EXHIBIT 4.2
AMENDMENT NO. 1
TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NATURAL RESOURCE PARTNERS L.P.
This Amendment No. 1 (this "Amendment No. 1") to the First Amended and
Restated Agreement of Limited Partnership of Natural Resource Partners L.P. (the
"Partnership") is entered into effective as of December 8, 2003, by NRP (GP) LP,
a Delaware limited partnership (the "General Partner"), as general partner of
the Partnership. Capitalized terms used but not defined herein are used as
defined in the Partnership Agreement.
WHEREAS, the General Partner, the Organizational Limited Partner and
the Limited Partners of the Partnership entered into that certain First Amended
and Restated Agreement of Limited Partnership of the Partnership dated as of
October 17, 2002 (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 as compared to
other classes of Partnership Interests) in any material respect; and
WHEREAS, acting pursuant to the power and authority granted to the
General Partner 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, the General Partner does hereby amend the Partnership
Agreement as follows:
Section 1. Amendment.
(a) Section 5.7(b) is hereby amended and restated as
follows:
(b) During the Subordination Period, the Partnership
may also issue an unlimited number of Common Units and other
Parity Units without the prior approval of the Unitholders, if
such issuance occurs (i) in connection with an Acquisition or
a 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 generated by the Partnership on a per-Unit
basis (for all Outstanding Units) with respect to the
One Year Test Period as adjusted as provided below.
The General Partner's good faith determination that such an
increase would have resulted shall be conclusive. The amount
in clause (A) shall be determined on a pro forma or estimated
pro forma basis assuming that (1) all of the Parity Units to
be issued in connection with or within 365 days of such
Acquisition or Capital Improvement had been issued and
outstanding as of the commencement of such One Year Test
Period, (2) all indebtedness for borrowed money to be incurred
or assumed in connection with such Acquisition or Capital
Improvement (other than any such indebtedness that is to be
repaid with the proceeds of such issuance of Parity Units) had
been incurred or assumed, in each case as of the commencement
of the One Year Test Period, (3) the personnel expenses that
would have been incurred by the Partnership in the operation
of the acquired assets are the personnel expenses for
employees to be retained by the Partnership in the operation
of the acquired assets, and (4) the personnel expenses that
would have been incurred by the Partnership in the operation
of the constructed assets and the non-personnel costs and
expenses that would have been incurred by the Partnership in
the operation of the acquired or constructed assets are
computed on the same basis as those incurred by the
Partnership in the operation of the Partnership's business at
similarly situated Partnership facilities or, if there are no
such similarly situated facilities, as estimated by the
General Partner in good faith using such assumptions as in its
sole discretion it believes are reasonable. If (1) the
Partnership makes a Capital Improvement or (2) the Partnership
makes an Acquisition for which no financial statements are
required to be furnished pursuant to Regulation S-X under the
Securities Exchange Act of 1934, then the amount of Adjusted
Operating Surplus in clause (A) attributable to such
Acquisition or Capital Improvement shall be estimated by the
General Partner in good faith using such assumptions as in its
sole discretion it believes are reasonable. In determining
Adjusted Operating Surplus attributable to an Acquisition or a
Capital Improvement, there shall be excluded from the amount
in
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clause (B) above (i) any Operating Surplus attributable to
such Acquisition or Capital Improvement (regardless of whether
such Operating Surplus is positive or negative), and (ii) for
the purpose of calculating the number of outstanding Units,
any Units issued to finance the Acquisition or Capital
Improvement. The number of Units, excluding any Common Units
or other Parity Units to be issued in connection with or
within 365 days of such Acquisition or Capital Improvement,
deemed to be Outstanding for the purpose of calculating the
amounts in clause (A) and clause (B) shall be the weighted
average number of Units Outstanding during the One Year Test
Period. For the purposes of this Section 5.7(b), the term
"debt" shall be deemed to include the indebtedness used to
extend, refinance, renew, replace or defease debt originally
incurred in connection with an Acquisition or Capital
Improvement; provided, that, the amount of such indebtedness
does not exceed the principal sum of, plus accrued interest
on, the indebtedness so extended, refinanced, renewed,
replaced or defeased.
(b) Section 5.7 is amended to add a new subsection (g)
thereto as follows:
(g) During the Subordination Period, the Partnership
may also issue an unlimited number of Common Units and other
Parity Units without the prior approval of the Unitholders, if
the net proceeds of such issuance are used to redeem an equal
number of Common Units at a price per unit equal to the net
proceeds per unit, before expenses, that the Partnership
receives from such issuance.
Section 2. Ratification of Partnership Agreement. Except as
expressly modified and amended herein, all of the terms and conditions of the
Partnership Agreement shall remain in full force and effect.
Section 3. Governing Law. This Amendment No. 1 will be
governed by and construed in accordance with the laws of the State of Delaware.
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SIGNATURE PAGE
AMENDMENT NO. 1
TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF NATURAL RESOURCE PARTNERS L.P.
IN WITNESS WHEREOF, the General Partner has executed this Amendment No.
1 as of the date first set forth above.
GENERAL PARTNER:
NRP (GP) LP
BY: GP NATURAL RESOURCE PARTNERS LLC,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and General Counsel