AMENDMENT NO. 2 TO THE THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF PENN VIRGINIA RESOURCE PARTNERS, L.P.
EXHIBIT
3.1
AMENDMENT
NO. 2
TO
THE
OF
PENN
VIRGINIA RESOURCE PARTNERS, L.P.
This
Amendment No. 2 to the Third Amended and Restated Agreement of Limited
Partnership of Penn Virginia Resource Partners, L.P., a Delaware limited
partnership (the “Partnership”), dated as of
March 31, 2010 and effective immediately
prior to the closing of the secondary public offering of common units in Penn
Virginia GP Holdings, L.P. on March 31, 2010 (this “Amendment”), is made and
entered into by Penn Virginia Resource GP, LLC, a Delaware limited liability
company, as general partner of the Partnership (the “General
Partner”). Capitalized terms used herein and not otherwise
defined are used as defined in the Third Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of August 5, 2008, as amended
(the “LP
Agreement”).
WITNESSETH
WHEREAS, the Partnership is a
Delaware limited partnership that was formed under the Delaware Revised Uniform
Limited Partnership Act, 6 Del. C. §
17-101, et
seq., and is
currently governed by the LP Agreement;
WHEREAS, simultaneously with
the effectiveness of this Amendment, the Partnership is acquiring a non-economic
management interest in the General Partner;
WHEREAS, the General Partner
desires to amend the LP Agreement as set forth herein pursuant to and in
accordance with Section 13.1 of the LP Agreement; and
WHEREAS, this Amendment is
intended to provide Limited Partners with a right to vote in the election of
certain directors of the General Partner with respect to the non-economic
management interests held by the Partnership in the General Partner; however,
for the avoidance of doubt, this Amendment is not intended to change in any
manner the requirement, as set forth in Section 13.2 of the LP Agreement, that
amendments to the LP Agreement may be proposed only by the General
Partner.
NOW, THEREFORE, intending to
be legally bound, the General Partner agrees as follows:
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I.
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AMENDMENTS.
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The LP
Agreement is amended as follows:
1. Section
1.1 of the LP Agreement is hereby amended by inserting thereto the following new
definitions in the appropriate alphabetical order that read as
follows:
““Board of Directors” shall mean the Board of
Directors of the General Partner.
“Class A Directors” shall have
the meaning set forth in the General Partner Agreement.
“Class B Directors” shall have
the meaning set forth in the General Partner Agreement.
“Directors” shall mean the
members of the Board of Directors.
“General Partner Agreement”
shall mean the Fifth Amended and Restated Limited Liability Company Agreement of
the General Partner, dated as of the date of Amendment No. 2 to this Agreement,
as amended or amended and restated from time to time.
“Triggering Resolution” shall
mean a resolution adopted by the Board of Directors (including a majority of the
Class A Directors) providing for staggered elections of the Class A Directors in
the manner set forth in Section 13.4(b)(v).”
2. Section
2.4 of the LP Agreement is hereby deleted and replaced in its entirety with the
following:
“The
purpose and nature of the business to be conducted by the Partnership shall be
to (a) serve as a member of the Finance Company and, in connection therewith, to
exercise all the rights and powers conferred upon the Partnership as a member of
the Finance Company pursuant to the Finance Company Agreement or otherwise, (b)
engage directly in, or enter into or form any corporation, partnership, joint
venture, limited liability company or other arrangement to engage indirectly in,
any business activity that the Finance Company is permitted to engage in by the
Finance Company Agreement or that its subsidiaries are permitted to engage in by
their limited liability company or partnership agreements and, in connection
therewith, to exercise all of the rights and powers conferred upon the
Partnership pursuant to the agreements relating to such business activity, (c)
engage directly in, or enter into or form any corporation, partnership, joint
venture, limited liability company or other arrangement to engage indirectly in,
any business activity that is approved by the General Partner and which lawfully
may be conducted by a limited partnership organized pursuant to the Delaware Act
and, in connection therewith, to exercise all of the rights and powers conferred
upon the Partnership pursuant to the agreements relating to such business
activity; provided, however, that the General Partner reasonably determines, as
of the date of the acquisition or commencement of such activity, that such
activity (i) generates “qualifying income” (as such term is defined pursuant to
Section 7704 of the Code) or a Subsidiary or a Partnership activity that
generates qualifying income or (ii) enhances the operations of an activity of
the Finance Company, (d) serve as a member of the General Partner and, in
connection therewith, to exercise all the rights and powers held by the
Partnership as a member of the General Partner, pursuant to the General Partner
Agreement, and (e) do anything necessary or appropriate to the foregoing,
including the making of capital contributions or loans to a Group
Member. The General Partner has no obligation or duty to the
Partnership, the Limited Partners or the Assignees to propose or approve, and in
its discretion may decline to propose or approve, the conduct by the Partnership
of any business.”
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3. Section
13.4 of the LP Agreement is hereby amended by deleting the words “Special Meetings” in the
Section header thereto and inserting in its place the word “Meetings”.
4. Section
13.4 of the LP Agreement is hereby amended by designating the first paragraph
thereof as subsection “(a)” and by inserting a new subsection (b) thereof that
reads as follows:
“(b)
(i) An
annual meeting of the Limited Partners holding Outstanding Units for the
election of Class A Directors to the Board of Directors and such other matters
as the General Partner shall submit to a vote of the Limited Partners holding
Outstanding Units shall be held in June of each year beginning in 2011 or at
such other date and time as may be fixed from time to time by the General
Partner at such place within or without the State of Delaware as may be fixed
from time to time by the General Partner and all as stated in the notice of the
meeting. Notice of the annual meeting shall be given in accordance
with Section 13.5 not less than 10 days nor more than 60 days prior to the date
of such meeting.
(ii)
The Limited Partners holding Outstanding Units (other than the General
Partner and those Limited Partners holding an interest in the General Partner or
any of their respective Affiliates) shall vote together as a single class for
the election of Class A Directors to the Board of Directors (but such Limited
Partners and their Units shall not, however, be treated as a separate class of
Partners or Partnership Securities for purposes of this
Agreement). The Limited Partners described in the immediately
preceding sentence shall elect by a plurality of the votes cast at such meeting
persons to serve as Class A Directors who are nominated in accordance with the
provisions of this Section 13.4(b). The exercise by a Limited Partner
of the right to elect the Class A Directors and any other rights afforded to
such Limited Partner under this Section 13.4(b) shall be in such Limited
Partner’s capacity as a limited partner of the Partnership and shall not cause a
Limited Partner to be deemed to be taking part in the management and control of
the business and affairs of the Partnership so as to jeopardize such Limited
Partner’s limited liability under the Delaware Act or the law of any other state
in which the Partnership is qualified to do business.
(iii) Solely
with respect to the election and removal of Class A Directors to the Board of
Directors, the General Partner, those Limited Partners holding an interest in
the General Partner and any of their respective Affiliates shall not be entitled
to vote Units that are otherwise entitled to vote at any meeting of the
Unitholders. If the General Partner has provided at least thirty days
advance notice of any meeting at which Class A Directors are to be elected, then
the Limited Partners holding Outstanding Units (other than the General Partner
and those Limited Partners holding an interest in the General Partner or any of
their respective Affiliates) that attend such meeting shall constitute a quorum,
and if the General Partner has provided less than thirty days advance notice of
any such meeting, then Limited Partners holding a majority of the Outstanding
Units (other than the General Partner and those Limited Partners holding an
interest in the General Partner or their respective Affiliates) shall constitute
a quorum.
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(iv)
The number of Class A Directors on the Board of
Directors shall be three or such other number as shall be set forth in the
General Partner Agreement. Immediately prior to the effectiveness of
Amendment No. 2 to this Agreement, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ were Independent Directors and, upon the effectiveness of Amendment
No. 2 to this Agreement, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ are each
appointed as a Class A Director. Until such time as a Triggering
Resolution has been adopted, each Class A Director shall be elected to serve a
term of one year to expire at the next annual meeting.
(v) This
Section 13.4(b)(v) shall become effective upon the adoption of a Triggering
Resolution, and no portion of this Section 13.4(b)(v) shall be effective unless
and until a Triggering Resolution has been adopted. The Class A
Directors shall be divided into three groups, Group I, Group II, and Group
III. The number of Class A Directors in each group shall be the whole
number contained in the quotient arrived at by dividing the authorized number of
Class A Directors by three, and if a fraction is also contained in such
quotient, then if such fraction is one-third, the extra director shall be a
member of Group I and if the fraction is two-thirds, one of the extra directors
shall be a member of Group I and the other shall be a member of Group
II. Each Class A Director shall serve for a term ending as provided
herein; provided, however, that the Class A Director designated in the
Triggering Resolution to Group I shall serve for an initial term that expires at
the annual meeting of Limited Partners held immediately following the Triggering
Resolution, the Class A Director designated in the Triggering Resolution to
Group II shall serve for an initial term that expires at the second annual
meeting of Limited Partners held following the Triggering Resolution, and the
Class A Director designated in the Triggering Resolution to Group III shall
serve for an initial term that expires at the third annual meeting of Limited
Partners held following the Triggering Resolution. At each succeeding
annual meeting of Limited Partners beginning with the first annual meeting
following the Triggering Resolution, successors to the Class A Directors whose
term expires at that annual meeting shall be elected for a three-year
term.
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(vi) Each
Class A Director shall hold office for the term for which such Class A Director
is elected and thereafter until such Class A Director’s successor shall have
been duly elected and qualified, or until such Class A Director’s earlier death,
resignation or removal. If, following a Triggering Resolution, the
number of Class A Directors is changed, any increase or decrease shall be
apportioned among the groups so as to maintain the number of Class A Directors
in each group as nearly equal as possible, and any additional Class A Director
of any group elected to fill a vacancy resulting from an increase in such group
shall hold office for a term that shall coincide with the remaining term of that
group, but in no case will a decrease in the number of Class A Directors shorten
the term of any incumbent Class A Director. Any vacancy in a Class A
Director on the Board of Directors (including, without limitation, any vacancy
caused by an increase in the number of Class A Directors on the Board of
Directors) may only be filled by the following procedure: (A) a majority of the
remaining Class A Directors (or if there are no Class A Directors, a majority of
the Class B Directors) shall nominate a person to fill the vacancy, and (B) the
remaining Directors shall consent to nominate such person (such consent not to
be unreasonably withheld or delayed) and thereafter such person shall be deemed
elected without any further action being required. Any Class A
Director elected to fill a vacancy not resulting from an increase in the number
of Class A Directors shall have the same remaining term as that of his
predecessor. Notwithstanding Section 13.11 of this Agreement, a Class
A Director may be removed only at a meeting of the Limited Partners upon the
affirmative vote of Limited Partners (other than the General Partner and those
Limited Partners holding an interest in the General Partner or any of their
respective Affiliates) holding a majority of the Outstanding Units (other than
the General Partner and those Limited Partners holding an interest in the
General Partner or any of their respective Affiliates); provided, however, a
Class A Director may only be removed if, at the same meeting. Limited Partners
holding a majority of the Outstanding Units nominate a replacement Class A
Director (and any such nomination shall not be subject to the nomination
procedures otherwise set forth in this Section 13.4), and Limited Partners
(other than the General Partner and those Limited Partners holding an interest
in the General Partner or any of their respective Affiliates) holding a majority
of the Outstanding Units (other than the General Partner and those Limited
Partners holding an interest in the General Partner or any of their respective
Affiliates) also vote to elect a replacement Class A Director, and, provided,
further, following a Triggering Resolution, a Class A Director may only be
removed for cause.
(vii) (A) (1)
Nominations of persons for election of Class A Directors to the Board of
Directors of the General Partner may be made at an annual meeting of the Limited
Partners only pursuant to the General Partner’s notice of meeting (or any
supplement thereto) (a) by or at the direction of a majority of the Class A
Directors (or, if there are no Class A Directors at that time, by or at the
direction of a majority of the Class B Directors) or (b) by a Limited Partner,
or a group of Limited Partners, that holds or beneficially owns, and has
continuously held or beneficially owned without interruption for the prior
eighteen (18) months, 5% of the Outstanding Units (in either case, a “Limited
Partner Group”) if each member of the Limited Partner Group was a Record Holder
at the time the notice provided for in this Section 13.4(b)(vii) is delivered to
the General Partner, and if the Limited Partner Group complies with the notice
procedures set forth in this Section 13.4(b)(vii).
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(2)
For any nominations brought before an annual
meeting by a Limited Partner Group pursuant to clause (c) of paragraph (A)(1) of
this Section 13.4(b)(vii), the Limited Partner Group must have given timely
notice thereof in writing to the General Partner. To be timely, a
Limited Partner Group’s notice shall be delivered to the General Partner not
later than the close of business on the ninetieth (90th) day,
nor earlier than the close of business on the one hundred twentieth (120th) day,
prior to the first anniversary of the preceding year’s annual meeting (provided,
however, that in the event that the date of the annual meeting is more than
thirty (30) days before or more than seventy (70) days after such anniversary
date, notice by the Limited Partner Group must be so delivered not earlier than
the close of business on the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the later of the
ninetieth (90th) day
prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of such meeting is
first made by the Partnership or the General Partner). For purposes
of the 2011 annual meeting, the first anniversary of the preceding year’s annual
meeting shall be deemed to be June 30, 2011. In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
Limited Partner Group’s notice as described above. Such Limited
Partner Group’s notice shall set forth: (a) as to each person whom
the Limited Partner Group proposes to nominate for election as a Class A
Director (i) all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to and in accordance
with Regulation 14A under the Securities Exchange Act and the rules and
regulations promulgated thereunder and (ii) such person’s written consent to
being named in the proxy statement as a nominee and to serving as a Class A
Director if elected; and (b) as to each member of the Limited Partner Group
giving the notice and the beneficial owner, if any, on whose behalf the
nomination is made (i) the name and address of such Limited Partners, as they
appear on the Partnership’s books and records, and of such beneficial owners,
(ii) the class or series and number of Units which are owned beneficially and of
record by such Limited Partners and such beneficial owners, (iii) a description
of any agreement, arrangement or understanding with respect to the nomination
between or among any or all members of such Limited Partner Group and/or such
beneficial owners, any of their respective Affiliates or associates, and any
others acting in concert with any of the foregoing, including each nominee, (iv)
a description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, warrants, equity
appreciation or similar rights, hedging transactions, and borrowed or loaned
Units) that has been entered into as of the date of the Limited Partner Group’s
notice by, or on behalf of, any members of such Limited Partner Group and such
beneficial owners, the effect or intent of which is to mitigate loss to, manage
risk or benefit of Unit price changes for, or increase or decrease the voting
power of, such Limited Partners and such beneficial owner, with respect to
Units, (v) a representation that each member of the Limited Partner Group is a
Record Holder entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such nomination, (vi) a representation
whether any member of the Limited Partner Group or the beneficial owners, if
any, intend or are part of a group which intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Partnership’s Outstanding Units required to elect the nominee and/or (b)
otherwise to solicit proxies from Limited Partners in support of such
nomination, and (vii) any other information relating to any member of such
Limited Partner Group and beneficial owners, if any, required to be disclosed in
a proxy statement or other filings required to be made in connection with
solicitations of proxies for the election of directors in an election contest
pursuant to and in accordance with Section 14(a) of the Securities Exchange Act
and the rules and regulations promulgated thereunder. The General
Partner may require any proposed nominee to furnish such other information as it
may reasonably require to determine the eligibility of such proposed nominee to
serve as a Class A Director of the General Partner.
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(3) Notwithstanding
anything in the second sentence of paragraph (A)(2) of this Section 13.4(b)(vii)
to the contrary, in the event that the number of Class A Directors to be elected
to the Board of Directors of the General Partner is increased effective after
the time period for which nominations would otherwise be due under paragraph
(A)(2) of this Section 13.4(b)(vii) and there is no public announcement by the
Partnership or the General Partner naming the nominees for the additional
directorships at least one hundred (100) days prior to the first anniversary of
the preceding year’s annual meeting, a Limited Partner Group’s notice required
by this Section 13.4(b)(vii) shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall be delivered
to the General Partner not later than the close of business on the tenth
(10th) day
following the day on which such public announcement is first made by the
Partnership or the General Partner.
(B) Nominations
of persons for election as a Class A Director to the Board of Directors may be
made at a special meeting of Limited Partners at which Class A Directors are to
be elected pursuant to the General Partner’s notice of meeting (1) by or at the
direction of a majority of the Class A Directors (or, if there are no Class A
Directors at that time, by or at the direction of a majority of the Class B
Directors) or (2) provided that the Board of Directors has determined that Class
A Directors shall be elected at such meeting, by any Limited Partner Group
pursuant to Section 13.4(a) hereof, if each member of such Limited Partner Group
is a Record Holder at the time the notice provided for in this Section
13.4(b)(vii) is delivered to the General Partner and if the Limited Partner
Group complies with the notice procedures set forth in this Section
13.4(b)(vii). In the event the General Partner calls a special
meeting of Limited Partners for the purpose of electing one or more Class A
Directors to the Board of Directors, any such Limited Partner Group may nominate
a person or persons (as the case may be) for election to such position(s) as
specified in the General Partner’s notice of meeting, if the Limited Partner
Group’s notice required by paragraph (A)(2) of this Section 13.4(b)(vii) shall
be delivered to the General Partner not earlier than the close of business on
the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day
prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of
an adjournment or postponement of a special meeting commence a new time period
(or extend any time period) for the giving of a Limited Partner Group’s notice
as described above.
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(C) (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 13.4(b) shall be eligible to be elected at an annual or special
meeting of Limited Partners to serve as Class A Directors. Except as
otherwise provided by law, the chairman designated by the General Partner
pursuant to Section 13.10 shall have the power and duty (a) to determine whether
a nomination was made in accordance with the procedures set forth in this
Section 13.4(b) (including whether the members of the Limited Partner Group or
beneficial owner, if any, on whose behalf the nomination is made solicited (or
is part of a group which solicited) or did not so solicit, as the case may be,
proxies in support of such Limited Partner Group’s nominee in compliance with
such Limited Partner Group’s representation as required by clause (A)(2)(a)(vi)
of this Section 13.4(b)(vii)) and (b) if any proposed nomination was not made in
compliance with this Section 13.4(b), to declare that such nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section
13.4(b), unless otherwise required by law, if each member of the Limited Partner
Group (or a qualified representative of each member of the Limited Partner
Group) does not appear at the annual or special meeting of Limited Partners to
present a nomination, such nomination shall be disregarded notwithstanding that
proxies in respect of such vote may have been received by the General Partner or
the Partnership. For purposes of this Section 13.4(b), to be
considered a qualified representative of a member of the Limited Partner Group,
a person must be a duly authorized officer, manager or partner of such Limited
Partner or must be authorized by a writing executed by such Limited Partner or
an electronic transmission delivered by such Limited Partner to act for such
Limited Partner as proxy at the meeting of Limited Partners and such person must
produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of Limited
Partners.
(2) For
purposes of this Section 13.4(b)(vii), “public announcement” shall include
disclosure in a press release reported by the Dow ▇▇▇▇▇ News Service, Associated
Press or other national news service or in a document publicly filed by the
Partnership or the General Partner with the Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act and the rules and regulations
promulgated thereunder.
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(3) Notwithstanding
the foregoing provisions of this Section 13.4(b)(vii), a Limited Partner shall
also comply with all applicable requirements of the Securities Exchange Act and
the rules and regulations thereunder with respect to the matters set forth in
this Section 13.4(b)(vii); provided however, that any references in this
Agreement to the Securities Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any requirements
applicable to nominations pursuant to this Section 13.4(b)(vii) (including
paragraphs A(1)(c) and B hereof), and compliance with paragraphs A(1)(c) and B
of this Section 13.4(b)(vii) shall be the exclusive means for a Limited Partner
to make nominations.
(viii) This
Section 13.4(b) shall not be deemed in any way to limit or impair the ability of
the Board of Directors to adopt a “poison pill” or unitholder or other similar
rights plan with respect to the Partnership, whether such poison pill or plan
contains “dead hand” provisions, “no hand” provisions or other provisions
relating to the redemption of the poison pill or plan, in each case as such
terms are used under Delaware common law.
(ix) The
Partnership and the General Partner shall use their commercially reasonable best
efforts to take such action as shall be necessary or appropriate to give effect
to and implement the provisions of this Section 13.4(b), including, without
limitation, amending the organizational documents of the General Partner such
that at all times the organizational documents of the General Partner shall
provide (i) that the Class A Directors shall be elected in accordance with the
terms of this Agreement, and (ii) terms consistent with this Section
13.4(b).
(x)
If the General Partner delegates to an existing or newly
formed wholly owned Subsidiary the power and authority to manage and control the
business and affairs of the Partnership Group, the foregoing provisions of this
Section 13.4(b) shall be applicable with respect to the Board of Directors or
other governing body of such Subsidiary.”
5. Section
13.9 of the LP Agreement is hereby amended to replace the word “The” at the
beginning of the first sentence thereof with the following:
“Subject
to Section 13.4(b), the”.
6. The
parenthetical set forth in Section 13.12(a) of the LP Agreement is hereby
amended in its entirety to read as follows:
“(and
subject to the limitations contained in the definition of “Outstanding” and the
limitations set forth in Section 13.4(b))”.
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II.
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MISCELLANEOUS.
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1. Successors and
Assigns. This Amendment shall be binding upon, and shall enure
to the benefit of, each of the Partners, and its respective successors and
assigns.
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2. Full Force and
Effect. Except to the extent modified hereby, the LP Agreement
shall remain in full force and effect.
3. Governing
Law. This Amendment shall be interpreted in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
4. Execution in
Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned has caused this Amendment to be duly executed
as of the day and year first above written.
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GENERAL
PARTNER:
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PENN
VIRGINIA RESOURCE GP, LLC
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. | |
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Title:
Chief
Executive
Officer
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