Exhibit 3.5
AMENDMENT NO. 3 TO FIRST AMENDED
AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
PENN VIRGINIA RESOURCE PARTNERS,
L.P.
THIS AMENDMENT NO. 3 TO FIRST
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF PENN
VIRGINIA RESOURCE PARTNERS, L.P. (this “Amendment”),
dated as of December 8, 2003, is entered into and effectuated by
Penn Virginia Resource GP, LLC, a Delaware limited liability
company, as the General Partner, pursuant to authority granted to
it in Section 13.1 of the Amended and Restated Agreement of Limited
Partnership of Penn Virginia Resource Partners, L.P., dated as of
October 30, 2001, as amended (the “Partnership
Agreement”). Capitalized terms used but not defined herein
are used as defined in the Partnership Agreement.
WHEREAS, Section 13.1(d)(i) of the
Partnership Agreement provides that the General Partner may amend
any provision of the Partnership Agreement without the approval of
any Partner or Assignee to reflect a change that, in the discretion
of the General Partner, does not adversely affect the Limited
Partners (including any particular class of Partnership Interests)
in any material respect; and
WHEREAS, acting pursuant to the
power and authority granted to it under Section 13.1(d)(i) of the
Partnership Agreement, the General Partner has determined that the
following amendment to the Partnership Agreement does not adversely
affect the Limited Partners (including any particular class of
Partnership Interests as compared to other classes of Partnership
Interests) in any material respect.
NOW, THEREFORE, it is hereby agreed
as follows:
A. Amendment .
1. Section 5.7(b) of the Partnership
Agreement is hereby amended and restated as follows:
(b) The Partnership may also issue
an unlimited number of Parity Units, prior to the end of the
Subordination Period and without the prior approval of the
Unitholders, if such issuance occurs (i) in connection with an
Acquisition or Capital Improvement or (ii) within 365 days of, and
the net proceeds from such issuance are used to repay debt incurred
in connection with, an Acquisition or a Capital Improvement, in
each case where such Acquisition or Capital Improvement involves
assets that, if acquired (or in the case of a Capital Improvement,
put into commercial service) by the Partnership as of the date that
is one year prior to the first day of the Quarter in which such
Acquisition was consummated or such Capital Improvement was put
into commercial service (“One Year Test Period”), would
have resulted, on a pro forma or estimated pro forma basis (as
described below), in an increase in:
(A) the amount of Adjusted Operating
Surplus generated by the Partnership on a per-Unit basis (for all
Outstanding Units) with respect to the One Year Test Period (on a
pro forma or estimated pro forma basis as described below) as
compared to
(B) the actual amount of Adjusted
Operating Surplus genera
