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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM 8-K/A
AMENDMENT TO
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
--------------------
Date of Report (Date of Earliest Event Reported): November 4, 1997
OPPENHEIMER CAPITAL, L.P.
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(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-9597 13-3412614
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
800 NEWPORT CENTER DRIVE, NEWPORT BEACH, CA 92660
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including Area Code: (714) 717-7022
Oppenheimer Tower, One World Financial Center,
200 Liberty Street, New York, New York 10281
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(Former Name or Former Address, if Changed Since Last Report)
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This Amendment to Current Report on Form 8-K/A amends that certain
Current Report on Form 8-K filed by Oppenheimer Capital, L.P. ("Opcap LP") on
November 6, 1997.
ITEM 1.
As previously reported in the Current Report on Form 8-K filed on
November 6, 1997 by Opcap LP, on November 4, 1997, PIMCO Advisors L.P. ("PIMCO
Advisors") acquired the investment advisory assets of Oppenheimer Group, Inc.
("Opgroup"), including a 32.4% managing general partner interest in Oppenheimer
Capital, the sole one percent general partner interest in Opcap LP, one percent
general partner interests in three subsidiaries of Oppenheimer Capital and the
ownership of Value Advisors LLC, a newly formed limited liability company
holding eight closed-end investment fund management contracts formerly held by
Advantage Advisers, Inc. (the "Opgroup Transaction"). As consideration for these
assets, the Opgroup stockholders received 2,119,608 Class A units of limited
partner interest in PIMCO Advisors (the "PIMCO Advisors Class A LP Units"),
rights (the "Opgroup Exchange Rights") to acquire up to 6,900,000 additional
PIMCO Advisors Class A LP Units (or, after December 31, 1997, the same number
of units of limited partner interest in Opcap LP ("Opcap LP Units")) at
$33 1/3 per unit upon exchange of 6% Senior Notes due December 1, 2037 of
Opgroup (the "Opgroup Notes") and rights to require PIMCO Advisors to
repurchase some or all of these units for $25.50 per unit (the "Opgroup Put
Rights").
PIMCO Advisors acquisition of Opgroup's investment advisory assets in
the Opgroup Transaction was accomplished as follows:
(i) Immediately prior to the transaction, Opgroup redeemed
certain shares of its outstanding stock in exchange for (A) $244
million in available cash, (B) $150 million in Opgroup Notes and (C) an
$80 million face amount Certificate of Long-Term Indemnity Indebtedness
(subject to reduction upon the occurrence of certain indemnity
obligations with respect to the investment management assets), which
under certain circumstances converts into an equal principal amount of
Opgroup Notes. The Opgroup Notes are limited in recourse to the assets
of Opgroup.
(ii) Following the redemption, a newly-formed, wholly-owned
limited liability company subsidiary of PIMCO Advisors merged with and
into Opgroup. In the merger, Opgroup became a subsidiary of PIMCO
Advisors, and the Opgroup stockholders received 2,119,608 PIMCO
Advisors Class A LP Units, the Opgroup Exchange Rights, and the Opgroup
Put Rights. The Opgroup stockholders also received certain registration
rights with respect to these units.
(iii) Immediately following the merger, Opgroup, then a
subsidiary of PIMCO Advisors, caused its subsidiary Oppenheimer
Financial Corp. ("Opfin") to contribute (i) the ownership of Value
Advisors LLC and the sole one percent general partner interest in
Opcap LP and then (ii) Opfin's 32.4% managing general partner interest
in Oppenheimer Capital and the one percent general partner interests in
three subsidiaries of Oppenheimer Capital to Value Advisors LLC (then a
subsidiary of PIMCO Advisors). In exchange for these contributions,
Opfin received 6,000,000 Class C units of limited partner interest (the
"PIMCO Advisors Class C LP Units"). Each PIMCO Advisors Class C LP Unit
is entitled to the same proportionate share of profits, losses and
distributions as a PIMCO Advisors Class A LP Unit, but with a maximum
distribution of $3.00 per year, or $0.75 per quarter subject to a
catch-up on an annual basis. In connection with this transaction, Opcap
LP adopted an amendment to its partnership agreement converting the one
percent general partner interest into a one-one hundredth of one
percent general partner interest, with the remaining interest converted
into Opcap LP Units. PIMCO Advisors then sold the general partner
interest in Opcap LP to PIMCO Partners, G.P., the general partner of
PIMCO Advisors, for $80,000.
ITEM 5.
On November 10, 1997, Richard Buzby filed an action on behalf of a
purported class of limited partners of Opcap LP against PIMCO Advisors and
certain individuals associated with the previous general partner of Opcap LP in
the Court of Chancery of the State of Delaware, New Castle County. The
complaint alleges, among other things, various breaches of fiduciary duty,
conflicts of interest and unfair dealing in connection with the previously
disclosed proposed merger of Oppenheimer Capital with a subsidiary of PIMCO
Advisors (the "Oppenheimer Capital Merger"). The complaint seeks compensatory
and/or recessionary money damages or, alternatively, injunctive relief or
rescission of the transactions. Since that date, certain other complaints have
been filed in the states of Delaware and New York, making similar allegations.
These cases are expected to be consolidated in the Court of Chancery of the
State of Delaware. PIMCO Advisors and Opcap LP believe the suits are without
merit, and intend to contest them vigorously.
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ITEM 7.
(c) Exhibits
Exhibit No. Description of Exhibits
----------- -----------------------
3.1 Amendment to Amended and Restated Agreement of Limited
Partnership of Oppenheimer Capital, L.P. dated November 4,
1997
3.2 Assignment of General Partner Interest and Amendment to Amended
and Restated Agreement of Limited Partnership of Oppenheimer
Capital, L.P. dated November 4, 1997
3.3 Assignment of General Partner Interest and Amendment to
Amended and Restated Agreement of Limited Partnership of
Oppenheimer Capital, L.P. dated November 4, 1997
10.1 Agreement and Plan of Merger dated November 4, 1997
(incorporated by reference to Exhibit 10.1 to that certain
Amendment to Current Report on Form 8-K/A filed by PIMCO
Advisors on November 20, 1997)
10.2 Put Right dated November 4, 1997 (incorporated by reference to
Exhibit 10.2 to that certain Amendment to Current Report on
Form 8-K/A filed by PIMCO Advisors on November 20, 1997)
10.3 Exchange Right dated November 4, 1997 (incorporated by
reference to Exhibit 10.3 to that certain Amendment to Current
Report on Form 8-K/A filed by PIMCO Advisors on November 20,
1997)
10.4 Note Agreement dated November 4, 1997 (incorporated by
reference to Exhibit 10.4 to that certain Amendment to Current
Report on Form 8-K/A filed by PIMCO Advisors on November 20,
1997)
10.5 Contribution Agreement dated November 4, 1997 (incorporated by
reference to Exhibit 10.5 to that certain Amendment to Current
Report on Form 8-K/A filed by PIMCO Advisors on November 20,
1997)
10.6 Certificate of Long Term Indemnity Indebtedness dated November
4, 1997 (incorporated by reference to Exhibit 10.6 to that
certain Amendment to Current Report on Form 8-K/A filed by
PIMCO Advisors on November 20, 1997)
10.7 Registration Rights Agreement dated November 4, 1997
(incorporated by reference to Exhibit 10.6 to that certain
Amendment to Current Report on Form 8-K/A filed by PIMCO
Advisors on November 20, 1997)
3
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: November 20, 1997 OPPENHEIMER CAPITAL, L.P.
