-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EWV92t4x53vCLQmW+S11sGnNUERiyoIqeI6NDhwGl9gKDOrNed5Fsi74B53swP/Z BLq3ymitutwpIE74UNBJ/A== 0001144204-07-042533.txt : 20070813 0001144204-07-042533.hdr.sgml : 20070813 20070813164832 ACCESSION NUMBER: 0001144204-07-042533 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20070630 FILED AS OF DATE: 20070813 DATE AS OF CHANGE: 20070813 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Lincolnway Energy, LLC CENTRAL INDEX KEY: 0001350420 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860] IRS NUMBER: 201118105 STATE OF INCORPORATION: IA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-51764 FILM NUMBER: 071049620 BUSINESS ADDRESS: STREET 1: 59511 W. LINCOLN HIGHWAY CITY: NEVADA STATE: IA ZIP: 50201 BUSINESS PHONE: 515-203-0847 MAIL ADDRESS: STREET 1: 59511 W. LINCOLN HIGHWAY CITY: NEVADA STATE: IA ZIP: 50201 10-Q 1 v084132_10q.htm
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________

FORM 10-Q
________________
(Mark One)

x 
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2007
or

 o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________________ to _______________________

Commission File Number: 000-51764
____________________

LINCOLNWAY ENERGY, LLC
(Exact name of registrant as specified in its charter)
_____________________
 
Iowa
20-1118105
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
 
 
59511 W. Lincoln Highway, Nevada, Iowa
50201
(Address of principal executive offices)
(Zip Code)
 
 
515-382-8899
(Registrant's telephone number, including area code)

N/A
(Former name, former address and former fiscal year, if changed since last report)
______________________

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  x  Yes  o No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of "accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange Act (Check one):

Large accelerated filer o         Accelerated filer o      Non-accelerated filer x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). o Yes x No

Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date: 42,049 membership units outstanding at August 1, 2007.
 

 
LINCOLNWAY ENERGY, LLC
FORM 10-Q
For the Quarter Ended June 30, 2007

INDEX

     
Page
Part I. Financial Information
 
       
 
Item 1.
Unaudited Financial Statements
 
   
a) Balance Sheets
1-2
   
b) Statements of Operations
3-4
   
Statements of Cash Flows
5-6
   
Notes to Unaudited Financial Statements
7-12
       
 
Item 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations
13
 
Item 3.
Quantitative and Qualitative Disclosures About Market Risk
24
 
Item 4.
Controls and Procedures
27
       
Part II. Other Information
 
       
 
Item 1.
Legal Proceedings
28
 
Item 1A.
Risk Factors
28
 
Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
28
 
Item 3.
Defaults Upon Senior Securities
29
 
Item 4.
Submission of Matters to a Vote of Security Holders
30
 
Item 5.
Other Information
33
 
Item 6.
Exhibits
33
     
Signatures
 
     
Exhibits Filed With This Report
 
 
Articles of Restatement
E-1
 
Amended and Restated Operating Agreement and Unit Assignment Policy
E-3
 
Rule 13a-14(a) Certification of President and Chief Executive Officer
E-43
 
Rule 13a-14(a) Certification of Chief Financial Officer
E-44
 
Section 1350 Certification of President and Chief Executive Officer
E-45
 
Section 1350 Certification of Chief Financial Officer
E-46
 

 
PART I - FINANCIAL INFORMATION
 
Item 1. Unaudited Financial Statements.

         
           
Balance Sheets
         
           
 
 
June 30, 2007
 
September 30, 2006
 
   
(Unaudited)
 
ASSETS
             
               
CURRENT ASSETS
             
Cash and cash equivalents
 
$
3,953,533
 
$
4,731,873
 
Certificates of deposit
   
779,050
   
-
 
Derivative instruments, due from broker
   
2,449,736
   
701,448
 
Trade and other accounts receivable
   
2,260,286
   
4,472,238
 
Inventories
   
4,951,449
   
2,988,794
 
Prepaid expenses and other
   
99,056
   
157,053
 
Derivative financial instruments
   
16,240
   
1,313,212
 
Total current assets
   
14,509,350
   
14,364,618
 
               
PROPERTY AND EQUIPMENT
             
Land and land improvements
   
6,947,826
   
4,874,727
 
Buildings and improvements
   
1,465,615
   
1,385,202
 
Plant and process equipment
   
73,040,358
   
72,860,565
 
Construction in progress
   
280,037
   
1,190,762
 
Office furniture and equipment
   
331,991
   
544,620
 
     
82,065,827
   
80,855,876
 
Accumulated depreciation
   
(8,650,830
)
 
(2,685,179
)
     
73,414,997
   
78,170,697
 
               
OTHER ASSETS
             
Financing costs net of amortization of 2007 $69,722 and 2006 $37,543
   
402,240
   
434,419
 
Deposit
   
504,753
   
55,503
 
Investments
   
2,000
   
2,000
 
     
908,993
   
491,922
 
               
   
$
88,833,340
 
$
93,027,237
 
 
See Notes to Unaudited Financial Statements.  

1


 
 
June 30, 2007
 
September 30, 2006
 
   
(Unaudited)
 
LIABILITIES AND MEMBERS’ EQUITY
             
               
CURRENT LIABILITIES
             
Accounts payable
 
$
1,073,890
 
$
1,578,598
 
Accounts payable, related party
   
684,780
   
163,039
 
Current maturities of long-term debt
   
50,302
   
5,063,837
 
Accrued expenses
   
829,425
   
1,010,808
 
Derivative financial instruments
   
1,856,988
   
-
 
Total current liabilities
   
4,495,385
   
7,816,282
 
               
LONG-TERM DEBT, less current maturities
   
26,023,916
   
29,548,706
 
               
               
MEMBERS’ EQUITY
             
Member contributions, net of issuance costs, 42,049 and 42,859, respectively
units issued and outstanding
   
38,990,105
   
39,800,105
 
Retained earnings
   
19,323,934
   
15,862,144
 
     
58,314,039
   
55,662,249
 
               
   
$
88,833,340
 
$
93,027,237
 
 
2

 
 
Statements of Operations  
 
   
Three Months
 
Three Months
 
 
 
Ended
 
Ended
 
 
 
June 30, 2007
 
June 30, 2006
 
   
(Unaudited)
 
               
Revenues
 
$
32,674,730
 
$
10,910,199
 
               
Cost of goods sold
   
29,355,876
   
6,733,084
 
               
Gross profit
   
3,318,854
   
4,177,115
 
               
General and administrative expenses
   
798,041
   
829,824
 
               
Operating income
   
2,520,813
   
3,347,291
 
               
Other income (expense):
             
Grants
   
-
   
150,000
 
Interest income
   
138,331
   
9,165
 
Interest expense
   
(557,600
)
 
(310,957
)
Other
   
33,570
   
-
 
     
(385,699
)
 
(151,792
)
               
Net income
 
$
2,135,114
 
$
3,195,499
 
               
Weighted average units outstanding
   
42,076
   
42,209
 
               
Net income per unit - basic and diluted
 
$
50.74
 
$
75.71
 

See Notes to Unaudited Financial Statements.  
 
3

 
Lincolnway Energy, LLC  
 
Statements of Operations  
 
  
 
Nine Months
Ended
June 30, 2007
 
Nine Months
Ended
June 30, 2006
 
   
(Unaudited)
 
               
Revenues
 
$
89,616,396
 
$
10,910,199
 
               
Cost of goods sold
   
67,749,027
   
6,873,645
 
               
Gross profit
   
21,867,369
   
4,036,554
 
               
General and administrative expenses
   
2,283,580
   
1,412,902
 
               
Operating income
   
19,583,789
   
2,623,652
 
               
Other income (expense):
             
Grants
   
-
   
151,859
 
Interest income
   
371,092
   
38,942
 
Interest expense
   
(1,714,028
)
 
(311,281
)
Other
   
59,587
   
2,157
 
     
(1,283,349
)
 
(118,323
)
               
Net income
 
$
18,300,440
 
$
2,505,329
 
               
Weighted average units outstanding
   
42,598
   
42,102
 
               
Net income per unit - basic and diluted
 
$
429.61
 
$
59.51
 

See Notes to Unaudited Financial Statements.  
 
4


 
Statements of Cash Flows  
 
 
 
Nine Months
Ended
June 30, 2007
 
Nine Months
Ended
June 30, 2006
 
   
(Unaudited)
 
               
CASH FLOWS FROM OPERATING ACTIVITIES
             
Net income
 
$
18,300,440
 
$
2,505,329
 
Adjustments to reconcile net income to net cash provided by
             
(used in) operating activities:
             
Depreciation and amortization
   
6,009,201
   
804,669
 
Unrealized loss on risk management activities
   
2,307,210
   
425,913
 
Loss of disposal of property and equipment
   
107,390
       
Compensation expense issuance of membership units
   
-
   
303,750
 
Changes in working capital components:
             
(Increase) decrease in prepaid expenses and other
   
57,997
   
(38,390
)
(Increase) decrease in trade and other accounts receivable
   
2,211,952
   
(5,749,823
)
(Increase) in derivative instruments, due from broker
   
(1,748,288
)
 
(1,653,412
)
Decrease in derivative financial instruments
   
846,750
   
-
 
(Increase) in inventories
   
(1,962,655
)
 
(3,125,809
)
(Increase) in deposits
   
(449,250
)
 
(55,503
)
Increase (decrease) in accounts payable
   
(162,918
)
 
1,318,234
 
Increase in accounts payable, related party
   
521,741
   
-
 
Increase (decrease) in accrued expenses
   
(64,602
)
 
1,390,066
 
Net cash provided by (used in) operating activities
   
25,974,968
   
(3,874,976
)
               
CASH FLOWS FROM INVESTING ACTIVITIES
             
Purchase of property and equipment
   
(1,670,503
)
 
(48,134,783
)
Purchase of certificates of deposit
   
(779,050
)
 
-
 
Net cash (used in) investing activities
   
(2,449,553
)
 
(48,134,783
)
               
CASH FLOWS FROM FINANCING ACTIVITIES
             
Issuance of membership units
   
-
   
810,000
 
Repurchase of membership units
   
(810,000
)
 
-
 
Member distributions
   
(14,838,649
)
 
-
 
Payments for financing costs
   
-
   
(59,157
)
Proceeds from long-term borrowings
   
153,707
   
46,042,275
 
Payments on long-term borrowings
   
(8,808,813
)
 
(8,125
)
Net cash provided by (used in) financing activities
   
(24,303,755
)
 
46,784,993
 
               
Net (decrease) in cash and cash equivalents
   
(778,340
)
 
(5,224,766
)
               
CASH AND CASH EQUIVALENTS
             
Beginning
   
4,731,873
   
7,511,537
 
Ending
 
$
3,953,533
 
$
2,286,771
 
               
               
(Continued)
 
5


 
Statements of Cash Flows (Continued)  
 
 
 
Nine Months
Ended
June 30, 2007
 
Nine Months
Ended
June 30, 2006
 
 
 
(Unaudited) 
               
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
             
INFORMATION, cash paid for interest, net of amount capitalized
 
$
1,887,451
 
$
490,691
 
               
SUPPLEMENTAL DISCLOSURES OF NONCASH OPERATING
             
AND FINANCING ACTIVITIES
             
Construction in progress included in accounts payable
 
$
-
 
$
319,495
 
Capital lease obligation incurred for equipment
   
-
   
32,501
 
Compensation expense from issuance of membership units
   
-
   
303,750
 
Accrued interest converted to long-term debt
   
116,781
   
-
 
 
See Notes to Unaudited Financial Statements.  
    
6

 
Lincolnway Energy, LLC
 
Notes to Unaudited Financial Statements

 
Note 1.
Nature of Business and Significant Accounting Policies
 
Principal business activity: Lincolnway Energy, LLC (the Company), located in Nevada, Iowa, was formed in May 2004 to pool investors to build a 50 million gallon annual production dry mill corn-based ethanol plant. The Company began making sales on May 30, 2006 and became operational during the quarter ended June 30, 2006.

Basis of presentation and other information:

The consolidated balance sheet as of September 30, 2006 was derived from the Company’s audited balance as of that date. The accompanying financial statements as of and for the three and nine months ended June 30, 2007 and 2006 are unaudited and reflect all adjustments(consisting only of normal recurring adjustments) which are, in the opinion of management, necessary for a fair presentation of the financial position and operating results for the interim periods. These unaudited financial statements and notes should be read in conjunction with the audited financial statements and notes thereto, for the year ended September 30, 2006 contained in the Company’s Annual Report on Form 10-K. The results of operations for the interim periods presented are not necessarily indicative of the results for the entire year.

Use of estimates: The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Income taxes: The Company is organized as a partnership for federal and state income tax purposes and generally does not incur income taxes. Instead, the Company’s earnings and losses are included in the income tax returns of the members. Therefore, no provision or liability for federal or state income taxes has been included in these financial statements.

Earnings per unit: Basic and diluted earnings per unit have been computed on the basis of the weighted average number of units outstanding during each period presented.
 
7


Lincolnway Energy, LLC
 
Notes to Unaudited Financial Statements

 
Note 2.
Members’ Equity
 
The Company was formed on May 19, 2004. It was initially capitalized by the issuance of 1,924 membership units totaling $962,000 to the founding members of the Company. The Company has one class of membership units. A majority of the Board of Directors owns a membership interest in the Company. The Company is authorized to issue up to 45,608 membership units.

On April 4, 2007, the Company repurchased 810 membership units from the Company’s directors at a purchase price of $1,000 per unit pursuant to manager and member vote that was held at a special member meeting on April 3, 2007.

Income and losses are allocated to all members based on their pro rata ownership interest. All unit transfers are effective the last day of the month. Units may be issued or transferred only to persons eligible to be members of the Company and only in compliance with the provisions of the operating agreement.
 
Note 3.
Inventories
 
Inventories consist of the following as of:
 
   
June 30
2007
 
September 30
2006
 
           
Raw materials, including corn, coal, chemicals and supplies
 
$
2,389,005
 
$
1,356,456
 
Work in process
   
1,840,420
   
770,593
 
Ethanol and distillers grains
   
722,024
   
861,745
 
Total
 
$
4,951,449
 
$
2,988,794
 
 
8

 
Lincolnway Energy, LLC
 
Notes to Unaudited Financial Statements

 
Note 4.
Long-Term Debt
 
Long-term debt consists of the following:

   
June 30
2007
 
September 30 2006
 
               
Construction term loan. (A)
 
$
22,750,000
 
$
31,500,000
 
               
Construction/revolving term loan. (C)
   
-
   
-
 
               
Note payable to contractor, interest-only quarterly payments at 5% due through maturity date of November 2014, secured by real estate and subordinate to financial institution debt commitments. (B )
   
1,216,781
   
1,100,000
 
               
Note payable to contractor, unsecured, interest-only quarterly
             
payments at 4% due through maturity date of May 2021
   
1,250,000
   
1,250,000
 
               
Note payable to Iowa Department of Economic Development. (D)
   
280,000
   
300,000
 
               
Note payable to Iowa Department of Economic Development. (D)
   
100,000
   
100,000
 
               
Note payable to Iowa Department of Transportation. (E)
   
477,437
   
346,293
 
               
Capital lease obligation, due in monthly installments of $2,708, secured by the leased equipment.
   
-
   
16,250
 
     
26,074,218
   
34,612,543
 
Less current maturities
   
(50,302
)
 
(5,063,837
)
   
$
26,023,916
 
$
29,548,706
 
               

(A)
The Company has a construction and term loan with a financial institution. Borrowings under the term loan include a variable interest rate based on prime less .05%. The agreement requires 30 principal payments of $1,250,000 per quarter commencing in December 2006 through March 2014, with the final installment due May 2014. The agreement requires the maintenance of certain financial and nonfinancial covenants. Borrowings under this agreement are collateralized by substantially all of the Company’s assets. As of June 30, 2007 the Company has been allowed to make prepayments of $16,250,000 without any penalty.
 
(B)
The Company has a $1,100,000 subordinate note payable dated November 17, 2004 to an unrelated third party. Quarterly interest payments began on March 31, 2007. The third party allowed the Company to include the accrued interest of $116,781 through December 2006 into the principal of the note. Principal is due in full at the maturity on November 17, 2014.
 
         
 
9

 
Lincolnway Energy, LLC
 
Notes to Unaudited Financial Statements

 
(C)
The Company has a $10,000,000 construction/revolving term credit facility with a financial institution. Borrowings under the credit facility agreement include a variable interest rate based on prime less .05% for each advance under the agreement. Borrowings are subject to borrowing base restrictions as defined in the agreement. The credit facility and revolving credit agreement require the maintenance of certain financial and nonfinancial covenants. Borrowings under this agreement are collateralized by substantially all of the Company’s assets. There was no balance remaining as of June 30, 2007.

On July 3, 2007 the $351,000 revolving credit agreement was cancelled. This agreement was for the benefit of a letter of credit that was required by an unrelated third party to lease rail cars. An amendment was made to the lease agreement on June 19, 2007, that allowed the Company to purchase a certificate of deposit for $351,000 in lieu of the letter of credit.
 
(D)
The Company also has a $300,000 loan agreement and a $100,000 forgivable loan agreement with the Iowa Department of Economic Development (IDED). The $300,000 loan is noninterest-bearing and due in monthly payments of $2,500 beginning December 2006 and a final payment of $152,500 due November 2012. Borrowings under this agreement are collateralized by substantially all of the Company’s assets and subordinate to the above $39,000,000 financial institution debt and construction and revolving loan/credit agreements included in (A) and (C). The $100,000 loan is forgivable upon the completion of the ethanol production facility and the production of at least 50 million gallons of ethanol before the project completion date of October 31, 2008.

(E)
The Company entered into a $500,000 loan agreement with the Iowa Department of Transportation (IDOT) in February 2005. The proceeds were disbursed upon submission of paid invoices. Interest at 2.11% began accruing on January 1, 2007. Principal payments will be due semiannually through July 2016. The loan is secured by all rail track material constructed as part of the plan construction. The debt is subordinate to the above $39,000,000 financial institution debt and construction and revolving loan/credit agreements included in (A) and (C).
 
10


Lincolnway Energy, LLC
 
Notes to Unaudited Financial Statements

 
Note 5.
Related-Party Transactions
 
The Company has an agreement with the Heart of Iowa Coop (HOIC), a member of the Company, to provide 100% of the requirement of corn for use in the operation of the ethanol plant. The Company purchased corn totaling $17,190,822 and $44,291,460 for the three months and nine months ended June 30, 2007, respectively. There were $4,624,222 of corn purchases for the three months and nine months ended June 30, 2006. As of June 30, 2007, the Company has several corn cash contracts with HOIC, for a commitment of approximately $9,880,000. The contracts mature on various dates through September 2007. The Company also has made some miscellaneous purchases from HOIC (storage fees, fuel, propane and locomotive costs) amounting to $149,539 and $269,333 for the three months and nine months ended June 30, 2007, respectively. For the three months and nine months ended June 30, 2006, $97,647 and $118,571, respectively. As of June 30, 2007 the amount due to HOIC is $625,892.

The Company is also purchasing anhydrous ammonia from Prairie Land Cooperative, a member of the Company. Total purchases for the three months and nine months ended June 30, 2007 is $101,777 and $316,794 respectively. There were $28,864 of purchases made for the three months and nine months ended June 30, 2006. As of June 30, 2007 the amount due to Prairie Land Cooperative is $58,888. No formal purchase agreement has been executed between the parties.
 
Note 6.
Commitments and Major Customer
 
The Company has an agreement with an unrelated entity and major customer for marketing, selling, and distributing all of the ethanol produced by the Company. Under such pooling arrangements, the Company will pay the entity $.01 (one cent) per gallon for each gallon of ethanol sold. This agreement shall be effective until terminated by 45 days’ written notice. The agreement has an initial 12-month term through June 2007. The parties are currently negotiating a new agreement and are still operating under the terms of the existing agreement. For the three months and nine months ended June 30, 2007 the Company has expensed $131,865 and $374,751, respectively, under this agreement. There were $45,820 of expenses reported for the three months and nine months ended June 30, 2006. Revenues with this customer were $28,307,050 and $77,956,818 for the three months and nine months ended June 30, 2007. There were $10,054,864 of revenue reported for the three month and nine months ended June 30, 2006. Trade accounts receivable of $1,742,116 was due from the customer as of June 30, 2007.

The Company has an agreement with an unrelated entity for marketing, selling and distributing all of the distillers dried grains with solubles which are by-products of the ethanol plant. Under the agreement, the Company will pay the entity 2% of the plant price per ton actually received by the entity. The term of this agreement shall be for one year through June 2007. On June 1, 2007 the Company provided written notice of its election to terminate the agreement. The agreement requires not less than 90 days written notice and will therefore terminate effective September 1, 2007. The Company is in the process of negotiating an agreement with a new marketer. For the three months and nine months ended June 30, 2007, the Company has expensed $68,632 and $186,598, respectively, under this agreement. There were $11,842 expenses reported for the three months and nine months ended June 30, 2006. Revenues with this customer were $4,351,438 and $11,643,337 for  Lincolnway Energy, LLC three months and nine months ended June 30, 2007, respectively. There were $855,335 of revenue reported for the three months and nine months ended June 30, 2006. Trade accounts receivable of $258,574 was due from the customer as of June 30, 2007.

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Lincolnway Energy, LLC
 
Notes to Unaudited Financial Statements

 
The Company has an agreement with an unrelated party to provide the coal supply for the ethanol plant. The agreement includes the purchase of coal at a cost per ton and a transportation cost per ton as defined in the agreement. The cost is subject to price adjustments on a monthly basis. If the Company fails to purchase the minimum number of tons of coal for the calendar year 2007, the Company shall pay an amount per ton multiplied by the difference of the minimum requirement and actual quantity purchased. The agreement expires as of January 1, 2008. The purchase commitments at June 30, 2007 total $1,572,012. For the three months and nine months ended June 30, 2007, the Company has purchased $1,041,568 and $3,161,402, respectively, of coal. There were $605,984 of purchases reported for the three months and nine months ended June 30, 2006.

The Company has entered into one variable contract and one fixed contract with a supplier of denaturant. The variable contract is for a minimum purchase of 450,000 gallons at the national gasoline daily average plus $.27/usg. The term of the contracts is from May 1, 2007 through September 30, 2007. The fixed contract is for a minimum purchase of 540,000 gallons at a fixed rate of $1.77 per gallon. The term of the contract is from April 1, 2007 through September 30, 2007. The total purchase commitments at June 30, 2007 with the two contracts are $1,074,600. For the three months and nine months ended June 30, 2007, the Company purchased $904,604 and $2,678,613, respectively, of denaturant. There were $743,756 purchases reported for the three months and nine months ended June 30, 2006.
 
Note 7.
Risk Management
 
The Company’s activities expose it to a variety of market risks, including the effects of changes in commodity prices. These financial exposures are monitored and managed by the Company as an integral part of its overall risk management program. The Company’s risk management program focuses on the unpredictability of commodity markets and seeks to reduce the potentially adverse effects that the volatility of these markets may have on its operating results.

The Company maintains a risk management strategy that uses derivative instruments to minimize significant, unanticipated earnings fluctuations caused by market fluctuations. The Company’s specific goal is to protect the Company from large moves in the commodity costs.

To reduce price risk caused by market fluctuations, the Company generally follows a policy of using exchange-traded futures and options contracts to minimize its net position of merchandisable agricultural commodity inventories and forward purchases and sales contracts. Exchange traded futures and options contracts are designated as non-hedge derivatives and are valued at market price with changes in market price recorded in income through cost of goods sold. Cost of goods sold includes a combined unrealized and realized net gain (loss) of ($1,599,029) and $2,831,921 for the three months and nine months ended June 30, 2007, respectively, from derivative instruments, compared to ($501,881) and ($471,881) combined unrealized and realized net (loss) for the three months and nine months ended June 30, 2006, respectively. Unrealized gain (loss) of $2,402,375 and ($2,323,450) and net realized gain (loss) for the three and nine months ended June 30, 2007 of $(4,001,404) and $5,155,371, respectively, are included in cost of goods sold.  The combined unrealized and realized net (loss) for the three months and nine months ended June 30, 2006 was $(501,881) and $(471,881), respectively.  Unrealized gains and losses on forward contracts, in which delivery has not occurred, are deemed “normal purchases and normal sales” under FASB No 133, as amended, and therefore are not marked to market in the Company’s financial statements. As of June 30, 2007 the Company has outstanding commitments for 2,730,255 bushels of corn amounting to approximately $9,880,000 under cash contracts, in which the related commodity will be delivered through September 2007.

In April 2007, the Company started entering into derivative contracts to hedge their exposure to price risk as it relates to ethanol sales. Any realized or unrealized gain or loss related to these derivative instruments is recorded in the statement of operations as a component of revenue. For the three and nine months ended June 30, 2007 revenues included an unrealized gain of $16,240.
 
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Item 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations.

   Cautionary Statement on Forward Looking Statements

Various discussions and statements in this Item and other sections of this quarterly report are or contain forward looking statements that express Lincolnway Energy's current beliefs, projections and predictions about future events. All statements other than statements of historical fact are forward looking statements, and include statements with respect to financial results and condition; anticipated future trends in business, revenues or net income; projections concerning operations, capital needs and cash flow; investment, business, growth, expansion and acquisition opportunities and strategies; management's plans and intentions for the future; competitive position; and other forecasts, projections and statements of expectation. Words such as "expects," "anticipates," "estimates," "plans," "may," "will," "contemplates," "forecasts," "future," "strategy," "potential," "predicts," "projects," "prospects," "possible," "continue," "hopes," "intends," "believes," "seeks," "should," "could," "thinks," "objectives" and other similar expressions or variations of those words or those types of words help identify forward looking statements. Forward looking statements involve and are subject to various risks, uncertainties and assumptions. Forward looking statements are necessarily subjective and are made based on numerous and varied estimates, projections, views, beliefs, strategies and assumptions made or existing at the time of such statements and are not guarantees of future results or performance. Lincolnway Energy disclaims any obligation to update or revise any forward looking statements based on the occurrence of future events, the receipt of new information, or otherwise. Lincolnway Energy cannot guarantee Lincolnway Energy's future results, performance or business conditions, and strong reliance must not be placed on any forward looking statements.

Actual future performance, outcomes and results may differ materially from those suggested by or expressed in forward looking statements as a result of numerous and varied factors, risks and uncertainties, some that are known and some that are not, and many of which are beyond the control of Lincolnway Energy and Lincolnway Energy's management. It is not possible to predict or identify all of those factors, risks and uncertainties, but they include inaccurate assumptions or predictions by management, the accuracy and completeness of the publicly available information upon which part of Lincolnway Energy's business strategy is based and all of the various factors, risks and uncertainties discussed in this Item and in Item 1A of Part II of this quarterly report and the following:
 
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·
Overcapacity within the ethanol industry;
·
Actual ethanol, distillers grains and corn oil production varying from expectations;
·
Availability and costs of products and raw materials, particularly corn and coal;
·
Changes in the price and market for ethanol and distillers grains;
·
Lincolnway Energy's ability to market, and Lincolnway Energy's reliance on third parties to market, Lincolnway Energy's ethanol and distillers grains;
·
Railroad and highway access for receipt of corn and coal and outgoing ethanol and distillers grains;
·
Changes in or elimination of governmental laws, tariffs, trade or other controls or enforcement practices, such as national, state or local energy policy; federal or state ethanol tax incentives; or environmental laws and regulations that apply to Lincolnway Energy's plant operations and their enforcement;
·
Changes in the weather or general economic conditions impacting the availability and price of corn and coal;
·
Total U.S. consumption of gasoline;
·
Weather changes, strikes, transportation or production problems causing supply interruptions or shortages affecting the availability and price of coal;
·
Fluctuations in oil and gasoline prices;
·
Changes in plant production capacity or technical difficulties in operating Lincolnway Energy's plant;
·
Changes in Lincolnway Energy's business strategy, capital improvements or development plans;
·
Results of Lincolnway Energy's hedging strategies;
·
Changes in interest rates or the availability of credit;
·
Lincolnway Energy's ability to generate free cash flow to invest in Lincolnway Energy's business and service Lincolnway Energy's debt;
·
Additional ethanol plants being built in close proximity to Lincolnway Energy's ethanol plant in central Iowa;
·
Lincolnway Energy's liability resulting from any litigation;
·
Lincolnway Energy's ability to retain key employees and maintain labor relations;
·
Plant reliability;
·
Changes and advances in ethanol production technology; and
·
Competition from other ethanol suppliers and from alternative fuels and alternative fuel additives.
 
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Lincolnway Energy may have obtained industry, market and competitive position data used in this quarterly report from Lincolnway Energy's own research, internal surveys and from studies conducted by other persons, trade or industry associations or general publications and other publicly available information. A trade or industry association for the ethanol industry may present information in a manner that is more favorable to the ethanol industry than would be presented by an independent source. Independent industry publications and surveys also generally state that they have obtained information from sources believed to be reliable, but do not guarantee the accuracy and completeness of any information. Forecasts are in all events likely to be inaccurate, especially over long periods of time, and in particular in a relatively new and rapidly developing and expanding industry such as the ethanol industry.

Overview

Lincolnway Energy is an Iowa limited liability company that was organized on May 19, 2004 for the purpose of constructing and operating a corn based fuel grade ethanol plant in Nevada, Iowa. Lincolnway Energy has been engaged in the production of ethanol and distillers grains since May 22, 2006, and the ethanol plant has been fully operational since June 22, 2006. Lincolnway Energy anticipates producing approximately 50 million gallons of denatured ethanol during the fiscal year ending September 30, 2007.
 
Lincolnway Energy's revenues are derived from the sale and distribution of its ethanol and distillers grains throughout the United States and Mexico. Lincolnway Energy's ethanol is marketed by Renewable Products Marketing Group (RPMG). Lincolnway Energy's distillers grain is marketed by Commodity Specialists Company (CSC). The RPMG agreement is effective until terminated by 45 days written notice. The agreement has an initial 12-month term through June 2007. Lincolnway Energy is currently negotiating a new agreement and is still operating under the terms of the existing agreement. The CSC agreement is for one year through June 2007. On June 1, 2007, Lincolnway Energy provided written notice and will therefore terminate effective September 1, 2007. The agreement requires not less than 90 days written notice of its election to terminate the agreement. Lincolnway Energy is in the process of negotiating an agreement with a new marketer.

Lincolnway Energy expects to fund its operations during the next 12 months using cash flow from continuing operations. Lincolnway Energy also has revolving lines of credit which could serve as a source of operating funds.
 
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Since Lincolnway Energy only became operational in May 2006, Lincolnway Energy only has prior income, production, sales or other data for 38 days of the three and nine month periods ended June 30, 2006 which can be used for comparison purposes against the three and nine months ended June 30, 2007. This quarterly report accordingly does not include a comparison of Lincolnway Energy's financial results between those reporting periods, but the fact that Lincolnway Energy did not start producing ethanol until May 2006 must be kept in mind when making any comparison or review of Lincolnway Energy's performance during the three and nine months ended June 30, 2007 and the three and nine months ended June 30, 2006.

Plan of Operations

        Lincolnway Energy is currently working to evaluate numerous process improvements that have shown promise in small scale trials in hopes of improving our production efficiency. We continue to focus efforts on new technology from current industry suppliers, but are also starting to evaluate new ideas from new companies. We believe that our success will be based on our ability to be a low cost producer of high quality fuel ethanol. We will also work to capture as much value from our co-products as possible.

Lincolnway Energy has recently completed installation of a steam condensate separator that has helped reduce the amount of steam we need to produce. The steam separator has allowed us to make higher quality steam, which means we use less, and therefore reduces the amount of coal we need to use. We have also completed installation of the supplement air compressor. By adding this compressor we have enabled the air system to work as designed instead of operating at capacity all of the time.

        Air Permit Testing

Lincolnway Energy conducted a second stack emissions test in late June of 2007. We are currently awaiting the results of this test. This series of tests included a new test method developed by the United States Environmental Protection Agency for the purpose of more accurately testing emissions that are in the wet form when in the stack. Many operations that dry products as part of their process and use coal as an energy source have experienced difficulties in obtaining reproducible emissions test results. We are hopeful that this new method will give better results than our previous test. While awaiting test results we continue to work on our application to obtain a major source emitter permit. The compliance plan submitted to and approved by the Iowa Department of Natural Resources, in March 2007, calls for Lincolnway Energy to submit an application to be a major source emitter by September 28, 2007. At this time we are on schedule to submit our application by that date.
 
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                Water Permit Testing

Lincolnway Energy commissioned an addition to the iron removal system during the first week of July 2007. Early test results show that the system will allow us  Lincolnway Energy, LLC to remove sufficient iron to meet the requirements of our national pollutant discharge elimination (NPDES) permit. We are still working to adjust and fine tune the system and will continue to work to discharge the lowest level of iron we can. Test results from samples taken during the first two weeks of July show that we are now discharging water within our permit requirements. We will be filing our monthly report with the Iowa Department of Natural Resources later this month.

Analysis of Third Quarter and Nine Months Year to Date for 2007

As of June 30, 2007, Lincolnway Energy had the following assets: cash and cash equivalents of $3,953,533, current assets of $14,509,350 and total assets of $88,833,340. As of June 30, 2007, Lincolnway Energy had total current liabilities of $4,495,385 and long-term debt of $26,023,916. Members' equity was $58,314,039 as of June 30, 2007 and consisted of retained earnings of $19,323,934 and members' contributions, net of the cost of raising capital, of $38,990,105.

Total current assets increased from September 30, 2006 by $144,732. The increase was related to the increase in Lincolnway Energy's raw materials and finished goods inventory and derivative instruments offset by a decrease in trade and other accounts receivable and cash balances. As corn prices fluctuate, the values of Lincolnway Energy’s derivative instruments are impacted.

Total current liabilities decreased from September 30, 2006 by $3,320,897. The decrease was primarily related to the decrease in the current portion of long-term debt due to early loan payments of $1,250,000 and $3,750,000 made in October 2006 and January 2007, respectively. The decrease was offset with an increase of derivative financial instruments liability.

Total long-term debt, net of current maturities, decreased from September 30, 2006 by $3,524,790. The reduction is a result of payments made on Lincolnway Energy's construction term loan and other subordinate debt.
 
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Revenues increased by, respectively, $21,764,531 and $78,706,197, for the three months ended June 30, 2007 and the nine months ended June 30, 2007 when compared to those same three and nine month periods in 2006. The increase, however, is the result of the fact that the ethanol plant did not start production until May 22, 2006, so there were minimal sales of ethanol and distillers grain during the three months ended June 30, 2006 and the nine months ended June 30, 2006. For the three and nine months ended June 30, 2007, ethanol sales comprised approximately 87% of Lincolnway Energy's sales, with the remaining 13% resulting from sales of distillers grain. Revenues increased by $3,801,229 from the second quarter ended March 31, 2007 compared to the third quarter ended June 30, 2007. This is a result of an increase of approximately 975,000 gallons of ethanol sold and an approximate 3% increase in ethanol price per gallon for the quarter ended June 30, 2007. Distiller grain sales and prices were also higher during the third quarter ended June 30, 2007, when compared to the second quarter ended March 31, 2007.

Revenues include an unrealized gain of $16,240 for the three and nine months ended June 30, 2007 related to our ethanol derivative instruments. Lincolnway Energy did not hold any ethanol derivative instruments in the three and nine months ended June 30, 2006. As ethanol prices fluctuate, the value of our ethanol-related derivative instruments are impacted, which affects our financial performance. Lincolnway Energy expects the volatility in these derivative instruments to continue to have an impact on our revenues due to the timing of the changes in value of derivative instruments relative to our sales. These instruments are the primary tools of our risk management program for ethanol revenues.

Ethanol prices increased during the quarter ended June 30, 2007. The average gross price for the three months and nine months ended June 30, 2007 was $2.15 and $2.08, respectively.

Lincolnway Energy depends on its ethanol marketer, Renewable Products Marketing Group (RPMG), to find buyers for its ethanol at commercially reasonable prices. The industry is anticipating increased ethanol production to come on-line in the 3rd and 4th calendar quarter of 2007. While global tensions and strong worldwide economic growth keep the energy prices high, the ethanol market is going through some growing pains associated with slowly developing infrastructure and blending capacity. Unless the new supply is equally met with increased demand, downward pressure on ethanol prices could occur. If ethanol prices start to decline, our earnings will also decline, particularly if corn costs rise again.

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Cost of goods sold increased by, respectively, $22,622,792 and $60,875,382, for the three months and nine months ended June 30, 2007, when compared to those same three and nine month periods in 2006. The increase, however, is again the result of the fact that the ethanol plant did not start production until May 22, 2006, so there was minimal cost of goods sold during the three months ended June 30, 2006 and the nine months ended June 30, 2006. Costs of goods sold increased by $2,967,957 from the second quarter ended March 31, 2007 compared to the third quarter ended June 30, 2007. This is primarily a result of the increased production of approximately 826,000 gallons of ethanol.  This increased corn cost due to additional bushels processed and other production costs.  There was also a 6% increase in ethanol freight cost and an additional cost for the quarter ending June 30, 2007 for the physical inventory valuation adjustment compared to the quarter ended March 31, 2007.   Cost of goods sold major components are: corn costs, process chemicals, denaturant, coal costs, electricity, production labor, repairs and maintenance, and depreciation. Corn costs constituted Lincolnway Energy's single largest cost for the three months and the nine months ended June 30, 2007. Corn costs for those periods were, respectively, $17,751,265 and $42,975,528, which consisted of 4,651,544 and 12,814,086 bushels of corn at an approximate average gross cost before hedging transactions of $3.82 and $3.35 per bushel, respectively. Cost of goods sold includes a combined unrealized and realized net gain (loss) of ($1,599,029) and $2,831,921 for the three months and nine months ended June 30, 2007, respectively, from derivative instruments, compared to ($501,881) and ($471,881) combined unrealized and realized net (loss) for the three months and nine months ended June 30, 2006, respectively. Lincolnway Energy's derivative contracts are marked to market each quarter. The benefits of this risk management tool can cause corn costs to be volatile from quarter to quarter due to the timing of the change in value of the positions relative to the cost and use of the corn commodity being hedged.
 
The corn market spent much of the 2nd calendar quarter in a sideways trading range, with July futures unable to move much beyond 20 cents either side of $3.75. This changed in the middle of June when dry weather threatened the crop and enticed strong speculative buying, driving futures up to a high of $4.26. When rain materialized and the U.S. farmer began heavily selling their old crop, the speculative traders were forced to liquidate and the market quickly dropped over $1.00 per bushel, to an end of the month low of $3.23. On June 29, 2007, the United States Department of Agriculture released revised estimates of 2007 corn acres. They increased their March estimate of 90.454 million acres by nearly 2.5 million acres to 92.88 million acres. With an increased yield forecast along with the acreage increase, the carry out for the 2007-08 crop year is in a comfortable position, compared to prior quarter forecasts.

General and administrative expenses (decreased) increased by ($31,783) and $870,678 for the three and nine months ended June 30, 2007, respectively, when compared to the three and nine months ended June 30, 2006. The increase for the nine month comparison is due to additional payroll costs, professional fees, board compensation, business promotion and insurance costs incurred upon commencement of production.

Other nonoperating expense increased by $233,907 and $1,165,026 for the three months and nine months ended June 30, 2007, respectively, when compared to the three and nine months ended June 30, 2006. The net effect of this increase is due to an increase of interest expense of $246,643 and $1,402,747, respectively, offset somewhat by an increase in interest income. Interest expense increased for the three and nine months ended June 30, 2007 due to the majority of interest costs for the three and nine months ended June 30, 2006 were being capitalized as part of the plant construction costs and were not included in the statement of operations, until the plant commenced operations.  Interest income increased as a result of higher cash balances since the ethanol plant became operational.

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Critical Accounting Estimates and Accounting Policies

Lincolnway Energy's financial statements are prepared in conformity with accounting principles generally accepted in the United States of America and follow general practices within the industries in which Lincolnway Energy operates. This preparation requires management to make estimates, assumptions, and judgments that affect the amounts reported in the financial statements and accompanying notes. These estimates, assumptions and judgments are based on information available as of the date of the financial statements; accordingly, as this information changes, actual results could differ from the estimates, assumptions, and judgments reflected in the financial statements. Certain policies inherently have a greater reliance on the use of estimates, assumptions, and judgments and, as such, have a greater possibility of producing results that could be materially different than originally reported. Management believes the following policies are both important to the portrayal of Lincolnway Energy's financial condition and results of operations and require subjective or complex judgments; therefore, management considers the following to be critical accounting policies.
 
Derivative Instruments

Lincolnway Energy enters into derivative contracts to hedge its exposure to price risk related to forecasted corn needs and forward corn purchase contracts. Lincolnway Energy does not typically enter into derivative instruments other than for hedging purposes. All the derivative contracts are recognized on the June 30, 2007 balance sheet at their fair market value. Although Lincolnway Energy believes its derivative positions are economic hedges, none has been designated as a hedge for accounting purposes. Accordingly, any realized or unrealized gain or loss related to these derivative instruments is recorded in the statement of operations as a component of cost of goods sold. In April 2007, Lincolnway Energy started entering into derivative contracts to hedge their exposure to price risk as it relates to ethanol sales. Any realized or unrealized gain or loss related to these derivative instruments is recorded in the statement of operations as a component of revenue.

During the three months and nine months ended June 30, 2007, Lincolnway Energy had combined net realized and unrealized gain (loss) of ($1,599,029) and $2,831,921, respectively. Unrealized gain (loss) of $2,402,375 and ($2,323,450) and net realized gain (loss) for the three and nine months ended June 30, 2007 of $(4,001,404) and $5,155,371, respectively, are included in cost of goods sold. The combined unrealized and realized net (loss) for the three months and nine months ended June 30, 2006 was $(501,881) and $(471,881), respectively. Unrealized gains and losses on forward contracts, in which delivery has not occurred, are deemed "normal purchases and normal sales" under FASB Statement No. 133, as amended, and therefore are not marked to market in Lincolnway Energy's financial statements. As of June 30, 2007, Lincolnway Energy had outstanding commitments for 2,730,255 bushels of corn amounting to approximately $9,880,000 under cash contracts which will be delivered on various dates through September 2007.

Liquidity and Capital Resources

Lincolnway Energy substantially completed construction of its ethanol plant and began operations on May 22, 2006.

For the nine months ended June 30, 2007, cash provided by operating activities was $25,974,968, compared to cash (used in) operating activities of $(3,874,976) for the nine months ended June 30, 2006. The increase is due to the commencement of operations and production of ethanol in May 2006, which resulted in increased revenues and net income.

Cash flows used in investing activities reflect the impact of property and equipment acquired for the ethanol plant. Net cash used in investing activities decreased by $45,685,230 for the nine months ended June 30, 2007, when compared to the nine months ended June 30, 2006. The decrease is a result of decreased expenditures for plant construction costs.

Cash flows from financing activities include transactions and events whereby cash is obtained from, or paid to, depositors, creditors or investors. Net cash provided by financing activities decreased by $71,088,748 for the nine months ended June 30, 2007, when compared to the nine months ended June 30, 2006. The decrease is primarily due to a decrease in borrowings for the ethanol plant construction of $45,888,568, payment of member distributions of $14,838,649 and payment of long-term debt of $8,808,813.

Lincolnway Energy expects to have available cash to meet its currently anticipated liquidity needs.
 
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Lincolnway Energy has a construction and term loan with Co-Bank. The interest rate under the term loan is a variable interest rate based on the prime rate less .05%. The loan requires 30 principal payments of $1,250,000 per quarter commencing in December 2006 through March 2014, with the final installment due in May 2014. The loan requires the maintenance of certain financial and nonfinancial covenants. The borrowings under the loan are collateralized by substantially all of Lincolnway Energy's assets. The loan also includes certain prepayment penalties, but as of June 30, 2007, Lincolnway Energy had been allowed to make prepayments of $16,250,000 without any penalty.

Lincolnway Energy also has a $10,000,000 construction/revolving term credit facility. The interest rate under the credit facility agreement is a variable interest rate based on the prime rate less .05%. Borrowings are subject to borrowing base restrictions as defined in the agreement. The credit facility requires the maintenance of certain financial and nonfinancial covenants. The borrowings under the agreement are collateralized by substantially all of Lincolnway Energy's assets. The construction/revolving term credit facility has a commitment fee on the average daily unused portion of the commitment at a rate of ½ of 1% per annum, payable monthly. The agreement also includes certain prepayment penalties. There was no balance remaining as of June 30, 2007.

Lincolnway Energy executed a mortgage in favor of Co-Bank creating a first lien on substantially all of its assets, including the real estate and ethanol plant and all personal property located on its property for the loan and credit agreements discussed above. As of July 31, 2007, the balance remaining on Lincolnway Energy's construction loan was $22,750,000, and there was no loan outstanding under Lincolnway Energy's construction/revolving term credit agreement.

Lincolnway Energy also has subordinated debt financing of approximately $3,250,000, which includes a subordinated note of $1,250,000 payable to Fagen, Inc., with an interest rate of 4%, and a $1,216,781 note payable to Fagen, Inc., with an interest rate of 5%. Principal is due in full at maturity on November 17, 2017. Lincolnway Energy also entered into a $500,000 loan agreement with the Iowa Department of Transportation in February 2005. Under the agreement, the loan proceeds were disbursed upon submission of paid invoices and interest at 2.11% per annum began to accrue on January 1, 2007. Payments began on July 1, 2007. Lincolnway Energy also has a $300,000 loan agreement and a $100,000 forgivable loan agreement with the Iowa Department of Economic Development. The $300,000 loan does not impose any interest, and the $100,000 loan is forgivable upon the completion of Lincolnway Energy's ethanol plant and the production of at least 50 million gallons of ethanol before the project completion date of October 31, 2008. As of July 31, 2007, Lincolnway Energy had made payments totaling $22,500 on the Iowa Department of Economic Development $300,000 loan agreement and $22,563 on the Iowa Department of Transportation agreement.

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Lincolnway Energy entered into an agreement with an unrelated entity on March 3, 2006 to lease railcars. The 5 year term of the agreement will end in March 2011. The agreement required a $351,000 letter of credit facility as partial security for Lincolnway Energy's obligations under the agreement. The letter of credit facility was funded through the $4,000,000 revolving credit agreement, and is effective until May 1, 2007. The other party to the agreement may, however, require Lincolnway Energy to extend the letter of credit facility beyond that date. On April 11, 2007, the $4,000,000 revolving credit agreement was reduced to $351,000, the amount of the above mentioned letter of credit. On July 3, 2007 the $351,000 revolving credit agreement was cancelled because an amendment was made to the lease agreement on June 19, 2007, that allowed Lincolnway Energy to purchase a certificate of deposit for $351,000 in lieu of the letter of credit. The deposit will mature on June 20, 2008 and will be automatically renewed. Interest will be paid to Lincolnway Energy on a quarterly basis.

Distribution to Members and Unit Buyback

The board of Lincolnway Energy declared a distribution to members on May 23, 2007. The distribution was in the amount of $200 per unit, and was payable to members of record on May 23, 2007. The distribution was paid on June 5, 2007. Lincolnway Energy had 42,049 outstanding units on May 23, 2007.

Lincolnway Energy repurchased 810 membership units from Lincolnway Energy’s directors on April 4, 2007, at a purchase price of $1000 per unit, for an aggregate of $810,000.

Off-balance Sheet Arrangements

Lincolnway Energy has the following contractual commitments that could have a current or future effect on Lincolnway Energy's financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.

Lincolnway Energy has an agreement with the Heart of Iowa Cooperative (HOIC), a member of Lincolnway Energy, to provide 100% of Lincolnway Energy's requirements for corn for use in the operation of the ethanol plant. The agreement became effective when Lincolnway Energy began accepting corn for use at the ethanol plant in May 2006 and may continue for a period of 20 years. Lincolnway Energy paid a handling fee of $.075 per bushel of corn purchased and delivered by HOIC through July 23, 2007, at which time the handling fee was reduced to $.0675 per bushel. If Lincolnway Energy chooses to buy corn that is not elevated by HOIC, and is outside a 60-mile radius of Nevada, Iowa, Lincolnway Energy will be required to pay HOIC $.03 per bushel of corn. The agreement also provides for the use of certain grain handling assets owned by HOIC, although Lincolnway Energy purchased its own locomotive in July 2007 and is therefore no longer utilizing HOIC's locomotive. The agreement may be terminated by Lincolnway Energy or HOIC before the end of the term by providing six months' notice of termination and paying the other party $2,000,000, reduced by $50,000 for each completed year of the agreement. The amount is payable over four years with interest at the prime rate on the date of termination.
 
22

 


Lincolnway Energy purchased corn from HOIC totaling $17,190,822 and $44,291,460 for the three months and nine months ended June 30, 2007, respectively. There were $4,624,222 of corn purchases for the three months and nine months ended June 30, 2006. As of June 30, 2007, Lincolnway Energy had several corn contracts with HOIC, for a commitment of approximately $9,880,000. The contracts mature on various dates through September 2007. Lincolnway Energy also made some miscellaneous purchases from HOIC (storage fees, fuel, propane and locomotive costs) amounting to $149,539 and $269,333 for the three months and nine months ended June 30, 2007, respectively, compared to $97,647 and $118,571 for the three months and nine months ended June 30, 2006. As of June 30, 2007, the amount due to HOIC was $625,892.

Lincolnway Energy has an agreement with an unrelated party to provide the coal supply for the ethanol plant. The agreement includes the purchase of coal at a fixed price per ton subject to certain specified adjustments, including based on the quality of the coal and inflation type measures and a transportation cost per ton as defined in the agreement. The cost is subject to price adjustments on a monthly basis. If Lincolnway Energy fails to purchase the minimum number of tons of coal for calendar year 2007, Lincolnway Energy is required to pay an amount per ton multiplied by the difference of the minimum requirement and the actual quantity purchased. The agreement expires as of January 1, 2008. Lincolnway Energy purchased $1,041,568 and $3,161,402, respectively, of coal during the three months and nine months ended June 30, 2007. There were $605,984 purchases reported for the three months and nine months ended June 30, 2006. The purchase commitments at June 30, 2007 total $1,572,012.

As of July 31, 2007, Lincolnway Energy had one variable contract and one fixed contract with a supplier of denaturant. The variable contract requires a minimum purchase of 450,000 gallons at the national gasoline daily average price plus $.27/usg. The term of the contracts is from May 1, 2007 through September 30, 2007. The fixed contract requires a minimum purchase of 540,000 gallons at a fixed rate of $1.77 per gallon. The term of the contract is from April 1, 2007 through September 30, 2007. The total purchase commitments at June 30, 2007 with the two contracts are $1,074,600. Lincolnway Energy purchased $904,604 and $2,678,613, respectively, of denaturant during the three months and nine months ended June 30, 2007. There were $743,756 purchases reported for the three months and nine months ended June 30, 2006.

23

 

 
Item 3.
Quantitative and Qualitative Disclosures About Market Risk.

 
In addition to the various risks inherent in Lincolnway Energy's operation, Lincolnway Energy is exposed to various market risks. The primary market risks arise as a result of possible changes in interest rates and certain commodity prices.

 
Interest Rate Risk

 
Lincolnway Energy has various outstanding loan agreements and promissory notes which expose Lincolnway Energy to market risk related to changes in the interest rate imposed under those loan agreements and promissory notes.

 
Lincolnway Energy has loan agreements and/or promissory notes with the following entities, and with the principal balance and interest rates indicated:

Lender
Principal Balance
as of June 30, 2007
Interest Rate as of
June 30, 2007
Co-Bank
$22,750,000
8.2%
Other
3,324,218
various fixed rates
 
$26,074,218
     

 
The interest rate under all of the loan agreements and promissory notes, other than with CoBank, are fixed, and range from 0% to 5%. The interest rate under all of the CoBank loan agreements is a variable interest rate based on CoBank's prime rate less .05%.

 
A hypothetical increase of 1% in the interest rate under the CoBank loan agreements would result in additional interest expense of approximately $227,500 annually.

24

 

 
 
Commodity Price Risk

 
Lincolnway Energy is also exposed to market risk with respect to the price of ethanol, which is Lincolnway Energy's principal product, and the price and availability of corn and coal, which are the principal commodities used by Lincolnway Energy to produce ethanol. The other primary product of Lincolnway Energy is distillers grains, and Lincolnway Energy is also subject to market risk with respect to the price for distillers grains. The prices for ethanol, distillers grains, corn and coal are volatile, and Lincolnway Energy will experience market conditions where the prices Lincolnway Energy receives for its ethanol and distillers grains are declining, but the price Lincolnway Energy pays for its corn, coal and other inputs is increasing. Lincolnway Energy's results will therefore vary substantially over time, and include the possibility of losses, which could be substantial.

 
In general, rising ethanol and distillers grains prices result in higher profit margins, and therefore represent favorable market conditions. Lincolnway Energy is, however, subject to various material risk factors related to production of ethanol and distillers grains and the price for ethanol and distillers grains. For example, ethanol and distillers grains prices are influenced by various factors beyond the control of Lincolnway Energy's management, including the supply and demand for gasoline, the availability of substitutes and the effects of laws and regulations.

 
In general, rising corn prices result in lower profit margins and, accordingly, represent unfavorable market conditions. Lincolnway Energy will generally not be able to pass along increased corn costs to its ethanol customers. Lincolnway Energy is subject to various material risk factors related to the availability and price of corn, many of which are beyond the control of Lincolnway Energy. For example, the availability and price of corn is subject to wide fluctuations due to various unpredictable factors, including weather conditions, crop yields, farmer planting decisions, governmental policies with respect to agriculture, and local, regional, national and international trade, demand and supply.

 
Lincolnway Energy's average gross corn costs during the three and nine months ended June 30, 2007 was, respectively, approximately $3.82 and $3.35 per bushel.

 
During the quarter ended June 30, 2007, corn prices (based on the Chicago Board of Trade daily futures data) ranged from a low of $3.23 per bushel to a high of $4.26 per bushel for July 2007 delivery. As another comparison, delivery month futures ranged from a low of $1.86 per bushel in December 2005 to a high of $4.37 per bushel in February 2007.
 
25

 

 
 
All of Lincolnway Energy's ethanol is marketed by Renewable Products Marketing Group under a pooled marketing arrangement, which means that the ethanol Lincolnway Energy produces is pooled with other ethanol producers and marketed by Renewable Products Marketing Group. Lincolnway Energy pays Renewable Products Marketing Group a pooling fee for ethanol delivered to the pool and Renewable Products Marketing Group pays Lincolnway Energy a net back price per gallon that is based on the difference between the pooled average delivered ethanol selling price and the pooled average distribution expense. These averages are calculated based upon each pool participant's selling price and expense averaged in direct proportion to the volume of ethanol supplied by each participant to the pool. As of July 31, 2007, Lincolnway Energy has entered into over the counter ethanol swaps to lock in a weighted average price of $1.84 per gallon for 300,000 gallons per month for October, November and December 2007 and 242,000 gallons per month for January, February and March 2008. The 1,626,000 gallons subject to the over the counter ethanol swap represents approximately 3.25% of name plate production. Lincolnway Energy anticipates entering into additional swaps in the near future.

 
Lincolnway Energy may from time to time take various cash, futures, options or other positions with respect to its corn needs in an attempt to minimize or reduce Lincolnway Energy's price risks related to corn. Those activities are, however, also subject to various material risks, including that price movements in the cash and futures corn markets are highly volatile and are influenced by many factors and occurrences which are beyond the control of Lincolnway Energy.

 
As of July 31, 2007, Lincolnway Energy had cash, futures and options contract price protection in place for approximately 15% of Lincolnway Energy's approximate 18,000,000 million bushels of corn usage, which would cover Lincolnway Energy corn needs through September 2007.

 
Although Lincolnway Energy intends its futures and option positions to accomplish an economic hedge against Lincolnway Energy's future purchases of corn and ethanol, Lincolnway Energy has chosen not to use hedge accounting for those positions, which would match the gain or loss on the positions to the specific commodity purchase being hedged. Lincolnway Energy is instead using fair value accounting for the positions, which generally means that as the current market price of the positions changes, the realized and unrealized gains and losses are immediately recognized in Lincolnway Energy's costs of goods sold and revenues in the statement of operations. The immediate recognition of gains and losses on those positions can cause net income to be volatile from quarter to quarter due to the timing of the change in value of the positions relative to the cost and use of the commodity being hedged. For example, Lincolnway Energy's net gain on corn derivative financial instruments that was included in its cost of goods sold for the nine months ended June 30, 2007 was $2,831,921, as opposed to $515,300 for the year ended September 30, 2006.
 
26

 


 
The extent to which Lincolnway Energy may enter into arrangements with respect to its ethanol or corn during the year may vary substantially from time to time based on a number of factors, including supply and demand factors affecting the needs of customers to purchase ethanol or suppliers to sell Lincolnway Energy raw materials on a fixed basis, Lincolnway Energy's views as to future market trends, seasonable factors and the cost of futures contracts.

 
Another important raw material for the production of Lincolnway Energy's ethanol is coal, and coal costs represented approximately 4% and 5%, respectively, of Lincolnway Energy's total cost of goods sold for the three and nine months ended June 30, 2007. Lincolnway Energy is currently operating with a fixed price contract for coal, subject to certain adjustments, including adjustments based on the quality of the coal, increases in transportation costs and inflation type measures. The contract runs through December 31, 2007. Lincolnway Energy's costs for coal may vary more substantially upon the expiration of that contract.

Item 4.
Controls and Procedures.

 
Evaluation of Disclosure Controls and Procedures

 
Lincolnway Energy's management, under the supervision and with the participation of Lincolnway Energy's president and chief executive officer and Lincolnway Energy's chief financial officer, have evaluated the effectiveness of Lincolnway Energy's disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this quarterly report. Based on that evaluation, Lincolnway Energy's president and chief executive officer and Lincolnway Energy's chief financial officer have concluded that, as of the end of the period covered by this quarterly report, Lincolnway Energy's disclosure controls and procedures have been effective to provide reasonable assurance that the information required to be disclosed in the reports Lincolnway Energy files or submits under the Securities Exchange Act of 1934 is (i) recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission's rules and forms, and (ii) accumulated and communicated to management, including Lincolnway Energy's principal executive and principal financial officers or persons performing such functions, as appropriate, to allow timely decisions regarding disclosure. Lincolnway Energy believes that a control system, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the control system are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected.
 
27

 

 
 
Changes in Internal Control Over Financial Reporting

 
No change in Lincolnway Energy's internal control over financial reporting occurred during the period covered by this quarterly report that has materially affected, or is reasonably likely to materially affect, Lincolnway Energy's internal control over financial reporting.
 
PART II - OTHER INFORMATION

Item 1.
Legal Proceedings.

 
As of the date of this quarterly report, Lincolnway Energy was not aware of any material pending legal proceeding to which Lincolnway Energy was a party or of which any of Lincolnway Energy's property was the subject, other than ordinary routine litigation, if any, that was incidental to Lincolnway Energy's business. As of the date of this quarterly report, Lincolnway Energy was not aware that any governmental authority was contemplating any proceeding against Lincolnway Energy or any of Lincolnway Energy's property that has not been previously reported by Lincolnway Energy. Lincolnway Energy is in the process of applying for a permit to be a major source emitter as described in Item 2 of Part I of this quarterly report.

Item 1A.
Risk Factors.

 
There has been no material change from the risk factors as previously disclosed in Lincolnway Energy's Form 10-K for the fiscal year ended September 30, 2006 and filed with the Securities and Exchange Commission on December 21, 2006.

 
An investment in any membership units of Lincolnway Energy involves a high degree of risk and is a speculative and volatile investment. An investor could lose all or part of his or her investment in any membership units.

Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds.

Lincolnway Energy did not sell any membership units during the period of April 1, 2007 through June 30, 2007.

The following table provides information regarding Lincolnway Energy's purchases of its membership units from members during the period of April 1, 2007 through June 30, 2007.
 
28

 


ISSUER PURCHASES OF EQUITY SECURITIES
Period
 
Total Number
of Units
Purchased1
 
Average Price
Paid per Unit
 
 Total Number of
Units
Purchased as
Part of Publicly
Announced
Plans or
Programs2
 
Maximum
Number (or
Approximate
Dollar Value) of
Units that May
Yet Be
Purchased Under
the Plans or
Programs2
 
Month #1 (April 1, 2007-April 30, 2007)
   
810
 
$
1,000
   
-0-
   
-0-
 
Month #2 (May 1, 2007 May 31, 2007)
   
-0-
   
N/A
   
-0-
   
-0-
 
Month #3, (June 1, 2007-June 30, 2007)
   
-0-
   
N/A
   
-0-
   
-0-
 
Total
   
810
 
$
1,000
   
-0-
   
-0-
 
 
 
1
All of the units were offered to Lincolnway Energy by the then directors of Lincolnway Energy and were purchased by Lincolnway Energy from those directors pursuant to the approval of the members of Lincolnway Energy at a special meeting of the members held on April 3, 2007.

 
2
Lincolnway Energy does not have any publicly announced plans or programs with respect to repurchases of its units.


Item 3.
Defaults Upon Senior Securities.

 
There has been no material default in the payment of principal, interest, a sinking or purchase fund installment, or any other material default not cured within thirty days, with respect to any indebtedness of Lincolnway Energy exceeding 5% of the total assets of Lincolnway Energy.

 
No material arrearage in the payment of dividends or any other material delinquency has occurred with respect to any class of preferred membership units of Lincolnway Energy which is registered or which ranks prior to any class of registered membership units of Lincolnway Energy.
 
29

 

 
Item 4.
 Submission of Matters to a Vote of Security Holders.

Annual Meeting

The annual meeting of the members of Lincolnway Energy was held on April 3, 2007. The only matters voted upon by the members at the annual meeting were the election of three directors for Lincolnway Energy and the ratification of the appointment Lincolnway Energy's independent auditor for the fiscal year ending September 30, 2007.

 
Lincolnway Energy has nine directors, divided into three classes based upon the length of their term. Each director is elected to a three-year term and until his or her successor is elected, and the terms of the directors are staggered so that the term of three of the directors expire each year.

 
The three directors whose term was to expire at the annual meeting were David Eggers, David Hassebrock and Jim Hill.

 
There were eight nominees for the three director positions. A nominee needed to receive the vote of the members holding at least a majority of the units represented at the annual meeting in order to be elected as a director. The only nominee who received the necessary vote was Jim Hill, and he was elected to serve as a director until the annual meeting of the members which will be held in 2010 and until his successor is elected and qualified.

 
The number of votes cast for, against or withheld, and the number of abstentions and broker non-votes, with respect to the eight nominees for election as a director at the annual meeting was as follows:
 
 
Name
 
 
For
 
Against
or Withheld
 
 
Abstentions
 
Broker
Non-Votes
 
                   
Franklin Codel
   
8,279
   
-
   
-
   
-
 
David Eggers
   
14,605
   
-
   
-
   
-
 
Lad Grove
   
5,294
   
-
   
-
   
-
 
David Hassebrock
   
12,478
   
-
   
-
   
-
 
Jim Hill
   
17,156
   
-
   
-
   
-
 
Richard Johnson
   
15,663
   
-
   
-
   
-
 
Kurt Olson
   
16,429
   
-
   
-
   
-
 
Perry Ritland
   
7,975
   
-
   
-
   
-
 
 
30

 

 
 
The directors whose term of office continued after the annual meeting of the members were William Couser, Jeff Taylor, Timothy Fevold, Terrill Wycoff, Brian Conrad, Rick Vaughan, David Eggers and David Hassebrock. David Eggers and David Hassebrock continued as directors because, as indicated above, no nominee received the necessary vote of the members to fill the director positions held by them.

 
The only other proposal voted upon by the members at the annual meeting was the ratification of McGladrey & Pullen, LLP as Lincolnway Energy's independent auditor for the fiscal year ending September 30, 2007. The proposal was approved by the necessary vote of the members, and the number of votes cast for, against or withheld, and the number of abstentions and broker non-votes, regarding the proposal was as follows:

 
For
 
Against
or Withheld
 
 
Abstentions
 
Broker
Non-Votes
             
25,073
 
3038
 
1176
 
-

 
April 3, 2007 Special Meeting

 
A special meeting of the members of Lincolnway Energy was also held on April 3, 2007. The meeting was held for the purpose of voting on whether Lincolnway Energy should repurchase 810 units from the directors of Lincolnway Energy for an aggregate purchase price of $810,000. The proposal was approved by the necessary vote of the members, and the number of votes cast for, against or withheld, and the number of abstentions and broker non-votes, regarding the proposal was as follows:

 
For
 
Against
or Withheld
 
 
Abstentions
 
Broker
Non-Votes
             
26,598
 
3,781
 
550
 
-
 
 
May 2, 2007 Ballot Vote on Election of Directors

 
As indicated above, three director positions needed to be filled at the April 3, 2007 annual meeting of the members, but only one nominee received the necessary vote to be elected as a director at the annual meeting. The two director positions that were not filled were held by David Eggers and David Hassebrock. A vote on the election of the two director positions which were not filled at the annual meeting was taken by ballot pursuant to a proxy statement that was first mailed to the members on or about April 17, 2007. Ballots were accepted by Lincolnway Energy until 3:00 p.m. on May 2, 2007.

31

 

 
           There were six nominees for the two director positions. A nominee needed to receive the vote of the members holding at least a majority of the units represented by the returned ballots in order to be elected as a director. No nominee received the necessary vote, so neither of the two director positions were filled pursuant to the voting by ballots which was concluded on May 2, 2007. The number of votes cast for, against or withheld, and the number of abstentions and broker non-votes, with respect to the six nominees for election as a director was as follows:

 
Name
 
 
For
 
Against
or Withheld
 
 
Abstentions
 
Broker
Non-Votes
 
                   
Franklin Codel
   
5,777
   
-
   
-
   
-
 
David Eggers
   
12,240
   
-
   
-
   
-
 
David Hassebrock
   
11,660
   
-
   
-
   
-
 
Lad Grove
   
980
   
-
   
-
   
-
 
Richard Johnson
   
15,696
   
-
   
-
   
-
 
Kurt Olson
   
14,843
   
-
   
-
   
-
 

 
The other directors whose term of office as a director continued after the vote were William Couser, Jeff Taylor, Timothy Fevold, Terrill Wycoff, Brian Conrad, Rick Vaughan, Jim Hill, David Eggers and David Hassebrock. David Eggers and David Hassebrock continued as directors because, as indicated above, no nominee received the necessary vote to fill the director positions held by them.

 
June 20, 2007 Special Meeting

 
A special meeting of the members of Lincolnway Energy was held on June 20, 2007, but ballots for the two proposals that were presented to the members were accepted by Lincolnway Energy until 3:00 p.m. on June 29, 2007. The two proposals voted upon by the members at the special meeting were a proposal to approve and adopt articles of restatement for Lincolnway Energy and a proposal to approve and adopt an amended and restated operating agreement for Lincolnway Energy. Both of the proposals were approved by the necessary vote of the members.

 
The number of votes cast for, against or withheld, and the number of abstentions and broker non-votes, as to the approval and adoption of the articles of restatement was as follows:
 
32

 

 
For
 
Against
or Withheld
 
Abstentions
 
Broker
Non-Votes
             
24,533
 
435
 
334
 
-
 
The number of votes cast for, against or withheld, and the number of abstentions and broker non-votes, as to the approval and adoption of the amended and restated operating agreement was as follows:

For
 
Against
or Withheld
 
Abstentions
 
Broker
Non-Votes
             
24,408
 
460
 
434    
 
-

Item 5.
Other Information.

There was no information required to be disclosed in a report on Form 8-K during the period of April 1, 2007 through June 30, 2007 which was not reported on a Form 8-K.

 
There were no material changes during the period of April 1, 2007 through June 30, 2007 to the procedures by which the members of Lincolnway Energy may recommend nominees to Lincolnway Energy's board of directors. 

Item 6.
Exhibits.

The following exhibits are filed as part of this quarterly report. Exhibits previously filed are incorporated by reference, as noted.
 
               
Incorporated by Reference
Exhibit
Number
 
Exhibit Description
 
Filed Herewith;
Page Number
 
Form
 
Period
Ending
 
Exhibit
 
Filing
Date
3.1
 
Articles of Restatement
 
E-1
         
3.1
   
3.2
 
Amended and Restated Operating Agreement and Unit Assignment Policy
 
E-3
         
3.2
   
 
33

 

 
*10.1
 
Design/Build Contract Between Lincolnway Energy, LLC and Fagen, Inc.
     
10
     
10.1
 
1/27/06
10.2
 
Master Loan Agreement Between Lincolnway Energy, LLC and Farm Credit Services of America
     
10
 
 
 
10.2
 
1/27/06
10.3
 
Construction and Term Loan Supplement Between Lincolnway Energy, LLC and Farm Credit Services of America
     
10
     
10.3
 
1/27/06
10.4
 
Construction and Revolving Term Loan  Supplement Between Lincolnway Energy, LLC and Farm Credit Services of America
     
10
     
10.4
 
1/27/06
10.5
 
Loan Agreement Between Lincolnway Energy, LLC and Iowa Department of Transportation
     
10
     
10.5
 
1/27/06
10.6
 
Ethanol Fuel Marketing Agreement Between Lincolnway Energy, LLC and Renewable Products Marketing Group
     
10
     
10.6
 
1/27/06
10.7
 
Distillers Grain Marketing Agreement Between Lincolnway Energy, LLC and Commodity Specialist Company
     
10
     
10.7
 
1/27/06
10.8
 
Coal/Energy Consulting Agreement Between Lincolnway Energy, LLC
And U.S. Energy
     
10
     
10.8
 
1/27/06
*10.9
 
Coal Supply Agreement Between Lincolnway Energy, LLC and William Bulk Transfer, Inc.
     
10
     
10.9
 
1/27/06
10.10
 
Loan Agreement Between Lincolnway Energy, LLC and Iowa Department of
Economic Development
     
10
     
10.10
 
1/27/06
 
34

 

 
10.11
 
Amended and Restated Grain Handling Agreement Between Lincolnway Energy, LLC and Heart of Iowa Cooperative
     
10
     
10.11
 
1/27/06
10.13
 
Industry Track Contract Between Lincolnway Energy, LLC and Union Pacific Railroad
     
10-Q
 
6/30/06
 
10.13
 
8/14/06
31.1
 
Rule 13a-14(a) Certification of President and Chief Executive Officer
 
E-43
               
31.2
 
Rule 13a-14(a) Certifica-tion of Chief Financial Officer
 
E-44
               
32.1
 
Section 1350 Certification of President and Chief Executive Officer
 
E-45
               
32.2
 
Section 1350 Certification of Chief Financial Officer
 
E-46
               
 
*
Material has been omitted pursuant to a request for confidential treatment and such material has been filed separately with the Securities and Exchange Commission.
 
35

 

 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
LINCOLNWAY ENERGY, LLC
     
August 13, 2007
By:
/s/ Richard Brehm
 
Name:
Richard Brehm
 
Title:
President and Chief Executive Officer
     
August 13, 2007
By:
/s/ Kim Supercynski
 
Name:
Kim Supercynski
 
Title:
Chief Financial Officer

36

 

 
EXHIBIT INDEX

Exhibits Filed With Form 10-Q
of Lincolnway Energy, LLC
For the Quarter Ended June 30, 2007

Description of Exhibit.
Page
         
 
3.1
Articles of Restatement
E-1
         
 
3.2
Amended and Restated Operating Agreement and Unit Assignment Policy
E-3
         
 
31.
Rule 13a-14(a)/15d-14(a) Certifications
 
         
   
31.1
Rule 13a-14(a) Certification of President and Chief Executive Officer
E-43
         
   
31.2
Rule 13a-14(a) Certification of Chief Financial Officer
E-44
         
 
32.
Section 1350 Certifications
 
         
   
32.1
Section 1350 Certification of President and Chief Executive Officer
E-45
         
   
32.2
Section 1350 Certification of Chief Financial Officer
E-46
 
37

 
EX-3.1 2 v084132_ex3-1.htm
 
EXHIBIT 3.1

ARTICLES OF RESTATEMENT
OF
LINCOLNWAY ENERGY, LLC

TO THE SECRETARY OF STATE
OF THE STATE OF IOWA:

Pursuant to Section 490A.1102 of the Iowa Limited Liability Company Act, Lincolnway Energy, LLC, an Iowa limited liability company, adopts the following restated articles of organization:

ARTICLE I

The name of the limited liability company is Lincolnway Energy, LLC (the "Company").

ARTICLE II

The street address of the Company's registered office in Iowa is 700 Walnut St., Suite 1600, Des Moines, Iowa 50309, and the name of the Company's registered agent at that office is Wade H. Schut.

ARTICLE III

The street address of the principal office of the Company is 59511 W. Lincoln Highway, Nevada, Iowa 50201.

ARTICLE IV

The Company shall have perpetual duration.

ARTICLE V

The management of the Company shall be vested in its managers, who shall be elected or appointed in the manner described in the Operating Agreement of the Company. No member of the Company is an agent of the Company for the purpose of its business or affairs or otherwise. No manager's, member's or any other person's act shall bind the Company except as may be expressly authorized by the Operating Agreement of the Company.

ARTICLE VI

A manager of the Company shall not be personally liable to the Company or to its members for money damages for any action taken, or any failure to take action, as a manager, except for liability for any of the following: (i) the amount of a financial benefit received by a manager to which the manager is not entitled, (ii) an intentional infliction of harm on the Company or its members, (iii) a violation of Section 490A.807 of the Iowa Limited Liability Company Act, or (iv) an intentional violation of criminal law.

E-1

 
If the Iowa Limited Liability Company Act or other applicable law is hereafter amended to authorize the additional or further elimination of or limitation on the liability of managers, then the liability of a manager of the Company, in addition to the elimination of and limitation on personal liability provided herein, shall be eliminated and limited to the extent of such amendment, automatically and without any further action, to the fullest extent permitted by law. Any repeal or modification of this Article, the Iowa Limited Liability Company Act or other applicable law shall be prospective only, and shall not adversely affect any elimination of or limitation on the personal liability or any other right or protection of a manager of the Company with respect to any state of facts existing at or prior to the time of such repeal or modification.

Dated this 29th day of June, 2007.
 
 
By:
/s/ William Couser
 
Name:
William Couser
 
Title:
Manager
 
E-2

 
 
EX-3.2 3 v084132_ex3-2.htm
EXHIBIT 3.2

AMENDED AND RESTATED OPERATING AGREEMENT
OF
LINCOLNWAY ENERGY, LLC

THIS AMENDED AND RESTATED OPERATING AGREEMENT ("Agreement") is made and entered into as of the date set forth above the signatures to this Agreement, by and among the Members (as that term is defined in Section 1) of Lincolnway Energy, LLC (the "Company").

WHEREAS the Members desire to enter into this Agreement to regulate the affairs of the Company, the conduct of its business and the relations of its Members, with this Agreement to amend the existing Operating Agreement of the Company dated as of May 19, 2004 (the "Original Operating Agreement") by replacing and superseding the Original Operating Agreement in its entirety.

NOW, THEREFORE, in consideration of the foregoing recital and the mutual agreements set forth in this Agreement, the Members agree as follows:


ARTICLE 1
  DEFINITIONS

1.1 Definitions. The following terms shall have the following meanings for purposes of this Agreement:

(a) Additional Members. The term "Additional Members" means, collectively, any Persons who are issued Units (as that term is defined below) and are admitted as a Member pursuant to the procedures set forth in Section 9.4 at any time after the date of this Agreement, other than any Substitute Members. The term "Additional Member" means any one of the Additional Members.

(b) Adjusted Capital Account. The term "Adjusted Capital Account" means, with respect to each Member, the Member's Capital Account (as that term is defined below) as adjusted by the items described in Sections 1.704-2(g)(1), 1.704-2(i)(5) and 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations (as that term is defined below).

(c) Agreement. The term "Agreement" means this Amended and Restated Operating Agreement, as the same may be amended or restated from time to time in accordance with this Agreement.

(d) Articles of Organization. The term "Articles of Organization" means the articles of organization or the restated articles of organization, as the case may be, of the Company, as the same may be amended or restated from time to time in accordance with this Agreement.

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(e) Capital Account. The term "Capital Account" means, with respect to each Member, the capital account of the Member at the particular time in question, as maintained and adjusted up to the particular time in question pursuant to Section 7.2.

(f) Capital Contribution. The term "Capital Contribution" means any cash, property or other forms of consideration acceptable to the Directors (as that term is defined below), which a Member contributes to the Company in the capacity of a Member, whenever the same be made.

(g) Code. The term "Code" means the United States Internal Revenue Code of 1986, as amended from time to time, or corresponding provisions of subsequent superseding United States federal revenue laws.

(h) Directors. The term "Directors" means, collectively, the directors elected or appointed from time to time in the manner provided in this Agreement. The term "Director" means any one of the Directors, or, if there is only one Director, the sole Director. As provided in Section 4.16, the Directors are synonymous with, and shall be deemed for all purposes to be the same as, "managers" for purposes of the Iowa Act (as that term is defined below) and the Articles of Organization.

(i) Fiscal Year. The term "Fiscal Year" means the Company's fiscal year, which shall be from the first day of October to the last day of September.

(j) Iowa Act. The term "Iowa Act" means the Iowa Limited Liability Company Act, Chapter 490A of the Code of Iowa, as amended or redesignated from time to time.

(k) Members. The term "Members" means, collectively, the Persons who are, at the particular time in question, the record holders of the outstanding Units. The term "Member" means any one of the Members, or, if there is only one Member, the sole Member.

(l) Net Losses. The term "Net Losses" means, for each Fiscal Year, the net losses and deductions of the Company determined in accordance with generally accepted accounting principles consistently applied from year to year employed under the cash or accrual method of accounting, as determined by the Directors, and as reported, separately or in the aggregate, as appropriate, on the Company's information tax return filed for United States federal income tax purposes, plus any expenditures not deductible in computing the Company's taxable income and not properly chargeable to Capital Accounts under the Code, less any income of the Company which is exempt from United States federal income tax under the Code. The Company may determine Net Losses utilizing the cash method or the accrual method of accounting, as determined by the Directors, and the Directors may determine to utilize one method for tax purposes of the Company and another for financial and/or other purposes. The determination of Net Losses shall not include any Regulatory Allocations (as that term is defined below).

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(m) Net Profits. The term "Net Profits" means, for each Fiscal Year, the net income and gains of the Company determined in accordance with generally accepted accounting principles consistently applied from year to year employed under the cash or accrual method of accounting, as determined by the Directors, and as reported, separately or in the aggregate, as appropriate, on the Company's information tax return filed for United States federal income tax purposes, plus any income of the Company which is exempt from United States federal income tax under the Code, less any expenditures not deductible in computing the Company's taxable income and not properly chargeable to Capital Accounts under the Code. The Company may determine Net Profits utilizing the cash method or the accrual method of accounting, as determined by the Directors, and the Directors may determine to utilize one method for tax purposes of the Company and another for financial and/or other purposes. The determination of Net Profits shall not include any Regulatory Allocations.

(n) Person. The term "Person" means and includes natural persons and any firm, general partnership, limited partnership, limited liability company, limited liability limited partnership, limited liability partnership, corporation, joint venture, trust, cooperative, association and any other legal entity of whatever nature, including public or governmental bodies, agencies or instrumentalities.

(o) Regulatory Allocations. The term "Regulatory Allocations" means the allocations pursuant to Sections 8.1(b), (c), (d) and (e).

(p) Substitute Member. The term "Substitute Member" means any Person who is an assignee of a Unit and who has been admitted as a Member with respect to such Unit pursuant to the procedures set forth in Section 9.2.

(q) Treasury Regulations. The term "Treasury Regulations" means the Income Tax Regulations, including temporary regulations, promulgated under the Code, as such regulations may be amended from time to time.

(r) Units. The term "Units" means the capital units of the Company. The term "Unit" means any one of the capital units of the Company.

Other terms which are utilized in this Agreement may be defined in other sections of this Agreement.

ARTICLE 2
PURPOSE OF THE COMPANY

The Company has the purpose of engaging in, and has the authority to engage in, any lawful activity.

ARTICLE 3
CERTIFICATES FOR UNITS

3.1 Certificates for Units. Units may be issued with or without certificates as determined and authorized by the Directors from time to time. Any certificates which are issued for Units shall be in such form as the Directors shall prescribe. All Units and all interests represented thereby shall in all events be issued and held upon and subject to all of the terms and conditions of applicable law and this Agreement, including Sections 9.1 and 9.2, and the Directors may require that any certificates which are issued to evidence any Units shall bear a legend to such effect, in addition to any other legends as the Directors may require.

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3.2 Execution of Certificates. All certificates for Units shall be numbered in the order in which they shall be issued and shall be signed by any two Directors or by the Chairman or the President and the Secretary of the Company. The signature of a Director or of the Chairman, the President or the Secretary upon a certificate may be by facsimile. In the event any individual who has signed or whose facsimile signature has been placed upon a certificate for Units shall have ceased to be a Director or the Chairman, the President or the Secretary, as the case may be, of the Company before the certificate is issued, the certificate may be issued by the Company with the same effect as if the individual were a Director or the Chairman, the President or the Secretary, as the case may be, of the Company at the date of issue of the certificate.

3.3 Cancellation. Every certificate surrendered to the Company for exchange or transfer shall be canceled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 3.4; provided, however, that the Directors may authorize the issuance of Units without certificates in exchange for any surrendered and canceled certificate. Every certificate surrendered to the Company for transfer shall be properly endorsed for transfer.

3.4 Lost, Destroyed, or Mutilated Certificates. In the event of the loss, theft or destruction of any certificate for any Unit, another may be issued in its place pursuant to such regulations as the Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of satisfactory indemnity or bonds of indemnity.

3.5  Unit Record and Ownership. A record shall be kept by the Company of the names and addresses of all Members and the number of Units held by each Member, and if the Units are represented by certificates, the respective dates thereof, and in case of cancellation, the respective dates of cancellation. The Person in whose name Units stand on the books of the Company shall be deemed to be the record holder and owner of such Units and the Member with respect to such Units for all purposes as regards the Company.

3.6 Transfers of Units. Transfers of Units shall be made only on the books of the Company by the record holder thereof, or by such holder's attorney thereunto authorized by power of attorney duly executed and filed with the Company, and on surrender of the certificate or certificates for such Units, if any, properly endorsed and the payment of all transfer taxes thereon, if any. All Units and all interests represented thereby shall in all events be transferable only upon and subject to all of the terms and conditions of applicable law and this Agreement, including Sections 9.1 and 9.2.

3.7 Regulations. The Directors may make such other rules and regulations as the Directors may deem necessary or appropriate concerning the issue, transfer and registration of Units, so long as such rules and regulations are not inconsistent with the Articles of Organization, this Agreement or applicable law.

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ARTICLE 4
RIGHTS AND DUTIES OF DIRECTORS; OFFICERS

4.1 Qualifications and General Powers of the Directors. Subject only to Section 4.15, the business and affairs of the Company shall be managed under the direction of the Directors. No Director is required to be a Member, an officer or employee of the Company, or a resident of the State of Iowa. No Director may delegate to any Person the Director's rights and powers to manage and control the business and affairs of the Company, except only as provided in Sections 4.12 and 4.13 with respect to the appointment of officers for the Company and the establishment of committees, and except that the Directors may cause the Company to enter into such management, consulting, advisory, employment or other agreements as the Directors may determine from time to time, and on such terms and conditions as are determined by the Directors.

Without limiting the generality of the foregoing, the Directors shall have the power and authority, on behalf of the Company, to exercise all powers of the Company under Section 490A.202 of the Iowa Act, including:

(a) to employ or otherwise retain the services of such agents, employees, general managers, accountants, attorneys, consultants, experts and other Persons as the Directors determine to be necessary or appropriate to carry out the business and affairs of the Company from time to time, whether or not any such Persons are a Director, a Member or an officer of the Company or are affiliated with or related to any Director, Member or officer, all upon terms satisfactory to the Directors, and to pay such fees, salaries, wages and other compensation to such Persons from the funds of the Company as the Directors shall determine from time to time;

(b) to pay, extend, renew, modify, adjust, contest, submit to arbitration, prosecute, defend, settle or compromise, upon such terms as the Directors may determine and upon such evidence as the Directors may deem sufficient, any obligation, suit, liability, cause of action, claim, counterclaim or other dispute, including taxes, either in favor of or against the Company;

(c) to pay any and all fees and to make any and all other expenditures which the Directors deem necessary or appropriate to, or in connection with, the business and affairs of the Company;

(d) to offer and sell Units, debt or other securities of the Company, and in connection with the offer and sale of any Units, debt or other securities of the Company the Directors may (i) prepare and file, or cause to be prepared and filed, one or more offering statements or registration statements and related or other documentation, and all such amendments and supplements thereto as the Directors shall deem advisable from time to time, with the Securities and Exchange Commission, the National Association of Securities Dealers, Inc. and/or any other domestic or foreign authorities for the registration, offering and sale of the Units, debt or other securities of the Company in the United States or elsewhere, and along with one or more offering memorandums, offering circulars, prospectuses or other disclosure documents, and all amendments and supplements to any thereto; (ii) register or otherwise qualify the Units, debt or other securities for offering and sale under the blue sky and securities laws of such states of the United States and other domestic or foreign jurisdictions as the Directors shall deem advisable; (iii) make all such arrangements for the offering and sale of the Units, debt or other securities of the Company as the Directors shall deem appropriate, whether pursuant to a registration of the Units, debt or other securities or otherwise, and (iv) take all such action with respect to the matters described in the preceding subclauses (i) through (iii) as the Directors shall deem advisable or appropriate;

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(e) to take all such action as the Directors deem necessary or appropriate to avoid the requirement that the Company register as an investment company, a broker-dealer or any other form of regulated entity under any applicable foreign, federal, state or local law, rule, regulation or order, or, if so determined by the Directors, to take all such action as the Directors deem necessary or appropriate to cause the Company to be registered or licensed under any such law, rule, regulation or order and to otherwise bring the Company in compliance with any such law, rule or regulation or order;

(f) to conduct and direct the banking business of the Company and to invest any funds of the Company that are not required for or are otherwise not committed to the conduct of the Company's business from time to time in such manner as the Directors may from time to time determine, including in certificates of deposit, commercial paper, treasury bills, sweep accounts, and other investments;

(g) to negotiate, enter into, execute, acknowledge and deliver any and all contracts, agreements, licenses, documents or instruments which the Directors from time to time determine are necessary or appropriate to the business, affairs or purposes of the Company, and with such Persons as the Directors shall from time to time determine and whether or not any such Persons are a Director, a Member or an officer of the Company or are affiliated with or related to any Director, Member or officer, including subscription agreements for Units, debt or other securities of the Company; checks, drafts, notes and other negotiable instruments; mortgages or deeds of trust; security agreements; financing statements; documents providing for the acquisition, mortgage or disposition of any or all of the Company's assets and properties; assignments; bills of sale; leases; partnership agreements; and all other contracts, agreements, instruments or documents necessary or appropriate, in the judgment of the Directors, to the business, affairs or purposes of the Company;

(h) to pay any and all taxes, charges and assessments that may be levied, assessed or imposed upon the Company or any of the assets or properties of the Company, or to contest any such taxes, charges or assessments;

(i) to acquire any assets or properties from any Person as the Directors may determine and on such terms as are determined by the Directors, and the fact that such Person is a Director, a Member or an officer of the Company or that a Director, a Member or an officer is directly or indirectly affiliated or connected with any such Person shall not prohibit the Directors from dealing with that Person;

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(j) to borrow money for the Company from banks, insurance companies or other financial or lending institutions, a Director, a Member, an officer of the Company, an affiliate of a Director, a Member or an officer or from any other Person, all on such terms as the Directors deem appropriate, and in connection therewith, to mortgage, encumber and grant security interests in any or all of the assets and properties of the Company to secure repayment of the borrowed sums;

(k) to purchase liability and other insurance to protect the Company's assets, property and business or any other potential obligations or liabilities of the Company, including obligations and liabilities arising under Article 11;

(l) to hold and own any Company real estate or personal property in the name of the Company;

(m) to conduct or operate any of the Company's business or affairs by, through or in connection with any subsidiary or affiliate of the Company, and to organize, and to make capital contributions or loans to, any such subsidiary or affiliate;

(n) to establish and maintain a reserve or fund, in such amounts and at such times as are determined by the Directors, for the purpose of the possible purchase of Units by the Company;

(o) to cause the Company to, at any time and from time to time, redeem or repurchase any or all of the Units of any Member or Members, on such terms as are determined by the Directors;

(p) to make all determinations and decisions which are reserved to the Directors, or which are otherwise to be made by the Company, under this Agreement, including the declaration and payment of distributions to the Members pursuant to Section 8.2; and

(q) to do and perform any and all other acts and things whatsoever as the Directors shall from time to time determine to be necessary or appropriate to carry out any of the foregoing or any other term or condition of this Agreement or of the Articles of Organization or the Iowa Act, or to the conduct or operation of the Company's business, affairs or purposes from time to time, and not inconsistent with applicable law, the Articles of Organization or this Agreement.

4.2 Number of and Election of Directors; Terms of Office. The number of Directors shall be not less than seven nor more than thirteen, with the exact number within such range to be determined and established from time to time by the Members. In the absence of a specific resolution by the Members, the number of Directors shall be nine.

Subject to Section 4.10, the Directors shall be elected by the Members at the annual meeting of the Members. Subject again to Section 4.10, each Director shall serve until the third annual meeting of the Members which follows the annual meeting at which he or she was elected and until his or her successor shall have been elected and shall have qualified, or until his or her death or resignation or removal in accordance with this Agreement.

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The Directors shall be divided into three classes based on their term of office, with each class to be as nearly equal in number as possible. The term of each of the individuals serving in one class of the Directors shall expire each year at the annual meeting of the Members for that year, and each individual elected by the Members to succeed that class of the Directors shall be elected to serve until the third annual meeting of the Members which follows the annual meeting at which such individual was elected and until his or her successor shall have been elected and shall have qualified, or until his or her death or resignation or removal in accordance with this Agreement.

Any vacancy occurring in any Director position (including by the Members increasing the number of Directors) shall be filled in the manner provided in Section 4.10.

In the event the Members decrease the number of Directors, the Directors shall designate the class of Directors from which such decrease shall occur, but with each class to be as nearly equal in number as possible following such decrease in the number of Directors. No decrease in the number of Directors shall have the effect of terminating or shortening the term of any then incumbent Director.

4.3 Nominations for Directors. The Directors, or a nominating committee established by the Directors, shall prepare a list of nominees for each Director position to be filled at the next annual meeting of the Members. The Directors may, pursuant to agreement with any Person, permit such Person to designate a nominee or nominees for election as a Director.

Any Member or Members owning at least five percent of the outstanding Units may also nominate any individual (including any such Member) for election as a Director at the next annual meeting of the Members by submitting a written nomination petition to the Company in a form provided by the Company (the "Nomination Petition") and signed by such Member or Members; provided, however, that (i) the Nomination Petition must be fully completed and received at the principal office of the Company no sooner than the October 1, but not later than the November 30, which precedes the annual meeting in question, or, if another period is expressly and affirmatively required by applicable law, rule or regulation, within the time period required by such law, rule or regulation; (ii) the nominee must submit a signed written statement in a form provided by the Company (the "Nominee Statement") wherein the nominee shall, among other things, agree that the nominee will serve as a Director if elected and will prepare, execute and/or file all such reports and documents, and provide the Company with all such information, as may be necessary or appropriate in order for the Company to comply with all applicable laws, rules and regulations, including the Securities Exchange Act of 1934 and all rules and regulations promulgated thereunder; (iii) the nominee must meet all qualification requirements for Directors as may exist at the time of the nomination and at the time of election; and (iv) the Directors shall have the right to determine the slate (if any) on which the nominee shall be placed for purposes of the vote of the Members. The Nomination Petition and the Nominee Statement may require all such information and all such agreements and representations as are determined to be necessary or appropriate by the Directors or the President. Any Nomination Petition or Nominee Statement which is not fully completed and properly executed, or which is not received within the time period provided above or is not true, accurate and complete in all respects, may be rejected by the Company and, if rejected, shall be returned by the Company to the Member or Members submitting the Nomination Petition or to the nominee submitting the Nominee Statement, as the case may be.
 
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No nominations for any Director position may be made from the floor at any meeting of the Members.
 
4.4 Quorum and Manner of Acting. Subject to Section 4.10, a quorum for a meeting of the Directors shall consist of a majority of the total number of Directors established from time to time in accordance with Section 4.2. If at any meeting of the Directors there be less than a quorum present, a majority of the Directors present may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given.

At all meetings of the Directors, a quorum being present, the act of a majority of the total number of Directors then in office shall be the act of the Directors with respect to all votes, decisions, acts or other determinations to be made or taken by the Directors, including with respect to the matters addressed in Sections 4.1, 4.2, 4.10, 4.11, 4.12, 7.1, 7.2, 7.4, 8.1, 8.2, 9.1, 9.4, 9.5 and 9.6, unless the vote of a greater number is otherwise affirmatively and expressly required by the Iowa Act or other applicable law with respect to the particular matter in question notwithstanding the intent, desire and agreement of the Members as expressed in this paragraph that the act of a majority of the total number of Directors then in office shall be the act of the Directors with respect to all matters presented to or otherwise determined by the Directors.

Any action required or permitted to be taken at a meeting of the Directors may be taken without a meeting and without notice if the action is taken by at least seventy-five percent (75%) of the total number of Directors then in office and if one or more written consents or written actions describing the action so taken shall be signed by such Directors. Any such written consent or written action shall be effective when the last such Director signs the written consent or written action, unless the written consent or written action specifies a different effective date. Any such written consent or written action shall be placed in the minute book of the Company or otherwise retained in the records of the Company. The Company shall promptly give a copy of each such written consent or written action to each Director who did not sign the written consent or written action in question. Any written consent or written action of the Directors may be executed in counterparts, and may be given and received by the Company and any or all of the Directors by any form of electronic transmission as provided in Section 12.1.

4.5 Meetings of Directors; Place of Meetings. The Directors shall meet within forty-five days of the date of each annual meeting of the Members for the purpose of the designation and election of officers, the establishment of any committees and the transaction of such other business as is determined by the Directors. Notice of such annual meeting of the Directors shall be given as provided below for special meetings of the Directors.

Regular meetings of the Directors shall be held at such place and at such times as the Directors may fix and determine from time to time. No notice shall be required for any such regular meeting of the Directors.

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Special meetings of the Directors shall be held whenever called by the Chairman, the President or by any three or more of the Directors at the time being in office. Notice of each special meeting shall be given to each Director at least two days before the date on which the meeting is to be held. Each notice shall state the date, time and place of the meeting. Unless otherwise stated in the notice thereof, any and all business may be transacted at a special meeting.

At any meeting at which every Director is present, even without any notice, any business may be transacted.

A Director may waive any notice required by law or this Agreement if the waiver is in writing and is signed by the Director, and whether before or after the date and time stated in such notice. A waiver of notice shall be equivalent to notice in due time as required by law or this Agreement. The attendance of a Director at, or participation in, a meeting shall constitute a waiver of notice of such meeting and of objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the Director, at the beginning of the meeting or promptly upon arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

A Director who is present at a meeting of the Directors at which action on any matter is taken shall be presumed to have assented to the action taken unless the Director's dissent is entered in the minutes of the meeting or unless the Director files a written dissent to the action with the individual acting as the secretary of the meeting before the adjournment thereof or forwards such dissent by registered or certified mail to the Chairman, the President, the Secretary or the other Directors immediately after the adjournment of the meeting. No right to dissent shall be available, however, to a Director who voted in favor of the action in question.

The Directors may hold meetings of the Directors at such place or places, either within or without the State of Iowa, as the Directors may from time to time determine. If no designation of the place for a meeting of the Directors is made, the place of the meeting shall be the principal office of the Company.

The Directors may hold any meeting, and a Director may participate in any meeting, by any means of communication, including telephone or video conference call or other telecommunications equipment or methods, by means of which all of the Directors participating in the meeting can simultaneously hear each other during the meeting. A Director participating in a meeting by any such means or methods is deemed to be in attendance at and present in person at the meeting.

At all meetings of the Directors, the Chairman, or in the absence of the Chairman, the Vice Chairman, or in the absence of the Vice Chairman, the individual designated by the vote of a majority of the total number of Directors then in office, shall preside over and act as chairperson of the meeting. At all meetings of the Directors, the Secretary, or in the absence of the Secretary, the individual designated by the vote of a majority of the total number of Directors then in office, shall act as secretary for the meeting. All business to be transacted at meetings of the Directors shall be transacted in such order and with such procedures as the chairperson of the meeting shall determine.

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The Directors may adopt rules and regulations for the conduct of the meetings of the Directors and the management of the Company, so long as such rules and regulations are not inconsistent with the Articles of Organization, this Agreement or applicable law.

4.6 No Liability. A Director does not guarantee the return of any Member's Capital Contribution or Capital Account, any distributions to the Members or a profit for the Members from the operations of the Company. A Director is not personally liable for any of the acts or omissions of the Company, or for any debts, losses, liabilities, duties or obligations of the Company, whether arising in contract, tort or otherwise.

4.7 Directors Have No Exclusive Duty to Company. Except only as may be provided in another agreement between the Company and the Director in question, a Director shall not be required to manage the Company as his or her sole and exclusive function, and a Director may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right, by virtue of this Agreement, to share or participate in any other interests or activities of any of the Directors or to the income, proceeds or other benefits derived therefrom.

4.8 Resignation. Any Director may resign at any time by giving written notice to the Chairman, the President, the Secretary, or any two of the other Directors. The resignation of a Director shall be effective when the notice is received by the Chairman, the President, the Secretary or any other Director, as the case may be, or at such later time as may be specified in the notice; and, unless otherwise specified in the notice, the acceptance of a resignation shall not be necessary to make it effective.

4.9 Removal. Any Director may be removed, with or without cause, but only by the Members.

4.10 Vacancy. Any vacancy occurring for any reason in a Director position (including through an increase in the number of Directors or the death, removal or resignation of any Director) may be filled by either the remaining Directors or by the Members, except that only the Members may fill a vacancy occurring because of the removal of a Director by the Members. If the Directors remaining in office constitute fewer than a quorum of the Directors, the Directors may fill the vacancy by the affirmative vote of a majority of the Directors remaining in office.

In the event of a vacancy occurring by reason of an increase by the Members in the number of Directors, the Directors shall designate the class of the Directors to which such additional position shall be assigned, but with each class to be as nearly equal in number as possible following such increase in the number of the Directors.

An individual elected by the Directors to fill a vacancy shall continue to serve as a Director only until the next annual meeting of the Members, at which time the Members shall elect an individual to such Director position, who shall serve for the remainder of the unexpired term of such Director position and until his or her successor shall have been elected and shall have qualified, or until his or her death or resignation or removal in accordance with this Agreement. An individual elected by the Members to fill a vacancy shall continue to serve as a Director for the remainder of the unexpired term of such Director position and until his or her successor shall have been elected and shall have qualified, or until his or her death or resignation or removal in accordance with this Agreement.

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4.11 Salary and Other Compensation. Subject only to Section 4.15(e), the salaries, fees, benefits, reimbursements and all other compensation payable to the Directors and to the officers of the Company, in their capacity as Directors and officers, shall be fixed from time to time by the Directors, including with respect to meeting and committee fees. No Director or officer of the Company shall be prevented from receiving any salary, fees, benefits, reimbursements or other compensation by reason of the fact, without limitation, that the Director or officer is also a Member or affiliated with any Member.

4.12 Officers. The officers of the Company shall be a Chairman, a Vice Chairman, a President, one or more Vice Presidents (the number thereof to be determined by the Directors), a Secretary, a Chief Financial Officer, a Treasurer and such other officers as may from time to time be designated and elected by the Directors. One individual may hold the offices and perform the duties of any two or more of said offices. No officer is required to be a Director, a Member or a resident of the State of Iowa. The Directors may delegate the powers or duties of any officer to any other officer or agents, notwithstanding any provision of this Agreement, and the Directors may leave any office unfilled for any such period as the Directors may determine from time to time, except the offices of President, Chief Financial Officer and Secretary.

The officers of the Company shall be elected annually by the Directors at the annual meeting of the Directors. Each officer shall hold office until the next succeeding annual meeting of the Directors and until his or her successor shall have been elected and shall have qualified, or until his or her death or resignation or removal in accordance with this Agreement.

An officer may resign at any time by delivering written notice to the Chairman, the President, the Secretary or any two of the Directors. The resignation of an officer shall be effective when the notice is received by the Chairman, the President, the Secretary or any Director, as the case may be, or at such later time as may be specified in the notice, and, unless otherwise specified in the notice, the acceptance of a resignation shall not be necessary to make it effective. Any officer may be removed by the Directors at any time, with or without cause, for any reason or for no reason, but such removal shall be without prejudice to the contract rights, if any, of the individual so removed. The election of an officer does not itself create contract rights in favor of the officer.

The Chairman shall, if present at the meeting in question, preside over and act as chairperson of all meetings of the Members and all meetings of the Directors. The Chairman shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Company which shall be authorized by the Directors, and may, along with the Secretary, sign certificates for Units, the issuance of which shall have been duly authorized by the Directors. The Chairman shall be subject to the control of the Directors and shall keep the Directors fully informed and shall freely consult with the Directors concerning the business of the Company. The Chairman shall also perform all duties as may from time to time be assigned to the Chairman by the Directors.

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The Vice Chairman shall perform the duties of the Chairman in the absence of the Chairman or in the event of the death, inability or refusal to act of the Chairman, and, when so acting, shall have all of the powers of and be subject to all the restrictions upon the Chairman. The Vice Chairman shall also perform such duties as may from time to time be assigned to the Vice Chairman by the Chairman, the President or the Directors.

The President shall, subject to the control of the Directors, have general charge of and direct the operations of the Company and shall be the chief executive officer of the Company. The President shall keep the Directors fully informed and shall freely consult with the Directors concerning the business of the Company in his or her charge. The President shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Company as the President deems necessary or appropriate to or for the course of the Company's regular business, or which shall be authorized by the Directors, and may sign, along with the Secretary, certificates for Units, the issuance of which shall have been duly authorized by the Directors. The President may sign, in the name of the Company, all reports and all other documents or instruments which are necessary or appropriate to or for the Company's business. The President shall also perform all duties as may from time to time be assigned to the President by the Directors.

In the absence of the President or in the event of the death, inability or refusal to act of the President, the Vice President (or in the event there is more than one Vice President, the Vice Presidents in the order designated at the time of their election, or in the absence of any designation, the senior Vice President in length of service) shall perform the duties of the President, and, when so acting, shall have all the powers of and be subject to all the restrictions upon the President. A Vice President shall also perform such other duties and have such authority as may from time to time be assigned to such Vice President by the President or by the Directors.

