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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9)*
Continental Airlines, Inc.
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
210795209
(CUSIP Number)
James J. O'Brien
201 Main Street, Suite 2420
Fort Worth, Texas 76102
(817) 871-4000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 20, 1998
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
**The total number of Class A shares reported herein is 853,644, which
constitutes approximately 7.5% of the total number of Class A shares
outstanding. All ownership percentages set forth herein assume that there are
11,406,732 shares outstanding.
1. Name of Reporting Person:
1998 CAI Partners, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e): / /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 624,134 (1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each 9. Sole Dispositive Power: 624,134 (1)
Reporting
Person With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
624,134
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 5.5%
14. Type of Reporting Person: PN
- ------------
(1) Power is exercised through its general partner, 1992 Air GP.
1. Name of Reporting Person:
1992 Air GP
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e): / /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 624,134 (1)(2)
Number of 8. Shared Voting Power: -0-
Shares
Beneficially
Owned By
Each 9. Sole Dispositive Power: 624,134 (1)(2)
Reporting
Person With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
624,134 (2)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 5.5%
14. Type of Reporting Person: PN
- -------------
(1) Power is exercised through its majority general partner, 1992 Air,
Inc.
(2) Solely in its capacity as the general partner of 1998 CAI Partners,
L.P.
1. Name of Reporting Person:
1992 Air, Inc.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e): / /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 837,244 (1)(2)
Number of 8. Shared Voting Power: -0-
Shares
Beneficially
Owned By
Each 9. Sole Dispositive Power: 837,244 (1)(2)
Reporting
Person With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
837,244 (2)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 7.3%
14. Type of Reporting Person: CO
- ------------
(1) Power is exercised through its controlling shareholder, David
Bonderman.
(2) Solely in its capacity as the majority general partner of 1992 Air
GP with respect to 624,134 shares.
1. Name of Reporting Person:
David Bonderman
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e): / /
6. Citizenship or Place of Organization: David Bonderman is a citizen
of the United States of America.
7. Sole Voting Power: 853,644 (1)
Number of 8. Shared Voting Power: -0-
Shares
Beneficially
Owned By
Each 9. Sole Dispositive Power: 853,644 (1)
Reporting
Person With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
853,644 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 7.5%
14. Type of Reporting Person: IN
- ------------
(1) Solely in his capacity as general partner of the Bonderman Family
Limited Partnership with respect to 16,400 shares and in his
capacity as controlling shareholder of 1992 Air, Inc. with respect
to 837,244 shares.
1. Name of Reporting Person:
Bonderman Family Limited Partnership
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds: WC
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e): / /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 16,400 (1)
Number of 8. Shared Voting Power: -0-
Shares
Beneficially
Owned By
Each 9. Sole Dispositive Power: 16,400 (1)
Reporting
Person With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
33,504 (2)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.3%
14. Type of Reporting Person: PN
- ------------
(1) Power is exercised through its general partner, David Bonderman.
(2) Bonderman Family Limited Partnership also holds a limited
partnership interest in 1998 CAI Partners, L.P. On the basis of
certain provisions of the Partnership Agreement, Bonderman Family
Limited Partnership may be deemed to beneficially own the 17,104
shares of Class A Common Stock beneficially owned by 1998 CAI
Partners, L.P. that are attributable to such limited partnership
interest.
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the
"Act"), the undersigned hereby amend their Schedule 13D Statement dated August
8, 1995, as amended by Amendment No. 1 dated August 11, 1995, Amendment No. 2
dated April 3, 1996, Amendment No. 3 dated April 26, 1996, Amendment No. 4
dated May 13, 1996, Amendment No. 5 dated December 6, 1996, Amendment No. 6
dated June 6, 1997, Amendment No. 7 dated January 30, 1998 and Amendment No.
8 dated April 28, 1998 (the "Schedule 13D"), relating to the shares of Class
A Common Stock, par value $.01 per share ("Class A Stock"), of Continental
Airlines, Inc. (the "Issuer"). Unless otherwise indicated, all defined terms
used herein shall have the same meanings respectively ascribed to them in the
Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND.
(a) Item 2 hereby is partially amended by adding at the end thereof
the following:
1998 CAI Partners, L.P. ("CAI Partners") hereby joins this filing
because it beneficially owns more than 5% of the outstanding shares of the
Class A Stock and because it may be deemed to constitute a "group" with
certain other of the Reporting Persons within the meaning of Section 13 (d)(3)
of the Act, although neither the fact of this filing nor anything contained
herein shall be deemed to be an admission by CAI Partners or the other
Reporting Persons that a group exists. As used herein, the term "Reporting
Persons" shall also include reference to CAI Partners.
Air Partners, AIR II, Bondo Air and Brener shall no longer be
Reporting Persons for purposes of this and all future filings on Schedule 13D.
(b)-(c) of Item 2 hereby are partially amended by adding at the end
thereof the following:
CAI PARTNERS
CAI Partners is a Texas limited partnership, the principal business
of which is the holding of shares of the Class A Stock. The principal
business address of CAI Partners, which also serves as its principal office,
is 201 Main Street, Suite 2420, Fort Worth, Texas, 76102. The general partner
of CAI Partners is 1992 Air GP. Information required pursuant to Instruction
C to Schedule 13D of the Act with respect to 1992 Air GP has previously been
provided in Item 2 of the Schedule 13D.
(d)-(f)
No material change.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is partially amended by adding at the end thereof the
following:
As more fully set forth in Item 5(c) and Item 6 herein, the closing
of the transactions contemplated under the Investment Agreement occurred on
November 20, 1998.
Except as disclosed in the Schedule 13D (including the original
Schedule 13D filing, as amended), the Reporting Persons have no present plans
or proposals that relate to or that would result in any of the actions
specified in clauses (a)-(j) of Item 4 of Schedule 13D of the Act.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
Paragraphs (a)-(c) of Item 5 are hereby amended and restated in their
entireties as follows:
(a)
CAI PARTNERS
The aggregate number of shares of the Class A Stock that Air Partners
owns beneficially, pursuant to Rule 13d-3 under the Act, is 624,134, which
constitutes approximately 5.5% of the outstanding shares of such stock.
1992 AIR GP
Because of its position as the general partner of CAI Partners, 1992
Air GP may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial
owner of 624,134 shares of the Class A Stock, which constitutes approximately
5.5% of the outstanding shares of such stock.
AIR, INC.
Because of its position as the majority general partner of 1992 Air
GP, and because of its direct ownership of 213,110 shares of the Class A
Stock, Air, Inc. may, pursuant to Rule 13d-3 of the Act, be deemed to be the
beneficial owner of an aggregate of 837,244 shares of the Class A Stock, which
constitutes approximately 7.3% of the outstanding shares of such stock.
BONDERMAN
Because of his position as the controlling shareholder of Air, Inc.,
and as the general partner of Bonderman Family, Bonderman may, pursuant to
Rule 13d-3 of the Act, be deemed to be the beneficial owner of 853,644 shares
of the Class A Stock, which constitutes approximately 7.5% of the outstanding
shares of such stock.
BONDERMAN FAMILY
The aggregate number of shares of the Class A Stock that Bonderman
Family owns, or may be deemed to own, beneficially, pursuant to Rule 13d-3
under the Act, is 33,504, 16,400 shares of which Bonderman Family owns
directly and 17,104 shares of which Bonderman Family may be deemed to own
beneficially because of its position as a limited partner of CAI Partners, and
on the basis of certain provisions of the Limited Partnership Agreement of CAI
Partners. In the aggregate, such shares of Class A Stock constitute
approximately 0.3% of the outstanding shares of such stock.
To the best knowledge of each of the Reporting Persons, other than
as set forth above, none of the persons named in response to Item 2(a) herein
is the beneficial owner of any shares of the Class A Stock.
(b)
CAI PARTNERS
Acting through its general partner, CAI Partners has the sole power
to vote or to direct the vote and to dispose or to direct the disposition of
624,134 shares of the Class A Stock.
1992 AIR GP
In its capacity as the general partner of CAI Partners, and acting
through its majority general partner, 1992 Air GP has the sole power to vote
or to direct the vote and to dispose or to direct the disposition of 624,134
shares of the Class A Stock.
AIR, INC.
In its capacity as the majority general partner of 1992 Air GP, and
acting through its controlling shareholder, Air, Inc. has the sole power to
vote or to direct the vote and to dispose or to direct the disposition of
624,134 shares of the Class A Stock held by CAI Partners. Air, Inc. also has
the sole power to vote or to direct the vote and to dispose or to direct the
disposition of 213,110 shares of the Class A Stock it holds directly.
BONDERMAN
In his capacity as the controlling shareholder of Air, Inc.,
Bonderman has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of an aggregate of 837,244 shares of the Class A
Stock. In his capacity as sole general partner of Bonderman Family, Bonderman
has the sole power to vote or to direct the vote and to dispose or to direct
the disposition of an additional 16,400 shares of the Class A Stock.
BONDERMAN FAMILY
Acting through its sole general partner, Bonderman Family has the
sole power to vote or to direct the vote and to dispose or to direct the
disposition of 16,400 shares of the Class A Stock.
(c)
The closing of the transactions contemplated under the Investment
Agreement occurred in November 20, 1998. Prior to the closing, the parties to
the Investment Agreement entered into Amendment No. 2 to the Investment
Agreement (the "Amendment") pursuant to which the partners in Air Partners who
had elected to receive shares of Northwest Airlines Corporation ("Northwest")
common stock (the "Share Electing Partners"), other than 1992 Air GP, were
permitted to retain both the shares of the Class A Stock directly owned by
them and one-fourth of the shares attributable to their respective interests
in Air Partners, while receiving 75% of the number of shares of Northwest
Common Stock they would otherwise have received under the Investment
Agreement, with 1992 Air GP receiving both Northwest common stock and cash,
and all other partners in Air Partners receiving cash.
Pursuant to the Fourth Amendment to the Partnership Agreement of Air
Partners dated as of November 19, 1998, the Share Electing Partners were
allowed to receive a distribution from Air Partners of the shares of Class A
Stock held by Air Partners that they were permitted to retain under the
Amendment. Each Share Electing Partner directed that those shares be
transferred directly to CAI Partners as a contribution of capital, and such
transfers, involving an aggregate of 624,134 shares of the Class A Stock, were
effected on November 20, 1998.
Except as set forth in this paragraph (c), to the best of the
knowledge of each of the Reporting Persons, none of the persons named in
response to paragraph (a) has effected any transactions in the shares of the
Class A Stock during the past sixty days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended by adding the following at the end thereof:
The Amendment
On November 20, 1998, the parties to the Investment Agreement entered
into the Amendment, the purpose of which was to permit Air Partners to
transfer 624,134 shares of the Class A Stock to CAI Partners prior to the
acquisition of Air Partners by Northwest and to permit 1992 Air, Inc. and
Bonderman Family to retain the shares of the Class A Stock that they held
outside of Air Partners and to impose certain restrictions on the voting and
disposition of the shares of the Class A Stock retained by CAI Partners, Air,
Inc. and Bonderman Family (the "Retained Shares").
