imputed Interest without the consent of THL and Hawkeye Holdings,
which consent shall not be unreasonably withheld, conditioned or delayed.


 


SECTION 6.02. Consistency. Unless there
is a Determination to the contrary, the Company, on its own behalf and on
behalf of each of its Subsidiaries, and THL and Hawkeye Holdings, each on its
own behalf and on behalf of each of its affiliates, agree to report and cause
to be reported for all purposes, including federal, state and local Tax
purposes and financial reporting purposes, all Tax-related items (including,
without limitation, the Basis Adjustment and each Tax Benefit Payment) in a
manner consistent with that specified by the Company in any schedule, letter or
certificate (as such schedule, letter or certificate may be revised or
amended pursuant to any dispute resolution mechanism described in this
Agreement) required to be provided by or on behalf of the Company under this
Agreement. In the event that an Advisory Firm is replaced with another firm
acceptable to the Company, THL and Hawkeye Holdings, such replacement Advisory
Firm shall be required to perform its services under this Agreement using
procedures and methodologies consistent with the previous Advisory Firm, unless
(x) otherwise required by law or (y) the Company, THL and Hawkeye Holdings each
agree to the use of other procedures and methodologies.


 


SECTION 6.03. Cooperation. THL and
Hawkeye Holdings shall (and shall cause their affiliates to) (x) furnish to the
Company in a timely manner such


 


17

















 


information,
documents and other materials as the Company may reasonably request for
purposes of making any determination or computation necessary or appropriate
under this Agreement, preparing any Tax Return or contesting or defending any
audit, examination or controversy with any Taxing Authority, (y) make their
employees available to the Company and their representatives to provide
explanations of documents and materials and such other information as the
Company or its representative may reasonably request in connection with
any of the matters described in clause (x) above, and (z) reasonably cooperate
in connection with any such matter.


 


ARTICLE VII



GENERAL PROVISIONS


 


SECTION 7.01. Notices. All notices and
other communications hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (which is confirmed) or dispatched by a
nationally recognized one night courier service to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):


 


	
   

  	
  if to the Company:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Hawkeye Holdings, Inc.

  	
   

  	
   

  
	
   

  	
  21050 140th Street

  	
   

  	
   

  
	
   

  	
  Iowa Falls, IA 50126

  	
   

  	
   

  
	
   

  	
  Attention: 

  	
  Bruce Rastetter

  	
   

  
	
   

  	
  Facsimile: 

  	
  (641) 648-8925

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute notice) to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Nyemaster, Goode, West,
  Hansell & O’Brien

  	
   

  	
   

  
	
   

  	
  700 Walnut, Suite 1600

  	
   

  	
   

  
	
   

  	
  Des Moines, Iowa
  50309-3899

  	
   

  	
   

  
	
   

  	
  Attention: Wade H. Schut, Esq.

  	
   

  	
   

  
	
   

  	
  Facsimile: (515) 283-3108

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  if to THL:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

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

  	
   

  	
   

  
	
   

  	
  100 Federal Street, 35th
  Floor

  	
   

  	
   

  
	
   

  	
  Boston, MA 02110

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Scott Sperling

  	
   

  
	
   

  	
   

  	
  Thomas Hagerty

  	
   

  
	
   

  	
   

  	
  Soren Oberg

  	
   

  
	
   

  	
  Facsimile:

  	
  (617) 227-3514

  	
   

  
					



 


18

















 


	
   

  	
  with a copy (which shall not constitute notice) to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Weil, Gotshal &
  Manges LLP

  	
   

  	
   

  
	
   

  	
  100 Federal Street, 34th
  Floor

  	
   

  	
   

  
	
   

  	
  Boston, MA 02110

  	
   

  	
   

  
	
   

  	
  Attention: 

  	
  James Westra, Esq.

  	
   

  
	
   

  	
   

  	
  Marilyn French, Esq.

  	
   

  
	
   

  	
  Facsimile:

  	
  (617) 772-8333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  if to Hawkeye Holdings:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Hawkeye Holdings, L.L.C.

  	
   

  	
   

  
	
   

  	
  177 Broad Street, 15th
  Floor

  	
   

  	
   

  
	
   

  	
  Stamford, Connecticut
  06901

  	
   

  	
   

  
	
   

  	
  Attention: Russell
  Stidolph

  	
   

  	
   

  
	
   

  	
  Facsimile: (203) 973-1422

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute notice) to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Gibson, Dunn &
  Crutcher LLP

  	
   

  	
   

  
	
   

  	
  2029 Century Park East, Suite 4000

  	
   

  	
   

  
	
   

  	
  Los Angeles, CA 90067

  	
   

  	
   

  
	
   

  	
  Attention: Jonathan K.
  Layne, Esq.

  	
   

  	
   

  
	
   

  	
  Facsimile: (310) 552-7053

  	
   

  	
   

  
					



 


Any
party may change its address or fax number by giving the other party
written notice of its new address or fax number in the manner set forth above.


 


SECTION 7.02. Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.


 


SECTION 7.03. Entire Agreement; No Third
Party Beneficiaries. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. This Agreement
shall be binding upon and inure solely to the benefit of each party hereto and
their respective successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.


 


19

















 


SECTION 7.04. Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York without giving effect to applicable principles of
conflict of laws.


 


SECTION 7.05. Severability. If any term
or other provision of this Agreement is invalid, illegal or incapable of being
enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.


 


SECTION 7.06. Successors; Assignment;
Amendments. Neither THL nor Hawkeye Holdings may assign this Agreement
to any person without the prior written consent of the Company, which consent
shall not be unreasonably withheld, conditioned or delayed; provided, however,
(i) THL and Hawkeye Holdings may pledge some or all of their
respective rights, interests or entitlements under this Agreement to any U.S.
money center bank in connection with a bona fide loan or other indebtedness; (ii) THL
and Hawkeye Holdings may assign some or all of their respective rights,
interests or entitlements under this Agreement to any related entity within the
meaning of Section 267(b) or 707(b) of the Code; (iii) nothing
in this Agreement shall preclude the distribution in kind by Hawkeye Holdings
or THL of their respective rights, interests or entitlements under this
Agreement to their members or the distribution in kind by such members to their
respective shareholders, partners, or members; and (iv) in the case of a
distributee referred to in clause (iii) that is a natural person, such
person may assign some or all her or her rights, interests or entitlements
under this Agreement (A) upon his or her death, incapacity or otherwise by
operation of law, judgment or decree or (B) to any member of such person’s
Family Group, in each case without the prior written consent of the Company.
The Company may not assign any of its rights, interests or entitlements
under this Agreement without the consent of THL and Hawkeye Holdings, not to be
unreasonably withheld or delayed. Subject to each of the two immediately
preceding sentences, this Agreement will be binding upon, inure to the benefit
of and be enforceable by, the parties and their respective successors and
assigns including any acquiror of all or substantially all of the assets of the
Company.


 


No amendment to this Agreement shall be effective
unless it shall be in writing and signed by the Company, THL and Hawkeye
Holdings.


 


SECTION 7.07. Transfers of Rights under this
Agreement. In the event of an assignment or transfer of rights under this
Agreement by Hawkeye Holdings or THL (including a distribution by Hawkeye Holdings
or THL to its members and/or subsequent distribution by such members to their
respective members, shareholders, partners or equityholders) then:


 


20

















 


(i)                                     the transferor shall give the other parties
to this Agreement written notice of any such transfer, which notice shall
include the name of the ultimate transferee;


 


(ii)                                  the transferor shall deliver to the other
parties a joinder agreement, in a form reasonably satisfactory to the
other parties, executed by each such transferee, which joinder agreement shall
reflect (A) the agreement by each such transferee to be bound by the terms
and conditions hereof and (B) the appointment by each such transferee of a
representative to act for all such transferees under this Agreement (such
person in such capacity, the “Transferee Representative”); and


 


(iii)                               at all times after any such transfer, any action required or allowed to
be taken by the transferor shall be allowed to be taken by the Transferee
Representative.


