EXHIBIT 3.6
SECOND AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AIRLEASE LTD. A CALIFORNIA LIMITED PARTNERSHIP
This Second Amendment to Amended and Restated Agreement of Limited
Partnership of Airlease Ltd., A California Limited Partnership (this
"Amendment"), is made and entered into as of the 17th day of March, 2004.
WHEREAS, the Partners previously entered into an Amended and Restated
Agreement of Limited Partnership dated as of October 10, 1986, as amended on
December 12, 1988 (the "Original Partnership Agreement");
WHEREAS, the Partners desire to amend the Original Partnership
Agreement as specified in this Amendment; and
WHEREAS, Article 18 of the Original Partnership Agreement provides that
it may be amended if certain conditions are satisfied, and all such conditions
have been satisfied with respect to this Amendment;
NOW, THEREFORE, for and in consideration of the foregoing, and of the
covenants and agreements hereinafter set forth, it is hereby agreed as follows:
1. DEFINED TERMS. All capitalized terms used but not defined
herein shall have the meanings given to such terms in the Original Partnership
Agreement, as amended by this Amendment.
2. DELETION OF "ASSIGNEE." The General Partner shall be
authorized to delete the definition of "Assignee" from Article 1 of the
Agreement and to delete all references in the Agreement to any "Assignee," which
term shall then be of no further force and effect.
3. "TRANSFER APPLICATION." The General Partner shall be
authorized to delete the definition of "Transfer Application" included in
Article 1 of the Agreement and to replace it in its entirety with the following
definition:
TRANSFER APPLICATION:. An application and agreement for
transfer of Depositary Units in the form set forth on the back of the
Depositary Receipt or in a form substantially to the same effect in a
separate instrument by which (a) a proposed transferee of Depositary
Units requests admission to the Partnership as a Substituted Limited
Partner, agrees to be bound by the terms and conditions of this
Agreement and the Depositary Agreement, grants a power of attorney to
the General Partner pursuant to Article 17, and represents and warrants
to the Partnership that he is a United States Citizen or Resident Alien
and (b) a proposed transferee of Depositary Units makes representations
regarding the manner of transfer of such Depositary Units as the
General Partner deems necessary to avoid taxation of the Partnership as
a corporation for federal income tax purposes. The form and content of
the Transfer Application may be changed from time to time in the sole
discretion of the General Partner.
4. AMENDMENT OF SECTION 3.3(B). The General Partner shall be
authorized to delete Sections 3.3(B)(1) and 3.3(B)(2) of the Agreement in their
entirety and to replace them with the following Section 3.3(B), to read in its
entirety as follows:
(B) After December 31, 1997, all Cash Available From Sale or
Refinancing shall be distributed pursuant to Section 10.3(C), provided
that if the General Partner determines that it would be in the
Partnership's best interest, Cash Available From Sale or Refinancing
may be used to repay indebtedness.
5. AMENDMENT OF SECTION 4.1(FF). The General Partner shall be
authorized to delete Section 4.1 (ff) of the Agreement in its entirety and to
replace it with the following Section 4.1 (ff) to read in its entirety as
follows:
(ff) To sell any and all Partnership Assets on terms and
conditions determined by the General Partner, including a sale of all
or substantially all of the Partnership Assets.
6. AMENDMENT TO END OF SECTION 4.1. The General Partner shall be
authorized to add a new Section 4.1(ii) to the end of Section 4.1, to read in
its entirety as follows:
(ii) To impose such restrictions on the transfer of Units as
the General Partner deems necessary or appropriate to prevent the
Partnership from being taxed as a corporation for federal income tax
purposes.
7. AMENDMENT OF SECTION 7.9(A)(2). The General Partner shall be
authorized to delete Section 7.9 (A)(2) of the Agreement in its entirety and to
replace it with the following Section 7.9 (A)(2) to read in its entirety as
follows:
(2) Dissolution, discontinuation, or material alteration of
the business of the Partnership, provided that no approval is required
for dissolution following the sale of all or substantially all of the
Partnership Assets;
8. AMENDMENT OF SECTION 10.3.
a. The General Partner shall be authorized to delete Section
10.3 (B) of the Agreement in its entirety.
b. The General Partner shall be authorized to delete Section
10.3(C) of the Agreement in its entirety and to replace it with the
following Section 10.3 (C) to read in its entirety as follows:
(C) After December 31, 1997, subject to Section 3.3(B), any
Cash Available From Sale or Refinancing shall be distributed 99% to the
Unitholders and 1% to the General Partner.
