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 Xxxxx Xxxxxxxxx ("Xxxxxxxxx"),
Xxxxxxxxx Family Limited Partnership, a Texas limited partnership ("BFLP"),
Xxx Xxxxx ("Broad"), Lectair Partners Limited Partnership, ("Lectair"), and
Xxxxxx Xxxxx ("Xxxxx") 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 Xxxxx (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. Xxx., 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 Xxxxx 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 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx,
Xxxxx 00000 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 Xxxxx X. X'Xxxxx. The
Registered Office (as defined in the Act) of the Partnership shall be 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000.
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
XXXXX XXXXXXXXX
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:
Xxxxx X. X'Xxxxx, 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
XXX XXXXX
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:
Xxxxxx X. Xxxxx, 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
XXXXXX XXXXX
Number of Shares: 147,019
Percentage Interest: 23.5557%