Pursuant to the Amendment, CAI Partners, the partners of CAI
Partners, Air, Inc. and Bonderman Family (the "CAI Partners") agreed not to
sell, encumber or otherwise dispose of any or all of the Retained Shares
unless prior to such transfer such shares are converted into shares of the
Class B Common Stock of the Issuer (the "Class B Stock"), except that such
conversion shall not be required if Northwest, Northwest Airlines Holdings
Corporation and Air Partners (collectively, the "Northwest Entities") shall
have disposed of shares of the Issuer's common stock or converted shares of
the Class A Stock into shares of the Class B Stock such that the Northwest
Entities beneficially owned shares of the Issuer's common stock representing,
in the aggregate, less than 20% of the Total Voting Power of the Issuer (as
that term is defined in the Governance Agreement among Northwest, Northwest
Airlines Holdings Corporation and the Issuer effective as of January 25, 1998,
as amended) (the "Threshold"). If the Northwest Entities are required
pursuant to a Government Order (as defined in the Amendment) to dispose of
shares of the Issuer's common stock so that they beneficially own shares of
the Issuer's common stock representing less than 20% of the Total Voting Power
and, in order to do so, elect to convert all of the shares of the Class A
Stock beneficially owned by them into shares of the Class B Stock, then the
Threshold shall be reduced to 7.5%.
In addition, the CAI Parties have, pursuant to the Amendment, agreed
(i) not to grant any proxies or powers of attorney (other than to Northwest or
Holdings or as otherwise provided by the Amendment), enter into any voting
trust or other voting arrangement with respect to the Retained Shares, (ii)
until the Governance Agreement is not in effect and the Supplemental Period,
as defined therein, has terminated, to vote or caused to be voted the Retained
Shares as directed by Northwest in connection with any fundamental corporate
transaction or certain issuances of the Issuer's common stock or any material
amendment to the Issuer's Amended and Restated Certificate of Incorporation or
Bylaws and to vote or cause the Retained Shares to be voted as recommended by
the Board of Directors of the Issuer in any election of directors of the
Issuer in which any person other than the Issuer is soliciting proxies, (iii)
to grant to John H. Dasberg, Mickey A. Foret and Douglas M. Steenland an
irrevocable proxy to vote the Retained Shares in a manner consistent with the
Investment Agreement, and (iv) not to convert any shares of the Class A Stock
into shares of the Class B Stock other than immediately prior to the transfer
of such shares to a third party in accordance with the restrictions provided
in the Investment Agreement.
The foregoing description of the Amendment is qualified in its
entirety by reference to the Amendment, a copy of which is filed herewith as
Exhibit 4.14.
Limited Partnership Agreement of CAI Partners
The Limited Partnership Agreement of CAI Partners was entered into
on November 18, 1998. Pursuant to Sections 4.05(b) and (c), any limited
partner in CAI Partners may demand to receive, at any time, a distribution of
shares of the Class A Stock from CAI Partners in either complete or partial
redemption of such partner's interest in CAI Partners, or may request that the
general partner sell the shares of the Class A Stock allocated to such partner
and distribute the net proceeds of such sale to the partner. This description
of the Limited Partnership Agreement of CAI Partners is qualified in its
entirety by reference to the agreement which is filed herewith as Exhibit
99.4.
Except as disclosed in this Schedule 13D (including the original
Schedule 13D filing, as amended), the Reporting Persons know of no contracts,
arrangements, understandings or relationships between or among themselves, or
between the Reporting Persons and any other person, with respect to any
securities of the Issuer.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit 4.14 Amendment No. 1 to the Investment Agreement dated as of January
25, 1998 by and among Northwest Airlines Corporation, Newbridge
Parent Corporation, Air Partners, L.P., Bonderman Family Limited
Partnership, 1992 Air, Inc., Air Saipan, Inc., and the other
parties identified on the signature pages thereof, filed
herewith.
Exhibit 4.15 Amendment No. 2 to the Investment Agreement dated as of November
20, 1998 by and among Northwest Airlines Corporation, Newbridge
Parent Corporation, Air Partners, L.P., Bonderman Family Limited
Partnership, 1992, Air, Inc., Air Saipan, Inc., and the other
parties identified on the signature pages thereof, filed
herewith.
Exhibit 99.1 Agreement pursuant to Rule 13d-1(l)(iii), filed herewith.
Exhibit 99.4 Limited Partnership Agreement of 1998 CAI Partners, L.P. dated
as of November 18, 1998, filed herewith.
Exhibit 99.5 Fourth Amendment to the Amended and Restated Limited Partnership
Agreement of Air Partners, L.P. dated as of November 19, 1998,
filed herewith.
After reasonable inquiry and to the best of our knowledge and belief,
we certify that the information set forth in this statement is true, complete
and correct.
Dated: November 25, 1998
1998 CAI PARTNERS, L.P.
By: 1992 AIR GP,
General Partner
By: 1992 AIR, INC.,
General Partner
By:/s/James J. O'Brien
James J. O'Brien,
Vice President
1992 AIR GP
By: 1992 AIR, INC.,
General Partner
By:/s/James J. O'Brien
James J. O'Brien,
Vice President
1992 AIR, INC.
By:/s/James J. O'Brien
James J. O'Brien,
Vice President
/s/James J. O'Brien
James J. O'Brien,
Attorney-in-Fact for:
DAVID BONDERMAN (1)
BONDERMAN FAMILY LIMITED PARTNERSHIP
By: David Bonderman, general partner
By:/s/James J. O'Brien,
Attorney-in-Fact for DAVID BONDERMAN(1)
(1) A Power of Attorney authorizing James J. O'Brien to act on behalf of
David Bonderman was previously filed with the Commission.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Subscription and Stockholders' Agreement, dated as of April
27, 1993, among Air Partners, Air Canada and the Issuer,
previously filed.
4.2 Warrant Agreement, dated as of April 27, 1993, by and
between the Issuer and the Warrant Agent as defined therein,
previously filed.
4.3 Registration Rights Agreement dated as of April 27, 1993, among
Air Partners, Air Canada and the Issuer, previously filed.
4.4 Form of Lock Up Agreement between Air Partners and Goldman
Sachs International, previously filed.
4.5 Form of Lock Up Agreement between each Partner of Air
Partners and the Issuer, previously filed.
4.6 Form of Assignment of Registration Rights by Air Partners in
favor of each Partner of Air Partners, previously filed.
4.7 Amendment to Subscription and Stockholders' Agreement, dated
as of April 19, 1996, among Air Partners, Air Canada and the
Issuer, previously filed.
4.8 Amended and Restated Registration Rights Agreement, dated as
of April 19, 1996 among the Issuer, Air Partners, and Air
Canada, previously filed.
4.9 Warrant Purchase Agreement, dated as of May 2, 1996, by and
between the Issuer and Air Partners, previously filed.
4.10 Warrant Purchase Agreement, dated as of May 27, 1997, by and
between the Issuer and Air Partners, previously filed.
4.11 Investment Agreement dated as of January 25, 1998, among
Northwest Airlines Corporation, Newbridge Parent Corporation,
Air Partners and the other parties named therein, previously
filed.
4.12 Promissory Note dated as of April 24, 1998 executed by Air
Partners, L.P. and payable to Northwest Airlines Corporation,
previously filed.
4.13 Pledge Agreement dated as of April 24, 1998 between Air
Partners, L.P. and Northwest Airlines Corporation, previously
filed.
4.14 Amendment No. 1 to the Investment Agreement dated as of January
25, 1998 by and among Northwest Airlines Corporation, Newbridge
Parent Corporation, Air Partners, L.P., Bonderman Family Limited
Partnership, 1992 Air, Inc., Air Saipan, Inc., and the other
parties identified on the signature pages thereof, filed
herewith.
4.15 Amendment No. 2 to the Investment Agreement dated as of November
20, 1998 by and among Northwest Airlines Corporation, Newbridge
Parent Corporation, Air Partners, L.P., Bonderman Family Limited
Partnership, 1992, Air, Inc., Air Saipan, Inc., and the other
parties identified on the signature pages thereof, filed
herewith.
24.1 Power of Attorney dated August 7, 1995, by Alfredo Brener,
previously filed.
99.1 Agreement pursuant to Rule 13d-1(f)(1)(iii), filed herewith.
99.2 Amended and Restated Limited Partnership Agreement of Air
Partners, L. P., together with the first amendment thereto,
previously filed.
99.3 Second and Third Amendments to the Amended and Restated Limited
Partnership Agreement of Air Partners, L.P., previously filed.
99.4 Limited Partnership Agreement of 1998 CAI Partners, L.P. dated
as of November 18, 1998, filed herewith.
99.5 Fourth Amendment to the Amended and Restated Limited Partnership
Agreement of Air Partners, L.P. dated as of November 19, 1998,
filed herewith.
EXHIBIT 99.1
Pursuant to Rule 13d-1(k)(1)(iii) of Regulation 13D-G of the General
Rules and Regulations of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, the undersigned agree that the
statement to which this Exhibit is attached is filed on behalf of them in the
capacities set forth hereinbelow.
1998 CAI PARTNERS, L.P.
By: 1992 AIR GP,
General Partner
By: 1992 AIR, INC.,
General Partner
By:/s/James J. O'Brien
James J. O'Brien,
Vice President
1992 AIR GP
By: 1992 AIR, INC.,
General Partner
By:/s/James J. O'Brien
James J. O'Brien,
Vice President
1992 AIR, INC.
By:/s/James J. O'Brien
James J. O'Brien,
Vice President
/s/James J. O'Brien
James J. O'Brien,
Attorney-in-Fact for:
DAVID BONDERMAN (1)
BONDERMAN FAMILY LIMITED PARTNERSHIP
By: David Bonderman, general partner
By:/s/James J. O'Brien,
Attorney-in-Fact for DAVID BONDERMAN(1)
(1) A Power of Attorney authorizing James J. O'Brien to act on behalf of
David Bonderman was previously filed with the Commission.
Exhibit 99.4
LIMITED PARTNERSHIP AGREEMENT
OF
1998 CAI PARTNERS, L.P.
This Limited Partnership Agreement ("Agreement") of 1998 CAI Partners,
L.P. is made and entered into effective as of the 18th day of November, 1998
(the "Effective Date"), by and among 1992 Air GP, a Texas general partnership
("1992 Air"), as the general partner and David Bonderman ("Bonderman"),
Bonderman Family Limited Partnership, a Texas limited partnership ("BFLP"),
Eli Broad ("Broad"), Lectair Partners Limited Partnership, ("Lectair"), and
Donald Sturm ("Sturm") as the limited partners.
WITNESSETH:
For and in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the adequacy, receipt, and
sufficiency of which are hereby acknowledged, 1992 Air, Bonderman, BFLP,
Broad, Lectair, and Sturm (collectively, the "Partners" and individually, a
"Partner") hereby agree as follows:
ARTICLE I
ORGANIZATION AND PURPOSE
Section 1.01. Formation of Limited Partnership. The Partners hereby
agree to become partners and to form a limited partnership (the "Partnership")
pursuant to Article 6132a-1 Tex. Rev. Civ. Stat. Ann., known as the Texas
Revised Limited Partnership Act (the "Act"). 1992 Air shall be the general
partner and is hereinafter sometimes referred to as the "General Partner".
Bonderman, BFLP, Broad, Lectair, and Sturm shall be the limited partners and
are hereinafter sometimes referred to individually as a "Limited Partner" or
collectively as the "Limited Partners".
Section 1.02. Name. The name of the Partnership shall be 1998 CAI
Partners, L.P. All business and affairs of the Partnership shall be conducted
solely under, and all Partnership Assets (as that term is defined in Section
1.04) shall be held solely in, such name unless otherwise determined by the
General Partner.
Section 1.03. Effective Date and Term. The Partnership shall be in
effect for a term beginning on the Effective Date and shall continue under
this Agreement (as amended from time to time) until dissolved upon the
occurrence of an event that causes the dissolution of the Partnership in
accordance with the provisions of this Agreement, and thereafter to the extent
provided by applicable law, until wound up and terminated as provided herein.
