EXHIBIT 10.10
CATERPILLAR INC.,
AS BACK-UP MANAGER
UCO COMPRESSION LLC,
BRL UNIVERSAL COMPRESSION FUNDING I, L.P
AS OWNERS,
AND
UNIVERSAL COMPRESSION, INC.,
AS MANAGER
DATED AS OF FEBRUARY 1, 2002
ALL RIGHT, TITLE AND INTEREST IN AND TO THIS AGREEMENT ON THE PART OF UCO
COMPRESSION LLC AND BRL UNIVERSAL COMPRESSION FUNDING I, L.P. HAVE BEEN ASSIGNED
TO AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF XXXXX FARGO BANK
MINNESOTA, N.A., AS INDENTURE TRUSTEE, UNDER AN INDENTURE, DATED AS OF FEBRUARY
9, 2001, FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
BACK-UP MANAGEMENT AGREEMENT
THIS BACK-UP MANAGEMENT AGREEMENT, dated as of February 1, 2002 (this
AGREEMENT") is entered into by and among CATERPILLAR INC., a corporation
organized under the laws of the state of Delaware whose principal office is at
000 XX Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "BACK-UP MANAGER" or
"CATERPILLAR"), UCO COMPRESSION LLC, a limited liability company formed under
the laws of the state of Delaware whose principal office is at 0000 Xxxxxxxxxx
Xxxx, Xxxxxxx, Xxxxx (an "OWNER"), BRL UNIVERSAL COMPRESSION FUNDING I, L.P., a
limited partnership formed under the laws of the state of Delaware whose
principal office is at 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000
(an "OWNER"; and collectively with UCO Compression LLC, the "OWNERS") and
UNIVERSAL COMPRESSION, INC., a corporation organized under the laws of the state
of Texas whose principal office is at 0000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxx (the
"MANAGER" or "UNIVERSAL").
RECITALS
WHEREAS, the Owners are the owner of the Owner Compressors (as defined
below); and
WHEREAS, the Owners and the Manager have entered into the Management
Agreement, dated as of February 9, 2001, as amended (the "MANAGEMENT
AGREEMENT"), a copy of which is attached hereto as APPENDIX A, pursuant to which
the Manager agreed, inter alia, to operate and lease the Owner Compressors in a
manner consistent with any other UCI Compressor; and
WHEREAS, the Back-up Manager desires to serve as a backup manager with
respect to the Owner Compressors; and
WHEREAS, each Owner desires to engage the Back-up Manager to act as
backup manager with respect to the Owner Compressors; and
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants and agreements contained herein, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement not otherwise defined herein
shall have the meaning assigned to such terms in the Management Agreement and in
the Indenture, dated as of February 9, 2001 (the "INDENTURE"), between BRL
Universal Compression Funding I, L.P. (the "ISSUER") and Xxxxx Fargo Bank
Minnesota, N.A., as indenture trustee (the "INDENTURE TRUSTEE"); otherwise,
terms defined herein shall have the following meanings, and the definitions of
such terms shall be equally applicable to the singular and plural forms of such
terms:
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"BACK-UP MANAGER FEE" means an amount equal to the amount set forth in
that separate fee letter agreement dated as of even date herewith by and among
the Manager, the Back-up Manager, and the Owners, as it may be amended, modified
or supplemented from time to time.
"BACK-UP MANAGER INDEMNIFIED PARTIES" shall have the meaning set forth
in SECTION 6.1 hereof.
"BACK-UP MANAGER TERMINATION NOTICE" shall have the meaning set forth
in SECTION 4.1 hereof.
"CLAIM" shall have the meaning set forth in SECTION 6.1 hereof.
"COMMENCEMENT DATE" shall have the meaning in SECTION 2.2 hereof.
"DEAL AGENT" means First Union Securities, Inc. and its successors and
permitted assigns.
"INCENTIVE MANAGEMENT FEE" shall have the meaning set forth Section 1
of the Management Agreement.
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 6.2
hereof.
"OPERATIONS FEE" shall have the meaning set forth in Section 1 of the
Management Agreement.
"OVERHAUL FEE" shall have the meaning set forth in Section 1 of the
Management Agreement.
"OWNER COMPRESSORS" shall have the meaning set forth in Section 1 of
the Management Agreement.
"REIMBURSABLE SERVICES" shall have the meaning set forth in Section
11.5 of the Management Agreement.
"S&A FEE" shall have the meaning set forth in Section 1 of the
Management Agreement.
"SERVICES STANDARD" shall mean such efforts which are at a level of
care, diligence and skill consistent with generally accepted industry standards
and, with respect to compressor maintenance and overhaul, consistent with
manufacturer's guidelines.
"STATUS REPORT" shall have the meaning set forth in SECTION 2.2 hereof.
"SYSTEMS DATA" shall have the meaning set forth in SECTION 2.2 hereof.