/s/ ROBERT M. FITZGERALD
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Robert M. Fitzgerald
Chief Financial Officer
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit No. Description of Exhibits Numbered Page
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<S> <C> <C>
3.1 Amendment to Amended and Restated Agreement of Limited
Partnership of Oppenheimer Capital, L.P. dated November 4,
1997
3.2 Assignment of General Partner Interest and Amendment to Amended
and Restated Agreement of Limited Partnership of Oppenheimer
Capital, L.P. dated November 4, 1997
3.3 Amendment to Amended and Restated Agreement of Limited
Partnership of Oppenheimer Capital, L.P. dated November 4, 1997
3.4 Assignment of General Partner Interest and Amendment to
Amended and Restated Agreement of Limited Partnership of
Oppenheimer Capital, L.P. dated November 4, 1997
10.1 Agreement and Plan of Merger dated November 4, 1997
(incorporated by reference to Exhibit 10.1 to that certain
Amendment to Current Report on Form 8-K/A filed by PIMCO
Advisors on November 20, 1997)
10.2 Put Right dated November 4, 1997 (incorporated by reference to
Exhibit 10.2 to that certain Amendment to Current Report on
Form 8-K/A filed by PIMCO Advisors on November 20, 1997)
10.3 Exchange Right dated November 4, 1997 (incorporated by
reference to Exhibit 10.3 to that certain Amendment to Current
Report on Form 8-K/A filed by PIMCO Advisors on November 20,
1997)
10.4 Note Agreement dated November 4, 1997 (incorporated by
reference to Exhibit 10.4 to that certain Amendment to Current
Report on Form 8-K/A filed by PIMCO Advisors on November 20,
1997)
10.5 Contribution Agreement dated November 4, 1997 (incorporated by
reference to Exhibit 10.5 to that certain Amendment to Current
Report on Form 8-K/A filed by PIMCO Advisors on November 20,
1997)
10.6 Certificate of Long Term Indemnity Indebtedness dated November
4, 1997 (incorporated by reference to Exhibit 10.6 to that
certain Amendment to Current Report on Form 8-K/A filed by
PIMCO Advisors on November 20, 1997)
10.7 Registration Rights Agreement dated November 4, 1997
(incorporated by reference to Exhibit 10.6 to that certain
Amendment to Current Report on Form 8-K/A filed by PIMCO
Advisors on November 20, 1997)
</TABLE>
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EXHIBIT 3.1
AMENDMENT NO.
TO
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
OPPENHEIMER CAPITAL, L.P.
This Amendment No. , dated as of November 4, 1997 (the "Amendment"), to
the Amended and Restated Agreement of Limited Partnership of Oppenheimer
Capital, L.P. (the "Partnership") is made and entered into by Oppenheimer
Financial Corp., a Delaware corporation ("Opfin"), as General Partner.
W I T N E S S E T H
WHEREAS, the Partnership was formed by filing a Certificate of Limited
Partnership with the office of the Secretary of State of the State of Delaware
on May 15, 1987;
WHEREAS, the agreement of limited partnership was amended and restated
in its entirety in the Amended and Restated Agreement of Limited Partnership of
the Partnership, dated as of March 14, 1991 (as heretofore amended, the
"Partnership Agreement"); and
WHEREAS, Opfin, as the General Partner, has determined, pursuant to
Sections 16.01(d)(i) and 16.01(d)(ii) of the Partnership Agreement, that it is
in the best interests
<PAGE> 2
of the Partnership to amend further the Partnership Agreement, which amendments
may be made by Opfin, as the General Partner, without the approval of any other
partner of the Partnership.
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants hereinafter set forth, it is hereby agreed as follows:
1. Amendments.
A. Section 6.03 of the Partnership Agreement is hereby amended
by adding the following language:
If the General Partner transfers all of its interest in the
Partnership during any Fiscal Period of the Partnership, (i) the
former General Partner's share of the Net Income or Net Loss of
the Partnership for the Fiscal Period in which the transfer
occurs shall be that portion of the General Partner's 1%
allocable share of the actual Net Income or Net Loss of the
Partnership for such Fiscal Period that the number of days in
such Fiscal Period prior to the day of transfer bears to the
total number of days in such Fiscal Period; and (ii) the new
General Partner's share of the Net Income or Net Loss of the
Partnership for the Fiscal Period of transfer shall be that
portion of the General Partner's 1% share of the actual Net
Income or Net Loss of the Partnership for such Fiscal Period
that the number of days in such Fiscal Period beginning on and
following the day of transfer bears to the total number of days
in such Fiscal Period.
