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EXHIBIT 10.43
LOAN AGREEMENT
among
WILMINGTON TRUST COMPANY,
Not In Its Individual Capacity but
solely as Trustee of
UNIVERSAL COMPRESSION TRUST (2000-1)
under the Trust Agreement
Dated as of May __, 2000
as Borrower
BANKERS TRUST COMPANY
as Administrative Agent
BANKERS TRUST COMPANY
as Collateral Agent
and
THE LENDERS PARTY HERETO
as Lenders
Dated as of May __, 2000
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TABLE OF CONTENTS
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1. INTERPRETATION............................................................1
1.1. Headings....................................................1
1.2. Time........................................................1
1.3. Construction................................................1
1.4. Entire Agreement............................................1
1.5. Calculation of Interest, Fees, etc..........................1
1.6. Other Interpretive Provisions...............................1
2. THE CREDITS...............................................................2
2.1. Lender Commitment...........................................2
2.2. Payment to Borrower.........................................2
2.3. Notes.......................................................2
2.4. Payments....................................................2
2.4.1. Principal..........................................2
2.4.2. Interest...........................................3
2.4.3. Loan Availability Fee..............................3
2.4.4. Overdue Rate.......................................3
2.4.5. Payment Instructions...............................3
2.4.6. Business Day Convention............................4
2.4.7. Ratable Partial Prepayments........................4
2.5. Prepayments Limited.........................................4
2.6. Mandatory Prepayments.......................................4
2.6.1. Event of Loss......................................4
2.6.2. Non-Completion of Equipment........................4
2.6.3. Sale of Items of Equipment.........................5
2.6.4. Other Termination of Lease Agreement...............5
2.7. Application of Prepayments..................................5
3. CONDITIONS PRECEDENT......................................................5
3.1. Conditions of Term Loans....................................5
4. AFFIRMATIVE COVENANTS.....................................................6
4.1. Obligations.................................................6
4.2. Enforcement.................................................6
4.3. Defense.....................................................6
4.4. No Commingling of Funds.....................................6
4.5. Lessor Collateral...........................................6
4.6. Financial Information.......................................6
4.7. Inspection..................................................7
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5. NEGATIVE COVENANTS........................................................7
5.1. Limitation on Liens.........................................7
5.2. Change of Name or Principal Office..........................7
5.3. No Amendments...............................................7
5.4. No Waiver of Default........................................7
6. EVENTS OF DEFAULT.........................................................7
6.1. Loan Events of Default......................................7
6.1.1. Non-Payment........................................8
6.1.2. Misleading Statements..............................8
6.1.3. Breaches of Other Operative Documents..............8
6.1.4. Insolvency Events..................................8
6.1.5. Monetary Judgments.................................9
6.1.6. Non-Monetary Judgments.............................9
6.1.7. Termination of the Trust...........................9
6.1.8. Cross Default......................................9
6.1.9. Investment Company.................................9
6.2. Remedies of Lenders.........................................9
6.2.1. Rights in Collateral...............................9
6.2.2. Acceleration.......................................9
6.2.3. Delivery of Documents; Taking Possession of
Collateral........................................10
6.2.4. Possession of Collateral..........................10
6.2.5. Sale of Collateral................................11
6.2.6. Discharge.........................................11
6.2.7. Appointment of Receiver...........................11
6.2.8. Redemption........................................12
6.2.9. Rights Cumulative; No Waiver......................12
6.2.10. Termination of Proceedings........................12
6.3. Rights Not Exclusive.......................................13
7. MISCELLANEOUS............................................................13
7.1. Amendment or Waiver........................................13
7.2. Notices....................................................13
7.3. No Waiver; Cumulative Remedies.............................13
7.4. Payments Set Aside.........................................13
7.5. Assignments................................................13
7.6. Set-off....................................................14
7.7. Execution and Effectiveness................................14
7.8. Severability...............................................14
7.9. Acknowledgments............................................14
7.10. Concerning Lessor..........................................14
7.11. Further Assurances.........................................15
7.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL..............................................15
(ii)
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7.13. Survival of Agreement......................................16
7.14. Domicile of Loans..........................................16
EXHIBIT A [Form of] Note
(iii)
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THIS LOAN AGREEMENT (this "Agreement") is entered into as of
May __, 2000 among WILMINGTON TRUST COMPANY, not in its individual capacity but
solely as Trustee of Universal Compression Trust (2000-1) under the Trust
Agreement dated as of May __, 2000, as Borrower ("Borrower"), the several
lenders from time to time parties to this Agreement (collectively, the
"Lenders"), BANKERS TRUST COMPANY, as Collateral Agent ("Collateral Agent") and
BANKERS TRUST COMPANY, as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not otherwise defined in this Agreement
shall have the respective meaning given to such terms in Appendix A attached to
the Participation Agreement dated as of May __, 2000 (the "Participation
Agreement") among the Borrower, the Lenders, the Administrative Agent, the
Collateral Agent and the other parties thereto.
W I T N E S S E T H :
Borrower, Administrative Agent, Collateral Agent and Lenders
have agreed to enter into this Agreement pursuant to the terms and conditions of
the Participation Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
1. INTERPRETATION
1.1. Headings. Headings in this Agreement are for convenience
of reference only and are not part of the substance hereof.
1.2. Time. All references in this Agreement to a time of day
shall mean the time in New York City unless otherwise indicated.
1.3. Construction. This Agreement is the result of
arm's-length negotiations among, and has been reviewed by, each party hereto and
its counsel. Accordingly, this Agreement shall be deemed to be the product of
each of the parties hereto, and no ambiguity shall be construed in favor of or
against any party.
