Exhibit 99.5
FOURTH AMENDMENT
TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
AIR PARTNERS, L.P.
This Fourth Amendment ("Amendment") to the Amended and Restated Limited
Partnership Agreement of Air Partners, L.P. is entered into effective as of
the 19th day of November, 1998 (the "Fourth Amendment Effective Date") by and
among 1992 Air GP, a Texas general partnership ("1992 Air") as the general
partner, Air II General, Inc., a Texas corporation ("Air II") as withdrawing
general partner, and each person executing a counterpart Limited Partner
Signature Page as the limited partners (including Air Saipan, Inc. ("Saipan")
as a new Limited Partner).
RECITALS
A. Air Partners, L.P. (the "Partnership") was formed pursuant to that
certain Limited Partnership Agreement of the Partnership dated as of August
19, 1992 (the "Original Agreement"). The Original Agreement was amended and
restated in its entirety pursuant to that certain Amended and Restated Limited
Partnership Agreement of the Partnership (the "Restated Agreement"). The
Restated Agreement was amended by that certain First Amendment to the Restated
Agreement dated as of July 25, 1995 (the "First Amendment"), that certain
Second Amendment to the Restated Agreement dated as of August 7, 1995 (the
"Second Amendment"), and that certain Third Amendment to the Restated
Agreement dated as of May 22, 1997 (the "Third Amendment"). The Restated
Agreement as amended by the First Amendment, the Second Amendment, and the
Third Amendment is referred to herein as the "Current Agreement".
B. The Partners desire to reflect certain transfers and certain other
amendments described herein relating to the transactions contemplated under
and to be carried out in accordance with that certain Investment Agreement (as
amended by Amendment No. 1, the "NW Investment Agreement") dated January 25,
1998 as executed by the partners of the Partnership and certain other parties
and pursuant to that certain Amendment No. 2 to the Investment Agreement
("Amendment No. 2") to be dated on or about November 18, 1998 to be executed
by the partners of the Partnership and certain other parties (such
transactions, the "NW Transaction"), as described herein.
Now therefore, for and in consideration of the mutual promises
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the undersigned hereby agree
as follows:
1. All capitalized terms used and not otherwise defined herein shall
have the meanings given them in the Current Agreement.
2. Air II has, by separate agreement, contributed its entire general
partner interest in the Partnership to 1992 Air in return for a partnership
interest in 1992 Air, and desires to withdraw from the Partnership as a
General Partner. Each of the parties hereto, by their execution hereof,
hereby (i) consents to such transfer and withdrawal, (ii) waives any right
under the Current Agreement to declare such transfer and withdrawal as a
breach of any covenant, warranty, or provision of the Current Agreement, (iii)
agrees and acknowledges that 1992 Air shall from this date forward be the sole
General Partner of the Partnership and that all references to the General
Partner in the Current Agreement shall refer solely to 1992 Air and that 1992
Air shall continue as Managing General Partner, and (iv) agrees to continue
the Partnership following such transfer and withdrawal and to continue the
business of the Partnership.
3. Pursuant to Section 6.02(a)(i) of the Current Agreement, following
the withdrawal of Air II as a General Partner, 1992 Air hereby agrees (i) to
continue and reconstitute the Partnership without dissolution thereof, (ii) to
continue the business of the Partnership without interruption, and (iii) to
continue as Managing General Partner.
4. 1992 Air desires to have a portion of its general partner interest
in the Partnership (taking into account the increase in such interest
attributable to Air II's newly-contributed general partner interest), equal to
Saipan's indirect interest in the Partnership held through 1992 Air, converted
to a Limited Partner interest in the Partnership, but for Saipan to otherwise
to enjoy the same economic benefits as currently exist with respect to such
interest (the "Converted Interest"). The amount of such interest (on a post
promote basis) is set forth as part of the chart on Exhibit A attached hereto
and made a part hereof. Each of the parties hereto, by their execution
hereof, hereby consents to such conversion.
5. Following the actions described in 4 above, 1992 Air will,
contemporaneously, by separate agreement, distribute the Converted Interest to
Saipan, including all attributes appurtenant thereto (including that portion
of 1992 Air's Capital Account related to the Converted Interest). Following
such distribution, Saipan desires to be admitted as a Limited Partner of the
Partnership pursuant to Section 5.04(a)(ii) of the Current Agreement. Each of
the parties hereto, by their execution hereof, hereby consents to such
distribution and the admission of Saipan as a Limited Partner of the
Partnership.
6. The terms "General Partner" and "General Partners" shall
hereinafter refer solely to 1992 Air and shall not include Air II. The terms
"Limited Partner" and "Limited Partners" shall hereinafter include Saipan.
The terms "Partner" and "Partners" shall hereinafter include Saipan and shall
not include Air II.
7. Prior to the consummation of the NW Transaction, the Share
Electing Partners (as defined in the NW Investment Agreement) will be entitled
to receive a distribution, in partial liquidation of their interests in the
Partnership, of the number of A Shares as set forth on Exhibit B attached
hereto and made a part hereof. Each of the Share Electing Partners, by their
execution of this Amendment, hereby request that the Partnership transfer its
rights to receive such A Shares to 1998 CAI Partners, L.P. ("CAIP") as a
contribution of capital of CAIP by and on behalf of such Share Electing
Partner, and further request that, upon distribution, the A Shares be
distributed directly to CAIP. Each Share Electing Partner hereby accepts the
transfer, to CAIP, of its right to receive A Shares in partial liquidation of
its interests in the Partnership, and each of the Share Electing Partners
hereby grants a power of attorney to 1992 Air to take any and all actions and
to enter into such documents and agreements on its behalf to accomplish such
distribution including, but not limited to, the execution of Amendment No. 2
on behalf of such Share Electing Partner including the proxy, voting,
transfer, and other restrictions or requirements placed on CAIP and the Share
Electing Partners, and such power of attorney is irrevocable and is coupled
with an interest, shall continue notwithstanding the subsequent incapacity or
death of the Share Electing Partner granting such power, and shall be in
addition to the Powers (defined herein) and any powers of attorney granted by
such Share Electing Partner under paragraph 8 hereof.
8. Each of the Partners has, by a prior Letter of Instruction (each,
a "Letter") and by a prior Power of Attorney (each, a "Power") consented to
and approved of, and authorized 1992 Air to act as its attorney-in-fact with
respect to the NW Investment Agreement. Each of the Partners, by their
execution hereof, hereby grants a further and continuing power of attorney to
1992 Air to act on behalf of the Partnership and such Partner to carry out and
complete the NW Transaction in accordance with the terms set forth in the NW
Investment Agreement as amended by Amendment No. 2, to execute Amendment No.
2 on such Partner's behalf and the documents, certificates, cross-receipts,
instruments, and other agreements described in the NW Investment Agreement as
amended by Amendment No. 2, and to confirm, if required, the representations
and warranties required of such party under the NW Investment Agreement (or to
reaffirm such representations and warranties as part of Amendment No. 2 or the
closing of the NW Transaction), and to make such changes to the documents or
the transaction as 1992 Air deems necessary or advisable; provided that, such
power of attorney does not permit 1992 Air to materially expand the
representations and warranties of such party or to materially reduce the
economic benefits to accrue to such party from the NW Transaction or to
materially expand the obligations of such party associated with the NW
Transaction without such party's prior written consent; provided that, each
Share Electing Partner has consented to the actions to be taken under
paragraph 7 hereof (including the proxy, voting, transfer, and other
restrictions or requirements placed on CAIP and the Share Electing Partners
under Amendment No. 2) and the resulting adjustments made under Amendment No.
2. The foregoing power of attorney is irrevocable and is coupled with an
interest, and shall continue notwithstanding the subsequent incapacity or
death of the party granting such power. The Letters and Powers shall continue
in full force and effect.
