EX-10.14



 




Exhibit
10.14



THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT




OF




COFFEYVILLE ACQUISITION LLC




 









 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I

	 
	 	 	 	 	 	 
	FORMATION OF THE COMPANY

	 
	 	 	 	 	 	 
	Section 1.1

	 	Formation
	 	 	2	 
	Section 1.2

	 	Company Name
	 	 	2	 
	Section 1.3

	 	The Certificate, etc
	 	 	2	 
	Section 1.4

	 	Term of Company
	 	 	2	 
	Section 1.5

	 	Registered Agent and Office
	 	 	2	 
	Section 1.6

	 	Principal Place of Business
	 	 	3	 
	Section 1.7

	 	Qualification in Other Jurisdictions
	 	 	3	 
	Section 1.8

	 	Fiscal Year; Taxable Year
	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	PURPOSE AND POWERS OF THE COMPANY

	 
	 	 	 	 	 	 
	Section 2.1

	 	Purpose
	 	 	3	 
	Section 2.2

	 	Powers of the Company
	 	 	3	 
	Section 2.3

	 	Certain Tax Matters
	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	MEMBERS AND INTERESTS GENERALLY

	 
	 	 	 	 	 	 
	Section 3.1

	 	Powers of Members
	 	 	3	 
	Section 3.2

	 	Interests Generally
	 	 	4	 
	Section 3.3

	 	Meetings of Members
	 	 	5	 
	Section 3.4

	 	Business Transactions of a Member with the Company
	 	 	6	 
	Section 3.5

	 	No Cessation of Membership upon Bankruptcy
	 	 	6	 
	Section 3.6

	 	Additional Members
	 	 	6	 
	Section 3.7

	 	Other Business for Members
	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE IV

 
	MANAGEMENT

	 
	 	 	 	 	 	 
	Section 4.1

	 	Board
	 	 	8	 
	Section 4.2

	 	Meetings of the Board
	 	 	8	 
	Section 4.3

	 	Quorum and Acts of the Board
	 	 	8	 
	Section 4.4

	 	Electronic Communications
	 	 	9	 
	Section 4.5

	 	Committees of Directors
	 	 	9	 
	Section 4.6

	 	Compensation of Directors
	 	 	9	 
	Section 4.7

	 	Resignation
	 	 	9	 
	Section 4.8

	 	Removal of Directors
	 	 	10	 
	Section 4.9

	 	Vacancies
	 	 	10	 






i









 







Table of Contents
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 4.10

	 	Directors as Agents
	 	 	10	 
	Section 4.11

	 	Officers
	 	 	10	 
	Section 4.12

	 	Strategic Planning Committee
	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS

	 
	 	 	 	 	 	 
	Section 5.1

	 	Representations, Warranties and Covenants of Members
	 	 	11	 
	Section 5.2

	 	Additional Representations and Warranties of Non-Investor Members
	 	 	12	 
	Section 5.3

	 	Additional Representations and Warranties of Investor Members
	 	 	13	 
	Section 5.4

	 	Additional Covenants of Management Members
	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS

	 
	 	 	 	 	 	 
	Section 6.1

	 	Capital Accounts
	 	 	13	 
	Section 6.2

	 	Adjustments
	 	 	14	 
	Section 6.3

	 	Additional Capital Contributions
	 	 	14	 
	Section 6.4

	 	Negative Capital Accounts
	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	ADDITIONAL TERMS APPLICABLE TO OVERRIDE UNITS

	 
	 	 	 	 	 	 
	Section 7.1

	 	Certain Terms
	 	 	14	 
	Section 7.2

	 	Effects of Termination of Employment on Override Units
	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	ALLOCATIONS

	 
	 	 	 	 	 	 
	Section 8.1

	 	Book Allocations of Net Income and Net Loss
	 	 	17	 
	Section 8.2

	 	Special Book Allocations
	 	 	18	 
	Section 8.3

	 	Tax Allocations
	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 	 	 
	DISTRIBUTIONS

	 
	 	 	 	 	 	 
	Section 9.1

	 	Distributions Generally
	 	 	19	 
	Section 9.2

	 	Distributions In Kind
	 	 	20	 
	Section 9.3

	 	No Withdrawal of Capital
	 	 	20	 
	Section 9.4

	 	Withholding
	 	 	20	 
	Section 9.5

	 	Restricted Distributions
	 	 	21	 






ii









 






Table of Contents
(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 9.6

	 	Tax Distributions
	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 
	 	 	 	 	 	 
	BOOKS AND RECORDS

	 
	 	 	 	 	 	 
	Section 10.1

	 	Books, Records and Financial Statements
	 	 	21	 
	Section 10.2

	 	Filings of Returns and Other Writings; Tax Matters Partner
	 	 	21	 
	Section 10.3

	 	Accounting Method
	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 	 	 
	LIABILITY, EXCULPATION AND INDEMNIFICATION

	 
	 	 	 	 	 	 
	Section 11.1

	 	Liability
	 	 	22	 
	Section 11.2

	 	Exculpation
	 	 	22	 
	Section 11.3

	 	Fiduciary Duty
	 	 	23	 
	Section 11.4

	 	Indemnification
	 	 	23	 
	Section 11.5

	 	Expenses
	 	 	23	 
	Section 11.6

	 	Severability
	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 	 	 
	TRANSFERS OF INTERESTS

	 
	 	 	 	 	 	 
	Section 12.1

	 	Restrictions on Transfers of Interests by Members
	 	 	24	 
	Section 12.2

	 	Overriding Provisions
	 	 	24	 
	Section 12.3

	 	Estate Planning Transfers; Transfers upon Death of a Management Member
	 	 	24	 
	Section 12.4

	 	Involuntary Transfers
	 	 	25	 
	Section 12.5

	 	Assignments
	 	 	25	 
	Section 12.6

	 	Substitute Members
	 	 	25	 
	Section 12.7

	 	Release of Liability
	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE XIII

	 
	 	 	 	 	 	 
	DISSOLUTION, LIQUIDATION AND TERMINATION

	 
	 	 	 	 	 	 
	Section 13.1

	 	Dissolving Events
	 	 	26	 
	Section 13.2

	 	Dissolution and Winding-Up
	 	 	26	 
	Section 13.3

	 	Distributions in Cash or in Kind
	 	 	27	 
	Section 13.4

	 	Termination
	 	 	27	 
	Section 13.5

	 	Claims of the Members
	 	 	27	 






iii









 






Table of Contents
(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE XIV

	 
	 	 	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	Section 14.1

	 	Notices
	 	 	28	 
	Section 14.2

	 	Securities Act Matters
	 	 	29	 
	Section 14.3

	 	Headings
	 	 	29	 
	Section 14.4

	 	Entire Agreement
	 	 	29	 
	Section 14.5

	 	Counterparts
	 	 	29	 
	Section 14.6

	 	Governing Law; Attorneys’ Fees
	 	 	29	 
	Section 14.7

	 	Waivers
	 	 	29	 
	Section 14.8

	 	Invalidity of Provision
	 	 	30	 
	Section 14.9

	 	Further Actions
	 	 	30	 
	Section 14.10

	 	Amendments
	 	 	30	 
	Section 14.11

	 	No Third Party Beneficiaries
	 	 	30	 
	Section 14.12

	 	Injunctive Relief
	 	 	31	 
	Section 14.13

	 	Power of Attorney
	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE XV

	 
	 	 	 	 	 	 
	DEFINED TERMS

	 
	 	 	 	 	 	 
	Section 15.1

	 	Definitions
	 	 	32	 







iv











 





THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF

COFFEYVILLE ACQUISITION LLC




     This Third Amended and Restated Limited Liability Company Agreement of Coffeyville Acquisition
LLC (the “Company”) is dated as of October 16, 2007, among the entities listed under the
heading “Kelso Members” on Schedule A hereto (each, a “Kelso Member” and, collectively, the
“Investor Members”), the individuals listed under the heading “Management Members” on
Schedule A hereto (each a “Management Member” and collectively, the “Management
Members,” which term shall also include such other management employees of the Company who
become members of the Company and are designated “Management Members” after the date hereof in
accordance with Section 3.6 of this Agreement) and the Persons listed under the heading “Outside
Members” on Schedule A hereto (each an “Outside Member” and together with any Persons who
become members of the Company and are designated “Outside Members” after the date hereof in
accordance with Section 3.6 of this Agreement, the “Outside Members”. The Management
Members, the Inactive Management Members and the Outside Members are collectively referred to
herein as the “Non-Investor Members.” The Investor Members and the Non-Investor Members
are collectively referred to herein as the “Members.” Any capitalized term used herein
without definition shall have the meaning set forth in Article XV.



     WHEREAS, the GSCP Members (as defined in the Original LLC Agreement) entered into a limited
liability company agreement, dated as of May 13, 2005 (the “Original LLC Agreement”), to
govern the Company;



     WHEREAS, on June 24, 2005, in connection with the consummation of the transactions
contemplated by the Stock Purchase Agreement, the GSCP Members entered into an amended and restated
limited liability company agreement (the “Amended and Restated LLC Agreement”) for the
purpose of, among other things, admitting the Kelso Members and the Outside Members as Additional
Members (as defined in the Original LLC Agreement) of the Company;



     WHEREAS, on July 25, 2005, the Members of the Company as of such date entered into a second
amended and restated limited liability company agreement (the “Second Amended and Restated LLC
Agreement”) for the purpose of, among other things, admitting additional members to the
Company;



     WHEREAS, contemporaneously with this Agreement, the Company entered into a limited liability
company agreement with Coffeyville Acquisition II LLC, a Delaware limited liability company
(“CA II”), pursuant to which the Company contributed 50% of its assets to CA II in
consideration of the issuance by CA II to the Company of 100% of the membership interests of CA II;



     WHEREAS, contemporaneously with this Agreement, the Company entered into a redemption
agreement with the GSCP Members (as such term is defined in the Second Amended and Restated LLC
Agreement), Wesley Clark and the Management Members, pursuant to which the Company redeemed 100% of
the Interests of each of the GSCP Members and one-half of the



 









 




Interests of each of the Management Members and Wesley Clark in exchange for 100% of the
membership interests of CA II held by the Company;




     WHEREAS the redemption shall be treated as a division of the Company within the meaning of
Treasury Regulation section 1.708-1(d) with neither the Company nor CA II treated as a continuing
partnership; and



     WHEREAS, the parties hereto desire to enter into this Agreement for the purpose of adopting
the terms of this Agreement as the complete expression of the covenants, agreements and
undertakings of the parties hereto with respect to the affairs of the Company, the conduct of its
business and the rights and obligations of the Members, thereby amending, restating, replacing and
superseding the Second Amended and Restated LLC Agreement in its entirety.



     NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:



ARTICLE I




FORMATION OF THE COMPANY




     Section 1.1 Formation. The Company was formed upon the filing of the Certificate with
the Secretary of State of the State of Delaware on May 13, 2005.



     Section 1.2 Company Name. The name of the Company is Coffeyville Acquisition LLC.
The business of the Company may be conducted under such other names as the Board may from time to
time designate; provided that the Company complies with all relevant state laws relating to
the use of fictitious and assumed names.



     Section 1.3 The Certificate, etc. Each Director is hereby authorized to execute,
deliver, file and record all such other certificates and documents, including amendments to or
restatements of the Certificate, and to do such other acts as may be appropriate to comply with all
requirements for the formation, continuation and operation of a limited liability company, the
ownership of property, and the conduct of business under the laws of the State of Delaware and any
other jurisdiction in which the Company may own property or conduct business.



     Section 1.4 Term of Company. The term of the Company commenced on the date of the
initial filing of the Certificate with the Secretary of State of the State of Delaware. The
Company may be terminated in accordance with the terms and provisions hereof, and shall continue
unless and until dissolved as provided in Article XIII. The existence of the Company as a separate
legal entity shall continue until the cancellation of the Certificate as provided in the Delaware
Act.



     Section 1.5 Registered Agent and Office. The Company’s registered agent and office in
the State of Delaware is The Corporation Trust Company located at 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The Board may designate another registered



2









 




agent and/or registered office from time to time in accordance with the then applicable
provisions of the Delaware Act and any other applicable laws.




     Section 1.6 Principal Place of Business. The principal place of business of the
Company is located at 10 E. Cambridge Circle, Ste. 250, Kansas City, Kansas 66103. The location of
the Company’s principal place of business may be changed by the Board from time to time in
accordance with the then applicable provisions of the Delaware Act and any other applicable laws.



     Section 1.7 Qualification in Other Jurisdictions. Any authorized person of the
Company shall execute, deliver and file any certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company
may wish to conduct business.



     Section 1.8 Fiscal Year; Taxable Year. The fiscal year of the Company for financial
accounting purposes shall end on December 31.



ARTICLE II




PURPOSE AND POWERS OF THE COMPANY




     Section 2.1 Purpose. The purposes of the Company are, and the nature of the business
to be conducted and promoted by the Company is, engaging in any lawful act or activity for which
limited liability companies may be formed under the Delaware Act and engaging in all acts or
activities as the Company deems necessary, advisable or incidental to the furtherance of the
foregoing.



     Section 2.2 Powers of the Company. The Company shall have the power and authority to
take any and all actions that are necessary, appropriate, advisable, convenient or incidental to or
for the furtherance of the purposes set forth in Section 2.1.



     Section 2.3 Certain Tax Matters. The Company shall not elect, and the Board shall not
permit the Company to elect, to be treated as an association taxable as a corporation for U.S.
federal, state or local income tax purposes under Treasury Regulations section 301.7701-3 or under
any corresponding provision of state or local law. The Company and the Board shall not permit the
registration or listing of the Interests on an “established securities market,” as such term is
used in Treasury Regulations section 1.7704-1.



