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EXHIBIT 10.4
TRANCHE B LOAN AGREEMENT
among
BRL UNIVERSAL EQUIPMENT 2001 A, L.P.
as Borrower
BANKERS TRUST COMPANY
as Administrative Agent and Collateral Agent
THE TRANCHE B LENDERS PARTY HERETO
as Tranche B Lenders
THE BANK OF NOVA SCOTIA
as Syndication Agent
for Tranche B Lenders
BANK ONE, NA
as Documentation Agent
for Tranche B Lenders
FIRST UNION NATIONAL BANK
as Managing Agent
for Tranche B Lenders
Dated as of February 9, 2001
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UNIVERSAL COMPRESSION, INC.,
AS LESSEE OF $427,000,000 OF
GAS COMPRESSION EQUIPMENT
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TABLE OF CONTENTS
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1. DEFINITIONS AND INTERPRETATION................................................................................1
2. THE CREDITS...................................................................................................1
2.1. Tranche B Lender Commitment.....................................................................1
2.2. Tranche B Notes.................................................................................1
2.3. Payments........................................................................................2
2.3.1. Principal..............................................................................2
2.3.2. Interest...............................................................................2
2.3.3. Period Selection.......................................................................2
2.3.4. Overdue Rate...........................................................................3
2.3.5. Payment Instructions...................................................................3
2.3.6. Ratable Partial Prepayments............................................................3
2.4. Prepayments Limited.............................................................................3
2.5. Mandatory Prepayments...........................................................................4
2.5.1. Sale of Items of Equipment or Lease Termination........................................4
2.5.2. Other Termination of Lease Agreement...................................................4
2.6. Application of Prepayments......................................................................4
2.7. Increased Costs, Illegality, etc................................................................4
3. CONDITIONS PRECEDENT..........................................................................................6
3.1. Conditions of Tranche B Loans...................................................................6
4. AFFIRMATIVE COVENANTS.........................................................................................6
4.1. Obligations.....................................................................................6
4.2. Enforcement.....................................................................................6
4.3. Defense.........................................................................................6
4.4. Financial Information...........................................................................7
4.5. Inspection......................................................................................7
5. EVENTS OF DEFAULT.............................................................................................7
5.1. Tranche B Events of Default.....................................................................7
5.1.1. Non-Payment............................................................................7
5.1.2. Misleading Statements..................................................................7
5.1.3. Breaches of Other Operative Documents..................................................7
5.1.4. Insolvency Events......................................................................8
5.1.5. Monetary Judgments.....................................................................8
5.1.6. Non-Monetary Judgments.................................................................8
5.1.7. Lease Event of Default.................................................................8
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5.1.8. Other Indebtedness.....................................................................9
5.1.9. Investment Company.....................................................................9
5.2. Remedies of Tranche B Lenders...................................................................9
5.2.1. Rights in Collateral...................................................................9
5.2.2. Acceleration...........................................................................9
5.2.3. Rights Cumulative......................................................................9
6. MISCELLANEOUS................................................................................................10
6.1. Amendment or Waiver............................................................................10
6.2. Notices........................................................................................10
6.4. Payments Set Aside.............................................................................10
6.5. Assignments....................................................................................10
6.6. Set-off........................................................................................10
6.7. Execution and Effectiveness....................................................................11
6.8. Severability...................................................................................11
6.9. Acknowledgments................................................................................11
6.10. Further Assurances.............................................................................11
6.11. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.........................11
6.12. Survival of Agreement..........................................................................12
6.13. Domicile of Tranche B Loans....................................................................13
6.14. Entire Agreement...............................................................................13
[FORM OF] NOTE....................................................................................................1
[FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT.....................................................................1
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT.....................................................................1
(ii)
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This TRANCHE B LOAN AGREEMENT (this "Agreement") dated as of
February 9, 2001 among BRL UNIVERSAL EQUIPMENT 2001 A, L.P., as Borrower
("Borrower"), the several Tranche B Lenders from time to time parties to this
Agreement (collectively, the "Tranche B Lenders"), BANKERS TRUST COMPANY, as
Collateral Agent ("Collateral Agent") and BANKERS TRUST COMPANY, as
Administrative Agent for the Tranche B Lenders ("Administrative Agent").
