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
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entered into by and between BRL Universal Equipment Management, Inc., a Delaware
corporation, as the General Partner ("GENERAL PARTNER"), and Deutsche Bank A.G.,
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New York Branch ("DEUTSCHE") and First Union National Bank ("FIRST UNION"), as
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the Limited Partners.
WHEREAS, General Partner and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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
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AGREEMENT"); and
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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")
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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
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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
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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 Capital
Amendment. No. 2 - Page 1
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
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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
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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
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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
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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
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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 extend the
Amendment. No. 2 - Page 2
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 (whether the
Amendment. No. 2 - Page 3
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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EXECUTION PAGES TO FOLLOW]
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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President
LIMITED PARTNER:
DEUTSCHE BANK A.G., NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Managing Director
LIMITED PARTNER:
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Vice President
Amendment. No. 2 to the 1st Amended and Restated Agmt. For Ltd.
Partnership - Exhibit E