Section 1.04. Purposes and Scope of Business. The business and
purposes of the Partnership are to receive the right to be distributed certain
shares of Class A Common Stock of Continental Airlines, Inc. (the "Shares"),
which rights have been contributed to the capital of the Partnership by the
Partners pursuant to Section 3.01(a) of this Agreement, and upon the
distribution thereof, to hold and otherwise deal with the Shares. Subject to
the terms and conditions of this Agreement, the Partnership shall have the
power and authority to do all such other acts and things as may be necessary,
desirable, expedient, convenient for, or incidental to, the furtherance and
accomplishment of the foregoing objectives and purposes and for the protection
and benefit of the Partnership. The assets of the Partnership, including the
Shares, whether now or hereafter owned, are hereinafter sometimes referred to
as the "Partnership Assets".
Section 1.05. Documents. The General Partner, or anyone designated by
the General Partner, is hereby authorized to execute a certificate of limited
partnership of the Partnership ("Certificate of Limited Partnership") in
accordance with the Act and cause the same to be filed in the office of the
Secretary of State of the State of Texas in accordance with the provisions of
the Act.
Section 1.06. Principal Place of Business. The principal place of
business of the Partnership shall be 201 Main Street, Suite 2420, Fort Worth,
Texas 76102 or at such other place or places as may be determined by the
General Partner. The General Partner shall be responsible for maintaining at
the Partnership's principal place of business those records required by the
Act to be maintained there.
Section 1.07. Registered Agent and Office. The Registered Agent (as
defined in the Act) for the Partnership shall be James J. O'Brien. The
Registered Office (as defined in the Act) of the Partnership shall be 201 Main
Street, Suite 2420, Fort Worth, Texas 76102.
Section 1.08. Investment Agreement. The Partners acknowledge that the
Shares are subject to that certain Investment Agreement, dated as of January
25, 1998, as amended by Amendment No. 1, dated as of February 27, 1998, and
Amendment No. 2, dated as of November 19, 1998, among Northwest Airlines
Corporation, Newbridge Parent Corporation, Air Partners, L.P. ("Air
Partners"), the partners of Air Partners identified on the signature pages
thereof, the Partnership, BFLP, 1992 Air, Inc., and Air Saipan, Inc.
ARTICLE II
OPERATIONS
Section 2.01. Management of Partnership.
(a) The right to manage, control, and conduct the business and affairs
of the Partnership shall be vested solely in the General Partner. Except as
provided in Sections 2.01(b), the Limited Partners shall not take part in the
management of the affairs of the Partnership and under no circumstances may
any Limited Partner control the Partnership business or sign for or bind the
Partnership. The General Partner shall not be required to devote its full
time and attention to the business of the Partnership, but only such time as
it deems necessary for the proper conduct of the Partnership's affairs.
(b) No act shall be taken, sum expended, or obligation incurred by the
General Partner for or on behalf of the Partnership with respect to a matter
within the scope of any of the following major decisions ("Major Decisions")
affecting, directly or indirectly, the Partnership or the Partnership Assets,
unless approved as described in subsection 2.01(c):
(i) Financing or refinancing of the Partnership or the
Partnership Assets;
(ii) Except as provided for in Sections 4.05(b) and (c), disposing
of any of the Partnership Assets;
(iii) Making an assignment for the benefit of creditors;
(iv) Filing a petition under any bankruptcy or other similar law;
or
(v) Amending this Agreement.
(c) No Major Decision may be made or effected by or on behalf of the
Partnership without the unanimous approval of the Partners. As used in this
Agreement, "Approved by the Partners", "Approval of the Partners", and other
like terms shall mean the unanimous approval of the Partners. Any Partner may
at any time propose a Major Decision to the other Partners by giving written
notice to the other Partners. Within ten (10) days after receipt of such
notice, each Partner shall indicate, in writing, to the requesting Partner,
his or its approval or disapproval of such Major Decision; provided that, in
the event any Partner does not respond in such 10 day period, such Partner
shall be deemed to have disapproved such Major Decision. Upon the Approval of
the Partners of a Major Decision, the General Partner shall have full
authority to carry out such Major Decision.
Section 2.02. Affiliates. The General Partner shall have the right to
cause the Partnership to enter into contracts or otherwise deal with any
affiliates of any Partner in any capacity, except that the terms of any such
arrangement shall be commercially reasonable and competitive with amounts that
would be paid to third parties on an "arms-length" basis.
Section 2.03. Expenses. The General Partner shall bear all usual and
ordinary expenses incurred in the operation of the Partnership.
Section 2.04. Exculpations; Indemnities.
(a) Neither the Partners, the Tax Matters Partner, their affiliates
nor any of their respective shareholders, officers, directors, partners,
members, managers, employees or agents (individually a "Covered Person") shall
be liable to the Partnership, any Partner, or any other person for any act or
omission taken or suffered by such Covered Person in good faith and in the
belief that such act or omission is in or is not opposed to the best interests
of the Partnership, provided, that such act or omission is not fraud, willful
misconduct, or a knowing material violation of this Agreement by such Covered
Person. No Covered Person shall be liable to the Partnership, any Partner, or
any other person for any action taken by any other Partner, nor shall any
Covered Person be liable to the Partnership, any other Partner, or any other
person for any action of any employee or agent of the Covered Person,
provided, such action is within the scope of the purposes of the Partnership
and the Covered Person seeking exculpation satisfies the parameters of the
preceding sentence.
(b) To the fullest extent allowed or permitted under any provision of
applicable law, including, without limitation, the Act, the Partnership shall
indemnify, defend, and hold harmless each Partner, its affiliates and their
respective shareholders, officers, directors, partners, members, managers,
employees or agents (individually an "Indemnitee") to the extent of the
Partnership Assets, from and against any losses, expenses, judgments, fines,
settlements, and damages incurred by the Partnership or such Indemnitee
arising out of any claim based upon acts (including, without limitation,
negligent acts) performed or omitted to be performed by the Partnership or
such Indemnitee in connection with the business of the Partnership, including,
without limitation, costs, expenses, and attorneys' fees expended in the
settlement or defense of any such claim. All decisions of the Partnership
concerning any action allowed or permitted under applicable law concerning the
indemnity of any person or entity by the Partnership shall be made as
determined by the General Partner.
Section 2.05. Tax Matters Partner. The General Partner shall act as
the "Tax Matters Partner" for federal income tax purposes. The Tax Matters
Partner shall mean the Partner (a) designated as the "tax matters partner"
within the meaning of Section 6231(a)(7) of the Internal Revenue Code of 1986,
as amended from time to time (or any corresponding provisions of succeeding
law, collectively the "Code") and (b) whose responsibilities as Tax Matters
Partner include, where appropriate, commencing on behalf of the Partnership
certain judicial proceedings regarding Partnership federal income tax items
and informing all Partners of any administrative or judicial proceeding
involving federal income taxes. In exercising its responsibilities as Tax
Matters Partner, the General Partner shall have the final decision making
authority with respect to all federal income tax matters involving the
Partnership. Any direct out-of-pocket expense incurred by the Tax Matters
Partner in carrying out its responsibilities and duties under this Agreement
shall be allocated to and charged to the Partnership as an expense of the
Partnership for which the Tax Matters Partner shall be reimbursed.
ARTICLE III
FINANCING
Section 3.01. Capital Contributions.
(a) Each of the Partners agrees to contribute (the "Initial Capital
Contributions") to the capital of the Partnership on the Effective Date the
right to receive, from Air Partners, the number of Shares set forth on such
Partner's signature page attached hereto.
(b) The Partners may, but shall not be obligated to, make additional
capital contributions ("Additional Capital Contributions") pro rata in
accordance with each such Partner's Percentage Interest at such times, in such
manner, and in such amounts as all of the Partners may subsequently agree.
Section 3.02. Capital Accounts. The amount of a Partner's capital
account ("Capital Account") in the Partnership shall be determined by:
(a) crediting to such account (i) all contributions to the Partnership
made by or on behalf of such Partner or his or its predecessor in interest,
including the fair market value of any property contributed (less any
liabilities assumed by the Partnership or to which any property may be
subject) and (ii) all gains and income of the Partnership allocated to such
Partner or his or its predecessor in interest; and
(b) debiting to such account (i) all withdrawals, including property
distributed, from the Partnership made by or on behalf of such Partner or his
or its predecessor in interest (less any liabilities assumed by the Partner or
to which any property may be subject) at the value of such property on the
books of the Partnership and (ii) all losses and deductions of the Partnership
allocated to such Partner or his or its predecessor in interest.
Section 3.03. Limited Liability of Limited Partners. Notwithstanding
anything contained in this Agreement to the contrary, the liability of each
Limited Partner for any of the debts, losses, or obligations of the
Partnership shall be limited to the amount of the sum of such Limited
Partner's capital contributions pursuant to Section 3.01 hereof. Accordingly,
no Limited Partner shall be obligated to provide additional capital to the
Partnership or its creditors by way of contribution, loan, or otherwise beyond
the amount of the capital contributions required of such Limited Partner
pursuant to Section 3.01 hereof. Except as provided in the Act, no Limited
Partner shall have any personal liability whatsoever, whether to the
Partnership or any third party, for the debts of the Partnership or any of its
losses beyond the amount of the Limited Partner's capital contributions.
Section 3.04. Treatment of Capital Contributions. Except as provided
in this Agreement to the contrary, no Partner shall be entitled to interest on
his or its contributions to the capital of the Partnership nor shall any
Partner be entitled to demand the return of all or any part of such
contributions to the capital of the Partnership.
Section 3.05. Benefits of Agreement. Nothing in this Agreement, and,
without limiting the generality of the foregoing, in this Article III,
expressed or implied, is intended or shall be construed to give to any
creditor of the Partnership or to any creditor of any Partner or any other
person or entity whatsoever, other than the Partners and the Partnership, any
legal or equitable right, remedy, or claim under or in respect of this
Agreement or any covenant, condition, or provision herein contained, and such
provisions are and shall be held to be for the sole and exclusive benefit of
the Partners and the Partnership.
ARTICLE IV
ACCOUNTING, ALLOCATIONS, AND CURRENT DISTRIBUTIONS
Section 4.01. Percentage Interests; Indirect Shares. For all purposes
hereof, each Partner shall initially have the percentage interest in the
Partnership (collectively the "Percentage Interests" and individually a
"Percentage Interest") set forth on such Partner's signature page attached
hereto, and shall be credited with a number of "Indirect Shares" equal to the
number set forth on such Partner's signature page attached hereto. At any
time a Partner receives a distribution of Shares pursuant to Section 4.05
hereof, such Partner's Indirect Shares shall be reduced by the number of
Shares distributed, and the Percentage Interests of each of the Partners shall
be revised to equal, for a particular Partner, the ratio, expressed as a
percentage, of such Partner's Indirect Shares to all Partners' Indirect
Shares.
Section 4.02 Tax Status, Reports, and Allocations.
(a) Notwithstanding any provision contained in this Agreement to the
contrary, solely for federal income tax purposes, each of the Partners hereby
recognizes that the Partnership will be classified as a partnership for
federal income tax purposes and therefore, will be subject to all provisions
of Subchapter K of the Code; provided however, that the filing of United
States Partnership Returns of Income shall not be construed to extend the
purposes of the Partnership or expand the obligations or liabilities of the
Partners.
(b) The General Partner or, at its discretion, an accountant
("Accountant") selected by the General Partner, shall prepare or cause to be
prepared all tax returns and statements, if any, that must be filed on behalf
of the Partnership with any taxing authority and shall timely file such
returns or statements.
(c) Except as provided for in Section 4.05(c) hereof, for accounting
and federal and (if any) state income tax purposes, all income, deductions,
credits, gains, and losses shall be allocated to the Partners pro rata in
accordance with their respective Percentage Interests.
(d) The General Partner shall have full authority to cause the
Partnership to act in compliance with the Code and the regulations thereunder.
