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Exhibit 4.11
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BRL UNIVERSAL COMPRESSION FUNDING I, L.P.
Issuer
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Indenture Trustee
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SERIES 2001-1 SUPPLEMENT
Dated as of February 9, 2001
to
INDENTURE
Dated as of February 9, 2001
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SERIES 2001-1 NOTES
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions; Calculation Guidelines
Section 101. Definitions.....................................................1
ARTICLE II
Creation of the Series 2001-1 Notes
Section 201. Designation....................................................12
Section 202. Authentication and Delivery....................................12
Section 203. Interest Payments on the Series 2001-1 Notes...................13
Section 204. Principal Payments on the Series 2001-1 Notes..................13
Section 205. Amounts and Terms of Series 2001-1 Noteholder Commitments......14
Section 206. Taxes..........................................................16
Section 207. Increased Costs; Capital Adequacy; Illegality..................17
ARTICLE III
Series 2001-1 Series Account and
Allocation and Application of Amounts Therein
Section 301. Series 2001-1 Series Account...................................19
Section 302. Distributions from Series 2001-1 Series Account................19
ARTICLE IV
Additional Covenants
Section 401. Additional Series..............................................20
Section 402. Control Party..................................................20
Section 403. Rule 144A......................................................20
Section 404. Use of Proceeds................................................20
Section 405. Allocation of Prepayments......................................20
ARTICLE V
Conditions of Effectiveness and Future Lending
Section 501. Effectiveness of Supplement....................................21
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Section 502. Advances on Series 2001-1 Notes................................22
ARTICLE VI
Representations and Warranties
Section 601. Existence......................................................24
Section 602. Authorization..................................................24
Section 603. No Conflict; Legal Compliance..................................24
Section 604. Validity and Binding Effect....................................24
Section 605. Financial Statements...........................................24
Section 606. Executive Offices..............................................25
Section 607. No Agreements or Contracts.....................................25
Section 608. Consents and Approvals.........................................25
Section 609. Margin Regulations.............................................25
Section 610. Taxes..........................................................25
Section 611. Other Regulations..............................................26
Section 612. Solvency and Separateness......................................26
Section 613. Survival of Representations and Warranties.....................26
Section 614. No Default.....................................................27
Section 615. Litigation and Contingent Liabilities..........................27
Section 616. Title; Liens...................................................27
Section 617. Subsidiaries...................................................27
Section 618. No Partnership.................................................27
ARTICLE VII
Miscellaneous Provisions
Section 701. Ratification of Indenture......................................28
Section 702. Counterparts...................................................28
Section 703. Governing Law..................................................28
Section 704. Statutory References...........................................28
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EXHIBITS
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A -- Form of Class A Note
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SERIES 2001-1 SUPPLEMENT, dated as of February 9, 2001 (the
"Supplement"), between BRL UNIVERSAL COMPRESSION FUNDING I,
L.P., a limited partnership organized under the laws of the
State of Delaware (the "Issuer") and ▇▇▇▇▇ Fargo Bank
Minnesota, NATIONAL ASSOCIATION, a national banking
association, as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
Pursuant to the Indenture, dated as of February 9, 2001 (as
amended, modified or supplemented from time to time in accordance with its
terms, the "Indenture"), between the Issuer and the Indenture Trustee, the
Issuer may from time to time direct the Indenture Trustee to authenticate one or
more new Series of Notes. The Principal Terms of any new Series are to be set
forth in a Supplement to the Indenture.
Pursuant to this Supplement, the Issuer and the Indenture
Trustee shall create a new Series of Notes and specify the Principal Terms
thereof.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the other parties and
the Series 2001-1 Noteholders:
ARTICLE I
Definitions; Calculation Guidelines
Section 101. Definitions. (a) Whenever used in this
Supplement, the following words and phrases shall have the following meanings,
and the definitions of such terms are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such terms. Capitalized terms used herein and not otherwise
defined shall have the meanings given to such terms in the Indenture.
"ADJUSTED EURODOLLAR RATE" means on any day, an interest rate
per annum equal to the quotient, expressed as a percentage and rounded upwards
(if necessary) to the nearest 1/100 of 1%, obtained by dividing (i) the LIBOR
Rate on such day by (ii) the decimal equivalent of 100% minus the Eurodollar
Reserve Percentage on such day.
"AFFECTED PARTY" means each Series 2001-1 Noteholder, each
Liquidity Bank, all assignees and purchaser of each Series 2001-1 Noteholder or
Liquidity Bank, the Deal Agent or any sub-agent of the Deal Agent.
"AFFILIATE" shall have the meaning set forth in Section 101 of
the Indenture.
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"AGGREGATE CLASS A NOTE PRINCIPAL BALANCE" means, as of any
date of determination, an amount equal to the sum of the Class A Note Principal
Balances of all Series 2001-1 Notes then Outstanding.
"ALTERNATIVE RATE" means on any day, an interest rate per
annum equal to the Adjusted Eurodollar Rate; provided, however, that the
Alternative Rate on any such day for the outstanding principal amount of any
Class A Advance allocated to an Interest Accrual Period shall be the Base Rate
if (i) on or before the first day of such Interest Accrual Period, the Deal
Agent shall have been notified that a Eurodollar Disruption Event has occurred
and is continuing and (ii) as a result thereof, such Class A Advance was funded
by a source of funds for which interest is determined by reference to the Base
Rate.
"APPLICABLE MARGIN" means, with respect to each unpaid Class A
Advance during an Interest Accrual Period, one of the following amounts:
(A) for the period commencing on the Closing Date to (but not
excluding) February 9, 2002, either (x) one and one-half of
one percent (1.50%) per annum or (y) if a Back-up Management
Agreement has not been executed and delivered to each of the
Indenture Trustee and the Deal Agent by August 9, 2001, two
percent (2%) per annum commencing on (and including) August 9,
2001 to (but excluding) the earlier of (x) February 9, 2002
and (y) the date on which the Back-up Management Agreement is
executed and delivered as set forth above;
(B) for the period commencing on February 9, 2002 to (but
including) February 9, 2003, either (x) two percent (2.00%)
per annum or (y) if a Back-up Management Agreement has not
been executed and delivered to each of the Indenture Trustee
and the Deal Agent, three and one-half percent (3.5%) per
annum provided that this clause (y) shall cease to be
effective on the date on which the Back-up Management
Agreement is executed and delivered as set forth above;
(C) for the period from February 9, 2003 and thereafter, either
(x) two and one-half of one percent (2.50%) per annum or (y)
if a Back-up Management Agreement has not been executed and
delivered to each of the Indenture Trustee and the Deal Agent,
three and one half percent (3.5%) provided that this clause
(y) shall cease to be effective on the date on which the
Back-up Management Agreement is executed and delivered.
(D) if any Class A Advance (or portion thereof) has been funded
utilizing a source of funds for which interest is determined
by reference to the Base Rate, then, for any period of time
for which such Class A Advance has been funded at the Base
Rate, zero.
"APPRAISED VALUE" shall have the meaning set forth in Section
101 of the Indenture.
"ASSET BASE" shall have the meaning set forth in Section 101
of the Indenture.
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"ASSET BASE CERTIFICATE" shall have the meaning set forth in
Section 101 of the Indenture.
"AVAILABILITY" means, as of any date of determination for any
Series 2001-1 Noteholder prior to the Conversion Date, the lesser of (A) the
excess, if any of (x) the Class A Note Existing Commitment of such Series 2001-1
Noteholder on such date of determination over (y) the then Class A Note
Principal Balance of such Series 2001-1 Note owned by such Series 2001-1
Noteholder on such date of determination or (B) the excess, if any, of (x) the
Percentage of such Series 2001-1 Noteholder of the Asset Base over (y) the then
Class A Note Principal Balance of the Series 2001-1 Note owned by such Series
2001-1 Noteholder. On or subsequent to the Conversion Date, zero.
"BACK-UP MANAGEMENT AGREEMENT" shall have the meaning set
forth in Section 101 of the Indenture.
"BASE RATE" means on any date, a fluctuating rate of interest
per annum equal to the higher of (a) the Prime Rate and (b) the Federal Funds
Rate plus 0.50% per annum.
"BREAKAGE COSTS" shall have the meaning set forth in Section
205(c) hereof.
"BUSINESS DAY" shall have the meaning set forth in Section 101
of the Indenture.
"CAPITAL" shall have the meaning set forth in the Partnership
Agreement.
"CLASS A ADVANCE" means an advance of funds made by a Class A
Noteholder pursuant to the provisions of Section 205(b) of this Supplement.
"CLASS A NOTE" means any one of the notes, substantially in
the form of Exhibit A to this Supplement, issued pursuant to the terms of this
Supplement.
"CLASS A NOTE EXISTING COMMITMENT" means the aggregate initial
commitment to purchase the Class A Notes, expressed as a dollar amount, subject
to reduction in accordance with the terms of the Series 2001-1 Note Purchase
Agreement.
