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10.8(e) Fifth Amendment to the Limited Liability
Company Agreement dated May 31, 1996, effective as
of June 1, 0000,
xxxxx xxx Xxxxxxxxxx, XXXX (XXX) Inc. and Xxxxxx General LLC
dated as of September 28, 1998
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AMENDMENT NO. 5 TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXXX GENERAL LLC
Amendment No. 5 (this "Amendment"), dated this 28th day of September,
1998, to the Limited Liability Company Agreement dated May 31, 1996, effective
as of June 1, 1996, as amended (the "LLC Agreement"), among Xxxxxx General
Corporation ("Xxxxxx"), a Delaware corporation, LAGS (USA) Inc. ("LAGS (USA)"),
a Delaware corporation, and Xxxxxx General LLC (the "Company"), a Delaware
limited liability company. Capitalized but undefined terms used in this
Amendment will have the meanings set forth in the LLC Agreement.
WHEREAS, in accordance with ARTICLE III of the Unit Purchase and Option
Agreement dated February 27, 1996, as amended, between Lufthansa Airport and
Ground Services GmbH ("LAGS"), a German corporation and an affiliate of LAGS
(USA), and Xxxxxx, LAGS has an option (the "LAGS Option") to acquire a
sufficient number of Class B Units which will increase the total outstanding
Class B Units to up to 49% of the aggregate number of Class A Units and Class B
Units of the Company outstanding upon giving effect to the exercise of the LAGS
Option; and
WHEREAS, in the event that LAGS exercises the LAGS Option in full on or
before October 1, 1998, then, simultaneously with the closing of the purchase of
the additional Class B Units, LAGS (USA), Xxxxxx and the Company desire that
Xxxxxx convert a portion of its Class A Units on a one-for-one basis into the
same number of new non-voting Preferred Units of the Company having the rights
and preferences set forth herein (the "Unit Exchange Transaction"); and
WHEREAS, LAGS (USA), Xxxxxx and the Company wish to amend the LLC
Agreement to provide for the Unit Exchange Transaction and certain other matters
as provided herein; and
WHEREAS, in accordance with Paragraph 15.2 of the LLC Agreement, the
Member Board, by a unanimous vote of the Representatives, and Xxxxxx, as the
holder of a majority of the outstanding Units, have voted to approve this
Amendment.
NOW, THEREFORE, in connection with and in consideration of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Amendment to Paragraph 1.1 to Revise Definition of "Unit." The
definition of the term "Unit" in Paragraph 1.1 of the LLC Agreement is hereby
amended to read in its entirety as follows:
"Unit" means a Class A Unit or a Class B Unit, or a Unit of any other
class which
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the Company may at any time be authorized by this Agreement to
issue; provided, however, the term Unit shall not include Preferred Units as
such term is defined in Paragraph 16.1(a) hereof.
2. Amendment to ARTICLE VII. ARTICLE VII of the LLC Agreement is hereby
amended by adding thereto a new Paragraph 7.2 to read in its entirety as
follows:
7.2 Investment Policy. Notwithstanding any provisions to the contrary
which may be contained herein, any cash held by the Company or any subsidiary in
excess of the amount of cash required for day-to-day business operations shall
be invested in (i) the manner permitted pursuant to the Company's "Investment
Policy" as set forth in Annex A attached hereto or (ii) such other investments
as may be approved by the Member Board, and such approval by the Member Board
shall require at least four affirmative votes of the Representatives.
3. New ARTICLE XVI. The LLC Agreement is hereby amended by adding
thereto a new ARTICLE XVI, captioned "PREFERRED UNITS," to read as follows:
16.1 Unit Exchange.
(a) In the event that on or before October 1, 1998 LAGS exercises in
full its option (the "LAGS Option"), as set forth in Article III of the Unit
Purchase Agreement, to purchase a sufficient number of Class B Units to increase
the total outstanding Class B Units to 49% of the aggregate number of Class A
Units and Class B Units of the Company outstanding upon giving effect to the
exercise of the LAGS Option, then, (i) upon exercise of the LAGS Option and in
accordance with Paragraph 3.5(ii) of the Unit Purchase Agreement, LAGS will
purchase 230 Class B Units from the Company and (ii) concurrently therewith,
Xxxxxx will convert 230 of its Class A Units into 230 non-voting Preferred Units
of the Company (the "Preferred Units"), having the rights and preferences set
forth in this ARTICLE XVI (the "Unit Exchange Transaction").
(b) After giving effect to (i) the exercise by LAGS of the LAGS Option
and (ii) the Unit Exchange Transaction, there will be outstanding 490 Class B
Units and 510 Class A Units, constituting 49% and 51%, respectively, of the
aggregate number of Class A Units and Class B Units then outstanding.
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16.2 No Voting Rights; Governance.
(a) Notwithstanding any provision to the contrary which may be
contained herein, the holders of Preferred Units will have no voting rights.
(b) Notwithstanding any provision to the contrary which may be
contained herein, the holders of Preferred Units, in such capacity, will not be
entitled to (i) attend any Annual Meetings of Members, (ii) call or attend any
Special Meetings of Members, (iii) vote at any Annual or Special Meetings of
Members, (iv) select or participate in the selection of Class A Representatives
or Class B Representatives, (v) consent in writing to action without a meeting,
or (vi) have any representation on the Member Board.
(c) All votes by holders of Class A Units and Class B Units shall be
held on the same basis as would have been the case had no Preferred Units been
issued by the Company.
16.3 Distributions on Preferred Units.
(a) The holders of record of Preferred Units shall be entitled to
receive distributions in cash at the "Distribution Rate" (as determined in
Paragraph 16.3(b)), multiplied by the Liquidation Value (as defined in Paragraph
16.4) of a Preferred Unit, which shall be payable quarterly on the last day of
March, June, September and December of each year (each such date being referred
to as a "Distribution Date") commencing on December 31, 1998. Distributions on
the Preferred Units shall be cumulative. The amount of distributions accrued on
a Preferred Unit at any Distribution Date shall be the amount of unpaid
distributions accumulated thereon to and including the Distribution Date, and
the amount of any unpaid distributions at any date other than a Distribution
Date shall be calculated as the amount of any unpaid distribution accumulated to
and including the last preceding Distribution Date, plus an amount calculated at
the Distribution Rate for the period after such last preceding Distribution Date
to and including the date or dates as of which the calculation is made. Except
as set forth in this Paragraph 16.3(a), no other distributions (other than in
the event of liquidation, dissolution or winding up of the Company) shall be
made in respect of the Preferred Units.
(b) From the date of issuance of the Preferred Units to and including
September 30, 2001, the Distribution Rate shall be a percentage equal to 25
basis points below the 00-xxxxx Xxxxxx Xxxxxx treasury note yield as shown in
The Wall Street Journal on the second business day preceding such date of
issuance. Effective October 1, 2001, the Distribution Rate shall be a percentage
equal to the highest safe harbor rate provided for in Regulations Section
1.707-4.
(c) Notwithstanding any provision to the contrary which may be
contained herein (including without limitation the provisions of ARTICLE IV
captioned "DISTRIBUTIONS"), no distributions, whether in cash, property,
securities or other
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property or assets, or any combination thereof, shall be made in respect of any
Class A Units or Class B Units unless and until all required distributions have
been made to the holders of Preferred Units.
16.4 Liquidation Rights.
(a) Notwithstanding any provision to the contrary which may be
contained herein, in the event of any liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Class A Units or Class B Units in
respect of distribution of assets, the holders of Preferred Units shall be
entitled to receive from the Company an amount in cash equal to $128,811 per
Preferred Unit (the "Liquidation Value"), plus all accrued distributions
(determined pursuant to Paragraph 16.3) to the date or dates of payment.
(b) If, upon any liquidation, dissolution or winding up of the Company,
the assets of the Company, or the proceeds thereof, distributable to the holders
of Preferred Units shall be insufficient to pay in full the Liquidation Value of
all Preferred Units, then such assets, or the proceeds thereof, shall be
distributable among such holders of Preferred Units ratably in accordance with
the respective amounts which would be payable on such Preferred Units if all
amounts payable thereon were payable in full.
16.5 Conversion.
(a) The Preferred Units shall not be convertible on or before September
30, 2001.
(b) From and after October 1, 2001, the Preferred Units shall be
convertible at the option of the holder, in whole or in part, at any time and
from time to time, into an equivalent number of Class A Units; provided,
however, that in case the Company shall call the Preferred Units for redemption,
in whole and not in part, in accordance with Paragraph 16.6, such right of
conversion shall permanently cease and terminate upon such call for redemption
unless the consideration payable upon redemption shall have been determined in
accordance with Paragraph 16.6(d) and 16.6(e) and the Company shall default in
the payment of the Redemption Price (as defined in Paragraph 16.6(c)). A holder
of Preferred Units shall notify the Company in writing of its intention to
convert Preferred Units into Class A Units as provided in the preceding
sentence, and such notice shall specify the date on which conversion shall take
place, which date shall be not less than ten days nor more than thirty days
after the date on which such notice is received by the Company. At the time of
such conversion, the Company shall pay to the holders of the Preferred Units
being converted all accrued distributions (determined pursuant to Paragraph
16.3) to and including the date or dates of conversion.
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16.6 Redemption.
(a) The Preferred Units shall not be redeemable by the Company at any
time on or before July 31, 2001.
