Limited Liability Company Agreement

Exhibit 10.4


HF INVESTMENT HOLDINGS, LLC


AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT


Dated as of September 27, 1999


HF INVESTMENT HOLDINGS, LLC


AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT


TABLE OF CONTENTS


Page
----


ARTICLE 1 - DEFINITIONS........................................................1


ARTICLE 2 - FORMATION AND PURPOSE..............................................1
2.1 Formation....................................................1
2.2 Name.........................................................1
2.3 Registered Office/Agent......................................2
2.4 Term.........................................................2
2.5 Purpose......................................................2
2.6 Specific Powers..............................................2
2.7 Certificate..................................................3


ARTICLE 3 - MEMBERSHIP AND CAPITAL.............................................4
3.1 Members; Units...............................................4
3.2 Capital Contributions........................................4
3.3 Capital Accounts.............................................5
3.4 Revaluations of Assets and Capital Account Adjustments.......5
3.5 Additional Capital Account Adjustments.......................5
3.6 Additional Capital Account Provisions........................6
3.7 Options, Warrants, Etc.......................................6


ARTICLE 4 - STATUS AND RIGHTS OF MEMBERS.......................................7
4.1 Limited Liability............................................7
4.2 Return of Distributions of Capital...........................7


ARTICLE 5 - DISTRIBUTIONS AND ALLOCATIONS OF PROFIT AND LOSS...................7
5.1 Distributions................................................7
5.2 No Violation................................................12
5.3 Withholdings................................................12
5.4 Property Distributions and Installment Sales................13
5.5 Net Profit or Net Loss......................................13
5.6 Limitation on Allocation of Losses; Qualified Income
Offset; Curative Allocations................................15
5.7 Tax Allocations: Code Section 704(c) and Unrealized
Appreciation or Depreciation................................16


-i-


5.8 Additional Investments......................................16


ARTICLE 6 - TAX MATTERS MEMBER................................................17
6.1 Tax Matters Member..........................................17
6.2 Certain Authorizations......................................17
6.3 Indemnity of Tax Matters Member.............................18
6.4 Information Furnished.......................................18
6.5 Notice of Proceedings, etc..................................18
6.6 Notices to Tax Matters Member...............................18


ARTICLE 7 - FEES AND EXPENSES.................................................18
7.1 Compensation to the Administrative Member and Affiliates....18
7.2 Company Expenses............................................19


ARTICLE 8 - DESIGNATION, RIGHTS, AND DUTIES OF THE ADMINISTRATIVE MEMBERS.......................................................................19
8.1 Designation.................................................19
8.2 Authority; Duties...........................................19
8.3 Business Decisions; Voting Shares of HF Holdings'
Capital Stock...............................................20


ARTICLE 9 - TRANSFER OF INTERESTS.............................................21
9.1 Restrictions on Transfer....................................21
9.2 Transfers under this Agreement, etc.........................21
9.3 Transfers of Class B Units to Permitted Transferees.........21
9.4 Transfers of Class A Units or Class C Units to Immediate
Family......................................................21
9.5 Transfers of Class A Units or Class C Units Upon Death......22
9.6 Transfers of Class A Units or Class C Units to Charities....22
9.7 Transfers of Units to Entities Under Common Control.........22
9.8 Bain Sell Down..............................................22


ARTICLE 10 - BOOKS, RECORDS, ACCOUNTING, AND REPORTS..........................23
10.1 Books and Records...........................................23
10.2 Information to Member.......................................24
10.3 Financial Statements........................................24
10.4 Filings.....................................................25
10.5 Non-Disclosure..............................................25


ARTICLE 11 - AMENDMENTS TO AGREEMENT..........................................25
11.1 Amendments..................................................25
11.2 Filings.....................................................26


ARTICLE 12 - DISSOLUTION OF COMPANY...........................................26
12.1 Events of Dissolution or Liquidation........................26


-ii-


12.2 Liquidation.................................................26
12.3 No Further Claim............................................27
12.4 No Action for Dissolution...................................27