"TRANSITION PLAN" shall have the meaning set forth in SECTION 2.2
hereof.
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"USER LEASES" shall have the meaning set forth in Section 1 of the Head
Lessee Security Agreement dated as of February 9, 2001, between the Owners, as
such agreement may be amended, modified or supplemented from time to time in
accordance with its terms.
ARTICLE II
APPOINTMENT OF BACK-UP MANAGER
SECTION 2.1 Subject to the satisfaction of the conditions precedent set
forth in SECTION 2.2, each Owner hereby appoints the Back-up Manager as the
initial Back-up Manager, and the Back-up Manager, in executing this Agreement,
hereby accepts such appointment on the terms and conditions set forth in this
Agreement. Other than the duties specifically set forth in this Agreement, the
Back-up Manager shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of the
Manager or the Owners. The Back-up Manager shall have no liability for any
actions taken or omitted by the Manager or by the Owners. The duties and
obligations of the Back-up Manager shall be determined solely by the express
provisions of this Agreement and upon the Back-up Manager's assumption of the
duties of the Manager under the Management Agreement the provisions of the
Management Agreement shall apply (including, without limitation, the obligations
of the Manager under the Head Lease, and Head Lessee Security Agreement);
provided, however, no implied covenants or obligations shall be read into this
Agreement or the Management Agreement against the Back-up Manager and provided
further that the parties to the Management Agreement shall not amend the same to
the extent such amendment would serve to expand the Back-up Manager's
obligations or liabilities hereunder or thereunder without the prior written
consent of the Back-up Manager. Upon the Back-up Manager's assumption of the
duties and responsibilities of the Manager under the Management Agreement (a)
the first sentence of Section 5.2(1) of the Management Agreement shall not
apply; instead, the Back-up Manager shall, within ninety (90) days of its
assumption of such duties, maintain and lease the Owner Compressors under User
Leases using such efforts which are at a level of care, diligence and skill
consistent with generally accepted industry standards and which are, at least
equal to the efforts used by the Back-up Manager (or any appointed
subcontractor) with respect to any other compressors owned, managed or leased by
the Back-up Manager (or any appointed subcontractor), (b) all references in the
Management Agreement to "Universal" or similar terms shall refer to Caterpillar
(or any appointed subcontractor), and such terms shall be amended mutatis
mutandis; provided, however, all obligations of the Manager to pay expenses of
each Owner, the Deal Agent and each Entitled Party during a Trigger Event shall
remain the obligation of Universal, (c) the Concentration Limits shall not apply
to the Back-up Manager, and (d) notwithstanding the provisions of Section 9.12
of the Management Agreement, the Owners shall bear all expenses associated with
the Appraisals.
SECTION 2.2 This Agreement shall become effective on the date on which
all of the following conditions precedent shall have been satisfied or waived by
all of the parties hereto and the Deal Agent (the "COMMENCEMENT DATE"):
(a) The Back-up Manager shall have delivered its transition
plan (the "TRANSITION PLAN") to the Owners, the Deal Agent, any Series
Enhancer, and the Rating Agencies, which Transition Plan shall
describe, in summary detail, the steps which must
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be taken to transfer the management of the Owner Compressors from the
Manager to the Back-up Manager. A copy of the Transition Plan is
attached as APPENDIX B hereto and incorporated herein by reference for
all purposes;
(b) The Back-up Manager and the Manager shall have agreed upon
the form and substance of the systems data (including, without
limitation, the maintenance schedule, the overhaul schedule, equipment
location, billing, cash application, tax, UCC, and insurance
information) and other information that the Back-up Manager will
require in order to effectively execute the Transition Plan and assume
and perform the duties of the Manager under the Management Agreement
(the "SYSTEMS DATA");
(c) The Back-up Manager shall have reviewed the maintenance
schedule and the overhaul schedule of a random sample of twenty-five
(25) Owner Compressors and shall have verified, within its reasonable
judgment, compliance with the Services Standard; and
(d) The Back-up Manager shall have provided a report to the
Deal Agent (the "STATUS REPORT"), based on the review conducted under
paragraph (c) above, reporting the status of the Owner Compressors. The
Back-up Manager shall have reported any material deficiencies with
respect to Manager's compliance with the Services Standard to the
Manager, the Deal Agent, and any Series Enhancer.
SECTION 2.3 As compensation for the Back-up Manager's performance
hereunder, the Manager will pay to the Back-up Manager on each Payment Date the
Back-up Manager Fee. Effective on the date on which the Back-up Manager shall
assume the duties of the Manager under the Management Agreement, the Back-up
Manager shall be entitled to receive the Management Fee as compensation for its
services hereunder and thereunder (and its entitlement to receive the Back-up
Management Fee shall cease at such time), such Management Fees to be paid at the
times and in the amounts provided in the Management Agreement.