WITNESSETH:
Borrower, Administrative Agent, Collateral Agent and Tranche B
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. DEFINITIONS AND INTERPRETATION
Unless the context otherwise requires, capitalized terms used
herein and not otherwise defined herein shall have meanings set forth or
referred to in Appendix A to the Participation Agreement dated as of the date
hereof among Universal Compression Inc., Universal Compression Holdings, Inc.,
Borrower, The Bank of New York, the Tranche B Lenders party thereto, BRL
Universal Equipment Management, Inc., Administrative Agent and Collateral Agent,
which Appendix A also contains the rules of usage that shall apply hereto.
2. THE CREDITS
2.1. Tranche B Lender Commitment. Subject to and upon the
terms and conditions set forth in this Agreement and the Participation
Agreement, each Tranche B Lender agrees to make a single non-revolving Tranche B
Loan on the Closing Date to Borrower in accordance with Section 4.1 of the
Participation Agreement.
2.2. Tranche B Notes. (a) Each Tranche B Loan 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 "Tranche B Note").
(b) The Tranche B Note issued to each Tranche B Lender shall
(i) be executed by Borrower, (ii) be payable to such Tranche B Lender or
registered assigns and be dated the Closing Date, (iii) be in a stated principal
amount equal to the principal amount funded by such Tranche B Lender, (iv)
mature on the Maturity Date, (v) bear interest as provided in Section 2.3.2,
(vi) be subject to mandatory repayment as provided in Section 2.5 and (vii) be
entitled to the benefits of this Agreement and the other Operative Documents.
(c) Each Tranche B Lender will note on its internal records
the amount of the Tranche B Loan made by it and each payment in respect thereof
and will prior to any transfer of any of its Tranche B Note endorse on the
reverse side thereof the outstanding principal amount of
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the Tranche B Loan evidenced thereby. Failure to make any such notation shall
not affect Borrower's obligations in respect of such Tranche B Loan.
2.3. Payments.
2.3.1. Principal. Unless otherwise required to be paid earlier
under Section 2.5 or 5.2, the principal amount of each Tranche B Loan shall be
payable on the Maturity Date.
2.3.2. Interest. Borrower agrees to pay to each Tranche B
Lender on each Floating Payment Date interest accrued on the unpaid principal
amount of such Tranche B Lender's Tranche B Loan from the date the proceeds
thereof are disbursed to Borrower in accordance with Section 2.2 until the date
on which such Tranche B Loan (together with accrued and unpaid interest thereon)
is repaid in full (whether on the Maturity Date, by acceleration or otherwise)
at the Applicable Tranche B Rate calculated for each day elapsed since the
immediately preceding Floating Payment Date, or in the case of the first
Floating Payment Date, since the Closing Date as follows:
AR x P x 1/D
where,
AR = the Applicable Tranche B Rate for such day;
P = the unpaid principal balance of such Tranche B Loan
on such day; and
D = 360 or, to the extent the Applicable Tranche B Rate
is based on the Alternate Rate, 365 or 366 days,
as applicable.
2.3.3. Period Selection. Provided no Lease Event of Default
shall have occurred and is continuing, Borrower shall at least three (3) LIBOR
Banking Days prior to each Floating Payment Date deliver to the Administrative
Agent written notice of its election to have the Applicable Tranche B Rate for
all Tranche B Loans be based on one-month, two-month, three-month, or six-month
LIBOR or on the Alternate Rate (which election shall be the same as the
corresponding election by Lessee under Section 5 of the Participation
Agreement). The Floating Payment Period based on one-month, two-month,
three-month or six-month LIBOR shall commence on such Floating Payment Date and
shall end on the calendar date corresponding to the first day of such Floating
Payment Period in the first, second, third or six month, respectively; provided
however, if such day is not a LIBOR Banking Day, then the last day of such
Floating Payment Period shall be the next LIBOR Banking Day, provided further,
if such next LIBOR Banking Day would be in the next calendar month, then the
last day of such Floating Payment Period shall be the immediately preceding
LIBOR Banking Day. The Floating Payment Period for Alternate Rate based Tranche
B Loans shall commence on such Floating Payment Date and shall end on the date
specified for such in Borrower's notice of election, provided such date shall
not be more than ninety (90) days from such Floating Payment Date. Borrower
shall not make an election that would cause the new Floating Payment Date
resulting from such
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election to be later than the Maturity Date. If Borrower fails to provide such
notice of election at least three (3) LIBOR Banking Days before any Floating
Payment Date, Borrower shall be deemed to have elected a one-month LIBOR based
Applicable Tranche B Rate. At any time while a Lease Event of Default exists,
the Applicable Tranche B Rate after each Floating Payment Date shall be based on
one-month LIBOR.