ARTICLE 13 - INDEMNIFICATION..................................................27


13.1 General.....................................................27
13.2 Indemnification.............................................27


ARTICLE 14 - REPRESENTATIONS BY THE MEMBERS...................................28
14.1 Investment Intent...........................................28
14.2 Securities Regulation.......................................28
14.3 Knowledge and Experience....................................28
14.4 Independent Investment Decision.............................29
14.5 Economic Risk...............................................29
14.6 Binding Agreement...........................................29
14.7 Tax Position................................................30
14.8 Information.................................................30


ARTICLE 15 - COMPANY REPRESENTATIONS..........................................30
15.1 Legal Existence.............................................30
15.2 Valid Issuance..............................................30
15.3 Options, Etc................................................30


ARTICLE 16 - MISCELLANEOUS....................................................30
16.1 Additional Documents........................................30
16.2 General.....................................................31
16.3 Notices, Etc................................................31
16.4 Applicable Law..............................................31
16.5 Consent to Jurisdiction.....................................31
16.6 WAIVER OF JURY TRIAL........................................32
16.7 Gender and Number...........................................32
16.8 Severability................................................32
16.9 Headings....................................................33
16.10 Tax Status..................................................33
16.11 No Third Party Rights.......................................33


-iii-


HF INVESTMENT HOLDINGS, LLC


AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT


THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of HF Investment Holdings, LLC is dated as of September 27, 1999 by and among Bain Capital Fund IV, L.P., Bain Capital Fund IV-B, L.P., BCIP Associates and BCIP Trust Associates, L.P., each a Delaware limited partnership, Gary Stevenson, an individual residing in Riverheight, UT, Scott Watterson, an individual residing in Providence, UT, and such other persons as may from time to time be admitted as Members.


WHEREAS, the Original Members wish to form a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act in order to conduct the business described herein; and


WHEREAS, the Members wish to enter into this Agreement to provide for, among other things, the management of the business and affairs of the Company, the allocation of profits and losses among the Members, the respective rights and obligations of the Members to each other and to the Company, and certain other matters.


NOW, THEREFORE, the Members agree as follows:


ARTICLE 1
DEFINITIONS


For purposes of this Agreement certain capitalized terms have specifically defined meanings which are either set forth or referred to in Exhibit 1 which is attached hereto and incorporated herein by reference.


ARTICLE 2
FORMATION AND PURPOSE


2.1 FORMATION. The Members hereby form a limited liability company pursuant to the Act effective retroactively to the filing of the Certificate with the Secretary of State of the State of Delaware. The rights, duties and liabilities of the Members shall be determined pursuant to the Act and this Agreement. To the extent that such rights, duties or obligations are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control.


2.2 NAME. The name of the Company is HF Investment Holdings, LLC. The business of the Company may be conducted under that name or, upon compliance with


applicable laws, any other name that the Administrative Members deem appropriate or advisable. The Administrative Members shall file any fictitious name certificates and similar filings, and any amendments thereto, that the Administrative Members consider appropriate or advisable.


2.3 REGISTERED OFFICE/AGENT. The registered office required to be maintained by the Company in the State of Delaware pursuant to the Act shall initially be c/o Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805. The name and address of the registered agent of the Company pursuant to the Act shall initially be Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805. The Company may, upon compliance with the applicable provisions of the Act, change its registered office or registered agent from time to time in the discretion of the Administrative Members.


2.4 TERM. The term of the Company shall continue until December 31, 2024 unless sooner terminated as hereinafter provided. The holders of a majority of each of the Class A Units and Class B Units may extend the term (unless terminated pursuant to Section 12.1(b) or (c)) for up to two periods of two years each if they determine that extension is necessary or desirable.