9. As provided in the Letters, each Partner hereby agrees that solely
for the purpose of determining the promote consideration owed to the General
Partner from each of the Partners resulting from the NW Transaction, the
actions taken and transfers made in accordance with the NW Investment
Agreement as amended by Amendment No. 2 shall be deemed as if (i) such actions
and transfers were made on January 25, 1998, (ii) such actions and transfers
were accomplished through a sale of the Securities held by the Partnership
(including those to be distributed to CAIP under paragraph 7) to the
transferee parties under and as provided for in the NW Investment Agreement
(without regard to Amendment No. 2), in return for the consideration provided
for in the NW Investment Agreement (net of the amount of the Expense Fund
described in paragraph 10 below), and (iii) such consideration was then
distributed (in the form of stock or cash as requested by each Partner in its
Letter) to the Partners as provided for in Section 4.09(e) of the Current
Agreement. Each Partner's expected consideration net of the promote
consideration and, for the Share Electing Partners, reduced by the pro rata
share of A Share distributions to be made to CAIP under paragraph 7 hereof
(denominated in cash or shares of stock as elected by such Partner under the
NW Investment Agreement) shall be reported to the transferee parties under the
NW Investment Agreement as part of the closing of the NW Transaction and shall
be used to determine the consideration to be paid to each Partner from its
transfer of its interest in the Partnership. Following the calculation of the
deemed distribution as provided for in (iii) above, 1992 Air shall determine
each Partner's "Post-Promote Percentage Interest" which, for a particular
Partner, shall be determined as of January 25, 1998, and shall be the ratio of
such Partner's deemed distribution determined in (iii) above (assuming the
transaction had been closed under the NW Investment Agreement) over the total
deemed distributions of all of the Partners. The Post-Promote Percentage
Interests are set forth on Exhibit A attached hereto. Except as specifically
provided for in this Amendment, the amount of consideration to be received by
a Partner (denominated in shares and/or an amount of cash) shall not be
further adjusted between January 25, 1998 and the time of the closing of the
NW Transaction.
10. Each of the Partners, by their execution hereof, acknowledges and
agrees that under instructions by 1992 Air, approximately $3 million in cash
will be paid to 1992 Air on behalf of the Partners of the Partnership in order
to fund the costs and expenses of the NW Transaction (the "Expense Fund").
Each of the Partners, by their execution hereof, hereby appoints 1992 Air to
act as their agent in settling such costs and expenses, and authorizes 1992
Air to retain any or all of such funds not immediately needed, if any, as a
reserve against future expenses. Upon a determination by 1992 Air that any
portion of such funds are in excess of the amounts needed to fund future costs
and expenses, 1992 Air shall return such excess amounts to each of the
Partners, pro rata based on their Post-Promote Percentage Interests.
11. Each of the Partners hereby agrees to bear its share of all
expenses associated with the NW Transaction and the continued operation of the
Partnership through the closing (including, but not limited to, all fees and
expenses associated with the operation thereof up until the closing of the NW
Transaction, and all costs thereafter to close out the Partners' interests
therein such as accounting and tax preparation costs and any costs of
litigation, but not any costs or expenses incurred by Air Partners, L.P. from
its operations after the transfers are made at the closing of the NW
Transaction, which shall be borne by the transferee owners of the Partnership)
pro rata in the ratio of their Post-Promote Percentage Interests, which
expenses shall include such Partner's share of the repayment of the warrant
exercise loan principal and interest as provided for, in accordance with, and
with the consideration designated in, the NW Investment Agreement. 1992 Air,
as agent, is hereby authorized to first use the Expense Fund to satisfy such
expenses to the extent possible. If the Expense Fund is insufficient to cover
all such expenses, each Partner hereby agrees to recontribute its pro rata
share, by Post-Promote Percentage Interests, of any additional funds needed to
satisfy such expenses; provided that, no Partner shall be obligated to
recontribute or fund collectively pursuant to this paragraph 11 and paragraph
12 (i) more than his or its pro rata share, by Post-Promote Percentage
Interests, of any expenses or obligations incurred or (ii) on a cumulative
basis, an amount in excess of the amount of consideration received by such
Partner in connection with the closing of the NW Transaction (valued as of the
date of the closing of the NW Transaction) plus, for Share Electing Partners,
the pro rata value for such Share Electing Partner of the A Share distribution
to be made pursuant to the right to receive such distribution contributed by
such Share Electing Partner to CAIP under paragraph 7 (valued on the date of
receipt of such distribution). The foregoing in no way affects or limits the
agreements entered into by each of the Partners under the NW Investment
Agreement.
