INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT dated as of August 20, 2007 among EXTERRAN ENERGY SOLUTIONS, L.P., in its individual capacity and as Manager EXTERRAN ABS 2007 LLC, as Issuer WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee...
Exhibit 10.13
dated as of August 20, 2007
among
EXTERRAN ENERGY SOLUTIONS, L.P.,
in its individual capacity and as Manager
in its individual capacity and as Manager
EXTERRAN ABS 2007 LLC,
as Issuer
as Issuer
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Indenture Trustee
NATIONAL ASSOCIATION,
as Indenture Trustee
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Bank Agent
as Bank Agent
THE VARIOUS FINANCIAL INSTITUTIONS that may from time to time
become parties hereto as Exterran Lenders
become parties hereto as Exterran Lenders
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
in its individual capacity and as Intercreditor Collateral Agent
in its individual capacity and as Intercreditor Collateral Agent
TABLE OF CONTENTS
Section 1. Rules of Usage; Definitions. |
2 | |||
Section 2. Securitization Collections |
8 | |||
Section 3. Acknowledgments Regarding Securitization Collateral |
8 | |||
Section 4. Acknowledgment Regarding Non-Securitization Collateral |
9 | |||
Section 5. Intercreditor Collateral Agent |
10 | |||
Section 6. Establishment of Accounts: Deposit of Collections |
12 | |||
Section 7. Allocation of Collections: Disbursements of Collections |
13 | |||
| Section 8. Monitoring of Allocation Process; Effect of a Securitization Default; Effect of a Bank Default |
17 | |||
Section 9. Compensation and Indemnity of Intercreditor Collateral Agent: Waiver of Right of Set-off |
19 | |||
Section 10. Resignation by or Removal of Intercreditor Collateral Agent |
21 | |||
Section 11. No Implied Waivers, Etc. |
22 | |||
Section 12. Amendments |
22 | |||
Section 13. Benefit of Agreement; Joinder |
22 | |||
Section 14. Severability |
23 | |||
Section 15. Counterparts |
23 | |||
Section 16. Notices |
23 | |||
Section 17. Headings |
23 | |||
Section 18. Governing Law |
23 | |||
Section 19. No Petition |
23 | |||
Section 20. Insolvency |
24 | |||
Section 21. Termination |
24 | |||
Section 22. Entire Agreement |
24 |
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This INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT dated as of August 20, 2007 (as amended,
supplemented, amended and restated or otherwise modified from time to time in accordance with the
provisions hereof, this “Agreement”) is among:
(i) Exterran Energy Solutions, L.P., a Delaware limited partnership, in its individual
capacity (in such capacity, together with its successors and permitted assigns, “EESLP”),
and when and if it acts as Manager under the Management Agreement (in such capacity, and for so
long as EESLP is such Manager under that Agreement, the “Manager”);
(ii) Exterran ABS 2007 LLC, a Delaware limited liability company (together with its successors
and permitted assigns, “ABS 2007”);
(iii) Xxxxx Fargo Bank, National Association, as indenture trustee under the hereinafter
defined Securitization Indenture for the benefit of the Noteholders and the other Persons set forth
therein (in such capacity, together with its successors and permitted assigns, the “Indenture
Trustee”);
(iv) Wachovia Bank, National Association, as U.S. administrative agent on behalf of the Bank
Lenders as hereinafter defined (in such capacity, together with its successors and permitted
assigns, the “Bank Agent”);
(v) Xxxxx Fargo Bank, National Association, in its individual capacity and as collateral agent
for the Securitization Secured Parties (as defined herein), the Exterran Lenders (as defined
herein) and EESLP (in such capacity, together with its successors and permitted assigns, the
“Intercreditor Collateral Agent”); and
(vi) The Additional Exterran Lenders that from time to time become a party hereto in
accordance with Section 13 hereof.
RECITALS
(1) WHEREAS, EESLP, in its individual capacity and when and if it serves as Manager, may
receive from time to time Collections relating to the Domestic Contract Compression Business of (a)
EESLP and its subsidiaries and (b) ABS 2007; and
(2) WHEREAS, the parties hereto desire to execute and deliver this Agreement to set forth
certain agreements among them with respect to such Collections as provided below.
NOW THEREFORE, in consideration of the premises and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:
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Section 1. Rules of Usage; Definitions.
(a) The following rules of usage shall apply to this Agreement (and each appendix,
schedule, exhibit and annex to the foregoing) unless otherwise required by the context or
unless otherwise defined therein.
(i) The defined terms in this Agreement shall include the plural as well as the
singular, and the use of any gender herein shall be deemed to include any other
gender.
(ii) Accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles as in effect on
the date of this Agreement.
(iii) Except as otherwise expressly provided, any definition defined herein
shall be equally applicable to the singular and plural forms of the terms defined.
(iv) Except as otherwise expressly provided, references in this Agreement to
articles, sections, paragraphs, clauses, annexes, appendices, schedules or exhibits
are references to articles, sections, paragraphs, clauses, annexes, appendices,
schedules or exhibits in or to this Agreement.
(v) References to any Person shall include such Person, its successors and
permitted assigns and transferees.
(vi) Except as otherwise expressly provided, reference to any agreement means
such agreement as amended, restated, modified, extended or supplemented from time to
time in accordance with the applicable provisions thereof.
(vii) Except as otherwise expressly provided, references to any law includes
any amendment or modification to such law and any rules or regulations issued
thereunder or any law enacted in substitution or replacement thereof, or restatement
thereof.
(viii) When used in this Agreement, words such as “hereunder,” “hereto,”
“hereof” and “herein” and other words of like import shall, unless the context
clearly indicates to the contrary, refer to the whole of this Agreement (including
any other document to the extent incorporated or referred to herein (whether or not
actually attached hereto)) and not to any particular article, section, subsection,
paragraph or clause hereof.
(ix) References to “including” means including without limiting the generality
of any description preceding such term and for purposes hereof the rule of ejusdem
generis shall not be applicable to limit a general statement, followed by or
referable to any enumeration of specific matters, to matters similar to those
specifically mentioned.
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(x) All terms used in the UCC and not specifically defined in this Agreement
are used therein as defined in the UCC; provided, however, that references in this
Agreement to any section of the UCC shall mean, on or after the effective date of
the adoption of any revision to the UCC in the applicable jurisdiction, such revised
or successor section thereto.
(xi) Except as otherwise expressly provided, in the computation of a period of
time from a specified date to a later specified date, the word “from” means “from
and including” and the words “to” and “until” each mean “to but excluding”.
(b) Definitions. The following terms (whether or not underscored) when used in
this Agreement, including its preamble and recitals, shall, except where the content
otherwise requires, have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
“ABS 2007” has the meaning specified in clause (ii) of the preamble hereto.
“Additional Exterran Lenders” means any Person that is a Exterran Lender other than a
Bank Lender and executes and delivers a “Supplemental Agreement” substantially in the form
of Exhibit “B” attached hereto pursuant to and in accordance with the terms of Section
13 hereof.
“Agreement” has the meaning specified in the preamble hereto.
“Allocated Collections” means all or any portion of the Collections as of any date of
determination that have been allocated pursuant to the provisions of Sections 7 and
8 of this Agreement.
“Allocation Accounting Firm” has the meaning specified in Section 7(a)(ii)
hereof.
“Bank Agent” has the meaning specified in clause (iv) of the preamble hereto.
“Bank Collateral” means any collateral in which the Bank Agent has been granted a
security interest by Exterran, EESLP and certain of their subsidiaries to secure the obligations
under the Bank Credit Agreement.
“Bank Collateral Agreement” means collectively that certain (a) US Collateral
Agreement, dated as of August 20, 2007, by Exterran Holdings, Inc., Exterran, Inc., Exterran Energy
Solutions, L.P., EI Leasing LLC and UCI MLP LP LLC in favor of Wachovia Bank, National Association,
as US Administrative Agent, as such agreement may be amended, supplemented or otherwise modified
from time to time in accordance with its terms, (b) Pledge and Security Agreement, dated as of
August 20, 2007, by Exterran and certain of the subsidiaries of Exterran in favor of the Bank
Agent, as such agreement may be amended, supplemented or otherwise modified from time to time in
accordance with its terms, and (c) any other Security Instrument (as defined in the Bank Credit
Agreement) from time to time outstanding.
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“Bank Credit Agreement” means that certain Senior Secured Credit Agreement, dated as
of August 20, 2007, among Exterran, EESLP, Universal Compression Canada Limited Partnership, the
Bank Agent, Wachovia Capital Finance Corporation (Canada) as Canadian Administrative Agent,
JPMorgan Chase Bank, N.A., as syndication agent, and Bank of America, N.A., Calyon New York Branch,
and Fortis Capital Corp., as Documentation Agents, and the Bank Lenders, as such agreement may be
amended, restated, supplemented or otherwise modified from time to time in accordance with its
terms.
“Bank Default” means an Event of Default (as defined in the Bank Credit Agreement)
that has occurred and is continuing under the Bank Credit Agreement.