1.4. Entire Agreement. This Agreement and each of the other
Operative Documents, taken together, constitute and contain the entire agreement
of the parties hereto and supersede any and all prior agreements, negotiations,
correspondence, understandings and communications among the parties, whether
written or oral, respecting the subject matter hereof.
1.5. Calculation of Interest, Fees, etc. All calculations of
interest, fees and other amounts under this Agreement for any period shall
include the first day of such period and exclude the last day of such period.
1.6. Other Interpretive Provisions. References in this
Agreement to "Sections," "Schedules" and "Exhibits" are to sections, schedules
and exhibits herein and hereto unless otherwise indicated.
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2. THE CREDITS
2.1. Lender Commitment. Subject to and upon the terms and
conditions set forth in this Agreement and the Participation Agreement during
the Commitment Period, each Lender agrees to make multiple, non-revolving loans
in accordance with Section 4.2 of the Participation Agreement, to Borrower in an
aggregate principal amount up to the amount of its Lender Commitment (each such
advance, a "Loan").
2.2. Payment to Borrower. The closing for each Loan shall
occur on a Funding Date. If the conditions precedent to a Lender's obligation to
make a Loan (as set forth in Section 3.2 of the Participation Agreement) are
satisfied or waived on or before 2:00 p.m. (New York time) on a Business Day,
each Lender shall make available to Borrower on the same Business Day the amount
of the Loan in immediately available funds. If the conditions precedent to a
Lender's obligation to make a Loan (as set forth in Section 3.2 of the
Participation Agreement) are not satisfied or waived until after 2:00 p.m. (New
York time) on a Business Day, each Lender shall make available to Borrower on
the next succeeding Business Day the amount of the Loan in immediately available
funds; provided, however, the Funding Date shall be deemed to be the previous
Business Day on which the funding was to have occurred. Amounts advanced by each
Lender hereunder shall be made by wire transfer on behalf of Borrower to Lessee
in immediately available funds at such bank or account maintained in the United
States as Lessee shall designate in writing to Administrative Agent no later
than 11:00 a.m. (New York) time on the Business Day preceding the proposed
Funding Date.
2.3. Notes. (a) All of the Loans made by each Lender shall be
evidenced by a single promissory note of Borrower in substantially the form of
Exhibit A hereto with the blanks and payment amounts appropriately completed in
conformity herewith (each, a "Note").
(b) The Note issued to each Lender shall (i) be executed by
Borrower, (ii) be payable to such Lender or registered assigns and be dated the
Closing Date, (iii) be in a stated principal amount equal to the Lender
Commitment of such Lender and be payable in the principal amount of the Loans
evidenced thereby, (iv) mature on the Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 2.5.2, as the case may be, (vi) be
subject to mandatory repayment as provided in Section 2.7 and (vii) be entitled
to the benefits of this Agreement and the other Operative Documents.
(c) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect Borrower's obligations in respect of such Loans.
2.4. Payments.
2.4.1. Principal. Unless otherwise required to be
paid earlier under Section 2.7 or 7.2, the principal amount of the Loans shall
be payable on the Maturity Date.
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2.4.2. Interest. Borrower agrees to pay to each
Lender on each Payment Date for a Loan interest in respect of the unpaid
principal amount of such Loan from the date the proceeds thereof are disbursed
to Borrower in accordance with Section 2.2 until the date on which such Loan
(together with accrued and unpaid interest thereon) is repaid in full (whether
on the Maturity Date, by acceleration or otherwise) at the Debt Rate calculated
for each day elapsed since the immediately preceding Payment Date, or in the
case of the first Payment Date for such Loan, since the Funding Date therefor as
follows:
DR x P x 1/D
where,
DR = the Debt Rate for such day;
P = the unpaid principal balance of such Loan
on such day; and
D = 360 or, to the extent the Debt Rate is
based on the Alternate Rate, 365 or 366
days, as applicable.
2.4.3. Loan Availability Fee. Borrower hereby agrees
to pay each Lender on each Payment Date and on the Basic Term Commencement Date
an availability fee ("Loan Availability Fee") during the Commitment Period,
which fee shall be calculated for each day elapsed since the immediately
preceding Payment Date, or in the case of the first Payment Date hereunder,
since the date of the Participation Agreement as follows:
AFR x LAC x 1/360
where,
AFR = Availability Fee Rate for such date; and
LAC = such Lender's Lender Available Commitment
as of such date.
2.4.4. Overdue Rate. Borrower shall pay to each
Lender interest on any part of the principal amount of such Lender's Loans and
interest thereon, if any, Loan Availability Fees and any other amount payable by
Borrower hereunder or under the Participation Agreement which shall not be paid
in full when due (whether at stated maturity, by acceleration or otherwise) on
demand for the period commencing on the due date thereof until the same is paid
in full at the Overdue Rate.
2.4.5. Payment Instructions. All payments to any
Lender hereunder or under the other Operative Documents shall be made without
defense, set-off or counterclaim to the Collateral Agent no later than [12:00
Noon] (New York time) on the date when due and shall be made in lawful money of
the United States of America in immediately available funds to such account of
the Collateral Agent as the Collateral Agent may designate in a written notice
to Borrower, Lessee and Guarantor or such account as the Majority Lenders may
designate in a written notice to Borrower, Lessee and Guarantor. All payments
received after [12:00 Noon]
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(New York time) shall be deemed received on the next Business Day. The
Administrative Agent shall determine the Lease Payment, Debt Rate, the Equity
Rate, the Availability Fee Rate, the Overdue Rate, if any, the interest and
principal, if any, due on the Loans, the Equity Return, the Availability Fee,
the Equity Availability Fee and Loan Availability Fee to be due on each Payment
Date and shall advise Borrower, Lessee and each Lender of such amounts owed with
respect thereto at least two (2) Business Days before such Payment Date. No
failure on the part of Administrative Agent to provide a notice under this
Section 2.4.5 shall release Borrower of any obligation to make a payment in
accordance herewith, provided however, no Loan Default shall occur and no
interest at the Overdue Rate shall accrue with respect to the non-payment of any
such payment until the later of the date such payment is due and the date two
(2) Business Days after such notice is given.