2.3.4. Overdue Rate. Borrower shall pay to each Tranche B
Lender interest on any part of the principal amount of such Tranche B Lender's
Tranche B Loan and interest thereon, if any, 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.
2.3.5. Payment Instructions. All payments to any Tranche B
Lender hereunder or under the other Operative Documents shall be made without
defense, set-off or counterclaim to such Tranche B Lender no later than 1:00
p.m. (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 as
such Tranche B Lender may designate in a written notice to Borrower,
Administrative Agent and Collateral Agent. All payments received after 1:00 p.m.
(New York time) shall be deemed received on the next Business Day.
Administrative Agent shall determine the Applicable Tranche B Rates, the Overdue
Rate, if any, and the interest and principal, if any, due on the Tranche B
Loans, on each Floating Payment Date and shall advise Borrower and, as the
designee of Borrower under Section 7.4 of the Lease Agreement, Lessee,
Collateral Agent and each Tranche B Lender of such amounts owed with respect
thereto at least two (2) Business Days before such Floating Payment Date. No
failure on the part of Administrative Agent to provide a notice under this
Section 2.3.4 shall release Borrower of any obligation to make a payment in
accordance herewith, provided however, no Tranche B 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.
2.3.6. Ratable Partial Prepayments. If any Tranche B 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
written 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
Tranche B 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.
2.4. Prepayments Limited. No partial prepayment of the Tranche B Loan
may be made except to the extent and in the manner expressly permitted by this
Agreement.
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2.5. Mandatory Prepayments.
2.5.1. Sale of Items of Equipment or Lease Termination. In the
event that Lessee purchases Borrower's rights and interests to and in any Item
of Equipment pursuant to the Lease Agreement, on the Floating Payment Date on
which such purchase occurs, Borrower shall prepay and apply, and there shall
become due and payable on such Floating Payment Date the principal amount of
each Tranche B Loan equal to the pro rata portion (based on the aggregate
outstanding principal balances of all Tranche B Loans) of the Tranche B
Component of such Item of Equipment and all accrued and unpaid interest thereon;
provided however, if an Item of Equipment is sold pursuant to Section 28.4.3 of
the Lease Agreement and the aggregate Acquisition Costs of all Items at the time
being sold under such Section is less than the Equity Redemption Target or Net
Proceeds Redemption Target as the case may be then the principal amount of the
Tranche B Loans to be pre-paid under this Section 2.5.1 shall be reduced by the
amount of such shortfall.
2.5.2. Other Termination of Lease Agreement. If the Lease
Agreement is terminated with respect to any Item of Equipment (other than with
respect to an item of Replaced Equipment) on any date other than the Scheduled
Termination Date, Borrower shall prepay and apply, and there shall become due
and payable on such date the principal amount of each Tranche B Loan equal to
the pro rata portion (based on the aggregate outstanding principal balances of
all Tranche B Loans) of the Tranche B Component of such Item of Equipment, all
accrued and unpaid interest thereon and related Breakage Costs, if any.
2.6. Application of Prepayments. The amount of any prepayment received
by any Tranche B Lender pursuant to Section 2.5 shall be applied (i) first, to
the payment of Breakage Costs, if any, (ii) second, to the payment of interest
calculated subject to the last sentence of Section 2.3.5 at the Overdue Rate on
all amounts owed to such Tranche B 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 interest on principal amount
being prepaid as of the date of such prepayment, (iv) fourth, to the payment of
any other amounts then due to such Tranche B Lender under the Operative
Documents for accrued Taxes, increased costs under Section 2.7 and any other
amounts then due other than principal, and (v) fifth, to the payment of all
principal amounts then due to such Tranche B Lender.
