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EXHIBIT 3.2
ASSIGNMENT OF GENERAL PARTNER INTEREST
AND AMENDMENT TO
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
XXXXXXXXXXX CAPITAL, L.P.
This Assignment of General Partner Interest and Amendment to the Amended
and Restated Agreement of Limited Partnership of Xxxxxxxxxxx Capital, L.P.,
dated as of November 4, 1997 (this "Assignment and Amendment Agreement"), is
entered into by and among Xxxxxxxxxxx Financial Corp., a Delaware corporation
and the sole general partner ("Opfin"), PIMCO Advisors L.P., a Delaware limited
partnership ("PALP"), and all other persons or entities who are or shall in the
future become, limited partners.
W I T N E S S E T H:
WHEREAS, Xxxxxxxxxxx Capital, L.P. (the "Partnership") has been formed as
a limited partnership under the Delaware Revised Uniform Limited Partnership
Act (6 Del.C. Section 17-101, et seq.) (the "Act") pursuant to a Certificate
of Limited Partnership of the Partnership, as filed with the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on May
15, 1987, (as amended, the "Certificate"), and an Agreement of Limited
Partnership of the Partnership, dated as of May 15, 1987 (as amended and
restated, and subsequently amended, the "Agreement");
WHEREAS, Opfin is the sole general partner of the Partnership;
WHEREAS, pursuant to that certain Contribution Agreement, dated as of
November 4, 1997, Opfin desired to assign, transfer and convey all of its
interest in the Partnership as a general partner of the Partnership (the
"General Partner Interest") to
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PALP, and Opfin desires to withdraw from the Partnership as a general partner of
the Partnership;
WHEREAS, PALP desires to acquire the General Partner Interest presently
held by Opfin and PALP desires to be admitted to the Partnership as a successor
general partner of the Partnership;
WHEREAS, Opfin and PALP desire to accomplish the foregoing in accordance
with the Agreement which Agreement expressly permits the consummation of the
foregoing transactions without any further act, vote or approval of any limited
partner of the Partnership; and
WHEREAS, the undersigned, being all of the partners of the Partnership, to
accomplish the foregoing, desire to amend the Agreement in the manner set forth
herein.
NOW, THEREFORE, the undersigned, in consideration of the premises,
covenants and agreements contained herein, do hereby agree as follows:
1. Assignment. Notwithstanding any provision in the Agreement to the
contrary, for value received, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Assignment and Amendment Agreement by
the parties hereto, Opfin does hereby assign, transfer and convey the General
Partner interest to PALP. Ofpin has made an Assignment Determination (as defined
in the Agreement) and a Tax Determination (as defined in the Agreement) prior
to the assignment and transfer described in this Section 1.
2. Admission. Notwithstanding any provision in the Agreement to the
contrary, PALP is hereby admitted to the Partnership as a general partner of the
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Partnership. The admission shall be effective upon the filing of an amendment
to the Certificate in the office of the Secretary of State which reflects the
fact that PALP is a general partner of the Partnership, and shall occur, and
for all purposes shall be deemed to have occurred, immediately prior to the
withdrawal of Opfin from the Partnership as a general partner of the
Partnership.
3. Withdrawal. Notwithstanding any provision in the Agreement to
the contrary, Opfin hereby withdraws from the Partnership as a general partner
of the Partnership. The withdrawal shall be effective upon the filing of an
amendment to the Certificate in the office of the Secretary of State which
reflects the fact that Opfin is not a general partner of the Partnership and
shall occur, and for all purposes shall be deemed to have occurred, immediately
after the admission of PALP to the Partnership as a general partner of the
Partnership.
4. Continuation. The parties hereto agree that following the
withdrawal of Opfin from the Partnership as a general partner of the
Partnership, PALP is authorized to and hereby agrees to continue the business
of the Partnership without dissolution.
5. Books and Records. PALP shall take all actions necessary under
the Act and the Agreement, to evidence the withdrawal of Opfin from the
Partnership as a general partner of the Partnership and the admission of PALP
to the Partnership as a general partner of the Partnership.
6. Future Cooperation. Each of the parties hereto agrees to
cooperate at all times and after the date hereof with respect to all of the
matters described herein, and to execute such further assignments, releases,
assumptions,
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amendments of the Agreement, notifications and other documents as may be
reasonably requested for the purpose of giving effect to, or evidencing or
giving notice of, the transactions contemplated by this Assignment and
Amendment Agreement.
7. Binding Effect. This Assignment and Amendment Agreement shall be
binding upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
8. Execution in Counterparts. This Assignment and Amendment Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
9. Agreement in Effect. Except as hereby amended, the Agreement shall
remain in full force and effect.
10. Governing Law. This Assignment and Amendment Agreement shall be
governed by, and interpreted in accordance with the laws of the State of
Delaware, all rights and remedies being governed by such laws, without regard
to its conflict of laws rules.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Amendment Agreement to be duly executed as of the day and year first above
written.
XXXXXXXXXXX FINANCIAL CORP.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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PIMCO ADVISORS L.P.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
LIMITED PARTNERS
All Limited Partners that have been, or
are hereafter, admitted as limited
partners of the Partnership, pursuant
to powers of attorney or other
authorizations recited in favor of or
granted to the General Partner
By: XXXXXXXXXXX FINANCIAL CORP.,
general partner
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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