ARTICLE III




MEMBERS AND INTERESTS GENERALLY




     Section 3.1 Powers of Members. The Members shall have the power to exercise any and
all rights or powers granted to the Members pursuant to the express terms of this Agreement. The
approval or consent of the Members shall not be required in order to authorize the taking of any
action by the Company unless and then only to the extent that (a) this Agreement shall
expressly provide therefor, (b) such approval or consent shall be required by non-waivable
provisions of the Delaware Act or (c) the Board shall have determined in its sole
discretion that



3









 




obtaining such approval or consent would be appropriate or desirable. The Members, as such,
shall have no power to bind the Company.




     Section 3.2 Interests Generally. As of the date hereof, the Company has two
authorized classes of Interests: Common Units and Override Units (which will consist of either
Operating Units or Value Units as described below). Except as otherwise provided in this Article
III, the Company shall not (1) authorize additional classes of Interests denominated in the form of
Units other than Override Units or (2) to issue Units in a particular class to any Person other
than a Management Member (including any Person who becomes a Management Member at any time after
the date of this Agreement in accordance with Section 3.6) without (x) the prior consent of the
Board, (y) the prior consent of a Majority in Interest (exclusive of Override Units) of the
Management Members or, to the extent (and only to the extent) any particular Management Member
would be uniquely and adversely affected by a proposed additional class of Interests, by such
Management Member and (z) the prior consent of CA II. Additional classes of Override Units may be
authorized from time to time by the Board without obtaining the consent of any Member, class of
Members or CA II.



     (a) Common Units.




          (i) General. Subject to the provisions of Section 7.2(b), the holders of
Common Units will have voting rights with respect to their Common Units as provided in
Section 3.3(d) and shall have the rights with respect to profits and losses of the Company
and distributions from the Company as are set forth herein. The number of Common Units of
each Member as of any given time shall be set forth on Schedule A, as it may be updated from
time to time in accordance with this Agreement.




          (ii) Price. The payment terms and schedule for the Capital Contributions
applicable to any Common Unit will be determined by the Board upon issuance of such Common
Units.



     (b) Override Units.




          (i) General. The Company will have two sub-classes of Override Units:
Operating Units and Value Units. Subject to the provisions of Article VII hereof (including
the applicable Benchmark Amount), the holders of Override Units will have no voting rights
with respect to their Override Units but shall have the rights with respect to profits and
losses of the Company and distributions from the Company as are set forth herein;
provided that additional terms and conditions applicable to an Override Unit may be
established by the Board in connection with the issuance of any such Override Unit to a
person who becomes a Management Member at any time after the date of this Agreement in
accordance with Section 3.6 hereof. The number of Override Units issued to a Management
Member as of any given time shall be set forth on Schedule A, as it may be updated from time
to time in accordance with this Agreement. Following the forfeiture and cancellation of any
Override Units pursuant to Section 7.2, the Company may issue a number of Override Units up
to such number of forfeited and cancelled Override Units as the Board may determine, without
obtaining the consent of any Member, class of Members or CA II.



4









 






          (ii) Price. The holders of Override Units are not required to make any Capital
Contribution to the Company in exchange for their Override Units, it being recognized that,
unless otherwise determined by a majority of the Board, such Units shall be issued only to
Management Members who own Common Units and who agree to provide services to the Company
pursuant to Section 4.12.



     (c) At least 30 days prior to any issuance of Interests by the Company to any Management
Member (including any Person who becomes a Management Member at any time after the date of this
Agreement in accordance with Section 3.6), the Company shall deliver a written notice to that
effect to CA II, which notice shall include the amount and type of Interests to be issued, the
identity of such Management Member or Management Members, the Capital Contribution expected to be
made with respect to such Interests, if any, and any other material terms and conditions of such
proposed issuance.



     Section 3.3 Meetings of Members.



     (a) Meetings; Notice of Meetings. Meetings of the Members, including any special
meeting, may be called by the Board from time to time. Notice of any such meeting shall be given
to all Members not less than two nor more than 30 business days prior to the date of such meeting
and shall state the location, date and hour of the meeting and, in the case of a special meeting,
the nature of the business to be transacted. Meetings shall be held at the location (within or
without the State of Delaware) at the date and hour set forth in the notice of the meeting.



     (b) Waiver of Notice. No notice of any meeting of Members need be given to any Member
who submits a signed waiver of notice, whether before or after the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the Members need be
specified in a written waiver of notice. The attendance of any Member at a meeting of Members
shall constitute a waiver of notice of such meeting, except when the Member attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.



     (c) Quorum. Except as otherwise required by applicable law or by the Certificate, the
presence in person or by proxy of the holders of record of a Majority in Interest shall constitute
a quorum for the transaction of business at such meeting.



     (d) Voting. If the Board has fixed a record date, every holder of record of Units
entitled to vote at a meeting of Members or to consent in writing in lieu of a meeting of Members
as of such date shall be entitled to one vote for each such Unit outstanding in such Member’s name
at the close of business on such record date. Holders of record of Override Units will have no
voting rights with respect to such Units. If no record date has been so fixed, then every holder
of record of such Units entitled to vote at a meeting of Members or to consent in writing in lieu
of a meeting of Members shall be entitled to one vote for each Unit outstanding in his name on the
close of business on the day next preceding the day on which notice of the meeting is given or the
first consent in respect of the applicable action is executed and delivered to the Company, or, if
notice is waived, at the close of business on the day next preceding the day on which the meeting
is held. Except as otherwise required by applicable law, the Certificate or this



5









 




Agreement, the vote of a Majority in Interest at any meeting at which a quorum is present
shall be sufficient for the transaction of any business at such meeting.




     (e) Proxies. Each Member may authorize any Person to act for such Member by proxy on
all matters in which a Member is entitled to participate, including waiving notice of any meeting,
or voting or participating at a meeting. Every proxy must be signed by the Member or such Member’s
attorney-in-fact. No proxy shall be valid after the expiration of three years from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of
the Member executing it unless otherwise provided in such proxy; provided, that such right
to revocation shall not invalidate or otherwise affect actions taken under such proxy prior to such
revocation.



     (f) Organization. Each meeting of Members shall be conducted by such Person as the
Board may designate.



     (g) Action Without a Meeting. Unless otherwise provided in this Agreement, any action
which may be taken at any meeting of the Members may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so taken, shall be
signed by a Majority in Interest. Prompt notice of the taking of the action without a meeting by
less than unanimous written consent shall be given to those Members who have not consented in
writing.



     Section 3.4 Business Transactions of a Member with the Company. A Member may lend
money to, borrow money from, act as surety or endorser for, guarantee or assume one or more
specific obligations of, provide collateral for, or transact any other business with the Company or
any of its Subsidiaries; provided that any such transaction shall require the approval of
the Board.



     Section 3.5 No Cessation of Membership upon Bankruptcy. A Person shall not cease to
be a Member of the Company upon the happening, with respect to such Person, of any of the events
specified in Section 18-304 of the Delaware Act.



     Section 3.6 Additional Members.



     (a) Admission Generally. Upon the approval of (x) the Board, (y) a Majority in
Interest (exclusive of Override Units) of the Management Members or, to the extent (and only to the
extent) any particular Management Member would be uniquely and adversely affected by such action,
by such Management Member and (z) CA II, the Company may admit one or more additional Members
(each, an “Additional Member”), to be treated as a “Member” or one of the “Members” for all
purposes hereunder. The Board may designate any such Additional Member as an “Investor Member,” a
“Management Member” or an “Outside Member” hereunder. Notwithstanding the foregoing, one or more
management employees of the Company may be admitted as a Management Member upon approval of the
Board without obtaining the consent of any Member, class of Members or CA II.



     (b) Rights of Additional Members. Prior to the admission of an Additional Member, the
Board shall determine:



6









 






          (i) the Capital Contribution (if any) of such Additional Member;




          (ii) the rights, if any, of such Additional Member to appoint Directors to the Board;




          (iii) the number of Units to be granted to such Additional Member and whether such
Units shall be Common Units, Override Units or Units of an additional class of Interests
authorized pursuant to the terms of this Agreement; and in the case of Common Units, the
price to be paid therefor and in the case of any Override Units, the applicable Benchmark
Amount and terms thereof, including whether such Override Units are Operating Units or Value
Units; and




          (iv) whether such Additional Member will be a Management Member or an Investor Member
or an Outside Member; provided that the rights and obligations of any Outside Member
shall be as specified by the Board in its sole discretion and, if such terms are different
from the terms applicable to the Outside Members as provided herein, this Agreement shall be
amended, in accordance with Section 14.10, to reflect such terms.



     (c) Admission Procedure. Each Person shall be admitted as an Additional Member at the
time such Person (i) executes a joinder agreement to this Agreement, (ii) makes
Capital Contributions (if any) to the Company in an amount to be determined by the Board,
(iii) complies with the applicable Board resolution, if any, with respect to such
admission, (iv) is issued Units (if any) by the Company and (v) is named as a
Member in Schedule A (as described in Section 12.2) hereto. The Board is authorized to amend
Schedule A to reflect any issuance of Units and any such admission and any actions pursuant to this
Section 3.6.



     Section 3.7 Other Business for Members.



     (a) Existing Business Ventures. Each Member, Director and their respective Affiliates
may engage in or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the Company, and the
Company, the Directors and the Members shall have no rights by virtue of this Agreement in and to
such independent ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Company, shall not be deemed wrongful or
improper.



     (b) Business Opportunities. No Member, Director or any of their respective Affiliates
shall be obligated to present any particular investment opportunity to the Company even if such
opportunity is of a character that the Company or any of its Subsidiaries might reasonably be
deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so,
and each Member, Director or any of their respective Affiliates shall have the right to take for
such Person’s own account (individually or as a partner or fiduciary) or to recommend to others any
such particular investment opportunity.



     (c) Management Members. For the avoidance of doubt, the provisions of Section 3.7(a)
and (b) shall not in any way limit any non-competition or non-solicitation restrictions contained
in an employment, severance, separation or services agreement between any Management



7









 




Member or any other Member who is an employee of the Company or any of its Subsidiaries and
the Company or any of its Subsidiaries.




ARTICLE IV




MANAGEMENT




     Section 4.1 Board.



     (a) Generally. The business and affairs of the Company shall be managed by or under
the direction of a committee of the Company (the “Board”) consisting of such number of
natural persons (each, a “Director”) as shall be established by the vote, approval or
consent of a Majority in Interest from time to time. The Directors shall be appointed to the Board
upon the vote, approval or consent of a Majority in Interest. Directors need not be Members.
Subject to the other provisions of this Article IV, the Board shall have full, exclusive and
complete discretion to manage and control the business and affairs of the Company, to make all
decisions affecting the business and affairs of the Company and to take all such actions as it
deems necessary or appropriate to accomplish the purposes of the Company as set forth herein,
including, without limitation, to exercise all of the powers of the Company set forth in Section
2.2 of this Agreement. Each person named as a Director herein or subsequently appointed as a
Director is hereby designated as a “manager” (within the meaning of the Delaware Act) of the
Company. Except as otherwise provided herein, and notwithstanding the last sentence of Section
18-402 of the Delaware Act, no single Director may bind the Company, and the Board shall have the
power to act only collectively in accordance with the provisions and in the manner specified
herein. Each Director shall hold office until a successor is appointed in accordance with this
Section 4.1(b) or until such Director’s earlier death, resignation or removal in accordance with
the provisions hereof.



     (b) Current Directors. Subject to the right to increase or decrease the authorized
number of Directors pursuant to the first sentence of Section 4.1(a), the Board shall consist of
two Directors. The two Directors referenced in the immediately preceding sentence shall be Stanley
de J. Osborne and George E. Matelich.



     Section 4.2 Meetings of the Board. The Board shall meet from time to time to discuss
the business of the Company. The Board may hold meetings either within or without the State of
Delaware. Meetings of the Board may be held without notice at such time and at such place as shall
from time to time be determined by the Board. The Chief Executive Officer of the Company or a
majority of the Board may call a meeting of the Board on five business days’ notice to each
Director, either personally, by telephone, by facsimile or by any other similarly timely means of
communication, which notice requirement may be waived by the Directors.



     Section 4.3 Quorum and Acts of the Board.



     (a) At all meetings of the Board, two Directors shall constitute a quorum for the transaction
of business, unless the number of Directors is increased or decreased pursuant to Section 4.1(a),
in which case the presence of a majority of the then authorized number of Directors shall
constitute a quorum. If a quorum shall not be present at any meeting of the



8









 




Board, the Directors present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof may be taken without
a meeting, if a majority of the members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of proceedings of the
Board or committee.




     (b) Except as otherwise provided in this Agreement, the act of a majority of the Directors
present at any meeting at which there is a quorum shall be the act of the Board.



     Section 4.4 Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in a meeting of the Board, or any committee, by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.



     Section 4.5 Committees of Directors. The Board may, by resolution passed by a
majority of Directors, designate one or more committees. Such resolution shall specify the duties,
quorum requirements and qualifications of the members of such committees, each such committee to
consist of such number of Directors as the Board may fix from time to time. The Board may
designate one or more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not such members constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board, shall have and may
exercise all the powers and authority of the Board in the management of the business and affairs of
the Company. Such committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its
meetings and report the same to the Board when required.



     Section 4.6 Compensation of Directors. The Board shall have the authority to fix the
compensation of Directors. The Directors may be paid their expenses, if any, of attendance at such
meetings of the Board and may be paid a fixed sum for attendance at each meeting of the Board or a
stated salary as a Director. No such payment shall preclude any Director from serving the Company
in any other capacity and receiving compensation therefor. Members of any committee of the Board
may be allowed like compensation for attending committee meetings.