2.7. Increased Costs, Illegality, etc.
(a) In the event that Administrative Agent in the case of (i)
below or any Tranche B Lender in the case of (ii) or (iii) below shall have
determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i)
below, may be made only by Administrative Agent):
(i) that by reason of any changes arising after the
date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the
definition of LIBOR Rate; or
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(ii) at any time, that such Tranche B Lender shall
incur increased costs or reductions in the amounts received or
receivable hereunder with respect to any Tranche B Loan
because of (x) any change since the date of this Agreement in
any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law)
or in the interpretation or administration thereof and
including the introduction of any new law or governmental
rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of
taxation of payment to any Tranche B Lender of the principal
of or interest on the Tranche B Notes, or any other amounts
payable to any Tranche B Lender hereunder (except for changes
in the rate of tax on, or determined by reference to, the net
income or profits of such Tranche B Lender pursuant to the
laws of the jurisdiction in which it is organized or in which
its principal office or applicable lending office is located
or any subdivision thereof or therein) or (B) a change in
official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in
the computation of the LIBOR Rate and/or (y) other
circumstances since the date of this Agreement affecting such
Tranche B Lender or the interbank Eurodollar market or the
position of such Tranche B Lender in such market; or
(iii) at any time, that the continuance of any
Tranche B Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by
compliance by any Tranche B Lender in good faith with any
governmental request (whether or not having force of law) or
(z) impracticable as a result of a contingency occurring after
the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Tranche B Lender (or Administrative Agent, in
the case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to Lessor and Lessee and, except in the case of clause (i)
above, to Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each of the other Tranche B
Lenders, as the case may be). Thereafter (x) in the case of clause (i) or clause
(iii) above, upon at least three LIBOR Banking Days' written notice to
Administrative Agent, the affected Tranche B Lender shall convert the Applicable
Tranche B Rates to the sum of the Alternative Rate plus the Applicable Tranche B
Margin, (y) in the case of clause (ii) above, Borrower shall pay (to the extent
not paid by Lessee when due in accordance with the Quiet Enjoyment and Indemnity
Agreement (Tranche B)) to such Tranche B Lender, within fifteen (15) days of
such Tranche B Lender's written request therefor, such additional amounts (in
the form of an increased rate of, or a different method of calculating, interest
or otherwise as such Tranche B Lender reasonably shall determine) as shall be
required to compensate such Tranche B Lender for such increased costs or
reductions in amounts received or receivable hereunder as set forth in such
written request as to the additional amounts owed to such Tranche B Lender,
showing in reasonable detail the basis for the calculation thereof, submitted to
Borrower by such Tranche B Lender (which written request shall, absent manifest
error, be final and conclusive and binding on all the parties hereto).
(b) If any Tranche B Lender incurs any Breakage Costs as a
result of the occurrence of any of the events set forth in clause (x) of the
last sentence of Section 2.7(a), or if
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at any time after the date of this Agreement any Tranche B Lender determines
that the introduction of or any change in any applicable law or governmental
rule, regulation, order, guideline, directive or request (whether or not having
the force of law) concerning capital adequacy, or any change in interpretation
or administration thereof by any governmental authority, central bank or
comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Tranche B Lender or any
corporation controlling such Tranche B Lender based on its obligations
hereunder, then Borrower shall pay (to the extent not paid by Lessee when due in
accordance with the Quiet Enjoyment and Indemnity Agreement (Tranche B)) to such
Tranche B Lender, upon its written demand therefor, such Breakage Costs or
additional amounts as shall be required to compensate such Tranche B Lender or
such other corporation for the increased cost to such Tranche B Lender or such
other corporation or the reduction in the rate of return to such Tranche B
Lender or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Tranche B Lender will act reasonably
and in good faith and will use averaging and attribution methods which are
reasonable, provided that such Tranche B Lender's determination of Breakage
Costs or compensation owing under this Section 2.7(b) shall, absent manifest
error, be final and conclusive and binding on all the parties hereto. Each
Tranche B Lender, upon determining that any Breakage Costs or additional amounts
will be payable pursuant to this Section 2.7(b), will give prompt written notice
thereof to Borrower, which notice shall show in reasonable detail the basis for
calculation of such additional amounts.
3. CONDITIONS PRECEDENT
3.1. Conditions of Tranche B Loans. The obligation of each
Tranche B Lender to make its Tranche B Loan hereunder is subject to the
conditions precedent set forth in Section 3.2 of the Participation Agreement.
4. AFFIRMATIVE COVENANTS
So long as any Tranche B 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
Administrative Agent nor Collateral Agent shall be responsible for any of such
obligations, covenants or agreements under any circumstances.
4.2. Enforcement. At the request of 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
Administrative 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.
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4.4. Financial Information. Borrower shall furnish to
Administrative Agent or cause to be furnished to Administrative Agent, as the
case may be (i) promptly upon receipt thereof, the documents, certificates and
financial statements to be provided by Lessee pursuant to Section 9.3 of the
Participation Agreement, (ii) such other information regarding the condition or
operations, financial or otherwise, of Lessee, Guarantor or the Lessor
Collateral as Majority Tranche B Lenders may from time to time reasonably
request and which Lessee or Guarantor is obligated to provide to Borrower 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 thereof, copies of all notices, lists or other written information
received by Borrower from Lessee pursuant to the Operative Documents, and (v)
promptly upon receipt thereof, copies of all notices, communications, documents
and agreements relating to the Lessor Collateral.
