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EXHIBIT 10.11
FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT (this "Amendment"), dated as of September
1, 2000, among UNIVERSAL COMPRESSION HOLDINGS, INC. ("Holdings"), UNIVERSAL
COMPRESSION, INC. (the "Borrower"), various lenders party to the Credit
Agreement referred to below (the "Lenders") and BANKERS TRUST COMPANY, as
Administrative Agent (the "Administrative Agent"). All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, Holdings, the Borrower, Deutsche Bank Securities, Inc., as
Lead Arranger, the Lenders and the Administrative Agent are parties to a Credit
Agreement, dated as of May 30, 2000 (as amended, modified or supplemented to,
but not including, the date hereof, the "Credit Agreement"); and
WHEREAS, Holdings and the Borrower have requested that the Lenders
provide the consents and amendment provided for herein and the undersigned
Lenders have agreed to provide such consents and amendment on the terms and
conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in sub-clause
(vi) of Section 9.02(viii) of the Credit Agreement, the Lenders hereby agree
that the Borrower may acquire (the "GCSI Acquisition") (i) all of the
outstanding capital stock of Gas Compression Services, Inc. ("GCSI") through the
merger of GCSI with and into the Borrower (with the Borrower being the surviving
corporation), (ii) all of the outstanding capital stock of Gas Compression
Finance Corporation ("GCFC"), and (iii) all of the outstanding membership
interests in each of the G.C.S. Distributing L.L.C. ("Distributing") and Gas
Compression Realty, L.L.C. ("Realty" and, together with GCFC and Distributing,
the "GCS Entities"), so long as the purchase price for the GCSI Acquisition
consists of approximately (I) $12,000,000 in cash, (II) $46,000,000 of newly
issued shares of common stock of Holdings, and (III) the refinancing and/or
assumption of $62,000,000 of existing Indebtedness and Operating Leases of GSCI
and the GCS Entities. The Lenders hereby further agree that the GCSI Acquisition
shall constitute a Permitted Section 9.02(viii) Acquisition so long as all of
the other terms and conditions of Section 9.02(viii) of the Credit Agreement, as
well as all of the terms and conditions of the other provisions of the Credit
Agreement (including, but not limited to, Sections 9.01, 9.04 and 9.15 thereof
(in the case of such Sections 9.01 and 9.04, after giving effect to the
designation of the GCSI Acquisition as a Permitted Section 9.02(viii)
Acquisition)), shall, except as provided below in this Section 1, be satisfied
in connection with the GCSI Acquisition. The Lenders hereby also agree that,
notwithstanding anything to the contrary contained in Sections 8.11 and 9.15(a)
of the Credit Agreement, the GCS Entities do not have to comply with the
provisions of such Sections 8.11 and 9.15(a) for a period of no more than 30
days following the consummation of the GCSI
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Acquisition so long as (i) such GCS Entities do not otherwise engage in any new
significant business activities and do not purchase any new significant assets
and (ii) if, by the 30th day following the consummation of the GCSI Acquisition,
any such GCS Entity shall not have merged with and into the Borrower pursuant to
Section 9.02(vi) of the Credit Agreement, the Borrower will cause each such GCS
Entity at such time to take all of the actions otherwise required to be taken by
a new Wholly-Owned Domestic Subsidiary pursuant to such Sections 8.11 and
9.15(a).
2. Holdings, the Borrower and the Lenders hereby agree that (i) the
GCSI Acquisition shall not utilize any portion of the $75,000,000 basket or the
$10,000,000 basket referred to in sub-clause (vi) of Section 9.02(viii) of the
Credit Agreement for the current fiscal year of Holdings, and additional
Permitted Section 9.02(viii) Acquisitions may be consummated in accordance with
the terms of the Credit Agreement for the remainder of the current fiscal year
of Holdings subject to the provisions set forth below in this Section 2, and
(ii) for the fiscal years 2001 and 2002 of Holdings, such $75,000,000 basket and
such $10,000,000 basket referred to in sub-clause (vi) of Section 9.02(viii) of
the Credit Agreement shall be available from (x) in the case of fiscal year
2001, the period commencing on the Amendment Effective Date (as defined below)
through and including June 30, 2001 and (y) in the case of fiscal year 2002, the
period commencing on July 1, 2001 through and including March 31, 2002.
3. Section 11.01 of the Credit Agreement is hereby amended by inserting
the following new text at the end of the definition of "Consolidated EBITDAR"
appearing therein:
"; it being understood and agreed, however, that for purposes of
calculating the Leverage Ratio and the Senior Secured Leverage Ratio under
this Agreement, Consolidated EBITDAR shall be calculated on a pro forma
basis to take into account any Permitted Section 9.02(viii) Acquisition
consummated after the first day of the relevant Test Period (but only to
the extent that the Person or assets so acquired had not been sold during
such Test Period) as if each such Permitted Section 9.02(viii) Acquisition
had been consummated on the first day of such Test Period (and assuming
that any Indebtedness (including Capitalized Lease Obligations) and/or
Operating Lease Obligations incurred, issued or assumed in connection with
each such Permitted Section 9.02(viii) Acquisition had been incurred,
issued or assumed on the first day of such Test Period, and had remained
outstanding through the date of each such Permitted Section 9.02(viii)
Acquisition (and with the methodology to give effect to such pro forma
adjustments being satisfactory to the Administrative Agent).
4. In order to induce the Lenders to enter into this Amendment,
Holdings and the Borrower hereby represent and warrant that (i) no Default or
Event of Default exists on the Amendment Effective Date, both before and after
giving effect to this Amendment, and (y) on the Amendment Effective Date, and
both before and after giving effect to this Amendment, all representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects as though such representations and
warranties were made on the Amendment Effective Date (it being understood and
agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material respects
only as of such date).
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5. This Amendment 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 Credit Agreement or any other Credit Document.
6. This Amendment 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 Borrower and the Administrative Agent.
7. THIS AMENDMENT 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.
8. This Amendment shall become effective on the date (the "Amendment
Effective Date") when Holdings, the Borrower and the Required 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 the Notice Office.
9. From and after the Amendment Effective Date, all references in the
Credit Agreement and each of the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement after giving effect to
this Amendment.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment 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 and as Administrative Agent
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
FIRST UNION NATIONAL BANK
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.
By: /s/ J. XXXXXXX XXXXX, XX.
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Name: J. Xxxxxxx Xxxxx, Xx.
Title: First Vice President
THE BANK OF NOVA SCOTIA
By: /s/ FCH XXXXX
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Name: FCH Xxxxx
Title: Senior Manager Loan Operations
NATIONAL CITY BANK OF KENTUCKY
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK (TEXAS), N.A.
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
WILMINGTON TRUST COMPANY
By:
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Name:
Title:
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