     Section 4.7 Resignation. Any Director may resign at any time by giving written notice
to the Company. The resignation of any Director shall take effect upon receipt of such notice or
at such later time as shall be specified in the notice; and, unless otherwise specified in the
notice, the acceptance of the resignation by the Company, the Members or the remaining Directors
shall not be necessary to make it effective. Upon the effectiveness of any such resignation, such
Director shall cease to be a “manager” (within the meaning of the Delaware Act).



9









 





     Section 4.8 Removal of Directors. Members shall have the right to remove any Director
at any time for cause upon the affirmative vote of a Majority in Interest. In addition, a majority
of the Directors then in office shall have the right to remove a Director for cause. Upon the
taking of such action, the Director shall cease to be a “manager” (within the meaning of the
Delaware Act). Any vacancy caused by any such removal shall be filled in accordance with Section
4.9.



     Section 4.9 Vacancies. If any vacancies shall occur in the Board, by reason of death,
resignation, deemed resignation, removal or otherwise, the Directors then in office shall continue
to act, and actions that would otherwise be taken by a majority of the Directors may be taken by a
majority of the Directors then in office, even if less than a quorum. A Director elected to fill a
vacancy shall hold office until his or her successor has been elected and qualified or until his or
her earlier death, resignation or removal.



     Section 4.10 Directors as Agents. The Directors, to the extent of their powers set
forth in this Agreement, are agents of the Company for the purpose of the Company’s business, and
the actions of the Directors taken in accordance with such powers shall bind the Company. Except
as otherwise provided in Section 1.3 and notwithstanding the last sentence of Section 18-402 of the
Delaware Act, no single Director shall have the power to bind the Company and the Board shall have
the power to act only collectively in the manner specified herein.



     Section 4.11 Officers. The Board shall appoint an individual or individuals to serve
as the Company’s Chief Executive Officer and President and Chief Financial Officer and may, from
time to time as it deems advisable, appoint additional officers of the Company (together with the
Chief Executive Officer and President and Chief Financial Officer, the “Officers”) and
assign such officers titles (including, without limitation, Vice President, Secretary and
Treasurer). Unless otherwise decided by a majority of the Board, each Management Member shall be
an officer of the Company. Unless the Board decides otherwise, if the title is one commonly used
for officers of a business corporation formed under the Delaware General Corporation Law, the
assignment of such title shall constitute the delegation to such person of the authorities and
duties that are normally associated with that office. Any delegation pursuant to this Section 4.11
may be revoked at any time by the Board. Any Officer may be removed with or without cause by the
Board, except as otherwise provided in any services or employment agreement between such Officer
and the Company.



     Section 4.12 Strategic Planning Committee. The Company shall establish a Strategic
Planning Committee to advise the President and Chief Executive Officer of the Company on such
matters as he shall request, which shall at a minimum include (but shall not be limited to)
assessment of and advice regarding (a) the business affairs and prospects of the Company
and its Subsidiaries; (b) developing and implementing corporate and business strategy and
planning for the Company and its Subsidiaries, including plans and programs for improving
operating, marketing and financial performance, budgeting of future corporate investments,
acquisition and divestiture strategies, and reorganization programs and (c) planning for
and assessment of strategic opportunities and disposition prospects for the Company and its
Subsidiaries. The Strategic Planning Committee shall have no decision-making authority, but
instead shall advise and report to, and be chaired by, the President and Chief Executive Officer of
the Company. The Strategic Planning Committee shall consist of each Management Member (excluding
Inactive



10









 




Management Members). The Strategic Planning Committee shall meet at least semiannually and in
connection with matters determined by the Board in its sole discretion.




ARTICLE V




INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS




     Section 5.1 Representations, Warranties and Covenants of Members.



     (a) Investment Intention and Restrictions on Disposition. Each Member represents and
warrants that such Member is acquiring the Interests solely for such Member’s own account for
investment and not with a view to resale in connection with any distribution thereof. Each Member
agrees that such Member will not, directly or indirectly, Transfer any of the Interests (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of any of the Interests) or any
interest therein or any rights relating thereto or offer to Transfer, except in compliance with the
Securities Act, all applicable state securities or “blue sky” laws and this Agreement, as the same
shall be amended from time to time. Any attempt by a Member, directly or indirectly, to Transfer,
or offer to Transfer, any Interests or any interest therein or any rights relating thereto without
complying with the provisions of this Agreement, shall be void and of no effect.



     (b) Securities Laws Matters. Each Member acknowledges receipt of advice from the
Company that (i) the Interests have not been registered under the Securities Act or
qualified under any state securities or “blue sky” laws, (ii) it is not anticipated that
there will be any public market for the Interests, (iii) the Interests must be held
indefinitely and such Member must continue to bear the economic risk of the investment in the
Interests unless the Interests are subsequently registered under the Securities Act and such state
laws or an exemption from registration is available, (iv) Rule 144 promulgated under the
Securities Act (“Rule 144”) is not presently available with respect to sales of any
securities of the Company and the Company has made no covenant to make Rule 144 available and Rule
144 is not anticipated to be available in the foreseeable future, (v) when and if the
Interests may be disposed of without registration in reliance upon Rule 144, such disposition can
be made only in limited amounts and in accordance with the terms and conditions of such Rule and
the provisions of this Agreement, (vi) if the exemption afforded by Rule 144 is not
available, public sale of the Interests without registration will require the availability of an
exemption under the Securities Act, (vii) restrictive legends shall be placed on any
certificate representing the Interests and (viii) a notation shall be made in the
appropriate records of the Company indicating that the Interests are subject to restrictions on
transfer and, if the Company should in the future engage the services of a transfer agent,
appropriate stop-transfer instructions will be issued to such transfer agent with respect to the
Interests.



     (c) Ability to Bear Risk. Each Member represents and warrants that (i) such
Member’s financial situation is such that such Member can afford to bear the economic risk of
holding the Interests for an indefinite period and (ii) such Member can afford to suffer
the complete loss of such Member’s investment in the Interests.



     (d) Access to Information; Sophistication; Lack of Reliance. Each Member represents
and warrants that (i) such Member is familiar with the business and financial condition,



11









 




properties, operations and prospects of the Company and that such Member has been granted the
opportunity to ask questions of, and receive answers from, representatives of the Company
concerning the Company and the terms and conditions of the purchase of the Interests and to obtain
any additional information that such Member deems necessary, (ii) such Member’s knowledge
and experience in financial and business matters is such that such Member is capable of evaluating
the merits and risk of the investment in the Interests and (iii) such Member has carefully
reviewed the terms and provisions of this Agreement and has evaluated the restrictions and
obligations contained therein. In furtherance of the foregoing, each Member represents and
warrants that (i) no representation or warranty, express or implied, whether written or
oral, as to the financial condition, results of operations, prospects, properties or business of
the Company or as to the desirability or value of an investment in the Company has been made to
such Member by or on behalf of the Company, (ii) such Member has relied upon such Member’s
own independent appraisal and investigation, and the advice of such Member’s own counsel, tax
advisors and other advisors, regarding the risks of an investment in the Company and (iii)
such Member will continue to bear sole responsibility for making its own independent evaluation and
monitoring of the risks of its investment in the Company.




     (e) Accredited Investor. Each Member represents and warrants that such Member is an
“accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act and, in connection with the execution of this Agreement, agrees to deliver such
certificates to that effect as the Board may request.



     Section 5.2 Additional Representations and Warranties of Non-Investor Members. Each
Non-Investor Member represents and warrants that (i) such Non-Investor Member has duly
executed and delivered this Agreement, (ii) all actions required to be taken by or on
behalf of the Non-Investor Member to authorize it to execute, deliver and perform its obligations
under this Agreement have been taken and this Agreement constitutes such Non-Investor Member’s
legal, valid and binding obligation, enforceable against such Non-Investor Member in accordance
with the terms hereof, (iii) the execution and delivery of this Agreement and the
consummation by the Non-Investor Member of the transactions contemplated hereby in the manner
contemplated hereby do not and will not conflict with, or result in a breach of any terms of, or
constitute a default under, any agreement or instrument or any applicable law, or any judgment,
decree, writ, injunction, order or award of any arbitrator, court or governmental authority which
is applicable to the Non-Investor Member or by which the Non-Investor Member or any material
portion of its properties is bound, (iv) no consent, approval, authorization, order,
filing, registration or qualification of or with any court, governmental authority or third person
is required to be obtained by such Non-Investor Member in connection with the execution and
delivery of this Agreement or the performance of such Non-Investor Member’s obligations hereunder,
(v) if such Non-Investor Member is an individual, such Non-Investor Member is a resident of
the state set forth opposite such Non-Investor Member’s name on Schedule A and (vi) if such
Non-Investor Member is not an individual, such Non-Investor Member’s principal place of business
and mailing address is in the state set forth opposite such Non-Investor Member’s name on Schedule
A.



12









 





     Section 5.3 Additional Representations and Warranties of Investor Members.



     (a) Due Organization; Power and Authority, etc. Kelso Investment Associates VII, L.P.
represents and warrants that it is a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware. KEP VI, LLC represents and warrants that it is a
limited liability company duly formed, validly existing and in good standing under the laws of the
State of Delaware. Each Investor Member further represents and warrants that it has all necessary
power and authority to enter into this Agreement to carry out the transactions contemplated herein.



     (b) Authorization; Enforceability. All actions required to be taken by or on behalf
of such Investor Member to authorize it to execute, deliver and perform its obligations under this
Agreement have been taken, and this Agreement constitutes the legal, valid and binding obligation
of such Investor Member, enforceable against such Investor Member in accordance with its terms,
except as the same may be affected by bankruptcy, insolvency, moratorium or similar laws, or by
legal or equitable principles relating to or limiting the rights of contracting parties generally.



     (c) Compliance with Laws and Other Instruments. The execution and delivery of this
Agreement and the consummation by such Investor Member of the transactions contemplated hereby and
thereby in the manner contemplated hereby and thereby do not and will not conflict with, or result
in a breach of any terms of, or constitute a default under, any agreement or instrument or any
applicable law, or any judgment, decree, writ, injunction, order or award of any arbitrator, court
or governmental authority which is applicable to such Investor Member or by which such Investor
Member or any material portion of its properties is bound, except for conflicts, breaches and
defaults that, individually or in the aggregate, will not have a material adverse effect upon the
financial condition, business or operations of such Investor Member or upon such Investor Member’s
ability to enter into and carry out its obligations under this Agreement.



     (d) Executing Parties. The person executing this Agreement on behalf of each Investor
Member has full power and authority to bind such Investor Member to the terms hereof and thereof.



     Section 5.4 Additional Covenants of Management Members. Each Management Member hereby
agrees that, upon the receipt of any Override Unit, it shall make an election pursuant to section
83(b) of the Code.



ARTICLE VI




CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS




     Section 6.1 Capital Accounts. A separate capital account (a “Capital
Account”) shall be established and maintained for each Member. The current balance in each
Member’s Capital Account is as set forth on Schedule A.



13









 





     Section 6.2 Adjustments.



     (a) Any contributions of property after the date hereof shall be valued at their Fair Market
Value.



     (b) As of the end of each Accounting Period, the balance in each Member’s Capital Account
shall be adjusted by (i) increasing such balance by (A) such Member’s allocable
share of Net Income (allocated in accordance with Section 8.1), (B) the items of gross
income allocated to such Member pursuant to Section 8.2 and (C) the amount of cash and the
Fair Market Value of any property (as of the date of the contribution thereof and net of any
liabilities encumbering such property) contributed to the Company by such Member during such
Accounting Period, if any, and (ii) decreasing such balance by (A) the amount of
cash and the Fair Market Value of any property (as of the date of the distribution thereof and net
of any liabilities encumbering such property) distributed to such Member during such Accounting
Period, (B) such Member’s allocable share of Net Loss (allocated in accordance with Section
8.1) and (C) the items of gross deduction allocated to such Member pursuant to Section 8.2. The
provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply
with Treasury Regulations section 1.704-1(b) and section 1.704-2 and shall be interpreted and
applied in a manner consistent with such Treasury Regulations.



     Section 6.3 Additional Capital Contributions. No Member shall be required to make any
additional capital contribution to the Company in respect of the Interests then owned by such
Member. A Member may make further capital contributions to the Company, but only with the written
consent of the Board acting by majority vote. The provisions of this Section 6.3 are intended
solely to benefit the Members and, to the fullest extent permitted by applicable law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no such creditor shall be
a third party beneficiary of this Agreement), and no Member shall have any duty or obligation to
any creditor of the Company to make any additional capital contributions or to cause the Board to
consent to the making of additional capital contributions.



     Section 6.4 Negative Capital Accounts. Except as otherwise required by this
Agreement, no Member shall be required to make up a negative balance in its Capital Account.



ARTICLE VII




ADDITIONAL TERMS APPLICABLE TO OVERRIDE UNITS




     Section 7.1 Certain Terms.



     (a) Forfeiture of Operating Units. A Management Member’s Operating Units shall be
subject to forfeiture in accordance with the schedule in Section 7.2 hereof if he or she becomes an
Inactive Management Member before the fifth anniversary of the issuance date of the Operating
Units.



