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EXHIBIT 10.5
WAIVER AND AGREEMENT
RE SEPTEMBER FUNDINGS UNDER
UNIVERSAL SYNTHETIC LEASE FACILITY
WAIVER AND AGREEMENT (this "Waiver and Agreement"), dated as of
September 13, 2000, among UNIVERSAL COMPRESSION HOLDINGS, INC. (the
"Guarantor"), UNIVERSAL COMPRESSION, INC. (the "Lessee"), WILMINGTON TRUST
COMPANY, not in its individual capacity, but solely as Trustee of Universal
Compression Trust (2000-1) under the Trust Agreement dated as of May 25, 2000
(the "Lessor"), BANKERS TRUST COMPANY, as Administrative Agent (the
"Administrative Agent") and as Collateral Agent (the "Collateral Agent"), the
financial institutions party to the Participation Agreement (referred to below)
as Certificate Holders (the "Certificate Holders") and the financial
institutions party to the Participation Agreement as Lenders (the "Lenders").
All capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided such terms in Appendix A to the Participation
Agreement referred to below.
WITNESSETH:
WHEREAS, the Guarantor, the Lessee, the Lessor, Wilmington Trust
Company, in its individual capacity, (the "Trust Company"), the Administrative
Agent, the Collateral Agent, the Certificate Holders and the Lenders, among
others, are parties to the Participation Agreement, dated as of May 30, 2000 (as
amended, modified or supplemented to, but not including, the date hereof, the
"Participation Agreement"); and
WHEREAS, the Lessee has requested that the Lessor, the Lenders and the
Certificate Holders provide the waivers set forth herein and the Lessor and the
undersigned Lenders and Certificate Holders have agreed to provide such waivers
on the terms and conditions and in consideration of the covenants by the Lessee
set forth herein;
NOW, THEREFORE, it is agreed:
1. With respect to a proposed funding under the Participation Agreement
on September 15, 2000, or such later date in September 2000 as may be agreed by
the Administrative Agent and the Lessee (the "First Proposed Funding" and the
date of such funding, the "First Proposed Funding Date"), the Majority Lenders
and Majority Certificate Holders parties hereto agree, subject to satisfaction
of all of the conditions set forth in Section 2 hereof, as follows:
(a) the condition precedent that the Lessee deliver on or
before September 7, 2000 a Certificate of Equipment pursuant to Section
3.1(b)(v) of the Participation Agreement is hereby waived;
(b) the condition precedent that the Lessee deliver on or
before September 12, 2000 a Funding Notice pursuant to Section 3.1(b)(x) of the
Participation Agreement is hereby waived;
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(c) the condition precedent that the Administrative Agent and
Lessor shall have received prior to the First Proposed Funding Date lien
searches pursuant to Section 3.1(b)(xv) of the Participation Agreement is hereby
waived; and
(d) the requirement that fundings under the Participation
Agreement shall take place on the 30th of each calendar month is hereby waived.
2. Each of the waivers set forth in Section 1 hereof shall be
subject to satisfaction of each of the following conditions:
(a) the Lessee shall have delivered on September 13, 2000 a
Certificate of Equipment that, but for the date of delivery, satisfies the
requirements of Section 3.1(b)(v) of the Participation Agreement;
(b) the Lessee shall have delivered on September 14, 2000 a
Funding Notice that, but for the date of delivery, satisfies the requirements of
Section 3.1(b)(x) of the Participation Agreement and includes wire instructions
instructing the Collateral Agent to wire transfer the amounts to be advanced by
the Certificate Holders and Lenders to the secured lenders the ("GCSI Lenders")
of Gas Compression Services, Inc. ("GCSI") and other related persons identified
on Schedule 1 hereto;
(c) the Lessee shall have delivered on September 13, 2000 a
copy of the agreement by which the Lessee has agreed to acquire GCSI and written
confirmations from each of the GCSI Lenders (other than the Industrial Revenue
Bonds and the Bank One line of credit) of the amounts required to pay off and
discharge all of the amounts owed by GCSI to such GCSI Lender upon the closing
of the Lessee's acquisition of GCSI, each such agreement and letter certified as
true and correct by Lessee; and
(d) the Lessee shall have completed its acquisition of GCSI
concurrently with the First Proposed Funding.
3. The Lessee shall deliver on or before October 13, 2000 (a) lien
searches that satisfy, but for the date of delivery, the requirements of Section
3.1(b)(xv) of the Participation Agreement with respect to the Subject Items and
(b) lien searches in the name of GCSI that satisfy, but for the date of delivery
and the name of the party searched, the requirements of Section 3.1(b)(xv) of
the Participation Agreement with respect to each jurisdiction in which GCSI or
any Subject Item is located.
4. The Lessee shall cause any Lien of any GCSI Lender on any Subject
Item to be discharged or released on or at the time of the First Proposed
Funding.
5. Notwithstanding any provision in the Operative Documents to the
contrary but subject to the requirements of Section 4 hereof, the Lessee agrees
to cause any Lien on any Subject Item that is not a Permitted Lien to be
released within ten Business Days of the Lessee's receipt of written notice
thereof.
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6. The parties hereto agree that if the First Proposed Funding occurs
on a date other than September 29, 2000, the first LIBOR Lease Payment Period
for the Subject Items shall, at the option of the Administrative Agent,
terminate on September 29, 2000 or the last LIBOR Banking Day of October 2000.
7. With respect to a proposed funding under the Participation Agreement
on September 29, 2000 (the "Second Proposed Funding"), the parties hereto agree
that, provided all of the conditions precedent under the Participation Agreement
have been satisfied for such funding, such funding may occur on September 29,
2000, notwithstanding the occurrence of the First Proposed Funding.
8. Lessee agrees that any failure to comply with the covenants set
forth in Sections 3, 4 or 5 herein shall constitute a Lease Event of Default.
9. This Waiver and Agreement is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision (or of
any provision beyond the specific waivers granted herein with respect to such
provision) of the Participation Agreement or any other Operative Document or
with respect to any fundings other than the First Proposed Funding or the Second
Proposed Funding.
10. The Trust Company is signing this Waiver and Agreement solely in
its capacity as Trustee under the Trust Agreement on behalf of the Lessor and
not in its individual capacity and in no case shall Trust Company (or any entity
acting as successor Trustee under the Trust Agreement) be personally liable for
or on account of any to the statements, representations, warranties, covenants
or obligations stated to be those of Lessor hereunder; provided, however, that
Trust Company (or any such successor Trustee) shall be personally liable
hereunder for any claims or liabilities resulting from or arising out of the
matters expressly set forth in Section 12.15 of the Participation Agreement
11. This Waiver and Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be delivered to the Lessee and the Administrative Agent.
12. THIS WAIVER AND AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
13. This Waiver and Agreement shall become effective on the date (the
"Waiver Effective Date") when Guarantor, the Lessee, the Lessor, the Majority
Certificate Holders and the Majority Lenders shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(including by way of facsimile transmission) the same to the Administrative
Agent at its notice office.
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14. Each of the undersigned Certificate Holders hereby instructs the
Lessor to execute and deliver this Amendment.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Waiver and Agreement to be duly executed and delivered as of the date
first above written.
UNIVERSAL COMPRESSION HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. XxxxXxxxxx
Title: Senior Vice President and Chief Financial
Officer
UNIVERSAL COMPRESSION, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. XxxxXxxxxx
Title: Senior Vice President and Chief Financial
Officer
BANKERS TRUST COMPANY,
Individually as a Lender, as Administrative
Agent, and as Collateral Agent
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
FIRST UNION NATIONAL BANK,
as a Lender and as a Certificate Holder
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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BANK ONE, N.A.,
as a Lender
By: /s/ J. XXXXXXX XXXXX, XX.
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Name: J. Xxxxxxx Xxxxx, Xx.
Title: First Vice President
BANK OF NOVA SCOTIA,
as a Lender
By: /s/ FCH XXXXX
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Name: FCH Xxxxx
Title: Senior Manager Loan Operations
XXXXX FARGO,
as a Lender
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
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DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Certificate Holder
By: /s/ XXXXXX X. XXXXXXXXX, XX.
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Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Director
By: /s/ XXXXXXX X. X'XXXXXXXX
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Name: Xxxxxxx X. X'Xxxxxxxx
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as
Trustee of Universal Compression Trust (2000-1)
under the Trust Agreement dated as of May 25,
2000, as Lessor
By: /s/ XXXXXX X. XXXXX, XX.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Financial Services Officer