12. Notwithstanding the transfer of such Partner's interest in the
Partnership under the NW Transaction, each of the Partners hereby agrees that
the indemnity and exculpation provisions of the Current Agreement, including
Sections 2.04 and 2.05 thereof, shall continue to be of full force and effect,
with respect to, and shall continue to cover, the actions (and inactions)
taken (and to be taken) by 1992 Air GP, its officers, directors, partners,
employees, and agents in connection with (i) the operations of the Partnership
through the closing of the NW Transaction (including actions taken thereafter
to wrap up the Partners' interests in the Partnership such as the payment of
previously incurred expenses and the preparation of financial and tax
documents and reports), and (ii) the NW Transaction, and that each Partner
shall bear its pro rata share, by Post-Promote Percentage Interests, of all
costs and expenses incurred in accordance therewith; provided that, the
limitations and exclusions set forth in the Current Agreement regarding
indemnification and exculpation, including Sections 2.04 and 2.05 thereof,
shall continue in effect; and provided further that, no Partner shall be
obligated to recontribute or fund collectively pursuant to paragraph 11 and
this paragraph 12 (i) more than his or its pro rata share, by Post-Promote
Percentage Interests, of any expenses or obligations incurred or (ii) on a
cumulative basis, an amount in excess of the amount of consideration received
by such Partner in connection with the closing of the NW Transaction (valued
as of the date of the closing of the NW Transaction) plus, for Share Electing
Partners, the pro rata value for such Share Electing Partner of the A Share
distribution to be made pursuant to the right to receive such distribution
contributed by such Share Electing Partner to CAIP under paragraph 7 (valued
on the date of receipt of such distribution). The foregoing in no way affects
or limits the agreements entered into by each of the Partners under the NW
Investment Agreement.
13. Any interest payments to be received by the Partners under Section
2.5 of the NW Investment Agreement shall be divided among the Partners pro
rata based on their Post-Promote Percentage Interests, and shall be added to
any other consideration to be paid to such Partner determined under paragraph
9 hereof.
14. Each Partner hereby ratifies the NW Investment Agreement as
provided in its Letter, and agrees to continue to be bound by it and all
actions contemplated by it as provided in such Partner's Letter and by all
actions taken in such Partner's name that was or is properly taken in
accordance with the Power and the power of attorney granted under paragraph 8
hereof. Each Partner further ratifies Amendment No. 2 and agrees to be bound
by it and all actions completed by it and by all actions taken in such
Partner's name that is properly taken in accordance with the power of attorney
granted under paragraph 8 hereof.
15. Except as amended hereby, the Current Agreement shall remain in
full force and effect, and each person executing this Amendment hereby
acknowledges the same; provided that, following the consummation of the NW
Transaction, each Partner agrees to and requests to withdraw completely from,
and no longer be a Partner of, the Partnership. The provisions herein
concerning powers of attorney, expense sharing and recontribution, and
indemnities and exculpations shall continue notwithstanding the sale of the
Partners' interests as part of the NW Transaction, as between the current
Partners and the General Partner; provided that, none of such provisions shall
be deemed to impose any obligations on the new partners to be admitted upon
the transfer of all of the current Partners' interests as part of the NW
Transaction.
16. This Amendment may be executed in multiple counterparts, each of
which shall be deemed an original for all purposes and all of which when taken
together shall constitute a single counterpart instrument. All of the
counterpart pages shall be read as though one and shall have the same force
and effect as if all of the parties had executed a single signature page.