     (b) Valuation of the Value Units; Forfeiture of Operating Units. Value Units will not
participate in distributions under Article IX until from and after any point in time when the
Current Value is at least two times the Initial Price. All Value Units will participate in
distributions from and after any point in time when the Current Value is at least four times the



14









 




Initial Price, and if at any time the Current Value is greater than two times but less than
four times the Initial Price the number of a Management Member’s Value Units that will participate
in distributions at such time shall be that portion of such Management Member’s Value Units that
bears the same ratio as a fraction the numerator of which is the Current Value minus the product of
(w) two and (x) the Initial Price, and the denominator of which is the product of
(y) two and (z) the Initial Price. This Section 7.1(b) shall be applied to a Value
Unit only after such Value Unit is no longer subject to Section 9.1(c). Any amount that is not
distributed to the holder of any Value Unit as a result of this Section 7.1(b) shall be distributed
pursuant to Section 9.1(b).




     In the event that any portion of the Value Units does not become eligible to participate in
distributions pursuant to this Section 7.1(b) upon the occurrence of an Exit Event, such portion of
such Value Units shall automatically be forfeited.



     (c) Certain Adjustments. On the tenth anniversary of the issuance of any Override
Unit, each such Override Unit (unless previously forfeited pursuant to this Agreement) shall
(i) in the case of any Operating Unit, automatically convert into one Value Unit and
(ii) in the case of any Value Unit (including any Value Units issued pursuant to clause (i)
of this sentence and treating such Value Units as issued on the original date of issuance of the
Operating Unit giving rise to the conversion), be subject to Section 7.1(b) modified by
substituting “10 times” for “two times” in each place where “two times” appears and substituting
“12 times” for “four times” in each place where “four times” appears.



     (d) Calculations. All calculations required or contemplated by Section 7.1(b) or
Section 7.1(c) shall be made in the sole determination of the Board and shall be final and binding
on the Company and each Management Member.



     (e) Benchmark Amount. The Board shall determine the Benchmark Amount with respect to
each Override Unit at the time such Override Unit is issued to a Management Member, which shall be
reflected on Schedule A. The Benchmark Amount of each issued Override Unit shall be reflected on
Schedule A, which (together with the provisions of Sections 9.1(b) and (c)) are intended to result
in such Override Unit being treated as a profits interest for U.S. federal income tax purposes as
of the date such Override Unit is issued.



     Section 7.2 Effects of Termination of Employment on Override Units.



     (a) Forfeiture of Override Units upon Termination.




          (i) Termination for Cause. Unless otherwise determined by the Board in a
manner more favorable to such Management Member, in the event that a Management Member
ceases to provide services to the Company or one of its Subsidiaries in connection with any
termination for Cause, all of the Override Units issued to such Inactive Management Member
shall be forfeited.




          (ii) Other Termination. Unless otherwise determined by the Override Unit
Committee in a manner more favorable to such Management Member, in the event that a
Management Member ceases to provide services to the Company or one of its



15









 






Subsidiaries in connection with the termination of employment of such Member for any
reason other than a termination for Cause, then, in the event that (x) an Exit Event
has not yet occurred, and (y) no definitive agreement shall be in effect regarding a
transaction, which, if consummated, would result in an Exit Event, then all of the Value
Units (other than any Value Units that are exempt from forfeiture pursuant to this Section
7.2.(a)(ii) by virtue of the application of Section 7.2(a)(iii)) issued to such Inactive
Management Member shall be forfeited and a percentage of the Operating Units issued to such
Inactive Management Member shall be forfeited according to the following schedule (it being
understood that in the event that such forfeiture does not occur as a result of the
operation of clause (y) but the definitive agreement referred to in such clause (y)
subsequently terminates without consummation of an Exit Event, then the forfeiture of all of
the Value Units (other than any Value Units that are exempt from forfeiture pursuant to this
Section 7.2.(a)(ii) by virtue of the application of Section 7.2(a)(iii)) and of the
applicable percentage of Operating Units referred to herein shall thereupon occur):



	 	 	 
	 	 	Percentage of such
	 	 	Inactive Management
	 	 	Member’s Operating Units
	If the termination occurs	 	to be Forfeited
	 
	 	 
	Before the second anniversary of the grant of such
	 	100%
	Inactive Management Member’s Operating Units
	 	 
	 
	 	 
	On or after the second anniversary, but before the third
	 	75%
	 anniversary, of the grant of such
Inactive Management Member’s Operating Units
	 	 
	 
	 	 
	On or after the third anniversary, but before the fourth
	 	50%
	 anniversary, of the grant of such Inactive
Management Member’s Operating Units
	 	 
	 
	 	 
	On or after the fourth anniversary, but before the fifth
	 	25%
	 anniversary, of the grant of such
Inactive Management Member’s Operating Units
	 	 
	 
	 	 
	On or after the fifth anniversary of the grant of such 
	 	0%
	Inactive Management Member’s Operating Units
	 	 







          (iii) Treatment of Value Units upon Death and Disability of a Management
Member. In the event that a Management Member ceases to provide services to the Company
or one of its Subsidiaries due to such Member’s death or Disability, a percentage
(determined in accordance with the following schedule) of the Value Units issued to such
Inactive Management Member shall not be subject to forfeiture pursuant to Section
7.2(a)(ii):



16









 





	 	 	 
	 	 	Percentage of such
	 	 	Inactive Management
	 	 	Member’s Value Units
	 	 	Not Subject to Forfeiture
	If death or Disability occurs	 	Pursuant to Section 7.2(a)(ii)
	 
	 	 
	Before the second anniversary of the grant of such 
	 	0%
	Inactive Management
Member’s Value Units
	 	 
	 
	 	 
	On or after the second anniversary, but before the third 
	 	25%
	anniversary, of the
grant of such Inactive Management
Member’s Value Units
	 	 
	 
	 	 
	On or after the third anniversary, but before the fourth 
	 	50%
	anniversary, of the
grant of such Inactive Management
Member’s Value Units
	 	 
	 
	 	 
	On or after the fourth anniversary, but before the fifth
	 	75%
	 anniversary, of the
grant of such Inactive Management
Member’s Value Units
	 	 
	 
	 	 
	On or after the fifth anniversary of the grant of such
	 	100%
	 Inactive Management
Member’s Value Units
	 	 






     (b) Inactive Management Members. If a Management Member ceases to provide services to
or for the benefit of the Company or one of its Subsidiaries in connection with the termination of
employment of such Member for any reason, the Common Units held by such Member shall cease to have
voting rights and such Member shall be thereafter referred to herein as a “Inactive Management
Member” with only the rights of an Inactive Management Member specified herein.
Notwithstanding the foregoing, such Inactive Management Member shall continue to be treated as a
Member (including, for the avoidance of doubt, for purposes of Article IX hereof).



     (c) Effect of Forfeiture. Any Override Unit, which is forfeited, shall be cancelled
for no consideration.



ARTICLE VIII




ALLOCATIONS




     Section 8.1 Book Allocations of Net Income and Net Loss.



     (a) Except as provided in Section 8.2, Net Income and Net Loss of the Company shall be
allocated among the Members’ Capital Accounts as of the end of each Accounting Period or



17









 




portion thereof in a manner that as closely as possible gives effect to the economic
provisions of this Agreement.




     (b) Except as otherwise provided in Section 8.2, all items of gross income, gain, loss and
deduction included in the computation of Net Income and Net Loss shall be allocated in the same
proportion as are Net Income and Net Loss.



     Section 8.2 Special Book Allocations.



     (a) Qualified Income Offset. If any Member unexpectedly receives any adjustment,
allocation or distribution described in Treasury Regulations section 1.704-1(b)(2)(ii)(d)(4), (5)
or (6) and such adjustment, allocation or distribution causes or increases a deficit in such
Member’s Capital Account in excess of its obligation to make additional Capital Contributions (a
“Deficit”), items of gross income and gain for such Accounting Period and each subsequent
Accounting Period shall be specifically allocated to such Member in an amount and manner sufficient
to eliminate, to the extent required by the Treasury Regulations, the Deficit of such Member as
quickly as possible; provided that an allocation pursuant to this Section 8.2(a) shall be
made only if and to the extent that such Member would have a Deficit after all other allocations
provided for in this Article VIII have been tentatively made as if this Section 8.2(a) were not in
this Agreement. This Section 8.2(a) is intended to comply with the qualified income offset
provision of Treasury Regulations section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner
consistent therewith.



     (b) Notwithstanding anything to the contrary in this Agreement, items of gross income, gain,
loss or deduction shall be specifically allocated to particular Members to the extent necessary to
comply with applicable law (including the requirement to make “forfeiture allocations” within the
meaning of Prop. Treas. Reg. Section 1. 704- 1(b)(4)(xii)).



     (c) Restorative Allocations. Any special allocations of items of income or gain
pursuant to this Section 8.2 shall be taken into account in computing subsequent allocations
pursuant to this Agreement so that the net amount for any item so allocated and all other items
allocated to each Member pursuant to this Agreement shall be equal, to the extent possible, to the
net amount that would have been allocated to each Member pursuant to the provisions of this
Agreement if such special allocations had not occurred.



     Section 8.3 Tax Allocations. The income, gains, losses, credits and deductions
recognized by the Company shall be allocated among the Members, for U.S. federal, state and local
income tax purposes, to the extent permitted under the Code and the Treasury Regulations, in the
same manner that each such item is allocated to the Members’ Capital Accounts. Notwithstanding the
foregoing, the Board shall have the power to make such allocations for U.S. federal, state and
local income tax purposes so long as such allocations have substantial economic effect, or are
otherwise in accordance with the Members’ Interests, in each case within the meaning of the Code
and the Treasury Regulations. Notwithstanding the previous sentence, in allocating income, gain,
loss, credits, and deductions among the Members for U.S. federal, state, and local income tax
purposes, the Board has discretion to: (1) disregard Section 7.1(c); and (2) compute Current Value
by assuming that the price per Common Unit will equal the quotient obtained by dividing: (x) the
aggregate capital accounts of all Members, by (y) the



18









 




number of Common Units outstanding, including all Override Units issued and outstanding at the
end of the taxable year, whether vested or unvested, other than Override Units (including without
limitation, Value Units issued hereunder) that, by their terms would be forfeited in conjunction
with the occurrence of an Exit Event if they did not become eligible to participate in
distributions pursuant to Section 7.1(b) upon the occurrence of the Exit Event. In accordance with
section 704(c) of the Code and the Treasury Regulations thereunder, income, gain, loss and
deduction with respect to any property contributed to the capital of the Company shall, solely for
tax purposes, be allocated among the Members so as to take account of any variation between the
adjusted basis of such property to the Company for U.S. federal income tax purposes and its Book
Value.




ARTICLE IX




DISTRIBUTIONS




     Section 9.1 Distributions Generally.



     (a) The Company may make distributions to the Members to the extent that the cash available to
the Company is in excess of the reasonably anticipated needs of the business (including reserves).
In determining the amount distributable to each Member, the provisions of this Section 9.1 shall be
applied in an iterative manner.



     (b) Subject to Section 9.1(c) and (d), any such distributions shall be made to the Members in
proportion to the number of Units held by each Member as of the time of such distribution.



     (c) The amount of any proposed distribution to a holder of any Override Unit pursuant to
Section 9.1(b) in respect of such Override Unit shall be reduced until the total reductions in
proposed distributions pursuant to this Section 9.1(c) in respect of such Override Unit equals the
Benchmark Amount in respect of such Override Unit. Any amount that is not distributed to the
holder of any Override Unit pursuant to this Section 9.1(c) shall be distributed pursuant to
Section 9.1(b) and shall remain subject to this Section 9.1(c).



     (d) In the event that pursuant to Section 7.1(b) a Value Unit was not previously entitled to
participate in an actual distribution made by the Company under Section 9.1(b) but under the terms
of Section 7.1(b) such Value Unit is currently entitled to participate in distributions, then
Section 9.1(b) notwithstanding, any distributions by the Company shall be made 100% to the holder
of such Value Unit in respect of such Value Unit until the total distributions made pursuant to
this Section 9.1(d) in respect of such Value Unit equal the total distributions that would have
been made in respect of such Value Unit if such Value Unit (and any other Value Units currently
entitled to participate in distributions) had at all times been entitled to participate in
distributions to the extent set forth in Section 7.1(b). In the event that this Section 9.1(d)
applies to two or more Value Units at the same time, the distributions contemplated by this Section
9.1(d) shall be made in respect of each such Value Unit in proportion to the amounts distributable
under this Section 9.1(d) in respect of each such Value Unit. For the avoidance of doubt, this
Section 9.1(d) shall not apply to any Value Unit that is forfeited. The Board shall have the power
in its sole discretion to make adjustments to the operation of this Section 9.1(d) if



19









 




the Board determines in its sole discretion that such adjustments will further the intent of
this Section 9.1(d).




     Section 9.2 Distributions In Kind. In the event of a distribution of Company
property, such property shall for all purposes of this Agreement be deemed to have been sold at its
Fair Market Value and the proceeds of such sale shall be deemed to have been distributed to the
Members.



     Section 9.3 No Withdrawal of Capital. Except as otherwise expressly provided in
Article XIII, no Member shall have the right to withdraw capital from the Company or to receive any
distribution or return of such Member’s Capital Contributions.



     Section 9.4 Withholding.



     (a) Each Member shall, to the fullest extent permitted by applicable law, indemnify and hold
harmless each Person who is or who is deemed to be the responsible withholding agent for U.S.
federal, state or local income tax purposes against all claims, liabilities and expenses of
whatever nature (other than any claims, liabilities and expenses in the nature of penalties and
accrued interest thereon that result from such Person’s fraud, willful misfeasance, bad faith or
gross negligence) relating to such Person’s obligation to withhold and to pay over, or otherwise
pay, any withholding or other taxes payable by the Company or as a result of such Member’s
participation in the Company.