"CLASS A NOTE INTEREST PAYMENT" means for each Payment Date
and each Series 2001-1 Noteholder, an amount equal to the sum, for each day
during the immediately preceding calendar month ending on the immediately
preceding day, of an amount equal to the product of (i) the principal amount of
each Class A Advance, (ii) a rate equal to the sum of (x) the Alternative Rate
on such day and (y) the Applicable Margin, and (iii) 1/360, in the case of the
Adjusted Eurodollar Rate, or 1/365 or 1/366, as applicable, in the case of the
Base Rate.
The Deal Agent shall, by not later than the fifth (5th) Business Day proceeding
each Payment Date, deliver to each of the Issuer and the Manager a calculation
of the Class A Note Interest Payment payable on such Payment Date.
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"CLASS A NOTE PRINCIPAL BALANCE" means, with respect to any
Class A Note as of any date of determination, an amount equal to the excess of
(x) the sum of (A) the Class A Note Principal Balance of such Class A Note on
the Effective Date and (B) the sum of all Class A Advances made by such Class A
Noteholder on or subsequent to the Effective Date, over (y) the cumulative
amount of all other principal payments (including Prepayments) actually paid to
such Series 2001-1 Noteholder subsequent to the Effective Date.
"CLASS A NOTE UNUSED COMMITMENT" means, with respect to any
Series 2001-1 Noteholder as of any date of determination: (A) prior to the
Conversion Date the excess of (i) the Class A Note Existing Commitment then in
effect for such Series 2001-1 Noteholder, over (ii) the Class A Note Principal
Balance of the Series 2001-1 Note owned by such Series 2001-1 Noteholder as of
such date of determination, measured after giving effect to all Class A Advances
made and all principal payments to be received by such Series 2001-1 Noteholder
on such date of determination and (B) on or subsequent to the Conversion Date,
zero.
"CLASS A NOTEHOLDER" means a Series 2001-1 Noteholder.
"CLOSING" means the time at which each of the conditions
precedent set forth in Article V of this Supplement shall have been duly
fulfilled or satisfied.
"CLOSING DATE" means the date on which Closing occurs.
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor statute thereto.
"COLLATERAL" shall have the meaning set forth in Section 101
of the Indenture.
"COLLECTION PERIOD" shall have the meaning set forth in
Section 101 of the Indenture.
"COMMERCIAL PAPER NOTE" shall mean short-term promissory notes
having a maturity of between 1 and 270 days.
"COMMITMENT FEE" shall have the meaning set forth in Section
205(d) hereof.
"COMMITMENT FEE PERCENTAGE" means, as of any date of
determination, one-half of one percent (0.50%) per annum.
"COMPRESSOR" shall have the meaning set forth in Section 101
of the Indenture.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement,
dated as of February 9, 2001, between Universal and the Transferor, as such
agreement may be amended, modified or supplemented from time to time in
accordance with its terms.
"CONTRIBUTOR" shall have the meaning set forth in the
Contribution Agreement.
"CONTROL PARTY" has the meaning set forth in Section 402 of
this Supplement.
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"CONVERSION DATE" means, with respect to Series 2001-1, the
earlier to occur of (x) the date on which a Trigger Event occurs and (y)
February 9, 2002, as the date in this clause (y) may be extended annually with
the prior written consent of all of the Holders of the Series 2001-1 Notes.
"CREDIT AND COLLECTION POLICY" means the credit and collection
policy of Universal initially specified in Exhibit C to the Management Agreement
and subsequently reported in accordance with the terms of the Management
Agreement.
"DEAL AGENT" means First Union Securities, Inc.
"DEFAULT INTEREST" means, for any Payment Date, the
incremental amount of interest payable on the Class A Notes in accordance with
the provisions of Section 203(b) hereof.
"DEFINITIVE NOTE" shall have the meaning set forth in Section
101 of the Indenture.
"DETERMINATION DATE" means the third Business Day prior to any
Payment Date.
"DOLLARS" and the sign "$" means lawful money of the United
States of America.
"EFFECTIVE DATE" means February 9, 2001.
"ELIGIBLE ACCOUNT" shall have the meaning set forth in Section
101 of the Indenture.
"EURODOLLAR DISRUPTION EVENT" means any of the following: (a)
a determination by a Class A Noteholder, the Liquidity Bank (or any of its
assignees or participants) or the Deal Agent that it would be contrary to law
(on any of its assignees or participants) or to the directive of any central
bank or other governmental authority (whether or not having the force of law) to
obtain Dollars in the London interbank market to make, fund or maintain any
Class A Advance for such Interest Accrual Period, (b) a determination by a Class
A Noteholder, the Liquidity Bank (or any of its assignees or participants) or
the Deal Agent that the rate at which deposits of Dollars are being offered to
such lender in the London interbank market does not accurately reflect the cost
to such Class A Noteholder or the Liquidity Bank (or any of its assignees or
participants) of making, funding or maintaining any Class A Advance for such
Interest Accrual Period, (c) the inability of a Class A Noteholder or the
Liquidity Bank (or any of its assignees or participants) to obtain Dollars in
the London interbank market to make, fund or maintain any Class A Advance for
such Interest Accrual Period or (d) any Liquidity Bank shall have notified the
Deal Agent of the inability, for any reason, of such Liquidity Bank or any of
its assignees or participants to determine the Adjusted Eurodollar Rate.
"EURODOLLAR RESERVE PERCENTAGE" means for any day in any
Interest Accrual Period (or, if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such period
during which any such percentage shall be so applicable), the reserve percentage
applicable on such day under regulations issued from time to time by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for FUNB, with
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respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (as defined in Regulation D of the Federal Reserve Board, as in
effect from time to time) and having a term equal to such Interest Accrual
Period.
"EVENT OF DEFAULT" means, with respect to any Series, the
occurrence of any of the events or conditions set forth in Section 801 of the
Indenture.
"FEDERAL FUNDS RATE" means for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the federal funds rates and confirmed in Federal Reserve Board
Statistical Release H.15 (519) or any successor or substitute publication
selected by FUNB (or, if such day is not a Business Day, for the next preceding
Business Day), or, if, for any reason, such rate is not available on any day,
the rate determined, in the sole opinion of FUNB, to be the rate at which
federal funds are being offered for sale in the national federal funds market at
9:00 a.m. (New York City time).
"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"FUNB" means First Union National Bank.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" shall
have the meaning set forth in Section 101 of the Indenture.
"GOVERNMENTAL AUTHORITY" shall have the meaning set forth in
Section 101 of the Indenture.
"HEAD LEASE" means the Master Equipment Lease Agreement, dated
as of February 9, 2001, by and between the Head Lessor and the Head Lessee, as
such agreement may be amended, modified or supplemented from time to time in
accordance with its terms.
"INCREASED COSTS" means any fee, expense or increased cost
charged to a Series 2001-1 Noteholder on account of the adoption of any
applicable law, rule or regulation (including any applicable law, rule, or
regulation regarding capital adequacy) or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority as
provided by Section 207 of this Supplement.
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 206(a) hereof.
"INDENTURE COMPLIANCE CERTIFICATE" means the certificate of
the Issuer given pursuant to Section 502(c) hereof.
"INDENTURE TRUSTEE" means the Person performing the duties of
the Indenture Trustee under the Indenture; initially, ▇▇▇▇▇ Fargo Bank
Minnesota, National Association.
"INDEPENDENT DIRECTOR" shall have the meaning set forth in
Section 101 of the Indenture.
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"INSOLVENCY LAW" means the Bankruptcy Code or similar
applicable law in any State or other applicable jurisdiction.
"INTEREST ACCRUAL PERIOD" means, with respect to a Payment
Date, the period beginning with, and including, the first day of the immediately
preceding calendar month and ending on and including the last of such calendar
month; except that, in the case of the first Interest Accrual Period for each
Class A Advance, the period beginning with and including the initial funding
date and ending on and including the last day of the calendar month immediately
preceding the initial Payment Date. If such period is associated with LIBOR Rate
fundings, the Interest Accrual Period shall be at the Deal Agent's discretion;
provided, however, that such period shall end not later than either the Payment
Date of the following month or the Payment Date of the second succeeding month
"INTEREST RATE SWAP AGREEMENT" shall have the meaning set
forth in Section 101 of the Indenture.
"ISSUER" BRL Universal Compression Funding I, L.P., a limited
partnership organized and existing under the laws of the State of Delaware, and
its successors and permitted assigns.
"LEASE" shall have the meaning set forth in Section 101 of the
Indenture.
"LEASE POOL" shall have the meaning set forth in the Head
Lease.
"LIBOR" means the London Interbank Offered Rate.
"LIBOR RATE" means, for any day during any Interest Accrual
Period and any Class A Advance, an interest rate per annum equal to:
(i) to the extent that VFCC has funded the acquisition of, or
maintenance of its investment in, the Class A Notes through the
issuance of Commercial Paper Notes:
(a) the posted rate for 30-day deposits in United States
Dollars appearing on Telerate page 3750 as of 11:00 a.m.
