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Exhibit 3.1
EXECUTION COPY
AMENDMENT NO. 4 TO FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
PENN VIRGINIA RESOURCE PARTNERS, L.P.
THIS AMENDMENT NO. 4 TO FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF PENN VIRGINIA RESOURCE PARTNERS, L.P. (this
" Amendment "), dated as of December 8, 2006, 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 Sections 5.6 and 13.1 of the
First Amended and Restated Agreement of Limited Partnership of Penn
Virginia Resource Partners, L.P., dated as of October 30,
2001, as amended as of December 19, 2002, March 19,
2003 and December 8, 2003 (as so amended, the " Partnership
Agreement "). Capitalized terms used but not defined herein are
used as defined in the Partnership Agreement.
WHEREAS, Section 5.6(a) of the Partnership Agreement
provides that the General Partner, without the approval of any
Limited Partners, may issue additional Partnership Securities for
any Partnership purpose at any time and from time to time for such
consideration and on such terms and conditions as shall be
established by the General Partner in its sole discretion;
WHEREAS, Section 5.6(b) of the Partnership Agreement
provides that the Partnership Securities authorized to be issued by
the Partnership pursuant to Section 5.6(a) may be issued in
one or more classes, or one or more series of any such classes,
with such designations, preferences, rights, powers and duties as
shall be fixed by the General Partner in its sole discretion;
WHEREAS, Section 13.1(g) of the Partnership Agreement
provides that the General Partner, without the approval of any
Limited 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;
WHEREAS, the General Partner has determined that the issuance of
the Class B Units provided for in this Amendment is permitted by
Section 5.7 of the Partnership Agreement;
WHEREAS, Section 13.1(d)(i) of the Partnership Agreement
provides that the General Partner, without the approval of any
Limited Partner, may amend any provision of the Partnership
Agreement 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 as
compared to other classes of Partnership Interests) in any material
respect;
WHEREAS, the Partnership has entered into a Units Purchase
Agreement, dated as of December 4, 2006 between the
Partnership and Penn Virginia GP Holdings, L.P. (" PVG "),
as the purchaser (the " Units Purchase Agreement ");
WHEREAS, the Units Purchase Agreement obligates the Partnership
to issue limited partner interests to be designated as Class B
Units having the terms, including rights to distributions or in
liquidation, as set forth in this Amendment;
WHEREAS, the General Partner deems it in the best interest of
the Partnership to effect this Amendment in order to provide for
(i) the creation of the new class of Partnership Securities
provided for in this Amendment (the " Class B Units ") and
(ii) the conversion of the Class B Units into Common Units in
accordance with the terms described herein and (iii) such
other matters as are provided herein; and
WHEREAS, the General Partner has determined, pursuant to
Section 13.1(g) of the Partnership Agreement, that the
amendments set forth herein are necessary and advisable in
connection with the authorization of the issuance of the Class B
Units.
NOW, THEREFORE, it is hereby agreed as follows:
A. Amendment . The Partnership Agreement
is hereby amended as follows:
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1.
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Section 1.1 is hereby amended to add the
following definitions:
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" Class B Unit " has the meaning assigned
to such term in Section 5.12(a).
" Conversion Approval Date " has the meaning assigned to
such term in Section 5.12(g).
" Conversion Approval Termination Date " has the meaning
assigned to such term in Section 5.12(i).
" Conversion Proposal " has the meaning assigned to such
term in Section 5.12(g).
" Conversion Request Date " means the date on which there
is a meeting of holders of Common Units called for the purpose of
approving a Conversion Proposal.
" Distribution Increase Day " has the meaning assigned to
such term in Section 5.12(h).
" Excess Payment " has the meaning assigned to such term
in Section 5.12(h)(iv).
" Purchase Date " means the closing date under the Units
Purchase Agreement.
" PVG " means Penn Virginia GP Holdings, L.P., a Delaware
limited partnership, and its successors and assigns.
" Units Purchase Agreement " means the Units Purchase
Agreement dated December 4, 2006 between the Partnership and
PVG.
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2.
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Section 5.12 is hereby amended and restated
in its entirety as follows:
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Section 5.12 Establishment of Class B
Units .
(a) General . The General Partner hereby designates and
creates a series of Units to be designated as " Class B
Units " and consisting of a total of 3,610,383 Class B Units,
and fixes the designations, preferences and relative,
participating, optional or other special rights, powers and duties
of holders of the Class B Units as set forth in this
Section 5.12.
(b) Allocations . For the period beginning with the
Purchase Date up to and including the date that is one year from
the Purchase Date, Section 6.1, which provides for the
allocation of the items of Partnership income, gain, loss,
deduction and credit, shall be applied to the Class B Units to the
same extent as such items would be so allocated if such Class B
Units were Subordinated Units that were then Outstanding and the
Subordination Period had not ended.
(c) Distributions. For the period beginning with the
Purchase Date up to and including the date that is one year from
the Purchase Date, the Class B Units shall have the right to share
in Partnership distributions and shall have rights upon dissolution
of the Partnership, including the right to share in any
distributions upon dissolution of the Partnership, in each case to
the same extent as if such Class B Units were Subordinated Units
that were then Outstanding and the Subordination Period had not
ended.
(d) Conversion Only Upon Approval of Conversion Proposal
. The Class B Units will not have the privilege of conversion as
set forth in Section 5.8 of the Partnership Agreement and
Section 5.8 shall not apply to the Class B Units; rather, the
Class B Units will be converted only by approval of a Conversion
Proposal pursuant to the provisions of Section 5.12(g) or the
occurrence of the Conversion Approval Termination Date pursuant to
Section 5.12(i) hereof. A Class B Unit that has converted into
a Common Unit shall be subject to the provisions of
Section 6.7(b) of the Partnership Agreement as if the Class B
Unit was a Subordinated Unit.
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(e) Voting Rights . Subject to
Section 13.3(a), the Class B Units will have voting rights
that are identical to the voting rights of the Common Units and
will vote with the Common Units as a single class, so that each
Class B Unit will be entitled to one vote on each matter with
respect to which each Common Unit i
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