EXHIBIT 10.30
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (as amended,
supplemented, restated or otherwise modified, the "Agreement") is entered into
by and among MOUNTAIN COMPRESSED AIR, INC., a Texas corporation ("Borrower"),
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION ("Senior Lender"),XXXXX FARGO
ENERGY CAPITAL, INC. ("WFEnergy"), and XXXXX FARGO EQUIPMENT FINANCE, INC.
("WFFinance"; WFEnergy and WFFinance are, individually and collectively,
referred toherein as "Junior Creditor").
RECITALS
A. Borrower is indebted to Junior Creditor, and Borrower proposes to
obtain credit or has obtained credit from Senior Lender; and
B. Senior Lender has indicated that it will extend or continue
extending credit to Borrower if certain conditions are met, including without
limitation, the requirement that Junior Creditor execute this Agreement.
NOW, THEREFORE, as an inducement to Senior Lender to extend or continue
extending credit and for other valuable consideration, the parties hereto agree
as follows:
1. INDEBTEDNESS SUBORDINATED. Junior Creditor subordinates all
Indebtedness now or at any time hereafter owing from Borrower to Junior Creditor
(including without limitation, interest thereon which may accrue subsequent to
Borrower becoming subject to any state or federal debtor-relief statute)
including, without limitation, (i) that certain $2,000,000.00 secured promissory
note (the "Junior Note") dated as of February 6, 2001, as amended under Second
Amendment to Credit Agreement between Borrower and WFEnergy dated as of February
1, 2003, executed by Borrower and payable to WFEnergy, or its order, (ii) that
certain Warrant and Warrant Purchase Agreement between Borrower and WFEnergy
dated as of February 6, 2001, (the "Warrant"), and (iii) pursuant to that
certain Master Lease dated as of January 31, 2001 between Borrower and WFFinance
(the "Lease"; the Junior Note, the Warrant and the Lease collectively referred
to herein as the "Junior Debt") to all Indebtedness from Borrower to Senior
Lender pursuant to that certain Credit Agreement dated as of February 6, 2001,
(the "Original Agreement"), as amended by that certain First Amendment to Credit
Agreement dated as of August 9, 2001 (the "First Amendment"), as amended by that
certain Second Amendment to Credit Agreement dated as of November 30, 2001 (the
"Second Amendment"), as amended by that certain Third Amendment to Credit
Agreement dated as of January 31, 2002 (the "Third Amendment"), as amended by
that certain Fourth Amendment to Credit Agreement dated as of April 30, 2002
(the "Fourth Amendment"), as amended by that certain Fifth Amendment to Credit
Agreement dated as of August 6, 2002 (the "Fifth Amendment"), as amended by that
certain Sixth Amendment dated of even date herewith (the "Sixth Amendment"),
between Borrower and Senior Lender, including, without limitation, that certain
(i) Renewal Term Note dated of even date herewith, in the amount of
$2,392,098.56, (ii) Renewal Delayed Draw Term Note dated of even date herewith,
in the amount of $160,118.50, and (iii) Renewed and Extended Revolving Line of
1
Credit Note dated of even date herewith, in the amount of $500,000.00 (the
"Revolver Note"), all executed by Borrower and payable to the order of Senior
Lender; and all renewals, extensions, rearrangements, modifications, and/or
amendments of any and all of the aforesaid notes payable to the order of Senior
Lender up through January 31, 2004, but not any increases thereof (collectively,
the "Senior Debt"). Junior Creditor irrevocably consents and directs that all
Senior Debt shall be paid in full prior to Borrower making any payment on any
Junior Debt except such payments as are expressly permitted by Section 3 of this
Agreement. Junior Creditor will, and Senior Lender is authorized in the name of
Junior Creditor from time to time to, execute and file such financing statements
and other documents as Senior Lender may require in order to give notice to
other persons and entities of the terms and provisions of this Agreement.
2. INDEBTEDNESS DEFINED. The word "Indebtedness" includes any and all
principal, interest, fees and expenses of Borrower incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, and
whether Borrower may be liable individually or jointly with others.
3. RESTRICTION OF PAYMENT OF JUNIOR DEBT; DISPOSITION OF PAYMENTS
RECEIVED BY JUNIOR CREDITOR. Until the Senior Debt has been paid in full and
this Agreement has been terminated in writing by all the parties hereto,
Borrower will not make, and Junior Creditor will not accept or receive, any
payment or benefit in cash, by setoff or otherwise, directly or indirectly, on
account of principal, interest or any other amounts owing on any Junior Debt,
except such payments as are expressly permitted herein. Borrower is permitted to
make and Junior Creditor to receive all scheduled payments of principal and
interest on the Junior Note and rental payments under the Lease; provided
however, that (a) Borrower shall not make, nor Junior Creditor receive, any
prepayment or accelerated payment on the Junior Note or the Lease, and (b) no
payment of principal or interest on the Junior Note or rental payment under the
Lease shall be made by Borrower, or received by Junior Creditor, after written
notice from Senior Lender to Junior Creditor that a default, or any condition,
event or act which with the giving of notice or the passage of time or both
would constitute a default, has occurred under the terms of any Senior Debt for
a period (each a "Blockage Period") commencing on the date of receipt of such
notice and ending on the earlier of (i) the date such default shall have been
cured or waived in writing by Senior Lender in its sole discretion, and (ii) the
date sixty (60) days from the date of receipt of such notice. Furthermore,
during any Blockage Period, except as otherwise provided in the last sentence of
this Section 3 with respect to WFFinance, Junior Creditor will not take any
action or initiate any proceedings, judicial or otherwise, (i) to enforce Junior
Creditor's rights or remedies with respect to any Junior Debt, including without
limitation, any action to enforce any rights or remedies under the Lease or with
respect to any collateral securing any Junior Debt or (ii) to obtain any
judgment or prejudgment remedy against Borrower or any such collateral. The
Senior Lender shall not have the right to exercise more than two Blockage
Periods hereunder; provided, however, the exercise of each such Blockage Period
may not be in connection with the same default. If any payment is made in
violation of this Agreement, Junior Creditor shall promptly deliver the same to
Senior Lender in the form received, with any endorsement or assignment necessary
for the transfer of such payment or amounts setoff from Junior Creditor to
Senior Lender, to be either (in Senior Lender's sole discretion) held as cash
collateral securing the Senior Debt or applied in reduction of the Senior Debt
in such order as Senior Lender shall determine, and until so delivered, Junior
Creditor shall hold such payment in trust for and on behalf of, and as the
property of, Senior Lender. Notwithstanding the foregoing, nothing contained
herein shall prohibit or preclude WFFinance from applying all or a part of the
cash security deposit held by it to amounts due under the Lease, including
amounts due during a Blockage Period.
2
4. DISPOSITION OF EVIDENCE OF INDEBTEDNESS. If there is any existing
promissory note or other evidence of any of the Junior Debt, including the
Junior Note and the Lease, or if any promissory note or other evidence of
Indebtedness is executed at any time hereafter with respect thereto, and if
there are any financing statements now or hereafter executed, relating to the
Collateral and any security interests securing the Junior Debt, then Borrower
and Junior Creditor will xxxx the same with a legend, inform and substance
satisfactory to Senior Lender, stating that it is subject to this Agreement, and
if asked to do so, will deliver the same to Senior Lender. Junior Creditor shall
not, without Senior Lender's prior written consent, assign, transfer,
hypothecate or otherwise dispose of any claim it now has or may at any time
hereafter have against Borrower at any time that any Senior Debt remains
outstanding and/or Senior Lender remains committed to extend any credit to
Borrower.
5. SUBORDINATION OF LIENS AND SECURITY INTERESTS. The parties hereby
agree that Senior Lender shall have a first priority security interest in the
Collateral, WFEnergy shall have a second priority security interest in the
Collateral, and WFFinance shall have a third priority Security interest in the
Collateral (the "Lien Priority"). Irrespective of the order of recording of
financing statements, security agreements or other instruments, and irrespective
of the descriptions of collateral contained in any such documents, the parties
agree among themselves that their respective security interests in the
Collateral shall be governed by the Lien Priority, which shall be controlling in
the event of any conflict between this Agreement and any other documents.
"Collateral" as used in this Agreement means (i) all personal property of every
type now owned or hereafter acquired by Borrower, including, without limitation,
all equipment, accounts, inventory and general intangibles, but specifically
excluding all property set forth on Exhibit A attached hereto, and (ii) all of
the common stock of Borrower pledged by OilQuip Rentals, Inc. under that certain
General Pledge Agreement dated February 6, 2001, between OilQuip Rentals, Inc.,
as Pledgor, and Senior Lender, as Lender.
6. NOTICE OF DEFAULT UNDER JUNIOR DEBT. WFEnergy, with respect to the
Junior Note, and WFFinance, with respect to the Lease, shall provide Senior
Lender with written notice of any default under the Junior Note and Lease,
respectively, and allow Senior Lender 10 days to cure such default (but Senior
Lender shall not be obligated to cure such default) or deliver notice to the
Junior Creditor pursuant to Section 3 of the commencement of a Blockage Period
prior to exercising any rights or remedies the Junior Creditor may have pursuant
to the Junior Note, the Lease, at law or in equity; provided, however, the
obligation to provide such notice prior to exercise of any rights or remedies
shall not apply to a default resulting from any voluntary or involuntary
bankruptcy of the Borrower that causes automatic acceleration of the Junior
Debt.
7. REPRESENTATIONS AND WARRANTIES; INFORMATION. Borrower and
Junior Creditor represent and warrant to Senior Lender that: (a) no interest in
the Junior Debt has been assigned or otherwise transferred to any person or
entity; (b) payment of the Junior Debt has not been heretofore subordinated to
any other creditor of Borrower; and (c) Junior Creditor has the requisite power
and authority to enter into and perform its obligations under this Agreement.
Junior Creditor further represents and warrants to Senior Lender that Junior
Creditor has established adequate, independent means of obtaining from Borrower
on a continuing basis financial and other information pertaining to Borrower's
financial condition. Junior Creditor agrees to keep adequately informed from
such means of any facts, events or circumstances which might in any way affect
Junior Creditor's risks hereunder, and Junior Creditor agrees that Senior Lender
3
shall have no obligation to disclose to Junior Creditor information or material
about Borrower which is acquired by Senior Lender in any manner. Senior Lender
may, at Senior Lender's sole option and without obligation to do so, disclose to
Junior Creditor any information or material relating to Borrower which is
acquired by Senior Lender by any means, and Borrower hereby agrees to and
authorizes any such disclosure by Senior Lender.
8. TRANSFER OF ASSETS OR REORGANIZATION OF BORROWER. If any
petition is filed or any proceeding is instituted by or against Borrower under
any provisions of the Bankruptcy Reform Act, Title 11 of the United States Code,
or any other or similar law relating to bankruptcy, insolvency, reorganization
or other relief for debtors, or generally affecting creditors' rights, or
seeking the appointment of a receiver, trustee, custodian or liquidator of or
for Borrower or any of its assets, any payment or distribution of any of
Borrower's assets, whether in cash, securities or any other property, which
would be payable or deliverable with respect to any Junior Debt, shall be paid
or delivered to Senior Lender until all Senior Debt is paid in full. Junior
Creditor grants to Senior Lender the right to enforce, collect and receive any
such payment or distribution and to give releases or acquittances therefor, and
Junior Creditor authorizes Senior Lender as its attorney-in-fact to vote and
prove the Junior Debt in any of the above-described proceedings or in any
meeting of creditors of Borrower relating thereto.
9. OTHER AGREEMENTS; NO THIRD PARTY BENEFICIARIES. Senior
Lender shall have no direct or indirect obligations to Junior Creditor of any
kind with respect to the manner or time in which Senior Lender exercises (or
refrains from exercising) any of its rights or remedies with respect to the
Senior Debt, Borrower or any of Borrower's assets. Junior Creditor understands
that there may be various agreements between Senior Lender and Borrower
evidencing and governing the Senior Debt, and Junior Creditor acknowledges and
agrees that such agreements are not intended to confer any benefits on Junior
Creditor. Junior Creditor further acknowledges that Senior Lender may administer
the Senior Debt and any of Senior Lender's agreements with Borrower in any way
Senior Lender deems appropriate, without regard to Junior Creditor or the Junior
Debt. Junior Creditor waives any right Junior Creditor might otherwise have to
require a marshalling of any security held by Senior Lender for all or any part
of the Senior Debt or to direct or affect the manner or timing with which Senior
Lender enforces any of its security. Nothing in this Agreement shall impair or
adversely affect any right, privilege, power or remedy of Senior Lender with
respect to the Senior Debt, Borrower or any assets of Borrower, including
without limitation, Senior Lender's right to: (a) waive, or release any of
Senior Lender's security or rights; (b) waive or ignore any defaults by
Borrower; and/or (c) restructure, renew, modify or supplement the Senior Debt,
or any portion thereof, or any agreement with Borrower relating to any Senior
Debt; provided, however, that Junior Creditor's subordination shall only apply
to the Senior Debt as provided in Section 1 hereof. All rights, privileges,
powers and remedies of Senior Lender may be exercised from time to time by
Senior Lender without notice to or consent of Junior Creditor.
10. BREACH OF AGREEMENT BY BORROWER OR JUNIOR CREDITOR. In
the event of any breach of this Agreement by Borrower or Junior Creditor, then
and at any time thereafter for so long as such breach is continuing Senior
Lender shall have the right to declare immediately due and payable all or any
portion of the Senior Debt without presentment, demand, or any other notices of
any kind, including without limitation notice of nonperformance, protest, notice
of protest, notice of dishonor, notice of intention to accelerate or notice of
acceleration, all of which are expressly waived by Borrower and Junior Creditor.
4
No delay, failure or discontinuance of Senior Lender in exercising any right,
privilege, power or remedy hereunder shall affect or operate as a waiver of such
right, privilege, power or remedy; nor shall any single or partial exercise of
any such right, privilege, power or remedy preclude, waive or otherwise affect
any other or further exercise thereof or the exercise of any other right,
privilege, power or remedy. Any waiver, permit, consent or approval of any kind
by Senior Lender with respect to this Agreement must be in writing and shall be
effective only to the extent set forth in writing.
11. COSTS, EXPENSES AND ATTORNEYS' FEES. If any party hereto institutes
any arbitration or judicial or administrative action or proceeding to enforce
any provisions of this Agreement, or alleging any breach of any provision hereof
or seeking damages or any remedy, the losing party or parties shall pay to the
prevailing party or parties all costs and expenses, including reasonable
attorneys' fees (to include outside counsel fees), expended or incurred by the
prevailing party or parties in connection therewith, whether incurred at the
trial or appellate level, in an arbitration proceeding or otherwise, and
including any of the foregoing incurred in connection with any bankruptcy
proceeding (including without limitation, any adversary proceeding, contested
matter or motion brought by Senior Lender or any other person) relating to
Borrower, Junior Creditor or any other person or entity.
12. SUCCESSORS; ASSIGNS; AMENDMENT; COUNTERPARTS. This
Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, legal representatives, successors and assigns of the
parties. This Agreement may be amended or modified only in writing signed by all
parties hereto. This Agreement may be executed in one or more counterparts, each
of which when so executed shall be deemed to be an original, but all of which
when taken together shall constitute one and the same instrument.
13. CONSTRUCTION. All words used herein in the singular shall be deemed
to have been used in the plural where the context so requires.
14. SEVERABILITY OF PROVISIONS. If any provision of this Agreement
shall be held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such waiver or other provision
or any remaining provisions of this Agreement.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
16. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, JUNIOR CREDITOR AND SENIOR LENDER HEREBY IRREVOCABLY AND
EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF SENIOR LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT
THEREOF.
17. ARBITRATION.
5
(a) ARBITRATION. The parties hereto agree, upon demand by any party, to
submit to binding arbitration all claims, disputes and controversies between or
among them (and their respective employees, officers, directors, attorneys, and
other agents), whether in tort, contract or otherwise arising out of or relating
to in any way (i) the loan and related loan and security documents which are the
subject of this Agreement and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination; or (ii) requests for additional
credit.
(b) GOVERNING RULES. Any arbitration proceeding will (i) proceed in a
location in Texas selected by the American Arbitration Association ("AAA"); (ii)
be governed by the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the documents
between the parties; and (iii) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the
AAA's commercial dispute resolution procedures, unless the claim or counterclaim
is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in accordance with the
AAA's optional procedures for large, complex commercial disputes (the commercial
dispute resolution procedures or the optional procedures for large, complex
commercial disputes to be referred to, as applicable, as the "Rules"). If there
is any inconsistency between the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or refuses to
submit to arbitration following a demand by any other party shall bear all costs
and expenses incurred by such other party in compelling arbitration of any
dispute. Nothing contained herein shall be deemed to be a waiver by any party
that is a bank of the protections afforded to it under 12 U.S.C. ss.91 or any
similar applicable state law.
(c) NO WAIVER OF PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE. The
arbitration requirement does not limit the right of any party to (i) foreclose
against real or personal property collateral; (ii) exercise self-help remedies
relating to collateral or proceeds of collateral such as setoff or repossession;
or (iii) obtain provisional or ancillary remedies such as replevin, injunctive
relief, attachment or the appointment of a receiver, before during or after the
pendency of any arbitration proceeding. This exclusion does not constitute a
waiver of the right or obligation of any party to submit any dispute to
arbitration or reference hereunder, including those arising from the exercise of
the actions detailed in sections (i), (ii) and (iii) of this paragraph.
(d) ARBITRATOR QUALIFICATIONS AND POWERS. Any arbitration proceeding in
which the amount in controversy is $5,000,000.00 or less will be decided by a
single arbitrator selected according to the Rules, and who shall not render an
award of greater than $5,000,000.00. Any dispute in which the amount in
controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel
of three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be a neutral
attorney licensed in the State of Texas with a minimum of ten years experience
in the substantive law applicable to the subject matter of the dispute to be
arbitrated. The arbitrator will determine whether or not an issue is
arbitratable and will give effect to the statutes of limitation in determining
any claim. In any arbitration proceeding the arbitrator will decide (by
documents only or with a hearing at the arbitrator's discretion) any pre-hearing
motions which are similar to motions to dismiss for failure to state a claim or
6
motions for summary adjudication. The arbitrator shall resolve all disputes in
accordance with the substantive law of Texas and may grant any remedy or relief
that a court of such state could order or grant within the scope hereof and such
ancillary relief as is necessary to make effective any award. The arbitrator
shall also have the power to award recovery of all costs and fees, to impose
sanctions and to take such other action as the arbitrator deems necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Texas Rules of Civil Procedure or other applicable law. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief.
(e) DISCOVERY. In any arbitration proceeding discovery will be
permitted in accordance with the Rules. All discovery shall be expressly limited
to matters directly relevant to the dispute being arbitrated and must be
completed no later than 20 days before the hearing date and within 180 days of
the filing of the dispute with the AAA. Any requests for an extension of the
discovery periods, or any discovery disputes, will be subject to final
determination by the arbitrator upon a showing that the request for discovery is
essential for the party's presentation and that no alternative means for
obtaining information is available.
(f) CLASS PROCEEDINGS AND CONSOLIDATIONS. The resolution of any dispute
arising pursuant to the terms of this Agreement shall be determined by a
separate arbitration proceeding and such dispute shall not be consolidated with
other disputes or included in any class proceeding.
(g) PAYMENT OF ARBITRATION COSTS AND FEES. The arbitrator shall award
all costs and expenses of the arbitration proceeding.
(h) MISCELLANEOUS. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between the parties
potentially applies to a dispute, the arbitration provision most directly
related to the documents between the parties or the subject matter of the
dispute shall control. This arbitration provision shall survive termination,
amendment or expiration of any of the documents or any relationship between the
parties.
NOTICES. All notices, requests and demands which any party is required
or may desire to give to any other party under any provision of this Agreement
must be in writing delivered to each party at the following address:
BORROWER: MOUNTAIN COMPRESSED AIR, INC.
0000 Xxxxxxxx Xxxx.
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
JUNIOR
CREDITOR: XXXXX FARGO BANK EQUIPMENT FINANCE, INC.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
XXXXX FARGO ENERGY CAPITAL, INC.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
7
SENIOR LENDER: XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
0000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit in
the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy,
upon receipt.
18. BORROWER'S ACKNOWLEDGEMENT AND CONSENT. Borrower herein executes
this Agreement to evidence its consent and acknowledgement of the terms and
provisions herein and agrees to be subject to the terms and conditions hereof.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof, each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
NOTICE: THIS DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THE INDEBTEDNESS
CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES RELATING TO THE INDEBTEDNESS.
[SIGNATURES BEGIN ON NEXT PAGE]
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 1 day of FJanuary, 2003.
BORROWER:
MOUNTAIN COMPRESSED AIR, INC.
By: /S/ XXXXXXX XXXXXXXXXXXX
-----------------------------------
Name: XXXXXXX XXXXXXXXXXXX
-----------------------------------
Title: CHIEF EXECUTIVE OFFICER
-----------------------------------
JUNIOR CREDITOR:
XXXXX FARGO ENERGY CAPITAL, INC.
By: /S/ XXXXXXX XXXXXX
-----------------------------------
Name: XXXXXXX XXXXXX
-----------------------------------
Title: ASSISTANT VICE PRESIDENT
-----------------------------------
XXXXX FARGO EQUIPMENT FINANCE, INC.
By: /S/ XXXXXXX X. XXXX
-----------------------------------
Name: XXXXXXX X. XXXX
-----------------------------------
Title: VICE PRESIDENT
-----------------------------------
LENDER:
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
By: /S/ XXXXX XXXXXX
-----------------------------------
Name: XXXXX XXXXXX
-----------------------------------
Title: VICE PRESIDENT
-----------------------------------
S-1
EXHIBIT "A"
[A DESCRIPTION OF THE EXCLUDED PROPERTY FOLLOWS THIS PAGE]
A-1