[SIG NATURES BEGINNING ON FOLLOWING PAGE]
In witness whereof, each of the undersigned has executed this Amendment
to be effective as of the Fourth Amendment Effective Date.
GENERAL PARTNER
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
general partner
By:
Xxxxx X. X'Xxxxx, Chief Financial Officer
and Vice President
WITHDRAWING GENERAL PARTNER
AIR II GENERAL, INC., a Texas corporation
By: __________________________________
Xxxxx X. X'Xxxxx, Vice President
[CONTINUED ON ATTACHED PAGES]
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
___________________________________
XXXXX XXXXXXXXX
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
BONDERMAN FAMILY LIMITED
PARTNERSHIP
By: Bondco, Inc., general partner
By:________________________________
Xxxxx X. X'Xxxxx, Chief Financial Officer
and Vice President
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
ESTATE OF XXXXX XXX HILLBLOM
By:________________________________
Title:
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
DHL MANAGEMENT SERVICES, INC.
By:_________________________________
Title:________________________________
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
LECTAIR PARTNERS LIMITED PARTNERSHIP
By: Planden Corp., General Partner
By:_________________________________
Xxxxxx X. Xxxxx, President
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
SUNAMERICA INC.
By:_________________________________
Title:________________________________
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
___________________________________
XXX XXXXX
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
AMERICAN GENERAL CORPORATION,
a Texas corporation
By:_________________________________
Title:________________________________
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
___________________________________
XXXXXX XXXXX
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
CONAIR LIMITED PARTNERS, L.P.,
By:_________________________________
Xxxx X. Xxxxx, General Partner
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
BONDO AIR LIMITED PARTNERSHIP
By: 1992 Air, Inc., general partner
By:
Xxxxx X. X'Xxxxx, Chief Financial Officer
and Vice President
LIMITED PARTNER SIGNATURE PAGE
The undersigned limited partner does hereby execute and agree to the
Fourth Amendment to the Amended and Restated Limited Partnership Agreement of
Air Partners, L.P., a Texas limited partnership.
AIR SAIPAN, INC., a CNMI corporation
By:_________________________________
Title:________________________________
EXHIBIT A
POST-PROMOTE
PERCENTAGE APPROXIMATE NET
PARTNER INTEREST CONSIDERATION*
SHARES CASH
1992 Air GP 18.560% 1,108,808 $24,306,737**
Xxxxx Xxxxxxxxx 4.916% 308,736 597,195
Bonderman Family, L.P. 1.425% 104,363 173,132
Estate of Xxxxx Xxxxxxxx 11.743% 0 57,353,560
DHL Management Services 11.400% 0 55,681,733
Lectair Partners, L.P. 7.695% 483,333 934,919
SunAmerica 4.275% 0 20,880,892
Xxx Xxxxx 2.850% 179,011 346,264
American General Corp. 15.326% 0 74,854,080
Xxxxxx Xxxxx 7.125% 447,533 865,670
Conair, L.P. 1.283% 0 6,264,409
Bondo Air, L.P. 13.054% 0 63,758,353
Air Saipan 0.348% 0 1,698,049
100.000% 2,631,784 $307,714,993
* Total consideration from NW Transaction less pro rata share of
Expense Fund less pro rata share of warrant loan repayment plus pro
rata share of interest received. This amount does not include, for
Share Electing Partners, the right to receive a distribution of A
Shares reflected on Exhibit B.
** Includes Expense Fund.
EXHIBIT B
RIGHT TO RECEIVE
A SHARES TO
SHARE BE DISTRIBUTED
ELECTING UNDER PARAGRAPH 7
PARTNER TO CAIP
1992 Air GP 141,000
Xxxxx Xxxxxxxxx 101,424
Bonderman Family, L.P.
17,104
Lectair Partners, L.P.
158,780
Xxx Xxxxx 58,807
Xxxxxx Xxxxx 147,019
624,134
