Exhibit 4.2
AMENDMENT NO. 3
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INERGY, L.P.
This Amendment No. 3 (this “
Amendment No. 3 ”) to the Second Amended and
Restated Agreement of Limited Partnership of Inergy, L.P., a
Delaware limited partnership (the “ Partnership
”) is entered into effective as of August 9, 2005, by Inergy
GP LLC, a Delaware limited liability company (the “
Managing General Partner ”), as managing
general partner of the Partnership. Capitalized terms used but not
defined herein are used as defined in the Partnership
Agreement.
WHEREAS , the Managing General Partner, the Non-Managing
General Partner and the Limited Partners of the Partnership entered
into that certain Second Amended and Restated Agreement of Limited
Partnership of the Partnership dated as of January 7, 2004 (the
“ Partnership Agreement ”);
WHEREAS , the Managing General Partner, the Non-Managing
General Partner and the Limited Partners of the Partnership entered
into that certain Amendment No. 1 to the Partnership Agreement on
February 9, 2004;
WHEREAS , the Managing General Partner, the Non-Managing
General Partner and the Limited Partners of the Partnership entered
into that certain Amendment No. 2 to the Partnership Agreement on
January 21, 2005;
WHEREAS , Section 5.6 of the Partnership Agreement
(subject to Section 5.7 of the Partnership Agreement) provides that
the Managing General Partner, without the approval of any Limited
Partners, may issue additional Partnership Securities, or classes
or series thereof, for any Partnership purpose at any time and from
time to time, and may issue such Partnership Securities to such
Persons, for such consideration and on such terms and conditions as
shall be established by the Managing General Partner in its sole
discretion;
WHEREAS , Section 13.1 of the Partnership Agreement
provides that the Managing General Partner, without the approval of
any Partner (subject to the provisions of Section 5.7 of the
Partnership Agreement), may amend any provision of the Partnership
Agreement necessary or advisable in connection with the
authorization of issuance of any class or series of Partnership
Securities pursuant to Section 5.6 of the Partnership Agreement;
and
WHEREAS, acting pursuant to the power and authority
granted to it under Section 13.1 of the Partnership Agreement, the
Managing 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; and
WHEREAS , the Managing General Partner deems it in the
best interest of the Partnership to effect this Amendment in order
to provide for the issuance of the Special Units (as defined
herein) to Inergy Holdings, L.P., a Delaware limited partnership
and affiliate of the Partnership (the “Purchaser”)
pursuant to that certain Special Unit Purchase Agreement, dated
August 9, 2005, among the Partnership and the Purchaser;
NOW THEREFORE
, the Managing General Partner does
hereby amend the Partnership Agreement as follows:
Section 1. Amendment
.
Article V is hereby amended to add a
new Section 5.12 creating a new series of Units as
follows:
“Section 5.12. Special
Units.
(a) There is hereby created a series
of Units to be designated as “Special Units,”
consisting of Special Units and having the same terms and
conditions as the Common units, except as set forth
below:
(i) The Special Units shall not
receive any allocations of items of Partnership income, gain, loss,
deduction and credit under Section 6.1;
(ii) The Special Units shall not
have the right to share in any partnership distributions to the
Common Units;
(iii) The Capital Account of the
Special Units shall equal $25 million;
(iv) Except as provided in Section
12.4,