2.4.6. Business Day Convention. Unless otherwise
provided herein, any payment of principal or interest or Loan Availability fee
due in accordance with the terms hereof which is due on a date which is not a
LIBOR Banking Day shall be payable on the next succeeding LIBOR Banking Day,
unless such date falls in the next succeeding calendar month, in which case such
amounts shall be due on the immediately preceding LIBOR Banking Day and any
other payment due in accordance with the terms hereof which is due on a date
which is not a Business Day shall be payable on the next succeeding Business
Day.
2.4.7. Ratable Partial Prepayments. If the
Administrative Agent, the Collateral Agent or any Lender, whether by setoff or
otherwise, has payment made to it with respect to any portion of amounts owing
to it under the Operative Documents (other than Excepted Payments) in a greater
proportion than that received by the other parties, the party receiving the
greater proportion agrees, promptly upon demand, to purchase for cash without
recourse or warranty a portion of the amounts owing such other party under the
Operative Documents so that after such purchase each party will hold its ratable
proportion of the amounts owed Lenders under the Operative Documents; provided,
however, that if all or any portion of such excess amount is thereafter
recovered from such party, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
2.5. Prepayments Limited. No partial prepayment of the Loan
may be made except to the extent and in the manner expressly permitted by this
Agreement.
2.6. Mandatory Prepayments.
2.6.1. Event of Loss. In the event an Item of
Equipment shall suffer an Event of Loss and Lessee does not replace such Item in
accordance with clause (a) of Section 19.2 of the Lease Agreement, then on the
Casualty Loss Value Payment Date for such Item or Items Borrower shall prepay
and apply, and there shall become due and payable on the Casualty Loss Value
Payment Date for such Item, a principal amount of the Related Notes equal to the
Debt Component with respect to such Item of Equipment and all accrued and unpaid
interest thereon and related Breakage Cost, if any.
2.6.2. Non-Completion of Equipment. In the event
Lessee is obligated to purchase from Borrower any Item of Equipment in
accordance with Section 28.5 of the Lease
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Agreement, then on the first Business Day after the Non-Completion Date
therefor, Borrower shall prepay and apply, and there shall become due and
payable on such date, a principal amount of the Related Notes equal to the Debt
Component of such Item of Equipment all accrued and unpaid interest thereon and
related Breakage Costs, if any.
2.6.3. Sale of Items of Equipment. In the event that
Lessee exercises its option to acquire Borrower's rights and interests to and in
the Equipment pursuant to Section 28.4 of the Lease Agreement, on the Payment
Date on which such option is to be exercised, Borrower shall prepay and apply,
and there shall become due and payable on such Payment Date the entire principal
amount of the Notes, all accrued and unpaid interest thereon and related
Breakage Costs, if any.
2.6.4. Other Termination of Lease Agreement. If the
Lease Agreement is terminated with respect to any Item of Equipment on any date
other than the Termination Date therefor, Borrower shall prepay and apply, and
there shall become due and payable on such date a principal amount of the
Related Notes equal to the Debt Component of such Item of Equipment, all accrued
and unpaid interest thereon and related Breakage Costs, if any.
2.7. Application of Prepayments. The amount of any prepayment
received by any Lender pursuant to Section 2.6 shall be applied (i) first, to
the payment of Breakage Costs, if any, (ii) second, to the payment of interest
calculated at the Overdue Rate on all amounts owed to such Lender under the
Operative Documents and past due, if any, calculated from the dates due, to the
date of such prepayment, (iii) third, to the payment of accrued but unpaid Loan
Availability Fees and interest on all Loans made by Lender then due, if any, as
of the date of such prepayment, (iv) fourth, to the payment of any other amounts
then due to such Lender under the Operative Documents for accrued Taxes,
increased costs under Section 10 of the Participation Agreement and any other
amounts then due other than principal, and (v) fifth, to the payment of all
principal amounts then due to such Lender.1 No prepayment received by a Lender
shall increase such Lender's Lender Commitment.
3. CONDITIONS PRECEDENT
3.1. Conditions of Term Loans. The obligation of each Lender
to make its Loan hereunder is subject to the conditions precedent set forth in
Section 3.2 of the Participation Agreement.
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(1) Open issue
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4. AFFIRMATIVE COVENANTS
So long as any Loan or other Obligation shall remain unpaid or
unsatisfied:
4.1. Obligations. Borrower will faithfully abide by, perform
and discharge each and every obligation, covenant and agreement to be performed
by Borrower under the Operative Documents to which it is a party, and neither
the Administrative Agent nor the Collateral Agent shall not be responsible for
any of such obligations, covenants or agreements under any circumstances.
4.2. Enforcement. At the request of the Administrative Agent,
Borrower will use its reasonable efforts to enforce or secure the performance of
each and every obligation, covenant, condition and agreement contained in the
Lease Agreement to be performed by Lessee.
4.3. Defense. Borrower, at the reasonable request of the
Collateral Agent, will appear in and defend every action or proceeding arising
under, growing out of or in any manner connected with the Lease Agreement or the
obligations, duties or liabilities thereunder of Borrower and Lessee.
4.4. No Commingling of Funds. If at any time during a Loan
Default or Loan Event of Default Borrower should receive any amounts payable by
Lessee under the Lease Agreement, or by Guarantor under the Participation
Agreement, or any other proceeds for or with respect to Lessor Collateral, it
will hold such amounts in trust for the Collateral Agent and not commingle such
amounts with any other amounts belonging to or held by Borrower, advise the
Collateral Agent of such receipt and promptly forward such amounts directly to
the Collateral Agent.
4.5. Lessor Collateral. Upon the occurrence and continuance of
any Loan Event of Default, Borrower will immediately upon receipt of all checks,
drafts, cash or other remittances in payment of any of its accounts, contract
rights or general intangible constituting part of Lessor Collateral, or in
payment for any Lessor Collateral sold, transferred, leased or otherwise
disposed of, or in payment or on account of its accounts, contracts, contract
rights, notes, drafts, acceptances, general intangibles, choses in action and
all other forms of obligation relating to any of Lessor Collateral so sold,
transferred or otherwise disposed of, deliver any such items to the Collateral
Agent accompanied by a remittance report in form supplied or approved by the
Collateral Agent, such items to be delivered to the Collateral Agent in the same
form received, endorsed or otherwise assigned by such Borrower where necessary
to permit collection of items and, regardless of the form of such endorsement,
Borrower hereby waives presentment, demand, notice of dishonor, protest and
notice of protest.
4.6. Financial Information. Borrower shall furnish to Lenders
or cause to be furnished to Lenders, as the case may be (i) the documents,
certificates and financial statements to be provided by Lessee pursuant to
Section 9.5 of the Participation Agreement, at the times set forth therein; (ii)
such other information regarding the condition or operations, financial or
otherwise, of Lessee, Guarantor or the Lessor Collateral as the Majority Lenders
may from time to time reasonably request and which Lessee or Guarantor is
obligated to provide to Borrower
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under the terms of the Operative Documents; (iii) upon notice thereof, notice of
the existence of any Lease Default or Lease Event of Default; (iv) promptly upon
receipt, copies of all notices, lists or other written information received by
Borrower from Lessee pursuant to the Operative Documents; and (v) promptly upon
receipt by Borrower, copies of all notices, communications documents and
agreements relating to the Lessor Collateral.
4.7. Inspection. It shall allow or cause to allow any Person
acting on behalf of any Lender, the Administrative Agent or the Collateral Agent
(i) exercise on its behalf the inspection and examination rights set forth in
Section 16 of the Lease Agreement and in Section 9.5(b) of the Participation
Agreement and (ii) to visit, inspect and examine its books of record and
accounts of Borrower and to discuss with Borrower its affairs, finances and
accounts, in each case at such times and as often as any Lender, the
Administrative Agent or the Collateral Agent may reasonably request.
5. NEGATIVE COVENANTS
So long as any Loan or other obligation of Borrower to Lenders
shall remain unpaid or unsatisfied:
5.1. Limitation on Liens. Borrower shall not directly or
indirectly, make, create, incur, assume or suffer to exist any Lien (other than
Permitted Liens and Liens contemplated by the Operative Documents) upon or with
respect to any part of its property, assets or revenues whether now owned or
hereafter acquired, or assign or otherwise convey or encumber any existing or
future right to receive any income or payments (other than Permitted Liens and
Liens contemplated by the Operative Documents).
5.2. Change of Name or Principal Office. Borrower shall not
change its name, its principal place of business or its chief executive office
(as the last two phrases are used in the Uniform Commercial Code) without the
prior written consent of Administrative Agent which consent is not to be
unreasonably withheld.
5.3. No Amendments. It shall not amend, modify, consent to any
change to the terms or otherwise alter any of the Operative Documents in any
manner without the consent of the Majority Lenders.
5.4. No Waiver of Default. It shall not waive any Lease
Default or Lease Event of Default or breach any of its obligations under the
Lease Agreement without the consent of the Majority Lenders, and shall enforce
all of its rights under the Lease Agreement.
6. EVENTS OF DEFAULT
6.1. Loan Events of Default. The occurrence of any of the
following specified events (whatever the reason for such Loan Event of Default
and whether such event shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall constitute a "Loan Event of Default";
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6.1.1. Non-Payment. Borrower fails to pay, (i) when and
as required to be paid herein, any amount of principal or interest of any Loan
or any Loan Availability Fee and such amount remains unpaid for three (3) or
more Business Days after the same is due and payable or (ii) any other fee or
any other amount payable hereunder or under the Participation Agreement and
default shall continue for ten (10) or more Business Days after receipt by
Borrower of written notice thereof from the Administrative Agent or any Lender;
or
6.1.2. Misleading Statements. Any representation or
warranty by Borrower made in any of the Operative Documents or in any
certificate delivered pursuant thereto shall prove to be untrue in any material
respect on the date as of which made; or
6.1.3. Breaches of Other Operative Documents. Borrower
fails to perform or observe any other covenant, condition or agreement required
to be performed or observed by Borrower by the terms of this Agreement or any
other Operative Document (other than those identified in Section 6.1.1. above)
and such failure shall continue unremedied for a period of thirty (30) days
after receipt by Borrower of written notice thereof from the Administrative
Agent or any Lender; or
6.1.4. Insolvency Events. (i) Borrower shall consent to
the appointment of or the taking of possession by a receiver, agent or
liquidator of itself or of a substantial part of its property, or Borrower shall
admit in writing its inability to pay its debts generally as they become due, or
does not pay its debts generally as they become due or shall make a general
assignment for the benefit of creditors, or Borrower shall file a voluntary
petition in bankruptcy or a voluntary petition or an answer seeking
reorganization, liquidation or other relief in a case under any bankruptcy laws
or other insolvency laws (as in effect at such time) or an answer admitting the
material allegations of a petition filed against it, or Borrower shall seek
relief by voluntary petition, answer or consent, under the provisions of any
other bankruptcy or other similar law providing for the reorganization or