     (b) Notwithstanding any other provision of this Article IX, (i) each Member hereby
authorizes the Company to withhold and to pay over, or otherwise pay, any withholding or other
taxes payable by the Company or any of its Affiliates with respect to such Member or as a result of
such Member’s participation in the Company and (ii) if and to the extent that the Company
shall be required to withhold or pay any such taxes (including any amounts withheld from amounts
payable to the Company to the extent attributable, in the judgment of the Members, to such Member’s
Interest), such Member shall be deemed for all purposes of this Agreement to have received a
payment from the Company as of the time such withholding or tax is required to be paid, which
payment shall be deemed to be a distribution with respect to such Member’s Interest to the extent
that the Member (or any successor to such Member’s Interest) is then entitled to receive a
distribution. To the extent that the aggregate of such payments to a Member for any period exceeds
the distributions to which such Member is entitled for such period, such Member shall make a prompt
payment to the Company of such amount. It is the intention of the Members that no amounts will be
includible as compensation income to any Management Member, or will give rise to any withholding
taxes imposed on compensation income, for United States federal income tax purposes as a result of
the receipt, vesting or disposition of, or lapse of any restriction with respect to, any Override
Units granted to such Member.



     (c) If the Company makes a distribution in kind and such distribution is subject to
withholding or other taxes payable by the Company on behalf of any Member, such Member shall make a
prompt payment to the Company of the amount of such withholding or other taxes by wire transfer.




20











 





     Section 9.5 Restricted Distributions. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution to any Member on account of
its Interest if such distribution would violate Section 18-607 of the Delaware Act or other
applicable law.



     Section 9.6 Tax Distributions. In the event that the Company sells an equity interest
in a Subsidiary, resulting in taxable income being recognized by the Members, or the Members are
otherwise allocated taxable income from the Company (in each case, other than upon an Exit Event),
the Company may make distributions to the Members to the extent of available cash (as determined by
the Board in its discretion) in an amount equal to such income multiplied by a reasonable tax rate
determined by the Board; it being understood that, if the Members are allocated material taxable
income without corresponding cash distributions sufficient to pay the resulting tax liabilities, it
is the Company’s intention to make the tax distributions referred to herein; provided that
the Board in its sole discretion shall determine whether any such tax distributions will be made.
Any distributions made to a Member pursuant to this Section 9.6 shall reduce the amount otherwise
distributable to such Member pursuant to the other provisions of this Agreement, so that to the
maximum extent possible, the total amount of distributions received by each Member pursuant to this
Agreement at any time is the same as such Member would have received if no distribution had been
made pursuant to this Section 9.6. To the extent the cumulative sum of tax distributions made to a Member
under this Section 9.6 has not been applied pursuant to the preceding sentence to reduce other amounts
distributable to such Member, such Member shall contribute to the Company the remaining amounts
necessary to give full effect to the preceding sentence on the date of the final liquidating
distribution made by the Company pursuant to Section 13.2.



ARTICLE X




BOOKS AND RECORDS




     Section 10.1 Books, Records and Financial Statements. At all times during the
continuance of the Company, the Company shall maintain, at its principal place of business,
separate books of account for the Company that shall show a true and accurate record of all costs
and expenses incurred, all charges made, all credits made and received and all U.S. income derived
in connection with the operation of the Company’s business in accordance with generally accepted
accounting principles consistently applied, and, to the extent inconsistent therewith, in
accordance with this Agreement. Such books of account, together with a copy of this Agreement and
the Certificate, shall at all times be maintained at the principal place of business of the Company
and shall be open to inspection and examination at reasonable times and upon reasonable notice by
each Member and its duly authorized representative for any purpose reasonably related to such
Member’s Interest; provided that the Company may maintain the confidentiality of Schedule
A.



     Section 10.2 Filings of Returns and Other Writings; Tax Matters Partner.



     (a) The Company shall timely file all Company tax returns and shall timely file all other
writings required by any governmental authority having jurisdiction to require such filing. Within
90 days after the end of each taxable year (or as soon as reasonably practicable



21









 




thereafter), the
Company shall send to each Person that was a Member at any time during such
year copies of Schedule K-1, “Partner’s Share of Income, Credits, Deductions, Etc.”, or any
successor schedule or form, with respect to such Person, together with such additional information
as may be necessary for such Person to file his, her or its United States federal income tax
returns.




     (b) Kelso Investment Associates VII, L.P. shall be the tax matters partner of the Company,
within the meaning of section 6231 of the Code (the “Tax Matters Partner”) unless a
Majority in Interest votes otherwise. Each Member hereby consents to such designation and agrees
that upon the request of the Tax Matters Partner, such Member will execute, certify, acknowledge,
deliver, swear to, file and record at the appropriate public offices such documents as may be
necessary or appropriate to evidence such consent.



     (c) Promptly following the written request of the Tax Matters Partner, the Company shall, to
the fullest extent permitted by applicable law, reimburse and indemnify the Tax Matters Partner for
all reasonable expenses, including reasonable legal and accounting fees, claims, liabilities,
losses and damages incurred by the Tax Matters Partner in connection with any administrative or
judicial proceeding with respect to the tax liability of the Members, except to the extent arising
from the bad faith, gross negligence, willful violation of law, fraud or breach of this Agreement
by such Tax Matters Partner.



     (d) The
provisions of this Section 10.2 shall survive the termination of the Company or the termination
of any Member’s Interest and shall remain binding on the Members for as long a period of time as is
necessary to resolve with the Internal Revenue Service any and all matters regarding the U.S.
federal income taxation of the Company or the Members.



     Section 10.3 Accounting Method. For both financial and tax reporting purposes, the
books and records of the Company shall be kept on the accrual method of accounting applied in a
consistent manner and shall reflect all Company transactions and be appropriate and adequate for
the Company’s business.



ARTICLE XI




LIABILITY, EXCULPATION AND INDEMNIFICATION




     Section 11.1 Liability. Except as otherwise provided by the Delaware Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall
be solely the debts, obligations and liabilities of the Company, and no Covered Person shall be
obligated personally for any such debt, obligation or liability of the Company solely by reason of
being a Covered Person.



     Section 11.2 Exculpation. No Covered Person shall be liable to the Company or any
other Covered Person for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner
believed to be within the scope of authority conferred on such Covered Person by this Agreement,
except that a Covered Person shall be liable for any such loss, damage or claim



22









 




incurred by reason
of such Covered Person’s gross negligence, willful misconduct or willful breach of this Agreement.




     Section 11.3 Fiduciary Duty. Any duties (including fiduciary duties) of a Covered
Person to the Company or to any other Covered Person that would otherwise apply at law or in equity
are hereby eliminated to the fullest extent permitted under the Delaware Act and any other
applicable law; provided that (a) the foregoing shall not eliminate the obligation
of each Covered Person to act in compliance with the express terms of this Agreement and
(b) the foregoing shall not be deemed to eliminate the implied contractual covenant of good
faith and fair dealing. Notwithstanding anything to the contrary contained in this Agreement, each
of the Members hereby acknowledges and agrees that each of the Directors, in determining whether or
not to vote in support of or against any particular decision for which the Board’s consent is
required, may act in and consider the best interest of the Member who designated such Director and
shall not be required to act in or consider the best interests of the Company or the other Members
or parties hereto.



     Section 11.4 Indemnification. To the fullest extent permitted by applicable law, a
Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed or omitted by such
Covered Person in good faith on behalf of the Company and in a manner believed to be within the
scope of authority conferred on such Covered Person by this Agreement, except that no Covered
Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such
Covered Person by reason of such Covered Person’s gross negligence, willful misconduct or willful
breach of this Agreement with respect to such acts or omissions; provided, that any
indemnity under this Section 11.4 shall be provided out of and to the extent of Company assets only, and no
Covered Person shall have any personal liability on account thereof.



     Section 11.5 Expenses. To the fullest extent permitted by applicable law, expenses
(including, without limitation, reasonable attorneys’ fees, disbursements, fines and amounts paid
in settlement) incurred by a Covered Person in defending any claim, demand, action, suit or
proceeding relating to or arising out of their performance of their duties on behalf of the Company
shall, from time to time, be advanced by the Company prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of
the Covered Person to repay such amount if it shall ultimately be determined by a court of
competent jurisdiction that the Covered Person is not entitled to be indemnified as authorized in
this Section 11.5.



     Section 11.6 Severability. To the fullest extent permitted by applicable law, if 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 or Officer and may indemnify each
employee or agent of the Company as to costs, charges and expenses (including reasonable attorneys’
fees), judgments, fines and amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including an action by or in
the right of the Company, to the fullest extent permitted by any applicable portion of this Article
that shall not have been invalidated.



23









 





ARTICLE XII




TRANSFERS OF INTERESTS




     Section 12.1 Restrictions on Transfers of Interests by Members. No Member may
Transfer any Interests including, without limitation, to any other Member, or by gift, or by
operation of law or otherwise; provided that, subject to Section 12.2(b) and Section
12.2(c), Interests may be Transferred by a Member (i) pursuant to Section 12.3 (“Estate Planning
Transfers, Transfers Upon Death of a Management Member”), (ii) in accordance with Section
12.4 (“Involuntary Transfers”), or (iii) pursuant to the prior written approval of each of
the Board and CA II, in each case, in its sole discretion. Notwithstanding the forgoing, Interests
may be Transferred by an Investor Member to an Affiliate of such Transferring Investor Member
without the approval of the Board or CA II.



     Section 12.2 Overriding Provisions.



     (a) Any Transfer in violation of this Article XII shall be null and void ab initio, and the provisions
of Section 12.2(e) shall not apply to any such Transfers. The approval of any Transfer in any one or more
instances shall not limit or waive the requirement for such approval in any other or future
instance.



     (b) All Transfers permitted under this Article XII are subject to this Section 12.2 and Sections 12.5 and 12.6.



     (c) Any proposed Transfer by a Member pursuant to the terms of this Article XII shall, in addition to
meeting all of the other requirements of this Agreement, satisfy the following conditions:
(i) the Transfer will not be effected on or through an “established securities market” or a
“secondary market or the substantial equivalent thereof,” as such terms are used in Treasury
Regulations section 1.7704-1, and, at the request of the Board, the transferor and the transferee
will have each provided the Company a certificate to such effect; and (ii) the proposed
transfer will not result in the Company having more than 99 Members, within the meaning of Treasury
Regulations section 1.7704-1(h)(1) (determined pursuant to the rules of Treasury Regulations
section 1.7704-1(h)(3)). The Board may in its sole discretion waive the condition set forth in
clause (ii) of this Section 12.2(c).



     (d) The Company shall promptly amend Schedule A to reflect any permitted transfers of
Interests pursuant to and in accordance with this Article XII.



     (e) The Company shall, from the effective date of any permitted assignment of an Interest (or
part thereof), thereafter pay all further distributions on account of such Interest (or part
thereof) to the assignee of such Interest (or part thereof); provided that such assignee shall have
no right or powers as a Member unless such assignee complies with Section 12.6.



     Section 12.3 Estate Planning Transfers; Transfers upon Death of a Management Member.
Interests held by Management Members may be transferred for estate-planning purposes of such
Management Member, to (A) a trust under which the distribution of the Interests may be made only to
beneficiaries who are such Management Member, his or her spouse, his or her parents, members of his
or her immediate family or his or her lineal



24









 




descendants, (B) a charitable remainder trust, the
income from which will be paid to such Management Member during his or her life, (C) a corporation, the shareholders of which are
only such Management Member, his or her spouse, his or her parents, members of his or her immediate
family or his or her lineal descendants or (D) a partnership or limited liability company, the
partners or members of which are only such Management Member, his or her spouse, his or her
parents, members of his or her immediate family or his or her lineal descendants. Interests may be
transferred as a result of the laws of descent; provided that, in each such case, such
Management Member provides prior written notice to the Board of such proposed Transfer and makes
available to the Board documentation, as the Board may reasonably request, in order to verify such
Transfer.




     Section 12.4 Involuntary Transfers. Any transfer of title or beneficial ownership of
Interests upon default, foreclosure, forfeit, divorce, court order or otherwise than by a voluntary
decision on the part of a Management Member or Outside Member (each, an “Involuntary
Transfer”) shall be void unless such Management Member or Outside Member complies with this
Section 12.4 and enables the Company to exercise in full its rights hereunder. Upon any
Involuntary Transfer, the Company shall have the right to purchase such Interests pursuant to this
Section 12.4 and the Person to whom such Interests have been Transferred (the “Involuntary
Transferee”) shall have the obligation to sell such Interests in accordance with this Section
12.4. Upon the Involuntary Transfer of any Interest, such Management Member or Outside Member
shall promptly (but in no event later than two days after such Involuntary Transfer) furnish
written notice to the Company indicating that the Involuntary Transfer has occurred, specifying the
name of the Involuntary Transferee, giving a detailed description of the circumstances giving rise
to, and stating the legal basis for, the Involuntary Transfer. Upon the receipt of the notice
described in the preceding sentence, and for 60 days thereafter, the Company shall have the right
to purchase, and the Involuntary Transferee shall have the obligation to sell, all (but not less
than all) of the Interests acquired by the Involuntary Transferee for a purchase price equal to the
lesser of (i) the Fair Market Value of such Interest and (ii) the amount of the
indebtedness or other liability that gave rise to the Involuntary Transfer plus the excess, if any,
of the Carrying Value of such Interests over the amount of such indebtedness or other liability
that gave rise to the Involuntary Transfer. Notwithstanding anything to the contrary, any
Involuntary Transfer of Override Units shall result in the immediate forfeiture of such Override
Units and without any compensation therefor, and such Involuntary Transferee shall have no rights
with respect to such Override Units.



