AMENDMENT NO.1 TO AMENDED AND RESTATED GENERAL PARTNERSHIP AGREEMENT OF WESTMORELAND-LG&E PARTNERS
Exhibit 3.7
EXECUTION COPY
AMENDMENT NO.1 TO AMENDED AND RESTATED GENERAL PARTNERSHIP
AGREEMENT OF ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E PARTNERS
AGREEMENT OF ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E PARTNERS
This AMENDMENT NO. 1 TO AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E
PARTNERS (this “Amendment”), dated as of June 29, 2006, is entered into by and between
▇▇▇▇▇▇▇▇▇▇▇▇-ROANOKE VALLEY, L.P., a Delaware limited partnership (“▇▇▇▇▇▇▇▇▇▇▇▇”), and
▇▇▇▇▇▇▇▇▇▇▇▇-NORTH CAROLINA POWER, L.L.C., a Virginia limited liability company (“▇▇▇▇▇▇▇▇▇▇▇▇
- North Carolina Power”\ such parties to be referenced individually as a “Party” and
collectively as the “Parties.”
WITNESSETH
WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E Partners, a Virginia general partnership (the
“Partnership”), owns and operates a 165 MW coal-fired generating facility and a 44 MW
coal-fired generating facility, both located in ▇▇▇▇▇▇ Township, Halifax County, North Carolina,
together known as The Roanoke Valley Energy Facility;
WHEREAS, LG&E Roanoke Valley L.P., a California limited partnership (“LG&E”), owns a
50% general partnership interest (the “LG&E Interest”) in the Partnership;
WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇▇ owns the other 50% general partnership interest in the Partnership;
WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇▇ Coal Company (“WCC”) owns 100% of the membership interests in
▇▇▇▇▇▇▇▇▇▇▇▇ Energy, LLC (“▇▇▇▇▇▇▇▇▇▇▇▇ Energy”), which in turn owns (i) a 90% limited
partnership interest in ▇▇▇▇▇▇▇▇▇▇▇▇, (ii) 100% of the shares of WEI-Roanoke Valley, Inc.
(“WEI”) and (iii) 100% of the membership interests in ▇▇▇▇▇▇▇▇▇▇▇▇-North Carolina Power,
LLC (the “New ▇▇▇▇▇▇▇▇▇▇▇▇ Partner”);
WHEREAS, WEI owns a 10% general partnership interest in ▇▇▇▇▇▇▇▇▇▇▇▇;
WHEREAS, the New ▇▇▇▇▇▇▇▇▇▇▇▇ Partner desires to purchase from LG&E and LG&E desires to sell
to the New ▇▇▇▇▇▇▇▇▇▇▇▇ Partner the LG&E Interest (the “Transfer”);
WHEREAS, LG&E and ▇▇▇▇▇▇▇▇▇▇▇▇ are parties to the Amended and Restated General Partnership
Agreement of ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E Partners, (the “Partnership Agreement”), dated as of
December I, 1993; and
WHEREAS, in connection with the Transfer, the Parties hereto desire to amend certain
provisions of the Partnership Agreement in order to (i) reflect the succession of the New
▇▇▇▇▇▇▇▇▇▇▇▇ Partner to the interests of LG&E and (ii) certificate the Partnership
Interests (as defined in the Partnership Agreement) in accordance with revised Article 8 of the UCC
(as defined below).
NOW THEREFORE, in consideration of the premises and of the representations, warranties and
covenants herein contained, the Parties agree as follows:
1. All references to LG&E contained in the Partnership Agreement shall, from and after the
date hereof, refer to the New ▇▇▇▇▇▇▇▇▇▇▇▇ Partner.
2. Amendment of Section 16 of the Partnership Agreement. The Partnership Agreement is
hereby amended by adding the following provisions after Section 16.16 thereof:
| “16.17 Partnership Interests Certificated Securities. |
(a) Certificated Securities. The Partnership Interests shall constitute
“securities” within the meaning of, and governed by, (i) Article 8 of the Uniform
Commercial Code (including Section 8-1 02(a)(I 5) thereof) as in effect from time to
time in the Commonwealth of Virginia and in the State of New York (the “UCC”) (ii)
Article 8 of the UCC of any other applicable jurisdiction that now or hereafter
substantially includes the 1994 revisions to Article 8 thereof as adopted by the
American Law Institute and the National Conference of Commissioners on Uniform State
Laws and approved by the American Bar Association on February 14, 1995.
Notwithstanding any provision of this Agreement to the contrary, to the extent that
any provision of this Agreement is inconsistent with any non-waivable provision of
Article 8 of the UCC, such provision of Article 8 of the DCC shall be controlling.
(b) Issuance of Certificates. The Partnership Interests shall be evidenced by
a “Partnership Interest Certificate” executed by each Partner and shall be in
substantially the form attached hereto as Exhibit A. The Partnership Interest
Certificate shall state on its face (i) the restrictions of transfer set forth in
this Agreement, and (ii) that it is subject to the terms and conditions of this
Agreement.