(London time) at such time and on such day; or
(b) if no such rate appears on Telerate page 3750 at
such time and on such day, then the LIBOR Rate shall be
determined by First Union at its principal office in
Charlotte, North Carolina as its rate (each such
determination, absent manifest error, to be conclusive and
binding on all parties hereto and their assignees) at which
30-day deposits in Dollars are being, have been, or would be
offered or quoted by First Union to major banks in the
applicable interbank market for Eurodollar deposits at or
about 11:00 a.m. (Charlotte, North ▇▇▇▇▇▇▇▇ time) on such day;
and
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(ii) in all other case:
(a) the posted rate for 30-day deposits in United States
Dollars appearing on Telerate page 3750 as of 11:00 a.m.
(London time) at such time and on such day; or
(b) if no such rate appears on Telerate page 3750 at such
time and on such day, then the LIBOR Rate shall be determined
by First Union at its principal office in Charlotte, North
Carolina as its rate (each such determination, absent manifest
error, to be conclusive and binding on all parties hereto and
their assignees) at which 30-day deposits in Dollars are
being, have been, or would be offered or quoted by First Union
to major banks in the applicable interbank market for
Eurodollar deposits at or about 11:00 a.m. (Charlotte, North
Carolina time) on such day.
"LIEN" shall have the meaning set forth in Section 101 of the
Indenture.
"LIQUIDITY AGREEMENT" means the liquidity agreement, dated as
of February 9, 2001 among VFCC, the investors named therein, First Union
Securities, Inc. and FUNB, as such agreement shall be amended, modified or
supplemented from time to time in accordance with its terms.
"LIQUIDITY BANK" means FUNB, as the liquidity bank under the
Series 2001-1 Note Purchase Agreement, and its permitted successors and assigns.
"MAJORITY OF HOLDERS" means, with respect to the Series 2001-1
Notes, one or more Class A Noteholders representing more than fifty percent
(50%) of the then Aggregate Class A Note Principal Balance.
"MANAGEMENT AGREEMENT" means the management agreement, dated
as of February 9, 2000, among the Manager, the Head Lessee and the Head Lessor,
as such agreement shall be amended, supplemented or modified from time to time
in accordance with its terms.
"MANAGER" means the Person performing the duties of the
Manager under the Management Agreement; initially, Universal.
"MANAGER DEFAULT" means the occurrence of any of the events or
conditions set forth in Section 12.1 of the Management Agreement.
"MATERIAL ADVERSE CHANGE" shall have the meaning set forth in
Section 101 of the Indenture.
"NOTEHOLDER" or "HOLDER" shall have the meaning set forth in
Section 101 of the Indenture.
"NOTE REGISTER" shall have the meaning set forth in Section
101 of the Indenture.
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"OTHER TAXES" shall have the meaning set forth in Section
206(b) of this Supplement.
"OUTSTANDING" shall have the meaning set forth in Section 101
of the Indenture.
"OVERDUE RATE" means, for any Determination Date, an interest
rate per annum equal to the sum of (i) the Base Rate then in effect plus (ii)
two percent (2%).
"PAYMENT DATE" shall have the meaning set forth in Section 201
hereof.
"PERCENTAGE" means, with respect to any Series 2001-1
Noteholder as of any date of determination, a fraction (expressed as a
percentage), the numerator of which is the Series 2001-1 Noteholder's Class A
Note Existing Commitment and the denominator of which is equal to the aggregate
Class A Note Existing Commitments of all Series 2001-1 Noteholders.
"PERSON" shall have the meaning set forth in Section 101 of
the Indenture.
"POTENTIAL TRIGGER EVENT" means any event or condition that,
with notice or the passage of time or both, could reasonably be expected to
constitute a Trigger Event.
"PREPAYMENTS" shall have the meaning set forth in Section 101
of the Indenture.
"PRIME RATE" means the interest rate per annum announced by
FUNB from time to time as its "prime rate" or "base rate" in the United States,
such rate to change as and when such designated rate changes. The Prime Rate is
not intended to be the lowest rate of interest charged by FUNB in connection
with extensions of credit to debtors.
"PRINCIPAL PAYMENT AMOUNT" shall have the meaning set forth in
the Indenture.
"RATING AGENCY" or "RATING AGENCIES" shall have the meaning
set forth in Section 101 of the Indenture.
"RATING AGENCY CONDITION" shall have the meaning set forth in
Section 101 of the Indenture.
"RECORD DATE" shall have the meaning set forth in Section 101
of the Indenture.
"REQUISITE GLOBAL MAJORITY" shall have the meaning set forth
in Section 101 of the Indenture.
"SALE AGREEMENT" means the Sale Agreement, dated as of
February 9, 2001, between UCO Compression LLC and the Issuer, as such agreement
may be amended, modified or supplemented from time to time in accordance with
its terms.
"SCHEDULED PRINCIPAL PAYMENT AMOUNT" means, for the Series
2001-1 Notes for any Payment Date, one of the following:
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(1) on any Payment Date prior to the expiration of a Term
of a Lease Pool, zero;
(2) on the expiration date of a Term of a Lease Pool, an
amount determined in accordance with the following
formula:
ACNPB - CDDE + TPPA
where:
ACNPB = the sum of (i) Aggregate Class A Note Principal
Balance on such Termination Date and (ii) the unpaid
principal balance of the Capital on such Termination
Date; and
CDDE = the sum of (i) Aggregate Class A Note Principal
Balance on the Conversion Date and (ii) the unpaid
principal balance of the Capital on the Conversion Date;
TPPA = the sum of the Targeted Principal Payout Amounts
(determined on the Conversion Date) for all Lease Pools
(including the Lease Pool under consideration) whose
Term has expired or terminated on or prior to the
Termination Date under consideration.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SELLER" means UCO Compression LLC, a limited liability
company organized and existing under the laws of the State of Delaware, and its
successors and permitted assigns.
"SENIOR CLASS PRIORITY PAYMENTS" shall have the meaning set
forth in Section 201 hereof.
"SERIES 2001-1" shall mean the Series of Notes the terms of
which are specified in this Supplement.
"SERIES 2001-1 FINAL MATURITY DATE" means the Payment Date
occurring in FEBRUARY 2009.
"SERIES 2001-1 INITIAL COMMITMENT" means $194,000,000.
"SERIES 2001-1 NOTEHOLDER" shall mean the Person in whose name
a Series 2001-1 Note is registered in the Note Register.
"SERIES 2001-1 NOTES" shall have the meaning set forth in
"CLASS A NOTE".
"SERIES 2001-1 NOTE PURCHASE AGREEMENT" means the Note
Purchase Agreement among the Issuer, VFCC and the Deal Agent, dated as of
February 9, 2001 pursuant to which VFCC agreed to purchase certain Series 2001-1
Notes.
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"SERIES 2001-1 SERIES ACCOUNT" means the account established
by the Issuer in the name of the Indenture Trustee with the Indenture Trustee
into which funds are deposited from the Trust Account pursuant to Section 302 of
the Indenture.
"SERIES 2001-1 TRANSACTION DOCUMENTS" means any and all of the
Indenture, this Supplement, the Series 2001-1 Notes, the Management Agreement,
the Back-up Management Agreement, the Contribution Agreement, the ▇▇▇▇(s) of
Sale, the Representation and Warranty Agreement, the Sale Agreement, the Head
Lease, Head Lessee Security Agreement, the Series 2001-1 Note Purchase
Agreement, the Liquidity Agreement, the Interest Rate Swap Agreements, and any
and all other agreements, documents and instruments executed and delivered by or
on behalf or in support of the Issuer with respect to the issuance and sale of
the Series 2001-1 Notes, as any of the foregoing may from time to time be
amended, modified, supplemented or renewed.
"TARGETED PRINCIPAL PAYOUT AMOUNT" means an amount determined
for each Lease Pool on the Conversion Date equal to the product of (x) a
fraction the numerator of which is the Advance Rate for such Lease Pool and the
denominator of which is the sum of the Advance Rates for all Lease Pools in
effect on the Conversion Date and (y) the sum of (i) the Aggregate Class A Note
Principal Balance on the Conversion Date and (ii) the unpaid principal balance
of the Capital on the Conversion Date.
"TAXES" shall have the meaning set forth in Section 206(a) of
this Supplement.
"TERM" shall have the meaning set forth in Section 4 of the
Head Lease.
"TERMINATION DATE" shall have the meaning set forth in Section
1 of the Head Lease.
"TRANSFEROR" means UCO Compression LLC, a limited liability
company organized and existing under the laws of the State of Delaware.
"TRIGGER EVENT" shall have the meaning set forth in Section
101 of the Indenture.
"TRUST ACCOUNT" shall have the meaning set forth in Section
101 of the Indenture.
"UNIVERSAL" shall mean Universal Compression Inc., a Delaware
corporation, and its successor and permitted assigns.
"UNIVERSAL PARTY" means any one or more of the Issuer, the
Seller, the Lessee, the Transferor, the Contributor, the Manager or any
Affiliate of any of the foregoing.
"VFCC" means Variable Funding Capital Corporation, a Delaware
corporation, and its successors and assigns.
(b) Capitalized terms used herein and not otherwise defined
shall have the meaning set forth in the Indenture.
