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EXHIBIT 3.3
AMENDMENT NO. 1 TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRL UNIVERSAL EQUIPMENT 2001 A, L.P.
Dated as of July 24, 2001
This Amendment No. 1 (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, and the parties designated as the Limited
Partners herein.
WHEREAS, BRL Universal Equipment Management, Inc. and Xxxxxxx X. Xxxxxx
executed the Agreement of Limited Partnership of BRL Universal Equipment 2001 A,
L.P. dated as of January 18, 2001;
WHEREAS, BRL Universal Equipment Management, Inc., Deutsche Bank A.G.,
New York Branch, and First Union National Bank 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, the parties hereto have executed this Amendment to amend the
Partnership Agreement to reflect, among other things, (i) the clarification of
the parties intent with respect to net loss allocation as presented in Section
5.1.4; (ii) to add new defined terms and to revise certain definitions; and
(iii) to provide procedures for the contribution of additional capital by
existing Limited Partners and for the admission of new Limited Partners without
further amendment to the Partnership Agreement.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
1. Article 1 of the Partnership Agreement is amended hereby by deleting
the first paragraph thereof in its entirety and substituting therefor
the following:
"Definitions: Unless the context otherwise requires,
capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth or referred to in Appendix
A, as amended, restated, modified or supplemented from time to
time, to the Participation Agreement dated as of February 9,
2001 among BRL Universal Equipment 2001 A, L.P., BRL Universal
Equipment Management, Inc., Universal Compression, Inc.,
Universal Compression Holdings, Inc., The Bank of New York and
the Tranche B Lenders, Administrative Agent and Collateral
Agent, each as defined therein, as the same may be amended,
Amendment No. 1 - Page 1
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restated, modified or supplemented, which Appendix A also
contains the rules of usage that shall apply hereto. As used
in this Agreement, unless otherwise specified, the following
terms (in addition to the terms defined elsewhere herein), and
the singular or plural thereof, shall have the following
meanings when used herein with initial capital letters:"
2. Article 1 of the Partnership Agreement is amended, effective as of
February 9, 2001, by adding the following definition as a new Section
1.11.1:
"GAAP: "GAAP" means generally accepted accounting principles
as set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in other
statements by any other entity as may be approved by a
significant segment of the accounting profession of the United
States."
3. Section 1.191 of the Partnership Agreement is amended hereby by
deleting in its entirety and substituting therefor the following:
"MAJORITY LIMITED PARTNERS: "Majority Limited Partners" means
Limited Partners with Capital Accounts in the aggregate in
excess of fifty percent (50%) of all Capital Accounts of the
Limited Partners."
4. Section 5.1.4 of the Partnership Agreement is amended, effective as
of February 9, 2001, by deleting in its entirety and substituting
therefor the following:
"Net Loss. Except as provided in Section 5.1.5 and 5.1.6, and
subject to Section 12.2, Net Loss for any fiscal year shall be
allocated to the Limited Partner."
5. Article 9 of the Partnership Agreement is amended hereby by deleting
its title and renaming it as "Assignment, Substitution and Admission of
New Limited Partners".
6. Section 9.5.4 of the Partnership Agreement is amended hereby by
renumbering it as Section 9.2.4.
7. Section 9.6 of the Partnership Agreement is amended hereby by
renumbering it as Section 9.3.
8. Article 9 of the Partnership Agreement is amended hereby by adding a
new Section 9.4 as follows:
Section 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
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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; provided that
the new Limited Partners and their respective Equity
Commitments and Capital Contributions are approved by 100% of
the then existing Limited Partners, as evidenced by the
execution by all existing Limited Partners 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 and the New Limited Partner Acceptance
Notice prepared by the General Partner substantially in the
form of Exhibit E to this Agreement. All new Limited Partners
shall be deemed admitted to the Partnership as Limited
Partners upon execution by all Partners of the New Limited
Partner Acceptance Notice. 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.
9. Section 12.2 of the Partnership Agreement is amended hereby by the
addition of the following sentence at the end thereof:
"Net Loss for GAAP purposes for any fiscal year shall be
allocated to the General Partner and not to any Limited
Partner."
10. Article 13 of the Partnership Agreement is amended hereby by the
addition of a new Section 13.2 as follows:
"Section 13.2 Amendment Requiring 100% Approval of Limited
Partners: Notwithstanding the provisions of Section 13.1
hereinabove, any provision of this Agreement which provides
for action, approval or consent of "all" or of 100% of the
Limited Partners may only be amended, supplemented, waived or
modified with the approval of 100% of the Limited Partners, as
evidenced by a written agreement and consent executed by 100%
of the Limited Partners."
11. Section 15.2 of the Partnership Agreement is amended hereby by the
addition of the following sentences at the end thereof:
"The General Partner shall give notice to all Limited Partners
of any proposed acquisition of additional Equipment, the
proposed Acquisition Cost thereof and the anticipated amount
of additional equity needed by the Partnership to fund the
purchase. Each Limited Partner shall be entitled to
participate in the contribution of such additional equity on a
pro rata basis (determined by reference to the Limited
Partners' total Capital Contributions as
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reflected as of the most recent date on Exhibit B of this
Agreement). If any Limited Partner does not want to
participate to the full extent of its pro rata entitlement,
the other Limited Partners may increase their participation on
a pro rata basis determined by reference to their respective
Capital Contributions as described herein. The consent of one
hundred percent (100%) of the Limited Partners shall be
required for any additional Capital Contributions, whether or
not all Limited Partners participate in making such Capital
Contributions, as evidenced by the execution by all Partners
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."
12. Effective as of the date hereof, Exhibit B to the Partnership
Agreement is amended hereby by deleting Exhibit B to the Partnership
Agreement in its entirety and substituting therefor Exhibit B attached
hereto.
13. Effective as of the date hereof, the Additional Capital
Contributions Approval Notice substantially in the form of Exhibit D
hereto is added as Exhibit D to the Partnership Agreement.
14. Effective as of the date hereof, the New Limited Partner Acceptance
Notice substantially in the form of Exhibit E hereto is added as
Exhibit E to the Partnership Agreement.
15. 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 (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.
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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/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Vice President
LIMITED PARTNER:
DEUTSCHE BANK A.G., NEW YORK BRANCH,
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Director
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
LIMITED PARTNER:
FIRST UNION NATIONAL BANK,
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
Amendment Xx. 0 - Xxxx 0
0
XXXXXXX X
LIST OF LIMITED PARTNERS, EQUITY COMMITMENTS AND CAPITAL
CONTRIBUTION
As of February 9, 2001
Partner Name and Address for Notices Equity Commitments Capital Contribution
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Deutsche Bank A.G., New York Branch $6,540,625 $6,540,625
c/o Deutsche Bank Alex. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx, Mail Stop 1411
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx, Xx., Director
Global Asset Finance and Leasing
Telephone: (000) 000-0000
Telefax: (000) 000-0000
First Union National Bank $6,540,625 $6,540,625
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Wateroff
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(Form of Supplement to Exhibit B to be completed by General Partner)
LIST OF EXISTING AND ADDITIONAL LIMITED PARTNERS, ADDITIONAL EQUITY
COMMITMENTS AND ADDITIONAL CAPITAL CONTRIBUTIONS
(All amounts shown below are cumulative as of the date below and
include all commitments and capital contributions made by
Limited Partners through and including the date below)
As of _________ __, 200_
Partner Name and Address for Notices Equity Commitments Capital Contribution
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Amendment Xx. 0 - Xxxx 0
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ADDITIONAL CAPITAL CONTRIBUTIONS APPROVAL NOTICE
Each of the undersigned parties, constituting all of the Partners of
BRL Universal Equipment 2001 A, L.P., hereby evidences their respective consent
and approval of additional Capital Contributions and/or admission of one or more
new Limited Partners as reflected on the revised Exhibit B dated as of ________
__, 200_ to the First Amended and Restated Agreement of Limited Partnership
dated as of February 9, 2001, as amended (the "Partnership Agreement"), attached
hereto in accordance with the terms of Section 9.4 and/or Section 15.2 of the
Partnership Agreement.
IN WITNESS WHEREOF, this Notice has been executed as of the __ day of
_____, 200_.
GENERAL PARTNER:
BRL UNIVERSAL EQUIPMENT MANAGEMENT, INC.,
a Delaware corporation
By:
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Xxxxxxx X. Xxxxxx
President
LIMITED PARTNER:
DEUTSCHE BANK A.G., NEW YORK BRANCH,
By:
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Name:
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Title:
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By:
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Name:
-----------------------------------
Title:
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Amendment Xx. 0 - Xxxx 0
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XXXXXXX XXXXXXX:
First Union National Bank,
By:
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Name:
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Title:
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EXHIBIT E
NEW LIMITED PARTNER ACCEPTANCE NOTICE
The undersigned parties, constituting the General Partner of BRL
Universal Equipment 2001 A, L.P. (the "Partnership"), all of the existing
Limited Partners of the Partnership and a new Limited Partner to be admitted to
the Partnership upon execution hereof, hereby evidence their respective consent
and approval of the admission of _____________________ as a new Limited Partner
(the "New Limited Partner") with the Equity Commitment and Capital Contribution
as reflected on the revised Exhibit B dated as of ________ __, 200_ to the First
Amended and Restated Agreement of Limited Partnership dated as of February 9,
2001, as amended (the "Partnership Agreement"), attached hereto in accordance
with the terms of Section 9.4 of the Partnership Agreement. Upon execution
hereof, the New Limited Partner is deemed to have executed the Partnership
Agreement and accepted all of its provisions as set forth in Section 4.1.2
thereof.
IN WITNESS WHEREOF, this Notice has been executed as of the __ day of
_____, 200_.
GENERAL PARTNER:
BRL UNIVERSAL EQUIPMENT MANAGEMENT, INC.,
a Delaware corporation
By:
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Xxxxxxx X. Xxxxxx
President
EXISTING AND NEW LIMITED PARTNERS:
--------------------------------
By:
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Name:
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Title:
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Amendment No. 1 - Page 9
