Exhibit 2(a)(4)
XXXXXX XXXXXXX INSTITUTIONAL FUND OF HEDGE FUNDS LP
AMENDMENT NO. 1 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP of XXXXXX XXXXXXX INSTITUTIONAL FUND OF HEDGE FUNDS LP, a limited
partnership formed under the laws of the State of Delaware (the "Partnership"),
is made as of this 25th day of August, 2003 by Xxxxxx Xxxxxxx Alternative
Investment Partners LP, a limited partnership formed under the laws of the State
of Delaware (the "General Partner").
W I T N E S S E T H:
WHEREAS, the General Partner is the general partner of the
Partnership;
WHEREAS, pursuant to Section 8.1 of the Amended and Restated Agreement
of Limited Partnership of the Partnership, dated as of July 1, 2002 (as it may
be amended, modified or otherwise supplemented from time to
time, the "Agreement"), the Agreement may be amended, in whole or in part, with
the approval of a majority of the Directors (including the vote of a majority of
the Independent Directors, but only if such vote is required by the 1940 Act),
except that any amendment also must be approved by a majority (as defined in the
0000 Xxx) of the outstanding voting securities of the Partnership if such vote
is required by the 1940 Act.
WHEREAS, on July 31, 2003, the Directors approved changes to the
Agreement which do not (1) increase the obligation of a Partner to make any
Capital Contribution; (2) reduce the Capital Account of a Partner; (3) modify
the events causing the dissolution of the Partnership or (4) alter the
provisions of (a) Section 5.6 of the Agreement relating to the General Partner's
Performance Incentive, (b) Section 8.1 of the Agreement relating to the material
amendment of the Agreement or (c) Section 3.10 of the Agreement relating to
indemnification;
WHEREAS, the General Partner desires to amend the Agreement to reflect
the changes to the Agreement approved by the Directors; and
WHEREAS, pursuant to Section 8.1(d) of the Agreement, the General
Partner has given prior written notice of this Amendment No. 1 to each Partner,
which notice set out a summary of this Amendment No. 1 and a statement that the
text of this Amendment No. 1 will be furnished to any Partner upon request.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending the Partnership to be legally bound hereby, the
General Partner hereby amends the Agreement as follows:
SECTION 1. Capitalized Terms. Unless otherwise defined herein, all
capitalized terms used in this Amendment No. 1 shall have the meanings ascribed
to such terms in the Agreement.
SECTION 2. Amendment to Section 2.11(d). Section 2.11(d) of the
Agreement is hereby deleted in its entirety and replaced by the following:
"(d) The status of a Director will terminate (1) if the Director dies; (2)
if the Director resigns as a Director; or (3) if the Director is removed in
accordance with Section 2.11(e) of this Agreement."
SECTION 3. Full Force and Effect. Other than as specifically set out
in this Amendment No. 1, all terms and conditions of the Agreement shall remain
in full force and effect. All references to the Agreement after the date of this
Amendment No. 1 shall automatically be deemed to include this Amendment No. 1,
and, accordingly, without limiting the generality of this sentence, it is
understood and agreed that the defined term "Agreement" includes, collectively,
the Agreement and this Amendment No. 1.
SECTION 4. Governing Law. The terms and provisions of this Amendment
No. 1 are governed by and will be construed under the laws of the State of
Delaware, including the Delaware Act, without regard to the conflict of law
principles of the State of Delaware.
SECTION 5. Headings. The headings in this Amendment No. 1 are included
for convenience of reference only and in no way define or delimit any of the
provisions of this Amendment No. 1 or otherwise affect their construction or
effect.
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, the General Partner has executed this Amendment
No. 1 as of the day and year first above written.
GENERAL PARTNER:
XXXXXX XXXXXXX ALTERNATIVE
INVESTMENT PARTNERS LP
By: Xxxxxx Xxxxxxx AIP GP LP, as its
General Partner
By: Xxxxxx Xxxxxxx Alternative
Investments Inc., as its General Partner
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
3