2.5 PURPOSE. The purpose of the Company is to make investments in the capital stock of HF Holdings and such other investments as may from time to time be approved by a Voting Majority, and to engage in any and all activities necessary, advisable, convenient or incidental to the making, management or disposition of such investments. In addition, all cash of the Company, including without limitation all Capital Contributions pending their investment as contemplated by this Section 2.5, all interest, dividends and other distributions received with respect to all investments of the Company, all amounts realized on the sale, exchange or other disposition of securities and other assets of the Company (including without limitation through mandatory or voluntary redemptions and repurchases of capital stock), and all miscellaneous income received from investment of idle funds, shall be segregated and invested in Short-Term Investments by the Administrative Members to the extent they are not then required to provide for Distributions, expenses or investments.


2.6 SPECIFIC POWERS. Without limiting the generality of Section 2.5, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purpose set forth in Section 2.5, including, but not limited to, the power:


2.6.1 to conduct its business, carry on its operations and
have and exercise the powers granted to a limited liability company by
the Act or under any other applicable law in any jurisdiction, whether
domestic or foreign, that may be necessary, convenient or incidental to
the accomplishment of the purposes of the Company;


-2-


2.6.2 to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, perform and carry out contracts of any
kind, including without limitation contracts with any Member or any
Affiliate thereof, in connection with, convenient to, or incidental to
the accomplishment of the purposes of the Company;


2.6.3 to purchase, take, receive, subscribe for or otherwise
acquire, own, hold, vote, use, employ, sell, lend, or otherwise dispose
of, and otherwise use and deal in and with, shares or other interests
in or obligations of corporations, associations, general or limited
partnerships, trusts, limited liability companies, or individuals or
direct or indirect obligations of the United States or of any
government, state, territory, governmental district or municipality or
of any instrumentality of any of them;


2.6.4 to sue and be sued, complain and defend, and participate
in administrative or other proceedings, in its name;


2.6.5 to elect and designate one or more managers of the
Company and to appoint officers, employees, agents and representatives
of the Company, and define their duties and fix their compensation;


2.6.6 to indemnify any Person in accordance with this
Agreement;


2.6.7 to cease its activities and cancel its Certificate;


2.6.8 to pay, collect, compromise, litigate, arbitrate or
otherwise adjust or settle any and all other claims or demands of or
against the Company or to hold such proceeds against the payment of
contingent liabilities; and


2.6.9 to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.


Notwithstanding the foregoing provisions of this Section 2.6, in no event shall the Company have the authority to borrow or otherwise incur or take property subject to indebtedness without the written consent of a Voting Majority.


2.7 CERTIFICATE. The filing by Taline Festekjian of the Certificate as an "authorized person" within the meaning of the Act is hereby authorized and ratified in all respects, and the Administrative Members, as well as R. Newcomb Stillwell and Ryan D. Darrah, are designated as "authorized persons" within the meaning of the Act to execute, deliver and file any amendments, restatements or cancellation of the Certificate, and any other certificates necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business. In addition, Ryan D. Darrah is authorized to sign the CSFB Warrant (as defined below) on the date hereof on behalf of the Company.


-3-


ARTICLE 3
MEMBERSHIP AND CAPITAL


3.1 MEMBERS; UNITS. The Members of the Company shall be listed on SCHEDULE I hereto, as from time to time amended and supplemented in accordance with the provisions of this Agreement. The Members' Interests in the Company shall be represented by up to three separate classes (each a "CLASS") of units ("UNITS"). The Interest of each of Scott Watterson and Gary Stevenson shall be represented by "Class A Units." The Interest of each Bain Member and of each other Member (other than Scott Watterson or Gary Stevenson) as the Bain Members shall designate shall be represented by "Class B Units." The Interest of any other Member shall be represented by "Class C Units." Each Unit issued as of the Closing Date shall represent a Capital Contribution of one hundred dollars ($100). The holders of Class A Units and Class B Units shall have the voting rights specified in this Agreement. The holders of Class C Units shall not have any voting rights, except the right to vote in respect of certain proposed amendments, as more fully specified in Section 11.1. From and after the making by the Members of Capital Contributions to fund an investment other than the investment in HF Holdings to be made as of the Closing Date, the Units of the Company shall be segregated not only by Class, but also by investment so that the Units issued in respect of an investment shall represent only an interest in that investment (and the Short-Term Investments, if any, related thereto). The holders of Class A Units, Class B Units and Class C Units issued in respect of a particular investment shall be entitled to receive the Distributions and allocations of Net Profit and Net Loss (and other items treated as Net Profit and Net Loss pursuant to Sections 3.4 and 3.5) in respect of such investment as are specified in Article 5. For the sake of clarity, the Units issued in respect of the investment in HF Holdings on the Closing Date shall be designated the "HF Class A Units", the "HF Class B Units" and the "HF Class C Units."