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9. CHANGES TO TRANSFER PROVISIONS IN ARTICLE 13.
a. The General Partner shall be authorized to delete Section
13.4(B) of the Agreement in its entirety and to replace it with the
following Section 13.4(B) to read in its entirety as follows:
(B) A transferee who has completed and delivered a Transfer
Application shall be deemed (i) to have agreed to be bound by the terms
and conditions of the Depositary Agreement and the Depositary Receipt,
(ii) to have requested admission as a Substituted Limited Partner with
respect to the Units transferred, (iii) to have agreed to comply with
and be bound by this Agreement, whether or not such transferee is
admitted as a Substituted Limited Partner and to execute any document
that the General Partner may reasonably require to be executed in
connection with the transfer or with the admission of such transferee
as a Substituted Limited Partner pursuant to Article 14 with respect to
the Depositary Units transferred, (iv) to have represented and
warranted that such transferee is a United States Citizen or Resident
Alien and has authority to enter into the Depositary Agreement and this
Agreement, (v) to have made representations regarding the manner of
transfer of such Depositary Units as the General Partner deems
necessary to avoid taxation of the Partnership as a corporation for
federal income tax purposes, (vi) to have appointed the General Partner
his attorney-in-fact to execute any document that the General Partner
may deem necessary or appropriate to be executed in connection with the
transfer and/or his admission as a Substituted Limited Partner with
respect to the Depositary Units transferred, (vii) to have given the
power of attorney set forth in Article 17, and (viii) to have given the
consents and waivers contained in this Agreement. Unless and until
admitted as a Substituted Limited Partner pursuant to Article 14 with
respect to Depositary Units transferred pursuant to this Section 13.4,
no transferee shall have any rights with respect to the Partnership.
Except as specifically provided in this Agreement, a transferee shall
not be treated as or have the fights of a Limited Partner.
b. The General Partner shall be authorized to delete Section
13.4(E) of the Agreement in its entirety and to replace it with the
following Section 13.4(E) to read in its entirety as follows:
(E) Any holder of a Unit or a Depositary Receipt (including a
transferee thereof conclusively shall be deemed to have agreed to comply
with and be bound by all terms and conditions of this Agreement, with the
same effect as if such holder had executed a Transfer Application, whether
or not such holder in fact has executed such a Transfer Application.
10. CHANGES TO PARTNER ADMISSION PROCEDURES IN ARTICLE 14. The
General Partner shall be authorized to delete Section 14.1(A) of the Agreement
in its entirety and to replace it with the following Section 14.1(A) to read in
its entirety as follows:
(A) Any person shall have the right to request admission as a
Substituted Limited Partner subject to the conditions of and in the
manner permitted by the terms of this Agreement. By transfer of a
Depositary Receipt, the transferor is deemed to have given the
transferee the right to request admission as a Substituted Limited
Partner subject to the conditions of and in the manner permitted under
this Agreement. Each transferee of a Depository Receipt (including any
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Person, such as a broker, dealer, bank, trust company, clearing
corporation, other nominee holder, or an agent of any of the foregoing,
acquiring such Depositary Unit for the account of another Person) shall
apply to become a Substituted Limited Partner with respect to
Depositary Units transferred to such Person by executing and delivering
a Transfer Application at the time of such transfer. Such transferee
shall become a Substituted Limited Partner with respect to Depositary
Units transferred at such time as the General Partner consents thereto,
which consent may be given or withheld in the General Partner's sole
discretion. Unless the Depositary is notified to the contrary, the
General Partner shall be deemed to have given its consent to the
admission of a transferee as a Substituted Limited Partner, and such
admission shall be effective, at and from the close of business on the
last business day of the calendar month in which a properly executed
Transfer Application is received by a Transfer Agent.
11. EXHIBIT 1 TO THE AGREEMENT. The General Partner shall be
authorized to amend the form of Transfer Application included in Exhibit 1 to
the Agreement by replacing it with Attachment 1 hereto. The General Partner
shall be authorized to change the form and content of Attachment 1 from time to
time in its sole discretion.
12. AUTHORITY OF GENERAL PARTNER TO TAKE CERTAIN ACTION. The
General Partner shall be authorized to make any or all of the foregoing
amendments. In addition, if any amendment or proposed amendment to partnership
tax law is enacted or pending, the General Partner is authorized to take such
other actions (including amending the Agreement or any amendment thereto) which
the General Partner determines are in the best interests of the Partnership and
the Limited Partners and which are consistent with the intent of the
Restrictions on Unit Transferability and Portfolio Runoff, as defined in the
Consent Solicitation Statement dated June 24, 1997 in light of any change or
proposed change in partnership tax law from the law in existence on June 1,
1997. Without limiting the authority of the General Partner, the General Partner
is authorized to further amend the Agreement and to take any other action
necessary or appropriate to carry out the intent of the foregoing provisions of
this Amendment.
13. AGREEMENT IN FULL FORCE AND EFFECT. Except as amended hereby,
the Agreement shall continue in full force and effect.
14. GOVERNING LAW. This Amendment shall be governed by and
construed under the laws of the State of California.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the day and year first written above.
GENERAL PARTNER:
AIRLEASE MANAGEMENT SERVICES, INC.
