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EXHIBIT 10.14
AMENDMENT NO. 2
TO
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
OF
XXXXXXXXXXX CAPITAL
This Amendment No. 2, dated as of November 4, 1997 (the "Amendment"), to
the Amended and Restated Partnership Agreement of Xxxxxxxxxxx Capital is made
and entered into by and between Xxxxxxxxxxx Financial Corp., a Delaware
corporation ("Opfin"), and Xxxxxxxxxxx Capital, L.P., a Delaware limited
partnership ("0p, L.P." and together with Opfin, the "Partners").
W I T N E S S E T H
WHEREAS, Xxxxxxxxxxx Capital, a Delaware general partnership (the
"Partnership"), was formed under the Delaware Uniform Partnership Law, 6 Del.
C. Section 1501, et seq., pursuant to the Partnership Agreement of the
Partnership, dated June 25, 1987 (the "Original Partnership Agreement");
WHEREAS, the Original Partnership Agreement was amended and restated by
the Amended and Restated Partnership Agreement of the Partnership, dated as of
March 14, 1991, and was further amended by Amendment No. 1 to the Amended and
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Restated Partnership Agreement, dated as of June 15, 1994 (as heretofore
amended, the "Partnership Agreement");
WHEREAS, the Partners are the only partners of the Partnership; and
WHEREAS, the Partners desire to further amend the Partnership Agreement.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
1. Amendments.
A. Section 6.03(a) of the Partnership Agreement is hereby
amended by adding the following language:
Notwithstanding the foregoing, if Opfin transfers all of its
interest in the Partnership during any Fiscal Quarter of the
Partnership,
(i) its share of the Net Income or Net Loss of the
Partnership for (w) each full month, if any, in such
Fiscal Quarter prior to the month in which such transfer
occurs, shall be Opfin's Percentage Interest as of the
last day of such month of the actual Net Income or Net
Loss of the Partnership for such month and (x) the month
in which the transfer occurs, shall be Opfin's
Percentage Interest as of the close of the day
immediately preceding the day of transfer of that
portion of the actual Net Income or Net Loss of the
Partnership for
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such month that the number of days in such month prior
to the day of transfer bears to the total number of days
in such month; and
(ii) Opfin's transferee shall be allocated as its share of
the Net Income or Net Loss of the Partnership for the
Fiscal Quarter of transfer (y) for the month in which
the transfer occurs, its Percentage Interest, determined
as of the close of the day of transfer, of that portion
of the actual Net Income or Net Loss of the Partnership
for such month that the number of days in such month
beginning on and following the day of transfer bears to
the total number of days in such month and (z) for each
full month, if any, in such Fiscal Quarter after the
month in which such transfer occurs, its Percentage
Interest as of the last day of such month of the actual
Net Income or Net Loss of the Partnership for such
month.
B. Section 6.03(b) of the Partnership Agreement is hereby
amended by deleting the current text in its entirety and substituting in lieu
thereof the following:
(b) Except as provided in Sections 6.03(a), 6.03(c) and
6.03(d) hereof, the allocation of Net Income and Net
Loss, as to each month, shall be in accordance with a
Partner's Percentage Interest as of the last day of such
month.
C. Section 11.03(a) of the Partnership Agreement is hereby
amended by adding the following language:
In the case of a transfer described in the second sentence of
Section 6.03(a), the profits and losses of the Partnership for
the Fiscal Quarter of transfer to be so allocated between the
assignor and the assignee shall be computed in accordance with
the provisions thereof.
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D. Section 11.03(c) of the Partnership Agreement is amended by
adding the following language:
provided, however, that, in the case of a transfer described in
the second sentence of Section 6.03(a), the "effective date"
of the assignment shall be the day before the day of transfer.
2. Successors and Assigns. This Amendment shall be binding upon, and
shall enure to the benefit of, the parties hereto and their respective
successors and assigns.
3. Full Force and Effect. Except to the extent modified hereby, the
Partnership Agreement shall remain in full force and effect.
4. Counterparts. This Amendment may be executed in counterparts, all of
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all such parties are not signatories to the original or
same counterpart.
5. Choice of Law. This Amendment shall be interpreted in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first set forth above.
XXXXXXXXXXX FINANCIAL CORP.
BY: [SIG]
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Name:
Title:
XXXXXXXXXXX CAPITAL, L.P.
By: Xxxxxxxxxxx Financial Corp.
By: [SIG]
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Name:
Title:
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