Second Amended And Restated Limited Liability Company Agreement

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


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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


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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, a7a7 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.


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" 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.


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" 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.


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" 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:


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(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


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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:


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(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.


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" 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 Comp ...