3.2 CAPITAL CONTRIBUTIONS. Each Member shall contribute to the Company on the Closing Date the amount set forth opposite such Member's name on SCHEDULE I, as in effect as of the Closing Date, under the heading "CAPITAL CONTRIBUTIONS" and shall receive the number of HF Class A Units, HF Class B Units and/or HF Class C Units, as the case may be, set forth on SCHEDULE I. (For the treatment of the CSFB Warrant (defined below), see Section 3.7.) Following the Closing Date, the Administrative Members, with the approval of a Voting Majority, may issue Class A, B and/or C Units to such persons in exchange for such additional Capital Contributions as they determine to be appropriate. Promptly following the issuance of additional Units, the Administrative Members shall amend SCHEDULE I so that it sets forth, effective as of the date of the amendment, opposite each Member's name, under the heading "CAPITAL CONTRIBUTIONS", the total amount of Capital Contributions made by such Member to the Company on and after the Closing Date, and under the headings "CLASS A UNITS," "CLASS B UNITS" and "CLASS C UNITS," the number of Class A Units, Class B or Class C Units, respectively, held by such Member and the investments in respect of which such Units were issued.


-4-


3.3 CAPITAL ACCOUNTS. A separate account (each a "CAPITAL ACCOUNT") shall be established and maintained for each Member which shall be increased by (a) the amount of cash and the fair market value (as agreed upon by such Member and the Administrative Members, with the consent of a Voting Majority, at the time of contribution) of any other property contributed by such Member to the Company as a Capital Contribution (net of liabilities secured by such property or that the Company assumes or takes the property subject to), (b) such Member's share of the Net Profit of the Company and (c) amounts required to be credited to the Members' Capital Accounts in the same manner as Net Profit pursuant to Section 3.4 or 3.5, and shall be reduced by (d) the amount of cash and the fair market value (as agreed upon by such Member and the Administrative Members, with the consent of a Voting Majority, at the time of distribution) of any other property distributed to such Member (net of liabilities secured by such property or that the Member assumes or takes the property subject to), (e) such Member's share of the Net Loss of the Company and (f) amounts required to be credited to the Members' Capital Accounts in the same manner as Net Loss pursuant to Section 3.4 or Section 3.5. From and after the making by the Members (which term, for purposes of this sentence, shall not include the holder of any CSFB Warrant (defined below)) of Capital Contributions to fund an investment other than the investment in HF Holdings to be made as of the Closing Date, each Member's Capital Account shall be divided into two or more "Sub-Capital Accounts", and a separate Sub-Capital Account shall be maintained in the manner provided in the immediately preceding sentence for each investment (and the Short-Term Investments, if any, related thereto) in which the Member has an interest.


3.4 REVALUATIONS OF ASSETS AND CAPITAL ACCOUNT ADJUSTMENTS. Immediately preceding the issuance of additional Class A Units, Class B Units or Class C Units to a new or existing Member in exchange for cash or other contributions (other than in connection with the exercise of any CSFB Warrant (as defined below)), or upon the redemption of the Interest of a Member, the then prevailing Asset Values of the Company shall be adjusted to equal their respective gross fair market values, as determined in good faith by the Administrative Members, with the consent of a Voting Majority, and any increase in the net equity value of the Company (Asset Values less liabilities) shall be credited to the Capital Accounts (and the appropriate Sub-Capital Accounts) of the Members in the same manner as Net Profits are credited under Section 5.5.2 hereof (or any decrease in the net equity value of the Company shall be charged in the same manner as Net Losses are charged under Section 5.5.3). Accordingly, as of the date of issuance of additional Units or the redemption of all or a portion of a Member's Interest in the Company, the Capital Accounts (and the Sub-Capital Accounts) of Members will reflect both realized and unrealized gains and losses through such date and the net fair market value of the equity of the Company as of such date.


3.5 ADDITIONAL CAPITAL ACCOUNT ADJUSTMENTS. Any income of the Company that is exempt from federal income tax shall be credited to the Capital Accounts (and the appropriate Sub-Capital Accounts) of the Members in the same manner as Net Profits are credited under Section 5.5.2 when such income is realized. Any expenses or expenditures of the Company


-5-


which may neither be deducted or capitalized for tax purposes (or are so treated for tax purposes) shall be charged to the Capital Accounts (and the appropriate Sub-Capital Accounts) of the Members, in the same manner as Net Losses are charged under Section 5.5.3. If the Company makes an election under Section 754 of the Code to provide a special basis adjustment upon the transfer of an Interest in the Company or the distribution of property by the Company, Capital Accounts (and the appropriate Sub-Capital Accounts) shall be adjusted to the limited extent required by the Treasury Regulations under Section 704 following such transfer or distribution.


3.6 ADDITIONAL CAPITAL ACCOUNT PROVISIONS.


3.6.1 No Member shall have the right to demand a return of all
or any part of its Capital Contributions. Any return of the Capital
Contributions of any Member shall be made solely from the assets of the
Company and only in accordance with the terms of this Agreement. No
interest shall be paid to any Member with respect to its Capital
Contributions or Capital Account (or any Sub-Capital Account).


3.6.2 In the event that all or a portion of the Units of a
Member are transferred in accordance with the terms of this Agreement,
the transferee of such Units shall also succeed to all or the relevant
portion of the Capital Account (and the appropriate Sub-Capital
Accounts) of the transferor. Units held by a Member may not be
transferred independently of the interest in the capital of the Company
to which the Units relate.


3.6.3 No Member shall have any obligation to repay any deficit
balance in its Capital Account (or in any Sub-Capital Account).


3.7 OPTIONS, WARRANTS, ETC. The Administrative Members, with the approval of a Voting Majority, may issue options, warrants and other rights or interests in respect of the equity of the Company (each a "Right") to such persons, in exchange for such amounts of cash or other property, and having such terms, as the Administrative Members determine to be appropriate. By its signature to this Agreement, Bain, constituting a Voting Majority as of the date hereof, hereby approves the issuance as of the date hereof to Credit Suisse First Boston Management Corporation, a Delaware Corporation ("CSFB"), of a warrant for the purchase of fifty thousand (50,000) Class C Units having terms substantially identical to those set forth in the HF Class C Units Purchase Warrant attached hereto as EXHIBIT 2 (such warrant and any warrant issued to reflect a partial exercise or a transfer of a portion of such warrant, a "CSFB Warrant"). Upon the issuance of any Right, the Administrative Members shall set forth on SCHEDULE I the name of the holder of such Right and the terms of such Right. Upon the exercise of any CSFB Warrant, the holder thereof shall be deemed to have made a Capital Contribution equal to the sum of (i) the exercise price paid in connection with such exercise and (ii) the product of (A) five million dollars ($5,000,000) and (B) a fraction, the numerator of which is the number of HF Units received upon such exercise and the denominator of which is the sum of (I) the aggregate


-6-


number of HF Units for which all unexercised CSFB Warrants are exercisable and (II) the aggregate number of outstanding HF Units issued in connection with the exercise of any CSFB Warrants (for purposes of this clause II, adjusted to reflect any post-exercise distributions of additional HF Units in respect of HF Units, reclassifications by subdivision of outstanding HF Units, or reclassifications by combination of outstanding HF Units into a smaller number of HF Units). Such Capital Contribution shall be set forth on Schedule I.


...