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ARTICLE II
Creation of the Series 2001-1 Notes
Section 201. Designation. There is hereby created a Series of
Notes to be issued in one Class pursuant to the Indenture and this Supplement to
be known respectively as "BRL Universal Compression Funding I, L.P. Floating
Rate Secured Notes, Series 2001-1". The Series 2001-1 Notes will be issued on
the Effective Date in the initial principal balance of up to $194,000,000 and
will not have priority over any Senior Class of any other Series, except to the
extent set forth in the Supplement for such other Series.
(a) The Payment Date with respect to the Series 2001-1 Notes
shall be the 15th day of each month, commencing March 15, 2001 or, if such day
is not a Business Day, the immediately following Business Day , so long as such
Business Day does not occur in the succeeding month or (ii) if the immediately
following Business Day would fall in the succeeding month, the Business Day
immediately preceding the fifteenth (15th) day of such month (each a "Payment
Date").
(b) The Series 2001-1 Notes shall be issued as Definitive
Notes, substantially in the form of Exhibit A hereto. The transfer restrictions
set forth in Section 202(i) and Section 205(g) and (h) of the Indenture shall
not be applicable to any transfer of the Note (or an interest therein) by VFCC
to the Liquidity Bank in accordance with the provisions of the Liquidity
Agreement.
(c) Payments of principal on the Series 2001-1 Notes shall be
payable from funds on deposit in the Series 2001-1 Series Account or otherwise
at the times and in the amounts set forth in Article III of the Indenture and
Article III of this Supplement.
(d) The Class A Note Interest Payment and the Commitment Fee
shall constitute "Senior Class Priority Payments", as such term is utilized in
the Indenture. The Scheduled Principal Payment Amount shall constitute the
"Principal Payment Amount" for Series 2001-1, as such term is utilized in the
Indenture.
(e) On the Closing Date, there is no Series Enhancer or
Enhancement Agreement applicable to the Series 2001-1 Notes. In addition, no
Rating Agencies have been designated for the Series 2001-1 Notes on the Closing
Date.
(f) In the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or provision contained in
the Indenture, the terms and provisions of this Supplement shall govern.
Section 202. Authentication and Delivery.
(a) On the Effective Date, Issuer shall sign, and shall direct
the Indenture Trustee in writing pursuant to Section 201 of the Indenture to
duly authenticate, and the Indenture Trustee, upon receiving such direction, (i)
shall authenticate (by manual or facsimile signature), subject to compliance
with the conditions precedent set forth in Section 501 hereof and the Series
2001-1 Note
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Purchase Agreement, the Series 2001-1 Notes in accordance with such written
directions, and (ii) subject to compliance with the conditions precedent set
forth in Section 501 hereof and the Series 2001-1 Note Purchase Agreement, shall
deliver such Series 2001-1 Notes to the Noteholders in accordance with such
written directions.
(b) In accordance with Section 202 of the Indenture, the Class
A Notes shall be represented by one or more Definitive Notes.
(c) The Series 2001-1 Notes shall be executed by manual or
facsimile signature by the Issuer and shall be substantially in the form of
Exhibit A hereto.
(d) The Series 2001-1 Notes shall be issued in minimum
denominations of $250,000 and in integral multiples of $100,000 in excess
thereof.
Section 203. Interest Payments on the Series 2001-1 Notes.
(a) Interest on Series 2001-1 Notes. Interest will be paid on
each Series 2001-1 Note in an amount equal to the Class A Note Interest Payment.
Such Class A Note Interest Payment shall be payable on each Payment Date from
amounts on deposit in the Series 2001-1 Series Account in accordance with
Section 302 of this Supplement. To the extent that the amount of interest which
is due and payable on any Payment Date is not paid in full on such date, such
shortfall, together with interest thereon at the interest rate applicable to
such Interest Accrual Period, shall be due and payable on the immediately
succeeding Payment Date.
(b) Interest on Overdue Amounts. If the Issuer shall default
in the payment when due of (i) the unpaid principal balance of any Series 2001-1
Notes on the Series 2001-1 Final Maturity Date, or (ii) the Class A Note
Interest Payment on any Series 2001-1 Note when due, or (iii) any other amount
becoming due under this Supplement, the Issuer shall, pursuant to Section 302
hereof, from time to time pay interest (the incremental interest payable in
excess of the interest otherwise payable, "Default Interest") on such unpaid
amounts, to the extent permitted by applicable law, to, but not including, the
date of actual payment (after as well as before judgment), at a rate per annum
equal to the Overdue Rate, for the period during which such principal, interest
or other amount shall be unpaid from the due date of such payment to the date of
actual payment thereof. Any such Default Interest shall be payable at the times
and subject to the priorities set forth in Section 302 of this Supplement.
Section 204. Principal Payments on the Series 2001-1 Notes. In
addition to any Prepayment required pursuant to the provisions of Section 204(b)
hereof, the principal balance of the Series 2001-1 Notes shall be payable on
each Payment Date from amounts on deposit in the Series 2001-1 Series Account in
an amount equal to the Scheduled Principal Payment Amount for such Payment Date.
The unpaid principal amount of the Series 2001-1 Notes together with all unpaid
interest (including all Default Interest), fees (including all Commitment Fees),
expense, costs and other amounts payable by the Issuer to the Series 2001-1
Noteholders and the Indenture Trustee
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pursuant to the terms of the Indenture and this Supplement, shall be due and
payable in full on the earlier to occur of (x) the date on which an Event of
Default shall occur and the Series 2001-1 Notes have been accelerated in
accordance with Section 802 of the Indenture and (y) the Series 2001-1 Final
Maturity Date.
(a) So long as a Trigger Event is continuing, the principal
balance of the Series 2001-1 Notes shall be required to be prepaid at the times
and in the amounts set forth in Section 702(b) of the Indenture. In connection
with any Prepayment made in accordance with this Section 204(b), the Issuer
shall pay (i) any Breakage Costs assessed by the Deal Agent, on behalf of the
Class A Noteholders or the Liquidity Bank and (ii) any fees and costs assessed
by any Eligible Interest Rate Swap Counterparty.
(b) The Issuer may, on any Payment Date and upon three (3)
Business Days' prior notice (which notice shall be irrevocable when given),
voluntarily prepay the Class A Note Principal Balance after notice to the Series
2001-1 Noteholders in accordance with the terms of this Supplement, by making a
wire transfer to the Class A Noteholders; provided, however, that the Issuer may
not make such repayment from funds in the Trust Account or the Series 2001-1
Series Account, except to the extent that funds in any such account would be
otherwise be payable to the Issuer in accordance with the terms of this
Supplement. In connection with any Prepayment made in accordance with this
Section 204(b), the Issuer shall pay (i) any Breakage Costs assessed by the Deal
Agent, on behalf of the Class A Noteholders or the Liquidity Bank and (ii) any
fees and costs assessed by any Eligible Interest Rate Swap Counterparty.
Section 205. Amounts and Terms of Series 2001-1 Noteholder
Commitments.
(a) Commitments. Subject to the terms and conditions of this
Supplement and the Series 2001-1 Note Purchase Agreement, each Series 2001-1
Noteholder shall make its portion of the Series 2001-1 Initial Commitment
available to the Issuer on the Effective Date.
(b) Advances. Prior to the Conversion Date each Class A Note
shall be a revolving note with a maximum principal amount equal to the Class A
Note Existing Commitment then in effect for the related Series 2001-1
Noteholder. The Deal Agent shall maintain a record of all Class A Advances and
repayments made on the Series 2001-1 Notes and absent manifest error such
records shall be conclusive. On any two Business Days in any calendar month
requested by the Issuer and presuming that the Issuer shall have given three
Business Days' prior notice to the Deal Agent and shall have satisfied all
applicable conditions precedent set forth in Article V hereof, each Series
2001-1 Noteholder shall, subject to the terms and conditions of the Class A Note
Purchase Agreement, deposit with the account designated by the Issuer by wire
transfer of same day funds an amount equal to its Percentage of the requested
Class A Advance; provided, however, that, each Class A Advance by each Class A
Noteholder shall be for an amount (A) not less than the lesser of (x) its then
unused Class A Note Existing Commitment and (y) Five Million Dollars
($5,000,000) in the case of the first Class A Advance and thereafter Five
Hundred Thousand Dollars ($500,000), and (B) not greater than the Availability
of such Series 2001-1 Noteholder on such Business Day;
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provided, further, that in the event that any Series 2001-1 Noteholder fails to
make a Class A Advance in accordance with its Class A Note Existing Commitment,
then the other Series 2001-1 Noteholder(s) shall not be obligated to fund the
Percentage of the defaulted Series 2001-1 Noteholder(s).
(c) Each request for a Class A Advance shall be submitted in
writing to the Deal Agent in the manner contemplated in Section 1207 of the
Indenture by not later than 1:00 p.m. (Charlotte, North Carolina time) on the
third Business Day prior to the date of the requested advance and shall be
irrevocable when given.
Each request for a Class A Advance shall constitute a
reaffirmation by Issuer that (1) no Event of Default, Manager Default or Trigger
Event has occurred and is continuing and (2) the representations and warranties
contained in the Series 2001-1 Transaction Documents are true, correct and
complete in all material respects to the same extent as though made on and as of
the date of the request, except to the extent such representations and
warranties specifically relate to an earlier date, in which event they shall be
true, correct and complete in all material respects as of such earlier date.
