EXHIBIT 10.5
EXECUTION COPY
AMENDMENT NUMBER ONE
TO THE
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
RAAH I, LLC
THIS AMENDMENT NUMBER ONE TO THE AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT (this "AGREEMENT"), dated as of July 19, 2001, of RAAH I, LLC,
a Delaware limited liability company (the "COMPANY"), is entered into by and
among Raytheon Aircraft Holdings, Inc., a Delaware corporation ("RAYTHEON
AIRCRAFT"), RA Aerospace Holding LLC, a Delaware limited liability company
("RAH"), and the other parties identified as Class B Unitholders on the
signature pages hereto (collectively, together with the other parties who become
members pursuant to the provisions of the LLC Agreement (as hereinafter
defined), referred to as the "MEMBERS" or individually as a "MEMBER").
WITNESSETH:
WHEREAS, the Members have entered into that certain Amended and Restated
Limited Liability Company Agreement of RAAH I, LLC, dated as of June 27, 2001
(the "LLC AGREEMENT"; capitalized terms used in this Agreement and not otherwise
defined shall have the meanings ascribed to them in the LLC Agreement); and
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Members desire to amend the LLC Agreement by entering into this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals and of
the mutual covenants contained in this Agreement, the parties hereto do hereby
agree as follows:
1. DEFINITION OF "MANAGEMENT UNIT HOLDER". The definition of "Management
Unitholder," set forth in Section 1.1 of the LLC Agreement, is hereby amended by
deleting it in its entirety and substituting, in lieu thereof, the following:
" "MANAGEMENT UNITHOLDER" means an individual Unitholder who is
providing services on a full-time basis to the Company or any of its
Subsidiaries or is an RAH Representative and in either case is listed
under the heading "Management Unitholder" on SCHEDULE A hereto, and
shall include such individuals who acquire Units pursuant to SECTION
8.2(d)(ii)."
2. SECTION 6.2(f) OF THE LLC AGREEMENT. Section 6.2(f) of the LLC
Agreement is hereby amended by deleting it in its entirety and by substituting,
in lieu thereof, the following:
"(f) SPECIAL ALLOCATION AND DISTRIBUTION TO SENIOR COMMON
UNITHOLDERS AND CLASS B UNITHOLDERS. Anything in this Agreement to the
contrary notwithstanding, upon the occurrence of a Change of Control
specified in SECTION
8.6(b)(ii) hereof, (i) to the extent an amount of Net Profit is
available after allocations pursuant to SECTIONS 6.2(a)(i), (ii) and
(iii) have been made in full (such amount, the "RESIDUAL PROFIT"), the
amount of Net Profit allocated to the Senior Common Unitholders and
the Class B Unitholders pursuant to SECTION 6.2(a)(iv), after taking
into account the Class B Unit Gross Up, shall be increased by the
lesser of (x) $1,500,000 and (y) the Residual Profit (such increase,
the "SPECIAL ALLOCATION"); and (ii) subject to SECTIONS 5.3, 5.4, 5.5,
7.10 and 9.2 hereof and, to the extent a sufficient amount of cash is
available after distributions pursuant to SECTIONS 5.2(a)(i) and (ii)
have been made in full, the amount distributed to the Senior Common
Unitholders and the Class B Unitholders pursuant to SECTION
5.2(a)(iii), after taking into account the Class B Unit Gross Up,
shall be increased by the amount of the Special Allocation."
3. SECTION 7.2 OF THE LLC AGREEMENT. Section 7.2 of the LLC Agreement is
hereby amended by deleting it in its entirety and by substituting, in lieu
thereof, the following:
"7.2 ESTABLISHMENT OF BOARD.
(a) NUMBER OF REPRESENTATIVES. The authorized number of
Representatives shall be up to twelve (12).