All elections, decisions, and other matters concerning the allocation of
profits, gains, and losses among the Partners as well as other accounting
procedures not specifically and expressly provided for by the terms of this
Agreement, shall be determined, in good faith, by the General Partner.
Section 4.03. Accounting.
(a) The fiscal year of the Partnership shall end on the last day of
December of each year.
(b) The books of account of the Partnership shall be kept and
maintained at all times at the principal place of business of the Partnership
or at such other place or places approved by the General Partner. The books
of account shall be maintained according to federal income tax principles
using the method of accounting chosen by the General Partner, and will be
consistently applied, and shall show all items of income and expense.
(c) The General Partner shall cause a balance sheet of the Partnership
dated as of the end of the fiscal year and a related statement of income or
loss for the Partnership for such fiscal year to be prepared by the Accountant
and furnished, at the expense of the Partnership, to each of the Partners on
an annual basis, within ninety (90) days after the close of each fiscal year.
(d) Each Partner shall have the right at all reasonable times during
usual business hours to audit, examine, and make copies of or extracts from
the books of account of the Partnership. Such right may be exercised through
any agent or employee of such Partner designated by him or it or by an
independent certified public accountant designated by such Partner. Each
Partner shall bear all expenses incurred in any examination made on behalf of
such Partner.
Section 4.04. Bank Accounts. Funds of the Partnership shall be
deposited in a Partnership account or accounts in the bank or banks as
selected by the General Partner. Withdrawals from bank accounts shall only be
made by the General Partner or such other parties as may be approved by the
General Partner.
Section 4.05. Current Distributions to Partners.
(a) Except as provided in Section 6.05 in connection with the
termination and liquidation of the Partnership, the General Partner shall
distribute funds at such times and in such amounts as it may determine, in its
sole discretion, except that such funds shall be distributed by the General
Partner to the Partners pro rata in accordance with their respective
Percentage Interests at the time of the distribution. In determining the
amount of funds to distribute pursuant to this Section 4.05, the General
Partner may consider such factors as the need to allocate funds to any
reserves for Partnership contingencies or any other Partnership purposes that
the General Partner deems necessary or appropriate.
(b) Notwithstanding anything to the contrary contained in this
Agreement, any Limited Partner may demand to receive from the General Partner,
at any time, a non-pro rata distribution of Shares from the Partnership, not
to exceed his remaining Indirect Shares, in either complete or partial
redemption of such Partner's interest in the Partnership, by specifying, in a
notice to the General Partner, the number of Shares such Partner desires to
receive from the Partnership.
(c) Notwithstanding anything to the contrary contained in this
Agreement, any Limited Partner may request that the General Partner sell the
Indirect Shares allocated to such Partner, and the Partnership shall sell such
shares, allocate the income resulting therefrom to such Partner, and
distribute the net proceeds of such sale to such Partner.
Section 4.06. Changes in Percentage Interests. If a Partner's
Percentage Interest changes during any fiscal year, the allocations to be made
pursuant to this Agreement shall be made in accordance with Section 706 of the
Code, using any convention permitted by Section 706 of the Code and the
Regulations promulgated thereunder and selected by the General Partner so as
to equitably effectuate the allocations of this Article IV.
ARTICLE V
ASSIGNMENT
Section 5.01. Prohibited Transfers. No Partner may sell, transfer,
assign, mortgage, hypothecate, or otherwise encumber or permit or suffer any
encumbrance of all or any part of his or its interest in the Partnership. Any
attempt so to transfer or encumber any such interest shall be null and void,
ab initio.
ARTICLE VI
WITHDRAWAL, DISSOLUTION, TERMINATION, AND LIQUIDATION
Section 6.01. Withdrawal. Except as provided in Section 4.05(b), no
Limited Partner shall at any time retire or withdraw from the Partnership, and
no General Partner shall at any time retire or withdraw from the Partnership.
Retirement or withdrawal by any Partner in contravention of this Section 6.01
shall subject such Partner to liability for all damages caused any other
Partner (other than a Partner who is, at the time of such withdrawal, in
default under this Agreement) by such retirement or withdrawal and the
consequential dissolution of the Partnership.
Section 6.02. Dissolution of the Partnership. The Partnership shall
be dissolved upon the occurrence of any of the following:
(a) The withdrawal, as defined in the Act, of a General Partner,
unless within ninety (90) days after such event, all of the Limited Partners
agree to appoint in writing a successor General Partner, as of the date of the
withdrawal of the General Partner, and agree to reconstitute the Partnership
and to continue the business of the Partnership, and such successor General
Partner agrees in writing to accept such election;
(b) Upon the election of the General Partner following the
disposition, not including an exchange, of substantially all of the assets of
the Partnership (except under circumstances where all or a portion of the
purchase price is payable after the closing of the sale or other disposition);
(c) December 31, 2010, unless extended by the consent of all Partners;
or
(d) Subject to any obligations of the Partnership, when Approved by
the Partners.
Nothing contained in this Section 6.02 is intended to grant to any Partner the
right to dissolve the Partnership at will (by retirement, resignation,
withdrawal, or otherwise) or to exonerate any Partner from liability to the
Partnership and the remaining Partners if he or it dissolves the Partnership
at will.
Section 6.03. Continuation and Reconstitution of Partnership. If the
Partnership is continued as provided in Section 6.02(a), then, as of the date
of withdrawal, the General Partner with respect to which an event of
withdrawal under Section 6.02 has occurred (or his or its estate or successor
in interest) (the "Withdrawing General Partner") shall have none of the powers
of a General Partner under the Agreement or applicable law and shall have only
the rights and powers of an assignee of a Partner hereunder to share in any
Partnership profits, losses, gains, and distributions in accordance with his
or its Percentage Interest and shall have no other rights or powers of a
Partner hereunder; provided however, that the Percentage Interest and Indirect
Shares of any Withdrawing General Partner shall be subject to reallocation
under Section 4.01 hereof.
Section 6.04. Death, etc. of a Limited Partner. The death,
disability, withdrawal, termination (in the case of a Limited Partner that is
a partnership or a trust), dissolution (in the case of a Limited Partner that
is a corporation), retirement, or adjudication as a bankrupt of a Limited
Partner (the "Withdrawing Limited Partner") shall not dissolve the
Partnership, but, the rights of such Limited Partner to share in the profits
and losses of the Partnership and to receive distributions of Partnership
funds shall, upon the happening of such an event, pass to the Limited
Partner's estate, legal representative, or successors in interest, as the case
may be, subject to this Agreement, and the Partnership shall continue as a
limited partnership; provided that, such estate, legal representative, or
successors shall be only an assignee to such interest and shall not be
admitted as a substitute Partner of the Partnership unless such admission is
Approved by the Partners.
Section 6.05. Termination and Liquidation of the Partnership.
(a) Upon dissolution of the Partnership unless continued pursuant to
Section 6.02, the Partnership shall be terminated as rapidly as business
circumstances will permit. At the direction of the General Partner, or a
Partner Approved by the Partners if the dissolution of the Partnership is
caused by the withdrawal of the General Partner (the General Partner or the
other Partner, as the case may be, being herein called the "Terminating
Partner"), a full accounting of the assets and liabilities of the Partnership
shall be taken and a statement of the Partnership Assets and a statement of
each Partner's Capital Account shall be furnished to all Partners as soon as
is reasonably practicable. The Terminating Partner shall take such action as
is necessary so that the Partnership's business shall be terminated, its
liabilities discharged, and its assets distributed as hereinafter described.
The Terminating Partner may sell all of the Partnership Assets or distribute
the Partnership Assets in kind. A reasonable period of time shall be allowed
for the orderly termination of the Partnership to minimize the normal losses
of a liquidation process.
(b) After the payment of all expenses of liquidation and of all debts
and liabilities of the Partnership in such order or priority as provided by
law (including any debts or liabilities to Partners, who shall be treated as
secured or unsecured creditors, as may be the case, to the extent permitted by
law, for sums loaned to the Partnership, if any, as distinguished from capital
contributions) and after all resulting items of Partnership income, gain,
credit, loss, or deduction are credited or debited to the Capital Accounts of
the Partners in accordance with Articles III and IV hereof, all remaining
Partnership Assets shall then be distributed among the Partners in accordance
with the positive balances of their respective Capital Accounts. Upon
termination, a Partner may not demand and receive cash in return for such
Partner's capital contributions and no Partner shall have any obligation to
restore any deficit that may then exist in that Partner's Capital Account.
Distribution on termination may be made by the distribution to each Partner of
an undivided interest in any asset of the Partnership that has not been sold
at the time of termination of the Partnership.
Section 6.06. General Partners Not Personally Liable. No General
Partner nor any affiliate of any General Partner shall be personally liable
for the return of the Capital Contributions of any Partner, and such return
shall be made solely from available Partnership Assets, if any, and each
Limited Partner hereby waives any and all claims it may have against any
General Partner or any such affiliate in this regard.
Section 6.07. Provisions Cumulative. All provisions of this Agreement
relating to the dissolution, liquidation, and termination of the Partnership
shall be cumulative to the extent not inconsistent with other provisions
herein; that is, the exercise or use of one of the provisions hereof shall not
preclude the exercise or use of any other provision of this Agreement to the
extent not inconsistent therewith.
ARTICLE VII
GENERAL
Section 7.01. Competing Business. Notwithstanding anything to the
contrary contained in or inferable from this Agreement, the Act, or any other
statute or principle of law, neither the Partners nor any of their
shareholders, directors, officers, employees, partners, agents, family
members, or affiliates (each a "Partner Affiliate") shall be prohibited or
restricted in any way from investing in or conducting, either directly or
indirectly, and may invest in and/or conduct, either directly or indirectly,
businesses of any nature whatsoever, including the ownership and operation of
businesses or properties similar to or in the same geographical area as those
held by the Partnership. Any investment in or conduct of any such businesses
by a Partner or any Partner Affiliate shall not give rise to any claim for an
accounting by the other Partners or the Partnership or any right to claim any
interest therein or the profits therefrom.
Section 7.02. Notice.
(a) All notices, demands, or requests provided for or permitted to be
given pursuant to this Agreement must be in writing.
(b) All notices, demands, and requests to be sent to a Partner
pursuant to this Agreement shall be deemed to have been properly given or
served if: (i) personally delivered, (ii) deposited prepaid for next day
delivery by Federal Express, or other similar overnight courier services,
addressed to such Partner, (iii) deposited in the United States mail,
addressed to such Partner, prepaid and registered or certified with return
receipt requested, or (iv) transmitted via telecopier or other similar device
to the attention of such Partner.
(c) All notices, demands, and requests so given shall be deemed
received: (i) when personally delivered, (ii) twenty-four (24) hours after
being deposited for next day delivery with an overnight courier, (iii)
forty-eight (48) hours after being deposited in the United States mail, or
(iv) twelve (12) hours after being telecopied or otherwise transmitted and
receipt has been confirmed.
(d) The Partners shall have the right from time to time, and at any
time during the term of this Agreement, to change their respective addresses
and each shall have the right to specify as his or its address any other
address within the United States of America by giving to the other parties at
least thirty (30) days written notice thereof, in the manner prescribed in
Section 7.02(b); provided however, that to be effective, any such notice must
be actually received (as evidenced by a return receipt).
(e) All distributions to any Partner shall be made at the address at
which notices are sent unless otherwise specified in writing by any such
Partner.
Section 7.03. Amendments. Amendments and supplements may be made to
or restatements made of this Agreement only upon the Approval of the Partners.