If (i) any Class A Advance requested by the Issuer is not made
or effectuated, for any reason whatsoever, related to a default or
nonperformance by the Issuer, on the date specified thereof or (ii) any optional
prepayment of the Series 2001-1 Notes is not made when specified in the notice
delivered pursuant to Section 702 of the Indenture, the Issuer shall indemnify
each Class A Noteholder against any reasonable loss, cost or expense directly
incurred by such Class A Noteholder (excluding any consequential or other
similar damages), including, without limitation, any loss (including loss of
anticipated profits, net of anticipated profits in the reemployment of such
funds in the manner determined by the Deal Agent), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Class A Noteholder (as determined by the Deal Agent) to fund or maintain
such Class A Advance, as the case may be, during such Interest Accrual Period
(all of the foregoing collectively, "Breakage Costs").
(d) On each Payment Date, the Issuer shall pay a commitment
fee (the "Commitment Fee") to each Class A Noteholder in an amount equal to the
product for each day during the immediately preceding Collection Period of (x)
the applicable Commitment Fee Percentage on such date, (y) a fraction (expressed
as percentage) the numerator of which is one and the denominator of which is
equal to the actual number of days in the applicable year and (z) the Class A
Note Unused Commitment of such Class A Noteholder on such date. Such Commitment
Fee shall be payable from amounts then on deposit in the Series 2001-1 Series
Account in accordance with Section 302 hereof.
(e) All payments of principal and interest on the Series
2001-1 Notes shall be paid to the Class A Noteholders reflected in the Note
Register as of the related Record Date by wire transfer of immediately available
funds for receipt prior to 11:00 a.m. (New York City time) on the related
Payment Date. Any payments received by a Class A Noteholder after 11:00 a.m.
(New York City time) on any day shall be considered to have been received on the
next succeeding Business Day.
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(f) All payments received by the Deal Agent from the Issuer by
wire transfer of immediately available funds prior to 11:00 a.m. (New York City
time) on the related Payment Date shall be disbursed by the Deal Agent to the
Class A Noteholders or the Liquidity Bank by no later than 3:00 p.m. on such
Business Day. Any payments received by the Deal Agent after 11:00 a.m. (New York
City time) on any day shall be paid to the Class A Noteholders by 11:00 a.m. on
the next Business Day.
Section 206. Taxes.
(a) In addition to payments of principal and interest on the
Series 2001-1 Notes when due, the Issuer shall pay, but only in accordance with
the priorities for distributions set forth in Section 302 of this Supplement,
any and all present or future taxes, fees, duties, levies, imposts, or charges,
or any other similar deduction or withholding, whatsoever imposed by any
Governmental Authority, and all liabilities with respect thereto, excluding, in
the case of each Series 2001-1 Noteholder and any Person to whom a Series 2001-1
Noteholder has sold an interest in the Series 2001-1 Note, the Deal Agent and
any Liquidity Bank (such Series 2001-1 Noteholder and any such Person being an
"Indemnified Party"), such taxes as are imposed on or measured by each
Indemnified Party's net income by the jurisdiction under the laws of which such
Indemnified Party, as the case may be, is organized or maintains an office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes").
(b) In addition, the Issuer shall pay, subject to the
priorities set forth in Section 302, any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Supplement or any other
documents related to the issuance of the Series 2001-1 Notes except for any such
taxes due upon the transfer by a Class A Noteholder of its Series 2001-1 Notes
(hereinafter referred to as "Other Taxes").
(c) If any Taxes or Other Taxes are directly asserted or
imposed against any Indemnified Party, the Issuer shall indemnify and hold
harmless such Indemnified Party, subject to the priorities for distribution set
forth in Section 302, for the full amount of the Taxes or Other Taxes (including
any Taxes or Other Taxes asserted or imposed by any jurisdiction on amounts
payable under this Section 206) paid by the Indemnified Party and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted or imposed. If the Issuer fails to pay any Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit to the
Indemnified Party the required receipts or other required documentary evidence,
the Issuer shall indemnify the Indemnified Party for any incremental Taxes or
Other Taxes, interest or penalties that may become payable by the Indemnified
Party as a result of any such failure. Payment under this indemnification shall
be made in accordance with the priorities for distributions set forth in Section
302 of this Supplement after the Indemnified Party makes written demand
therefor. Indemnified Party shall give prompt notice to Issuer of any assertion
of Taxes or Other Taxes so that Issuer may, at its option, contest such
assertion.
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(d) Within thirty (30) days after the date of any payment by
the Issuer of Taxes or Other Taxes, the Issuer shall furnish to each of the
Series 2001-1 Noteholders the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to the
Series 2001-1 Noteholders.
(e) Taxes and Other Taxes shall not constitute a claim against
the Issuer or the Collateral in the event such amounts are not paid in
accordance with Section 302 of this Supplement.
(f) On or before the date it acquires a Series 2001-1 Note
(and, so long as it may properly do so, periodically thereafter, as requested by
Issuer, to keep forms up to date), each Series 2001-1 Noteholder that is
organized under the laws of a jurisdiction outside the United States of America
hereby is deemed to have agreed by its acceptance of its Series 2001-1 Note to
deliver to the Indenture Trustee any certificates, documents or other evidence
that shall be required by the Code (or any regulations issued pursuant thereto)
to establish that, assuming the Series 2001-1 Notes are properly characterized
as indebtedness, it is exempt from existing United States Federal withholding
requirements, including two original copies of Internal Revenue Service Form
W-8BEN or Form W-8ECI or applicable successor form, properly completed and duly
executed by the Series 2001-1 Noteholder certifying that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States Federal income taxes (or at a reduced rate). If any Series 2001-1
Noteholder does not comply with the requirements of this Section 206(f), then
the amounts payable to such Series 2001-1 Noteholder pursuant to this Section
206 shall be limited to reflect such withholding. Any Person making a payment to
any Class A Noteholder of Class A Note Interest Payment, Scheduled Principal
Payment Amount or Commitment Fees shall be considered as having been paid by the
Issuer to the Series 2001-1 Noteholder for all purposes of this Supplement.
Section 207. Increased Costs; Capital Adequacy; Illegality.
(a) If either (i) the introduction of or any change
(including, without limitation, any change by way of imposition or increase of
reserve requirements) in or in the interpretation of any law or regulation or
(ii) the compliance by an Affected Party with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), shall (A) subject an Affected Party to any Tax (except for Taxes on the
overall net income of such Affected Party), duty or other charge with respect to
Class A Note, or any right to make Class A Advance hereunder, or on any payment
made hereunder, (B) impose, modify or deem applicable any reserve requirement
(including, without limitation, any reserve requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding any reserve requirement,
if any, included in the determination of the Adjusted Eurodollar Rate), special
deposit or similar requirement against assets of, deposits with or for the
amount of, or credit extended by, any Affected Party or (C) impose any other
condition affecting a Series 2001-1 Note or any Series 2001-1 Noteholder's
rights hereunder, the result of which is to increase the cost to any Affected
Party or to reduce the amount of any sum received or receivable by an Affected
Party under this Agreement, then within ten days after demand by such Affected
Party (which demand shall be accompanied by a statement setting forth the basis
for such demand), the Issuer shall pay directly to such Affected Party such
additional amount or amounts as will compensate such Affected Party for such
additional or increased cost incurred or such reduction suffered.
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(b) If either (i) the introduction of or any change in or in
the interpretation of any law, guideline, rule, regulation, directive or request
or (ii) compliance by any Affected Party with any law, guideline, rule,
regulation, directive or request from any central bank or other Governmental
Authority (whether or not having the force of law), including, without
limitation, compliance by an Affected Party with any request or directive
regarding capital adequacy, has or would have the effect of reducing the rate of
return on the capital of any Affected Party as a consequence of its obligations
hereunder or arising in connection herewith to a level below that which any such
Affected Party could have achieved but for such introduction, change or
compliance (taking into consideration the policies of such Affected Party with
respect to capital adequacy) by an amount deemed by such Affected Party to be
material, then from time to time, within ten days after demand by such Affected
Party (which demand shall be accompanied by a statement setting forth the basis
for such demand), the Issuer shall pay directly to such Affected Party such
additional amount or amounts as will compensate such Affected Party for such
reduction.
(c) If as a result of any event or circumstance similar to
those described in clauses (a) or (b) of this section, any Affected Party is
required to compensate a bank or other financial institution providing liquidity
support, credit enhancement or other similar support to such Affected Party in
connection with this Agreement or the funding or maintenance of Purchases
hereunder, then within ten days after demand by such Affected Party, the Seller
shall pay to such Affected Party such additional amount or amounts as may be
necessary to reimburse such Affected Party for any amounts payable or paid by
it.
(d) In determining any amount provided for in this section,
the Affected Party may use any reasonable averaging and attribution methods. Any
Affected Party making a claim under this section shall submit to the Issuer and
the Manager a written description as to such additional or increased cost or
reduction and the calculation thereof, which written description shall be
conclusive absent demonstrable error.