(c) Registered Owner. The Partnership shall be entitled to treat the
registered owner of a Partnership Interest Certificate as the owner of the
Partnership Interests described therein for all purposes and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such Partnership
Interests, regardless of whether it shall have actual or other notice thereof, by a
Person other than the registered owner of such certificate.
(d) The Partnership shall issue a new Partnership Interest Certificate in place of
any Partnership Interest Certificate previously issued if the original holder
thereof:
(i) makes proof by affidavit, in form and substance satisfactory to the
Partnership, that such previously issued Partnership Interest Certificate has
been lost, stolen or destroyed;
(ii) requests the issuance of a new Partnership Interest Certificate before
the Partnership has notice that such previously issued Partnership Interest
Certificate has been acquired by a purchaser for value in good faith and
without notice of an adverse claim;
(iii) if requested by the Partnership, delivers to the Partnership a bond, in
form and substance satisfactory to the Partnership, with such surety or
sureties as the Partnership may direct, to indemnify the Partnership against
any claim that may be made on account of the alleged loss, destruction or
theft of the previously issued Partnership Interest Certificate; and
(iv) satisfies any other reasonable requirements imposed by the Partnership.”
3. Limited Effect. Except as expressly amended hereby, all of the provisions of the
Partnership Agreement shall continue to be, and shall remain, in full force and effect in
accordance with their terms.
4. Counterparts. This Amendment may be executed in any number of counterparts, all of
which shall constitute one and the same instrument.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LA WS OF THE COMMONWEALTH OF VIRGINIA,
EXCLUSIVE OF CONFLICTS OF LAW PROVISIONS WHICH WOULD DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
[Signature pages follow.]
IN WITNESS WHEREOF, this Amendment has been duly executed by the Parties as of the date set
forth at the outset hereof.
| ▇▇▇▇▇▇▇▇▇▇▇▇-ROANOKE VALLEY, L.P. | ||||||||
| By: | WEI-ROANOKE VALLEY, INC., as general partner |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
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| Title: General Counsel | ||||||||
| ▇▇▇▇▇▇▇▇▇▇▇▇-NORTH CAROLINA POWER, L.L.C. | ||||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇
|
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| Title: Vice President | ||||||||
Exhibit A
Percentage: Cert. No.1
General Partner Interest
General Partner Interest
THIS CERTIFIES THAT __________________________ is the owner of a Fifty Percent (50%)
Partnership Interest in ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E Partners, a Virginia general partnership (the
“Partnership”). Such Partnership Interest is not transferable except as provided in the (i)
General Partner Security Agreement (as defined in Exhibit X to the Credit Agreement, dated as of
December 1, 1993, by and among the Partnership, the Lenders, the Institutional Lenders, the Issuing
Bank, the Bond L/C Issuing Bank, the Co-Agents and Agent (each, as defined therein), as amended and
as may be further amended, modified or supplemented from time to time) and (ii) Amended and
Restated General Partnership Agreement, dated as of December I, 1993, as amended, modified or
restated from time to time (as so amended, modified or restated, the “Partnership
Agreement”), and is otherwise subject to the terms and conditions of the General Partner
Security Agreement and the Partnership Agreement. Capitalized terms used herein, and not otherwise
defined, are used as defined in the Partnership Agreement.
THIS CERTIFICATE is not negotiable or transferable except in connection with the transfer of
the Partnership Interest evidenced hereby and as provided in the General Partner Security Agreement
and in Section 8 of the Partnership Agreement; provided, however, that this Partnership Interest
certificate, when coupled with the partnership power in the form set forth on the reverse hereof,
duly executed in blank or assigned to the named assignee, may be deposited with the continuing
partners of the Partnership and shall constitute direction by the registered owner of this
Partnership Interest certificate to such continuing partners of the Partnership to register the
change of ownership of the Partnership Interest evidenced hereby to such assignee and to issue a
new certificate reflecting such change of ownership to such assignee. The Partnership Interest
evidenced by this Partnership Interest certificate shall constitute “securities” within the meaning
of and governed by (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15)
thereof) as in effect from time to time in the Commonwealth of Virginia and in the State of New
York and (ii) the law of any other applicable jurisdiction that presently or hereafter is
substantially similar to such Article 8.
| ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E PARTNERS | ||||||||||
| By: | ▇▇▇▇▇▇▇▇▇▇▇▇-ROANOKE VALLEY, L.P. | |||||||||
| as general partner | ||||||||||
| By: | ▇▇▇▇▇▇▇▇▇▇▇▇-ROANOKE VALLEY, L.P. | |||||||||
| as general partner |
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| By: | ||||||||||
| Title: | ||||||||||
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED PURSUANT TO THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAYBE OFFERED AND SOLD ONLY IF SO REGISTERED AND
QUALIFIED OR IF AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION EXISTS.
FORM OF PARTNERSHIP POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________,all of its partnership interests(s) in ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E Partners, a
Virginia general partnership, standing in its name on the books of ▇▇▇▇▇▇▇▇▇▇▇▇-LG&E Partners,
represented by the following certificate(s) ___________________, and irrevocably appoints as
___________________________ as attorney to transfer such certificated securities with full power of
substitution in the premises.
| Date: | [NAME OF GENERAL PARTNER] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
In the presence of: