EXHIBIT 10.9
AMENDMENT NUMBER 5
TO THE MANAGEMENT AGREEMENT
THIS AMENDMENT NUMBER 5, dated as of February 8, 2002 (the
"Amendment") to the Management Agreement, dated as of February 9, 2001 (as
amended or supplemented from time to time as permitted thereby, the "Management
Agreement"), by and among Universal Compression, Inc. (the "Manager"), UCO
Compression LLC ("UCO") and BRL Universal Compression Funding I, L.P. (the
"Issuer").
WITNESSETH:
WHEREAS, the Manager, UCO and the Issuer have previously
entered into the Management Agreement;
WHEREAS, the parties desire to amend the Management Agreement
in order to modify certain provisions of the Management Agreement;
NOW THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings assigned in
the Management Agreement.
SECTION 2. Full Force and Effect. Other than as specifically
modified hereby, the Management Agreement shall remain in full force and effect
in accordance with the terms and provisions thereof and is hereby ratified and
confirmed by the parties hereto.
SECTION 3. Amendment to the Management Agreement. Effective on
February 8, 2002, following the execution and delivery hereof,
(a) The second sentence of Section 5.7 of the Management
Agreement is hereby amended to read in its entirety as follows:
Property Insurance shall not have deductibles in
excess of $250,000 per occurrence; provided that, on and after
the earlier to occur of (a) the date of issuance of the
Issuer's "Series 2002-1 Notes" and (b) March 31, 2002 (or if
such day is not a Business Day, the next succeeding Business
Day), the Property Insurance shall not have deductibles in
excess of (x) $250,000 per occurrence and (y) $2,000,000
annually, in the aggregate; and provided further that, at all
times, the Liability Insurance shall not have deductibles in
excess of $250,000 per occurrence.
(b) Section 9.11 of the Management Agreement is hereby amended
to read in its entirety as follows:
New Master Lease Agreement with Users. With respect
to each Owner Compressor, the Manager shall, within the
timeframe set forth below, cause each related User to execute
a revised master lease agreement, substantially in the form
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of Exhibit F hereto. The Manager shall be deemed to be in
compliance with this Section if Users representing one hundred
percent (100%) of the Aggregate Appraised Value have executed
such revised master lease agreement by the earlier to occur of
(a) the date of issuance of the Issuer's "Series 2002-1 Notes"
and (b) March 31, 2002 (or if such day is not a Business Day,
the next succeeding Business Day).
(c) Section 9.12 of the Management Agreement is hereby amended
to read in its entirety as follows:
Appraisals. By the earlier to occur of (a) the date
of issuance of the Issuer's "Series 2002-1 Notes" and (b)
March 31, 2002 (or if such day is not a Business Day, the next
succeeding Business Day) the Manager shall (at its own
expense) furnish (or cause to be furnished) to the Owner and
to each Entitled Party two (2) additional Appraisals setting
forth the Appraised Value of each Lease Pool as of the date of
such Appraisal. Upon delivery of such additional Appraisals,
the Appraised Value of each Compressor shall be adjusted in
accordance with the provisions set forth in the definition of
the term "Appraised Value."
Thereafter, on the anniversary (or if such day is not
a Business Day, the next succeeding Business Day) of the
earlier to occur of (a) the date of issuance of the Issuer's
"Series 2002-1 Notes" and (b) March 31, 2002 (or if such day
is not a Business Day, the next succeeding Business Day), the
Manager shall (at its own expense) furnish (or cause to be
furnished) to the Owner and to each Entitled Party three (3)
Appraisals setting forth the Appraised Value of each Lease
Pool as of the date of such Appraisal.
(d) Exhibit F of the Management Agreement is hereby deleted
and replaced in its entirety with Exhibit A to this Amendment.
Section 4. Representations and Warranties. Each of the
Manager, UCO and the Issuer hereby confirm that each of the covenants,
representations and warranties set forth in Articles 9 and 18, as applicable, of
the Management Agreement are true and correct as of the date first written above
with the same effect as though each had been made as of such date, except to the
extent that any of such covenants, representations and warranties expressly
relate to earlier dates.
SECTION 5. Effectiveness of Amendment.
(a) This Amendment shall become effective as of the date first
written above.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
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(c) On and after the execution and delivery hereof, (i) this
Amendment shall be a part of the Management Agreement, and (ii) each reference
in the Management Agreement to "this Agreement" or "hereof", "hereunder" or
words of like import, and each reference in any other document to the Management
Agreement shall mean and be a reference to the Management Agreement as amended
or modified hereby.
SECTION 6. Execution in Counterparts. This Amendment may be
executed by the parties hereto in separate counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES; PROVIDED THAT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment on the date first above written.
UNIVERSAL COMPRESSION, INC.
By: /s/ Xxxxxxx X. XxxxXxxxxx
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Name: Xxxxxxx X. XxxxXxxxxx
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Title: Senior Vice President and CFO
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UCO COMPRESSION LLC
By: /s/ Xxxxxxx X. XxxxXxxxxx
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Name: Xxxxxxx X. XxxxXxxxxx
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Title: Senior Vice President and CFO
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BRL UNIVERSAL COMPRESSION
FUNDING I, L.P.
By: BRL Universal Compression Management,
Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: President
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The undersigned hereby consents to the
amendment to the Management Agreement:
VARIABLE FUNDING CAPITAL
CORPORATION, as Requisite Global
Majority
By: First Union Securities, Inc., acting
under the trade name Wachovia Securities,
as attorney-in-fact
By: /s/ Xxxxx X. Xxxxx VP
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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AMENDMENT NO. 5 TO MGT. AGT.
Acknowledged and Agreed:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as indenture trustee
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Assistant Vice President
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AMENDMENT NO. 5 TO MGT. AGT.