“Bank Documents” means the Bank Credit Agreement, the Bank Collateral Agreement, the
Secured Hedging Agreements, the Secured Treasury Management Agreement and each other agreement,
document or instrument executed in connection with the Bank Credit Agreement or the Bank Collateral
Agreement.
“Bank Lenders” means the lenders from time to time party to the Bank Credit Agreement
and the counterparties to the Secured Hedging Agreements.
“Bankruptcy Code” means the Title 11 of the United States Code, 11 U.S.C. §§ 101 et
seq., as amended from time to time.
“Business Day” means any day other than a Saturday, Sunday or any other day on which
banking institutions in New York, New York, Minneapolis, Minnesota or Houston, Texas are authorized
or obligated by law, executive order or governmental decree to be closed.
“Collateral” means the Securitization Collateral and the Non-Securitization
Collateral.
“Collection Parties” means the Securitization Secured Parties and the Exterran
Lenders.
“Collections” means cash, checks and other instruments or any other method of payment
and all other amounts whatsoever owned by, owing to or paid to (a) EESLP or its subsidiaries, (b)
EESLP in its capacity as Manager, or (c) ABS 2007, in each case from time to time.
“Compressor” means a natural gas or coal methane compressor equipment unit, together
with any tangible components thereof, all related appliances, parts, accessories, appurtenances,
accessions, additions, improvements, replacements thereto, all other equipment or components of any
nature from time to time incorporated or installed therein and all substitutions for any of the
foregoing.
“Disputed Allocations” has the meaning specified in Section 7(c) hereof.
“Domestic Contract Compression Business” means (i) with respect to EESLP, the natural
gas compression contract business of EESLP and its subsidiaries in the United States of America and
(ii) with respect to ABS 2007, the natural gas compression contract business of ABS 2007 in the
United States of America.
“EESLP” has the meaning specified in clause (i) of the preamble hereto.
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“EESLP Account” means account no. 4175-620527 maintained with the Intercreditor
Collateral Agent on behalf of and in the name of EESLP.
“EESLP Accountants” has the meaning specified in Section 7(a)(ii).
“EI” means Exterran, Inc., a Texas corporation.
“EI Lockbox Account” means the Lockbox Account under the Intercreditor and Collateral
Agency Agreement of even date herewith among Exterran, Inc., Exterran ABS 2007 LLC, Xxxxx Fargo
Bank, National Association, Wachovia Bank, National Association, the various financial institutions
that may from time to time become parties thereto as Exterran Lenders and JPMorgan Chase Bank, N.A.
“Enhancement Agreement” is defined in Appendix A to the Securitization Indenture.
“Exterran” means Exterran Holdings, Inc., a Delaware corporation.
“Exterran Lender Documents” means the credit agreements, reimbursement agreements,
Secured Hedging Agreements, lease agreements, indentures, including, without limitation, the Bank
Documents, that Exterran has entered into, or may enter into in the future, with various Exterran
Lenders, pursuant to which Exterran has granted or may in the future grant to any or all such
Exterran Lenders, a security interest in and Liens on any NonSecuritization Collateral.
“Exterran Lenders” means the various lenders, lessors and/or owners, including,
without limitation, the Bank Agent, the Bank Lenders and each Additional Exterran Lender, with
which Exterran has entered into, or may enter into in the future, any Exterran Lender Document.
“Exterran Obligations” means any and all sums owing under the Exterran Lender
Documents and all other obligations, direct or contingent, joint, several or independent of
Exterran or any other obligor under the Exterran Lender Documents now or hereafter existing, due or
to become due, including any interest accruing subsequent to the filing of a petition in
bankruptcy, whether or not such interest is an allowed claim under applicable law.
“Indenture Trustee” has the meaning specified in clause (iii) of the preamble hereto.
“Intercreditor Collateral Agent” has the meaning specified in clause (vi) of the
preamble hereto.
“Interest Rate Hedge Provider” means any counterparty to a cap, collar or other
hedging instrument permitted to be entered into pursuant to the Securitization Indenture.
“Lien” means any security interest, lien (statutory or other), charge, pledge, equity,
mortgage, hypothecation, assignment for security or encumbrance of any kind or nature whatsoever.
“Lockbox Account” means the lockbox account number [n/a], and the related separate
bank deposit account, account number 4175620527 maintained in the name of EESLP, subject to
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a right of control in favor of the Intercreditor Collateral Agent for the benefit of the
Collection Parties and EESLP with the Intercreditor Collateral Agent. The remittance address to be
used for payments and deposits to the Lockbox Account is Exterran Energy Solutions, L.P., X.X. Xxx
000000, Xxxxxx, Xxxxx 00000-0000.
“Lockbox Agreements” has the meaning specified in Section 22 hereof.
“Management Agreement” means that certain Management Agreement, dated as of August 20,
2007 by and between the Manager and ABS 2007, as such agreement may be amended, modified or
supplemented from time to time.
“Manager” has the meaning specified in clause (i) of the preamble hereto.
“Misallocation” has the meaning specified in Section 7(b)(iii) hereof.
“Non-Securitization Collateral” means (i) all Compressors and other assets received by
EESLP or the Manager that do not constitute Securitization Collateral and (ii) all
Non-Securitization Collections.
“Non-Securitization Collections” means all Collections received by EESLP and/or the
Manager that do not constitute Securitization Collections.
“Noteholder” means a Person in whose name a Note is registered in accordance with the
terms of the Securitization Indenture.
“Notes” means any of the promissory notes executed by ABS 2007 and authenticated by or
on behalf of the Indenture Trustee pursuant to and issued under the Securitization Indenture.
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, limited partnership or other entity.
“Related Documents” is defined in Appendix A to the Securitization Indenture.
“Repetitive Wire Instructions” means a notice substantially in the form of Exhibit
“A” attached hereto.
“Requisite Global Majority” is defined in Appendix A to the Securitization Indenture.
“Returned Items” has the meaning specified in Section 9(b)(ii) hereof.
“Secured Hedging Agreements” has the meaning assigned in the Bank Collateral
Agreement.
“Secured Treasury Management Agreement” has the meaning specified in the Bank
Collateral Agreement.
“Securitization Account” has the meaning specified in Section 7(b)(ii) hereof,
which account shall initially be the Trust Account.
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“Securitization Accountants” has the meaning specified in Section 7(a)(ii)
hereof.
“Securitization Collateral” means, collectively, all right, title and interest of ABS
2007 in the property and rights subject to the security interest granted by ABS 2007 under the
Securitization Indenture (including, without limitation, the Securitization Compressors and the
User Contracts).
“Securitization Collections” has the meaning specified in Section 2 hereof.
“Securitization Compressors” means, as of any date of determination, all Compressors
owned by ABS 2007 as of such date.
“Securitization Default” means a Manager Default (as defined in Appendix A to the
Securitization Indenture), an Event of Default (as defined in Appendix A to the Securitization
Indenture) or a Exterran Event (as defined in Appendix A to the Securitization Indenture).
“Securitization Documents” means the Securitization Indenture, the Enhancement
Agreements, the Management Agreement, each other Related Document (as defined in Appendix A to the
Securitization Indenture) and each other agreement, document or instrument executed in connection
with the Securitization Indenture.
“Securitization Indenture” means that certain Indenture, dated as of August 20, 2007,
between ABS 2007 and the Indenture Trustee, as such agreement may be amended, supplemented or
otherwise modified from time to time in accordance with its terms, including any supplements
thereto.
“Securitization Obligations” means, collectively, (a) any and all sums owing (i) to
the Noteholders under the Securitization Indenture, (ii) to any Series Enhancer, including under
any Enhancement Agreement, (iii) to the Indenture Trustee under the Securitization Indenture or any
other Securitization Document and (iv) to the Interest Rate Hedge Providers and (b) without
duplication of amounts described in clause (a), all other obligations, direct or
contingent, joint, several or independent of ABS 2007, or any other obligor under the
Securitization Documents now or hereafter existing, due or to become due, including any interest
accruing subsequent to the filing of a petition in bankruptcy, whether or not such interest is an
allowed claim under applicable law.
“Securitization Secured Parties” means, collectively, the Indenture Trustee, ABS 2007,
each Series Enhancer, each Interest Rate Hedge Provider, and the Noteholders.
“Series Enhancer” is defined in Appendix A to the Securitization Indenture.
“Trust Account” is defined in Appendix A to the Securitization Indenture.
“UCC” means the Uniform Commercial Code (or any successor statute) of the State of New
York as in effect from time to time or of any other state or jurisdiction the laws of which are
required by Section 9-301 thereof to be applied in connection with the issue of perfection of
security interests.
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“UCLP” means Universal Compression Partners, L.P., a Delaware limited partnership.
“Unallocated Collections” has the meaning specified in Section 7(a)(ii)
hereof.
“User” means any Person (other than ABS 2007) that contracts or subcontracts for the
service of any Securitization Compressor.
“User Contract” means any contract with respect to the service of one or more
Securitization Compressors entered into between the ABS 2007 (or Exterran acting on behalf of ABS
2007), as obligor, and a User, as obligee.
Section 2. Securitization Collections. The following shall constitute the
“Securitization Collections”:
(a) all Collections in respect of ABS 2007’s Domestic Contract Compression Business,
including, without limitation, any and all contract payments under User Contracts of the
Securitization Compressors;
(b) all Collections in respect of the sale, transfer or disposition of any
Securitization Collateral and all Collections in respect of any casualty or other event of
loss affecting any Securitization Collateral; and
(c) all proceeds and products of any and all of the foregoing.
Section 3. Acknowledgments Regarding Securitization Collateral. Each Exterran Lender party
hereto hereby acknowledges and agrees that, until all Securitization Obligations shall have been
paid in full in cash:
(a) In the event that any Liens on or security interest in all or any portion of the
Securitization Collateral at any time exists in favor of any Exterran Lenders, each such
Exterran Lender will, immediately upon the request of the Indenture Trustee, release or
otherwise terminate such security interest in and Lien upon such Securitization Collateral
and such Exterran Lender will immediately deliver such release documents as the Indenture
Trustee may require in connection therewith.
(b) Without limiting the agreements contained in paragraph (a) above, all
security interests in or Liens on the Securitization Collateral now or at any time hereafter
granted by ABS 2007 to the Indenture Trustee or, pursuant to the Securitization Documents,
secure the Securitization Obligations and shall be prior, paramount, and superior to any and
all Liens and security interests, if any, on or in such Securitization Collateral
heretofore, now or at any time hereafter granted by Exterran to any Exterran Lender, either
pursuant to the Exterran Lender Documents or otherwise (and, as such, any interest of any
Exterran Lender in the Securitization Collections and the Securitization Collateral shall be
at all times subordinated to the interest of the Indenture Trustee therein), regardless of
the date of execution of any such Lien documents or the order of filing of any of them for
record in any public office. The Lien priorities provided in this
Section 3(b) shall not be altered or otherwise affected by any amendment,
modification, supplement, extension, renewal, restatement or refinancing of either the
Securitization
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Obligations or the Securitization Documents, on the one hand, or the Exterran
Obligations or the Exterran Lender Documents, on the other hand, nor by any action or
inaction which the Indenture Trustee, or any other beneficiary under the Securitization
Indenture may take or fail to take in respect of the Securitization Collections and the
Securitization Collateral.
(c) Each Exterran Lender hereby fully, unconditionally and irrevocably disclaims,
waives, relinquishes and releases any right, title or interest (including any Lien) it may
have, now or in the future, to the Securitization Collateral, including, without limitation,
to (i) foreclose or otherwise realize upon, or attempt to foreclose or otherwise realize
upon any of the Securitization Collateral, including, without limitation, the Securitization
Collections, or assert any claims or interests therein, or (ii) seek to obtain possession of
or issue or cause to be issued any levies, garnishments, attachments, or other legal process
of any kind or nature against any of the Securitization Collateral, including, without
limitation, the Securitization Collections, or (iii) contact any. Users or other Persons
that are account debtors or obligees with respect to any Securitization Collateral, to the
extent such contact relates to any User Contract or other Securitization Collateral.
Section 4. Acknowledgment Regarding Non-Securitization Collateral. The Indenture Trustee
hereby acknowledges and agrees that, so long as any Exterran Obligations are outstanding:
(a) In the event that any Liens on or security interest in all or any portion of the
Non-Securitization Collateral at any time exists in favor of the Indenture Trustee, the
Indenture Trustee will, immediately upon the request of EESLP or the Bank Agent, release or
otherwise terminate such security interest in and Lien upon such Non-Securitization
Collateral and the Indenture Trustee will immediately deliver such release documents as
EESLP or the Bank Agent may require in connection therewith.
(b) Without limiting the agreements contained in paragraph (a) above, all security
interests in or Liens on the Non-Securitization Collateral now or at any time hereafter
granted by EESLP to any Exterran Lender pursuant to the Exterran Lender Documents, secure
the Exterran Obligations and shall be prior, paramount, and superior to any and all Liens
and security interests, if any, on or in such Non-Securitization Collateral heretofore, now
or at any time hereafter granted to the Indenture Trustee, either pursuant to the
Securitization Documents or otherwise (and, as such, any interest of the Indenture Trustee
in the Non-Securitization Collections and the Non-Securitization Collateral shall be at all
times subordinated to the interest of any such Exterran Lender), regardless of the date of
execution of any such Lien documents or the order of filing of any of them for record in any
public office. The Lien priorities provided in this Section 4(b) shall not be
altered or otherwise affected by any amendment, modification, supplement, extension,
renewal, restatement or refinancing of either the Exterran Obligations or the Exterran
Lender Documents, on the one hand, or the Securitization
Obligations or the Securitization Documents, on the other hand, nor by any action or
inaction which the Exterran Lenders may take or fail to take in respect of the
Non-Securitization Collateral.
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(c) The Indenture Trustee hereby fully, unconditionally and irrevocably disclaims,
waives, relinquishes and releases any right, title or interest (including any Liens) it may
have, now or in the future, to the Non-Securitization Collateral, including, without
limitation, to (i) foreclose or otherwise realize upon, or attempt to foreclose or otherwise
realize upon any of the Non-Securitization Collateral, or assert any claims or interests
therein, or (ii) seek to obtain possession of or issue or cause to be issued any levies,
garnishments, attachments, or other legal process of any kind or nature against any of the
Non-Securitization Collateral, or (iii) contact any parties who are account debtors or
obligees with respect to Non-Securitization Compressors to the extent such contact relates
to the Non-Securitization Collateral.
Section 5. Intercreditor Collateral Agent.
(a) Appointment. Each of the Collection Parties and EESLP hereby designates
the Intercreditor Collateral Agent to act, and the Intercreditor Collateral Agent hereby
accepts such designation to act, as specified herein and as such Collection Party’s nominee
and agent under the Exterran Lender Documents and under the Securitization Documents, as the
case may be, and, in the case of EESLP, to act as EESLP’s nominee and agent under the
Exterran Lender Documents, the Securitization Documents and otherwise for EESLP in its own
capacity, to hold for such Collection Party’s and EESLP’s respective benefit, as its
interest may appear, all Collections from the Collateral that may from time to time be in
the possession or control of the Intercreditor Collateral Agent in the Lockbox Account.
Without prejudice to the rights of the Collection Parties to enforce the Securitization
Documents and the Exterran Lender Documents, as applicable, each of the Collection Parties
and EESLP hereby irrevocably authorizes the Intercreditor Collateral Agent to take such
action, to exercise such powers and remedies and to perform such duties hereunder as are
specifically provided or delegated to or required of the Intercreditor Collateral Agent by
the terms hereof and such other powers as are reasonably incidental thereto. The
Intercreditor Collateral Agent may perform any of its duties hereunder by or through its
agents or employees.
(b) Duties of Intercreditor Collateral Agent.
(i) The Intercreditor Collateral Agent shall not be deemed to have any
knowledge (imputed or otherwise) of: (A) any of the terms or conditions of the
Exterran Lender Documents, the Securitization Documents or any documents referred to
therein or relating to any financing arrangement between or among any of the
Collection Parties and/or EESLP, or any other party, or any breach thereof, or (B)
any occurrence or existence of a default thereunder. The Intercreditor Collateral
Agent has no obligation to inform any Person of any breach under any such Exterran
Lender Document or Securitization Document or take any action in
connection with any of the foregoing, except such actions as are specified in
this Agreement.
(ii) The Intercreditor Collateral Agent is not responsible for the
enforceability or validity of any security interest in the Collateral and the
Lockbox Account.
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(iii) The Intercreditor Collateral Agent shall have no duties or
responsibilities to the Collection Parties or EESLP except those expressly set forth
or described herein and the duty to exercise “ordinary care” with respect to the
Collections in its possession or under its control and as required by applicable
law. With respect to the immediately preceding sentence, the Intercreditor
Collateral Agent shall be deemed to have exercised “ordinary care” if its action or
failure to act is in conformity with general banking usages or is otherwise in
accordance with commercially reasonable practices of the banking industry. Except
as set forth above with respect to the Intercreditor Collateral Agent’s duties with
respect to the Collections in its possession or under its control, neither the
Intercreditor Collateral Agent nor any of its officers, directors, employees or
agents shall be liable to the Collection Parties or EESLP for any action taken or
omitted by it as such hereunder, or in connection herewith, unless caused by its or
their gross negligence or willful misconduct.
(iv) The duties of the Intercreditor Collateral Agent as agent of the
Collection Parties and EESLP shall be mechanical and administrative in nature. The
Intercreditor Collateral Agent shall not have, by reason of this Agreement or any
Securitization Document or Exterran Lender Document, a fiduciary relationship in
respect of any Collection Parties or EESLP and nothing herein expressed or implied,
is intended to or shall be so construed as to impose upon the Intercreditor
Collateral Agent any obligations in respect of any Securitization Document or
Exterran Lender Document except as expressly set forth herein. The Intercreditor
Collateral Agent shall not be liable for consequential, incidental or special
damages even if it has been advised of the possibility of same. The Intercreditor
Collateral Agent shall not be liable for failure to perform its obligations when the
failure arises out of causes beyond its control, including, without limitation, an
act of a governmental or regulatory authority, an act of God, accident, equipment
failure, labor disputes or system failure, provided it has exercised commercially
reasonable diligence with respect thereto.