4.5. Inspection. It shall allow or cause to allow any Person
acting on behalf of any Tranche B Lender (i) to exercise on its behalf the
inspection and examination rights set forth in Section 16 of the Lease 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 Tranche B Lender or Administrative
Agent may reasonably request.
5. EVENTS OF DEFAULT
5.1. Tranche B Events of Default. The occurrence of any of the
following specified events (whatever the reason for such Tranche B 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 "Tranche B Event of
Default";
5.1.1. Non-Payment. Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal or interest of any Tranche B
Loan 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 Administrative Agent or any Tranche B Lender; or
5.1.2. 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
5.1.3. 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 any covenant, condition or agreement expressly
made for the sole benefit of Tranche A Noteholders or identified in Section
5.1.1. above) and such failure shall continue unremedied for a period of thirty
(30) days after receipt by Borrower of written notice thereof from
Administrative Agent or any Tranche B Lender; or
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5.1.4. 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; or (ii) an order, judgment or decree shall be entered by any
court of competent jurisdiction without the consent of Borrower (A) appointing a
receiver, trustee or liquidator of Borrower 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 sixty
(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 sixty (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 sixty (60) days; or
5.1.5. Monetary Judgments. One or more monetary
non-interlocutory judgments, non-interlocutory orders, decrees or arbitration
awards is entered against Borrower (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, and the
same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of thirty (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
5.1.6. 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 thirty (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
5.1.7. Lease Event of Default. A Lease Event of Default shall
have occurred and be continuing; or
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5.1.8. Other Indebtedness. Borrower shall (i) default in any
payment of any Indebtedness aggregating $1,000 or more beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created or (ii) default in the observance or performance of any
agreement or condition relating to any Indebtedness aggregating $1,000 or more
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to have caused, such Indebtedness to
become due prior to its stated maturity, or (iii) any Indebtedness of Borrower
aggregating $1,000 or more shall be declared to be due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment, prior to
the stated maturity thereof, other than a partial redemption of Tranche A Notes
under Section 3.03(a), 3.03(b), 4.13 or 4.14 of the Indenture; or
5.1.9. 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.
5.2. Remedies of Tranche B Lenders.
5.2.1. Rights in Collateral. If a Tranche B Event of Default
shall have occurred and be continuing, then and in every such case
Administrative Agent shall, upon written request by the Majority Tranche B
Lenders, subject to the provisions of Section 7 of the Participation Agreement
and 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 under the other Security Documents, and any and all remedies
available to a secured party under the UCC or any other provision or law.
5.2.2. Acceleration. If a Tranche B Event of Default referred
to in Section 5.1.4 shall have occurred or a Lease Event of Default of the type
referred to in clause (g) of Section 23 of the Lease Agreement thereof shall
have occurred, then and in every such case, the unpaid principal of each Tranche
B Loan, together with interest accrued but unpaid thereon, Breakage Costs, if
any, and all other amounts due to each Tranche B Lender shall, unless such
Tranche B Lender shall otherwise direct, immediately and without further act
become due and payable by Borrower to such Tranche B Lender, without
presentment, demand, protest or notice, all of which are hereby waived. If any
other Tranche B Event of Default shall have occurred and be continuing, then and
in every such case, Administrative Agent shall, upon written request by the
Majority Tranche B Lenders, by written notice or notice to Borrower, declare all
Tranche B Loans to be due and payable, whereupon the unpaid principal of the
Tranche B Loans then outstanding, together with accrued but unpaid interest
thereon, Breakage Costs, if any, and all other amounts due from Borrower to
Tranche B Lenders, shall immediately and without further act become due and
payable by Borrower to Tranche B Lenders without presentment, demand, protest or
other notice, all of which are hereby waived.
5.2.3. Rights Cumulative. Each and every right, power and remedy
herein given to Tranche B Lenders specifically or otherwise in this Agreement
shall be cumulative and shall be in addition to every other right, power and
remedy herein specifically
-9-
13
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 Majority Tranche B Lenders.
6. MISCELLANEOUS
6.1. Amendment or Waiver. Neither this Agreement nor any other
Operative 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.
6.2. 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.