(b) RAYTHEON REPRESENTATIVES. Until the earlier of (i) such
time as the Raytheon Member ceases to hold any of the Preferred Units
issued to the Raytheon Member on the date hereof and (ii) the Initial
Public Offering, the Raytheon Member shall have the right to designate
(and to remove and designate successive replacements for) up to three
(3) Representatives (the "RAYTHEON REPRESENTATIVES"). Any Raytheon
Representative may, on prior notice to the Board, from time to time
designate individuals to serve as limited replacement representatives
for purposes of attending any meeting of the Board, in which event,
such replacement representatives shall be deemed to have a proxy for
the Raytheon Representative and shall in all respects be accorded the
same power and authority as if such individual were a Raytheon
Representative.
(c) RAH REPRESENTATIVES. The RAH Member shall have the right
to designate (and to remove and designate successive replacements for)
up to nine (9) Representatives (the "RAH REPRESENTATIVES")."
4. SECTION 8.2(d)(i) OF LLC AGREEMENT. Section 8.2(d)(i) of the LLC
Agreement is hereby amended by deleting it in its entirety and by substituting
in lieu thereof:
"(i) PERMITTED TRANSFEREES. Subject to SECTION 8.1, the restrictions
on Transfer contained in SECTIONS 8.2(a) and (b) shall not apply with
respect to any Transfer (A) in the case of a Member which is a natural
Person, of Units pursuant to Applicable Laws of descent and
distribution or to any member of such Member's Family Group, (B) in
the case of the RAH Member, among its Affiliates, to individuals
providing services on a full-time basis to the Company or any of its
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Subsidiaries or to RAH Representatives, and (C) in the case of the
Raytheon Member, among its wholly owned Subsidiaries (each a
"PERMITTED TRANSFEREE")."
5. SECTION 8.2(d)(ii) OF LLC AGREEMENT. Section 8.2(d)(ii) of the LLC
Agreement is hereby amended by deleting it in its entirety and by substituting
in lieu thereof:
"(ii) ISSUANCES TO MANAGEMENT UNITHOLDERS. Subject to SECTION 8.1, it
is hereby acknowledged and agreed that the Company may issue new Units
to individuals who are either providing services on a full-time basis
to the Company or any of its Subsidiaries or who are RAH
Representatives. Such persons shall thereupon become Management
Unitholders for purposes of this Agreement. In no event shall the
aggregate Management Percentage Interests of the Management
Unitholders exceed 7.5%."
6. SECTION 8.2(d)(iii) OF LLC AGREEMENT. The first sentence of Section
8.2(d)(iii) of the LLC Agreement is hereby amended by deleting it in its
entirety and by substituting in lieu thereof:
"(iii) ISSUANCE TO CLASS B UNITHOLDERS. Subject to SECTION 8.1, upon
the execution and delivery of the Senior Unsecured Debt Documents and
receipt by the Company of the consideration for the Class B Units
issued by the Company hereunder, each Class B Unitholder shall receive
and shall be deemed to own the number of Class B Units set forth
opposite such Member's name on SCHEDULE A."