 


SECTION 7.08. THL Representative. By
execution of this Agreement, each of Thomas H. Lee Parallel Fund VI, L.P.,
Thomas H. Lee Parallel (DT) Fund VI, L.P., Putnam Investment Holdings, LLC,
Putnam Investments Employees Security Company III LLC, THL Coinvestment
Partners, L.P., THL Hawkeye Equity Investors, L.P. and Mission Enterprises, LLC
agree to appoint as their representative Thomas H. Lee Equity Fund VI, L.P.,
which representative shall be authorized to do all things permitted to and
required of THL under this Agreement.


 


SECTION 7.09. Titles and Subtitles. The
titles of the sections and subsections of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement.


 


SECTION 7.10. Submission to Jurisdiction;
Waivers. With respect to any suit, action or proceeding relating to this
Agreement (collectively, a “Proceeding”), each party to this Agreement
irrevocably (a) consents and submits to the exclusive jurisdiction of the
courts of the States of New York and Delaware and any court of the United
States located in the Borough of Manhattan in New York City or the State of
Delaware; (b) waives any objection which such party may have at any
time to the laying of venue of any Proceeding brought in any such court, waives
any claim that such Proceeding has been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceeding, that such
court does not have jurisdiction over such party; (c) consents to the
service of process at the address set forth for notices in Section 7.01
herein; provided, however, that such manner of service of process
shall not preclude the service of process in any other manner permitted under
applicable law; and (d) waives, to the fullest extent permitted by
applicable law, any and all rights to trial by jury in connection with any
Proceeding.


 


SECTION 7.11. Reconciliation. In the
event that the Company and either THL or Hawkeye Holdings (such latter person,
an “Objecting Party”) are unable to resolve a disagreement within the
relevant period designated in this Agreement, the matter shall be submitted for
determination to a nationally recognized expert in the


 


21

















 


particular
area of disagreement mutually acceptable to both parties. The expert shall be
employed by a nationally recognized accounting firm or a law firm (other than
the Advisory Firm), and the expert shall not, and the firm that employs the
expert shall not, have any material relationship with either the Company or the
Objecting Party or other actual or potential conflict of interest. If the
matter is not resolved before any payment that is the subject of a disagreement
is due or any Tax Return reflecting the subject of a disagreement is due, such payment
shall be made on the date prescribed by this Agreement and such Tax Return may be
filed as prepared by the Company or its affiliate, subject to adjustment or
amendment upon resolution. The costs and expenses relating to the engagement of
such expert or amending any return shall be borne equally by the parties. The
expert shall determine which party prevails. The determinations of the expert
pursuant to this Section 7.11 shall be binding on the Company and the
Objecting Party.


 


SECTION 7.12. Future Affiliated Groups.
In the event the Company becomes a member of a Company Affiliated Group that
files a consolidated return for Federal Income Tax or State and Local Income
Tax purposes, as applicable (and whether or not the Company is the common
parent of such Company Affiliated Group), this agreement shall be interpreted
as if the common parent of such Company Affiliated Group were the Company.


 


22

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first written above.


 


	
   

  	
  HAWKEYE HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HAWKEYE HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  



 


23

















 


	
   

  	
  THOMAS H. LEE EQUITY FUND VI, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THOMAS H. LEE PARALLEL FUND VI, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THOMAS H. LEE (DT) FUND VI, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PUTNAM INVESTMENT HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  



 


24

















 


	
   

  	
  PUTNAM INVESTMENTS EMPLOYEES

  SECURITY COMPANY III LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THL COINVESTMENT PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THL HAWKEYE EQUITY INVESTORS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MISSION ENTERPRISES, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  



 


25

















 


EXHIBIT A


 


	
  Party

  	
   

  	
  Percentage Share

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THL

  	
   

  	
  80

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Hawkeye
  Holdings

  	
   

  	
  20

  	
  %

  



 


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