EXHIBIT 3.1
AMENDMENT NO. 2 TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRL UNIVERSAL EQUIPMENT 2001 A, L.P.
Dated as of October 23, 2001
This Amendment No. 2 (the "AMENDMENT") dated as of the above date is
entered into by and between BRL Universal Equipment Management, Inc., a Delaware
corporation, as the General Partner ("GENERAL PARTNER"), and Deutsche Bank A.G.,
New York Branch ("DEUTSCHE") and First Union National Bank ("FIRST UNION"), as
the Limited Partners.
WHEREAS, General Partner and Xxxxxxx X. Xxxxxx executed the Agreement
of Limited Partnership of BRL Universal Equipment 2001 A, L.P. dated as of
January 18, 2001; and
WHEREAS, General Partner, Deutsche, First Union and Xxxxxxx X. Xxxxxx
executed the First Amended and Restated Agreement of Limited Partnership of BRL
Universal Equipment 2001 A, L.P. dated as of February 9, 2001 ("PARTNERSHIP
AGREEMENT"); and
WHEREAS, General Partner, Deutsche and First Union executed that
certain Amendment No. 1 to the First Amended and Restated Agreement of Limited
Partnership of BRL Universal Equipment 2001 A, L.P. (the "FIRST AMENDMENT")
dated as of July 24, 2001 (the Partnership Agreement, as amended by the First
Amendment, and as further amended, restated or modified, hereinafter referred to
as the "PARTNERSHIP AGREEMENT"); and
WHEREAS, the parties hereto have executed this Amendment to amend the
Partnership Agreement to reflect, among other things, (a) the clarification of
the parties intent with respect to approvals by the Limited Partners for (i) the
contribution of additional capital by existing Limited Partners; (ii) the
admission of new Limited Partners; and (iii) amendments to the Partnership
Agreement; and (b) additional capital contributed by Limited Partners on the
date hereof.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
1. Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Partnership Agreement.
2. The following shall be added as new Section 1.7.1 to Article 1 of
the Partnership Agreement:
"1.7.1 "CLOSING DATE" means (i) with respect to any Capital
Contribution, the Funding Date thereof, (ii) with respect to
any representation or warranty of the General Partner, each
Funding Date, (iii) with respect to any representation or
warranty of any Limited Partner, each Funding Date on which it
makes a Capital Contribution, (iv) with respect to any
condition precedent, the Funding Date for the
Amendment. No. 2 - Page 1
Capital Contribution subject to such condition precedent and
(v) with respect to Section 18.6, February 9, 2001."
3. The following shall be added as new Section 1.8.1 to Article 1 of
the Partnership Agreement:
"1.8.1 "COMMITMENT TERMINATION DATE" means with respect to any
Limited Partner's Equity Commitment, the date set forth as the
Commitment Termination Date for such Limited Partner on
Exhibit B attached hereto and made a part hereof."
4. The following shall be added as new Section 1.11.1 to Article 1 of
the Partnership Agreement:
"1.11.1 "FUNDING DATE" means with respect to any Capital
Contribution, the date on which such Capital Contribution is
made, which date shall also be a "Funding Date" as defined in
the Appendix A to Participation Agreement referenced in the
first paragraph of this Article 1."
5. Section 9.4 of the Partnership Agreement is hereby deleted in its
entirety and the following shall be substituted in place thereof:
"9.4 Admission of New Limited Partners: In the event the
General Partner gives notice of the need for additional equity
as described in Section 15.2 of this Agreement, and the
additional Capital Contributions agreed to be provided by some
or all of the then existing Limited Partners is less than
necessary to complete the proposed acquisition of additional
Equipment, the General Partner may admit new Limited Partners.
All new Limited Partners shall be deemed admitted to the
Partnership as Limited Partners upon execution by the General
Partner and the new Limited Partners of the New Limited
Partner Acceptance Notice prepared by the General Partner
substantially in the form of Exhibit E to this Agreement. The
execution of the New Limited Partner Acceptance Notice by a
new Limited Partner shall constitute execution and acceptance
of this Agreement by such new Limited Partner for all
purposes."
6. Section 13.1 of the Partnership Agreement is hereby deleted in its
entirety and the following shall be substituted in place thereof:
"13.1 Approval of Amendment: Except as otherwise expressly
provided, this Agreement or any terms hereof may not be
amended, supplemented, waived or modified without the written
agreement and consent of the General Partner and the Majority
Limited Partners, which such consents shall not be
unreasonably withheld, and any such consent (except as
provided below) shall be binding on all Limited Partners,
provided, that no such amendment, modification, waiver or
supplement shall, (i) without the consent of a Limited
Partner, (A) extend or increase the amount of its Equity
Commitment, (B) extend or reduce the scheduled repayment of
its Equity Contribution, or reduce the rate or
Amendment. No. 2 - Page 2
extend the time of payment of Limited Partner Preferred Return
or any indemnity for increased costs or Breakage Costs under
Sections 6.5 and 6.6 (except (x) in connection with the waiver
of applicability of any post-default increase in interest
rates and (y) that any amendment or modification that is
agreed to by Majority Limited Partners directly affected
thereby to the financial definitions in the Operative
Documents shall not constitute a reduction in the Applicable
Equity Rate for purposes of this clause (B), notwithstanding
the fact that such amendment or modification would otherwise
actually result in such a reduction, so long as the primary
purpose (as determined in good faith by the Majority Limited
Partners) of the respective amendment or modification was not
to decrease the pricing pursuant to this Agreement and the
other Operative Documents), (C) reduce or limit its right to
make additional Equity Contributions pursuant to Section 15.2,
(D) release all or substantially all of Partnership's interest
in the Equipment (except as expressly provided herein or in
the Lease Agreement), (E) reduce the percentage specified in
the definition of Majority Limited Partners, or (F) amend
Article 13; (ii) without the consent of all Limited Partners
amend, supplement, modify or waive any of the provisions of
this Agreement in any manner that reduces or limits the
Partnership's ability to repay any Equity Contribution or
Limited Partner Preferred Return in accordance with the terms
of this Agreement or changes the allocation of losses as set
forth in Section 12.2; (iii) without the consent of Equity
Administrative Agent, amend, modify or waive any provision
relating to the rights or obligations of Equity Administrative
Agent; or (iv) without the consent of General Partner, amend,
modify or waive any provision relating to the rights or
obligations of General Partner."
7. The last sentence of Section 15.2 of the Partnership Agreement is
hereby deleted in its entirety and the following shall be substituted
in place thereof:
"The contribution and commitment of additional Capital
Contributions by Limited Partners shall be evidenced by the
execution by the General Partner and the Limited Partners
making such additional Capital Contributions and Equity
Commitments of the Additional Capital Contributions Approval
Notice which shall be prepared by the General Partner
substantially in the form of Exhibit D to this Agreement."
8. Effective as of the date hereof, Exhibit B attached to the
Partnership Agreement is hereby deleted in its entirety and replaced
with Exhibit B attached hereto.
9. Effective as of the date hereof, Exhibit D attached to the
Partnership Agreement is hereby deleted in its entirety and replaced
with Exhibit D attached hereto.
10. Effective as of the date hereof, Exhibit E attached to the
Partnership Agreement is hereby deleted in its entirety and replaced
with Exhibit E attached hereto.
11. This Agreement may be executed (i) in multiple counterparts, each
of which shall be regarded as an original and all of which shall
constitute a single instrument and shall become effective as of the
date hereof when each of the parties hereto shall have signed a copy
hereof
Amendment. No. 2 - Page 3
(whether the same or different copies) and (ii) by facsimile signature
and each such signature shall be treated in all respects as having the
same effect as an original signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
EXECUTION PAGES TO FOLLOW]
Amendment. No. 2 - Page 4
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
GENERAL PARTNER:
BRL UNIVERSAL EQUIPMENT MANAGEMENT,
INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
President
LIMITED PARTNER:
DEUTSCHE BANK A.G., NEW YORK BRANCH
By: /s/ Xxxxx Xxxxx
-------------------------------------
Director
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------
Managing Director
LIMITED PARTNER:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Vice President
Amdmt. No. 2 to the 1st Amended and Restated Agmt. For Ltd. Partnership -
Exhibit E