(b) From and after August 1, 2001, the Preferred Units may be redeemed,
in whole and not in part, at the option of the Company, by resolution of the
Member Board. Notwithstanding any provision to the contrary which may be
contained herein, if at such time any holder of Class A Units also is a holder
of Preferred Units, then the Class A Representatives shall not be entitled to
vote with respect to the Member Board's determination regarding redemption of
the Preferred Units and, in such case, the redemption of the Preferred Units
shall require the affirmative vote of all Class B Representatives; provided,
however, if, in accordance with ARTICLE V captioned "BOARD OF MEMBER
REPRESENTATIVES" it shall be necessary that the Class A Representatives appear
at a meeting of the Member Board in order for a quorum to be present and vote
with respect to the issue of redemption of the Preferred Units in order that
there be valid action by the Member Board, the Class A Representatives shall be
required to vote with respect to the issue of redemption of the Preferred Units
in the same manner as the votes of the Class B Representatives.
(c) The redemption price shall be equal to the Liquidation Value of the
Preferred Units (the "Redemption Price"). At the time of redemption of the
Preferred Units, the Company shall pay to the holders of the Preferred Units all
accrued distributions (determined pursuant to Paragraph 16.3) to and including
the date of redemption.
(d) If the Preferred Units are called for redemption, the holders of
the Preferred Units may, at their sole option, require that the Redemption Price
be paid entirely in (i) cash, (ii) other assets or property of the Company
having a fair market value equal to the Redemption Price ("Non-Cash
Consideration") or (iii) any combination of the foregoing. If the holders of the
Preferred Units elect to receive all or any portion of the Redemption Price in
the form of Non-Cash Consideration, then the property or assets of the Company
constituting the Non-Cash Consideration shall be determined by the mutual
agreement of the holders of the Preferred Units and the Company. Such
determination on behalf of the Company shall be made by the Member Board, and
such determination by the Member Board shall require at least four affirmative
votes of the Representatives.
(e) If the Company exercises its right of redemption under this
Paragraph 16.6, it shall so notify the holders of Preferred Units in writing at
their addresses as set forth on the books and records of the Company. Within 30
days of receipt of such notice, each holder of Preferred Units shall notify the
Company in writing of its election, in accordance with Paragraph 16.6(d), to
have the Redemption Price paid in cash or in Non-Cash Consideration or a
combination of both. If a holder elects to receive any Non-Cash Consideration,
the holder and the Company shall use all reasonable efforts
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to agree on the form of the Non-Cash Consideration within 30 days after the
Company receives written notice of the holder's election to receive Non-Cash
Consideration (the "30-Day Period"). If all or any portion of the Redemption
Price consists of Non-Cash Consideration, the redemption of Preferred Units
shall take place at the principal office of the Company not less than 10 nor
more than 20 days following the determination of the Non-Cash Consideration as
provided in this Paragraph 16.6(e) or as provided in Paragraph 16.6(f). In the
event that the holders of the Preferred Units elect to receive the Redemption
Price entirely in cash, the redemption of the Preferred Units shall take place
at the principal office of the Company not less than 10 nor more than 20 days
following such election.
(f) Notwithstanding any provision to the contrary which may be
contained in Paragraph 16.6(d) or 16.6(e), if, upon expiration of the 30-Day
Period referred to in Paragraph 16.6(e), the holder of the Preferred Units and
the Company have been unable to agree on the form of the Non-Cash Consideration,
then the following provisions shall apply: (i) the conversion rights referred to
in Paragraph 16.5(b) shall at no time thereafter be applicable; (ii) the holder
of Preferred Units may at any time thereafter, by written notice to the Company,
elect that the Redemption Price be paid entirely in cash, in which case the
redemption of the Preferred Units shall take place at the principal office of
the Company not less than 10 nor more than 20 days following such election; and
(iii) until such time as the holder of Preferred Units may elect to receive the
Redemption Price entirely in cash, the holder and the Company shall continue to
use reasonable good faith efforts to agree on the form of the Non-Cash
Consideration.
16.7 Transferability. All provisions and restrictions set forth in
ARTICLE VIII with respect to the restrictions on transfers of Units shall be
applicable to the Preferred Units, with the same force and effect as if the
Preferred Units were included within the meaning of the term "Units" for
purposes of ARTICLE VIII.
16.8 Membership. Notwithstanding any provision to the contrary which
may be contained herein (including without limitation the provisions of
Paragraph 11.1 hereof), the holder or holders of Preferred Units shall be
Members, subject to the restrictions and limitations set forth in this ARTICLE
XVI.
4. Governing Law. This Amendment will be governed by, and be construed
under, the laws of the State of Delaware in the United States of America
relating to contracts made and to be performed in that state.
5. Counterparts. This Amendment may be executed in counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same agreement.
6. Full Force and Effect. The LLC Agreement, as previously amended and
as amended by this Amendment, shall remain in full force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment on the
date first written above.
XXXXXX GENERAL CORPORATION
By: ______________________________
Title: President
LAGS (USA) INC.
By: _______________________________
Title:
XXXXXX GENERAL LLC
By: _______________________________
Title:
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