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EXHIBIT 10.1.1
AMENDMENT NO. 1 TO AGREEMENT OF LIMITED PARTNERSHIP
XXXXXXX OIL & GAS, L.P.
THIS AMENDMENT NO. 1 TO AGREEMENT OF LIMITED PARTNERSHIP (herein
called this "Amendment") dated effective as of May 1, 1992, is made by and
among Xxxxxxx Exploration Company, a Texas corporation, General Atlantic
Partners III, L.P., a Delaware limited partnership, GAP-Xxxxxxx Partners, L.P.,
a Delaware limited partnership and Xxxxxx X. Xxxxxx, a Texas resident.
RECITALS:
WHEREAS, the parties have previously entered into that certain
Agreement of Limited Partnership dated as of May 1, 1992 (the "Partnership
Agreement"), establishing Xxxxxxx Oil & Gas, L.P. (the "Partnership"); and
WHEREAS, the parties desire to amend the Partnership Agreement to
clarify certain provisions relating to distributions to be made to the
Partners, such amendment to be effective as of May 1, 1992;
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual covenants and agreements contained herein, the parties hereto do hereby
agree as follows:
1. Defined Terms.
(a) The defined term "Aggregate Tax Amount" contained in Section 2.1
of the Partnership Agreement is hereby deleted in its entirety.
(b) Any other capitalized terms used herein and not otherwise defined
shall have the respective meanings assigned to them in the Partnership
Agreement.
2. Distributions. Section 4.4 of the Partnership Agreement is
hereby amended in its entirety to read as follows:
Section 4.4. Distributions. All cash funds of the
Partnership shall be retained in the business of the Partnership and
shall be distributed to the Partners only at such time as the
Management Committee shall approve; provided, however, that
distributions shall be made to each Partner in an amount equal to such
Partner's Tax Amount, (as herein defined), such distributions to be
made not later than five days prior to the due date of the applicable
tax required to be paid by such Partner. A Partner's "Tax Amount" for
any taxable year shall be determined by the following formula:
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X = [(A + [B(1-A)])(C-D)] - E
Where X = The Tax Amount for such year;
A = the highest marginal federal income tax rate in
effect for such year (the "Federal Tax Rate");
B = the highest marginal Texas income tax rate (including
the franchise tax rate applicable to income) in
effect for such year;
C = such Partner's allocable share of the aggregate
taxable income or gain (including amounts realized in
excess of the adjusted tax basis in Depletable
Property sold by the Partnership) of the Partnership
for the current and all prior taxable years;
D = such Partner's allocable share of the aggregate
deductions and losses (including amounts realized
which are less than the adjusted tax basis of
Depletable Property sold by the Partnership)
recognized by the Partnership during the current and
all prior taxable years; and
E = the aggregate amount distributed to such Partner in
all prior taxable years on account of taxes under
this Section 4.4.
For purposes of this calculation, A and B shall both be the rates
applicable to corporations or individuals, whichever results in the
larger combined amount.
The Tax Amount for each Partner shall be determined annually (and
revised periodically, as necessary) by the Partnership's independent
accounting firm and reported to the Management Committee.
Distributions in excess of the Tax Amounts, if approved by the
Management Committee, shall be made in the following percentages and
amounts:
(a) If the distribution is made prior to the
attainment of Threshold Value:
(i) an amount shall first be distributed to
General Atlantic and GAP L.P. equal to their
respective Net Capital Contributions as computed
immediately prior to such distributions, and
(ii) the remaining amount to be distributed
shall be allocated among the Partners in proportion
to their respective Distribution Amounts. A
Partner's "Distribution Amount" on the date of any
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distribution shall be determined by the following
formula:
Y = (F + G)(H) - I
Where Y = such Partner's Distribution Amount;
F = the amount to be distributed by the
Partnership to all Partners pursuant to this
clause (ii);
G = the sum of (A) the aggregate amount
distributed or to be distributed by the
Partnership to all Partners on account of
taxes under this Section 4.4 for the current
and all prior taxable years and (B) the
aggregate amount previously distributed by
the Partnership to all Partners pursuant to
this clause (ii) for all prior taxable years;
H = such Partner's Post Threshold Ratio; and
I = the sum of (i) the aggregate amount
distributed or to be distributed by the
Partnership to such Partner on account of
taxes under this Section 4.4 for the current
and all prior taxable years and (ii) the
aggregate amount previously distributed by
the Partnership to such Partner pursuant to
this clause (ii) for all prior taxable years;
all as of the date of the distribution.
(b) If the distribution is made after the
attainment of Threshold Value, all distributions shall be
allocated to the Partners in proportion to their respective
Distribution Amounts; provided, however, that in computing the
Distribution Amounts of the Partners, items F, G and I in the
formula set forth in paragraph (a) of this Section 4.4 shall
mean the following:
F = the amount to be distributed by the
Partnership to all Partners pursuant to this
subparagraph (b);
G = the aggregate amount previously distributed
by the Partnership to all Partners pursuant
to this Section 4.4; and
I = the aggregate amount previously distributed
by the Partnership to such Partner pursuant
to this Section 4.4;
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Notwithstanding the foregoing, however, (i) any liquidating
distributions shall be made in accordance with Section 11.2, and (ii)
no distribution shall be made to any Partner if such distribution
would cause the Adjusted Capital Account balance of such Partner to be
less than zero.
The Partnership Agreement, as amended by this Amendment, is hereby
ratified and confirmed in all respects.
This Amendment may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
the 14th day of September 1992, but effective as of May 1, 1992.
XXXXXXX EXPLORATION COMPANY
By: /s/ XXX X. XXXXXXX
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Xxx X. Xxxxxxx, President
GENERAL ATLANTIC PARTNERS, L.P.
By: GAP III Investors, Inc., its
General Partner
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
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Title: PRESIDENT
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GAP-XXXXXXX PARTNERS, L.P.
By /s/ XXXXXXX X. XXXXXXXX
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General Partner
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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