winding-up of corporations (as in effect at such time) or Borrower shall seek an
agreement, composition, extension or adjustment with its creditors under such
laws, or Borrower shall adopt a resolution authorizing action in furtherance of
any of the foregoing and the petition is not controverted within 10 days; or
(ii) an order, judgment or decree shall be entered by any court of competent
jurisdiction (A) appointing, without the consent of Borrower, a receiver,
trustee or liquidator of such person or of any substantial part of its property,
or (B) sequestering any substantial part of the property of Borrower, or (C)
granting any other relief in respect of Borrower as a debtor under any
bankruptcy laws or other insolvency laws (as in effect at such time), and in
each case any such order, judgment or decree of appointment or sequestration
shall remain in force undismissed, unstayed and unvacated for a period of 60
days after the date of entry thereof; or (iii) a petition against Borrower in a
case under any bankruptcy laws or other insolvency laws (as in effect at such
time) is filed and not withdrawn or dismissed within 60 days thereafter, or if,
under the provisions of any law providing for reorganization or winding-up of
corporations which may apply to Borrower, any court of competent jurisdiction
assumes jurisdiction, custody or control of such person or of any substantial
part of its property and such jurisdiction, custody or control remains in force
unrelinquished, unstayed and unterminated for a period of 60 days; or
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6.1.5. Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is entered
against Borrower involving in the aggregate a liability (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage) as to any single or related series of transactions, incidents
or conditions, of $2,500,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of 30 days after the entry
thereof, or any action shall be legally taken by a judgment creditor to levy
upon assets or properties of Borrower to enforce any such judgment; or
6.1.6. Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against Borrower which does or would reasonably be
expected to have a material adverse effect with respect to Borrower, and there
shall be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect, or any action shall be legally taken by a judgment creditor to levy
upon assets or properties of Borrower to enforce any such judgment; or
6.1.7. Termination of the Trust. The Trust created
pursuant to the Trust Agreement shall have been terminated; or
6.1.8. Cross Default. A Lease Event of Default shall have
occurred and be continuing; or
6.1.9. Investment Company. Borrower shall become an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended or the arrangements contemplated by the Operative Documents shall
require registration as an "investment company" within the meaning of such Act.
6.2. Remedies of Lenders.
6.2.1. Rights in Collateral. If a Loan Event of Default
shall have occurred and be continuing, then and in every such case the
Administrative Agent shall, upon written request by the Majority Lenders,
subject to Lessee's right of quiet enjoyment pursuant to Section 2 of the Lease
Agreement, exercise any or all of the rights and powers and pursue any and all
of the remedies pursuant to this Section 6.2.1, any and all remedies under the
other Security Documents, and any and all remedies available to a secured party
under the UCC or any other provision or law and, in the event such Loan Event of
Default is related to a Lease Event of Default, subject to Lessee's rights to
purchase the Items of Equipment pursuant to Section 24 of the Lease Agreement,
may take possession of all or any part of Lessor Collateral and may exclude
Borrower, and, subject to the terms of the Lease Agreement and any related
Sublease, Lessee, any sublessee and all Persons claiming under any of them
wholly or partly therefrom; provided, however, the Collateral Agent shall not
sell or re-lease the Equipment for a period of thirty (30) days after such Event
of Default during which time any Certificate Holder, the Administrative Agent,
the Collateral Agent and any Lender may remarket the Equipment.
6.2.2. Acceleration. If a Loan Event of Default referred
to in Section 6.1.4 shall have occurred or a Lease Event of Default of the type
referred to in clause (g) of
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Section 23 of the Lease Agreement thereof shall have occurred, then and in
every such case the accrued Loan Availability Fees, the unpaid principal of each
Loan, together with interest accrued but unpaid thereon, Breakage Costs, if any,
and all other amounts due to each Lender shall, unless such Lender shall
otherwise direct, immediately and without further act become due and payable by
Borrower to such Lender, without presentment, demand, protest or notice, all of
which are hereby waived. If any other Loan Event of Default shall have occurred
and be continuing, then and in every such case, the Administrative Agent shall,
upon written request by the Majority Lenders, by written notice or notice to
Borrower, declare all accrued Loan Availability Fees and all Loans to be due and
payable, whereupon the accrued Loan Availability Fees and unpaid principal of
the Loans then outstanding, together with accrued but unpaid interest thereon,
Breakage Costs, if any, and all other amounts due from Borrower to Lenders,
shall immediately and without further act become due and payable by Borrower to
Lenders without presentment, demand, protest or other notice, all of which are
hereby waived.
6.2.3. Delivery of Documents; Taking Possession of
Collateral. Upon the occurrence of a Loan Event of Default, at the request of
the Collateral Agent, Borrower shall promptly execute and deliver to the
Collateral Agent such instruments of title and other documents as the Collateral
Agent may deem necessary or advisable to enable the Collateral Agent or a
representative designated by the Collateral Agent, at such time or times and
place or places as the Collateral Agent may specify, to obtain possession of all
or any part of Lessor Collateral to whose possession the Collateral Agent shall
at the time be entitled hereunder. If Borrower shall for any reason fail to
execute and deliver such instruments and documents after the request by the
Collateral Agent, the Collateral Agent may (a) obtain a judgment conferring on
the Collateral Agent the right to immediate possession and requiring Borrower to
execute and deliver such instruments and documents to the Collateral Agent, to
the entry of which judgment Borrower hereby specifically consents, and (b)
pursue all or part of such Lessor Collateral wherever it may be found and may
enter any of the premises of Lessee or Borrower wherever such Lessor Collateral
may be or is purported to be and search for such Lessor Collateral and take
possession of and remove such Lessor Collateral. All expenses of obtaining such
judgment or of pursuing, searching for and taking such property shall, until
paid, be secured by the Lien of this Agreement.