B. Section 13.02(b) of the Partnership Agreement is hereby
Amended by adding the following language:
In the case of a transfer described in the last sentence of
Section 6.03, however, the transfer shall be considered
effective as of the day before the day
2
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of transfer and the profits and losses of the Partnership for
the Fiscal Period of transfer shall be allocated between the
former General Partner and the new General Partner in accordance
with the provisions thereof.
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.
3
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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of
the date first set forth above.
GENERAL PARTNER:
OPPENHEIMER FINANCIAL CORP.
BY: /s/ ROGER W. EINIGER
--------------------------------
Name: Roger W. Einiger
Title: Executive Vice President
4
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EXHIBIT 3.2
ASSIGNMENT OF GENERAL PARTNER INTEREST
AND AMENDMENT TO
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
OPPENHEIMER CAPITAL, L.P.
This Assignment of General Partner Interest and Amendment to the Amended
and Restated Agreement of Limited Partnership of Oppenheimer Capital, L.P.,
dated as of November 4, 1997 (this "Assignment and Amendment Agreement"), is
entered into by and among Oppenheimer 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, Oppenheimer 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
<PAGE> 2
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.
OPPENHEIMER FINANCIAL CORP.
By: /s/ KENNETH M. POOVEY
--------------------------------
Name: Kenneth M. Poovey
Title: Executive Vice President
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PIMCO ADVISORS L.P.
By: /s/ KENNETH M. POOVEY
----------------------------------
Name: Kenneth M. Poovey
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: OPPENHEIMER FINANCIAL CORP.,
general partner
By: /s/ KENNETH M. POOVEY
----------------------------------
Name: Kenneth M. Poovey
Title: Executive Vice President
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EXHIBIT 3.3
AMENDMENT
OF
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
OPPENHEIMER CAPITAL, L.P.
This amendment (this "Amendment") dated as November 4, 1997 is made by
PIMCO Advisors L.P., a Delaware limited partnership, in its capacity as sole
general partner (the "General Partner") of Oppenheimer Capital, L.P., a Delaware
limited partnership (the "Partnership"), pursuant to Section 16.01 of the
Amended and Restated Agreement of Limited Partnership, as amended (the
"Partnership Agreement") of the Partnership. Capitalized terms used in this
Amendment which are not defined herein are defined in the Partnership Agreement.
This Amendment is made so as to conform the Partnership Agreement to the
changes in the Code and relevant provisions of state income tax laws which
permit a limited partnership to be taxed as a partnership without regard to the
economic interest of the general partners, and to conform the fiscal year of the
Partnership to that of the General Partner.
1. Section 5.01(b) of the Partnership Agreement is amended to read in full
as follows:
"(b) The General Partner entered into a subscription agreement pursuant
to which it agreed to make a capital contribution in cash on demand in an amount
equal to 1.01% of the aggregate of the initial capital contributions of the
Limited Partners, reduced to the extent of any capital contribution thereafter
made by the General Partner, so as to ensure that the sum of the General
Partner's Capital Account and its obligations pursuant to its subscription
agreement shall not be less than one percent of the total Capital of all
Partners. Notwithstanding such subscription agreement, (i) upon the
effectiveness of this Amendment, the General Partner shall exchange 99% of its
general partner interest for Units as provided in Section 9.01(c), and (ii)
thereafter, the General Partner shall be required to make only such Capital
Contributions as shall be sufficient to ensure that the General Partner's
Capital Account shall not be less than one-hundredth of one percent of the total
Capital Accounts of all Partners."
2. In Section 5.02(b), the number "101.01%" is changed to "100.0101%"
3. The first sentence of Section 6.01 is amended to read: "The fiscal year
(the "Fiscal Year") of the Partnership for Partnership accounting
purposes shall be the calendar year."
4. In Section 6.03, the number "1%" is changed to "0.01%," and the number
"99%" is changed to "99.99%."
5. In Section 6.7(b), the number "1%" is changed to "0.01%," and the number
"99%" is changed to "99.99%."