Section 7.04. Powers of Attorney. Each Limited Partner hereby
constitutes and appoints each General Partner, with full power of
substitution, as his or its true and lawful attorney-in-fact and empowers and
authorizes such attorney, in the name, place, and stead of such Limited
Partner, to make, execute, sign, swear to, acknowledge, and file in all
necessary or appropriate places all documents (and all amendments or
supplements to or restatements of such documents necessitated by valid
amendments to or actions permitted under this Agreement) relating to the
Partnership and its activities, including, without limitation: (a) this
Agreement and any amendments thereto approved as provided in this Agreement,
(b) the Certificate of Limited Partnership and any amendments thereto, under
the laws of the State of Texas or in any other state or jurisdiction in which
such filing is deemed advisable by such General Partner, (c) any applications,
forms, certificates, reports, or other documents, or amendments thereto which
may be requested or required by any federal, state, or local governmental
agency, securities exchange, securities association, self-regulatory
organization, or similar institution and which are deemed necessary or
advisable by such General Partner, (d) any other instrument which may be
required to be filed or recorded in any state or county or by any governmental
agency, or which such General Partner deems advisable to file or record,
including, without limitation, certificates of assumed name and documents to
qualify foreign limited partnerships in other jurisdictions, (e) any documents
which may be required to effect the continuation of the Partnership, the
withdrawal of any Partner, the purchase of the interest in the Partnership of
any ex-spouse of a Partner, or the dissolution and termination of the
Partnership, (f) making certain elections contained in the Code or state law
governing taxation of limited partnerships, and (g) performing any and all
other ministerial duties or functions necessary for the conduct of the
business of the Partnership. Each Limited Partner hereby ratifies, confirms,
and adopts as his own, all actions that may be taken by such attorney-in-fact
pursuant to this Section 7.04. Each Limited Partner acknowledges that this
Agreement permits certain amendments to be made and certain other actions to
be taken or omitted to be taken by less than all of the Partners if approved
in accordance with the provisions hereof. By their execution hereof, each
Limited Partner also grants each General Partner a power of attorney to
execute any and all documents necessary to reflect any action that is approved
in accordance with the provisions hereof. This power of attorney is coupled
with an interest and shall continue notwithstanding the subsequent incapacity
or death of the Limited Partner. Each Limited Partner shall execute and
deliver to the General Partner an executed and appropriately notarized power
of attorney in such form consistent with the provisions of this Section 7.04
as the General Partner may request.
Section 7.05. GOVERNING LAWS AND VENUE. THIS AGREEMENT IS MADE IN
FORT WORTH, TARRANT COUNTY, TEXAS, AND THE RIGHTS AND OBLIGATIONS OF THE
PARTNERS HEREUNDER SHALL BE INTERPRETED, CONSTRUED, AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS. ALL MATTERS LITIGATED BY, AMONG, OR
BETWEEN ANY OF THE PARTNERS THAT INVOLVE THIS AGREEMENT, THE RELATIONSHIP OF
THE PARTNERS, OR ANY RELATED DOCUMENTS OR MATTERS HEREUNDER SHALL BE BROUGHT
ONLY IN FORT WORTH, TARRANT COUNTY, TEXAS.
Section 7.06. Rule of Construction. The general rule of construction
for interpreting a contract, which provides that the provisions of a contract
should be construed against the party preparing the contract, is waived by the
parties. Each party acknowledges that he or it was represented by separate
legal counsel in this matter who participated in the preparation of this
Agreement or he or it had the opportunity to retain counsel to participate in
the preparation of this Agreement but chose not to do so.
Section 7.07. Entire Agreement. This Agreement, including all
exhibits to this Agreement and, if any, exhibits to such exhibits, contains
the entire agreement among the parties relative to the matters contained in
this Agreement.
Section 7.08. Waiver. No consent or waiver, express or implied, by
any Partner to or for any breach or default by any other Partner in the
performance by such other Partner of his or its obligations under this
Agreement shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by such other Partner of the same
or any other obligations of such other Partner under this Agreement. Failure
on the part of any Partner to complain of any act or failure to act of any of
the other Partners or to declare any of the other Partners in default,
regardless of how long such failure continues, shall not constitute a waiver
by such Partner of his or its rights hereunder.
Section 7.09. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to other persons or circumstances shall not be
affected thereby, and the intent of this Agreement shall be enforced to the
greatest extent permitted by law.
Section 7.10. Binding Agreement. Subject to the restrictions on
transfers and encumbrances set forth in this Agreement, this Agreement shall
inure to the benefit of and be binding upon the undersigned Partners and their
respective legal representatives, successors, and assigns. Whenever, in this
Agreement, a reference to any party or Partner is made, such reference shall
be deemed to include a reference to the legal representatives, successors, and
assigns of such party or Partner.
Section 7.11. Tense and Gender. Unless the context clearly indicates
otherwise, the singular shall include the plural and vice versa. Whenever the
masculine, feminine, or neuter gender is used inappropriately in this
Agreement, this Agreement shall be read as if the appropriate gender was used.
Section 7.12. Captions. Captions are included solely for convenience
of reference and if there is any conflict between captions and the text of
this Agreement, the text shall control.
Section 7.13. Counterparts. This Agreement 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. Executed signature pages to any counterpart
instrument may be detached and affixed to a single counterpart, which single
counterpart with multiple executed signature pages affixed thereto constitutes
the original counterpart instrument. All of these counterpart pages shall be
read as though one and they shall have the same force and effect as if all of
the parties had executed a single signature page.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Each of the undersigned has executed and delivered this Agreement in
Fort Worth, Texas, to be effective as of the Effective Date.
GENERAL PARTNER
1992 Air GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
General Partner
By:
Name:
Title:
Number of Shares: 141,000
Percentage Interest: 22.5913%
Each of the undersigned has executed and delivered this Agreement in
Fort Worth, Texas, to be effective as of the Effective Date.
LIMITED PARTNER
DAVID BONDERMAN
Number of Shares: 101,424
Percentage Interest: 16.2504%
Each of the undersigned has executed and delivered this Agreement in
Fort Worth, Texas, to be effective as of the Effective Date.
LIMITED PARTNER
BONDERMAN FAMILY LIMITED
PARTNERSHIP, a Texas limited partnership
By: Bondco, Inc., general partner
By:
James J. O'Brien, Chief Financial
Officer and Vice President
Number of Shares: 17,104
Percentage Interest: 2.7404%
Each of the undersigned has executed and delivered this Agreement in
Fort Worth, Texas, to be effective as of the Effective Date.
LIMITED PARTNER
ELI BROAD
Number of Shares: 58,807
Percentage Interest: 9.4222%
Each of the undersigned has executed and delivered this Agreement in
Fort Worth, Texas, to be effective as of the Effective Date.
LIMITED PARTNER
LECTAIR PARTNERS LIMITED PARTNERSHIP
By: Planden Corp., General Partner
By:
Edward L. Cohen, President
Number of Shares: 158,780
Percentage Interest: 25.4400%
Each of the undersigned has executed and delivered this Agreement in
Fort Worth, Texas, to be effective as of the Effective Date.
LIMITED PARTNER
DONALD STURM
Number of Shares: 147,019
Percentage Interest: 23.5557%
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:
James J. O'Brien, Chief Financial Officer
and Vice President
WITHDRAWING GENERAL PARTNER
AIR II GENERAL, INC., a Texas corporation
By: __________________________________
James J. O'Brien, 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.
___________________________________
DAVID BONDERMAN
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:________________________________
James J. O'Brien, 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 LARRY LEE 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:_________________________________
Edward L. Cohen, 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.
___________________________________
ELI BROAD
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.
___________________________________
DONALD STURM
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:_________________________________
John M. Lewis, 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:
James J. O'Brien, 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**
David Bonderman 4.916% 308,736 597,195
Bonderman Family, L.P. 1.425% 104,363 173,132
Estate of Larry Hillblom 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
Eli Broad 2.850% 179,011 346,264
American General Corp. 15.326% 0 74,854,080
Donald Sturm 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
David Bonderman 101,424
Bonderman Family, L.P.
17,104
Lectair Partners, L.P.
158,780
Eli Broad 58,807
Donald Sturm 147,019
624,134
Exhibit 4.14
This AMENDMENT No. 1 made and entered into the 27th
day of February, 1998, among Northwest Airlines
Corporation ("Parent"), Newbridge Parent
Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Holdco Sub"), Air
partners, L.P., a Texas limited partnership (the
"Partnership"), the partners of the Partnership
(collectively, the "Partners"), Bonderman Family
Limited Partnership, a Texas limited partnership
("Transferor I"), Air Saipan, Inc., a CNMI
corporation ("Transferor II"), and 1992 Air, Inc.,
a Texas corporation ("Transferor III").
WHEREAS, Parent, Holdco Sub, the Partnership, the Partners,
Transferor I, Transferor II and Transferor III are parties to an
Investment Agreement dated as of January 25, 1998 (the "Investment
Agreement"; capitalized terms used and not defined herein have the
meaning assigned to them in the Investment Agreement); and
WHEREAS, the parties hereto desire to amend the Investment
Agreement to adjust the maximum percentage of the consideration to be
paid to the Partners pursuant thereto that may be so paid in shares of
Holdco Sub Class A Common Stock;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments. (a) Schedules 2.2(a) and 2.2(b) to
the Investment Agreement are hereby deleted in their entirety and
replaced with Schedules 2.2(a) and 2.2(b) hereto, respectively.
(b) The reference din Section 2.2(c) of the Investment
Agreement to "40%" is hereby deleted and replaced with a referenced to
"41%."
(c) Immediately following Section 2.2(c) of the Investment
Agreement a new Section 2.2(d) is hereby inserted, as follows:
"(d) it is understood and agreed by the
parties there, subject to clause (c) of this
Section 2.2, 1992 Air GP may elect to receive part
of the consideration for its Allocable Company
Class A Shares in cash and part in shares of Holdco
Sub Class A Common Stock as set forth on Schedules
2.2(a) and 2.2(b), so that 1992 Air GP shall be
both a Cash Electing Partner and a Share Electing
Partner."
Section 2. Approval. This Amendment is made pursuant to
Section 7.8 of the Investment Agreement, which requires the written
consent of each of Parent, Holdco Sub, the Partnership, the Partners,
Transferor I, Transferor II and Transferor III, each of whom hereby
consents to the foregoing amendment.
Section 3. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of New York as
applied in contracts entered into and to be performed in New York
without regard to the application of principles of conflicts of laws.
Section 4. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall be considered an original
and all of which, taken together, shall constitute the same documents.
IN WITNESS WHEREOF, the parties have executed, delivered and
entered into this Agreement as of the date and year first written above.
NORTHWEST AIRLINES CORPORATION
By:
Name:
Title:
NEWBRIDGE PARENT CORPORATION
By:
Name:
Title:
AIR PARTNERS, L.P.
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
managing partner
By:
Name:
Title:
THE PARTNERS:
GENERAL PARTNERS:
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
general partner
By:
Name:
Title:
AIR II GENERAL, INC., a Texas Corporation
By:
Name:
Title:
LIMITED PARTNERS:
DAVID BONDERMAN
BONDERMAN FAMILY LIMITED PARTNERSHIP
ESTATE OF LARRY LEE HILLBLOM
By: Russell K. Snow, Jr., Managing
Executor
Bank of Saipan, Executor
DHL MANAGEMENT SERVICES, INC.
LECTAIR PARTNERS
By: Planden Corp., G.P.
SUNAMERICA INC. (Formerly Broad, Inc.)
ELI BROAD
AMERICAN GENERAL CORPORATION
DONALD STRUM
CONAIR LIMITED PARTNERS, L.P.
BONDO AIR LIMITED PARTNERSHIP
By: 1992 Air, Inc.
By: 1992 AIR GP, as attorney-in-fact for
the foregoing
By: 1992 Air, Inc., a Texas corporation,
general partner
By:
Name:
Title:
TRANSFERORS:
AIR SAIPAN, INC., a CNMI corporation
By:
Name:
Title:
BONDERMAN FAMILY LIMITED PARTNERSHIP
By:
Name:
Title:
1992 AIR, INC., a Texas corporation
By:
Name:
Title:
This AMENDMENT NO. 2 to the Investment Agreement, dated as of
November 20, 1998 (this Amendment ), is by and among NORTHWEST AIRLINES
CORPORATION, a Delaware corporation ( Parent ), NEWBRIDGE PARENT
CORPORATION, a Delaware corporation and, as of the execution of this
Agreement, a wholly owned subsidiary of Parent ( Holdco Sub ), AIR
PARTNERS, L.P., a Texas limited partnership (the Partnership ), the
partners of the Partnership identified on the signature pages hereof
(the Partners ), 1998 CAI Partners, L.P., a Texas limited partnership
( CAIPar ), BONDERMAN FAMILY LIMITED PARTNERSHIP, a Texas limited
partnership ( Transferor I ), 1992 AIR, INC., a Texas corporation
( Transferor II ), and AIR SAIPAN, INC., a CNMI corporation ("Transferor
III" and, collectively with Transferor I and Transferor II, the
Transferors ).
W I T N E S S E T H :
WHEREAS, Parent, Holdco Sub, the Partnership, the Partners and
the Transferors have entered into the Investment Agreement, dated as of
January 25, 1998 (as amended as of February 27, 1998, the Investment
Agreement ), pursuant to which, among other things, (i) the Partners,
Parent and Holdco Sub agreed to exchange all of the Partnership
Interests for shares of Common Stock, par value $.01 per share of Holdco
Sub ( Holdco Sub Common Stock ; all references in the Investment
Agreement to Holdco Sub Class A Common Stock shall be deemed to be
references to Holdco Sub Common Stock) and cash upon the terms and
subject to the conditions set forth therein and (ii) the Transferors,
Parent and Holdco Sub agreed to exchange all of the Transferors shares
of Class A Common Stock, par value $.01 per share (the Company Class A
Common Stock ) of Continental Airlines, Inc. (the Company ) for shares
of Holdco Sub Common Stock and cash upon the terms and subject to the
conditions set forth therein; and
WHEREAS, Parent, Holdco Sub, the Partnership, the Partners and
the Transferors desire to amend the Investment Agreement to add CAIPar
as a party to the Investment Agreement, to permit the Partnership to
distribute certain shares of Company Class A Common Stock to CAIPar and
to permit Transferor I and Transferor II (the Retaining Transferors )
to retain all of the shares of Company Class A Common Stock held by
them.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree as
follows:
Section 1. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Investment Agreement.
Section 2. Section 2.1 of the Investment Agreement is
hereby amended by adding at the end thereof the following:
Each of Parent, Holdco Sub, the Partnership, the Partners,
CAIPar and the Transferors hereby agrees, subject to the terms and
conditions hereof, to the transfer by the Partnership of 624,134 shares
of Company Class A Common Stock to CAIPar (the Pre-Closing Transfer )
and acknowledges, based on the representation set forth herein, that
after such transfers, the Partnership owns, of record and beneficially,
7,678,552 shares of Company Class A Common Stock.
Section 3. (a) Section 1.1 of the Investment Agreement is
hereby amended by adding the following defined terms thereto in the
appropriate alphabetical order:
CAIPar means 1998 CAI Partners, L.P., a Texas limited
partnership.
Governance Agreement shall mean the Governance Agreement,
dated as of January 25, 1998, among the Company, Parent, Holdco Sub
and the Partnership as amended by Amendment No. 1, dated as of
March 2, 1998, and as amended by Amendment No. 2, dated as of
November 20, 1998.
Purchase Agreement means the Purchase Agreement dated as of
March 2, 1998 among Parent, Holdco Sub, Barlow Investors III, LLC,
a California limited liability company and the guarantors signatory
thereto.
Retained Shares means the shares of Company Class A Common
Stock which were transferred to CAIPar pursuant to the Pre-Closing
Transfer and the shares of Company Class A Common Stock which are
owned by the Retaining Transferors as of the Effective Time of the
Merger, in each case as set forth on Annex A hereto.
Supplemental Agreement means the Supplemental Agreement
dated as of November 20, 1998, among the Company, Parent, Holdco
Sub and the Partnership.
(b) Section 1.1 of the Investment Agreement is hereby amended
by substituting the following definitions for the following terms in
Section 1.1:
Merger Agreement means the Amended and Restated Agreement
and Plan of Merger dated as of October 30, 1998, in the form of
Exhibit A among Parent, Holdco Sub and Merger Sub.
Partnership Agreement means the Amended and Restated
Limited Partnership Agreement of Air Partners, L.P., dated as of
November 9, 1992, as amended by the First Amendment, dated as of
July 25, 1995, the Second Amendment, dated as of August 7, 1996,
the Third Amendment, dated as of May 22, 1997 and the Fourth
Amendment, dated as of November 20, 1998.
Restated Partnership Agreement means the Second Amended and
Restated Limited Partnership Agreement of Air Partners, L.P., in
the form of Exhibit B to be executed by the Partners, Parent and
Holdco Sub.
Section 4. Section 2.1 of the Investment Agreement is hereby
amended by deleting the second sentence thereof and substituting
therefor the following:
Upon the terms and subject to the conditions of this
Agreement, each of Parent and Holdco Sub agrees to exchange, and
Transferor III agrees to exchange, each of the 3,702 shares of
Company Class A Common Stock held by Transferor III free and clear
of any Lien or Restriction created by Transferor III or otherwise
binding upon any such shares (other than any Lien or Restriction
imposed pursuant to the terms of this Agreement) for cash, as more
fully set forth in this Article II.
Section 5. (a) Schedule 2.2(a) and Schedule 2.2(b) of the
Investment Agreement are hereby amended by substituting therefor
Schedule 2.2(a) and Schedule 2.2(b), respectively, attached hereto.
(b) Section 2.2 of the Investment Agreement is hereby amended
by deleting Section 2.2(a) thereof and substituting therefor the
following:
2.2 Cash Election Share Price; Exchange Ratio. (a) Subject
to adjustment in accordance with Section 2.3, Parent or Holdco Sub
shall pay to each Partner set forth on Schedule 2.2(a) (each a
Cash Electing Partner ) in exchange for all of such Partner s
Partnership Interests and to Transferor III, as set forth on
Schedule 2.2(a), $60.82 (the Cash Election Share Price ) in
respect of each share of Company Class A Common Stock owned by the
Partnership immediately prior to the Closing and allocable to such
Cash Electing Partner in accordance with the Partnership Agreement
(each an Allocable Company Class A Share ) and each share of
Company Class A Common Stock owned by Transferor III.
(c) Section 2.2 of the Investment Agreement is hereby amended
by deleting the first sentence of Section 2.2 (b) and substituting
therefor the following:
Subject to adjustment in accordance with Section 2.3, Holdco
Sub shall issue to each Partner set forth on Schedule 2.2(b) (each
a Share Electing Partner ) in exchange for all of such Partner's
Partnership Interests in respect of each Allocable Company Class A
Share of such Share Electing Partner, as set forth on Schedule
2.2(b), 1.2079 shares (the Share Exchange Ratio ) of fully paid
and non-assessable Holdco Sub Common Stock.
Section 6. Section 2.4 of the Investment Agreement is hereby
amended by deleting Section 2.4(b) (iv) thereof and substituting
therefor the following:
(iv) Each of the Partners and Transferor III shall deliver to
Parent and Holdco Sub or their designee such documents as Parent
and Holdco Sub may reasonably request, including certificates for
all shares of Company Class A Common Stock owned by the
Partnership, to evidence the transfer to Parent and Holdco Sub or
their designee of good and marketable title in and to all of the
Partnership Interests being conveyed pursuant to this Agreement and
the absence of any Liens or Restrictions on such shares of Company
Class A Common Stock (other than any Lien or Restriction imposed
pursuant to the terms of this Agreement), and all the shares of
Company Class A Common Stock owned by Transferor III free and clear
of any Lien or Restriction (other than any Lien or Restriction
imposed pursuant to the terms of this Agreement); and
Section 7. (a) Section 3.2 of the Investment Agreement is
hereby amended by deleting the introductory paragraph and substituting
therefor the following:
3.2 Representations and Warranties of the Partnership and
the Partners. The Partnership and each Partner, severally and not
jointly, represents and warrants to Parent and Holdco Sub as of
January 25, 1998 (except for Section 3.2(d)), and as of the Closing
Date as follows:
(b) Section 3.2(d) of the Investment Agreement is hereby
amended by deleting Section 3.2(d) and substituting therefor the
following:
(d) Ownership of Shares of Company Common Stock; No Other
Operations. Following the Pre-Closing Transfer, the Partnership is
the direct and record owner of (i) 7,678,522 shares of Company
Class A Common Stock and (ii) no shares of Class B Common Stock,
par value $.01 per share, of the Company ( Company Class B Common
Stock and, together with the Company Class A Common Stock, the
Company Common Stock ). Except as set forth in the immediately
preceding sentence, (i) the Partnership does not own or have the
right to acquire, whether presently exercisable or at any time in
the future, any shares of Company Common Stock or any securities
convertible into or exercisable or exchangeable for shares of
Company Common Stock or any other equity securities of the Company
and (ii) the Partnership does not own any other assets or conduct
any other business. Except as permitted by this Agreement, no
Person has the right to acquire, and neither CAIPar, the
Partnership nor any of the Partners is a party to any contract,
understanding, commitment, arrangement or other agreement to sell,
transfer or otherwise dispose of, any shares of Company Common
Stock owned by or issuable to CAIPar, the Partnership or to such
Partners. To the best knowledge of the Partnership and the
Partners, based solely on inquiry of appropriate officers of the
Company, as of December 31, 1997, the shares of Company Class A
Common Stock described in the first sentence of this Section
3.2(d), together with the 624,134 shares of Company Class A Common
Stock to be transferred to CAIPar in the Pre-Closing Transfer,
constituted 13.9% of the outstanding shares of Company Common Stock
and 50.4% of the Voting Power represented by the outstanding shares
of Company Common Stock. To the best knowledge of the Partnership
and the Partners, based solely on inquiry of appropriate officers
of the Company, after giving effect to the issuance of shares of
Company Common Stock pursuant to all securities described in the
second sentence of Section 3.3(h), such shares would have
constituted 9.6% of the outstanding shares of Company Common Stock
and 43.9% of the Fully Diluted Voting Power at December 31, 1997.
The Partnership has, and at the Closing will have, good and valid
title to the shares of Company Class A Common Stock described in
the first sentence of this Section 3.2(d) free and clear of any
Liens or Restrictions, except those arising under this Agreement.
Except as set forth herein, the Partnership has sole voting power,
and sole power of disposition, with respect to all shares of
Company Class A Common Stock described in the first sentence of
this 3.2(d) and there are no restrictions on the Partnership's
ability to transfer such shares.
Section 8. The Investment Agreement is hereby amended by
adding a new Section 3.5 thereto as follows:
3.5 Representations and Warranties of the Partnership.
None of the shares of Company Class A Common Stock held by the
Partnership after the Pre-Closing Transfer has a lower per share
tax basis than any of the Retained Shares.
Section 9. The Investment Agreement is hereby amended by
adding a new Section 3.6 thereto as follows:
3.6 Representations and Warranties of CAIPar. CAIPar
represents and warrants to Parent and Holdco Sub as of the Closing
Date as follows:
(a) Organization, Standing and Power of CAIPar. CAIPar is
duly organized, validly existing and in good standing under the
laws of the State of Texas and has the requisite partnership power
and authority to carry on its business as now being conducted.
CAIPar is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such
qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) could not reasonably be expected
to have a material adverse effect with respect to CAIPar.
(b) CAIPar Authorization. The execution, delivery and
performance by CAIPar of this Agreement and the consummation by
CAIPar of the transactions contemplated hereby have been duly
authorized by all necessary partnership action. This Agreement has
been duly executed and delivered by CAIPar and constitutes a valid
and binding agreement of CAIPar, enforceable against CAIPar in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at equity or at
law).
(c) CAIPar Capitalization. The authorized and issued equity
capital of CAIPar consists solely of the general partnership
interests and limited partnership interests described on Schedule
3.6(c). The Share Electing Partners own, and at the Closing Date
the Share Electing Partners will own, of record and beneficially,
collectively 100% of the general and limited partnership interests
of CAIPar, free and clear of all Liens and Restrictions (other than
any Liens or Restrictions imposed pursuant to the terms of this
Agreement or disclosed on Schedule 3.6(c)).
(d) Ownership of Shares. Following the Pre-Closing Transfer,
CAIPar is the direct and record owner of 624,134 shares of Company
Class A Common Stock, and has good and valid title to such shares,
free and clear of any Liens or Restrictions, except those arising
under this Agreement. Except as set forth herein, CAIPar has sole
voting power, and sole power of disposition, with respect to all
such 624,134 shares of Company Class A Common Stock and there are
no restrictions on CAIPar s ability to transfer such shares.
(e) No Conflict. No permit, authorization, consent or
approval of, any Governmental Authority is necessary for the
execution of this Agreement by CAIPar or the consummation by CAIPar
of the transactions contemplated hereby, including the Pre-Closing
Transfer, except for such filings the failure of which to be made,
individually or in the aggregate, could not reasonably be expected
to have a material adverse effect on CAIPar or to prevent or
materially delay the consummation of the transactions contemplated
hereby. Neither the execution and delivery of this Agreement by
CAIPar nor the consummation by CAIPar of the transactions
contemplated hereby nor compliance by CAIPar with any of the
provisions hereof conflicts with or results in any breach of any
applicable trust or other organizational documents applicable to
CAIPar.
Section 10. (a) Section 4.2 of the Investment Agreement is
hereby amended by deleting Section 4.2(b) and substituting therefor the
following:
(b) Restriction on Transfer of Company Shares, Proxies and
Non-Interference; Restriction on Withdrawal. (i) Pre-Closing.
Prior to the Closing, neither the Partnership, CAIPar nor any
Partner or Transferor shall, directly or indirectly, without the
prior written consent of Parent: (A) except pursuant to or as
expressly contemplated hereby, offer for sale, sell (including
short sales), transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift), or enter into any
contract, option or other arrangement or understanding (including
any profit-sharing arrangement) with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, (1) any or all of the shares of
Company Class A Common Stock owned by it (or, in the case of any
Partner, allocable to it) or (2) in the case of any Partner, all or
any portion of its Partnership Interest, or any interest in any
thereof; (B) except as expressly contemplated hereby, grant any
proxies or powers of attorney (other than to CAIPar, a Partner or
Transferor), deposit any shares of Company Class A Common Stock
into a voting trust or enter into any other voting arrangement with
respect to any shares of Company Class A Common Stock; (C) except
as otherwise provided in this Agreement, take any action that would
make any representation or warranty of the Partnership, CAIPar or
any Partner or Transferor contained herein untrue or incorrect or
have the effect of preventing or disabling the Partnership, CAIPar
or any Partner or Transferor from performing its obligations under
this Agreement; or (D) except for the Pre-Closing Transfer, in the
case of the Partners, withdraw any of its Allocable Company Class
A Shares from the Partnership or elect to have any of its Allocable
Company Class A Shares distributed to it; or commit or agree to
take any of the foregoing actions; provided, however, that in the
event that, (x) a third party commences a bona fide tender offer
for shares of Company Class A Common Stock, (y) neither the
Partnership, CAIPar nor any Partner or Transferor is in breach in
any material respect of its representations and warranties or its
obligations (including its obligation to effect the Closing) under
this Agreement and (z) all of the other conditions to Parent's and
Holdco Sub's obligations to close the Transactions set forth in
Sections 5.1 and 5.2 have been satisfied, unless Parent and Holdco
Sub cause the Closing to occur within five Business Days following
receipt of written notice from the Partnership, CAIPar or any of
the Transferors of their intention to tender their shares, the
Partnership, CAIPar and the Transferors will be permitted to tender
their shares of Company Class A Common Stock in such tender offer,
unless such Closing shall not have occurred as a result of facts or
occurrences not within the control of Parent and Holdco Sub
(including the failure of any of the conditions set forth in
Section 5.1 or Section 5.3 to be satisfied).
(ii) Post-Closing. Subsequent to the Closing, until
such time as neither the Governance Agreement nor Sections 2
through 14 of the Supplemental Agreement are in effect, neither
CAIPar, any Share Electing Partner nor any Retaining Transferor
shall, directly or indirectly, without the prior written consent of
Parent: (A) except as expressly contemplated hereby, offer for
sale, sell (including short sales), transfer, tender, pledge,
encumber, assign or otherwise dispose of (including by gift), or
enter into any contract, option or other arrangement or
understanding (including any profit-sharing arrangement) with
respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Retained Shares owned by it (except that CAIPar
may transfer shares of Company Class A Common Stock held by it to
any Share Electing Partner) unless prior to such transfer (or, in
the case of a pledge, before any foreclosure or any other transfer
of ownership resulting from such pledge) such shares are converted
into shares of Company Class B Common Stock, except that such
conversion shall not be required if Parent, Holdco Sub and the
Partnership shall have disposed of shares of Company Common Stock
or converted shares of Company Class A Common Stock into shares of
Company Class B Common Stock such that they Beneficially Own (as
defined in the Governance Agreement) shares of Company Common Stock
representing, in the aggregate, less than 20% of the Total Voting
Power (as defined in the Governance Agreement) (the Threshold );
provided, that if, as a result of a Government Order, Parent,
Holdco Sub and the Partnership are required to dispose of shares of
Company Common Stock or take such other action so that they
Beneficially Own, in the aggregate, shares of Company Common Stock
representing less than 20% of the Total Voting Power and, in order
to do so, Parent, Holdco Sub and the Partnership elect to convert
all shares of Company Class A Common Stock Beneficially Owned by
them into shares of Company Class B Common Stock, the Threshold
shall be reduced to 7.5% or (B) except as expressly contemplated
hereby, grant any proxies or powers of attorney (other than to
Parent or Holdco Sub), deposit any Retained Shares into a voting
trust or enter into any other voting arrangement with respect to
any Retained Shares; provided that CAIPar and any Share Electing
Partner or Retaining Transferor shall give prompt notice to Holdco
Sub in accordance with Section 7.4 of this Agreement of any action
taken pursuant to this Section 4.2(b)(ii)(A) or (B) and shall
certify as to the compliance of such action with this Section
4.2(b)(ii). Any calculations made pursuant to the foregoing shall
not take into effect any shares of Company Common Stock issued
after the date hereof other than upon the exercise of securities
described in the second sentence of Section 3.3(h).
(b) Section 4.2 of the Investment Agreement is hereby amended
by deleting Section 4.2(c) thereof and substituting therefor the
following:
(c) Voting. (i) Pre-Closing. The Partnership, CAIPar,
each Transferor and each Partner (with respect to its right to
direct the vote of the shares of Company Class A Common Stock owned
by the Partnership in accordance with the terms of the Partnership
Agreement) hereby agree that, during the time this Agreement is in
effect prior to the Closing, at any meeting of the stockholders of
the Company (or at any adjournments or postponements thereof),
however called, or in any other circumstances upon which the
Partnership's, CAIPar s or such Transferor's vote, consent or other
approval is sought or otherwise eligible to be given, the
Partnership, CAIPar each Transferor and such Partners shall vote
(or cause to be voted) the shares of Company Class A Common Stock
owned by the Partnership, CAIPar, such Partner or such Transferor,
as the case may be, (A) against any action or agreement that would
result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of
the Partnership, CAIPar or the Partners or such Transferor under
this Agreement; and (B) except as otherwise agreed to in writing in
advance by Parent, against the following actions: (1) any Business
Combination (other than a Business Combination with Parent or its
affiliates); and (2) (v) any change in the majority of the board of
directors of the Company; (w) any material change in the present
capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-laws; (x) any other material
change in the Company's corporate structure or business; (y) any
other action which is intended, or could reasonably be expected, to
(I) prevent, (II) delay or postpone or (III) impede, frustrate or
interfere with (in the case of this clause (III), in a manner that
could reasonably be expected to substantially deprive Parent and
Holdco Sub of the material benefits of any of) the Transactions or
the entry by the Company and Northwest Airlines, Inc. into an
Operating Alliance or their execution of an Alliance Agreement, or
(z) except as otherwise permitted in this Agreement, any action
that would cause the Fully Diluted Voting Power represented by the
shares of Company Class A Common Stock held by the Partnership,
CAIPar and the Transferors to be less than that percentage of the
Fully Diluted Voting Power of the Company represented by such
shares on the date of this Agreement other than grants by the
Company to its employees in accordance with its past practices of
options and other stock-based compensation. Neither the
Partnership, CAIPar nor any Partner or Transferor shall enter into
any agreement or understanding with any Person or entity prior to
the termination of this Agreement to vote or give instructions
after such termination in a manner inconsistent with clauses (A) or
(B) of the preceding sentence.
(ii) Post-Closing. CAIPar and each Share Electing Partner
and each Retaining Transferor hereby agree that, until such time as
neither the Governance Agreement nor Sections 2 through 14 of the
Supplemental Agreement are in effect at any meeting of the
stockholders of the Company (or at any adjournments or
postponements thereof), however called, or in any other
circumstances upon which CAIPar, such Share Electing Partner or
Retaining Transferor's vote, consent or other approval is sought or
otherwise eligible to be given (A) with respect to (x) any vote on
a merger, reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company, any sale of all or substantially
all of the Company s assets or any issuance of Voting Securities
that would represent in excess of 20% of the Voting Power prior to
such issuance, including any of the foregoing involving Holdco Sub
or the Parent or (y) any amendment to the Company s amended and
restated certificate of incorporation or by-laws that would
materially and adversely affect Holdco Sub (including through its
effect on the Alliance Agreement and the rights of the Voting
Securities Beneficially Owned (as such terms are defined in the
Governance Agreement) by Holdco Sub), CAIPar, such Share Electing
Partner or Retaining Transferor shall vote (or cause to be voted)
any Retained Shares owned by it as directed by Holdco Sub and
(B) with respect to any election of directors of the Company in
respect of which any Person other than the Company is soliciting
proxies, CAIPar, such Share Electing Partner or Retaining
Transferor shall vote or cause all such shares to be voted as
recommended by the Board of Directors, but only if Holdco Sub votes
the shares of Company Class A Common Stock Beneficially Owned by it
in such election as recommended by the Board of Directors.
(c) Section 4.2 of the Investment Agreement is hereby amended
by deleting Section 4.2(d) thereof and substituting therefor the
following:
(d) Proxy. (i) Pre-Closing. The Partnership (and, to the
extent provided by the Partnership Agreement, the Partners), CAIPar
and each Retaining Transferor hereby grant to, and appoint, Robert
L. Friedman and any other designee of Parent, individually, its
irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote the shares of Company Class A Common Stock
owned by the Partnership, CAIPar or such Transferor as indicated
in, and solely for the purposes of, Section 4.2(c)(i). The
Partnership (and the Partners), CAIPar and each Transferor intend
this proxy to be irrevocable and coupled with an interest and will
take such further action and execute such other instruments as may
be necessary to effectuate the intent of this proxy and hereby
revoke any proxy previously granted by it with respect to the
matters set forth in Section 4.2(c) with respect to the shares of
Company Class A Common Stock owned by the Partnership.
Notwithstanding the foregoing, Parent agrees that the proxy granted
by this Section 4.2(d)(i) shall be deemed to be revoked upon the
termination of this Agreement in accordance with its terms.
(ii) Post-Closing. CAIPar, each Share Electing Partner and
each Retaining Transferor hereby grants to, and appoints, John H.
Dasburg, Mickey A. Foret and Douglas M. Steenland any other
designee of Holdco Sub from time to time, individually, its
irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote any Retained Shares owned by such CAIPar,
Share Electing Partner or Retaining Transferor as directed by
Holdco Sub (in the case of Section 4.2(c)(ii)(A)) and as
recommended by the Board of Directors of the Company (in the case
of Section 4.2(c)(ii) (B)) as indicated in, and solely for the
purposes of, Section 4.2(c)(ii). CAIPar, each Share Electing
Partner and each Retaining Transferor intend this proxy to be
irrevocable and coupled with an interest and will take such further
action and execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revoke any proxy
previously granted by it with respect to any Retained Shares owned
by CAIPar, such Share Electing Partner and such Retaining
Transferor with respect to the matters set forth in Section
4.2(c)(ii). Notwithstanding the foregoing, Holdco Sub agrees that
the proxy granted by this Section 4.2(d)(ii) shall be deemed to be
revoked upon such time as neither the Governance Agreement nor
Sections 2 through 14 of the Supplemental Agreement are in effect.
(d) Section 4.2 of the Investment Agreement is hereby amended
by deleting Section 4.2(f) thereof and substituting therefor the
following:
(f) No Conversions. Prior to the Closing, the Partnership,
CAIPar and each Transferor agree not to convert any shares of
Company Class A Common Stock into shares of Company Class B Common
Stock. Following the Closing, CAIPar, the Share Electing Partners
and the Retaining Transferors agree not to convert any shares of
Company Class A Common Stock into Company Class B Common Stock
unless such conversion occurs immediately prior to the transfer of
such shares to a third party as permitted by Section 4.2(b).
(e) Section 4.2(g) of the Investment Agreement is hereby
amended by deleting the words the Transferors in the seventh line
thereof and substituting therefor the words Transferor III .
(f) Section 4.2 of the Investment Agreement is hereby amended
by deleting Section 4.2(h) thereof and substituting therefor the
following:
(h) Transfer of Shares of Holdco Sub Common Stock. Until
the earlier of (i) the date that is two years after the Closing
Date and (ii) such time as Holdco Sub has failed to ensure that a
Transferor II Designee is elected to the Holdco Sub Board of
Directors when the right of Transferor II pursuant to Section
4.1(b) (A) remains in effect, (B) has been terminated by virtue of
a written instrument executed by Transferor II or its assignee and
Holdco Sub in connection with an order, ruling, decision, judgment,
consent decree or other decree of a court or Governmental Authority
(a Government Order ), or (C) would violate a Government Order,
each of the Share Electing Partners agrees that it shall not,
directly or indirectly, offer, sell, transfer, tender, pledge or
encumber, assign or otherwise dispose of any Exchange Shares other
than in connection with bona fide pledges of such Exchange Shares
to secure bona fide borrowings or in connection with bona fide
hedging transactions executed by registered broker-dealers;
provided, however, that the Share Electing Partners shall be
permitted to offer, sell, transfer, tender, pledge or encumber,
assign or otherwise dispose of, during such two-year period (x) in
the aggregate, such percentage of the aggregate number of Exchange
Shares issued to the Share Electing Partners at the Closing as is
equal to the percentage of the aggregate shares of Holdco Sub
Common Stock beneficially owned by Alfred Checchi, Gary Wilson and
Richard Blum on the Closing Date that are sold, transferred,
assigned or otherwise actually disposed of by Alfred Checchi, Gary
Wilson and Richard Blum in the aggregate during such two-year
period; (y) in the event that the Offeree acquires Offered
Securities under Section 4.1(d), in the aggregate, such percentage
of the aggregate number of Exchange Shares issued to the Share
Electing Partners at the Closing as is represented by the
percentage such Offered Securities acquired by the Offeree bears to
the total number of shares of Company Class A Common Stock the
beneficial ownership of which is acquired by Parent and Holdco Sub
at the Closing and (z) Exchange Shares to one or more of its
affiliates that is directly or indirectly controlled by it.
Nothing in this Section 4.2(h) shall be construed as being or
providing the sole or exclusive remedy for a breach by Parent or
Holdco Sub of Section 4.1(b) (it being understood that a
termination of Transferor II s right under Section 4.1(b) under the
circumstances described in clause (ii) (B) or (C) of this Section
4.2(h) shall not be a breach of such Section.)
(g) Section 4.2 of the Investment Agreement is hereby amended
by adding a new Section 4.2(k) thereto as follows:
(k) If subsequent to the Closing Parent, Holdco Sub or
their respective Affiliates purchase or otherwise acquire shares of
Company Class A Common Stock or Company Class B Common Stock such
that Parent, Holdco Sub and their Affiliates would, after giving
effect to such acquisition, Beneficially Own (as such term is
defined in the Governance Agreement) more than the Permitted
Percentage (as such term is defined in the Governance Agreement),
a number of shares of Company Class A Common Stock equal to the
number of shares of Voting Securities Beneficially Owned by such
Persons that exceed the Permitted Percentage shall be released from
the transfer restrictions of Section 4.2(b)(ii) of this Agreement,
the voting restrictions of Section 4.2(c)(ii) of this Agreement and
the proxy arrangements of Section 4.2(d)(ii) of this Agreement, in
each case on a vote for vote basis, effective upon the consummation
of such purchase, and Holdco Sub shall promptly notify the
Partner s Representative of any such acquisition.
Section 11. Section 7.14 of the Investment Agreement is
hereby amended by changing the heading to read Survival and adding at
the end thereof the following:
Following the Closing, except as set forth above, the
individual covenants and other provisions set forth in this
Agreement shall survive in accordance with their respective terms.
Section 12. Counterparts. This Amendment may be executed in
one or more counterparts, all of which shall be considered one and the
same agreement, and shall become a binding agreement when one or more
counterparts have been signed by each party and delivered to the other
parties.
Section 13. Notices. All notices, requests, demands or other
communications provided herein shall be made in writing and shall be
deemed to have been duly given if delivered as follows:
If to Parent or Holdco Sub:
Northwest Airlines Corporation
5101 Northwest Drive
St. Paul, Minnesota 55111-3034
Attention: General Counsel
Fax: (612) 726-7123
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Robert L. Friedman, Esq.
Fax: (212) 455-2502
If to the Partnership, CAIPar, the Partners or the
Transferors:
1992 Air, Inc.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Fax: (817) 871-4010
with a copy to:
Kelly, Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, Texas 76102
Attention: Clive D. Bode, Esq.
F. Richard Bernasek, Esq.
Fax: (817) 878-9280
or to such other address as any party shall have specified by notice in
writing to the other parties. All such notices, requests, demands and
communications shall be deemed to have been received on (i) the date of
delivery if sent by messenger, (ii) on the Business Day following the
Business Day on which delivered to a recognized courier service if sent
by overnight courier or (iii) on the date received, if sent by fax.
Section 14. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of New York as
applied to contracts entered into and to be performed in New York.
Section 15. Ratification of Investment Agreement. Except as
expressly amended hereby, the Investment Agreement is in all respects
ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed, delivered and
entered into this Amendment as of the day and year first above written.
NORTHWEST AIRLINES CORPORATION
By:___________________________________
Name: Douglas M. Steenland
Title: Executive Vice President,
General Counsel and Secretary
NEWBRIDGE PARENT CORPORATION
By:__________________________________
Name: Douglas M. Steenland
Title: Vice President, Secretary
and Assistant
Treasurer
AIR PARTNERS, L.P.
1992 AIR GP, a Texas general
partnership
By: 1992 Air, Inc., a Texas
corporation, general partner
By:_______________________________
__
Name:
Title:
THE PARTNERS:
GENERAL PARTNER:
1992 AIR GP, a Texas general
partnership
By: 1992 Air, Inc., a Texas
corporation, general partner
By:
________________________________
Name:
Title:
LIMITED PARTNERS:
DAVID BONDERMAN
BONDERMAN FAMILY LIMITED
PARTNERSHIP
By: BondCo, Inc.
ESTATE OF LARRY LEE HILLBLOM
By: Russel K. Snow, Jr.
Managing Executor
Bank of Saipan, Executor
DHL MANAGEMENT SERVICES, INC.
LECTAIR PARTNERS LIMITED PARTNERSHIP
By: Planden Corp., general partner
SUNAMERICA INC. (Formerly Broad, Inc.)
ELI BROAD
AMERICAN GENERAL CORPORATION
DONALD STURM
CONAIR LIMITED PARTNERS, L.P.
BONDO AIR LIMITED PARTNERSHIP
By: 1992 Air, Inc.
AIR SAIPAN, INC.
By: 1992 AIR GP, as attorney-in-fact
for the foregoing
By: 1992 Air, Inc., a Texas
corporation, general partner
By:
_________________________
Name:
Title:
CAIPAR:
1998 CAI Partners, L.P., a Texas
limited partnership
By: 1992 Air GP, its general
partner
By: 1992 Air, Inc., its general
partner
By:
________________________________
Name:
Title:
TRANSFERORS:
AIR SAIPAN, INC., a CNMI corporation
By: 1992 AIR GP, as attorney-in-fact
for the foregoing
By: 1992 Air, Inc., a Texas
corporation, general partner
By:_____________________________
Name:
Title:
BONDERMAN FAMILY LIMITED
PARTNERSHIP
By: BondCo, Inc.
By: 1992 AIR GP, as attorney-in-
fact for
the foregoing
By: 1992 Air, Inc., a Texas
corporation, general partner
By:
_________________________
Name:
Title:
1992 AIR, INC., a Texas corporation
By:_____________________________
Name:
Title:
Schedule 2.2(a)
Cash Electing Partners and Transferors
Partner or
Transferor
Allocable Company Class A Shares
or Transferor Exchange Shares
Estate of Larry
Hillblom
969,171
DHL Management
Services, Inc.
940,920
Sun America,
Inc.
352,849
American
General Corp.
1,264,898
Conair, L.P.
105,857
Bondo Air L.P.
1,077,400
Air Saipan,
Inc.
28,694
1992 Air GP
377,803
Air Saipan,
Inc.
3,702
Schedule 2.2(b)
Share Electing Partners and Transferors
Partner or
Transferor
Allocable Company Class A Shares
or Transferor Exchange Shares
David
Bonderman
304,270
Bonderman
Family Limited
Partnership
100,510
Lectair
Partners
476,341
Eli Broad
176,421
Donald Sturm
441,059
1992 Air GP
1,062,329
1992 Air, Inc.
0
Bonderman
Family
Limited
Partnership
0
Schedule 3.6(c)
1998 CAI Partners, L.P.
General and Limited Partner Interests
General Partner
1992 Air GP
22.5913%
Limited Partners
David Bonderman
Bonderman Family Limited
Partnership
16.2504
2.7404
Lectair Partners Limited
Partnership
25.4400
Eli Broad
9.4222
Donald Sturm
23.5557
100.000%
Annex A
Partner or
Transferor
Shares transferred to:
CAIPar:
624,134
Shares retained by:
1992 Air, Inc.
Bonderman Family
Limited Partnership
213,110
16,400