     Section 12.5 Assignments.



     (a) Assignment Generally. The provisions of this Agreement shall be binding upon and
inure to the benefit of the Members hereto and their respective heirs, legal representatives,
successors and assigns; provided that no Non-Investor Member may assign any of its rights
or obligations hereunder without the consent of Kelso unless such assignment is in connection with
a Transfer explicitly permitted by this Agreement and, prior to such assignment, such assignee
complies with the requirements of Section 12.6.



     Section 12.6 Substitute Members. In the event any Non-Investor Member or Investor
Member Transfers its Interest in compliance with the other provisions
of this Article XII (other than Section
12.4), the transferee thereof shall have the right to become a substitute Non-Investor



25









 




Member or substitute Investor Member, as the case may be, but only upon satisfaction of the
following:




     (a) execution of such instruments as the Board deems reasonably necessary or desirable to
effect such substitution; and



     (b) acceptance and agreement in writing by the transferee of the Member’s Interest to be bound
by all of the terms and provisions of this Agreement and assumption of all obligations under this
Agreement (including breaches hereof) applicable to the transferor and in the case of a transferee
of a Management Member who resides in a state with a community property system, such transferee
causes his or her spouse, if any, to execute a Spousal Waiver in the form of Exhibit A attached
hereto. Upon the execution of the instrument of assumption by such transferee and, if applicable,
the Spousal Waiver by the spouse of such transferee, such transferee shall enjoy all of the rights
and shall be subject to all of the restrictions and obligations of the transferor of such
transferee.



     Section 12.7 Release of Liability. In the event any Member shall sell such Member’s
entire Interest (other than in connection with an Exit Event) in compliance with the provisions of
this Agreement, including, without limitation, pursuant to the penultimate sentence of Section
12.4, without retaining any interest therein, directly or indirectly, then the selling Member
shall, to the fullest extent permitted by applicable law, be relieved of any further liability
arising hereunder for events occurring from and after the date of such Transfer.



ARTICLE XIII




DISSOLUTION, LIQUIDATION AND TERMINATION




     Section 13.1 Dissolving Events. The Company shall be dissolved and its affairs wound
up in the manner hereinafter provided upon the happening of any of the following events:



     (a) the Board and the Members shall vote or agree in writing to dissolve the Company pursuant
to the required votes set forth in Section 3.3(d) and Section 4.3, respectively; or



     (b) any event which, under applicable law, would cause the dissolution of the Company;
provided that, unless required by applicable law, the Company shall not be wound up as a result of
any such event and the business of the Company shall continue.



     Notwithstanding the foregoing, the death, retirement, resignation, expulsion, bankruptcy or
dissolution of any Member or the occurrence of any other event that terminates the continued
membership of any Member in the Company under the Delaware Act shall not, in and of itself, cause
the dissolution of the Company. In such event, the remaining Member(s) shall continue the business
of the Company without dissolution.



     Section 13.2 Dissolution and Winding-Up. Upon the dissolution of the Company, the
assets of the Company shall be liquidated or distributed under the direction of, and to the extent
determined by, the Board, and the business of the Company shall be wound up. Within a reasonable
time after the effective date of dissolution of the Company, the Company’s assets shall be
distributed in the following manner and order:



26









 





     First, to creditors in satisfaction of indebtedness (other than any loans or advances
that may have been made by any of the Members to the Company), whether by payment or the making of
reasonable provision for payment, and the expenses of liquidation, whether by payment or the making
of reasonable provision for payment, including the establishment of reasonable reserves (which may
be funded by a liquidating trust) determined by the Board or the liquidating trustee, as the case
may be, to be reasonably necessary for the payment of the Company’s expenses, liabilities and other
obligations (whether fixed, conditional, unmatured or contingent);



     Second, to the payment of loans or advances that may have been made by any of the
Members to the Company; and



     Third, to the Members in accordance with Section 9.1, taking into account any amounts previously
distributed under Section 9.1;



provided that no payment or distribution in any of the foregoing categories shall be made
until all payments in each prior category shall have been made in full, and provided,
further, that, if the payments due to be made in any of the foregoing categories exceed the
remaining assets available for such purpose, such payments shall be made to the Persons entitled to
receive the same pro rata in accordance with the respective amounts due to them.



     Section 13.3 Distributions in Cash or in Kind. Upon the dissolution of the Company,
the Board shall use all commercially reasonable efforts to liquidate all of the Company’s assets in
an orderly manner and apply the proceeds of such liquidation as set forth in Section 13.2; provided
that, if in the good faith judgment of the Board, a Company asset should not be liquidated, the
Board shall cause the Company to allocate, on the basis of the Fair Market Value of any Company
assets not sold or otherwise disposed of, any unrealized gain or loss based on such value to the
Members’ Capital Accounts as though the assets in question had been sold on the date of
distribution and, after giving effect to any such adjustment, distribute such assets in accordance
with Section 13.2 as if such Fair Market Value had been received in cash, subject to the priorities set forth
in Section 13.2, and provided, further, that the Board shall in good faith attempt to
liquidate sufficient Company assets to satisfy in cash (or make reasonable provision for) the debts
and liabilities referred to in Section 13.2.



     Section 13.4 Termination. The Company shall terminate when the winding up of the
Company’s affairs has been completed, all of the assets of the Company have been distributed and
the Certificate has been canceled, all in accordance with the Delaware Act.



     Section 13.5 Claims of the Members. The Members and former Members shall look solely
to the Company’s assets for the return of their Capital Contributions, and if the assets of the
Company remaining after payment of or due provision for all debts, liabilities and obligations of
the Company are insufficient to return such Capital Contributions, the Members and former Members
shall have no recourse against the Company or any other Member.



27









 





ARTICLE XIV




MISCELLANEOUS




     Section 14.1 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be in writing and shall
be deemed to have been duly given if (a) delivered personally, (b) mailed,
certified or registered mail with postage prepaid, (c) sent by next-day or overnight mail
or delivery or (d) sent by fax, as follows (or to such other address as the party entitled
to notice shall hereafter designate in accordance with the terms hereof):



     (a) If to the Company:


10 E. Cambridge Circle, Ste. 250

Kansas City, Kansas 66103

Attention: John J. Lipinski

Facsimile No.: 913-981-0000



with copies (which shall not constitute notice) to:



Kelso & Company, L.P.

320 Park Avenue, 24th Floor

New York, New York 10022

Attention: James J. Connors II

Facsimile No.: 212-223-2379



and



Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, New York 10004

Attention: Robert C. Schwenkel

                 Steven Steinman



Facsimile No.: (212) 859-4000



and



Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Attention: Kevin M. Schmidt

Facsimile No.: (212) 909-6836




     (b) If to a Member, at the address set forth opposite such Member’s name on Schedule A
attached hereto, or at such other address as such Member may hereafter designate by written notice
to the Company.



28









 





     All such notices, requests, demands, waivers and other communications shall be deemed to have
been received by (w) if by personal delivery, on the day delivered, (x) if by
certified or registered mail, on the fifth business day after the mailing thereof, (y) if
by next-day or overnight mail or delivery, on the day delivered, or (z) if by fax, on the
day delivered; provided that such delivery is confirmed.



     Section 14.2 Securities Act Matters. Each Member understands that, in addition to the
restrictions on transfer contained in this Agreement, he or she must bear the economic risks of his
or her investment for an indefinite period because the Interests have not been registered under the
Securities Act.



     Section 14.3 Headings. The headings to sections in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this Agreement.



     Section 14.4 Entire Agreement. This Agreement constitutes the entire agreement among
the Members with respect to the subject matter hereof, and supersedes any prior agreement or
understanding among them with respect to the matters referred to herein. There are no
representations, warranties, promises, inducements, covenants or undertakings relating to the
Units, other than those expressly set forth or referred to herein.



     Section 14.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.



     Section 14.6 Governing Law; Attorneys’ Fees. This Agreement and the rights and
obligations of the Members hereunder and the Persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware, without giving
effect to the choice of law principles thereof. The substantially prevailing party in any action
or proceeding relating to this Agreement shall be entitled to receive an award of, and to recover
from the other party or parties, any fees or expenses incurred by him, her or it (including,
without limitation, reasonable attorneys’ fees and disbursements) in connection with any such
action or proceeding.



     Section 14.7 Waivers. Except as may otherwise be provided by applicable law in
connection with the winding-up, liquidation and dissolution of the Company, each Member hereby
irrevocably waives any and all rights that it may have to maintain an action for partition of any
of the Company’s property.



     Waiver by any Member hereto of any breach or default by any other Member of any of the terms
of this Agreement shall not operate as a waiver of any other breach or default, whether similar to
or different from the breach or default waived. No waiver of any provision of this Agreement shall
be implied from any course of dealing between the Members hereto or from any failure by any Member
to assert its or his or her rights hereunder on any occasion or series of occasions.



     EACH MEMBER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR THE BREACH, TERMINATION OR



29









 




VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.




     Section 14.8 Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction.



     Section 14.9 Further Actions. Each Member shall execute and deliver such other
certificates, agreements and documents, and take such other actions, as may reasonably be requested
by the Company in connection with the continuation of the Company and the achievement of its
purposes, including, without limitation, (a) any documents that the Company deems necessary
or appropriate to continue the Company as a limited liability company in all jurisdictions in which
the Company or its Subsidiaries conduct or plan to conduct business and (b) all such
agreements, certificates, tax statements and other documents as may be required to be filed in
respect of the Company.



     Section 14.10 Amendments.



     (a) Subject to the amendment provisions of Section 12.10(a), this Agreement may not be
amended, modified or supplemented except by a written instrument signed by each of the Investor
Members; provided, however, that the Board may make such modifications to this
Agreement, including Schedule A, as are necessary to admit Additional Members who are admitted in
accordance with Sections 3.2, 3.6, 6.2 and 12.2. Notwithstanding the foregoing, no amendment,
modification or supplement shall adversely affect the Management Members as a class without the
consent of a Majority in Interest (exclusive of Override Units) of the Management Members or, to
the extent (and only to the extent) any particular Management Member would be uniquely and
adversely affected by a proposed amendment, modification or supplement, by such Management Member;
provided, further, that, in either case, no such consent shall be required for
(i) any amendments, modifications or supplements to Article IV or (ii) for the
issuance of additional Units pursuant to Section 3.2. The Company shall notify all Members after
any such amendment, modification or supplement, other than any amendments to Schedule A, as
permitted herein, has taken effect.



     (b) Notwithstanding 14.10(a), each Member shall, and shall cause each of its Affiliates and
transferees to, take any action requested by the Kelso Member that is designed to comply with the
finalization of proposed Treasury Regulations relating to the issuance of partnership equity for
services and any other Treasury Regulation, Revenue Procedure, or other guidance issued with
respect thereto. Without limiting the foregoing, such action may include authorizing the Company
to make any election, agreeing to any condition imposed on such Member, its Affiliates or its
transferee, executing any amendment to this Agreement or other agreements, executing any new
agreement, and agreeing not to take any contrary position on any tax return or other filing.



     Section 14.11 No Third Party Beneficiaries. Except as otherwise provided herein, this
Agreement is not intended to confer upon any Person, except for the parties hereto, any rights or



30









 




remedies hereunder; provided, however, that CA II is an express third party
beneficiary of Sections 3.2, 3.6, 12.1 and 12.2(a), with a direct right of enforcement.




     Section 14.12 Injunctive Relief. The Units cannot readily be purchased or sold in the
open market, and for that reason, among others, the Company and the Members will be irreparably
damaged in the event this Agreement is not specifically enforced. Each of the Members therefore
agrees that, in the event of a breach of any provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings in any court of competent jurisdiction to enforce
specific performance or to enjoin the continuing breach of this Agreement. Such remedies shall,
however, be cumulative and not exclusive, and shall be in addition to any other remedy which the
Company or any Member may have. Each Member hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts in New York for the purposes of any suit, action or
other proceeding arising out of, or based upon, this Agreement or the subject matter hereof. Each
Member hereby consents to service of process made in accordance with
Section 14.1.



     Section 14.13 Power of Attorney. Each Member hereby constitutes and appoints Kelso as
his or her true and lawful joint representative and attorney-in-fact in his or her name, place and
stead to make, execute, acknowledge, record and file the following:



     (a) any amendment to the Certificate which may be required by the laws of the State of
Delaware because of:




          (i) any duly made amendment to this Agreement; or




          (ii) any change in the information contained in such Certificate, or any amendment
thereto;



     (b) any other certificate or instrument which may be required to be filed by the Company under
the laws of the State of Delaware or under the applicable laws of any other jurisdiction in which
counsel to the Company determines that it is advisable to file;



     (c) any certificate or other instrument which Kelso or the Board deems necessary or desirable
to effect a termination and dissolution of the Company which is authorized under this Agreement;



     (d) any amendments to this Agreement, duly adopted in accordance with the terms of this
Agreement; and



     (e) any other instruments that Kelso or the Board may deem necessary or desirable to carry out
fully the provisions of this Agreement; provided, however, that any action taken
pursuant to this power shall not, in any way, increase the liability of the Members beyond the
liability expressly set forth in this Agreement, and provided, further, that, where
action by a majority of the Board is required, such action shall have been taken.



     Such attorney-in-fact is not by the provisions of this Section 14.13 granted any authority on behalf of
the undersigned to amend this Agreement, except as provided for in this Agreement.



31









 




Such power of attorney is coupled with an interest and shall continue in full force and effect
notwithstanding the subsequent death or incapacity of the Member granting such power of attorney.




ARTICLE XV




DEFINED TERMS




     Section 15.1 Definitions.