(e) If a Liquidity Bank shall notify the Deal Agent that a
Eurodollar Disruption Event as described in clause (a) of the definition of
"Eurodollar Disruption Event" has occurred, the Deal Agent shall in turn so
notify the Issuer, whereupon all Class A Advances in respect of which Class A
Note Interest Payment accrues at the Adjusted Eurodollar Rate shall immediately
be converted into a Class A Advance in respect of which interest accrues at the
Base Rate.
(f) Any amounts payable by the Issuer pursuant to this Section
207 shall be paid in accordance with the provisions of Section 302 hereof and
shall not constitute a claim against the Issuer or the Collateral in the event
that such amounts are not paid in accordance with Section 302 of this
Supplement.
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ARTICLE III
Series 2001-1 Series Account and
Allocation and Application of Amounts Therein
Section 301. Series 2001-1 Series Account. The Issuer shall
establish on the Closing Date and maintain in the name of the Indenture Trustee,
so long as any Series 2001-1 Note is Outstanding, an Eligible Account at ▇▇▇▇▇
Fargo Bank Minnesota, National Association which shall be designated as the
Series 2001-1 Series Account, which account shall be held by the Indenture
Trustee for the benefit of the Series 2001-1 Noteholders pursuant to the
Indenture and this Supplement. All deposits of funds by or for the benefit of
the Series 2001-1 Noteholders from the Trust Account shall be accumulated in,
and withdrawn from, the Series 2001-1 Series Account in accordance with the
provisions of the Indenture and this Supplement.
Section 302. Distributions from Series 2001-1 Series Account .
On each Payment Date, the Indenture Trustee shall distribute funds then on
deposit in the Series 2001-1 Series Account in accordance with the priorities
set forth below:
(i) To each Holder of a Series 2001-1 Note on the
immediately preceding Record Date, an amount equal to the
Class A Note Interest Payment (exclusive of Default Interest)
payable to such Series 2001-1 Noteholders for such Payment
Date;
(ii) To each Holder of a Series 2001-1 Note on the
immediately preceding Record Date, an amount equal to the
Commitment Fee payable to such Series 2001-1 Noteholders for
such Payment Date;
(iii) To each Holder of a Series 2001-1 Note on the
immediately preceding Record Date, an amount equal to its pro
rata portion of the Scheduled Principal Payment Amount then
due and payable to Series 2001-1 on such Payment Date;
(iv) To each Holder of a Series 2001-1 Note on the
immediately preceding Record Date, an amount equal to its pro
rata portion of any principal Prepayment then due and payable
to Series 2001-1 on such Payment Date;
(v) To each Holder of a Series 2001-1 Note, pro rata,
an amount equal to Taxes, Other Taxes, Increased Costs,
Breakage Costs, indemnities and other amounts (including
Default Interest) then due and payable by the Issuer to the
Series 2001-1 Noteholders pursuant to the Series 2001-1
Transaction Documents; and
(vi) After application of the amounts required to be
paid pursuant to Section 302 of the Indenture, to the Issuer,
any remaining amounts then on deposit in the Series 2001-1
Series Account.
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ARTICLE IV
Additional Covenants
In addition to the covenants set forth in Article VI of the
Indenture, the Issuer hereby makes the following additional covenants for the
benefit of the Series 2001-1 Noteholders:
Section 401. Additional Series. The Issuer shall not issue any
additional Series of Notes on or after the Closing Date without (a) the Rating
Agency Condition (if any Series of Notes are then rated by a Rating Agency, (b)
confirmation, in writing, that the unpaid principal balances of all Series of
Notes then Outstanding do not exceed the Asset Base, as evidenced by the Asset
Base Certificate most recently received by the Indenture Trustee (dated not
earlier than the preceding Payment Date), (c) receipt of a certificate from an
officer of the Issuer stating that no Trigger Event, Manager Default or Event of
Default has occurred and is then continuing or would result from the issuance of
such new Series and (d) the Deal Agent shall have given its prior written
consent.
Section 402. Control Party. For purposes of determining a
Requisite Global Majority pursuant to Section 503 of the Indenture, the Control
Party of Series 2001-1 shall mean the Majority of Holders of the Series 2001-1
Notes then Outstanding.
Section 403. Rule 144A. So long as any of the Series 2001-1
Notes are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, Issuer shall, unless it becomes subject to and complies with the
reporting requirements of Section 13 or 15(d) of the Exchange Act, or Rule
12g3-2(b) thereunder, provide to any Series 2001-1 Noteholder of such restricted
securities, or to any prospective Series 2001-1 Noteholder of such restricted
securities designated by a Series 2001-1 Noteholder, upon the request of such
Noteholder or prospective Series 2001-1 Noteholders, any information required to
be provided by Rule 144A(d)(4) under the Securities Act.
Section 404. Use of Proceeds. The proceeds from the issuance
of the Series 2001-1 Notes shall be used to purchase certain Head Lessor
Compressors and for general corporate purposes.
Section 405. Allocation of Prepayments. So long as Series
2001-1 is the only Series Outstanding, all principal Prepayments permitted or
required pursuant to Section 702 of the Indenture shall be allocated solely to
Series 2001-1.
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ARTICLE V
Conditions of Effectiveness and Future Lending
Section 501. Effectiveness of Supplement. The effectiveness of
this Supplement is subject to the condition precedent that the Indenture Trustee
shall have received all of the following, each duly executed and dated as of the
Closing Date, in form and substance satisfactory to each of the Series 2001-1
Noteholders and each (except for the Series 2001-1 Notes, of which only the
originals shall be signed) in sufficient number of signed counterparts to
provide one for each Series 2001-1 Noteholder (notwithstanding the satisfaction
of the conditions precedent, upon the making of a Class A Advance hereunder, all
of Indenture Trustee's rights under this Agreement (and by operation of law)
shall vest in the Indenture Trustee, whether or not the conditions precedent to
such Advance were in fact satisfied):
(a) Series 2001-1 Notes. Separate Series 2001-1 Notes executed
by the Issuer in favor of each Series 2001-1 Noteholder in the aggregate stated
principal amount of such Series 2001-1 Notes that such Noteholder has agreed to
purchase.
(b) Certificate(s) of Secretary or Assistant Secretary.
Separate certificates executed by the corporate secretary or assistant secretary
of each Universal Party, each dated the Closing Date, certifying (i) that the
respective company has the authority to execute and deliver, and perform its
respective obligations under each of the Series 2001-1 Transaction Documents to
which it is a party, and (ii) that attached are true, correct and complete
copies of the organic documents, authorizations and incumbency certificates in
form and substance satisfactory to the Series 2001-1 Noteholders, as to such
matters as they shall require.
(c) Security Documents. The Indenture and this Supplement, in
form and substance satisfactory to the Series 2001-1 Noteholders, the Indenture
Trustee and the Deal Agent, shall have been executed and delivered by Issuer,
and all other parties thereto, together with all Uniform Commercial Code
financing statements and other documents reasonably requested by Series 2001-1
Noteholders Indenture Trustee or the Deal Agreement.
(d) Opinions of Counsel. Opinions of Counsel to the Issuer, as
to perfection and priority of the Indenture Trustee's security interest in the
Collateral, and from counsel to the Issuer, Contributor, the Head Lessee and
Manager, in form and in substance satisfactory to the Series 2001-1 Noteholders,
as to true sale, non-consolidation and any other such matters as they shall
require.
(e) Series 2001-1 Transaction Documents. Each of the Series
2001-1 Transaction Documents shall have been duly executed and delivered and all
of the conditions precedent therein have either been satisfied or waived by the
Deal Agent.
(f) Insurance. The Indenture Trustee shall have received
certificates evidencing insurance coverage in respect of the Compressors, which
shall be reasonably satisfactory to the Indenture Trustee, as additional loss
payee.
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(g) Up Front Fee. The Issuer shall have paid, or made
arrangements for payment satisfactory to the Deal Agent for, the up front fee
set forth in the letter agreement, dated as of the Closing Date between the
Issuer and First Union Securities, Inc.
(h) Limited Partnership Interests. Variable Funding Capital
Corporation and First Union Investors shall have purchased the limited
partnership interests in the Issuer.
(i) Merger. Universal Compression, Inc. and ▇▇▇▇▇▇▇▇▇▇▇
Industries shall have consummated their merger.
(j) [Reserved]
(k) Ratings of Universal's High Yield Debt. Universal's high
yield debt issued contemporaneously with the execution and delivery of this
Series 2001-1 Supplement is rated "BB-" or higher by S&P and "Ba3" by ▇▇▇▇▇'▇.
(l) Credit and Collection Policy. The Issuer shall have
delivered to the Deal Agent two (2) copies of Universal's Credit and Collection
Policy.
(m) Issuer Certificate An officer's certificate certifying
that all of the conditions set forth in clauses (a) through (l) above have been
satisfied.
Section 502. Advances on Series 2001-1 Notes. The obligation
of each of the Series 2001-1 Noteholders to make a Class A Advance pursuant to
its commitment under this Supplement and the Series 2001-1 Note Purchase
Agreement is subject to the following further conditions precedent being
fulfilled with respect to each such Class A Advance:
(a) Default. Before and after giving effect to such Class A
Advance, no Event of Default or Manager Default shall have occurred and be
continuing.
(b) Trigger Event. Before and after giving effect to such
Class A Advance, no Trigger Event or Potential Trigger Event shall have occurred
and be continuing unless such Class A Advance has been approved by each of (i)
the Requisite Global Majority and (ii) each Series 2001-1 Noteholder.
(c) Certification. Issuer shall have delivered to the Deal
Agent a compliance certificate, signed by a financial officer of Issuer stating
that (i) each of the conditions precedent set forth in this Section 502 and in
the Series 2001-1 Note Purchase Agreement have been satisfied with respect to
such Class A Advance and (ii) that all of the representations and warranties of
the Issuer contained in each Series 2001-1 Transaction Document is true and
correct in all material respects as of the date of such Class A Advance.
(d) Asset Base Certificate. Issuer shall have delivered to the
Deal Agent a duly completed and executed Asset Base Certificate, determined
after giving effect to any Eligible Compressors to be acquired with the proceeds
of such Class A Advance, which demonstrates that, after giving effect to such
Class A Advance, (A) the sum of (i) the Aggregate Class A Note Principal
22
27
Balances and (ii) the then unpaid Capital does not exceed the Asset Base, (B) no
Net Revenue Event exists or would exist, or (C) no Overcollateralization Event
exists or would exist.
(e) Conversion Date. The Conversion Date shall not have
occurred.
(f) Issuer Certificate An officer's certificate certifying
that all of the conditions set forth in paragraphs (a) through (e) of this
Section 502 have been satisfied.
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ARTICLE VI
Representations and Warranties
To induce the Series 2001-1 Noteholders to purchase the Series
2001-1 Notes hereunder, the Issuer hereby represents and warrants (as of the
Effective Date and each date on which a Class A Advance is made) to the
Indenture Trustee for the benefit of the Series 2001-1 Noteholders that:
Section 601 Existence. Issuer is a Delaware limited
partnership duly formed and validly existing and is duly qualified to do
business in each jurisdiction where the failure to do so would have a material
adverse effect upon the Issuer.
Section 602. Authorization. Issuer has the partnership power
and is duly authorized to execute and deliver this Supplement and the other
Series 2001-1 Transaction Documents to which it is a party; Issuer is and will
continue to be duly authorized to borrow monies hereunder; and Issuer is and
will continue to be authorized to perform its obligations under this Supplement
and under the other Series 2001-1 Transaction Documents. The execution, delivery
and performance by Issuer of this Supplement and the other Series 2001-1
Transaction Documents to which it is a party and the borrowings hereunder do not
and will not require any consent or approval of any Governmental Authority,
partner or any other Person which has not already been obtained.
Section 603. No Conflict; Legal Compliance. The execution,
delivery and performance of this Supplement and each of the other Series 2001-1
Transaction Documents and the execution, delivery and payment of the Series
2001-1 Notes will not: (a) contravene any provision of Issuer's partnership
agreement; (b) contravene, conflict with or violate any applicable law or
regulation, or any order, writ, judgment, injunction, decree, determination or
award of any Governmental Authority that could result in a Material Adverse
Change; or (c) violate or result in the breach of, or constitute a default under
the Indenture, the Series 2001-1 Transaction Documents, any other indenture or
other loan or credit agreement, or other agreement or instrument to which Issuer
is a party or by which Issuer, or its property and assets may be bound or
affected that could result in a Material Adverse Change. Issuer is not in
violation or breach of or default under any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any contract, agreement,
lease, license, indenture or other instrument to which it is a party that could
result in a Material Adverse Change.
Section 604. Validity and Binding Effect. This Supplement is,
and each Series 2001-1 Transaction Document to which Issuer is a party, when
duly executed and delivered, will be, legal, valid and binding obligations of
Issuer, enforceable against Issuer in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the availability of equitable
remedies.
Section 605. Financial Statements. Since September 30, 2000,
there has been no Material Adverse Change in the financial condition of any
Universal Party.
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Section 606. Executive Offices. The current location of
Issuer's chief executive office and principal place of business is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Section 607. No Agreements or Contracts. The Issuer is not now
and has not been a party to any contract or agreement (whether written or oral)
other than the Series 2001-1 Transaction Documents.
Section 608. Consents and Approvals. No approval,
authorization or consent of any trustee or holder of any Indebtedness or
obligation of Issuer or of any other Person under any agreement, contract, lease
or license or similar document or instrument to which Issuer is a party or by
which Issuer is bound, is required to be obtained by Issuer in order to make or
consummate the transactions contemplated under the Series 2001-1 Transaction
Documents, except for those approvals, authorizations and consents that have
been obtained on or prior to the Effective Date. All consents and approvals of,
filings and registrations with, and other actions in respect of, all
Governmental Authorities required to be obtained by Issuer in order to make or
consummate the transactions contemplated under the Series 2001-1 Transaction
Documents have been, or prior to the time when required will have been,
obtained, given, filed or taken and are or will be in full force and effect, or
due provision has been made therefor reasonably acceptable to the Indenture
Trustee and the Majority of Holders.
Section 609. Margin Regulations. Issuer does not own any
"margin security", as that term is defined in Regulation U of the Federal
Reserve Board, and the proceeds of the Series 2001-1 Notes issued under this
Supplement will be used only for the purposes contemplated hereunder. None of
the proceeds of the Series 2001-1 Notes will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which might cause
any of the loans under this Supplement to be considered a "purpose credit"
within the meaning of Regulations T, U and X. Issuer will not take or permit any
agent acting on its behalf to take any action which might cause this Supplement
or any document or instrument delivered pursuant hereto to violate any
regulation of the Federal Reserve Board.
Section 610. Taxes. All federal, state, local and foreign tax
returns, reports and statements required to be filed by Issuer have been filed
with the appropriate Governmental Authorities, and all Taxes, Other Taxes and
other impositions shown thereon to be due and payable by Issuer have been paid
prior to the date on which any fine, penalty, interest or late charge may be
added thereto for nonpayment thereof, or any such fine, penalty, interest, late
charge or loss has been paid, or Issuer is contesting its liability therefor in
good faith and has fully reserved all such amounts according to GAAP in the
financial statements provided to the Noteholders pursuant to Section 626 of the
Indenture. Issuer has paid when due and payable all material charges upon the
books of Issuer and no Governmental Authority has asserted any Lien against
Issuer with respect to unpaid Taxes or Other Taxes. Proper and accurate amounts
have been withheld by Issuer from its employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable federal, state, local and foreign law and such
withholdings have been timely paid to the respective Governmental Authorities.
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30
Section 611. Other Regulations. Issuer is not: (a) a "public
utility company" or a "holding company," or an "affiliate" or a "Subsidiary
company" of a "holding company," or an "affiliate" of such a "Subsidiary
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, or (b) an "investment company," or an "affiliated person" of,
or a "promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended. The
issuance of the Series 2001-1 Notes hereunder and the application of the
proceeds and repayment thereof by Issuer and the performance of the transactions
contemplated by this Supplement and the other Series 2001-1 Transaction
Documents will not violate any provision of the Investment Company Act or the
Public Utility Holding Company Act, or any rule, regulation or order issued by
the Securities and Exchange Commission thereunder.
Section 612. Solvency and Separateness.
(i) The capital of the Issuer is adequate for the
business and undertakings of the Issuer;
(ii) Other than with respect to the transactions
contemplated by the Series 2001-1 Transaction Documents, the
Issuer is not engaged in any business transactions with any
Universal Party;
(iii) A majority of the directors of a general partner
of the Issuer are Independent Directors;
(iv) The Issuer's funds and assets are not, and will not
be, commingled with those of any Universal Party, except as
permitted by the Management Agreement;
(v) The partnership agreement of the Issuer requires it
to maintain correct and complete books and records of account;
and
(vi) The Issuer is not insolvent under the Insolvency
Law and will not be rendered insolvent by the transactions
contemplated by the Series 2001-1 Transaction Documents and
after giving effect to such transactions, the Issuer will not
be left with an unreasonably small amount of capital with
which to engage in its business nor will the Issuer have
intended to incur, or believe that it has incurred, debts
beyond its ability to pay such debts as they mature. The
Issuer does not contemplate the commencement of insolvency,
bankruptcy, liquidation or consolidation proceedings or the
appointment of a receiver, liquidator, trustee or similar
official in respect of the Issuer or any of its assets.
Section 613. Survival of Representations and Warranties. So
long as any of the Series 2001-1 Notes shall be Outstanding and until payment
and performance in full of the Obligations, the representations and warranties
contained herein shall have a continuing effect as having been true when made.
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31
Section 614. No Default. No Event of Default, Manager Default
or Trigger Event has occurred and is continuing and no event has occurred that
with the passage of time would become an Event of Default, Manager Default or
Trigger Event.
Section 615. Litigation and Contingent Liabilities. No claims,
litigation, arbitration proceedings or governmental proceedings by any
Governmental Authority are pending or threatened against or are affecting the
Issuer or any of its Affiliates the results of which might interfere with the
consummation of any of the transactions contemplated by this Supplement or any
document issued or delivered in connection herewith.
Section 616. Title; Liens. Issuer has good, legal and
marketable title to each of its respective assets, and none of such assets is
subject to any Lien, except for the Lien created or permitted pursuant to the
Indenture.
Section 617. Subsidiaries. Issuer has had no subsidiaries.
Section 618. No Partnership. Issuer is not a partner or joint
venturer in any partnership or joint venture.
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ARTICLE VII
Miscellaneous Provisions
Section 701. Ratification of Indenture. As supplemented by
this Supplement, the Indenture is in all respects ratified and confirmed and the
Indenture as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
Section 702. Counterparts. This Supplement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
Section 703. Governing Law. THIS SUPPLEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 704. Statutory References. References in this
Supplement and any other Series 2001-1 Transaction Document to any section of
the Uniform Commercial Code or the UCC shall mean, on or after the effective
date of adoption of any revision to the Uniform Commercial Code or the UCC in
the applicable jurisdiction, such revised or successor section thereto.
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33
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Supplement to be duly executed and delivered by their respective
officers all as of the day and year first above written.
BRL UNIVERSAL COMPRESSION FUNDING I, L.P.
By: BRL UNIVERSAL COMPRESSION
MANAGEMENT, INC.
Its: general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: President
----------------------------------
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
34
EXHIBIT A
FORM OF CLASS A NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF
ANY OTHER JURISDICTION. THIS NOTE MAY NOT BE OFFERED FOR SALE, TRANSFER OR
ASSIGNMENT UNLESS (1) SO REGISTERED OR THE TRANSACTION RELATING THERETO SHALL BE
EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES AND REGULATIONS OF THE
SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER AND (2) SUCH TRANSACTION
COMPLIES WITH THE PROVISIONS SET FORTH IN SECTION 205 OF THE INDENTURE. BECAUSE
OF THE PROVISIONS FOR THE PAYMENT OF PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF. ANYONE PURCHASING THIS NOTE MAY ASCERTAIN THE OUTSTANDING PRINCIPAL
AMOUNT HEREOF BY INQUIRY TO THE INDENTURE TRUSTEE.
EACH PURCHASER OF A CLASS A NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT TO THE
INITIAL PURCHASER, THE ISSUER, THE INDENTURE TRUSTEE AND THE MANAGER THAT EITHER
(1) IT IS NOT ACQUIRING A CLASS A NOTE WITH THE ASSETS OF AN "EMPLOYEE BENEFIT
PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR A "PLAN" WITHIN THE MEANING OF SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986; OR (2) THE ACQUISITION AND HOLDING OF A CLASS A
NOTE WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION
406(a) OF ERISA OR SECTION 4975 OF THE CODE.
BRL UNIVERSAL COMPRESSION FUNDING I, L.P. SECURED NOTE
SERIES 2001-1, CLASS A
Up to $194,000,000 No. 1
February 9, 2001
KNOW ALL PERSONS BY THESE PRESENTS that BRL UNIVERSAL
COMPRESSION FUNDING I, L.P., a Delaware limited partnership (the "Issuer"), for
value received, hereby promises to pay to First Union Securities Inc., as agent
for Variable Funding Capital Corporation and the related purchasers, or their
registered assigns, at the principal corporate trust office of the Indenture
Trustee named below, (i) the principal sum of up to One Hundred Ninety-Four
Million Dollars ($194,000,000), which sum shall be payable on the dates and in
the amounts set forth in the Indenture, dated as of February 9, 2001 (as
amended, restated or otherwise modified from time to time, the "Indenture") and
the Series 2001-1 Supplement, dated as of February 9, 2001 (as amended, restated
or otherwise modified from time to time, the "Series 2001-1 Supplement"), each
between the Issuer and ▇▇▇▇▇ Fargo Bank Minnesota, National Association as
indenture trustee
35
(the "Indenture Trustee"), (ii) interest on the outstanding principal amount of
this Class A Note on the dates and in the amounts set forth in the Indenture and
the Series 2001-1 Supplement and (iii) the other amounts required to be paid
pursuant to the Indenture and the Series 2000-1 Supplement. A record of each
Class A Advance, Prepayment and repayment shall be made by the Deal Agent and
absent manifest error such record shall be conclusive. Capitalized terms not
otherwise defined herein will have the meaning set forth in the Indenture and
the Series 2001-1 Supplement.
Payment of the principal of and interest on this Class A Note
shall be made in lawful money of the United States of America which at the time
of payment is legal tender for payment of public and private debts. The
principal balance of, and interest on this Class A Note is payable at the times
and in the amounts set forth in the Indenture and the 2001-1 Supplement by wire
transfer of immediately available funds to the account designated by the Holder
of record on the immediately preceding Record Date.
This Class A Note is one of the authorized notes identified in
the title hereto and issued in the aggregate principal amount of up to One
Hundred Ninety-Four Million Dollars ($194,000,000.00) pursuant to the Indenture
and the Series 2001-1 Supplement.
The Class A Notes shall be an obligation of the Issuer and
shall be secured by the Collateral, all as defined in, and subject to the
limitations set forth in, the Indenture and the Series 2001-1 Supplement.
This Class A Note is transferable as provided in the Indenture
and the Series 2001-1 Supplement, subject to certain limitations therein
contained, only upon the books for registration and transfer kept by the
Indenture Trustee, and only upon surrender of this Class A Note for transfer to
the Indenture Trustee duly endorsed by, or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Indenture Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing. The Indenture Trustee or the Issuer may require payment by the Holder
of a sum sufficient to cover any tax expense or other governmental charge
payable in connection with any transfer or exchange of the Class A Notes.
The Issuer, the Indenture Trustee and any other agent of the
Issuer may treat the person in whose name this Class A Note is registered as the
absolute owner hereof for all purposes, and neither the Issuer, the Indenture
Trustee, nor any other such agent shall be affected by notice to the contrary.
The Class A Notes are subject to Prepayment, at the times and
subject to the conditions set forth in the Indenture and the Series 2001-1
Supplement.
If an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Class A Note may be declared to be due
and payable in the manner and with the effect provided in the Indenture and the
Series 2001-1 Supplement.
The Indenture permits, with certain exceptions as therein
provided, the issuance of supplemental indentures with the consent of the
Requisite Global Majority, in certain specifically described instances. Any
consent given by the Requisite Global Majority shall be conclusive and
A-2
36
binding upon the Holder of this Class A Note and on all future holders of this
Class A Note and of any Class A Note issued in lieu hereof whether or not
notation of such consent is made upon this Class A Note. Supplements and
amendments to the Indenture and the Series 2001-1 Supplement may be made only to
the extent and in circumstances permitted by the Indenture and the Series 2001-1
Supplement.
The Holder of this Class A Note shall have no right to enforce
the provisions of the Indenture and the Series 2001-1 Supplement or to institute
action to enforce the covenants, or to take any action with respect to a default
under the Indenture and the Series 2001-1 Supplement, or to institute, appear in
or defend any suit or other proceedings with respect thereto, except as provided
under certain circumstances described in the Indenture and the Series 2001-1
Supplement; provided, however, that nothing contained in the Indenture and the
Series 2001-1 Supplement shall affect or impair any right of enforcement
conferred on the Holder hereof to enforce any payment of the principal of and
interest on this Class A Note on or after the due date thereof; provided
further, however, that by acceptance hereof the Holder is deemed to have
covenanted and agreed that it will not institute against the Issuer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any applicable bankruptcy or similar law, at any time
other than at such time as permitted by Section 1211 of the Indenture and the
Series 2001-1 Supplement.
Each purchaser of a Class A Note shall be deemed to represent
and warrant to the Initial Purchaser, the Issuer, the Indenture Trustee and the
Manager that either (1) it is not acquiring a Class A Note with the assets of an
"Employee Benefit Plan" as Defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as Amended, or a "Plan" Within the Meaning of
Section 4975 of the Internal Revenue Code of 1986; or (2) the acquisition and
holding of a Class A Note will not give rise to a nonexempt prohibited
transaction under Section 406(a) of ERISA or Section 4975 of the Code.
This Class A Note, and the rights and obligations of the
parties hereunder, shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York without giving effect to its
conflicts of law principles.
All terms and provisions of the Indenture and the Series
2001-1 Supplement are herein incorporated by reference as if set forth herein in
their entirety.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts,
conditions and things required to exist, happen and be performed precedent to
the execution and delivery of the Indenture and the Series 2001-1 Supplement and
the issuance of this Class A Note and the issue of which it is a part, do exist,
have happened and have been timely performed in regular form and manner as
required by law.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee by manual signature of one of its authorized
officers, this Class A Note shall not be entitled to any benefit under the
Indenture and the Series 2001-1 Supplement, or be valid or obligatory for any
purpose.
A-3
37
IN WITNESS WHEREOF, BRL Universal Compression Funding L.P. has
caused this Class A Note to be duly executed by its duly authorized
representative, on this _____ day of February, 2001.
BRL UNIVERSAL COMPRESSION
FUNDING I, L.P.
By: BRL COMPRESSION MANAGEMENT,
INC. its general partner
By: ___________________________________
Its:___________________________________
This Note is one of the Class A Notes described in the
within-mentioned Indenture and the Series 2001-1 Supplement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N. A.
By: ____________________________________
Its: ___________________________________