6.2.4. Possession of Collateral. Subject to the proviso
in Section 6.2.1, upon taking of possession pursuant hereto, the Collateral
Agent or a representative designated by the Collateral Agent may, from time to
time, at the expense of Borrower, make all such expenditures for maintenance,
insurance, repairs, replacements and alterations to any of Lessor Collateral, as
it may deem appropriate and commercially reasonable. In such case, the
Collateral Agent or a representative of the Collateral Agent shall have the
right (but not the obligation) to maintain, use, operate, store, lease, control
or manage Lessor Collateral and to carry on the business and to exercise all
rights and powers of Borrower relating to Lessor Collateral, as the Collateral
Agent shall deem best, including the right to enter into any and all such
agreements with respect to the maintenance, use, operation, storage, leasing,
control, management or disposition of Lessor Collateral or any part thereof as
the Collateral Agent may determine; and the Collateral Agent shall be entitled
to collect and receive directly all tolls, rents (including Lease Payments,
Availability Fees and Supplemental Payments), revenues, issues, income, products
and profits of Lessor Collateral and every part thereof, without prejudice,
however, to
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the right of Lenders or the Collateral Agent under any provision of this
Agreement to collect and receive all cash held by, or required to be deposited
with, Borrower hereunder. Such tolls, rents (including Lease Payments,
Availability Fees and Supplemental Payments), revenues, issues, income, products
and profits shall be applied to pay the expenses of the use, operation, storage,
leasing, control, management or disposition of Lessor Collateral and of
conducting the business thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments which the
Collateral Agent may be required or may elect to make, if any, for taxes,
assessments, insurance or other proper charges upon Lessor Collateral or any
part thereof (including the employment of engineers and accountants to examine,
inspect and make reports upon the properties and books and records of Borrower
or Lessee), and all other payments which the Collateral Agent may be required or
authorized to make under any provision of this Agreement, as well as just and
reasonable compensation for the services of the Collateral Agent, and of all
Persons properly engaged and employed by the Collateral Agent.
6.2.5. Sale of Collateral. Subject to the proviso in
Section 6.2.1, in addition, the Collateral Agent may sell, assign, transfer and
deliver the whole, or from time to time to the extent permitted by law, any part
of Lessor Collateral or any interest therein, at any private sale or public
auction with or without demand, advertisement or notice (except as herein
required or as may be required by law) of the date, time and place of sale and
any adjustment thereof for cash or credit or other property for immediate or
future delivery and for such price or prices and on such terms as the Collateral
Agent may determine, or as may be required by law. It is agreed that ten (10)
Business Days' notice to Borrower of the date, time and place (and terms, in the
case of a private sale) of any proposed sale by the Collateral Agent of Lessor
Collateral or any part thereof or interest therein is reasonable. Each of the
Collateral Agent and any Lender may be a purchaser of Lessor Collateral or any
part thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Collateral Agent may apply
against the purchase price therefor all or part of the amount then due under the
Notes secured by such Lessor Collateral. The Collateral Agent shall, upon any
such purchase, acquire good title to the property so purchased, to the extent
permitted by Applicable Law, free of all rights of redemption.
6.2.6. Discharge. Upon any sale of Lessor Collateral or
any part thereof or interest therein, whether pursuant to foreclosure or power
of sale or otherwise, the receipt of the purchase money by the official making
the sale by judicial proceeding or by the Collateral Agent shall be sufficient
discharge to the purchaser for the purchase money and neither such official nor
such purchaser shall be obliged to see to the application thereof.
6.2.7. Appointment of Receiver. If a Loan Event of
Default shall have occurred and be continuing, the Collateral Agent shall, as a
matter of right, be entitled to appoint a receiver or trustee or representative
(who may be the Collateral Agent or any successor or nominee thereof, or any
Lender appointed by the Collateral Agent) for all or any part of Lessor
Collateral, whether such receivership or agency or representation be incidental
to a proposed sale of Lessor Collateral or the taking of possession thereof, the
exercise of remedies under this Agreement or the Lease Agreement or otherwise,
and Borrower hereby consents to the appointment of such a receiver, trustee or
representative. Any receiver, trustee or representative appointed for all or any
part of Lessor Collateral shall be entitled to exercise all rights of the
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Collateral Agent under this Agreement and the other Operative Documents to the
extent provided in such appointment and shall be entitled to exercise all the
powers and pursue all the remedies of the Collateral Agent hereunder with
respect to Lessor Collateral.
6.2.8. Redemption. Any sale of Lessor Collateral or any
part thereof or any interest therein, whether pursuant to foreclosure or power
of sale or otherwise hereunder, shall forever be a perpetual bar against
Borrower, after the expiration of the period, if any, during which Borrower
shall have the benefit of redemption laws which may not be waived pursuant to
Section 6.2.5. Subject to the provisions of this Agreement, Borrower covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any appraisement, valuation, stay or extension law wherever
enacted, nor at any time hereafter in force, in order to prevent or hinder the
enforcement of this Agreement or the execution of any power granted herein to
Lenders or the Collateral Agent, or the absolute sale of Lessor Collateral, or
any part thereof, or the possession thereof by any transfer at any sale under
this Section 6.2; and Borrower for itself and all who may claim under it, so far
as it or any of them now or thereafter lawfully do so, waives all right to have
Lessor Collateral marshaled upon any foreclosure hereof, and agrees that any
court having jurisdiction to foreclose this Agreement may order the sale of
Lessor Collateral as an entirety.