(c) Reliance of the Intercreditor Collateral Agent. The Intercreditor
Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message that the
Intercreditor Collateral Agent reasonably believes in good faith to be signed, sent or made
by any apparently authorized person or entity, with respect to all matters pertaining to the
Collateral (including, without limitation, the Collections) and the Lockbox Account and its
duties hereunder. Neither any Collection Party nor EESLP shall have any right of action
whatsoever against the Intercreditor Collateral Agent as a result of the Intercreditor
Collateral Agent acting or refraining from acting based upon instructions given to the
Intercreditor Collateral Agent pursuant to and consistent with this Agreement to so act or
refrain from acting, provided that such action or refraining from acting is in accordance
with this Agreement. Unless expressly provided herein, the Intercreditor Collateral Agent
shall have a reasonable opportunity to act after the receipt of any notice or instruction as
described herein.
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Section 6. Establishment of Accounts: Deposit of Collections.
(a) EESLP shall cause the Lockbox Account to be maintained with the Intercreditor
Collateral Agent. The Lockbox Account shall at all times be held in the name of EESLP, but
under the exclusive dominion and control of, the Intercreditor Collateral Agent for the
benefit of the Collection Parties and EESLP, at the expense of EESLP. EESLP in its
individual capacity agrees that the Lockbox Account shall be under the exclusive dominion
and control of the Intercreditor Collateral Agent and that it shall not, and shall have no
right to, make withdrawals therefrom, give any instructions with respect thereto, or have
access thereto, except with respect to Non-Securitization Collections constituting
Non-Securitization Collateral to the extent provided in Section 7(b)(i) hereof and
with respect to Securitization Collections constituting Securitization Collateral pursuant
to Section 7(b)(ii) hereof. The Collection Parties hereby agree that the Lockbox
Account shall be under the exclusive dominion and control of the Intercreditor Collateral
Agent and the Collection Parties shall not, and shall have no right to, make withdrawals
therefrom, give any instructions with respect thereto, or have access thereto. Each of
EESLP and the Intercreditor Collateral Agent agrees that it shall not transfer any funds
from the Lockbox Account to the Securitization Account or the EESLP Account or to any other
account unless such transfer is in accordance with Section 7 or Section 8
hereof.
(b) Without limiting the effectiveness of the security interests or Liens granted under
the Securitization Indenture or any other Securitization Document, ABS 2007, hereby assigns,
conveys, mortgages and hypothecates to the Intercreditor Collateral Agent, for the benefit
of the Indenture Trustee, and hereby pledges and grants to the Intercreditor Collateral
Agent, for the benefit of the Indenture Trustee, a security interest in and a continuing
Lien on, all of ABS 2007’s right, title and interest, whether now owned or existing or
hereafter created or acquired in, to and under the Lockbox Account, including, without
limitation, any and all deposits, monies, securities or other property (including any
investment property) from time to time in or constituting the Lockbox Account, including any
Collections in respect of any Securitization Collateral, as security for its obligations
under this Agreement and the Securitization Documents.
(c) EESLP, in its own capacity, as Manager under the Securitization Documents (when it
serves in that capacity) and as manager and/or collection agent from time to time for
various third parties, in each such capacity, hereby assigns, conveys, mortgages and
hypothecates to the Intercreditor Collateral Agent, for the benefit of the Exterran Lenders
and the Securitization Secured Parties (and the successors and assigns
of any of them), and hereby pledges and grants to the Intercreditor Collateral Agent,
for the benefit of the Exterran Lenders and the Securitization Secured Parties (and for the
benefit of the successors and assigns of any of them), as their interests may appear, a
security interest in and a continuing Lien on, all of EESLP’s right, title and interest,
whether now owned or existing or hereafter created or acquired in, to and under Lockbox
Account, including, without limitation, any and all deposits, monies, securities or other
property (including any investment property) from time to time in or constituting the
Lockbox Account, including any Collections from the Domestic Contract Compression Business
in respect of any Securitization Collateral and Non-Securitization Collateral, as
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security
for its obligations under this Agreement, the Securitization Documents and the Exterran
Lender Documents.
(d) The parties hereto each agree and acknowledge that (i) the security interests and
Liens granted pursuant to this Section 6 constitute “control” under and for purposes
of Section 9104(a)(1) of the UCC for the benefit of the various parties named herein, (ii)
Xxxxx Fargo Bank, National Association, in its individual capacity and as the Intercreditor
Collateral Agent, will, for purposes of Section 9-104(a)(2) and Sections 8-106 and 8-501 of
the UCC, for the benefit of the Indenture Trustee, comply with instructions originated by
the Indenture Trustee (as directed by the Requisite Global Majority) directing the
disposition of the funds in the Lockbox Account that are properly allocable to the
Securitization Collateral pursuant to Section 7 and 8 hereof without further
notice by or to any party and (iii) the Intercreditor Collateral Agent’s jurisdiction for
purposes of Article 9-304 of the UCC is New York. Notwithstanding the foregoing, the
Intercreditor Collateral Agent and each of the Collection Parties agree that EESLP shall
have the right to allocate Collections in the Lockbox Account to the extent provided in
Section 7(a)(i), 7(a)(ii), 7(c) or 8(a) hereof and disburse
any Non-Securitization Collections to the extent so permitted in accordance with Section
7(b)(i) hereof.
(e) EESLP shall (i) cause all Collections with respect to the Domestic Contract
Compression Business, including, without limitation, all contract payments made by Users,
account debtors, obligees or sub-obligees of Securitization Compressors and by account
debtors, obligees or sub-obligees of any Non-Securitization Compressors, all casualty
proceeds from Securitization Compressors and Non-Securitization Compressors, all other
payments from the Domestic Contract Compression Business in respect of the Securitization
Collateral and Non-Securitization Compressors paid by account debtors, and other obligors in
respect thereof, to be deposited directly in, or credited directly to, the Lockbox Account
and (ii) notify all persons and entities obligated to EESLP, or making payments to EESLP for
the benefit of any other Person, in respect of the Domestic Contract Compression Business to
make all such payments directly into the Lockbox Account. For the avoidance of doubt, any
receipts of funds in respect of contract payments made by users, account debtors, obligees
or sub-obligees of compressors owned by UCLP or any subsidiary of UCLP, and any casualty
proceeds or other proceeds payable to or receivable by UCLP or such subsidiary are not to be
deposited in the Lockbox Account.
Section 7. Allocation of Collections: Disbursements of Collections.
(a) Allocations.
(i) On each Business Day, EESLP shall allocate all Collections then on deposit
in or constituting the Lockbox Account between Securitization Collections and
Non-Securitization Collections and provide written notice thereof (which notice may
be made by facsimile or electronic mail) to the Indenture Trustee and the Bank Agent
prior to the close of business on the day on which
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such allocations are made,
provided, however, that until November 20, 2007, such allocations and notice shall
be made as soon as possible but no later than the Business Day following that date
of receipt of the related Collections. EESLP will do monthly reallocations of
Collections related to Securitization Compressors transferred in or out of the
Securitization Collateral during such period.
(ii) In the event the Bank Agent at any time or for any reason questions any
Allocated Collection, EESLP agrees to promptly cooperate and direct the EESLP
Accountants (as defined below) to work with the Bank Agent and its representatives
to explain such Allocated Collection and provide such other information regarding
same as reasonably requested from time to time by the Bank Agent. The Indenture
Trustee (at the direction of the Requisite Global Majority or as otherwise provided
in the Indenture or pursuant to any Supplement thereto) may appoint an independent
accounting firm (the “Securitization Accountants”) to examine, from time to
time, the books and records of EESLP that would constitute the basis for properly
allocating any Collections then on deposit in the Lockbox Account that have
theretofore not been allocated (collectively, the “Unallocated
Collections”), including, without limitation, all User Contracts and related
invoices in respect thereof, and such Securitization Accountants shall cooperate
with EESLP’s in-house accountants (the “EESLP Accountants”) (and EESLP
hereby agrees that it shall direct the EESLP Accountants to cooperate with the
Securitization Accountants so appointed by the Indenture Trustee) to determine the
allocation of such Unallocated Collections and the Bank Agent shall have the right
to have its representatives present during all such calls and meetings and EESLP
shall cause the Bank Agent to be contemporaneously copied on all written information
regarding the determination of such allocations in each case; provided, however,
that if the EESLP Accountants and the Securitization Accountants are not able to
agree on the allocation of such Unallocated Collections within five (5) Business
Days, then EESLP (with the written approval of the Bank Agent, which approval shall
not be unreasonably withheld or delayed) and the Indenture Trustee (at the direction
of the Requisite Global Majority), within one (1) Business Day after such five (5)
Business Day period expires, shall select another nationally recognized accounting
firm (the “Allocation Accounting Firm”) which is reasonably acceptable to
EESLP and the Indenture Trustee to determine the proper allocation of such
Unallocated Collections. The determination of such Allocation
Accounting Firm shall be final and binding upon EESLP, the Bank Agent, the
other EESLP Lenders, the Indenture Trustee and the Requisite Global Majority, and
EESLP shall promptly provide notice of such appointment to the Bank Agent. EESLP
agrees that it shall make the Bank Agent privy to all communications involving the
Allocation Accounting Firm relating to the proper allocation of such Unallocated
Collections and the Bank Agent shall be entitled to communicate with EESLP and the
Allocation Accounting Firm regarding the same. EESLP shall allocate all Unallocated
Collections (a) as mutually agreed by the EESLP Accountants and the Securitization
Accountants or (b) as determined by the Allocation Accounting Firm pursuant to this
Section 7(a)(ii), as applicable, and in each case provide written notice
thereof (which notice may be made by facsimile
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or electronic mail) to the Indenture
Trustee and the Bank Agent prior to the close of business on the day on which such
allocations are made.
(iii) In the event that EESLP is replaced as Manager, then allocations of
Collections pursuant to Section 7(a)(i) or 7(a)(ii) above shall be
made in good faith based upon the information provided by the replacement Manager.
(iv) Notwithstanding anything contained herein to the contrary, each of the
parties hereto agrees that the provisions of Sections 3 and 4 above
constitute a “subordination agreement” for purposes of Section 510(a) of the
Bankruptcy Code.
(v) Each party hereto agrees that it will abide by allocations of Collections
held in the Lockbox Account made in accordance with this Section 7(a).
(b) Disbursements.
(i) So long as the Intercreditor Collateral Agent has not received notice
pursuant to Section 8(b) or 8(c) to the effect that a Securitization
Default or Bank Default, respectively, has occurred (and had a commercially
reasonable opportunity to act thereon) on any Business Day, after EESLP makes any
allocation of Collections pursuant to Sections 7(a)(i), 7(a)(ii),
7(c) or 8(a) hereof, EESLP may use electronic banking methods
acceptable to the Intercreditor Collateral Agent and consistent with past practice
to direct the Intercreditor Collateral Agent to transfer collected funds from the
Lockbox Account to the EESLP Account in an amount in the aggregate equal to the
Allocated Collections constituting Non-Securitization Collections, prior to the
close of business on such day; provided, however, that until such times as EI and
EESLP use the same accounting software for tracking and allocating receipts EESLP
may use such methods to direct the Intercreditor Collateral Agent to transfer, prior
to the close of business on such day, collected funds from the Lockbox Account to
the EI Lockbox Account in an amount equal to the Allocated Collections constituting
Non-Securitization Collections from the use of Compressors that had been owned prior
to August 20, 2007 by EI or any of its subsidiaries; provided further, however, (i)
if such electronic banking methods are not available due to force
majeure, such transfer shall be made as promptly as practicable after such
electronic banking methods resume and (ii) to the extent EESLP is obligated by
Applicable Law to obtain evidence of approvals to make such transfers and it is not
practicable to obtain such evidence or approvals on such Business Day, such transfer
shall be made by noon Central Time on the next Business Day. After the occurrence
of a Securitization Default or a Bank Default, Allocated Collections constituting
Non-Securitization Collections shall be disbursed in accordance with Section
8(c) hereof.
(ii) So long as the Intercreditor Collateral Agent has not received notice
pursuant to Section 8(b) or 8(c) to the effect that a Securitization
Default
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or a Bank Default, respectively, has occurred (and has had a commercially
reasonable opportunity to act thereon), on the same Business Day as EESLP makes any
allocation of Collections pursuant to Section 7(a)(i), 7(a)(ii),
7(c) or 8(a) hereof, prior to the close of business on such day,
EESLP will use electronic banking methods acceptable to the Intercreditor Collateral
Agent and consistent with past practice to direct the Intercreditor Collateral Agent
to transfer funds from the Lockbox Account to the Trust Account or the account
specified by the Indenture Trustee (at the direction of the Requisite Global
Majority) in the then current Repetitive Wire Instructions delivered to the
Intercreditor Collateral Agent (such account, or any other account that may be
specified by the Indenture Trustee in a subsequent delivery of Repetitive Wire
Instructions, the “Securitization Account”) in an amount equal to the
Allocated Collections constituting Securitization Collections. After the occurrence
of a Securitization Default or a Bank Default, Allocated Collections constituting
Securitization Collections shall be disbursed in accordance with Section
8(b) hereof.
(iii) In the event that an allocation of Collections under Section 7(a)
or disbursement of Allocated Collections pursuant to Section 7(b) is made to
(A) the EESLP Account in excess of the Non-Securitization Collections or (B) the
Securitization Account in excess of the Securitization Collections (any such event
in clauses (A) and (B) above, a “Misallocation”), then EESLP shall
immediately notify the Indenture Trustee and the Bank Agent thereof, and (x) in the
case of a Misallocation described in clause (A) above, EESLP and the
Exterran Lenders and (y) in the case of a Misallocation described in clause
(B) above, the Indenture Trustee, shall, upon receipt of such written notice
from EESLP to the effect of the foregoing, hold such amount for the benefit of the
Intercreditor Collateral Agent and the Securitization Secured Parties or the
Exterran Lenders, as applicable, and remit and pay over any and all such amounts
received to the Intercreditor Collateral Agent for proper allocation in accordance
with the provisions of Section 7(a) above or Section 7(c) or 8(a)
below (as applicable), to the extent that such amounts are still held by such
Person. In the event that any Misallocation occurs, EESLP covenants and agrees to
deposit into the Lockbox Account an amount in cash equal to such Misallocation (net
of any portion thereof that has been paid over by the Exterran Lenders or the
Indenture Trustee pursuant to the preceding sentence) for proper allocation and
disbursement in accordance with the provisions hereof within three (3) Business Days
after the earlier of the
date on which EESLP shall have knowledge thereof and the date on which EESLP
receives notice from any other Person (including pursuant to the procedures
described in Section 7(c) hereof) of such Misallocation.
(c) Disputed Allocations.
In the event that the Indenture Trustee (acting at the direction of the Requisite Global Majority)
disputes the allocation of any Allocated Collections in good faith (any such disputed allocation of
Collections, collectively, the “Disputed Allocations”), then in such event the Indenture
Trustee (at the direction of the Requisite Global Majority or as otherwise provided in the
Indenture or pursuant to any Supplement thereto) may appoint the Securitization Accountants to
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examine, from time to time, the books and records of EESLP which constitute the basis for properly
allocating such Disputed Allocations, including, without limitation, all User Contracts and related
invoices in respect thereof, and such Securitization Accountants shall cooperate with the EESLP
Accountants (and EESLP hereby agrees that it shall direct the EESLP Accountants to cooperate with
the Securitization Accountants so appointed by the Indenture Trustee) to determine the allocation
of such Disputed Allocations and the Bank Agent shall have the right to have its representatives
present during all such calls and meetings and EESLP shall cause the Bank Agent to be
contemporaneously copied on all written information regarding the determination of such Disputed
Allocations in each case; provided, however, that if the EESLP Accountants and the Securitization
Accountants are not able to agree on the allocation of such Disputed Allocations within five (5)
Business Days, then EESLP (with the written approval of the Bank Agent, which approval shall not be
unreasonably withheld or delayed) and the Indenture Trustee (at the direction of the Requisite
Global Majority), within one (1) Business Day after such five (5) Business Day period expires,
shall appoint the Allocation Accounting Firm to determine the proper allocation of such Disputed
Allocations. The determination of such Allocation Accounting Xxxx shall be final and binding upon
EESLP, the Bank Agent, the Other Exterran Lenders, the Indenture Trustee and the Requisite Global
Majority. EESLP shall allocate all Disputed Allocations (i) as mutually agreed by the EESLP
Accountants and the Securitization Accountants or (ii) as determined by the Allocation Accounting
Firm pursuant to this Section 7(c), as applicable, and in each case provide written notice
thereof (which notice may be made by facsimile or electronic mail) to the Indenture Trustee and the
Bank Agent prior to the close of business on the day on which such allocations are made.
(i) In the event the Bank Agent at any time or for any reason questions any
Allocated Collection, EESLP agrees to promptly cooperate and direct the EESLP
Accountants to work with the Bank Agent and its representatives to explain such
Allocated Collection and provide such other information regarding same as reasonably
requested from time to time by the Bank Agent.
Section 8. Monitoring of Allocation Process; Effect of a Securitization Default; Effect of a
Bank Default.
(a) Monitoring of Allocation Process. The Indenture Trustee (acting at the direction
of the Requisite Global Majority or as otherwise provided in the Indenture or pursuant to
any Supplement thereto) may appoint the Securitization Accountants to examine, from time to
time, the books and records of EESLP that would constitute the basis for properly allocating
the Collections, including, without limitation, any User Contracts, contracts, agreements
and invoices in respect thereof, and such Securitization Accountants shall (i) cooperate
with the EESLP Accountants (and EESLP hereby agrees that it shall direct the EESLP
Accountants to cooperate with the Securitization Accountants so appointed by the Indenture
Trustee) to determine the allocation of all Collections from time to time on deposit in the
Lockbox Account and (ii) have access to such books and records that would constitute the
basis for properly allocating the Collections, including, without limitation, any User
Contracts, contracts, agreements and invoices in respect thereof, and any other resources of
EESLP reasonably necessary to monitor the allocation process on a day-to-day basis with
respect to all current or future
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allocations of Collections received by or in the Lockbox
Account as set forth in this Agreement; provided, however, that if the EESLP Accountants and
the Securitization Accountants are not able to agree on the allocation of any such
Collections, then EESLP (with the written approval of the Bank Agent, which approval shall
not be unreasonably withheld or delayed) and the Indenture Trustee (at the direction of the
Requisite Global Majority) shall appoint the Allocation Accounting Firm to determine the
proper allocation of all such Collections and all future Collection from such date. The
Indenture Trustee shall have no duty to monitor the allocation process pursuant to
Section 7 or 8 hereof, and shall take action only upon the receipt of
direction from the Requisite Global Majority. Upon and after the exercise by the Indenture
Trustee’s rights under this Section 8(a), EESLP shall allocate all Collections then
on deposit in the Lockbox Account and all future Collections received by or deposited in the
Lockbox Account (x) as mutually agreed by the EESLP Accountants and the Securitization
Accountants or (y) as determined by the Allocation Accounting Firm pursuant to this
Section 8(a), and in each case provide written notice thereof (which notice may be
made by facsimile or electronic mail) to the Indenture Trustee and the Bank Agent prior to
the close of business on the day on which such allocations are made.
(b) Effect of a Securitization Default. After the occurrence of a
Securitization Default the Indenture Trustee shall notify the Intercreditor Collateral Agent
to such effect and after the Intercreditor Collateral Agent has received such notice and has
had a commercially reasonable opportunity to act thereon, then, subject to the other
provisions of this Agreement and to the terms of the Securitization Documents, (i) the
Intercreditor Collateral Agent shall take such steps as may be instructed in writing by the
Indenture Trustee (as directed by the Requisite Global Majority) to receive, hold and
distribute all or any portion of the Securitization Collateral (including, without
limitation, any Securitization Collections) and proceeds thereof and to comply with its
other obligations set forth in this Agreement, and (ii) the Indenture Trustee (at the
direction of the Requisite Global Majority) may take such steps as it is entitled to take
under the Securitization Documents with respect to enforcement of any Securitization
Document and collection and realization of the Securitization Collateral (or any portion
thereof) and the proceeds thereof. In permitting the Indenture Trustee to distribute
Securitization Collateral from the Lockbox Account pursuant to this Section 8(b),
the Intercreditor
Collateral Agent may rely conclusively on the notice provided by the Indenture Trustee
to the effect that a Securitization Default has occurred without conducting any independent
investigation thereof and notwithstanding any assertion or evidence to the contrary.
(c) Effect of a Bank Default. After the occurrence of a Bank Default the Bank
Agent shall notify the Intercreditor Collateral Agent to such effect and after the
Intercreditor Collateral Agent has received such notice and has had a commercially
reasonable opportunity to act thereon, then, subject to the other provisions of this
Agreement and to the terms of the Bank Documents, (i) the Intercreditor Collateral Agent
shall take such steps as may be instructed in writing by the Bank Agent to receive, hold and
distribute all or any portion of the Bank Collateral and proceeds thereof and to comply with
its other obligations set forth in this Agreement, and (ii) the Bank Agent may take such
steps as it is entitled to take under the Bank Documents with respect to
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enforcement of any
Bank Document and collection and realization of the Bank Collateral (or any portion thereof)
and the proceeds thereof. In permitting the Indenture Trustee to distribute
Non-Securitization Collateral from the Lockbox Account pursuant to this Section
8(c), the Intercreditor Collateral Agent may rely conclusively on the notice provided by
the Bank Agent to the effect that a Bank Default has occurred without conducting any
independent investigation thereof and notwithstanding any assertion or evidence to the
contrary.
(d) Conflicting Instruction. Notwithstanding the foregoing, the Intercreditor
Collateral Agent shall have no duty or responsibility to exercise any discretion with
respect to determining the nature of, receiving, holding and/or distributing all or any
portion of the Collateral or any other collateral or funds held by the Intercreditor
Collateral Agent pursuant to the terms of this Agreement. Without limiting the generality
of the foregoing, the parties hereby agree that the Intercreditor Collateral Agent shall be
obligated to disburse funds from the Lockbox Account only in accordance with instructions
from EESLP or the Manager given pursuant to Section 7(a), 7(b) or
7(c), instructions from the Indenture Trustee given pursuant to Section 8(b)
or 8(d) or instructions from the Bank Agent given pursuant to Section 8(c)
or 8(d). In the event the Intercreditor Collateral Agent receives conflicting
notices or instructions or in the event it is unable in good faith to determine what action
it should take, or is unsure as to the application, intent, interpretation or meaning of any
provision therein or hereof, the Intercreditor Collateral Agent may give notice (in such
form as shall be appropriate under the circumstances) to EESLP, the Bank Agent and the
Indenture Trustee, requesting written instructions as to the course of action to be adopted,
and, to the extent the Intercreditor Collateral Agent acts in good faith in accordance with
any such appropriate instruction received from EESLP, the Bank Agent and the Indenture
Trustee (as directed by the Requisite Global Majority), the Intercreditor Collateral Agent
shall not be liable on account of such action or inaction to any Person. Except with
respect to any instructions received from the Indenture Trustee (as directed by the
Requisite Global Majority) directing the disposition of the funds on the Lockbox Account
that are properly allocated to the Securitization Collateral, if the Intercreditor
Collateral Agent shall not have received appropriate instructions within ten (10) days of
such notice (or within such shorter period of time as reasonably may be specified in such
notice or may be necessary
under the circumstances), it may, but shall be under no duty to, take or refrain from
taking such action which is consistent, in its view, with this Agreement, and the
Intercreditor Collateral Agent shall have no liability to any Person for any such action or
inaction.
Section 9. Compensation and Indemnity of Intercreditor Collateral Agent: Waiver of Right
of Set-off.
(a) EESLP shall be liable to pay to the Intercreditor Collateral Agent from time to
time reasonable compensation for its services. EESLP shall be liable to reimburse the
Intercreditor Collateral Agent upon request for all reasonable disbursements, expenses and
advances incurred or made by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Intercreditor Collateral Agent’s agents and counsel and
all fees, costs and expenses of any
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Securitization Accountants and/or Allocation Accounting
Firm engaged pursuant to the terms hereof. EESLP shall indemnify the Intercreditor
Collateral Agent for, and hold it harmless against, any claim, demand, expense (including
but not limited to reasonable attorney’s fees and expenses), loss or liability incurred by
it without gross negligence or bad faith on its part, arising out of or in connection with
the performance of its rights or duties hereunder, the Lockbox Account and the services
provided in conjunction therewith. The Intercreditor Collateral Agent shall notify EESLP
promptly of any claim asserted against the Intercreditor Collateral Agent for which it may
seek indemnity. However, failure by the Intercreditor Collateral Agent to notify EESLP
shall not relieve EESLP of its obligations hereunder. Upon the Intercreditor Collateral
Agent’s request, EESLP shall defend the claim and the Intercreditor Collateral Agent shall
provide reasonable cooperation at EESLP’s expense in the defense. The Intercreditor
Collateral Agent may have separate counsel and EESLP shall be liable to pay the reasonable
fees and expenses of such counsel. EESLP need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld or delayed. EESLP need
not reimburse any expense or indemnify against any loss or liability to the extent incurred
by the Intercreditor Collateral Agent through the Intercreditor Collateral Agent’s gross
negligence or bad faith. Any amount due under this Section 9(a) that remains unpaid
for thirty (30) days after notice thereof shall bear interest at the federal funds rate from
the date of notice to the date of payment.
(b) (i) Except as provided below, the Intercreditor Collateral Agent and Xxxxx Fargo
Bank, National Association, in its individual capacity, each hereby subordinates all
Liens, encumbrances, claims and rights of setoff it may have, now or in the future,
against the Lockbox Account or any Collateral or Collections (including checks or
other items evidencing the same held therein) or any other property in such Lockbox
Account to the prior payment in full in cash of all Securitization Obligations and
Exterran Obligations and agree that the Liens and security interests securing such
Securitization Obligations and Exterran Obligations are superior to any such Liens,
encumbrances, claims and rights of setoff which the Intercreditor Collateral Agent
or Xxxxx Fargo Bank, National Association, in its individual capacity, might have or
obtain in the Lockbox
Account or any Collateral or Collections or any other property in such Lockbox
Account.
(ii) Notwithstanding the foregoing, the Intercreditor Collateral Agent and
Xxxxx Fargo Bank, National Association, in its individual capacity, may debit the
Lockbox Account from time to time, for (a) checks and other items, including,
without limitation, any automated clearinghouse transactions, which are returned for
any reason (“Returned Items”), (b) necessary account adjustments, and (c)
overdrafts; provided, however, no such offset shall be made unless the Intercreditor
Collateral Agent advises EESLP of the amount thereof in accordance with the
Intercreditor Collateral Agent’s current practice.
(iii) In the event that any charges or fees are then due from EESLP or any
other party hereto to the Intercreditor Collateral Agent under this Agreement or
related to any Returned Items, the Lockbox Account or the services provided
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hereunder, EESLP agrees to pay such amounts to the Intercreditor Collateral Agent
within thirty (30) days of EESLP’s receipt by the Intercreditor Collateral Agent of
a written invoice therefor. In the event that EESLP fails to pay the amounts
described in the preceding sentence within the time period set forth above, then the
Intercreditor Collateral Agent shall have the right to debit the Lockbox Account for
such amounts which obligation of EESLP shall not be relieved by any such offset or
debit by the Intercreditor Collateral Agent (and, upon payment by EESLP of such
amounts to the Intercreditor Collateral Agent, the Intercreditor Collateral Agent
shall deposit such amounts into the Lockbox Account).
(iv) In the event there are insufficient funds in the Lockbox Account to
reimburse the Intercreditor Collateral Agent for the amount of any Returned Items or
unpaid charges or fees for which the Intercreditor Collateral Agent is entitled to
debit the Lockbox Account in accordance with clause (ii) or (iii)
above, then EESLP shall (x) reimburse the Intercreditor Collateral Agent immediately
upon demand and (y) to the extent Collections in respect of Returned Items have been
disbursed to any Collection Party in accordance with the terms of this Agreement,
may debit an amount equal to such disbursement from future allocations to such
Collection Party.
Section 10. Resignation by or Removal of Intercreditor Collateral Agent.
(a) The Intercreditor Collateral Agent may resign from the performance of all its
functions and duties hereunder at any time by giving at least sixty (60) days’ prior written
notice to each of EESLP, the Indenture Trustee and each Exterran Lender then party thereto.
EESLP (with the consent of the Requisite Global Majority which consent shall not be
unreasonably withheld) may, at any time, for or without cause, remove the Intercreditor
Collateral Agent by giving at least twenty (20) days prior written notice to
the Intercreditor Collateral Agent, the Indenture Trustee and each Exterran Lender then
party thereto.
(b) Upon the effectiveness of any such notice of resignation or removal given pursuant
to Section 10(a) above, EESLP shall appoint a successor Intercreditor Collateral
Agent hereunder (with the consent and approval of the Requisite Global Majority (such
consent and approval not to be unreasonably withheld)) which shall be an incorporated bank
or trust company and which shall execute counterparts hereof or such other instrument
reasonably satisfactory to evidence acceptance of the duties and obligations of the
Intercreditor Collateral Agent hereunder.
(c) If a successor Intercreditor Collateral Agent shall not have been so appointed
within the applicable notice period, the Requisite Global Majority shall then appoint a
successor Intercreditor Collateral Agent which shall be a bank or trust company with a
combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition and which shall execute counterparts hereof or such
other instrument reasonably satisfactory to evidence acceptance of the duties and
obligations of the Intercreditor Collateral Agent hereunder and which shall serve as
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Intercreditor Collateral Agent hereunder or thereunder until such time, if any, as EESLP
appoints a successor Intercreditor Collateral Agent as provided above.
(d) After the resignation or removal of any Intercreditor Collateral Agent pursuant to
this Section 10, the provisions of Section 5 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was the Intercreditor Collateral
Agent hereunder, and Section 9(a) above shall continue to inure to its benefit.
Section 11. No Implied Waivers, Etc. Except as expressly provided herein, nothing in this
Agreement shall be deemed to constitute a waiver of or shall otherwise affect any of the interests,
rights or remedies which either the Exterran Lenders or the Indenture Trustee may have under the
Exterran Lender Documents or the Securitization Documents, respectively, or under applicable law.
Section 12. Amendments. No term or provision of this Agreement may be amended, modified,
waived, discharged or terminated orally and any such term or provision may only be amended,
modified, waived, discharged or terminated by an instrument in writing signed by the Indenture
Trustee (at the direction of the Requisite Global Majority), EESLP, the Bank Agent and the
Intercreditor Collateral Agent; provided, however, that no such instrument or agreement shall
amend, modify or waive any provision of this Agreement relating to the allocation of Collections
hereunder or otherwise affect the rights of any Collection Party or EESLP to receive distributions
and/or payments of Collections allocated hereunder or under any other Related Documents, without
the written consent of such Collection Party or EESLP, as the case may be, then party to this
Agreement (in addition to the other Parties required to consent thereto).
Section 13. Benefit of Agreement; Joinder.
(a) This Agreement is intended solely for the benefit of the Collection Parties and
EESLP and their respective successors and assigns and no other Person shall have any right,
power, benefit, privilege, priority or interest under or through this Agreement. Each party
hereto agrees that, if the Indenture Trustee shall fail to act as directed by the Requisite
Global Majority at any time at which it is so required hereunder or under any Related
Documents, then the Requisite Global Majority shall be entitled to directly enforce the
provisions of this Agreement or take any such action directly in its own capacity or on
behalf of the Indenture Trustee.
(b) Additional Exterran Lenders not initially party to this Agreement shall be entitled
to participate in this Agreement, as it may from time to time be amended or supplemented, by
executing a “Supplemental Agreement”, substantially in the form of Exhibit “B”
hereto, accepting the terms of this Agreement, as amended and supplemented to the date of
such execution. Upon execution and delivery of such “Supplemental Agreement”, such party
shall become a Exterran Lender hereunder with the same force and effect as if originally
named as a Exterran Lender herein. Such participation shall require the written approval of
EESLP and the Intercreditor Collateral Agent but shall not require the further authorization
or approval of any of the other parties hereto, provided that the participation in this
Agreement by such additional party does not conflict with the Exterran Lender Documents or
the Securitization Documents,
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and provided further that EESLP shall have given five (5)
days’ prior written notice of the participation in this Agreement by such additional party
to the Indenture Trustee and each Series Enhancer. EESLP shall promptly furnish each of the
Indenture Trustee, each Series Enhancer and the Intercreditor Collateral Agent then party to
this Agreement with a copy of the executed Supplemental Agreement with such additional
party. The rights and obligations of each party hereunder shall remain in full force and
effect notwithstanding the addition of any new Exterran Lender as a party to this Agreement.
Section 14. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction the substantive laws of which are held to be applicable hereto
shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability
in any such jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 15. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but all of which together shall constitute a single agreement.
Section 16. Notices. All notices and other communications provided to any party hereto
under this Agreement shall be in writing or by facsimile and addressed, delivered or transmitted to
such party at its address
or facsimile number set forth on the signature pages hereof or at such other address or facsimile
number as may be designated by such party from time to time in a notice complying as to delivery
with the terms of this section to the other parties. Any notice, if mailed or sent by courier or
hand delivery, shall be deemed given when received; any notice, if transmitted by facsimile, shall
be deemed given when such notice is transmitted and receipt is confirmed by telephone or electronic
means.
Section 17. Headings. The various headings of this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof.
Section 18. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, including without limitation, Section 5-1401 of the New
York General Obligations Law, except that matters relating solely to the operations of the Lockbox
Account and the payment of checks and other items governed by Articles 3 and 4 of the Uniform
Commercial Code shall be governed by and construed in accordance with the laws of the State of
Texas.
Section 19. No Petition. (a) Each of the Exterran Lenders hereby covenants and agrees that
(i) prior to the date which is one year and one day after the payment in full of all Securitization
Obligations, it will not institute against or join any other Person in instituting against ABS 2007
or any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States, including, without limitation, the
Bankruptcy Code, or any state of the United States, (ii) it will not seek to challenge or contest,
in any proceeding, suit or action of any nature whatsoever or otherwise, any transfer, disposition,
contribution to capital or “true sale” of any Securitization Collateral or other assets pursuant to
any of the Securitization Documents and (iii) it will not seek, through
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any proceeding, suit or
action of any nature whatsoever or otherwise, the consolidation, financial or otherwise, of ABS
2007 with any other Person.
(b) The provisions of this Section 19 shall be continuing and shall survive any
termination of this Agreement.
Section 20. Insolvency. This Agreement shall be applicable both before and after the
filing of any petition by or against EESLP under the Bankruptcy Code and all converted or
succeeding cases in respect thereof, and all references herein to EESLP shall be deemed to apply to
a trustee for EESLP, as the case may be, and EESLP, as debtor-in-possession. The relative rights
of the Exterran Lenders and the Indenture Trustee in or to any allocation of or distributions or
disbursements from or in respect of any Non-Securitization Collections or proceeds of
Non-Securitization Collections, or Securitization Collections or proceeds of Securitization
Collections, respectively, shall continue after the filing thereof on the same basis as prior to
the date of the petition, notwithstanding any
court order approving the financing of or use of cash collateral by EESLP as debtor-in-possession
or by any trustee appointed in its case.
Section 21. Termination. This Agreement shall terminate upon the indefeasible payment in
full in cash of all Securitization Obligations and the satisfaction and discharge of the
Securitization Indenture.
Section 22. Entire Agreement. The provisions of the Intercreditor Collateral Agent’s
commercial account agreement, wholesale lockbox agreement applicable to the Lockbox Account, or
other treasury management agreement and related service terms governing the relationship between
EESLP and the Intercreditor Collateral Agent with respect to the Lockbox Account and any other
applicable account (collectively, the “Lockbox Agreements”) are incorporated by reference.
In the event of conflict among the provisions of this Agreement and the Lockbox Agreements, the
provisions of this Agreement shall control. This Intercreditor Agreement, and the other Related
Documents constitute the entire understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written or oral, with respect
thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first written above.
| EXTERRAN ENERGY SOLUTIONS, L.P., in its individual capacity and as Manager |
||||||
| By: | /s/ J. Xxxxxxx Xxxxxxxx
|
|||||
| and Chief Financial Officer | ||||||
| Address: | 0000 Xxxxxxxxxx Xxxx | |||||
| Xxxxxxx, XX 00000 | ||||||
| Facsimile No.: 000-000-0000 Telephone No.: 000-000-0000 Attn.: J. Xxxxxxx Xxxxxxxx |
||||||
Signature Page to
Intercreditor and Collateral Agency Agreement
Intercreditor and Collateral Agency Agreement
| EXTERRAN ABS 2007 LLC | ||||||
| By: | /s/ J. Xxxxxxx Xxxxxxxx
|
|||||
| Address: | 0000 Xxxxxxxxxx Xxxx | |||||
| Xxxxxxx, XX 00000 | ||||||
| Facsimile No.: 000-000-0000 Telephone No.: 000-000-0000 Attn.: J. Xxxxxxx Xxxxxxxx |
||||||
Signature Page to
Intercreditor and Collateral Agency Agreement
Intercreditor and Collateral Agency Agreement
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee |
||||||
| By: Name: |
/s/ Xxxxxxx Xxxxxxxxx
|
|||||
| Title: | Vice President | |||||
| Address: | MAC X0000-000 | |||||
| Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 |
||||||
| Facsimile No.: 000-000-0000 Telephone No.: 000-000-0000 |
||||||
| Attn.: Corporate Trust Services — Asset-Backed Administration |
||||||
Signature Page to
Intercreditor and Collateral Agency Agreement
Intercreditor and Collateral Agency Agreement
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Bank Agent |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxxx
|
|||||
| Title: | Managing Director | |||||
| Address: | Structured Asset Finance | |||||
| 000 X. Xxxxxxx Xx., Xxxxxxxx: | ||||||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||||
| Facsimile No.: 704-374- | ||||||
| Telephone No.: 704-383- | ||||||
| Attn.: [Senior Vice President, Risk Management] | ||||||
Signature Page to
Intercreditor and Collateral Agency Agreement
Intercreditor and Collateral Agency Agreement
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Intercreditor Collateral Agent |
||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: | Vice President | |||||
| Address: | 0000 Xxxxxxxxx, 0xx Xxxxx | |||||
| Xxxxxxx, Xxxxx 00000 | ||||||
| Facsimile No.: 000-000-0000 Telephone No.: 000-000-0000 |
||||||
Signature Page to
Intercreditor and Collateral Agency Agreement
Intercreditor and Collateral Agency Agreement
Exhibit “A”
FORM OF
REPETITIVE WIRE INSTRUCTIONS
REPETITIVE WIRE INSTRUCTIONS
To: Intercreditor Collateral Agent
Reference is hereby made to that certain Intercreditor And Collateral Agency Agreement, dated
as of August 20, 2007 (as amended, supplemented or otherwise modified from time to time in
accordance with its terms, the “Intercreditor Agreement”), among Exterran Energy Solutions,
L.P., in its individual capacity and as Manager (when it serves in such capacity), Exterran ABS
2007 LLC, Xxxxx Fargo Bank, National Association, as Indenture Trustee, Wachovia Bank, National
Association, as the Bank Agent; Xxxxx Fargo Bank, National Association, in its individual capacity
and as collateral agent for the Securitization Secured Parties (as defined herein), the Exterran
Lenders (as defined herein) and EESLP (in such capacity, together with its successors and permitted
assigns, the “Intercreditor Collateral Agent”).
Xxxxx Fargo Bank, National Association, in its individual capacity and as the Intercreditor
Collateral Agent and the Additional Exterran Lenders from time to time party thereto. Capitalized
terms used herein and not otherwise defined herein shall have the meanings assigned to such terms
in the Intercreditor Agreement.
The undersigned, as Indenture Trustee, hereby notifies you that following account constitutes
the “Securitization Account” for purposes of the Intercreditor Agreement, and all amounts required
to be transferred pursuant to the Intercreditor Agreement to the Securitization Account shall be
transferred electronically to such account in accordance therewith and at such times as required
thereunder:
| Bank Name: | Xxxxx Fargo Bank, N.A. | |||
| ABA No.: | 000000000 | |||
| Account Number: | 0000000000 | |||
| Account Name: | Xxxxx Fargo Corporate Trust | |||
| For further credit to: | Acct #22469401 Exterran Trust Acct | |||
| Attn: Xxxxxxx Xxxxxxxx 000-000-0000 |
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You may rely on this notice and the account information for the Securitization Account set
forth herein unless and until you receive a subsequent Repetitive Wire Instruction from the
Indenture Trustee (in which case the instructions set forth herein shall be automatically
terminated and you shall rely on the instructions set forth in such subsequent Repetitive Wire
Instruction).
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
A-2
Exhibit “B”
FORM OF
SUPPLEMENTAL AGREEMENT
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement, dated as of [___], 20[___] (as amended, supplemented or otherwise
modified from time to time, this “Supplemental Agreement”), is by and among
[ ] (the “New Exterran Lender”), Exterran Energy Solutions,
L.P., in its individual capacity and as Manager under the Management Agreement (as defined below),
when and if it is serving in such capacity (“EESLP”), and Xxxxx Fargo Bank, National
Association, in its capacity as Intercreditor Collateral Agent (the “Intercreditor Collateral
Agent”) under the Intercreditor Agreement (as defined below). Capitalized terms used in this
Supplemental Agreement but not defined herein shall have the meanings assigned to such terms in the
Intercreditor and Collateral Agency Agreement, dated as of October 28, 2005 (as amended,
supplemented or otherwise modified from time to time in accordance with its terms, the
“Intercreditor Agreement”), among EESLP, UCO Compression 2005 LLC, a Delaware limited
liability company, Xxxxx Fargo Bank, National Association, as Indenture Trustee, Wachovia Bank,
National Association, as the Bank Agent, the Intercreditor Collateral Agent and the Additional
Exterran Lenders from time to time party thereto.
Accordingly, EESLP, the Intercreditor Collateral Agent and the New Exterran Lender agree as
follows:
Section 1. The New Exterran Lender hereby acknowledges that it has received and reviewed a
copy of the Intercreditor Agreement as in effect on the date hereof and agrees:
(a) that by its execution and delivery hereof, it has joined the Intercreditor
Agreement as a Exterran Lender party thereto with the same force and effect as if originally
signatory thereof and named therein as a Exterran Lender;
(b) to be bound by all covenants, agreements and acknowledgments attributable to a
Exterran Lender in the Intercreditor Agreement; and
(c) to perform all obligations required of it by the Intercreditor Agreement.
Each reference to a “Exterran Lender” in the Intercreditor Agreement shall be deemed to include the
New Exterran Lender. The Intercreditor Agreement is hereby incorporated herein by reference.
Section 2. The New Exterran Lender represents and warrants to EESLP and the Intercreditor
Collateral Agent that this Supplemental Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance
with its terms.
Section 3. This Supplemental Agreement may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Supplemental Agreement shall become effective when the Intercreditor Collateral Agent shall
have received counterparts of this Supplemental Agreement that, when taken
B-1
together, bear the signatures of the New Exterran Lender, EESLP and the Intercreditor
Collateral Agent. Delivery of an executed signature page to this Supplemental Agreement by
facsimile transmission shall be as effective as delivery of a manually executed counterpart of this
Supplemental Agreement.
Section 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain
in full force and effect.
Section 5. In case any one or more of the provisions contained in this Supplemental Agreement
should be held invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Intercreditor Agreement
shall not in any way be affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
Section 6. All communications and notices hereunder shall be in writing and given as provided
in Section 16 of the Intercreditor Agreement. All communications and notices hereunder to the New
Exterran Lender shall be given to it at the address set forth under its signature below.
Section 7. The New Exterran Lender agrees to reimburse the Intercreditor Collateral Agent for
its out-of-pocket expenses in connection with this Supplemental Agreement, including the fees,
disbursements and other charges of counsel for the Intercreditor Collateral Agent.
Section 8. THIS SUPPLEMENTAL AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATION LAW.
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B-2
IN WITNESS WHEREOF, each of the undersigned has caused this Supplemental Agreement to be duly
executed and delivered by its proper and duly authorized officer as of this day of
.
| [NEW EXTERRAN LENDER] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | ||||||
EXTERRAN ENERGY SOLUTIONS, L.P.
By: |
||||
Name: |
||||
Title: |
||||
| Xxxxx Fargo Bank, National Association as Intercreditor Collateral Agent |
||||
By: |
||||
Name: |
||||
Title:
|
||||
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