By: /s/ XXXXX X. XXXXXX
__________________________________
Name: Xxxxx X. Xxxxxx
Title: Chairman, Chief Executive
Officer and President
LIMITED PARTNERS (pursuant to power-
of-attorney to the General Partner)
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ATTACHMENT 1
NO ASSIGNMENT OF THE DEPOSITARY UNITS EVIDENCED BY A DEPOSITARY RECEIPT
WILL BE REGISTERED ON THE BOOKS OF THE DEPOSITARY OR OF AIRLEASE LTD., A
CALIFORNIA LIMITED PARTNERSHIP (THE "PARTNERSHIP"), UNLESS AN APPLICATION FOR
TRANSFER OF DEPOSITARY UNITS HAS BEEN EXECUTED BY A TRANSFEREE WHO CERTIFIES
THAT THE TRANSFEREE, AND IF THE TRANSFEREE IS HOLDING A DEPOSITARY UNIT FOR
ANOTHER PERSON, THAT TO THE BEST KNOWLEDGE OF THE TRANSFEREE SUCH OTHER PERSON,
IS A UNITED STATES CITIZEN OR RESIDENT ALIEN (AS THOSE TERMS ARE DEFINED IN THE
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF THE PARTNERSHIP), ON
THE FORM OF APPLICATION SET FORTH BELOW.
APPLICATION FOR TRANSFER OF DEPOSITARY UNITS
The undersigned ("Applicant") hereby applies for transfer to the name
of the Applicant of the Depositary Units evidenced by a Depositary Receipt and
hereby certifies to Airlease Ltd., A California Limited Partnership (the
"Partnership"), and the Depositary that the Applicant (including, to the best of
Applicant's knowledge, any person for whom the Applicant will hold the
Depositary Units) is a United States Citizen or Resident Alien (as those terms
are defined in the Amended and Restated Agreement of Limited Partnership of the
Partnership (the "Partnership Agreement")) .
The Applicant further certifies to the Partnership that:
(Check one)
_____ (a) The Applicant has acquired the Depositary Units by a
"transfer not involving trading" within the meaning of Internal Revenue Service
Notice 88-75.
_____ (b) The Applicant has acquired the Depositary Units in
compliance with the "two percent" safe harbor described in Internal Revenue
Service Notice 88-75.
_____ (c) The Applicant has acquired the Depositary Units in a
qualified "matching service" transaction described in Internal Revenue Service
Notice 88-75.
THE TRANSFER OF DEPOSITARY UNITS PURSUANT TO THIS TRANSFER APPLICATION IS
SUBJECT TO A DETERMINATION BY THE GENERAL PARTNER IN ITS SOLE DISCRETION THAT
SUCH TRANSFER WAS MADE IN ACCORDANCE WITH INTERNAL REVENUE SERVICE NOTICE 88-75
AND WILL NOT CAUSE THE AGGREGATE PERCENTAGE OF DEPOSITARY UNITS TRANSFERRED
DURING THE CALENDAR YEAR TO EXCEED THE ALLOWABLE AMOUNT OR OTHERWISE CAUSE THE
DEPOSITARY UNITS TO BE TREATED AS TRADED ON AN ESTABLISHED SECURITIES MARKET OR
READILY TRADABLE ON A SECONDARY MARKET (OR THE SUBSTANTIAL EQUIVALENT THEREOF)
AS DEFINED IN SECTION 7704(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
The Applicant (i) agrees to be bound by the terms and conditions of the
Depositary Agreement and the Depositary Receipt, (ii) requests admission as a
Substituted Limited Partner in the Partnership and agrees to be bound by the
Partnership Agreement, and (iii) appoints the General Partner of the Partnership
his attorney to execute, swear to, acknowledge and file any document necessary
or appropriate for the Applicant's admission as a Substituted Limited Partner in
the Partnership and as a party to the Partnership Agreement, if consent to such
admission is given by the General Partner in its sole discretion.
Dated
___________________ ____________________________________________________
Signature of Transferee
(Must Be United States Citizens or Resident Alien)
_________________________ ____________________________________________________
Social Security or other Residence Address
identifying number
_________________________
Purchase Price (including
Commissions, if any)
Type of Entity (check one):
___ Individual ___ Partnership ___ Corporation ___ Trust ___ Other (Specify)
Nationality (check one):
___ U.S. Citizen or Resident Alien ___ Foreign Corporation or Non-resident
Alien
If the Applicant is a broker, dealer, bank, trust company, clearing
corporation, other nominee holder or an agent of any of the foregoing, and is
holding for the account of any other person, this application should be
completed by an officer thereof, or, in the case of a broker or dealer, by a
registered representative who is a member of a registered national securities
exchange, or a member of the National Association of Securities Dealers, inc.,
or, in the case of any other nominee holder, a person performing a similar
function. If the Applicant is a broker, dealer, bank, trust company, clearing
corporation, other nominee holder or an agent of any of the foregoing, the above
certification as to any person for whom the Applicant will hold the Depositary
Units shall be made to the best of the Applicant's knowledge.