<PAGE> 2
6. This Amendment shall be binding upon, and shall enure to the benefit
of, the parties hereto and their respective successors and assigns.
7. Except as amended by this Amendment, the Partnership Agreement shall
remain in full force and effect.
8. This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, all rights and
remedies being governed by such laws, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
GENERAL PARTNER
PIMCO ADVISORS L.P.
By: /s/ KENNETH M. POOVEY
---------------------------
Kenneth M. Poovey
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: PIMCO Advisors L.P. General Partner
By: /s/ KENNETH M. POOVEY
---------------------------------
Kenneth M. Poovey
Executive Vice President
<PAGE> 1
EXHIBIT 3.4
ASSIGNMENT OF GENERAL PARTNER INTEREST
AND AMENDMENT TO
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
OPPENHEIMER CAPITAL, L.P.
This Assignment of General Partner Interest and Amendment to the
Amended and Restated Agreement of Limited Partnership of Oppenheimer Capital,
L.P., dated as of November 4, 1997 (this "Assignment and Amendment Agreement"),
is entered into by and among PIMCO Advisors L.P., a Delaware limited partnership
and the sole general partner ("PALP"), PIMCO Partners, G.P., a California
general partnership ("PGP"), and all other persons or entities who are or shall
in the future become, limited partners.
WITNESSETH:
WHEREAS, Oppenheimer 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, PALP is the sole general partner of the Partnership;
WHEREAS, PALP desires to assign, transfer and convey all of its .01
percent (.01%) interest in the Partnership as a general partner of the
Partnership (the "General Partner Interest") to PGP and PALP desires to withdraw
from the Partnership as a general partner of the Partnership;
<PAGE> 2
WHEREAS PGP desires to purchase the General Partner interest
presently held by PALP, and PGP desires to be admitted to the Partnership as a
successor general partner of the Partnership,
WHEREAS, PALP and PGP 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 arc hereby
acknowledged, upon the execution of this Assignment and Amendment Agreement by
the parties hereto, PALP does hereby assign, transfer and convey the General
Partner Interest to PGP. PALP 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. PGP shall pay $80,000
to PALP for the General Partner Interest hereby being assigned to PGP.
2. Admission. Not withstanding any provision in the Agreement to the
contrary, PGP is hereby admitted to the Partnership as a general partner of the
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 PGP is a general partner of the
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<PAGE> 3
Partnership and shall occur, and for all purposes shall be deemed to have
occurred, immediately prior to the withdrawal of PALP from the Partnership as a
general partner of the Partnership.
3. Withdrawal. Notwithstanding any provision in the Agreement to the
contrary, PALP 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 PALP 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 PGP to the Partnership as a general partner of the Partnership.
4. Continuation. The parties hereto agree that following the
withdrawal of PALP from the Partnership as a general partner of the Partnership,
PGP is authorized to and hereby agrees to continue the business of the
Partnership without dissolution.
5. Books and Records. PGP shall take all actions necessary under the
Act and the Agreement, to evidence the withdrawal of PALP from the Partnership
as a general partner of the Partnership and the admission of PGP to the
Partnership as a general partner of the Partnership.
6. Future Cooperation. Each of the parties hereto agrees to
cooperate at all times from and after the date hereof with respect to all of the
matters described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications and other documents as
may be reasonably requested for the
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<PAGE> 4
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.
PIMCO PARTNERS, G.P.
By: Pacific Investment Management Company,
a General Partner
By: /s/ SHARON A. CHEEVER
---------------------------------------------
Name: Sharon A. Cheever
Title:
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<PAGE> 5
BY: PIMCO PARTNERSHIP
a General Partner
BY: /s/ ERNEST L. SCHMIDER
---------------------------------------------
Name: Ernest L. Schmider
Title:
PIMCO ADVISORS L.P.
By: /s/ KENNETH M. POOVEY
------------------------------------------
Name: Kenneth M. Poovey
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: PIMCO ADVISORS L.P.,
general partner
By: /s/ KENNETH M. POOVEY
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Name: Kenneth M. Poovey
Title: Executive Vice President
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