SECTION 2.4 The Manager and the Back-up Manager hereby each agree to
cooperate with each other, the Deal Agent, and any Series Enhancer in effecting
(a) the termination of the responsibilities and rights of the Manager under the
Management Agreement, and (b) the transfer of the responsibilities and rights
from the Manager to the Back-up Manager (or another Replacement Manager) under
the Management Agreement, including, without limitation, the preparation,
execution, and delivery of any and all documents and other instruments, the
execution and delivery of assignments of financing statements, and the transfer
to the Back-up Manager (or another Replacement Manager) for administration by it
of all cash amounts which shall at the time be held by the Manager or thereafter
received by the Manager with respect to the User Leases and the Owner
Compressors. Effective on the date on which the Back-up Manager (or another
Replacement Manager) shall assume the duties of the Manager pursuant to the
Management Agreement, the Manager hereby agrees to transfer to Back-up Manager
(or another Replacement Manager) all original leases and lease files and all
Systems Data and copies of its electronic records and all other records,
correspondence and documents relating to the User Leases and the Owner
Compressors in the manner and at such times as the Back-up Manager (or another
Replacement Manager) shall reasonably request and do any and all other acts or
things necessary or appropriate to effect the purposes of termination and the
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assumption of the duties of the Manager. The Manager hereby designates the
Back-up Manager (or any other Replacement Manager) as its agent and
attorney-in-fact to execute transfers of any agreements, documents or
instruments which may be necessary or advisable to effect such transfer of the
Manager's responsibilities and rights hereunder; provided, that all reasonable
expenses relating to such actions shall be paid by the Manager.
SECTION 2.5 Upon any termination of the Manager or appointment of the
Back-up Manager (or another Replacement Manager) to assume the duties of the
Manager, the Owners shall direct the Indenture Trustee to give prompt written
notice thereof to each Noteholder and any Series Enhancer in the manner provided
in Section 12.2 of the Management Agreement.
SECTION 2.6 Nothing in the preceding provisions of this Agreement shall
be interpreted as limiting or restricting any rights or remedies which the
Owners, the Indenture Trustee, the Deal Agent any Series Enhancer, the
Noteholders or any other Person would otherwise have at law or in equity on
account of the breach or violation of any provision of this Agreement, or the
Management Agreement, by the Manager or the Back-up Manager, including, without
limitation, the right, subject to SECTION 9.17 of this Agreement, to recover
full and complete damages on account thereof to the extent not inconsistent with
Section 12 of the Management Agreement, injunctive relief and specific
performance.
SECTION 2.7 Upon termination of its obligations as Manager under the
Management Agreement, the Manager agrees to cooperate with the Back-up Manager
in those regions where the Back-up Manager does not maintain sufficient
operations to service the Owned Compressors and to, the extent reasonably
necessary in order to service and maintain the Owned Compressors as required
under the Management Agreement, (a) make its facilities, equipment and vehicles
in those regions available on an as needed, where needed basis, (b) with the
consent of the employees, provide the Back-up Manager with an employee list
which will contain job titles and contact information and to make such employees
available for interviews with the Back-up Manager, and (c) provide for a right
of first refusal to purchase the items set forth in 2.7 (a) at their appraised
values and only to the extent such right of first refusal is permitted by all
agreements, in effect as of the date of this agreement, to which Universal is a
party.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.1 Within ninety (90) days following delivery of a Termination
Notice to the Manager (with a copy to the Back-up Manager) in accordance with
Section 12 of the Management Agreement, the Back-up Manager shall fully assume,
from and after the date of such assumption, all of the rights (including,
without limitation, rights to any S&A Fee, Operations Fee, Overhaul Fee, and a
charge for Reimbursable Services under the Management Agreement),
responsibilities, duties, and liabilities relating thereto placed on the Manager
by the terms and provisions of the Management Agreement as though it were a
party thereto as the Manager, subject to both SECTION 2.1 of this Agreement and
the last sentence of this SECTION 3.1. Notwithstanding anything contained in
this Agreement to the contrary, the Back-up Manager shall perform its
obligations under the Management Agreement in accordance with the Services
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Standard pursuant to the terms of this Agreement and the Management Agreement.
In no event shall the Back-up Manager be responsible or liable for any Claims
arising out of or in connection with actions taken or not taken by the outgoing
Manager, whether prior to or following the effective date of such termination.
SECTION 3.2 Following the occurrence of a Trigger Event, the Back-up
Manager agrees to perform such additional diligence and verification duties as
the Deal Agent shall reasonably request that are designed to facilitate the
goals of the Transition Plan. The reasonable costs and expenses of such
diligence and verification shall be paid by the Manager following the Back-up
Manager's presentation of an invoice therefor.
SECTION 3.3 Annually, within ninety (90) days after the end of each
calendar year, prior to delivery of a Termination Notice, the Back-up Manager
and the Manager shall perform the duties and take the actions set forth below:
(a) The Back-up Manager shall deliver an updated Transition
Plan to the Owners, the Deal Agent, any Series Enhancer, and the Rating
Agencies;
(b) The Back-up Manager and the Manager shall agree upon
modifications, if any, to the Systems Data;
(c) The Back-up Manager shall review the maintenance schedule
and the overhaul schedule of a random sample of twenty-five (25) Owner
Compressors to ensure compliance with the Services Standard. The
Back-up Manager shall notify the Deal Agent, the Indenture Trustee, any
Series Enhancer, and the Manager in writing of any material
discrepancies between the scheduled maintenance and scheduled overhauls
and the actual maintenance and actual overhauls of the Owner
Compressors;
(d) If the Manager disagrees with the Back-up Manager's
assessments provided under paragraph (c) above or if the Manager has
not resolved any material discrepancies between the scheduled
maintenance and overhauls and the actual maintenance and overhauls of
the Owner Compressors, the Back-up Manager agrees to (i) confer with
the Manager to resolve such disagreements and/or discrepancies on or
prior to the next succeeding Determination Date, and (ii) notify the
Deal Agent, the Indenture Trustee, and any Series Enhancer of the
resolution or non-resolution thereof. The Manager hereby agrees to
cooperate, at its own expense, with the Back-up Manager in reconciling
any material discrepancies identified by the Back-up Manager pursuant
to paragraph (c) above. If such material discrepancy is not resolved,
the Back-up Manager shall promptly notify the Indenture Trustee and any
Series Enhancer of such non-resolution. Following such non-resolution,
the Manager shall deliver to the Deal Agent, the Rating Agencies, any
Series Enhancer, the Back-up Manager, and the Indenture Trustee no
later than the next succeeding Payment Date a certificate describing
the nature and cause of such material discrepancies; and
(e) The Back-up Manager will make a site visit to the offices
of the Manager once each year for the purpose of reviewing the
operations of the Manager. Such inspections shall be made upon the
giving of reasonable advance notice and will be
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conducted during normal business hours and the reasonable out-of-pocket
expenses of the Back-up Manager incurred in connection with such visit
shall be paid by the Manager.
ARTICLE IV
TERM
SECTION 4.1 This Agreement shall come into force on the Commencement
Date and shall continue in force with respect to all Owner Compressors until the
earliest to occur of (a) the destruction, loss, sale, or other disposition of
all Owner Compressors in accordance with the terms of the Related Documents, (b)
the date on which the Indenture is discharged in accordance with its terms, and
(c) the date on which the Indenture Trustee (acting at the direction of the
Requisite Global Majority), the Deal Agent, or the Manager (with the prior
written consent of the Requisite Global Majority and the Deal Agent), with the
prior written consent of any Series Enhancer, terminates all rights and
obligations of the Back-up Manager hereunder by delivery to the Back-up Manager
of a notice of termination (the "BACK-UP MANAGER TERMINATION NOTICE") executed
by the Indenture Trustee.
SECTION 4.2 If a Back-up Manager Termination Notice is received by the
Back-up Manager while it is performing its duties hereunder, the Back-up Manager
agrees to cooperate with the Deal Agent, the Owners, the Indenture Trustee, any
Series Enhancer, the Replacement Manager or the successor Back-up Manager in
effecting the termination of the Back-up Manager's responsibilities and rights
hereunder, including, without limitation, the transfer to the Replacement
Manager or the successor Back-up Manager of all data then in the possession of
the Back-up Manager.
SECTION 4.3 The Back-up Manager shall not resign from the obligations
and duties hereby imposed on it as Back-up Manager except (a) with the prior
written consent of the Deal Agent, the Requisite Global Majority, and any Series
Enhancer, or (b) upon determination that the performance of its duties hereunder
is no longer permissible under applicable law. Any such determination permitting
the resignation of the Back-up Manager shall be evidenced by an opinion of
counsel to the Back-up Manager to such effect delivered to the Deal Agent, the
Indenture Trustee, any Series Enhancer and to the Rating Agencies. Upon the
Back-up Manager's resignation or termination pursuant to SECTIONS 4.1 OR 4.3
hereof, the Back-up Manager shall comply with the provisions of this Agreement
until the acceptance of appointment and commencement of the Back-up Manager's
duties by a successor Back-up Manager. Any such successor Back-up Manager shall
be appointed by the Deal Agent and the Requisite Global Majority subject to the
prior written consent of any Series Enhancer.
ARTICLE V
NO FORCE MAJEURE
The obligations of the Owners, Manager, and Back-up Manager under this
Agreement are unconditional and shall not be subject to suspension, delay or
interruption on account of the occurrence of any event, whether or not such
event is beyond its control.
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ARTICLE VI
INDEMNIFICATION
SECTION 6.1 Each Owner and the Manager agree to, and hereby do,
severally defend, indemnify, and hold harmless the Back-up Manager, its
successors and assigns, and its and their respective officers, directors,
employees, and agents (each of the foregoing, a "BACK-UP MANAGER INDEMNIFIED
PARTY") from and against any and all claims, actions, damages, losses,
liabilities, costs and expenses (including reasonable legal fees) (each a
"Claim") incurred by or asserted against such Back-up Manager Indemnified Party
to the extent resulting or arising from (a) an action or inaction by the Owner
or Manager that is contrary to the terms of any Related Document, (b) a breach
by the Owner or Manager of its representations and covenants set forth in any
Related Document which has a material adverse effect, or (c) any information
certified in any schedule or report delivered by the Owner or Manager, being
untrue in any material respect as of the date of such certification, except for
Claims which arise out of a Back-up Manager Indemnified Party's willful
misconduct, gross negligence, or failure to comply with or perform its
obligations under this Agreement or the Management Agreement, provided that the
foregoing indemnity shall in no way be deemed to impose on the Owner or the
Manager any obligation to reimburse a Back-up Manager Indemnified Party for
losses to the extent arising from the failure of the related obligor on a User
Lease to make rental and other lease-related payments. For the sake of clarity,
the Owners shall not be responsible for any Claims against the Manager. The
Back-up Manager subordinates its claims under this SECTION 6.1 to all Claims
which have priority in payment under the Head Lease, and further agrees that any
such Claims shall (a) be nonrecourse to the Owner, (b) only be payable at the
times and in the amounts for which funds are available for such purpose pursuant
to the Head Lease, and (c) not constitute a "claim" (as defined in Section
101(5) of the Bankruptcy Code) against the Owner.
SECTION 6.2 The Back-up Manager agrees to, and hereby does, defend,
indemnify, and hold harmless the Owners, the initial Manager, the Indenture
Trustee, any Series Enhancer, the Deal Agent, the Noteholders, and its and their
respective officers, directors, employees and agents (each of the foregoing, an
"INDEMNIFIED PARTY") from and against any and all Claims incurred by or asserted
against such Indemnified Party to the extent resulting or arising from (a) an
action or inaction by the Back-up Manager that is contrary to the terms of this
Agreement or the Management Agreement, (b) a breach by the Back-up Manager of
its representations and covenants set forth in this Agreement which has a
material adverse effect, or (c) any information certified in any schedule or
report delivered by the Back-up Manager, being untrue in any material respect as
of the date of such certification, except for Claims which arise out of an
Indemnified Party's willful misconduct, gross negligence, or failure to comply
with or perform its obligations under any Related Document, provided that the
foregoing indemnity shall in no way be deemed to impose on the Back-up Manager
any obligation to reimburse an Indemnified Party for losses arising solely from
the financial inability of the related obligor on a User Lease to make rental
and other lease-related payments.
SECTION 6.3 The rights and obligations of the Back-up Manager
Indemnified Parties and the Indemnified Parties under this SECTION 6 shall
survive the resignation or removal of the Back-up Manager and the termination of
this Agreement.
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ARTICLE VII
NO BANKRUPTCY PETITION AGAINST OWNERS
The Back-up Manager will not, prior to the date that is one (1) year
and one (1) day after the payment in full of all Outstanding Obligations under
the Head Lease, the Indenture and all Supplements, institute against any Owner,
or join any other Person in instituting against any Owner, an Insolvency
Proceeding. This SECTION 7 shall survive the resignation of the Back-up Manager
and the termination of this Agreement.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.1 The Back-up Manager represents and warrants to the Manager,
the Indenture Trustee, the Deal Agent, each Series Enhancer, the Manager, and
each Owner that:
(a) The Back-up Manager is a corporation duly organized,
validly existing and in good standing under the laws of Delaware;
(b) The Back-up Manager has the requisite power and authority
to enter into and perform its obligations under this Agreement, and all
requisite corporate authorizations have been given for it to enter into
this Agreement and to perform all the matters envisaged hereby. Upon
due execution and delivery hereof this Agreement will constitute the
valid, legally binding, and enforceable obligation of the Back-up
Manager, subject to bankruptcy, insolvency, moratorium, reorganization,
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(c) The Back-up Manager has not breached its certificate of
incorporation or by-laws or any other agreement to which it is a party
or by which it is bound in the course of conduct of its business and
corporate affairs or any applicable laws and regulations in such manner
as would in any such case have a materially adverse effect on its
ability to perform its obligations under this Agreement.
SECTION 8.2 Each Owner represents and warrants, as to itself, to the
Manager, the Indenture Trustee, the Deal Agent, each Series Enhancer, and the
Back-up Manager that:
(a) UCO Compression, LLC is a limited liability company duly
formed, validly existing and in good standing under the laws of the
State of Delaware;
(b) BRL Universal Compression Funding I, L.P. is a limited
partnership duly formed and validly existing under the laws of the
State of Delaware;
(c) Each of the Owners has the requisite power and authority
to enter into and perform its obligations under this Agreement, and all
requisite authorizations have been given for it to enter into this
Agreement and to perform all the matters envisaged hereby. Upon due
execution and delivery hereof, this Agreement will constitute the
valid, legally binding and enforceable obligation of the Owners,
subject to bankruptcy, insolvency,
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moratorium, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(d) Neither Owner has breached its organizational documents or
any other agreement to which it is a party or by which it is bound in
the course of conduct of its business and affairs or any applicable
laws and regulations in such manner as would in any such case have a
materially adverse effect on its ability to perform its obligations
under this Agreement.
SECTION 8.3 The Manager represents and warrants to the Indenture
Trustee, the Deal Agent, each Series Enhancer, the Back-up Manager, and each
Owner that:
(a) The Manager is a corporation duly organized, validly
existing and in good standing under the laws of Texas;
(b) The Manager has the requisite power and authority to enter
into and perform its obligations under this Agreement, and all
requisite corporate authorizations have been given for it to enter into
this Agreement and to perform all the matters envisaged hereby. Upon
due execution and delivery hereof this Agreement will constitute the
valid, legally binding and enforceable obligation of the Manager,
subject to bankruptcy, insolvency, moratorium, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(c) The Manager has not breached its certificate of
incorporation or by-laws or any other agreement to which it is a party
or by which it is bound in the course of conduct of its business and
corporate affairs or any applicable laws and regulations in such manner
as would in any such case have a materially adverse effect on its
ability to perform its obligations under this Agreement.
ARTICLE IX
GENERAL
SECTION 9.1 All notices, demands, or requests given pursuant to this
Agreement shall be in writing and sent by (a) internationally-recognized
overnight courier service, (b) telecopy or email, or (c) hand delivery to the
following addresses:
To Manager: Universal Compression, Inc
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
To Owners: BRL Universal Compression Funding I, L.P
c/o BRL Universal Compression Management, Inc.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
UCO Compression LLC
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
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To Back-up Manager: Caterpillar Inc.
000 XX Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
To the Indenture Trustee: Xxxxx Fargo Bank Minnesota, N.A.
MAC X0000-000
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Corporate Trust Services -Asset-
Backed Administration
To the Deal Agent: First Union Securities, Inc
000 X. Xxxxxxx Xx., XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx
Attention: Xxxxx Xxxxx
To any Series Enhancer: At its address as set forth in the related
Enhancement Agreement.
To the Rating Agencies: At the addresses set forth in the Indenture
or any Supplement issued pursuant thereto
Notice shall be effective and deemed received (a) two (2) days after being
delivered to the courier service, if sent by courier, (b) upon receipt of
confirmation of transmission, if sent by telecopy or email, or (c) when
delivered, if delivered by hand.
SECTION 9.2 If any proceeding is brought for enforcement of this
Agreement or because of an alleged dispute, breach, or default in connection
with any provision of this Agreement, the prevailing party shall be entitled to
recover, in addition to other relief to which it may be entitled, reasonable
attorney fees and other reasonable costs incurred in connection therewith.
SECTION 9.3 The Back-up Manager, the Owners, and the Manager shall each
perform such further acts and execute such further documents as may be necessary
to implement the intent of, and consummate the transactions contemplated by,
this Agreement.
SECTION 9.4 If any term or provision of this Agreement or the
performance thereof shall to any extent be or become invalid or unenforceable,
such invalidity or unenforceability shall not affect or render invalid or
unenforceable any other provision of this Agreement and this Agreement shall
continue to be valid and enforceable to the fullest extent permitted by law.
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SECTION 9.5
(a) This Agreement shall be binding upon and inure to the
benefit of, and be enforceable by, the Owners, the Manager, and the
Back-up Manager, and their respective successors in interest or
permitted assigns; provided, however, that: (i) this Agreement and the
rights and duties of the Back-up Manager hereunder may not be assigned
by the Back-up Manager to any other Person, other than to an Affiliate
of the Back-up Manager, without the prior written consent of the
Owners, the Indenture Trustee, the Deal Agent, and each Series
Enhancer, and (ii) the Owners may charge, assign, pledge, or
hypothecate their rights (but not their obligations) under this
Agreement as provided herein. The Back-up Manager hereby acknowledges
that the Owners shall assign all of its right, title, and interest
under this Agreement to the Indenture Trustee, and that the Deal Agent
and each Series Enhancer will be a beneficiary of such assignment. The
Back-up Manager hereby consents to such assignment. The Back-up Manager
shall give the Rating Agencies prior written notice of any assignment
effected pursuant to this SECTION 9.5.
(b) Any Person (i) into which the Back-up Manager may be
merged or consolidated, (ii) which may result from any merger or
consolidation to which the Back-up Manager shall be a party, or (iii)
which may succeed to the properties and assets of the Back-up Manager
substantially as a whole, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the
Back-up Manager hereunder, shall be the successor to the Back-up
Manager under this Agreement without further act on the part of any of
the parties to this Agreement. In the event that the resulting entity
is not acceptable to the Deal Agent or any Series Enhancer in its sole
discretion, the Back-up Manager, upon the written request of the Deal
Agent or any Series Enhancer, shall resign from its obligations and
duties under this Agreement. Such resignation shall not become
effective until a successor Back-up Manager, appointed by the Deal
Agent and the Global Requisite Majority with the prior written consent
of any Series Enhancer, has accepted such appointment.
(c) Notwithstanding any provision of this SECTION 9, the
Back-up Manager may subcontract its duties under this Agreement or the
Management Agreement to any third party, with the prior written consent
of the Indenture Trustee, any Series Enhancer, and the Deal Agent;
provided that the Back-up Manager shall remain responsible
notwithstanding such subcontractor.
SECTION 9.6 Waiver of any term or condition of this Agreement
(including any extension of time required for performance) shall be effective
only if in writing and shall not be construed as a waiver of any subsequent
breach or waiver of the same term or condition or a waiver of any other term or
condition of this Agreement. No delay on the part of any party in exercising any
right, power, or privilege hereunder shall operate as a waiver hereof.
SECTION 9.7 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 9.8 This Agreement and the appendices attached hereto represent
the entire agreement between the parties with respect to the subject matter
hereof and may not be amended or modified except by an instrument in writing
signed by the parties hereto and approved by the Requisite Global Majority, the
Deal Agent, and each Series Enhancer. The
Back-up Management Agreement - Page 12
Back-up Manager shall send prior notice of any amendment or modification to the
Rating Agencies.
SECTION 9.9 This Agreement may be signed in counterparts each of which
shall constitute an original instrument, but all of which together shall
constitute but one and the same instrument.
SECTION 9.10 Any signature required with respect to this Agreement may
be provided via facsimile.
SECTION 9.11 This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York, without regard to
the State of New York's conflicts of law principles, applicable to agreements
made and to be performed therein and the obligations, rights, and remedies of
the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 9.12 ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE BACK-UP
MANAGER, THE MANAGER OR THE OWNERS ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR
STATE COURT IN NEW YORK COUNTY, STATE OF NEW YORK AND THE MANAGER, THE BACK-UP
MANAGER, AND THE OWNERS EACH HEREBY WAIVE ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND, SOLELY FOR THE PURPOSES OF ENFORCING THIS AGREEMENT, EACH OF THE PARTIES
HERETO EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING EACH OF THE PARTIES HEREBY IRREVOCABLY
APPOINTS AND DESIGNATES CT CORPORATION SYSTEM HAVING AN ADDRESS AT 0000
XXXXXXXX, XXX XXXX, XXX XXXX, ITS TRUE AND LAWFUL ATTORNEY-IN-FACT AND DULY
AUTHORIZED AGENT FOR THE LIMITED PURPOSE OF ACCEPTING SERVICE OF LEGAL PROCESS
AND EACH OF THE PARTIES HERETO EACH AGREE THAT SERVICE OF PROCESS UPON SUCH
PARTY SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS ON SUCH PERSON. EACH OF
THE PARTIES HERETO SHALL EACH MAINTAIN THE DESIGNATION AND APPOINTMENT OF SUCH
AUTHORIZED AGENT UNTIL ALL AMOUNTS PAYABLE UNDER THIS AGREEMENT, THE HEAD LEASE,
AND THE INDENTURE SHALL HAVE BEEN PAID IN FULL. IF SUCH AGENT SHALL CEASE TO SO
ACT, EACH OF THE PARTIES HERETO AS THE CASE MAY BE, SHALL IMMEDIATELY DESIGNATE
AND APPOINT ANOTHER SUCH AGENT SATISFACTORY TO THE INDENTURE TRUSTEE AND SERIES
ENHANCER AND SHALL PROMPTLY DELIVER TO THE INDENTURE TRUSTEE EVIDENCE IN WRITING
OF SUCH OTHER AGENT'S ACCEPTANCE OF SUCH APPOINTMENT.
SECTION 9.13 EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AS
AGAINST THE OTHER PARTIES HERETO, ANY RIGHTS IT MAY HAVE TO A JURY TRIAL IN
RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING IN CONTRACT OR TORT
OR OTHERWISE), INCLUDING ANY
Back-up Management Agreement - Page 13
COUNTERCLAIM, ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY OTHER OPERATIVE
DOCUMENT, INCLUDING IN RESPECT OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT
HEREOF OR THEREOF.
SECTION 9.14 To the extent that any party hereto or any of its property
is or becomes entitled at any time to any immunity on the grounds of sovereignty
or otherwise from any legal actions, suits or proceedings, from set-off or
counterclaim, from the jurisdiction or judgment of any competent court, from
service of process, from execution of a judgment, from attachment prior to
judgment, from attachment in aid of execution, or from execution prior to
judgment, or other legal process in any jurisdiction, such party, for itself and
its successors and assigns and its property, does hereby irrevocably and
unconditionally waive, and agrees not to plead or claim, any such immunity with
respect to its obligations, liabilities, or any other matter under or arising
out of or in connection with this Agreement, the other Related Documents or the
subject matter hereof or thereof, subject, in each case, to the provisions of
the Related Documents and mandatory requirements of applicable law.
SECTION 9.15 This is a financing transaction in accordance with which
the specification of US Dollars is of the essence, and US Dollars shall be the
currency of account in the case of all obligations under the Related Documents.
The payment obligations of the Owners, Manager, Back-up Manager, Indenture
Trustee, and any Series Enhancer under the Related Documents shall not be
discharged by an amount paid in a currency, or in a place other than that
specified with respect to such obligations, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on prompt conversion to US
Dollars and transfer to the specified place of payment under normal banking
procedures does not yield the amount of US Dollars, in such place, due under the
governing Related Documents. In the event that any payment, whether pursuant to
a judgment or otherwise, upon conversion and transfer does not result in payment
of such amount of US Dollars in the specified place of payment, the obligee of
such payment shall have a separate cause of action against the party making the
same for the additional amount necessary to yield the amount due and owing under
such Related Documents. If, for the purpose of obtaining a judgment in any court
with respect to any obligation of a party under any of the Related Documents or
any of the agreements contemplated thereby, it shall be necessary to convert to
any other currency any amount in US Dollars due thereunder and a change shall
occur between the rate of exchange applied in making such conversion and the
rate of exchange prevailing on the date of payment of such judgment, the
respective judgment debtor agrees to pay such additional amounts (if any) as may
be necessary to insure that the amount paid on the date of payment is the amount
in such other currency which, when converted into US Dollars and transferred to
New York, New York, in accordance with normal banking procedures will result in
the amount then due under the respective Related Document in US Dollars. Any
amount due from the respective judgment debtor shall be due as a separate debt
and shall not be affected by or merged into any judgment being obtained for any
other sum due under or in respect of any Related Document. In no event, however,
shall the respective judgment debtor be required to pay a larger amount in such
other currency, at the rate of exchange in effect on the date of payment than
the amount of US Dollars stated to be due under the respective Related Document,
so that in any event the obligations of the respective judgment debtor under the
Related Document will be effectively maintained as US Dollar obligations.
Back-up Management Agreement - Page 14
SECTION 9.16 The Back-up Manager and Manager hereby irrevocably and
unconditionally waive all right of set-off that they may have under contract
(including this Agreement), applicable law, or otherwise with respect to any
funds or monies of the Owners, at any time held by or in the possession of the
Back-up Manager.
SECTION 9.17 THE BACK-UP MANAGER SHALL NOT UNDER ANY CIRCUMSTANCES BE
LIABLE TO THE OWNERS, THE MANAGER, AND/OR TO ANY OTHER PARTY CLAIMING RIGHTS
UNDER THIS AGREEMENT AND/OR THE MANAGEMENT AGREEMENT FOR INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, SAVINGS OR REVENUES OF
ANY KIND, WHETHER OR NOT THE BACK-UP MANAGER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
SECTION 9.18 Each of the Indenture Trustee, the Deal Agent, and any
Series Enhancer shall be third party beneficiaries of this Agreement and shall
be entitled to enforce its rights hereunder as though it were a party thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
UNIVERSAL COMPRESSION, INC
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx,
Executive Vice President
UCO COMPRESSION, LLC
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx,
Executive Vice President
Back-up Management Agreement - Page 15
BRL UNIVERSAL COMPRESSION FUNDING I, L.P
By: BRL UNIVERSAL COMPRESSION
FUNDING MANAGEMENT, INC, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx,
President
CATERPILLAR INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx,
Vice President
Back-up Management Agreement - Page 16
The undersigned accepts the Back-up Manager as an Eligible Back-up Manager.
VARIABLE FUNDING CAPITAL
CORPORATION
By: First Union Securities, Inc., as
attorney-in-fact
By: /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx,
Vice President
Back-up Management Agreement - Page 17
The undersigned, representing the Requisite Global Majority, hereby accepts the
Back-up Manager as an Eligible Back-up Manager.
VARIABLE FUNDING CAPITAL CORPORATION
By: First Union Securities, Inc., as attorney-in-
fact
By: /s/ Xxxxx Xxxxx
------------------------------------------
Xxxxx Xxxxx,
Vice President
Back-up Management Agreement - Appendix B