The Secretary shall (i) if present at the meeting in question, act as secretary for and keep minutes of all meetings of the Members and all meetings of the Directors; (ii) authenticate records of the Company and attend to giving and serving all notices of the Company as provided by this Agreement or as required by applicable law; (iii) be custodian of the seal, if any, of the Company and of such books, records and papers as the Directors or the President may direct; (iv) sign, along with the Chairman or the President, certificates for Units, the issuance of which shall have been duly authorized by the Directors; (v) keep a record showing the names of all persons who are Members, their mailing and e-mail addresses as furnished by each Member, the number of Units held by them and the certificates representing such Units; and (vi) in general, perform all duties incident to the office of Secretary and such other duties as may from time to time be assigned to the Secretary by the President or by the Directors.

The Chief Financial Officer shall be the chief financial officer of the Company, and shall (i) have custody of and be responsible for all moneys and securities of the Company; (ii) keep full and accurate records and accounts in books belonging to the Company, showing the transactions of the Company, its accounts, liabilities and financial condition and shall endeavor to assure that all expenditures are duly authorized and are evidenced by proper receipts and vouchers; (iii) deposit in the name of the Company in such depository or depositories as are approved by the Company, all moneys that may come into the Chief Financial Officer's hands for the Company's account; (iv) prepare or cause to be prepared such financial statements as are directed by the President or by the Directors; and (v) in general, perform such duties as may from time to time be assigned to the Chief Financial Officer by the President or by the Directors.

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The Treasurer shall perform the duties of the Chief Financial Officer in the absence of the Chief Financial Officer or in the event of the death, inability or refusal to act of the Chief Financial Officer, and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Financial Officer. The Treasurer shall also perform such duties as may from time to time be assigned to the Treasurer by the Chief Financial Officer, the President or the Directors.

There may also be such number of Assistant Secretaries and Assistant Treasurers as the Directors may from time to time authorize and appoint. The Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary, or by the Chief Financial Officer or the Treasurer, respectively, or by the President or by the Directors. The Directors shall also have the power to appoint any person to act as assistant to any other officer, or to perform the duties of any other officer, whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer so appointed shall have the power to perform all the duties of the office to which he or she is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Directors.

4.13 Committees. The Directors may, but are not required to, from time to time establish one or more committees, including an executive committee, an audit committee, a compensation committee and a nominations committee, with each committee to consist of two or more Directors appointed by the Directors. Any committee shall serve at the will of the Directors. Each committee shall have the powers and duties delegated to it by the Directors. The Directors may appoint one or more Directors as alternative members of any committee who may take the place of any absent member or members at any meetings of the committee, upon request by the President or the chairperson of the committee. Each committee shall fix its own charter or other rules governing the conduct of its activities as the Directors may request or approve from time to time.

A committee shall not: (i) authorize distributions by the Company; (ii) approve or propose to the Members any action that this Agreement requires be approved by the Members; (iii) fill vacancies in the Directors or on any of the committees of the Directors; (iv) amend the Articles of Organization or this Agreement; (v) authorize or approve the acquisition of any Units by the Company; or (vi) authorize or approve the issuance or sale or contract for the sale of any Units or any debt or other securities of the Company.

4.14 Execution of Documents. The Directors may authorize any one or more Directors or officers of the Company to negotiate, execute and/or deliver any agreements, documents or instruments of whatever type or nature whatsoever on behalf of the Company, and such authority may be general or confined to specific transactions or instances.

4.15 Member Action Required. Notwithstanding anything in this Agreement which may appear to be to the contrary, including Section 4.1, neither the Directors nor any officer of the Company shall take, or cause to be taken, any of the following acts or matters without the vote of the Members taken or otherwise obtained in accordance with Article 6:

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(a) the sale, lease, exchange or other transfer or disposition of all or substantially all of the assets of the Company, other than by or pursuant to the granting or entering into of, or the enforcement of any rights or remedies under, any mortgage, deed of trust, pledge, security interest or other form of security or collateral agreement, document, instrument or transaction;

(b) the merger of the Company with or into another Person under the Iowa Act or the conversion of the Company into another form of entity under the Iowa Act;

(c) the dissolution of the Company;

(d) the amendment or restatement of the Articles of Organization or this Agreement;

(e) the issuance of any Units to any Director or any officer of the Company in the individual's capacity as a Director or officer;

(f) the issuance of any Units by the Company if, after giving effect to the issuance of the Units, the Company would have more than 45,608 outstanding Units;

(g) the issuance of any Units for a consideration or value of less than $500 per Unit;

(h) any act or matter for which the vote of the Members is affirmatively and expressly required by any other Section of this Agreement, including under Sections 4.2 and 4.9; or

(i) any act or matter for which the vote of the Members is affirmatively and expressly required by the Iowa Act or other applicable law notwithstanding the intent, desire and agreement of the Members that the only acts and matters which must be voted upon or otherwise approved by the Members are those which are expressly required by subparagraphs (a) through (h) of this Section.

4.16 Directors are Synonymous with Managers. The Directors are synonymous with, and shall be deemed for all purposes to be the same as, "managers" for purposes of the Iowa Act and the Articles of Organization. The Directors may sign any and all agreements, documents or instruments utilizing the title of either "Director" or "Manager". Without limiting the generality of the foregoing, the Directors may be referred to as "directors" or "managers" in any reports or other documents required to be filed by the Company or any Director with any governmental or regulatory authority, including the Securities and Exchange Commission. 

ARTICLE 5
RIGHTS AND DUTIES OF MEMBERS

5.1 No Liability. A Member does not guarantee the return of any Member's Capital Contribution or Capital Account, any distributions to the Members, or a profit for the Members from the operations of the Company. A Member is not personally liable for any of the acts or omissions of the Company, or for any debts, losses, liabilities, duties or obligations of the Company, whether arising in contract, tort or otherwise, except only to the extent of any unpaid Capital Contribution of the Member to the Company.

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5.2 Members Have No Exclusive Duty to Company. Except only as may be provided in another agreement between the Company and the Member in question, a Member may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right, by virtue of this Agreement, to share or participate in any other interests or activities of any of the Members or to the income, proceeds or other benefits derived therefrom.

5.3 Company Books; Communications With Directors. The Company shall keep the following documents at the principal office of the Company: (i) a current list of the full name and last known business address of each Member and Director; (ii) a copy of the Articles of Organization and all articles of amendment thereto; (iii) copies of the Company's federal, state and local income tax returns and reports, if any, for the three most recent years; (iv) a copy of this Agreement and all amendments hereto; (v) copies of any financial statements of the Company for the three most recent years; and (vi) such other documents as may from time to time be required by the Iowa Act or other applicable law.

Subject to the following, each Member has the right, for any purpose reasonably related to the Member's interest as a member of the Company, and upon reasonable request and during ordinary business hours, to (i) inspect and copy the Company documents referenced in the preceding paragraph at the Member's expense, and (ii) obtain from any Director or Directors from time to time upon reasonable demand (1) true and full information regarding the state of the business and financial condition of the Company; (2) promptly after they become available, a copy of the Company's federal, state and local income tax returns for each year; and (3) other information regarding the affairs of the Company as is just and reasonable. A Member's rights under this paragraph shall, however, also be subject to the Member's compliance with any safety, security and/or confidentiality guidelines or procedures of the Company.

Any Member desiring to send any communication to the Directors may do so in writing by either delivering the writing to the Company's principal office or by mailing the writing to that office, in either case, to the attention of the President. The Company will provide a copy of each such writing to each Director.

5.4 Priority and Return of Capital. No Member shall have priority over any other Member as to the return of Capital Contributions or Capital Accounts or as to Net Profits, Net Losses or distributions. This Section shall not, however, apply to loans (as distinguished from Capital Contributions) which a Member has made to the Company.

5.5 Withdrawal of a Member. A Member may not and does not have the power or right to resign or withdraw from the Company prior to the dissolution and winding up of the Company.

No Member shall cease to be a member of the Company because of the occurrence of any act or circumstance other than the sale, assignment or other transfer of all of the Member's Units, including because of the occurrence of any of the acts or circumstances specified in Section 490A.712, subparagraphs 3 through 9, of the Iowa Act.

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5.6 Member Authority Limited. No Member, in the capacity as a member of the Company, is an agent of the Company for the purpose of the Company's business or affairs or otherwise. No Member has any right, power or authority to, and shall not, enter into any agreements, documents, instruments or transactions of whatever type or nature for or on behalf of the Company, or otherwise obligate or bind the Company with respect to any transaction or matter whatsoever. No Member may delegate to any Person the Member's rights and powers to manage and control the business and affairs of the Company, except with respect to the giving of a proxy as provided in Section 6.9 and the election of the Directors as provided in this Agreement.

5.7 Limitation on Ownership of Units. Notwithstanding any term or condition of this Agreement which may appear to be to the contrary, no Member shall, directly or indirectly, own, hold or control more than forty-nine percent (49%) of the outstanding Units at any time, unless the Member exceeds that percentage by reason of the Company redeeming or purchasing Units, but in that case, the Member shall not increase the number of Units owned, held or controlled by the Member.

For purposes of this Section, the term "control" means the right or ability to vote or direct the vote of any Units, whether pursuant to a proxy, voting agreement, voting trust, or otherwise.

For purposes of this Section, a Member shall be deemed to indirectly own, hold or control any and all Units which are owned or held by the Member's spouse or any of the Member's parents or minor children (including by adoption) (collectively, the "Relatives"), and by any entity of which any one or more of the Member or any Relative or Relatives owns or holds at least ten percent (10%) of the outstanding voting securities or equity of such entity.

The Company shall not be required to recognize or honor the ownership, holding or control of any Units which are owned, held or controlled in violation of this Section. Each Member shall provide the Company with all such information and documentation as is requested by the Company from time to time in order to determine whether the Member is in compliance with this Section, and each Member shall otherwise promptly and fully cooperate with the Company in this regard.

Notwithstanding the foregoing, this Section shall not be applicable to, and shall not otherwise limit or restrict, the solicitation and receipt of proxies or ballots by the Company or by any Director in the capacity as a Director.
 
ARTICLE 6
MEETINGS OF MEMBERS; MANNER OF ACTING OF MEMBERS

6.1 Annual and Special Meetings of the Members. An annual meeting of the Members for the election of Directors and for the transaction of such other business as may properly come before the meeting shall be held at such place, at such time and on such day in January, February, March or April of each year as the Directors shall each year fix, or at such other place, time or date as the Directors may fix and determine from time to time.

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Special meetings of the Members, for any purpose or purposes, may be called by the Directors or by the Chairman or the President, and shall be called by or at the direction of the Directors or the Chairman or the President upon the written request of any Member or Members holding at least thirty percent (30%) of the outstanding Units.

6.2 Place of Meetings. The Directors, the Chairman or the President may designate any place, either within or outside the State of Iowa, as the place of meeting for the annual meeting or any special meeting of the Members. If no designation is made by the Directors or by the Chairman or the President, the place of meeting shall be the principal office of the Company in the State of Iowa.

6.3 Notice of Meetings or of Action to be Taken Only by Ballot. Except as provided in Sections 6.4, 6.10 and 6.12, written notice stating the place, day and hour of all meetings of the Members and the purpose or purposes for which the meeting is called, shall be given to each Member not less than five nor more than sixty days before the date of the meeting, by or at the direction of the Directors, the Chairman or the President. The notice shall be given as provided in Section 12.1.

If the Directors determine that any matter or matters to be presented to the vote of the Members shall be done and taken only by a written ballot, without holding a meeting of the Members, notice of the matter or matters, along with the ballot, shall be given to the Members not less than five nor more than ninety days before the last date on which the Company will accept such ballot. The notice shall be given as provided in Section 12.1.

6.4 Meeting of all Members. If all of the Members shall meet at any time and place, either within or outside of the State of Iowa, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting lawful action may be taken.

6.5 Record Date. The record date for the purpose of determining the Members entitled to notice of or to vote at any meeting of the Members shall be the date on which notice of the meeting is given to the Members, or if no notice is required to be given of such meeting, the date of the meeting. A determination of the Members entitled to notice of or to vote at any meeting of the Members which has been made as provided in this Section shall also apply to any adjournment of the meeting in question. If the Directors determine that any matter or matters to be presented to the vote of the Members shall be done and taken only by a written ballot, without holding a meeting of the Members, the record date for the purpose of determining the Members entitled to notice of such matter or matters and to vote by ballot on such matter or matters shall be the date such notice and ballot are given to the Members.

6.6 Voting Rights of Members. The Members shall have one vote for each Unit held by them, and the Members shall be entitled to vote on any and all acts, matters, decisions, questions or other determinations on which the vote of the Members is expressly and affirmatively required by this Agreement. A Member abstaining on any vote or withholding the Member's vote shall be counted present for quorum purposes, but the Units of the Member will not be counted as votes cast for or against the act, matter, decision, question or other determination in question.

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6.7 Quorum. The Members holding at least twenty-five percent (25%) of the outstanding Units, represented in person or by proxy or written ballot pursuant to Section 6.9, shall constitute a quorum at any meeting of the Members. In the absence of a quorum at a meeting of the Members, the Members holding a majority of the outstanding Units represented at the meeting may adjourn the meeting from time to time without further notice. At any such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Units constituting at least twenty-five percent (25%) of the outstanding Units and which are represented by written ballots which have been timely and properly returned by the Members shall constitute a quorum of the Members for any matter or matters which are presented to the Members only by a written ballot, without a meeting of the Members.

6.8 Manner of Acting. Except only as provided in the following paragraph in this Section, the vote of the Members holding at least a majority of the outstanding Units represented at a meeting at which a quorum of the Members is present shall be the act of the Members with respect to all votes, acts, matters, decisions, questions or other determinations whatsoever to be taken or made by the Members under the Articles of Organization, this Agreement, the Iowa Act (including under Section 490A.1203 of the Iowa Act) or other applicable law, or otherwise, including with respect to the acts and matters specified in Section 4.15, the establishment of the number of Directors pursuant to Section 4.2, the removal of a Director under Section 4.9, and the amendment or restatement of this Agreement or the Articles of Organization. Except only as provided in the following paragraph in this Section, if a quorum of the Members has been obtained through the written ballots returned by the Members, the vote of at least a majority of the outstanding Units which are represented by the written ballots which have been timely and properly returned by the Members shall be the act of the Members with respect to all votes, acts, matters, decisions, questions or other determinations whatsoever which are presented to the Members only by written ballot, including with respect to all of the matters listed in the preceding sentence.

The Directors shall be elected by a plurality of the votes cast by the Units at a meeting of the Members at which a quorum is present, or, if the vote on the election of the Directors was taken only by a written ballot, by a plurality of the votes cast by the Units represented by the written ballots and for which at least a quorum of the Units was represented by such written ballots. This paragraph applies to the election of Directors by the Members under both Section 4.2 and Section 4.10.

At all meetings of the Members, the Chairman, or in the absence of the Chairman, the Vice Chairman, or in the absence of the Vice Chairman, the individual designated by the vote of the Members holding at least a majority of the outstanding Units represented at the meeting in question, shall preside over and act as chairperson of the meeting. At all meetings of the Members, the Secretary, or in the absence of the Secretary, the individual designated by the chairperson of the meeting in question, shall act as secretary for the meeting. The business at all meetings of the Members shall be transacted in such order and with such procedures as the chairperson may from time to time determine.

The Members may adopt rules and regulations for the conduct of the meetings of the Members, so long as such rules and regulations are not inconsistent with the Articles of Organization, this Agreement or applicable law.

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6.9 Proxies; Voting by Ballots. At all meetings of the Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney-in-fact of the Member. Any such proxy must be filed with the Company before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise expressly provided in the proxy.

The Directors may determine that the vote on any one or more matters to be voted on by the Members may be taken only by a written ballot, without a meeting of the Members, or may include the use of a written ballot as part of or in connection with a meeting of the Members. The Directors may establish the form of written ballot and all such methods, processes and procedures for the use of written ballots as the Directors determine to be appropriate from time to time, including for the return and delivery of written ballots to the Company, the opening and tabulation of the results of the voting on matters voted upon by written ballot, the revocation of a written ballot by a Member, and the period of time during which the Company will accept the return of written ballots or will allow the revocation of a written ballot.

A Member who is not present in person at a Member meeting but who has returned a written ballot with respect to any matter which is presented to the Members at such meeting shall be counted present for purposes of determining whether a quorum is present to act on the matter, but shall not be counted present for purposes of determining the presence of a quorum to transact any other business at the Member meeting in question.

If a written ballot is properly completed and timely returned, the Units represented by the written ballot will be voted in accordance with the specifications provided in the written ballot.

No proposals may be made by any Member or any Director from the floor at any meeting of the Members with respect to any matter which was presented to the Members by written ballot pursuant to this Section, including to table any such matter.

The use of a written ballot for any matter to be voted upon by the Members shall not be deemed to be or constitute a solicitation of votes on behalf of the Directors or to otherwise be a solicitation of votes or of a proxy on behalf of any Person.

6.10 Action Without a Meeting; Telephonic Meetings. Any action required or permitted to be taken at a meeting of the Members (whether an annual or special meeting) may be taken without a meeting and without notice if (i) the action is taken by the Members holding at least seventy-five percent (75%) of the outstanding Units, and (ii) one or more written consents or written actions describing the action taken are signed by such Members. Any such written consent or written action shall be effective when the last such Member signs the written consent or written action, unless the written consent or written action specifies a different effective date. The record date for determining the Members entitled to take action without a meeting shall be the date the first Member signs the written consent or written action in question. Any such written consent or written action shall be placed in the minute book of the Company or otherwise retained in the records of the Company. The Company shall forward prompt notice of the taking of action without a meeting by the Members to each Member who did not sign the written consent or written action in question. Any written consent or written action of the Members may be executed in counterparts, and may be given and received by the Company and any or all of the Members by any form of electronic transmission as provided in Section 12.1.

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The Members may hold any meeting, and any Member may participate in any meeting, by any means of communication, including telephone or video conference call or other telecommunications equipment or methods, by means of which all of the Members participating in the meeting can simultaneously hear each other during the meeting. A Member participating in a meeting by any such means or methods is deemed to be in attendance at and present in person at the meeting.

6.11 Member Representative. Any Member that is not an individual may designate and appoint one or more individuals to act as the representative of the Member for all purposes related to the Company, including for purposes of participation of the Member in all meetings of the Members, the voting of the Units of the Member, the execution of any written consent or written action evidencing action of the Members taken without a meeting, and the giving of a proxy by the Member. A Member may change the identity of any of the Member's representatives at any time and from time to time, but shall provide written notice thereof to the Chairman, the President or the Secretary, with any such notice to only be effective upon receipt by the Chairman, the President or the Secretary. Any action taken by any individual who has been designated by a Member pursuant to this Section shall be binding upon such Member and may be relied upon, and acted on, by the Company, the Directors and all of the Members, without inquiry to, or confirmation from, such Member or any other individual who has been designated by the Member pursuant to this Section.

6.12 Waiver of Notice. A Member may waive any notice required by applicable law or this Agreement if the waiver is in writing and is signed by the Member, and whether before or after the date and time stated in such notice. A waiver of notice shall be equivalent to notice in due time as required by applicable law or this Agreement. The attendance of a Member (in person or by proxy or written ballot pursuant to Section 6.9) at, or participation in, a meeting shall constitute a waiver of notice of such meeting and of objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the Member, at the beginning of the meeting or promptly upon arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

ARTICLE 7
CONTRIBUTIONS TO THE COMPANY, UNITS AND CAPITAL ACCOUNTS

7.1 Units; Issuance of Units. Each Member's Capital Contribution shall be represented by Units, but the Directors may determine to issue Units to a Person without the Person making a Capital Contribution, or being obligated to make a Capital Contribution, to the Company.

An unlimited number of Units are hereby authorized.

The number of Units to be issued to any Additional Member and any Capital Contribution for such Units shall be determined by the Directors as provided in Section 9.4, subject only to Sections 4.15(e), 4.15(f) and 4.15(g).

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The Directors shall also determine the number of Units, if any, which shall be issued from time to time to any existing Member and any Capital Contribution for any such Units, subject only to Sections 4.15(e), 4.15(f) and 4.15(g).

No subsequent Capital Contributions may be required of any Member unless otherwise expressly agreed to at the time of, or as imposed as a condition to, the issuance of Units to the Member in question.

No Member shall have any preemptive or other right to acquire any Units as the Directors may from time to time determine to issue to any Person.

7.2 Capital Accounts. 

(a) A separate Capital Account will be maintained for each Member. Each Member's Capital Account will be increased by (i) the amount of money contributed by such Member to the Company; (ii) the Gross Asset Value (as defined in Section 7.4) of property contributed by such Member to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under Section 752 of the Code); and (iii) the amount of Net Profits allocated to such Member. Each Member's Capital Account will be decreased by (i) the amount of money distributed to such Member by the Company; (ii) the Gross Asset Value of property distributed to such Member by the Company (net of liabilities secured by such distributed property that such Member is considered to assume or take subject to under Section 752 of the Code); (iii) the amount of Net Losses allocated to such Member; and (iv) the Member's share of expenditures described in Section 705(a)(2)(B) of the Code, unless such expenditures have already been deducted in determining Net Profits or Net Losses, as the case may be.

(b) In the event of a permitted sale or exchange of a Unit, the Capital Account of the transferor shall become the Capital Account of the transferee to the extent it relates to the transferred Unit, subject to Section 9.5.

(c) The manner in which Capital Accounts are to be maintained pursuant to this Section is intended, and shall be construed, so as to comply with the requirements of Section 704(b) of the Code and the Treasury Regulations promulgated thereunder, and in the event there exists any inconsistency, the Code and said Treasury Regulations shall control.

(d) Upon liquidation of the Company, distributions will be made to the Members in accordance with Section 10.2.

7.3 No Demand of Member Capital. A Member shall not be entitled to demand or receive from the Company the return of the Member's Capital Contribution or Capital Account, or the liquidation of the Member's Units, until the Company is dissolved in accordance with this Agreement.

7.4 Gross Asset Value. The term "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 Member to the Company shall be the gross fair market value of such asset, as determined by the Directors.

(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Directors, as of the following times or such other times as permitted by the Treasury Regulations: (i) the acquisition of a Unit or Units by any Additional Member or any existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for a Unit; and (iii) the liquidation of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations; provided, however, that adjustments pursuant to the preceding clauses (i) and (ii) shall be made only if the Directors determine that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members.

(c) The Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross fair market value of such asset on the date of distribution, as determined by the Directors.

(d) The Gross Asset Values of Company assets shall be increased or decreased, as the case may be, to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) or Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations; provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent that the Directors determine that an adjustment pursuant to subparagraph (b) immediately above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d).

(e) Notwithstanding anything in this Agreement which may appear to be to the contrary, if the Gross Asset Value of any asset differs from its adjusted tax basis for federal income tax purposes at the beginning of any Fiscal Year, then the depreciation for such asset shall, for purposes of determining each Member's Capital Account, be determined in accordance with its Gross Asset Value and not its adjusted tax basis, and the Gross Asset Value of such asset shall be adjusted to account for such depreciation.

7.5 Units May Be Referred to as Stock, Shares or Securities. The Units may be referred to as "stock", "shares", "securities" or other terms in any reports or other documents required to be filed by the Company or any Member with any governmental or regulatory authority, including the Securities and Exchange Commission, if required by, or as may be necessary or appropriate in order to be consistent with, any such report or document or any applicable law, rule or regulation.
 
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ARTICLE 8
ALLOCATIONS AND INCOME TAX; DISTRIBUTIONS

8.1 Allocations of Profits and Losses from Operations. 

(a) Except as may be otherwise required by Section 704(c) of the Code, the Net Losses and the Net Profits of the Company for each Fiscal Year shall be allocated among the Members pro rata based upon the respective number of Units held by the Members. Any credit available for income tax purposes shall be allocated among the Members in like fashion.

(b) Notwithstanding subparagraph (a) immediately above, no loss shall be allocated to a Member if such allocation would cause such Member's Adjusted Capital Account to become negative or to increase the negative balance thereof.

(c)(1) In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Treasury Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the deficit balance of the Adjusted Capital Account of such Member as quickly as possible, provided that an allocation pursuant to this subparagraph (c)(1) shall only be made if and to the extent such Member would have a deficit balance in the Member's Adjusted Capital Account after all other allocations provided for in this Section 8.1 have been made as if this subparagraph (c)(1) were not in this Agreement.

(2) In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement, if any, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of subparagraphs 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this subparagraph (c)(2) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Section 8.1 have been made as if subparagraph (c)(1) immediately above and this subparagraph (c)(2) were not in this Agreement.

(d)(1) Except as otherwise provided in Section 1.704-2(f) of the Treasury Regulations, and notwithstanding any other provision of this Section 8.1, if there is a net decrease in partnership minimum gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net decrease in partnership minimum gain, determined in accordance with Section 1.704-2(g) of the Treasury Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This subparagraph (d)(1) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Treasury Regulations and shall be interpreted consistently therewith.

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(2) Except as otherwise provided in Section 1.704-2(i)(4) of the Treasury Regulations, and notwithstanding any other provision of this Section 8.1, if there is a net decrease in partner nonrecourse debt minimum gain attributable to a partner nonrecourse debt during any Fiscal Year, each Member who has a share of the partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(5) of the Treasury Regulations, shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net decrease in partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(4) of the Treasury Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Treasury Regulations. This subparagraph (d)(2) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Treasury Regulations and shall be interpreted consistently therewith.

(3) Nonrecourse deductions for any Fiscal Year shall be specially allocated among the Members pro rata based upon the respective number of Units held by the Members.

(4) Any partner nonrecourse deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the partner nonrecourse debt to which such partner nonrecourse deductions are attributable in accordance with Section 1.704-2(i)(1) of the Treasury Regulations.

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

(f) Notwithstanding any other provision of this Agreement, the Regulatory Allocations shall be taken into account in allocating items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred. For purposes of applying the foregoing sentence, allocations pursuant to this subparagraph (f) shall only be made with respect to allocations pursuant to subparagraph (e) immediately above to the extent the Directors determine that such allocations will otherwise be inconsistent with the economic agreement among the Company and the Members as set out in this Agreement.

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(g) The Directors shall have discretion, with respect to each Fiscal Year, to (i) apply the provisions of subparagraph (f) immediately above in whatever order is likely to minimize the economic distortions that might otherwise result from the Regulatory Allocations, and (ii) divide all allocations pursuant to subparagraph (f) immediately above among the Members in a manner that is likely to minimize such economic distortions.

8.2 Distributions. All distributions of cash or other property to the Members shall be made to the Members pro rata based upon the respective number of Units held by the Members. All such distributions shall only be made in such amounts and at such times as are determined by the Directors from time to time, but subject to Section 8.3. Without limiting the generality of the foregoing, the Directors have the authority to make the determination of whether any distribution which is declared by the Directors shall be made in the form of cash, debt, property or otherwise.

The record date for the determination of the Members entitled to receive a distribution shall be the date determined by the Directors, but in the absence of the Directors specifying a record date for a distribution, the date on which the resolution declaring the distribution to the Members is adopted by the Directors shall be the record date for such distribution.

All amounts withheld pursuant to the Code or any provisions of foreign, federal, state or local tax law with respect to any payment or distribution to any Member or Members from the Company shall be treated as amounts distributed to the relevant Member or Members pursuant to this Section.

This Section is not applicable to distributions payable to the Members upon the dissolution and winding up of the Company, which distributions are governed by Section 10.2.

8.3 Limitation Upon Distributions. A distribution shall not be made to any Member pursuant to Section 8.2 if, after giving it effect, either of the following would result: (i) the Company would not be able to pay its debts as they became due in the usual course of business, or (ii) the Company's total assets would be less than the sum of its total liabilities, plus the amount that would be needed, if any, if the Company were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of any Members, if any, whose preferential rights are superior to the rights of the Members receiving the distribution. The Directors may base a determination that a distribution is not prohibited under this Section on any financial statements or other documents or any other valuations or methods permitted by the Iowa Act.

8.4 No Interest on Capital Contributions. No Member shall be entitled to interest on the Member's Capital Contribution.

8.5 Loans to Company. Nothing in this Agreement shall prevent any Member from making secured or unsecured loans to the Company.

8.6 Returns and Other Elections. The Directors shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. All elections required or permitted to be made by the Company under federal, state or foreign tax or other laws shall be made by the Directors, including the following:

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(a) to the extent permitted by applicable law and regulations, to elect to use an accelerated depreciation method on any depreciable unit of the assets of the Company; and

(b) in the event of a transfer of all or part of any Unit of any Member, to elect, pursuant to Sections 734, 743 and 754 of the Code, to adjust the basis of the assets of the Company.
 
8.7 Tax Matters Partner. The Directors may designate the Tax Matters Partner of the Company for purposes of Chapter 63 of the Code and the Treasury Regulations thereunder. The Tax Matters Partner may be changed from time to time by the Directors.

ARTICLE 9
TRANSFERABILITY OF UNITS; SUBSTITUTE MEMBERS;
ADDITIONAL MEMBERS

9.1 Assignment of Units. A Member may not sell, transfer, assign or otherwise dispose of or convey any or all of the Member's Units, in whole or in part and whether voluntarily or involuntarily (including under or pursuant to any pledge or other collateral or security agreement) or by operation or any act or process of law or equity, or otherwise, or pledge, hypothecate, grant a security interest, lien, or other encumbrance in or against any or all of the Member's Units (with each and all of the foregoing generally and collectively referred to in this Article as an "assignment"), except with the prior approval of the Directors and in compliance and accordance with all such policies and procedures as may be adopted from time to time by the Directors. The Directors may adopt and implement such policies and procedures (collectively, and as amended from time to time, the "Unit Assignment Policy") for any reasonable purpose, as determined by the Directors. A reasonable purpose shall in all events include prohibiting, restricting, limiting, delaying or placing conditions on any assignment which, alone or together with any previous assignments or other assignments that are known or intended or that may reasonably be anticipated, would or might reasonably be determined to (i) violate or cause the Company to violate or to otherwise be in noncompliance with any applicable law, rule, regulation or order, including any foreign, federal, state or local securities law, rule, regulation or order; (ii) cause the Company to be taxed as a corporation for tax purposes, including by reason of Section 7704 of the Code; (iii) result in the termination of the Company or the Company's tax year for tax purposes, including under Section 708 of the Code, or cause the application to the Company of Sections 168(g)(1)(B) or 168(h) of the Code or similar or analogous rules; (iv) violate any term or condition of this Agreement, including Section 5.7; (v) violate or cause the Company to violate or to otherwise be in noncompliance with any law, rule, regulation or order applicable to the Company's selection or use of its then current fiscal year, including under Section 444 of the Code; (vi) require the Company to become licensed, registered or regulated as an investment company, a broker-dealer or any other form of regulated entity under any applicable foreign, federal, state or local law, rule, regulation or order; or (vii) create or result in any fractional Units. The Company shall make a copy of the then current Unit Assignment Policy available to each Member upon the Member's reasonable request from time to time.

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An assignment of a Unit does not entitle the assignee to vote the Units or to otherwise participate in the management of the Company, or to become or to exercise any voting or management rights of a member of the Company, but rather only entitles the assignee to receive the allocations and distributions to which the assignor would have otherwise been entitled to with respect to such Unit, unless and until the assignee also complies with Section 9.2.

An assignment of a Unit does not release the assignor from any debts, liabilities or obligations of the assignor to the Company.

The Directors shall not be required to act upon any proposed assignment of any Unit until the next regularly scheduled meeting of the Directors which follows the date on which the Company receives a completed and executed unit assignment application from the assignor and the assignee and in form and content acceptable to the Directors. An assignment of a Unit which is approved by the Directors shall be effective for all purposes (including for purposes of allocations and distributions) as of the date determined by the Directors, but such date must be within 32 days of the date of the approval of the assignment by the Directors.

9.2 Right of Assignee to Become a Substitute Member. An assignee of a Unit pursuant to an assignment made in accordance with Section 9.1 and the Unit Assignment Policy who is not already a Member at the effective time of the assignment may become a Substitute Member with respect to the Unit if the assignee executes and delivers to the Company an addendum or agreement, in form and content acceptable to the Directors or the President, whereby, among such other terms as may be required by the Directors or the President, such assignee shall accept, adopt and otherwise become a party to the Articles of Organization and this Agreement. No vote or consent of any of the Directors or the Members shall be necessary in order for such an assignee to become a Substitute Member; provided, however, that the assignee shall become a Substitute Member effective as of the date determined by the Directors, but such date must be within 32 days of the date the Directors receive the addendum or agreement contemplated by this paragraph.

An assignee of a Unit pursuant to an assignment made in accordance with Section 9.1 and the Unit Assignment Policy and who is already a Member at the effective time of the assignment shall become a Substitute Member with respect to the Unit effective immediately upon the effective time of the assignment, and such assignee shall be conclusively deemed to have accepted the Unit subject to and upon the terms and conditions of the Articles of Organization and this Agreement. The Directors or the President may, however, require such an assignee to execute and deliver to the Company an addendum or agreement, in form and content acceptable to the Directors or the President, whereby, among such other terms as may be required by the Directors or the President, such assignee confirms that the assignee has accepted, adopted and is a party to the Articles of Organization and this Agreement.

The Company may, in its sole discretion, require the assignee and/or the assignor in any assignment to pay and reimburse the Company for all costs and expenses incurred by the Company in connection with the assignment, including legal and accounting fees.

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An assignee who has become a Substitute Member has, with respect to the Units assigned, all of the rights and powers, and is subject to all of the restrictions and liabilities, of a Member under the Articles of Organization, this Agreement and the Iowa Act.

In the event an assignee is a minor or is otherwise legally unable to execute the addendum or agreement contemplated by this Section, the addendum or agreement shall be executed by the assignee's conservator or other guardian or legal representative.

9.3 Assignments Not In Compliance With this Agreement. An assignee of Units pursuant to an assignment which was not made in accordance with this Agreement and the Unit Assignment Policy shall not have any rights whatsoever as a Member (whether to receive allocations or distributions, any notices to Members, to vote, or otherwise) unless and until such assignee has complied with the terms and conditions of this Agreement and the Unit Assignment Policy, and such assignment shall be of no force and effect whatsoever until such compliance has been obtained and satisfied.

9.4 Admission of Additional Members. Subject only to Sections 4.15(e), 4.15(f) and 4.15(g), the Directors may at any time and from time to time admit any Person as a Member by the sale and issuance of such number of Units to the Person and upon such other terms and conditions as are determined by the Directors, including the nature and amount of any Capital Contribution to be made by the Person for such Units. A Person shall be admitted as a Member with respect to the Units in question upon receipt by the Company of (i) the Person's Capital Contribution, if any, and (ii) an executed addendum or other agreement satisfactory to the Directors or the President whereby, among such other terms as may be required by the Directors or the President, the Person accepts, adopts and otherwise becomes a party to the Articles of Organization and this Agreement; or at such earlier or later date as may be specified by the Directors at the time of acceptance of the Person's Capital Contribution or the issuance of the Units to the Person. No subsequent Capital Contributions may be required of any Member unless otherwise expressly agreed at the time of, or as imposed as a condition to, the issuance of Units to the Member in question.

9.5 Allocations to Assignees and to Additional Members. No assignee of a Unit or Additional Member shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Company. The Directors may, at the time an assignee or Additional Member is admitted, close the Company books (as though the Company's tax year had ended) or make pro rata allocations of loss, income and expense deductions to the assignee or Additional Member for that portion of the Company's Fiscal Year in which the assignee or Additional Member, as the case may be, was admitted, in accordance with the provisions of Section 706(d) of the Code and the Treasury Regulations promulgated thereunder.

9.6 Repurchase of Units by the Company. Any Member may at any time, but has no obligation to, tender any or all of the Units owned by that Member to the Company for purchase by the Company in accordance with the following:

(a) Any Member desiring to tender any of the Units owned by the Member to the Company (the "Tendering Member") must provide written notice of such desire to the Company (the "Tender Notice"). The Tender Notice must include, at a minimum, the name of the Tendering Member, the number of Units being tendered to the Company (the "Tendered Units"), and a statement that the tender is being made pursuant to this Section. The Company may require the Tender Notice to be on a form provided by the Company. A Tender Notice may be revoked at any time prior to the acceptance of the Tender Notice by the Company, by the Tendering Member providing written notice to that effect to the Company, but any such revocation notice shall only be deemed effective when received by the Company. The Company will consider Tender Notices in the order in which they are received by the Company.

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(b) Subject to the satisfaction of the UMS Condition (as that term is defined in subparagraph (g) below), the Company shall have the right and option, but shall not be obligated, to purchase all, but not less than all, of the Tendered Units at any time within 45 days after the date on which the Company receives the Tender Notice. The Company may exercise such right and option by giving written notice thereof to the Tendering Member (the "Exercise Notice") at any time within such 45-day period. If the Company fails to give an Exercise Notice within that 45-day period, the Company shall be deemed to have declined to exercise its right and option to purchase the Tendered Units.

(c) If the Company elects to purchase the Tendered Units, the closing of the sale and purchase shall occur on the date specified by the Company in the Exercise Notice (the "Closing Date"); provided, however, that the Closing Date must be at least 60 calendar days after, and shall not be more than 90 calendar days after, the date on which the Company received the Tender Notice.

(d) The per-Unit purchase price for the Tendered Units shall be the Discounted Average UMS Price (as that term is defined below) during the calendar quarter last ended before the date on which the Company received the Tender Notice. The Discounted Average UMS Price shall accordingly only be established four times during the Company's taxable year.

(e) The aggregate purchase price payable by the Company for the Tendered Units shall be payable by the Company in full, by check of the Company, on the Closing Date upon receipt of the certificate or certificates for the Tendered Units from the Tendering Member, duly endorsed for transfer or accompanied by separate transfer powers in form and content acceptable to the Company.

The Tendering Member shall be deemed, by submitting the Tender Notice to the Company and by surrendering the certificates for the Tendered Units to the Company, to represent and warrant to the Company that all of the Tendered Units are being sold and transferred to the Company free and clear of any and all liens, restrictions on transferability, reservations, security interests, pledge agreements, buy-sell agreements, tax liens, charges, contracts of sale, voting agreements, voting trusts, options, proxies and other claims, demands, encumbrances and restrictions whatsoever. The Tendering Member shall defend, indemnify and hold the Company harmless from and against any suit, action, proceeding, claim, counterclaim, loss, liability, damage, amount, cost and/or expense (including court costs and attorneys' fees) in any way related to, connected with or arising or resulting from any breach of that representation and warranty by the Tendering Member.

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(f) The term "Discounted UMS Average Price" means the amount determined by subtracting (1) the amount which is twenty percent (20%) of the UMS Average Price (as that term is defined below), from (2) the UMS Average Price. The term "UMS Average Price" means the amount determined by dividing (1) the aggregate amount paid by all buyers of Units pursuant to the Unit Matching Service (as that term is defined below) of the Company in transactions which closed during the calendar quarter last ended before the date on which the Company received the Tender Notice, by (2) the aggregate number of Units sold to those buyers. The term "Unit Matching Service" means the unit matching service as made available by the Company from time to time on the Company's website. The Company has no obligation, however, to continue to maintain the Unit Matching Service.

(g) The Company's right and option to purchase any Tendered Units pursuant to this Section is conditioned upon there having been at least two sales of Units pursuant to the Unit Matching Service which closed during the applicable calendar quarter (the "UMS Condition"), and if the UMS Condition is not satisfied and met, the Tender Notice shall be deemed to be of no force or effect and the Company shall notify the Tendering Member of such fact.

This Section is intended to constitute a redemption or repurchase agreement under Section 1.7704-1(f) of the Treasury Regulations, as amended from time to time, and is intended to, and shall be interpreted so as to, meet the requirements of Section 1.7704-1(f) of the Treasury Regulations. Without limiting the Company's right to decline to purchase any Tendered Units, for any reason and in the Company's sole discretion, the Company shall decline to purchase any Tendered Units pursuant to this Section if such purchase would cause a violation of Section 1.7704-1(f) of the Treasury Regulations.

ARTICLE 10
DISSOLUTION AND TERMINATION

10.1 Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the occurrence of any of the following events:

(a) at the time or on the happening of an event expressly specified in the Iowa Act to cause dissolution, which at the date of this Agreement were the events specified in Sections 490A.1302 and 490A.1312 of the Iowa Act; or

(b) upon the affirmative vote of the Members taken or obtained in accordance with Article 6.

10.2 Distribution of Assets Upon Dissolution. Upon the winding up of the Company, the assets of the Company shall be distributed in the following order:

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(a) to creditors, including Members who are creditors (to the extent permitted by applicable law) in satisfaction of the liabilities of the Company, other than for distributions to Members under Sections 490A.803 or 490A.805 of the Iowa Act;

(b) to the Members and former members of the Company in satisfaction of liabilities for distributions, if any, under Sections 490A.803 or 490A.805 of the Iowa Act;

(c) to the Members in proportion to, and to the extent of, the positive balances in their respective Capital Accounts, as determined after taking into account all Capital Account adjustments for the Company's Fiscal Year in which the dissolution occurs; and then

(d) to the Members, pro rata based upon the respective number of Units held by the Members.

10.3 Articles of Dissolution. When all debts, liabilities and obligations of the Company have been paid and discharged or reasonably adequate provisions therefor have been made and all of the remaining property and assets of the Company have been distributed to the Members, articles of dissolution and any other necessary or appropriate documents, as determined by the Directors, shall be executed and filed with the Iowa Secretary of State and with such other governmental, regulatory or other authorities as are determined by the Directors. Thereafter, the existence of the Company shall cease, except for the purpose of suits, other proceedings and appropriate action as may be expressly provided in the Iowa Act. The Directors and the officers of the Company shall have authority to distribute any property or assets of the Company discovered after dissolution, convey real estate and take all such other action as the Directors or the officers may determine to be necessary or appropriate on behalf of and in the name of the Company.

10.4 Winding Up. Upon dissolution each Member shall look solely to the assets of the Company for the return of the Member's Capital Account or to pay any distributions owed to the Member. If the Company property remaining after the payment or discharge of the debts, liabilities and obligations of the Company is insufficient to return the Capital Account of a Member, or to pay any distributions owed to the Member, such Member shall have no recourse against the Company, any Director, any officer of the Company or any other Member. Further, no Member shall be required to restore any deficit in the Member's Capital Account and any such deficit shall not be treated as an asset of the Company. The winding up of the affairs of the Company and the distribution of its property and assets shall be conducted exclusively by the Directors and the officers of the Company, and the Directors and the officers of the Company are hereby authorized to take all actions necessary or appropriate to accomplish such winding up and distribution, including selling any property or assets of the Company the Directors or any officer deem necessary or appropriate to sell and the actions permitted by Sections 490A.1306 and 490A.1307 of the Iowa Act.
 
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ARTICLE 11
INDEMNIFICATION

The Company shall indemnify and advance or reimburse expenses to each Director and each officer of the Company for liability incurred by them in such capacities, or arising out of their status as such, to the full and maximum extent authorized or permitted by the Iowa Act or other applicable law, but the Company shall, at a minimum, in all events indemnify each Director and each officer of the Company for liability, and advance or reimburse expenses to each Director and to each officer of the Company, to the same extent, and to the full and maximum extent, that a corporation has authority to indemnify and advance or reimburse expenses to a director under the Iowa Business Corporation Act, including pursuant to the exercise of all permissive powers of indemnification under the Iowa Business Corporation Act.

If the Iowa Act, the Iowa Business Corporation Act or other applicable law is hereafter amended to authorize broader, additional or further indemnification, then the indemnification obligations of the Company shall be deemed to be amended automatically, and without any further action, to require indemnification and advancement and reimbursement of funds to pay for or reimburse expenses of the Directors and the officers of the Company to the full and maximum extent then permitted by law. Any repeal or modification of this Article, the Iowa Act, the Iowa Business Corporation Act or other applicable law shall not limit or adversely affect any indemnification or other obligations of the Company under this Article with respect to any acts or omissions occurring, in whole or in part, on or at any time prior to, or any state of facts existing, in whole or in part, at or any time prior to, the time of such repeal or modification. Each Person who is now serving or who shall hereafter serve as a Director or an officer of the Company shall be deemed to be doing so in reliance upon the rights provided for in this Article, and such rights shall continue as to a Person who has ceased to be a Director or an officer of the Company, as the case may be, and shall inure to the benefit of the heirs, executors, legal or personal representatives, administrators and successors of such a Person. If this Article or any portion of this Article shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Director and officer of the Company to the full and maximum extent permitted by any portion of this Article that shall not have been invalidated.

Except only as may be limited by the express and affirmative requirements of the Iowa Act, the indemnification and advancement and reimbursement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights which a Director or an officer of the Company may have or hereafter acquire or become entitled to under any law or regulation, the Articles of Organization, this Agreement or another agreement, vote of the Directors, vote of the Members or otherwise.

The Company may, by action of the Directors, provide indemnification to such of the Members, employees and agents of the Company, and to such extent and to such effect, as the Directors may from time to time determine to be appropriate.

The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was a Director, Member, officer, employee or agent of the Company, or while a Director, Member, officer, employee or agent of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of a limited liability company, corporation, partnership, limited partnership, joint venture, trust, employee benefit plan or other Person, entity or enterprise, against any liability asserted against such Person and incurred by such Person in such capacity, or arising out of such Person's status as such, and whether or not the Company would have the power to indemnify such Person against such liability under the provisions of this Article, the Iowa Act or otherwise. The Company may create a trust fund, grant a security interest and/or use other means (including letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as a part thereof any or all of the foregoing, to ensure the payment of such sums as may be necessary to effect full indemnification. The Company's obligation to make indemnification and to pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Company and such insurance shall be primary. To the extent that indemnity or expenses of a Person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such Person by such insurance, such payments shall be deemed to be in satisfaction of the Company's obligation to such Person to make indemnification and to pay expenses pursuant to this Article.
 
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ARTICLE 12
MISCELLANEOUS PROVISIONS

12.1 Notices. Subject to the last paragraph in this Section, all notices, demands, requests and other communications desired or required to be given hereunder ("Notices"), shall be in writing and shall be given by: (i) hand delivery to the address for Notices; (ii) delivery by overnight courier service to the address for Notices; or (iii) sending the same by United States mail, postage prepaid, addressed to the address for Notices.

Subject to the last paragraph in this Section, all Notices shall be deemed given and effective upon the earlier to occur of: (i) the hand delivery of such Notice to the address for Notices; (ii) one business day after the deposit of such Notice with an overnight courier service by the time deadline for next day delivery addressed to the address for Notices; or (iii) three business days after depositing the Notice in the United States mail as set forth in the preceding paragraph.

Subject to the last paragraph in this Section, all Notices to a Director or a Member shall be addressed to the address of the Director or Member, as the case may be, as it appears in the Company's records, and all Notices to the Company shall be sent to the principal office and to the registered agent and office of the Company as set forth in the records of the Iowa Secretary of State, or to such other Persons or at such other place as the Director, Member or the Company, as the case may be, may by Notice designate as a place for service of Notice.

Notwithstanding the foregoing or any other term or condition of this Agreement, or otherwise, which may appear to be to the contrary, any notice, demand, request or other communication desired or required to be given by the Company under this Agreement may be given by the Company to a Director or to a Member by any form of electronic transmission, and any notice given by any form of electronic transmission shall be deemed to be the equivalent of written notice for all purposes, and such electronic transmission and notice shall be deemed to be given and effective upon the Company's transmission thereof to the Director or the Member in question. An electronic transmission may include any process of communication not involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient, and shall include e-mail to the last e-mail address as may from time to time be supplied to the Company by any Director or Member. Each Director and Member shall be responsible for notifying the Company in writing of any change in the e-mail address of such Director or Member. Notwithstanding any term or condition of this Agreement, or otherwise, which may appear to be to the contrary, any written consent or written action by any Director or by any Member may also be given and received by the Company and by the Director or the Member, as the case may be, by any form of electronic transmission.

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12.2 Application of Iowa Law. This Agreement, and the application and interpretation hereof, shall be governed by and construed in accordance with the laws of the State of Iowa, and specifically the Iowa Act, but without regard to provisions thereof relating to conflicts of law. In the event of any conflict or inconsistency between any term or condition of this Agreement and any provision of the Iowa Act, the term or condition of this Agreement shall, unless otherwise expressly and affirmatively prohibited by the Iowa Act, govern and control to the full extent of such conflict or inconsistency.

12.3 Waiver of Action for Partition. Each Member unconditionally and irrevocably waives any right that the Member may have to maintain any action for partition with respect to any of the assets or properties of the Company.

12.4 Execution of Additional Instruments; Power of Attorney to Directors. Each Member agrees to execute such other and further statements of interest and holdings, designations, powers of attorney and other instruments necessary to comply with any laws, rules or regulations, or to evidence the authority of the Directors or the officers of the Company under this Agreement.

Without limiting the generality of the foregoing, and in addition thereto, each Member hereby constitutes and appoints each and all of the Directors, acting singly or together, as the Member's true and lawful agent and attorney in fact, with full power and authority and in such Member's name, place and stead, to make, execute, acknowledge, deliver, file and record all such documents and instruments as may be appropriate to carry out the intent and purposes of this Agreement or the business and affairs of the Company, including any amendments or restatements of this Agreement or the Articles of Organization as may be approved or adopted by the Directors and/or the Members from time to time in accordance with this Agreement. The foregoing power of attorney is coupled with an interest and shall be irrevocable and survive the death or incapacity of each Member, may be exercised by the Directors by a single signature of a Director acting as attorney in fact for all of the Members, and shall survive any assignment of Units by a Member.

12.5 Construction. Words and phrases in this Agreement shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender, according to the context, including, without limitation, all references to "Directors" or "Director" or to "Members" or "Member" during any period of time that the Company only has, respectively, one Director or one Member. The use of the words "herein", "hereof", "hereunder" and other similar compounds of the word "here" refer to this entire Agreement and not to any particular article, section, paragraph or provision. Any reference to an "Article" or a "Section" or "Schedule" in this Agreement is to the article, section or schedule of this Agreement, unless otherwise expressly indicated. The words "include", "includes" and "including" are used in this Agreement in a nonexclusive manner and fashion, that is so as to include, but without limitation, the items, facts or matters in question. Any reference in this Agreement to a section of the Iowa Act or the Code shall, unless otherwise expressly provided in this Agreement, be a reference to such section as amended from time to time, and to the extent necessary, to any successor section or redesignated section. This Agreement shall not be construed more strongly against any Director or Member regardless of who was more responsible for its preparation.

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12.6 Headings and Captions. The headings, captions or titles of articles, sections and paragraphs in this Agreement are provided for convenience of reference only, and shall not be considered a part hereof for purposes of interpreting or applying this Agreement, and such titles or captions do not define, limit, extend, explain or describe the scope or extent of this Agreement or any of its terms or conditions.

12.7 No Waiver. No failure or delay on the part of the Company, any Director, any officer of the Company or any Member in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Except as may be otherwise expressly provided in this Agreement, the remedies provided for in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Company, any Director, any officer of the Company or any Member at law, in equity or otherwise.

12.8 Severability. In the event any provision of this Agreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable. In the event any provision of this Agreement is held to be invalid, illegal or unenforceable as written, but valid, legal and enforceable if modified, then such provision shall be deemed to be amended to such extent as shall be necessary for such provision to be valid, legal and enforceable and it shall be enforced to that extent. Any finding of invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

12.9 Binding Effect on Heirs, Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Company, the Directors, the officers of the Company, the Members and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any Person other than the Company, the Directors, the officers of the Company, the Members, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, liabilities or obligations under or by reason of this Agreement.

12.10 Creditors. Without limiting Section 12.9, none of the provisions of this Agreement are for the benefit of, or are enforceable by, any creditor of the Company.

12.11 Counterparts. This Agreement may be executed by one or more of the Members on any number of separate counterparts or addendums (including by e-mail or facsimile transmission), and said counterparts and addendums taken together shall be deemed to constitute one and the same Agreement.

12.12 Entire Agreement. The Articles of Organization, this Agreement, the Unit Assignment Policy and any exhibits and schedules to this Agreement constitute the entire agreement pertaining to the subject matters of this Agreement and supersede all negotiations, preliminary agreements and all prior or contemporaneous discussions and understandings in connection with the subject matters of this Agreement. Any exhibits and schedules are incorporated into this Agreement as if set forth in their entirety and constitute a part of this Agreement. This Agreement supersedes and replaces in entirety the Original Operating Agreement.

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12.13 Indemnification; Specific Performance. Each Member shall defend, indemnify and hold the Company, the Directors and each of the other Members harmless from and against any suit, proceeding, action, claim, counterclaim, loss, liability, damage, cost and/or expense (including attorneys' fees and court costs) in any way related to, connected with or arising or resulting from any misrepresentation or any breach or nonfulfillment of, or default under, any term or condition of this Agreement by the Member, including any breach or nonfulfillment of, or default under, Article 9.

Each Member respectively acknowledges and agrees that the Company and the other Members shall be entitled to, and hereby instructs and directs any court or other authority to grant the Company and the other Members, specific performance of the duties and obligations of the Member under Section 5.7 and Article 9.

12.14 Consent to Jurisdiction. The Company, each Director, each officer of the Company and each Member hereby submit to the non-exclusive jurisdiction of any United States Federal or Iowa District court sitting in Des Moines, Iowa in any action or proceeding arising out of or relating to this Agreement, and the Company, each Director, each officer of the Company and each Member hereby agree that all claims in respect of any such action or proceeding may be heard and determined in any such United States Federal or Iowa District court. The Company, each Director, each officer of the Company and each Member waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which they may now or hereafter have to the bringing of any such action or proceeding in any such courts. The Company, each Director, each officer of the Company and each Member consent to the service of any and all process in any such action or proceeding brought in any court in or of the State of Iowa by the delivery of copies of such process to them at the address specified for Notices for them.

12.15  Waiver of Jury Trial. The Company, each Director, each officer of the Company and each Member hereby waive any right to a jury trial with respect to and in any action, proceeding, suit, claim, counterclaim, demand or other matter whatsoever arising out of this Agreement. 

IN WITNESS WHEREOF, this Agreement is made and entered into as of the 29th day of June, 2007.
 

 
MEMBERS
     
 
By:
/s/ William Couser
 
William Couser, Director and
 

[SIGNATURE PAGE TO AMENDED AND RESTATED OPERATING AGREEMENT OF
LINCOLNWAY ENERGY, LLC DATED AS OF JUNE 29, 2007]
 
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LINCOLNWAY ENERGY, LLC

UNIT ASSIGNMENT POLICY
Effective June 29, 2007

The Directors of Lincolnway Energy, LLC (the "LLC") have adopted the following as the Unit Assignment Policy of the LLC as contemplated by and for purposes of the Amended and Restated Operating Agreement of the LLC. Any words or terms which are used in this Unit Assignment Policy and that are defined in the Amended and Restated Operating Agreement of the LLC shall have those same meanings as used in and for purposes of this Unit Assignment Policy, including, for example, the words "assignment", "Directors" and "Units".

As provided in the Amended and Restated Operating Agreement, an assignment includes any sale, transfer, assignment or other disposition of or conveyance by any Member of any Units, in whole or in part and whether voluntarily or involuntarily (including under or pursuant to any pledge or other collateral or security agreement) or by operation or any act or process of law or equity, or otherwise. An assignment includes any pledge, hypothecation or grant of a security interest, lien or other encumbrance in or against any Units.

All assignments of any Units shall require the prior approval of the Directors, and the Directors may prohibit, restrict, limit, delay or place conditions on any proposed assignment for any reasonable purpose, as determined by the Directors. A reasonable purpose shall in all events include, without limitation, prohibiting, restricting, limiting, delaying or placing conditions on any assignment which, alone or together with any previous assignments or other assignments that are known or intended or that may reasonably be anticipated, would or might reasonably be determined to:

(a) violate or cause the LLC to violate or to otherwise be in noncompliance with any applicable law, rule, regulation or order, including any foreign, federal, state or local securities law, rule, regulation or order;

(b) cause the LLC to be taxed as a corporation for tax purposes, including by reason of Section 7704 of the Code;

(c) result in the termination of the LLC or the LLC's tax year for tax purposes, including under Section 708 of the Code, or cause the application to the LLC of Sections 168(g)(1)(B) or 168(h) of the Code or similar or analogous rules;

(d) violate any term or condition of the Amended and Restated Operating Agreement, including Section 5.7;

(e) violate or cause the LLC to violate or to otherwise be in noncompliance with any law, rule, regulation or order applicable to the LLC's selection or use of its then current fiscal year, including under Section 444 of the Code;

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(f) require the LLC to become licensed, registered or regulated as an investment company, a broker-dealer or any other form of regulated entity under any applicable foreign, federal, state or local law, rule, regulation or order; or

(g) create or result in any fractional Units.

The assignor and assignee in each proposed assignment shall provide the LLC with a Unit Assignment Application in a form provided by the LLC, and with all such other documents, instruments and information as are deemed to be necessary or appropriate from time to time by the Directors, including (i) the assignee's taxpayer identification number; (ii) the information necessary to determine the assignee’s initial tax basis in the assigned Units; (iii) all information necessary or appropriate for the LLC to be able to file all required tax returns and other legally required information statements or returns; (iv) evidence that the assignee is properly authorized to acquire the Units and to become a Member and/or that the assignor is authorized to assign the Units to the assignee; and (v) a copy of the agreement between the assignee and the assignor. The agreement between the assignor and the assignee must acknowledge the requirements of the Amended and Restated Operating Agreement and this Unit Assignment Policy.

The LLC reserves the right to require the assignor and/or the assignee in each proposed assignment to provide the LLC with an opinion of counsel for the LLC or for the assignor and/or the assignee, in form and content acceptable to the LLC, to the effect that the proposed assignment shall not have or cause any of the results or effects described in subparagraphs (a) through (g) above in this Unit Assignment Policy.

The LLC also reserves the right to require the assignor or the assignee in each proposed assignment to pay all fees, costs and expenses paid or incurred by the LLC in connection with the assignment, including accountants' and attorneys' fees.

An assignment of a Unit may be made pursuant to and upon the terms and conditions of any unit matching service as may be made available from time to time by the LLC on the website of the LLC in accordance with Section 1.7704-1(g) of the Treasury Regulations.

An assignment of a Unit may be made to the LLC in accordance with Section 9.6 of the Amended and Restated Operating Agreement.

The Directors are not required to act upon any proposed assignment of any Unit until the next regularly scheduled meeting of the Directors which follows the date on which the LLC receives a completed and executed Unit Assignment Application from the assignor and the assignee in form and content acceptable to the Directors.

An assignment of a Unit which is approved by the Directors shall be effective for all purposes (including for purposes of allocations and distributions) as of the date determined by the Directors, but such date must be within 32 days of the date of the approval of the assignment by the Directors.

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      The effect of an assignment which is approved by the Directors shall be governed by the Amended and Restated Operating Agreement, and an assignee may become a Substitute Member in accordance with the terms of the Amended and Restated Operating Agreement.
 
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EX-31.1 4 v084132_ex31-1.htm
EXHIBIT 31.1
RULE 13a-14(a) CERTIFICATION

I, Richard Brehm, certify that:

1.    I have reviewed this quarterly report on Form 10-Q of Lincolnway Energy, LLC.

2.    Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.    Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.    The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

(a)    Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)    Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(c)    Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.    The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

(a)    All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
 
(b)    Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
 
Date: August 13, 2007.
/s/  Richard Brehm
 
 Name: Richard Brehm
 
 Title: President and Chief Executive Officer
 
 
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EX-31.2 5 v084132_ex31-2.htm
EXHIBIT 31.2
RULE 13a-14(a) CERTIFICATION

I, Kim Supercynski, certify that:

1.     I have reviewed this quarterly report on Form 10-Q of Lincolnway Energy, LLC.

2.     Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.     Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.     The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

  (a)    Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

  (b)    Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

  (c)    Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.     The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

  (a)    All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

(b)    Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 13, 2007.
/s/ Kim Supercynski
 
Name:
Kim Supercynski
 
Title:
Chief Financial Officer
     
 
 
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EX-32.1 6 v084132_ex32-1.htm
EXHIBIT 32.1

SECTION 1350 CERTIFICATION

Pursuant to 18 U.S.C. Section 1350, I, Richard Brehm, President and Chief Executive Officer of Lincolnway Energy, LLC, certify that to my knowledge (i) Lincolnway Energy, LLC's Quarterly Report on Form 10-Q for the quarter ended June 30, 2007 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Lincolnway Energy, LLC.

Date: August 13, 2007

 
/s/ Richard Brehm
 
Name: Richard Brehm
 
Title: President and Chief Executive Officer
 
[A signed original of this written statement has been provided to Lincolnway Energy, LLC and will be retained by Lincolnway Energy, LLC and furnished to the Securities and Exchange Commission or its staff upon request.]
 
 
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EX-32.2 7 v084132_ex32-2.htm
EXHIBIT 32.2

SECTION 1350 CERTIFICATION

Pursuant to 18 U.S.C. Section 1350, I, Kim Supercynski, Chief Financial Officer of Lincolnway Energy, LLC, certify that to my knowledge (i) Lincolnway Energy, LLC's Quarterly Report on Form 10-Q for the quarter ended June 30, 2007 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Lincolnway Energy, LLC.

Date: August 13, 2007
 
 
 
 
Title: Chief Financial Officer
 
[A signed original of this written statement has been provided to Lincolnway Energy, LLC and will be retained by Lincolnway Energy, LLC and furnished to the Securities and Exchange Commission or its staff upon request.]

 
 
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