7. SECTION 8.6 OF THE LLC AGREEMENT. Section 8.6 of the LLC Agreement is
hereby amended by deleting it in its entirety and by substituting, in lieu
thereof, the following:
"8.6 REDUCTION OF MANAGEMENT UNITHOLDER'S INTERESTS. (a) Subject to
SECTION 8.6(b), in the event that prior to June 27, 2006 or the fifth
anniversary of the date the subject Management Unitholder became a
full-time employee of the Company or any of its Subsidiaries or an RAH
Representative, as the case may be (the "VESTING COMMENCEMENT DATE"),
whichever is later, the services of a Management Unitholder to the
Company either as a full-time employee or an RAH Representative
terminate for any reason, then as of the date of such termination (the
"TERMINATION DATE"), the Management Percentage Interest of such
Management Unitholder shall be reduced by the following percentage
(the "REDUCTION PERCENTAGE"):
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TERMINATION DATE REDUCTION
PERCENTAGE
Prior to and including June 27, 2002 or the
first anniversary of the Vesting
Commencement Date, whichever is later 100%
After June 27, 2002 or the first
anniversary of the Vesting Commencement
Date, whichever is later, but prior to and
including June 27, 2003 or the second
anniversary of the Vesting Commencement
Date, whichever is later 80%
After June 27, 2003 or the second
anniversary of the Vesting Commencement
Date, whichever is later, but prior to and
including June 27, 2004 or the third
anniversary of the Vesting Commencement
Date, whichever is later 60%
After June 27, 2004 or the third
anniversary of the Vesting Commencement
Date, whichever is later, but prior to and
including June 27, 2005 or the fourth
anniversary of the Vesting Commencement
Date, whichever is later 40%
After June 27, 2005 or the fourth
anniversary of the Vesting Commencement
Date, whichever is later, but prior to and
including June 27, 2006 or the fifth
anniversary of the Vesting Commencement
Date, whichever is later 20%
After June 27, 2006 or the fifth
anniversary of the Vesting Commencement
Date, whichever is later 0%
By way of example, if a Management Unitholder whose Vesting
Commencement Date was on or prior to June 27, 2001 were to either
terminate his employment (or have his employment terminated) with the
Company or cease serving as an RAH Representative for any reason on
December 31, 2004, his Management Percentage Interest would be reduced
by 40%.
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(b) Upon a Change of Control, the Reduction Percentage shall
be 0%. For purposes of this Agreement, "CHANGE OF CONTROL" means the
occurrence of any of the following events:
(i) the RAH Member ceases to be the owner of a majority
of the outstanding Senior Common Units; or
(ii) the sale of all or substantially all of the assets
of the Company to a third party that is not an Affiliate of the
RAH Member.
(c) In the event that the duties and responsibilities of a
Management Unitholder to the Company or any of its Subsidiaries are
changed, the Management Percentage Interest of such Management
Unitholder may be increased or decreased by an amount determined in
the sole discretion of the RAH Member, subject to the last sentence of
Section 8.2(d)(ii).
(d) Upon a reduction in the Management Percentage Interest of
a Management Unitholder in accordance with SECTION 8.6(a) or Section
8.6(c), the portion of such Management Unitholder's Management
Percentage Interest which is so reduced shall be allocated to the RAH
Member and Raytheon Member in proportion to their respective
Membership Interests. In the event of such reduction, such Management
Unitholder shall be entitled to no payment whatsoever as compensation
for such reduction in his or her Management Percentage Interest."
8. GENERAL PROVISIONS.
(a) MODIFICATION; FULL FORCE AND EFFECT. Except as expressly
modified and superseded by this Agreement, the terms and provisions of the LLC
Agreement are ratified and confirmed and shall continue in full force and
effect, all parties hereto hereby agreeing that the LLC Agreement shall continue
to be outstanding, validly existing and enforceable in accordance with its
terms.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of all of the Members and their permitted successors,
legal representatives, and assigns.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be an original,
and all of which when executed shall constitute one and the same instrument.
(d) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
APPLICATION, CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF
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DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, all of the parties hereto have executed this Agreement,
effective as of the date first written above.
RAYTHEON AIRCRAFT HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: President
RA AEROSPACE HOLDING LLC
By: /s/ Xxxxxx X. XxXxxx
----------------------
Name: Xxxxxx X. XxXxxx
Title: Authorized Signatory
CLASS B UNITHOLDERS:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Its Authorized Representative
AA-RAAH I, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
CIBC WMC, INC.
By: /s/ Xxxx Xxxxxxx
------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxx
Title: Director-Private Placements
WMF-RAAH I, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: V.P.
R.A. ACQUISITION CORPORATION
By: /s/ Xxx Xxxxx
-----------------
Name: Xxx Xxxxx
Title: Executive Vice President
BNY CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
----------------------
Name Xxxx X. Xxxxxxxx
Title: Principal
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ Xxxxxx Xxxxxx
-------------------
Name: Xxxxxx Xxxxxx
Title: Investment Officer