6.2.9. Rights Cumulative; No Waiver. Each and every
right, power and remedy herein given to Lenders and the Collateral Agent
specifically or otherwise in this Agreement shall be cumulative and shall be in
addition to every other right, power and remedy herein specifically given or now
or hereafter existing at law, in equity or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Majority Lenders or the Collateral Agent, and the exercise or
the beginning of the exercise of any power or remedy shall not be construed to
be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy. No delay or omission by the Administrative Agent, any
Lender or the Collateral Agent in the exercise of any right, remedy or power or
in the pursuance of any remedy shall impair any such right, power or remedy or
be construed to be a waiver of any default on the part of Borrower, Lessee or
Guarantor or to be an acquiescence therein.
6.2.10. Termination of Proceedings. If the Administrative
Agent, the Lenders or the Collateral Agent shall have instituted any proceeding
to enforce any right, power or remedy under this Agreement by foreclosure, entry
or otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Administrative Agent,
the Lenders or the Collateral Agent, then and in every such case Borrower, the
Administrative Agent, the Lenders, the Collateral Agent, Lessee and Guarantor
shall, subject to any binding determination in such proceeding, be restored to
their former positions and rights hereunder with respect to Lessor Collateral,
and all rights, remedies and powers of the Administrative Agent, the Lenders and
the Collateral Agent shall continue as if no such proceedings had been
instituted.
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6.3. Rights Not Exclusive. The rights provided for in this
Agreement and the other Operative Documents are cumulative and are not exclusive
of any other rights, powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or agreement now existing or
hereafter arising. No failure or delay of the Administrative Agent, the
Collateral Agent or any Lender in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. No waiver of any provision of this
Agreement or any other Operative Document or consent to any departure by
Borrower therefrom shall in any event be effective unless the same shall be
permitted by Section 7.1, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice to
or demand on Borrower in any case shall entitle Borrower to any other or further
notice or demand in similar or other circumstances.
7. MISCELLANEOUS
7.1. Amendment or Waiver. Neither this Agreement nor any other
Loan Document nor any term hereof or thereof may be changed, amended, waived,
discharged or terminated except in accordance with Section 12.2 of the
Participation Agreement.
7.2. Notices. Unless otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon the
respective parties to this Agreement shall be given in accordance with Section
12.4 of the Participation Agreement.
7.3. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
7.4. Payments Set Aside. To the extent that Borrower makes a
payment to the Administrative Agent, the Collateral Agent or Lenders, or the
Administrative Agent, the Collateral Agent or Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the Collateral Agent or such Lender in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any
event of the type described in Section 6.1.4 or otherwise, then (a) to the
extent of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent or the Collateral Agent,
upon demand its Pro Rata Share of any amount so recovered from or repaid by the
Administrative Agent or the Collateral Agent.
7.5. Assignments. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, neither Borrower nor any
Lender may assign or transfer any of its rights,
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obligations or interest hereunder except in accordance with Section 12.7 of the
Participation Agreement.
7.6. Set-off. In addition to any rights and remedies of
Lenders provided by Applicable Law, if a Loan Event of Default exists or the
Loans have been accelerated, each Lender is authorized at any time and from time
to time, without prior notice to Borrower, any such notice being waived by
Borrower to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Lender to or for
the credit or the account of Borrower against any and all Obligations owing to
such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Operative Document and although such Obligations may be contingent
or unmatured. Each Lender agrees promptly to notify Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
7.7. Execution and Effectiveness. This Agreement may be
executed in any number of identical counterparts, any set of which signed by all
parties hereto shall be deemed to constitute a complete, executed original for
all purposes and shall become effective when each of the parties hereto and each
of the parties to the Participation Agreement and Lease Agreement have executed
and delivered this Agreement, the Participation Agreement and the Lease
Agreement.
7.8. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by Applicable Law, the parties hereto hereby waive any provision of law that
renders any provisions hereof prohibited or unenforceable in any respect.
7.9. Acknowledgments. Borrower hereby acknowledges that:
(a) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to Borrower arising out of or in connection
with this Agreement or any of the other Operative Documents, and the
relationship between the Administrative Agent, the Collateral Agent and Lenders,
on one hand, and Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other
Operative Documents or otherwise exists by virtue of the transactions
contemplated hereby among Lenders or among Borrower and Lenders.
7.10. Concerning Lessor. Trust Company is entering into this
Agreement solely in its capacity as Trustee under the Trust Agreement and not in
its individual capacity and in no
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case shall Trust Company (or any entity acting as successor Trustee under the
Trust Agreement) be personally liable for or on account of any of the
statements, representations, warranties, covenants or obligations stated to be
those of Lessor hereunder.
7.11. Further Assurances. Borrower agrees to do such further
acts and things and to execute and deliver to the Administrative Agent or
Collateral Agent such additional assignments, agreements, powers and
instruments, as the Administrative Agent may require or deem advisable to carry
into effect the purposes of this Agreement and the other Operative Documents or
to better assure and confirm unto the Administrative Agent and Lenders their
respective rights, powers and remedies hereunder.
7.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO BORROWER
AT ITS ADDRESS SET FORTH IN SECTION 12.4 OF THE PARTICIPATION AGREEMENT, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR COLLATERAL AGENT UNDER THIS
AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
(b) BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
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OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
7.13. Survival of Agreement. All covenants, agreements,
representations and warranties made by Borrower in the Participation Agreement
and in the certificates or other instruments prepared or delivered in connection
with or pursuant to the Participation Agreement, this Agreement or any other
Operative Document shall be considered to have been relied upon by Lenders and
shall survive the making by Lenders of the Loans, and the execution and delivery
to Lenders of the Notes evidencing such Loans, regardless of any investigation
made by Lenders or on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement or any other Operative Document is
outstanding and unpaid.