     “Accounting Period” means, for the first Accounting Period, the period commencing on
the date hereof and ending on the next Adjustment Date. All succeeding Accounting Periods shall
commence on the day after an Adjustment Date and end on the next Adjustment Date.



     “Additional Member” has the meaning given in Section 3.6(a).



     “Adjustment Date” means the last day of each fiscal year of the Company or any other
date determined by the Board, in its sole discretion, as appropriate for an interim closing of the
Company’s books.



     “Affiliate” means, with respect to a specified Person, any Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with, the specified Person. As used in this definition, the term “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting securities, by contract or otherwise.



     “Agreement” means this Third Amended and Restated Limited Liability Company Agreement
of the Company, as this agreement may be amended, modified, supplemented or restated from time to
time after the date hereof.



     “Amended and Restated LLC Agreement” has the meaning given in the recitals to this
Agreement.



     “Benchmark Amount” means the amount set with respect to an Override Unit pursuant to
Section 7.1(e).



     “Board” has the meaning given in Section 4.1(a).



     “Book Value” means with respect to any asset, the asset’s adjusted basis for U.S.
federal income tax purposes, except as follows: (i) the Book Value of any asset contributed or
deemed contributed by a Member to the Company shall be the gross fair market value of such asset at
the time of contribution as reasonably determined by the Board; (ii) the Book Value of any asset
distributed or deemed distributed by the Company to any Member shall be adjusted immediately prior
to such distribution to equal its gross fair market value at such time as reasonably determined by
the Board; (iii) the Book Values of all Company assets may be adjusted in the discretion of the
Board to equal their respective gross fair market values, as reasonably determined by the Board as
of (1) the date of the acquisition of an additional interest in the Company by any new or existing
Member in exchange for a contribution to the capital of the



32









 




Company; or (2) upon the liquidation of the Company (including upon interim liquidating
distributions), or the distribution by the Company to a retiring or continuing Member of money or
other Company property in reduction of such Member’s interest in the Company; (iv) any adjustments
to the adjusted basis of any asset of the Company pursuant to Sections 734 or 743 of the Code shall
be taken into account in determining such asset’s Book Value in a manner consistent with Treasury
Regulation Section 1.704-1(b)(2)(iv)(m); and (v) if the Book Value of an asset has been determined
pursuant to clause (i) or adjusted pursuant to clauses (iii) or (iv) above, to the extent and in
the manner permitted in the Treasury Regulations, adjustments to such Book Value for depreciation
and amortization with respect to such asset shall be calculated by reference to Book Value, instead
of tax basis.




     “Capital Account” has the meaning given in Section 6.1.



     “Capital Contribution” means, for any Member, the total amount of cash and the Fair
Market Value of any property contributed to the Company by such Member.



     “Carrying Value” means, with respect to any Interest purchased by the Company, the
value equal to the Capital Contribution, if any, made by the selling Management Member in respect
of any such Interest less the amount of distributions made in respect of such Interest.



     “Certificate” means the Certificate of Formation of the Company and any and all
amendments thereto and restatements thereof filed on behalf of the Company with the office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Common Units” means a class of Interests in the Company, as described in Section 3.2(a). For the
avoidance of doubt, Common Units shall not include Override Units.



     “Company” has the meaning given in the introductory paragraph to this Agreement.



     “Covered Person” means a current or former Member or Director, an Affiliate of a
current or former Member or Director, any officer, director, shareholder, partner, member,
employee, advisor, representative or agent of a current or former Member or Director or any of
their respective Affiliates, or any current or former officer, employee or agent of the Company or
any of its Affiliates.



     “Current Value” means, as of any given time, the sum of (A) the aggregate
amount of distributions pursuant to Section 9.1 received by the Investor Members prior to such time
(including, for the avoidance of doubt, any portion of any distribution with respect to which
Current Value is being determined) in respect of Common Units plus (B) if such distribution
is to be made in connection with an Exit Event the product of (i) the aggregate amount per
Common Unit of distributions pursuant to Section 9.1 to be received by the Investor Members upon
such Exit Event, which shall be determined assuming that all Override Units issued and outstanding
at the date of the Exit Event (but excluding, any Override Units (including, without limitation,
Value Units issued hereunder), which, by their terms, would be forfeited in conjunction with the
occurrence of such Exit Event if they did not become eligible to participate in distributions
pursuant to Section 7.1(b) upon the occurrence of the Exit Event) are treated as if they were



33









 




Common Units immediately prior to the Exit Event and (ii) the Investor Member Units
outstanding as of the occurrence of such Exit Event.




     “Deficit” has the meaning given in Section 8.2(a).



     “Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. C. §18-101, et
seq., as amended from time to time.



     “Director” has the meaning given in Section 4.1(a).



     “Disability” means, with respect to a Management Member, the termination of the
employment of any Management Member by the Company or any Subsidiary of the Company that employs
such individual (or by the Company on behalf of any such Subsidiary) as a result of such Management
Member’s incapacity due to reasonably documented physical or mental illness that shall have
prevented such Management Member from performing his or her duties for the Company on a full-time
basis for more than six months and within 30 days after written notice has been given to such
Management Member, such Management Member shall not have returned to the full time performance of
his or her duties, in which case the date of termination shall be deemed to be the last day of the
aforementioned 30-day period; provided that, in the case of any Management Member who, as
of the date of determination, is party to an effective services, severance or employment agreement
with the Company, “Disability” shall have the meaning, if any, specified in such agreement.



     “Exit Event” means a transaction or a combination or series of transactions (other
than an Initial Public Offering) resulting in:




	 	(a)	 	the sale, transfer or other disposition by the Investor Members to one or more
Persons that are not, immediately prior to such sale, Affiliates of the Company or any
Investor Member of all of the Interests of the Company beneficially owned by the
Investor Members as of the date of such transaction; or
	 
	 	(b)	 	the sale, transfer or other disposition of all of the assets of the Company and
its Subsidiaries, taken as a whole, to one or more Persons that are not, immediately
prior to such sale, transfer or other disposition, Affiliates of the Company or any
Investor Member.





     “Fair Market Value” means, as of any date,




	 	(a)	 	for purposes of determining the value of any property owned by, contributed to
or distributed by the Company, (i) in the case of publicly-traded securities,
the average of their last sales prices on the applicable trading exchange or quotation
system on each trading day during the five trading-day period ending on such date and
(ii) in the case of any other property, the fair market value of such property,
as determined in good faith by the Board; or
	 
	 	(b)	 	for purposes of determining the value of any Member’s Interest in connection
with Section 12.4 (“Involuntary Transfers”), (i) the fair market value of such Interest as
reflected in the most recent appraisal report prepared, at the request of 




34









 












	 	 	 	the Board, by an independent valuation consultant or appraiser of recognized national standing,
reasonably satisfactory to the Board, or (ii) in the event no such appraisal
exists or the date of such report is more than one year prior to the date of
determination, the fair market value of such Interest as determined in good faith by
the Board.





     “Inactive Management Member” has the meaning given in Section 7.2(b).



     “Initial Price” means the product of (i) the Investor Members’ average cost
per each Investor Member Unit times (ii) the total number of Investor Member Units.



     “Initial Public Offering” or “IPO” means the first underwritten public
offering of the common stock of a successor corporation to the Company or a Subsidiary of the
Company to the general public through a registration statement filed with the Securities and
Exchange Commission that covers (together with prior effective registrations) (i) not less
than 25% of the then outstanding shares of common stock of such successor corporation or such
Subsidiary of the Company on a fully diluted basis or (ii) shares of such successor
corporation or such Subsidiary of the Company that will be traded on any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities Dealers Automated
Quotation System after the close of any such general public offering.



     “Interest” means a limited liability interest in the Company, which represents the
interest of each Member in and to the profits and losses of the Company and such Member’s right to
receive distributions of the Company’s assets, as set forth in this Agreement.



     “Investor Member Units” means the aggregate member of Units held by the Investor
Members at the time of measurement.



     “Investor Members” has the meaning given in the introductory paragraph to this
Agreement.



     “Involuntary Transfer” has the meaning given in Section 12.4.



     “Involuntary Transferee” has the meaning given in Section 12.4.



     “Kelso” means Kelso Investment Associates VII, L.P., a Delaware limited partnership,
together with KEP VI, LLC, a Delaware limited liability company.



     “Kelso Director” means a Director appointed or designated for election solely by
Kelso.



     “Kelso Member” has the meaning given in the introductory paragraph to this Agreement.



     “Magnetite” means Magnetite Asset Investors III L.L.C., an Outside Member.



     “Majority in Interest” means, as of any given record date or other applicable time,
the holders of a majority of the outstanding Units held by Members as of such date that are
entitled to vote at a meeting of Members or to consent in writing in lieu of a meeting of Members.



35









 





     “Management Member” has the meaning given in the introductory paragraph to this
Agreement. A Management Member shall be deemed not to be a “manager” within the meaning of the
Delaware Act (except to the extent Section 4.1(b) applies).



     “Member” has the meaning given in the introductory paragraph to this Agreement and
includes (i) any Person admitted as an additional or substitute Member of the Company
pursuant to this Agreement and (ii) for the avoidance of doubt, Inactive Management
Members.



     “Net Income” and “Net Loss” mean, respectively, for any period the taxable
income and taxable loss of the Company for the period as determined for U.S. federal income tax
purposes, provided that for the purpose of determining Net Income and Net Loss (and for purposes of
determining items of gross income, loss, deduction and expense in applying Sections 8.1 and 8.2,
but not for income tax purposes): (i) there shall be taken into account any items required to be
separately stated under Section 703(a) of the Code, (ii) any income of the Company that is exempt
from federal income taxation and not otherwise taken into account in computing Net Income and Net
Loss shall be added to such taxable income or loss; (iii) if the Book Value of any asset differs
from its adjusted tax basis for federal income tax purposes, any depreciation, amortization or gain
or loss resulting from a disposition of such asset shall be calculated with reference to such Book
Value; (iv) upon an adjustment to the Book Value of any asset, pursuant to the definition of Book
Value, the amount of the adjustment shall be included as gain or loss in computing such taxable
income or loss; (v) any expenditure of the Company described in Section 705(a)(2)(B) of the Code or
treated as such an expenditure pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i), and
not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition,
shall be subtracted from such taxable income or loss; (vi) to the extent an adjustment to the
adjusted tax basis of any asset included in Company property pursuant to Section 734(b) of the Code
is required pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) to be taken into
account in determining Capital Accounts as a result of a distribution other than in liquidation of
a Member’s interest, the amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the
asset) from the disposition of the asset and shall be taken into account for the purposes of
computing Net Income and Net Loss; and (vii) items allocated pursuant to Section 8.2 shall not be
taken into account in computing Net Income or Net Loss.



     “Non-Investor Member” has the meaning given in the introductory paragraph to this
Agreement.



     “Officers”
has the meaning given in Section 4.11.



     “Operating Unit” means a sub-class of Override Units, as described in Section 3.2(b).



     “Original LLC Agreement” has the meaning given in the recitals to this Agreement.



     “Outside Member” has the meaning given in the introductory paragraph to this Agreement



     “Override Units” means a class of Interest in the Company, as described in Section 3.2(b).



36









 





     “Person” means any individual, corporation, association, partnership (general or
limited), joint venture, trust, estate, limited liability company, or other legal entity or
organization.



     “resignation for Good Reason” means a voluntary termination of a Management Member’s
employment with the Company or any Subsidiary of the Company that employs such individual as a
result of either of the following:




	 	(a)	 	without the Management Member’s prior written consent, a reduction by the
Company or any such Subsidiary of his or her current salary, other than any such
reduction which is part of a general salary reduction or other concessionary
arrangement affecting all employees or affecting the group of employees of which the
Management Member is a member (after receipt by the Company of written notice from such
Management Member and a 20-day cure period); or
	 
	 	(b)	 	the taking of any action by the Company or any such Subsidiary that would
substantially diminish the aggregate value of the benefits provided him or her under
the Company’s or such Subsidiary’s accident, disability, life insurance and any other
employee benefit plans in which he or she was participating on the date of his or her
execution of this Agreement, other than any such reduction which is (i)
required by law, (ii) implemented in connection with a general concessionary
arrangement affecting all employees or affecting the group of employees of which the
Management Member is a member, (iii) generally applicable to all beneficiaries
of such plans (after receipt by the Company of written notice and a 20-day cure period)
or (iv) in accordance with the terms of any such plan.




or, if such Management Member is a party to a services, severance or employment agreement with the
Company, the meaning as set forth in such services or employment agreement.




     “Retirement” means the termination of a Management Member’s employment on or after the
date the Management Member attains age 65. Notwithstanding the foregoing, (i) with respect
to any Management Member who is a party to a services or employment agreement with the Company,
“Retirement” shall have the meaning, if any, specified in such Management Member’s services,
severance or employment agreement and (ii) in the event a Management Member whose
employment with the Company terminates due to Retirement continues to serve as a Director, of or a
consultant to, the Company, such Management Member’s employment with the Company shall not be
deemed to have terminated for purposes of Section 7.2 until the date as of which such Management
Member’s services as a Director, of or consultant to, the Company shall have also terminated, at
which time the Management Member shall be deemed to have terminated employment due to retirement.



     “Rule 144” has the meaning given in section 5.1(b).



     “Second Amended and Restated LLC Agreement” has the meaning given in the recitals to
this Agreement.



     “Securities Act” means the Securities Act of 1933, as amended from time to time.



37









 





     “Stock Purchase Agreement” means that certain Stock Purchase Agreement, dated as of
May 15, 2005, by and among Coffeyville Group Holdings, LLC and the Company, as amended and in
effect from time to time.



     “Subsidiary” means any direct or indirect subsidiary of the Company on the date hereof
and any direct or indirect subsidiary of the Company organized or acquired after the date hereof
and shall be deemed to include CVR Energy, Inc.



     “Tax
Matters Partner” has the meaning given in Section 10.2(b).



     “Termination for Cause” or “Cause” means a termination of a Management
Member’s employment by the Company or any subsidiary of the Company that employs such individual
(or by the Company on behalf of any such subsidiary) due to such Management Member’s (i)
refusal or neglect to perform substantially his or her employment-related duties, (ii)
personal dishonesty, incompetence, willful misconduct or breach of fiduciary duty, (iii)
conviction of or entering a plea of guilty or nolo contendere to a crime
constituting a felony or his or her willful violation of any applicable law (other than a traffic
violation or other offense or violation outside of the course of employment which in no way
adversely affects the Company and its Subsidiaries or its reputation or the ability of the
Management Member to perform his or her employment-related duties or to represent the Company or
any Subsidiary of the Company that employs such Management Member) or (iv) material breach
of any written covenant or agreement with the Company or any of its Subsidiaries not to disclose
any information pertaining to the Company or such subsidiary or not to compete or interfere with
the Company or such Subsidiary; provided that, in the case of any Management Member who, as
of the date of determination, is party to an effective services, severance or employment agreement
with the Company, “termination for Cause” shall have the meaning, if any, specified in such
agreement.



     “Transfer” means to directly or indirectly transfer, sell, pledge, hypothecate or
otherwise dispose of.



     “Treasury Regulations” means the Regulations of the Treasury Department of the United
States issued pursuant to the Code.



     “Units” means any class of Interests provided for herein.



     “Value Units” means a sub-class of Override Units, as described in Section 3.2(b).



[Signature page follows]





38









 








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



	 	 	 	 	 
	 	INVESTOR MEMBERS



KELSO INVESTMENT ASSOCIATES VII, L.P.

 	 
	 	By:  	Kelso GP VII, L.P., its General Partner
 	 



	 	 	 	 	 
	 	By:  	 Kelso GP VII, LLC,
 	 
	 	 	its General Partner 	 



	 	 	 	 	 
	 	By:  	/s/  James J. Connors, II	 
	 	 	Name:  	James J. Connors, II 	 
	 	 	Title:  	Managing Member 	 
	 



	 	 	 	 	 
	 	KEP VI, LLC

 	 
	 	By:  	/s/  James J. Connors, II	 
	 	 	Name:  	James J. Connors, II 	 
	 	 	Title:  	Managing Member 	 



[Signature page to the Third Amended and Restated Limited Liability Company Agreement of

Coffeyville Acquisition LLC]














 







	 	 	 	 	 
	 	MANAGEMENT MEMBERS

 	 
	 	/s/  John
J. Lipinski	 
	 	JOHN J. LIPINSKI 	 
	 	 	 
	 



	 	 	 	 	 
	 	THE TARA K. LIPINSKI 2007 EXEMPT TRUST

 	 
	 	 	 
	 	By:  	/s/  Tara
K. Lipinski	 
	 	 	Name:  	Tara K. Lipinski 	 
	 	 	Title:  	Trustee 	 
	 



	 	 	 	 	 
	 	THE LIPINSKI 2007 EXEMPT FAMILY
TRUST

 	 
	 	By:  	/s/  Patricia
E. Lipinski	 
	 	 	Name:  	Patricia E. Lipinski 	 
	 	 	Title:  	Trustee 	 
	 
	 	/s/  Stanley A. Riemann	 
	 	STANLEY A. RIEMANN 	 
	 	 	 
	 
	 	 	 
	 	
/s/  James T. Rens	 
	 	JAMES T. RENS 	 
	 	 	 
	 
	 	 	 
	 	/s/  Keith D. Osborn
 	 
	 	KEITH D. OSBORN 	 
	 	 	 
	 
	 	/s/  Kevan A. Vick	 
	 	KEVAN A. VICK 	 
	 	 	 



[Signature page to the Third Amended and Restated Limited Liability Company Agreement of

Coffeyville Acquisition LLC]















 








	 	 	 	 	 
	 	 	 
	 	
/s/  Robert W. Haugen	 
	 	ROBERT W. HAUGEN 	 
	 	 	 
	 
	 	 	 
	 	
/s/  Wyatt E. Jernigan	 
	 	WYATT E. JERNIGAN 	 
	 	 	 
	 
	 	 	 
	 	
/s/  Alan K. Rugh	 
	 	ALAN K. RUGH 	 
	 	 	 
	 
	 	 	 
	 	
/s/  Daniel J. Daly, Jr.	 
	 	DANIEL J. DALY, JR. 	 
	 	 	 
	 
	 	 	 
	 	
/s/  Edmund Gross	 
	 	EDMUND GROSS 	 
	 	 	 
	 
	 	 	 
	 	
/s/  Chris Swanberg	 
	 	CHRIS SWANBERG 	 
	 	 	 
	 
	 	 	 
	 	
/s/  John Huggins	 
	 	JOHN HUGGINS 	 
	 	 	 
	 



[Signature page to the Third Amended and Restated Limited Liability Company Agreement of

Coffeyville Acquisition LLC]
















 







	 	 	 	 	 
	 	OUTSIDE MEMBERS


MAGNETITE ASSET INVESTORS III L.L.C.

 	 
	 	By:  	BlackRock Financial Management, Inc., as

Managing Member
	 
	 






	 	 	 	 	 
	 	 	 
	 	By:  	
/s/  Frank Gordon	 
	 	 	Name:  	Frank Gordon	 	 
	 	 	Title:  	Managing Director	 	 
	 



	 	 	 	 	 
	 	 	 
	 	
/s/  Wesley Clark	 
	 	WESLEY CLARK 	 
	 	 	 
	 



[Signature page to the Third Amended and Restated Limited Liability Company Agreement of

Coffeyville Acquisition LLC]

















 





SCHEDULE A




Schedule A to the LLC Agreement




Kelso Members




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Date of	 	 	 	Initial	 	Capital	 	 
	Name	 	Admission	 	Mailing Address	 	Balance	 	Contribution	 	Common Units
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Kelso Investment
Associates VII,
L.P.

	 	June 24, 2005
	 	 	 	N/A
	 	$	100,846,088.29	 	 	 	8,912,707.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	KEP VI, LLC

	 	June 24, 2005
	 	 	 	N/A
	 	$	24,971,411.71	 	 	 	2,206,956.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total

	 	 	 	 	 	N/A
	 	$	125,817,500.00	 	 	 	11,119,663.00	 






 









 






Management Members—Initial Contribution




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Override Units
	 	 	Date of	 	 	 	Capital	 	Common	 	Date of	 	Operating	 	Value	 	Benchmark
	Name	 	Admission	 	Mailing Address	 	Contribution	 	Units	 	Issuance	 	Units	 	Units	 	Amount
	John J. Lipinski

	 	July 25, 2005
	 	 	 	$	650,000	 	 	 	57,446	 	 	Jul. 25, 2005

Dec. 29, 2006
	 	 	315,818

72,492	 	 	 	631,637

144,966	 	 	$

$	11.3149

34.72	 
	Stanley A. Riemann

	 	July 25, 2005
	 		 	$	400,000	 	 	 	35,352	 	 	Jul. 25, 2005
	 	 	140,185	 	 	 	280,371	 	 	$	11.3149	 
	James T. Rens

	 	July 25, 2005
	 		 	$	250,000	 	 	 	22,095	 	 	Jul. 25, 2005
	 	 	71,965	 	 	 	143,931	 	 	$	11.3149	 
	Keith D. Osborn

	 	July 25, 2005
	 		 	$	250,000	 	 	 	22,095	 	 	Jul. 25, 2005
	 	 	71,965	 	 	 	143,931	 	 	$	11.3149	 
	Kevan A. Vick

	 	July 25, 2005
	 		 	$	250,000	 	 	 	22,095	 	 	Jul. 25, 2005
	 	 	71,965	 	 	 	143,931	 	 	$	11.3149	 
	Robert W. Haugan

	 	July 25, 2005
	 		 	$	100,000	 	 	 	8,838	 	 	Jul. 25, 2005
	 	 	71,965	 	 	 	143,931	 	 	$	11.3149	 
	Wyatt E. Jernigan

	 	July 25, 2005
	 		 	$	100,000	 	 	 	8,838	 	 	Jul. 25, 2005
	 	 	71,965	 	 	 	143,931	 	 	$	11.3149	 
	Alan K. Rugh

	 	July 25, 2005
	 		 	$	100,000	 	 	 	8,838	 	 	Jul. 25, 2005
	 	 	51,901	 	 	 	103,801	 	 	$	11.3149	 
	Daniel J. Daly, Jr.

	 	July 25, 2005
	 		 	$	50,000	 	 	 	4,419	 	 	Jul. 25, 2005
	 	 	51,901	 	 	 	103,801	 	 	$	11.3149	 
	Edmund Gross

	 	September 12, 2005
	 		 	$	30,000	 	 	 	2,651	 	 	Sep 12, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	Chris Swanberg

	 	July 25, 2005
	 		 	$	25,000	 	 	 	2,209	 	 	Jul. 25, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	John Huggins

	 	July 25, 2005
	 		 	$	70,000	 	 	 	6,187	 	 	Jul. 25, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	Total

	 	 	 	 	 	$	2,275,000	 	 	 	201,063	 	 	 	 	 	992,122	 	 	 	1,984,931	 	 	 	 	 






 









 






Management Members—Current Holdings




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Override Units	 
	 	 	 	 	Capital	 	Common	 	Date of	 	Operating	 	Value	 	Benchmark
	Name	 	 	 	Contribution	 	Units	 	Issuance	 	Units	 	Units	 	Amount
	John J. Lipinski

	 		 	$	325,000	 	 	 	28,723	 	 	Jul. 25, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	The Tara K.
Lipinski 2007
Exempt Trust

	 		 	 	N/A	 	 	 	N/A	 	 	Jul. 25, 2005

Dec. 29, 2006
	 	 	78,954.5

18,123	 	 	 	157,909.25

36,241.5	 	 	$

$	11.3149

34.72	 
	The Lipinski 2007

Exempt Family Trust

	 		 	 	N/A	 	 	 	N/A	 	 	Jul. 25, 2005

Dec. 29, 2006
	 	 	78,954.5

18,123	 	 	 	157,909.25

36,241.5	 	 	$

$	11.3149

34.72	 
	Stanley A. Riemann

	 		 	$	200,000	 	 	 	17,676	 	 	Jul. 25, 2005
	 	 	70,092.5	 	 	 	140,185.5	 	 	$	11.3149	 
	James T. Rens

	 		 	$	125,000	 	 	 	11,047.5	 	 	Jul. 25, 2005
	 	 	35,982.5	 	 	 	71,965.5	 	 	$	11.3149	 
	Keith D. Osborn

	 		 	$	125,000	 	 	 	11,047.5	 	 	Jul. 25, 2005
	 	 	35,982.5	 	 	 	71,965.5	 	 	$	11.3149	 
	Kevan A. Vick

	 		 	$	125,000	 	 	 	11,047.5	 	 	Jul. 25, 2005
	 	 	35,982.5	 	 	 	71,965.5	 	 	$	11.3149	 
	Robert W. Haugan

	 		 	$	50,000	 	 	 	4,419	 	 	Jul. 25, 2005
	 	 	35,982.5	 	 	 	71,965.5	 	 	$	11.3149	 
	Wyatt E. Jernigan

	 		 	$	50,000	 	 	 	4,419	 	 	Jul. 25, 2005
	 	 	35,982.5	 	 	 	71,965.5	 	 	$	11.3149	 
	Alan K. Rugh

	 		 	$	50,000	 	 	 	4,419	 	 	Jul. 25, 2005
	 	 	25,950.5	 	 	 	51,900.5	 	 	$	11.3149	 
	Daniel J. Daly, Jr.

	 		 	$	25,000	 	 	 	2,209.5	 	 	Jul. 25, 2005
	 	 	25,950.5	 	 	 	51,900.5	 	 	$	11.3149	 
	Edmund Gross

	 		 	$	15,000	 	 	 	1,325.5	 	 	Sep 12, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	Chris Swanberg

	 		 	$	12,500	 	 	 	1,104.5	 	 	Jul. 25, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	John Huggins

	 		 	$	35,000	 	 	 	3,093.5	 	 	Jul. 25, 2005
	 	 	N/A	 	 	 	N/A	 	 	 	N/A	 
	Total

	 	 	 	$	1,137,500	 	 	 	100,531.75	 	 	 	 	 	496,061	 	 	 	992,465.5	 	 	 	 	 






 









 






Outside Members




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Date of	 	 	 	Capital	 	 
	Name	 	Admission	 	Mailing Address	 	Contribution	 	Common Units
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Magnetite Asset
Investors III
L.L.C.

	 	June 24, 2005
	 		 	$	2,000,000	 	 	 	176,758.00	 
	Wesley Clark

	 	September 20, 2005
	 		 	$	125,000	 	 	 	11,047.50	 







 









 








EXHIBIT A




SPOUSAL WAIVER




     [INSERT NAME] hereby waives and releases any and all equitable or legal claims and rights,
actual, inchoate or contingent, which [she] [he] may acquire with respect to the disposition,
voting or control of the Units subject to the Third Amended and Restated Limited Liability Company
Agreement of Coffeyville Acquisition LLC, dated as of October 16, 2007, as the same may be amended,
modified, supplemented or restated from time to time, except for rights in respect of the proceeds
of any disposition of such Units.



	 	 	 	 	 
	 
	 	 

Name: