SECOND AMENDMENT
TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
AIR PARTNERS, L.P.
This Second Amendment ("Amendment") to the Amended and Restated Limited
Partnership Agreement of Air Partners, L.P. is entered into effective as of
the 7th day of August, 1995 (the "Second Amendment Effective Date") by and
among 1992 Air GP, a Texas general partnership ("1992 Air") and Air II
General, Inc., a Texas corporation ("Air II") as the general partners, and
each person executing a counterpart Limited Partner Signature Page as the
limited partners.
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"). The Restated
Agreement as amended by the First Amendment is referred to herein as the
"Current Agreement").
B. Air Canada has the opportunity to purchase additional Securities
(as defined in the Restated Agreement) in New Continental (as defined in the
Restated Agreement) and has made such opportunity available to the Partnership
as more fully described herein.
C. Certain of the parties hereto desire to provide funding in order
for the Partnership to purchase the additional Securities described in B above
for the benefit of those parties who fund such purchase.
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. Pursuant to Recital B above, the Partnership has the opportunity
to acquire the additional Class B shares in New Continental at the prices set
forth below:
Shares Price Per Share Total Cost
324,453 $19.236 $6,241,178
3. The Partnership desires to purchase the Securities described in
Section 2 above. Without regard to the limitations set forth in Section
3.01(b) of the Restated Agreement, each of the undersigned listed as a
contributing partner has agreed to contribute, in cash or by wire transfer of
immediately available funds, to the Partnership as Additional Capital
Contributions, on the Second Amendment Effective Date, its pro rata share, by
the Percentages shown on Exhibit A hereto, of the amount set forth in Section
2 above as detailed on Exhibit A attached hereto and made a part hereof. The
Securities acquired hereunder shall be subject to all of the provisions of the
Restated Agreement (as amended hereto) except that they shall be treated for
all purposes as a new Securities Type owned solely by those persons making
contributions hereunder notwithstanding the fact that such Securities are of
the same type as certain of the Initial Securities. The amounts designated
under the column "Investment Capital" on Exhibit A shall be treated as
Investment Capital contributed on the date contributed for all purposes. The
Partners shall receive all rights in the Securities acquired hereunder as are
provided for securities of the similar Initial Securities Type under the
Restated Agreement; provided that, the newly acquired Securities shall at all
times be considered as a separate Securities Type and shall be treated
separate from any other Securities held by the Partnership. 1992 Air is
hereby authorized to enter into any agreements with Air Canada and New
Continental to reflect the foregoing.
4. In the event one or more of the current Partners of the Partnership
decline to participate in the opportunity provided in this Amendment, such
opportunity shall be offered to each of the other Partners on a pro rata basis
(by the percentages shown on Exhibit A). In the event not all of such amount
is taken by current Partners, then the General Partner shall be permitted,
pursuant to Section 5.04(a)(ii) of the Current Agreement, to admit one or more
new Limited Partners to the Partnership to participate solely with respect to
the acquisition described herein (in the amounts to be shown on such
Partner(s) Limited Partner Signature Pages and on Exhibit A hereto). Any such
New Partner hereby agrees by its execution hereof to be bound by the Current
Agreement, as amended hereby, and further acknowledges that it has no claim to
any of the Securities acquired by the Partnership prior to the Second
Amendment Effective Date. In the event not all of the Partners are funding
partners, then once the final funding is determined, the General Partner shall
prepare a revised Exhibit A hereto and shall distribute it to each of the
Partners.
5. Notwithstanding anything to the contrary contained in the Restated
Agreement, the Management Fee payable with respect to the Securities acquired
hereunder shall be borne only by those persons participating in the purchase
of such additional Securities and shall accrue from the date hereof and be
payable only from proceeds and income generated by the Partnership, and shall
not be payable from any Capital Contributions of the Partners.
6. 1992 Air shall, upon any disposition of Class B Common Stock of the
Partnership, specifically track the Securities being disposed of in order to
determine whether such Securities are part of the Securities acquired pursuant
to the Restated Agreement and/or the First Amendment and/or this Amendment so
that the proper rights with respect to such Securities, including the right to
distributions, are provided to the appropriate Partners.
7. Except as amended hereby, the Current Agreement shall remain in full
force and effect, and each person executing this Amendment hereby acknowledges
the same.
8. Those Partners executing this Agreement who are designated as
agreeing to this Amendment but not participating in the acquisition hereby
agree to the actions taken hereunder but are not actually participating in the
acquisition of the additional Securities.
9. 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.
In witness whereof, each of the undersigned has executed this Amendment
to be effective as of the Amendment Effective Date.
GENERAL PARTNERS
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
general partner
By: /s/ 1992 Air, Inc.
Title:
AIR II GENERAL, INC., a Texas corporation
By: /s/ Air II General, Inc.
Title:
LIMITED PARTNERS SIGNATURE PAGES INTENTIONALLY OMITTED
EXHIBIT A
INVESTMENT INITIAL
PARTNER CAPITAL APPORTIONMENT
1992 Air GP $ 62,420. 1.0001%
Air II General 6,241. 0.1000%
Xxxxx Xxxxxxxxx 440,900. 7.0644%
Bonderman Family LP 124,751. 1.9988%
Xxxxx X. Xxxxxxxx 0. 0.0000%
DHL Management Svc. 884,114. 13.5249%
Lectair Partners 714,048. 11.4409%
Sun America 799,082. 12.8034%
Xxx Xxxxx 532,711. 8.5354%
American General 0. 0.0000%
Xxxxxx Xxxxx 1,331,811. 21.3391%
Conair Limited Partners 137,590. 2.2046%
Bondo Air 1,248,505. 19.9883%
$6,242,174. 100.0000%
THIRD AMENDMENT
TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
AIR PARTNERS, L.P.
This Third Amendment ("Amendment") to the Amended and Restated Limited
Partnership Agreement of Air Partners, L.P. is entered into effective as of
the 22nd day of May, 1997 (the "Third Amendment Effective Date") by and among
1992 Air GP, a Texas general partnership ("1992 Air") and Air II General,
Inc., a Texas corporation ("Air II") as the general partners, and each person
executing a counterpart Limited Partner Signature Page as the limited
partners.
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") and that certain
Second Amendment to the Restated Agreement dated as of August 7, 1995. The
Restated Agreement as amended by the First Amendment and the Second Amendment
is referred to herein as the "Current Agreement".
B. The Partnership currently anticipates the sale of certain Securities
held by it, and the Partners desire to make certain provisions with respect
thereto.
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. The Partners agree that in connection with the sale of Securities
and distributions related thereto to occur shortly after the Third Amendment
Effective Date, upon the election of a Limited Partner, a deemed distribution
of Class A Common Stock of New Continental will be made under Section 4.09(e)
with respect to such Limited Partner in an amount, which when made in
connection with the cash distributions to be made to such Limited Partner,
would equal (based on current Values) the amount to be distributed to the
General Partner under Section 4.09(e)(iv) as a result of such cash and stock
distribution, and such Class A Common Stock of New Continental shall then be
distributed to the General Partner or designated as Retained Shares by the
General Partner as its share of the 4.09(e)(iv) distribution, and all of the
remaining cash left for distribution with respect to such Limited Partner
under Section 4.09(e)(iv) shall be distributed to such Limited Partner.
3. Except as amended hereby, the Current Agreement shall remain in full
force and effect, and each person executing this Amendment hereby acknowledges
the same.
4. 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.
In witness whereof, each of the undersigned has executed this Amendment
to be effective as of the Third Amendment Effective Date.
GENERAL PARTNERS
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
general partner
By: /s/ 1992 Air, Inc.
Title:
AIR II GENERAL, INC., a Texas corporation
By: /s/ Air II General, Inc.
Title:
[LIMITED PARTNERS SIGNATURE PAGES INTENTIONALLY OMITTED]