7.14. Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any lending office, Subsidiary or
Affiliate of such Lender.
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WHEREFORE, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely
as Trustee of
UNIVERSAL COMPRESSION
TRUST (2000-1) under
the Trust Agreement,
dated as of May __,
2000, as Borrower
By:
-----------------------------------
Name:
Title:
BANKERS TRUST COMPANY
as Administrative Agent
By:
Name:
-----------------------------------
Title:
BANKERS TRUST COMPANY
as Collateral Agent
By:
-----------------------------------
Name:
Title:
[LENDERS]
By:
-----------------------------------
Name:
Title:
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Exhibit A
[FORM OF] NOTE
NOTE
$_________ New York, New York
[_______________]
FOR VALUE RECEIVED, the undersigned, Wilmington Trust Company,
not in its individual capacity but solely as Trustee of Universal Compression
Trust (2000-1) under a Trust Agreement dated as of [_______________] the
"Borrower"), PROMISES TO PAY TO [ ], a [ ] organized under the laws of [ ] (the
"Lender"), or its registered assigns if not earlier accelerated, on the Maturity
Date (as defined in Appendix A to the Participation Agreement (the
"Participation Agreement") dated as of May __, 2000 among Universal Compression,
Inc., (the "Lessee"), Universal Compression Holdings, Inc., Borrower, Wilmington
Trust Company, in its individual capacity, but only where so specified, the
certificate holders from time to time party thereto, Bankers Trust Company, as
Administrative Agent, Bankers Trust Company, as Collateral Agent and the lenders
from time to time party thereto as such place as the Lender designates on
Schedule 4 to the Participation Agreement or as Lender may from time to time
designate, the principal sum of _____________________________ United States
Dollars (U.S. $_____________) or, if less, the aggregate unpaid principal amount
of the Loans made by the Lender to the Borrower pursuant to the Loan Agreement
(as defined in Appendix A), in lawful money of the United States and in
immediately available funds. Interest on the unpaid principal balance
outstanding herewith from time to time shall be payable as stated in the Loan
Agreement and, if not earlier accelerated in accordance with the terms of the
Loan Agreement shall be payable on each Payment Date (as defined in Appendix A).
Capitalized terms used but not otherwise defined in this Note
shall have the respective meaning given to such terms in Appendix A to the
Participation Agreement.
The Borrower may make prepayments on this Note only as
provided in the Loan Agreement.
This is one of the Notes referred to in the Loan Agreement and
is entitled to the benefits of the provisions of the Loan Agreement and the
security provided by the Loan Documents therein.
Upon the occurrence of a Loan Event of Default, the principal
hereof and accrued interest hereon may be declared to be and shall thereupon
become forthwith due and payable, together with all other amounts owing or
payable under the Loan Agreement or under any other Operative Document, all as
provided in said Loan Agreement.
23
Exhibit A
Page 2
In the event any sum payable hereunder is not paid when due
(by acceleration or otherwise), such sum shall bear interest at the Overdue Rate
in accordance with Section 2.5.4 of the Loan Agreement.
This Note is subject to the repayment and prepayment
provisions set forth in Section 2.7 of the Loan Agreement.
The Borrower waives presentment, demand, protest or notice of
any kind in connection with this Note.
Should the indebtedness represented by this Note or any part
thereof be collected at law or in equity or in bankruptcy, receivership or other
court proceeding or should this Note be placed in the hands of attorneys for
collection after default, Borrower, and any other Person who may be liable
hereunder in any capacity, agree to pay, on demand, in addition to the principal
hereof, accrued interest hereon and all other amounts owing or payable under the
Loan Agreement or under any other Operative Document, all costs of collecting or
attempting to collect this Note, including attorneys' fees and reasonable
expenses (including those incurred in connection with any appeal).
This Note is issued as a registered Note. Borrower may deem
and treat the Person in whose name this Note is registered on the register held
by the Administrative Agent or its agent as the absolute owner hereof (whether
or not this Note shall be overdue) for the purpose of paying payments of
principal, the Breakage Costs, if applicable, and interest and for all other
purposes, and Borrower and Lender shall not be affected by any notice to the
contrary. This Note may be transferred or assigned only in accordance with the
provisions of the Participation Agreement.
Lender shall have recourse for all liabilities and obligations
arising under this Note, the Loan Agreement and the other Operative Documents to
the extent of such collateral, if any, as may secure Borrower's obligations and
liabilities under this Note, the Loan Agreement and the other Operative
Documents.
Neither this Note nor the Loan Agreement shall require the
payment or permit the collection of interest in excess of the maximum permitted
by law. If any such excess of interest is provided for, or shall be adjudicated
to be so provided for, herein or in the Loan Agreement, Borrower shall not be
obligated to pay such interest in excess of the maximum amount permitted by law,
and the right to demand the payment of any such excess shall be and is hereby
waived. This provision shall control any other provision of this Note or the
Loan and Security Agreement.
24
Exhibit A
Page 3
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
Wilmington Trust Company, not in its
individual capacity but solely as
Trustee of UNIVERSAL COMPRESSION
TRUST (2000-1) under the Trust
Agreement, dated as of
[---------------]
By:
-----------------------------------
Name:
Title:
25
Exhibit A
Page 4
Endorsement
[Date]
Lenders hereby consent to the release of Wilmington Trust
Company, not in its individual capacity but solely as Trustee of Universal
Compression Trust (2000-1) under the Trust Agreement, dated as of May __, 2000
from its obligations and liabilities to Lender as "Borrower" under the Loan
Agreement and the foregoing Note.
[LENDER]
By:
-----------------------------------
Name:
Title: