AMENDMENT NUMBER ONE TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ALTA MESA HOLDINGS, LP (A Texas Limited Partnership)
Exhibit 3.5
Execution Version
AMENDMENT NUMBER ONE TO THE FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
XXXX XXXX HOLDINGS, LP
(A Texas Limited Partnership)
OF LIMITED PARTNERSHIP
OF
XXXX XXXX HOLDINGS, LP
(A Texas Limited Partnership)
THIS AMENDMENT NUMBER ONE TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF XXXX XXXX HOLDINGS, LP (this “Agreement”) is made and entered into effective as of May 12, 2010,
(the “Funding Date”) by and between Xxxx Xxxx Holdings GP, LLC, a Texas limited liability company
(“Xxxx Xxxx GP”), as the sole general partner, the Class A Limited Partners and Xxxx Xxxx
Investment Holdings Inc. (“Sowood”), as the Class B Limited Partner.
RECITALS
WHEREAS, Xxxx Xxxx Holdings, LP (the “Partnership”) has heretofore been formed as a limited
partnership under the Texas Revised Limited Partnership Act pursuant to the Certificate of Limited
Partnership of Xxxx Xxxx Holdings, LP filed with the Secretary of State of Texas on September 26,
2005 and the Agreement of Limited Partnership of Xxxx Xxxx Holdings, LP, dated September 26, 2005
by and among Xxxx Xxxx GP and the Class A Limited Partners (the “Original Agreement”);
WHEREAS, on September 1, 2006, the Original Agreement was amended and restated (the “Amended
and Restated Agreement”) to provide for the admission of Sowood as the Class B Limited Partner;
WHEREAS, Sowood and the Partnership have entered into that certain Contribution Agreement,
dated as of December 22, 2009, as amended and restated as of the date hereof (the “Contribution
Agreement”), pursuant to which Sowood has agreed to make an additional capital contribution to the
Partnership as of the Funding Date, for the consideration and on the other terms and conditions set
forth in the Contribution Agreement; and
WHEREAS, the Contribution Agreement contemplates the amendment of the Amended and Restated
Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements made herein and in the
Contribution Agreement, the parties, intending to be legally bound, hereby agree as follows. Any
initially capitalized terms not otherwise defined herein shall have the meanings ascribed to them
in the Amended and Restated Agreement.
ARTICLE 1
1.1 Amendment of ARTICLE III and Section 3.5 of the Amended and Restated Agreement:
The title of ARTICLE III of the Amended and Restated Agreement is hereby amended to be
“CAPITALIZATION AND INTERESTS” and Section 3.5 of the Amended and Restated Agreement is hereby
amended to read in its entirety as follows:
“3.5 Interests. The Interest of each of the Partners, expressed as a percentage of
all Interests, are as set forth on Exhibit B.”
1.2 Amendment of Section 4.1 of the Amended and Restated Agreement. Section 4.1 of the
Amended and Restated Agreement is hereby amended to read in its entirety as follows:
“4.1 Distributions of Net Cash From Operations. Distributions of Net Cash From
Operations shall be made in the following order of priority:
(a) first, 85% to the Class B Limited Partner and 15% to the General Partner and the Class A
Limited Partners until the Class B Limited Partner has received aggregate distributions from the
Partnership since the Effective Date equal to the Class B Limited Partner’s aggregate Capital
Contributions since the Effective Date (the “1x Return Amount”);
(b) second, 85% to the Class B Limited Partner and 15% to the General Partner and the Class A
Limited Partners until the cumulative amount of distributions to the Class B Limited Partner
pursuant to this Agreement results in the Class B Limited Partner achieving a 15% IRR;
(c) third, 65% to the Class B Limited Partner and 35% to the General Partner and the Class A
Limited Partners until the cumulative amount of distributions to the Class B Limited Partner
pursuant to this Agreement result in the Class B Limited Partner achieving a 27.5% IRR; and
(d) thereafter, 25% to the Class B Limited Partner and 75% to the General Partner and the
Class A Limited Partners.
All distributions made to the General Partner and the Class A Limited Partners under this
Section 4.1 shall be made Pro Rata to such Partners.”
1.3 Amendment of Section 4.2 of the Amended and Restated Agreement. Section 4.2 of the
Amended and Restated Agreement is hereby amended to read in its entirety as follows:
“4.2 Distributions of Net Cash From a Liquidity Event. Net Cash From a Liquidity
Event shall be distributed to the Partners as follows:
(a) if the Liquidity Event occurs prior to January 1, 2012, Net Cash From a Liquidity Event
shall be distributed to the Partners in the same manner as Net Cash From Operations is distributed
pursuant to Section 4.1; provided, however, that if such distributions will not provide the Class B
Limited Partner aggregate distributions from the Partnership since the Effective Date equal to at
least 200% of the Class B Limited Partner’s aggregate Capital Contributions since the Effective
Date (the “2x Return Amount”), then the Net Cash From a Liquidity Event otherwise distributable to
the General Partner and the Class A Limited Partner shall be distributed to the Class B Limited
Partner until the Class B Limited Partner receives aggregate distributions from the Partnership
equal to the 2x Return Amount; or
(b) if the Liquidity Event occurs on or after January 1, 2012, Net Cash From a Liquidity
Event shall be distributed to the Partners as follows:
(i) first, 100% to the Class B Limited Partner until the Class B Limited Partner
receives aggregate distributions under this Agreement from the Partnership equal to the 1x Return
Amount;
(ii) second, 85% to the Class B Limited Partner and 15% to the General Partner and the
Class A Limited Partners until the cumulative amount of distributions to the Class B Limited
Partner pursuant to this Agreement result in the Class B Limited Partner achieving a 10% IRR;
(iii) third, 100% to the General Partner and the Class A Limited Partners until the
aggregate distributions pursuant to Sections 4.1, 4.2(b)(i) and 4.2(b)(ii)
of this Agreement and this
Section 4.2(b)(iii) have been distributed 85% to the Class B Limited Partner and 15% to the
General Partner and Class A Limited Partners;
(iv) fourth, 85% to the Class B Limited Partner and 15% to the General Partner and the
Class A Limited Partners until the cumulative amount of distributions to the Class B Limited
Partner pursuant to this Agreement result in the Class B Limited Partner achieving a 15% IRR;
(v) fifth, 65% to the Class B Limited Partner and 35% to the General Partner and the
Class A Limited Partners until the cumulative amount of distributions to the Class B Limited
Partner pursuant to this Agreement result in the Class B Limited Partner achieving a 27.5% IRR ;
and
(vi) thereafter, 25% to the Class B Limited Partner and 75% to the General Partner and
the Class A Limited Partners.
All distributions made to the General Partner and the Class A Limited Partners under this
Section 4.2 shall be made Pro Rata to such Partners.”
1.4 Amendment to Section 4.7(b) of the Amended and Restated Agreement. The two
references in the text of Section 4.7(b) of the Amended and Restated Agreement shall be amended to
refer to Section 4.7(d).
1.5 Amendment of Section 5.2(i) of the Amended and Restated Agreement. The two
incidents of the term “Oil and Gas Interests” in the text of Section 5.2(i) of the Amended and
Restated Agreement shall be amended to read “Properties”.
1.6 Amendment of Section 5.6(b) of the Amended and Restated Agreement. Section 5.6(b)
of the Amended and Restated Agreement is hereby amended to read in its entirety as follows. The
provisions of Sections 5.6(b)(i), (ii), (iii), (iv) and (v) shall remain in full force and effect
and are not amended hereby.
“(b) Initiation of Liquidity Event. Following the earlier of (i) January 1, 2012, and (b) a
breach of or default by the Partnership under any representation, warranty, covenant or agreement
contained in any loan or credit agreement to which the Partnership is a party or by which its
assets are bound, following the expiration of any cure periods contained in such instruments with
respect thereto, provided notice is timely provided to the appropriate parties thereto, and
irrespective of whether Sowood has received the notice required to be sent to it by the Partnership
pursuant to Section 5.3 of the Contribution Agreement, the Class B Limited Partner, may without
consent of any other Partner, upon notice to the General Partner and Class A Partners (the
“Liquidity Request”), request that the General Partner take such actions set forth below, to cause
the Partnership and its Subsidiaries, or the Assets to be sold to one or more third parties,
subject to the Class A Partners’ right of right of first offer as set forth below:”
1.7 Amendment of Section 6.4(d) of the Amended and Restated Agreement. Clause (A) of
the third sentence of Section 6.4(d) of the Amended and Restated Agreement is hereby amended to
read in its entirety as follows:
“(A) that Partner’s (or that Partner’s Affiliates’) officers, directors, trustees,
employees, legal counsel, accountants, current and potential investors and lenders,
or other professional consultants (with respect to whom the Partner shall remain
responsible for the confidentiality of such Confidential Information);”
1.8 Amendment to Defined Term on Exhibit A. Exhibit A of the Amended and Restated
Agreement is hereby amended by deleting the current definition of “Pro Rata,” and replacing it to
read in its entirety as follows:
“Pro Rata” means the ratio determined by dividing the Interest as reflected on
Exhibit B of each Partner to whom a particular provision of this Agreement is stated
to apply by the aggregate of the Interests as reflected on Exhibit B of all Partners
to whom that provision is stated to apply.”
1.9 Amendment to Exhibit B. The term “Percentage Interest” in the heading of the
center column of Exhibit B shall be amended to read “Interest”.
1.10 Table of Contents. To the extent an amendment is made to the Amended and
Restated Agreement that requires a conforming change to the Table of Contents thereof, such
conforming change shall be made hereby.
ARTICLE 2
CONSENTS
2.1 The Class B Partner hereby consents to the transactions contemplated by the Contribution
Agreement and this Agreement as required by Sections 5.3(n) and (o) of the Amended and Restated
Agreement.
ARTICLE 3
MISCELLANEOUS
3.1 Except as amended herein, all of the provisions of the Amended and Restated Agreement
remain in full force and effect.
3.2 This Agreement has been consented to in writing by the General Partner, a
Supermajority-in-Interest and the Class B Limited Partner.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the Funding
Date.
| GENERAL PARTNER: XXXX XXXX HOLDINGS GP, LLC a Texas limited liability company |
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx, Chief Executive Officer |
||||
| CLASS A LIMITED PARTNERS: XXXX XXXX RESOURCES, LP, a Texas limited partnership |
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| By: | Xxxx Xxxx Resources GP, LLC, | |||
| a Texas limited liability company, | ||||
| its sole general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx, Chief Executive Officer |
||||
| GALVESTON BAY RESOURCES HOLDINGS, LP, a Texas limited partnership |
||||
| By: | Galveston Bay Resources Holdings GP, LLC, | |||
| a Texas limited liability company, | ||||
| its sole general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx, Chief Executive Officer |
||||
| PETRO ACQUISITIONS HOLDINGS, LP, a Texas limited partnership |
||||
| By: | Petro Acquisitions Holdings GP, LLC, | |||
| a Texas limited liability company, | ||||
| its sole general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx, Chief Executive Officer | ||||
| PETRO OPERATING COMPANY HOLDINGS, INC., a Florida corporation |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx, President | ||||
| CLASS B LIMITED PARTNER: XXXX XXXX INVESTMENT HOLDINGS INC. |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | ||||
| President | ||||