6.3. No Waiver. No failure to exercise and no delay in
exercising, on the part of Administrative Agent or any Tranche B 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.
6.4. Payments Set Aside. To the extent that Borrower makes a
payment to Administrative Agent, Collateral Agent or Tranche B Lenders, or
Administrative Agent, Collateral Agent or Tranche B Lenders exercise any 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
Administrative Agent, Collateral Agent or such Tranche B 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 5.1.4 or otherwise,
then (i) 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 (ii) each Tranche B Lender severally agrees to pay to
Administrative Agent or Collateral Agent, upon demand its pro rata share of any
amount so recovered from or repaid by Administrative Agent or Collateral Agent.
6.5. 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 Tranche B Lender
may assign or transfer any of its rights, obligations or interest hereunder
except in accordance with Section 12.7 of the Participation Agreement.
6.6. Set-off. In addition to any rights and remedies of Tranche B
Lenders provided by Applicable Law, if a Tranche B Event of Default exists or
the Tranche B Loans have been accelerated, each Tranche B 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
-10-
14
Tranche B Lender to or for the credit or the account of Borrower against any and
all obligations owing to such Tranche B Lender, now or hereafter existing,
irrespective of whether or not Administrative Agent or such Tranche B Lender
shall have made demand under this Agreement or any other Operative Document and
although such obligations may be contingent or unmatured. Each Tranche B Lender
agrees promptly to notify Borrower and Administrative Agent after any such
set-off and application made by such Tranche B Lender; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
6.7. Execution and Effectiveness. 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 on
the Closing Date 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.
6.8. 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.
6.9. Acknowledgments. Borrower hereby acknowledges that:
(a) neither Administrative Agent nor any Tranche B 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 Administrative Agent, Collateral Agent and Tranche B
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 Tranche B Lenders or among Borrower and Tranche B Lenders.
6.10. Further Assurances. Borrower agrees to do such further acts
and things and to execute and deliver to Administrative Agent or Collateral
Agent such additional assignments, agreements, powers and instruments, as
Administrative Agent may reasonably 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 Administrative Agent and Tranche B Lenders their
respective rights, powers and remedies hereunder.
6.11. 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
-11-
15
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 THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ADMINISTRATIVE AGENT OR COLLATERAL AGENT UNDER THIS AGREEMENT, ANY
TRANCHE B 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
BORROWER 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 OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
6.12. 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 Tranche B
Lenders and shall survive the making by Tranche B Lenders of the Tranche B
Loans, and the execution and delivery to Tranche B Lenders of the Tranche B
Notes evidencing such Tranche B Loans, regardless of any investigation made by
Tranche B 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 Tranche B Loan
or any fee or any other amount payable under this Agreement or any other
Operative Document is outstanding and unpaid.
-12-
16
6.13. Domicile of Tranche B Loans. Each Tranche B Lender may
transfer and carry its Tranche B Loans at, to or for the account of any lending
office, Subsidiary or Affiliate of such Tranche B Lender, provided however, any
amount Borrower is thereafter obligated to pay under Section 2.7 shall be
limited to the amount Borrower would have had to pay had no transfer occurred
under this Section 6.13.
6.14. 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.
-13-
17
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.
BRL UNIVERSAL EQUIPMENT 2001 A, L.P.,
as Borrower
By BRL Universal Equipment Management, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BANKERS TRUST COMPANY
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
BANKERS TRUST COMPANY
as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
BANKERS TRUST COMPANY
as a Tranche B Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
FIRST UNION NATIONAL BANK
as a Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
-Signature Page-
[Tranche B Loan Agreement]
18
BANK ONE, NA
(Main Office Chicago)
as a Tranche B Lender
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: First Vice President
THE BANK OF NOVA SCOTIA
as a Tranche B Lender
By: /s/ M.D. ▇▇▇▇▇
-------------------------------------------
Name: M.D. ▇▇▇▇▇
Title: Agent
-Signature Page-
[Tranche B Loan Agreement]
19
EXHIBIT A
[FORM OF] NOTE
NOTE
$ New York, New York
----------------- February __, 2001
[ ]
-----------------
FOR VALUE RECEIVED, the undersigned, BRL Universal Equipment 2001
A, L.P., (the "Borrower"), PROMISES TO PAY TO [ ], a [ ] organized under the
laws of [ ] (the "Tranche B 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 February 9, 2001 among
Universal Compression, Inc., Universal Compression Holdings, Inc., Borrower, The
Bank of New York, not in its individual capacity but for the benefit of Tranche
A Noteholders, Tranche B Lenders party thereto, BRL Universal Equipment
Management, Inc., Bankers Trust Company as Administrative Agent and Bankers
Trust Company as Collateral Agent at such place as Tranche B Lender designates
on Schedule 2 to the Participation Agreement or as Tranche B Lender may from
time to time designate, the principal sum of ___________________________ United
States Dollars (U.S. $_____________) 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 Tranche
B Loan Agreement and, if principal is not earlier accelerated in accordance with
the terms of the Tranche B Loan Agreement shall be payable on each Floating
Payment Date.
Capitalized terms used but not otherwise defined in this Tranche
B Note shall have the respective meaning given to such terms in Appendix A to
the Participation Agreement.
Borrower may make prepayments on this Tranche B Note only as
provided in the Tranche B Loan Agreement.
This is one of the Tranche B Notes referred to in the Tranche B
Loan Agreement and is entitled to the benefits of the provisions of the Tranche
B Loan Agreement, the security provided by the Security Documents and the
indemnification set forth in Section 10 of the Participation Agreement.
Upon the occurrence of a Tranche B 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 Tranche B Loan Agreement or under any other Operative
Document, all as provided in the Tranche B Loan Agreement.
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 2.3.3 of the Tranche B Loan Agreement.
20
Exhibit A
Page 2
This Tranche B Note is subject to the repayment and prepayment
provisions set forth in Section 2.5 of the Tranche B Loan Agreement.
Borrower waives presentment, demand, protest or notice of any
kind in connection with this Tranche B Note.
This Tranche B Note is issued as a registered Tranche B Note.
Borrower may deem and treat the Person in whose name this Tranche B Note is
registered on the register held by Administrative Agent or its agent as the
absolute owner hereof (whether or not this Tranche B Note shall be overdue) for
the purpose of paying payments of principal, Breakage Costs, if applicable, and
interest and for all other purposes, and Borrower and Tranche B Lender shall not
be affected by any notice to the contrary. This Tranche B Note may be
transferred or assigned only in accordance with the provisions of the
Participation Agreement.
Tranche B Lender shall have recourse for all liabilities and
obligations arising under this Tranche B Note, the Tranche B 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 Tranche B Note, the
Tranche B Loan Agreement and the other Operative Documents.
Neither this Tranche B Note nor the Tranche B 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 Tranche B 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. Without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received under
this Tranche B Note which are made for the purpose of determining whether such
rate exceeds the maximum rate permitted by Applicable Law, shall be made, to the
extent permitted by Applicable Law, by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated term of the
indebtedness evidenced hereby all interest at any time contracted for, charged
or received from the Borrower or otherwise by the Tranche B Lender in connection
with the Tranche B Loan. This provision shall control any other provision of
this Tranche B Note or the Tranche B Loan Agreement.
This Tranche B Note shall be governed by and construed in
accordance with the laws of the State of New York.
BRL UNIVERSAL EQUIPMENT 2001 A, L.P.
By BRL Universal Equipment Management,
Inc.
Its General Partner
By:
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
21
EXHIBIT B
[FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT
Date , 20
---------- --- --
Reference is made to the Tranche B Loan Agreement described in
Item 2 of Annex I hereto (as such Tranche B Loan Agreement may hereafter be
amended, supplemented or otherwise modified from time to time, the "Tranche B
Loan Agreement"). Capitalized terms unless defined herein have the meaning
assigned to them in Appendix A to the Participation Agreement (the
"Participation Agreement") dated as of February 9, 2001 among Universal
Compression, Inc., Universal Compression Holdings, Inc., Borrower, The Bank of
New York, not in its individual capacity but for the benefit of Tranche A
Noteholders, Tranche B Lenders party thereto, BRL Universal Equipment
Management, Inc., Bankers Trust Company as Administrative Agent and Bankers
Trust Company as Collateral Agent _______________ (the "Assignor") and
____________ (the "Assignee") hereby agree as follows:
1. Assignor hereby sells and assigns to Assignee without recourse
and without representation or warranty (other than as expressly provided
herein), and Assignee hereby purchases and assumes from Assignor, that interest
in and to all of Assignor's rights and obligations under the Tranche B Loan
Agreement and the other Operative Documents as of the date hereof which
represents the percentage interest specified in Item 4 of Annex I hereto (the
"Assigned Share") of all of the outstanding rights and obligations under the
Tranche B Loan Agreement including, without limitation, all rights and
obligations with respect to the Assigned Share of Assignor's outstanding Tranche
B Loan.
2. Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Tranche B Loan
Agreement or the other Operative Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Tranche B Loan
Agreement or the other Operative Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Lessor,
Lessee, Guarantor or any of its Subsidiaries or the performance or observance by
Lessor, Lessee, Guarantor or any of its Subsidiaries of any of their obligations
under the Operative Documents or any other instrument or document furnished
pursuant thereto.
3. Assignee (i) confirms that it has received a copy of the
Tranche B Loan Agreement and the other Operative Documents, together with copies
of the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon Administrative Agent,
Collateral Agent, Assignor or any other Tranche B Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Tranche B
Loan Agreement or the other Operative Documents; (iii) confirms that it is an
Eligible Transferee; (iv) appoints and authorizes
22
Exhibit B
Page 2
Administrative Agent and Collateral Agent to take such action as agent on its
behalf and to exercise such powers under the Tranche B Loan Agreement and the
other Operative Documents as are delegated to Administrative Agent and
Collateral Agent, as the case may be, by the terms thereof, together with such
powers as are reasonably incidental thereto; [and] (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Tranche B Loan Agreement and the other Operative Documents are required
to be performed by it as a Tranche B Lender[; and (vi) to the extent legally
entitled to do so, attaches the forms described in Section 12.7(iv) of the
Participation Agreement (1).
4. Following the execution of this Assignment and Assumption
Agreement by Assignor and Assignee, an executed original hereof (together with
all attachments) will be delivered to Administrative Agent. The effective date
of this Assignment and Assumption Agreement shall be the date of execution
hereof by Assignor and Assignee and the receipt of the consent of Administrative
Agent, Lessor and Lessee to the extent required by Section 12.7 of the
Participation Agreement and receipt by Administrative Agent of the assignment
fee referred to in such Section 12.7(iv) of the Participation Agreement, unless
otherwise specified in Item 5 of Annex I hereto (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to
Administrative Agent (including all consents required under Section 12.7(iv) of
the Participation Agreement) and registration of the assignment of the Tranche B
Note assigned hereunder in accordance with Section 11.8(b) of the Participation
Agreement, as of the Settlement Date, (i) Assignee shall be a party to the
Tranche B Loan Agreement and the Participation Agreement and, to the extent
provided in this Assignment and Assumption Agreement, have the rights and
obligations of a Tranche B Lender thereunder and under the other Operative
Documents and (ii) Assignor shall, to the extent provided in this Assignment and
Assumption Agreement, relinquish its rights and be released from its obligations
under the Tranche B Loan Agreement, the Participation Agreement and the other
Operative Documents.
6. It is agreed that Assignee shall be entitled to all
interest on the Assigned Share of the Tranche B Loan at the rates specified in
Item 6 of Annex I. It is further agreed that all payments of principal made on
the Assigned Share of the Tranche B Loan which occur on and after the Settlement
Date will be paid directly by Administrative Agent to Assignee. Upon the
Settlement Date, Assignee shall pay to Assignor an amount specified by Assignor
in writing which represents the Assigned Share of the principal amount of the
Tranche B Loans made by Assignor pursuant to the Tranche B Loan Agreement and
which are outstanding on the Settlement Date, net of any closing costs, and
which are being assigned hereunder. Assignor and Assignee shall make all
appropriate adjustments in payments under the Tranche B Loan Agreement for
periods prior to the Settlement Date directly between themselves on the
Settlement Date.
----------
(1) Include if the Assignee is organized under the laws of a jurisdiction
outside of the United States.
23
Exhibit B
Page 3
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
24
Exhibit B
Page 4
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Assignment and Assumption
Agreement, as of the date first above written, such execution also being made on
Annex I hereto.
Accepted this day [NAME OF ASSIGNOR],
of ________ __, ____ as Assignor
By
----------------------------------
Title:
[NAME OF ASSIGNEE],
as Assignee
By
----------------------------------
Title:
[If required under Section 12.7(iv) of the Participation Agreement]
We hereby consent to the above assignment:
Bankers Trust Company Universal Compression, Inc.
as Administrative Agent as Lessee
By By
------------------------------- ---------------------------
---------------------------------- -----------------------------
(Print Name and Title) (Print Name and Title)
BRL Universal Equipment 2001 A, L.P.
as Lessor
By BRL Universal Equipment Management, Inc.
Its General Partner
By
-------------------------------
----------------------------------
(Print Name and Title)