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$34	Preview Subscribers	2001	Certificate of Designations Certificate of Designations (28K) Doc #116770: Click preview link for longer preview. CERTIFICATE OF DESIGNATION, PREFERENCES AND OTHER RIGHTS OF SERIES A AND SERIES B PREFERRED STOCK OF WESTERN POWER & EQUIPMENT CORP. The undersigned, duly authorized officers of Western Power & Equipment Corp., a Delaware corporation (the "Corporation"), do hereby certify: 1. The Certificate of Incorporation of the Corporation, provides the following: (A) authorization for the issuance of Ten Million (10,000,000) shares of Preferred Stock with a par value of $.01 each, and (B) the authorization of the Board of Directors to cause the issuance, from time to time, of preferred shares in one or more series. The Board of Directors is expressly vested with the right: "to provide for the issuance of Preferred Stock and in connection therewith to fix by resolution providing for the issue of such series, the number of shares to be included and such of the preferences and relative participating, optional or other special rights and limitations of such series, including, without limitation, rights of redemption or conversion into Common Stock to the fullest extent now or hereafter permitted by the Delaware General Corporation Law." 2. The Board of Directors of the Corporation, pursuant to the authorization of the Board of Directors expressly vested in it as aforesaid, on May __, 2001 adopted the following resolution: RESOLVED, that 1,000,000 of the Corporation's authorized shares of Preferred Stock, shall be designated "Series A Preferred Stock", par value $.01 per share, and shall have the rights, designation and preferences set forth in the Certificate of Designation which is annexed hereto as Exhibit "A", the form and the terms of which are hereby approved. 3. The Board of Directors of the Corporation, pursuant to the authorization of the Board of Directors expressly vested in it as aforesaid, on May __, 2001 adopted the following resolution: RESOLVED, that 2,500,000 of the Corporation's authorized shares of Preferred Stock, shall be designated "Series B Preferred Stock", par value $.01 per share, and shall have the rights, designation and preferences set forth in the Certificate of Designation which is annexed hereto as Exhibit "A", the form and the terms of 116770	WP&E Western Power & Equipment Corp. ( Agricultural Machinery ) As referenced in this Certificate of Designations: WESTERN POWER – OF DESIGNATION, PREFERENCES AND OTHER RIGHTS OF SERIES A AND SERIES B PREFERRED STOCK OF WESTERN POWER & EQUIPMENT CORP. The undersigned, duly authorized officers of Western Power & Equipment Corp., a Delaware Western Power – SERIES B PREFERRED STOCK OF WESTERN POWER & EQUIPMENT CORP. The undersigned, duly authorized officers of Western Power & Equipment Corp., a Delaware corporation (the "Corporation"), do hereby certify: 1. The Certificate of Western Power – A", the form and the terms of {PAGE} which are hereby approved. IN WITNESS WHEREOF, Western Power & Equipment Corp. has caused this Certificate to be signed by C. Dean McLain, its WESTERN POWER – President and Mark J. Wright, its Secretary, this ___ day of May __ 2001. Attest: WESTERN POWER & EQUIPMENT CORP. ____________________________ By:___________________________________ Mark J. Wright C. Dean McLain Secretary President (SEAL) Western Power – of Designation, Preferences and Other Rights of Series A and Series B Preferred Stock of Western Power & Equipment Corp. (the "Certificate of Designation") or required by law, the holders of shares dt 28514
$63	Preview Subscribers	2003	Asset and Business Purchase Agreement Asset and Business Purchase Agreement (190K) Doc #131291: Click preview link for longer preview. ASSET AND BUSINESS PURCHASE AGREEMENT AGREEMENT, dated January 29, 2003, between CDKnet.com, Inc. ("Buyer's Parent"), GCS Western Power & Equipment Corp., a Delaware corporation ("Buyer"), Western Power & Equipment Corp, a Delaware corporation ("Seller's Parent") and Western Power & Equipment Corp., an Oregon corporation ("Seller"). WHEREAS, Buyer is a wholly owned subsidiary of Buyer's Parent; WHEREAS, Seller is a wholly owned subsidiary of Seller's Parent; WHEREAS, Seller conducts certain business operations involving the sale, rental and servicing of construction, and industrial equipment and parts; WHEREAS, Buyer desires to purchase from Seller substantially all of the assets and operations of Seller conducted at showrooms, warehouses and offices in California and Nevada (the "Business") and is willing to assume certain liabilities and obligations in respect thereof which are specifically identified in this Agreement; and WHEREAS, Seller wishes to sell substantially all of the assets and the operations of the Business to Buyer, and transfer certain liabilities and obligations of Seller as specifically identified herein, all upon the terms and subject to the conditions hereinafter set forth; NOW, THEREFORE, in consideration of the premises and the mutual covenants, representations, warranties and agreements contained herein, the parties hereby agree as follows: 1. PURCHASE AND SALE. ----------------- 1.1 Purchase and Sale of the Business Assets. ---------------------------------------- On the terms and subject to the conditions herein set forth, at the Closing (as defined in Section 2.3 hereof), Seller agrees to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees to purchase from Seller and accept delivery of, all of Seller's right, title and interest in and to the assets of the Business set forth on Schedule 1.1, which is attached hereto and made a part of this Agreement, and the following tangible, intangible, real, personal and mixed assets, properties and rights of every kind and description, wherever located, which constitute or are used by Seller in connection with the Business, other than the Excluded Assets (as defined in Section 1.2 hereof), all as the same shall exist on the Closing Date (collectively the "Assets"): (a) all security deposits, prepaid items, unbilled costs and fees in connection with the Business, of a type that was or should have been included in a balance sheet if it had been audited, and works in process other than those, if any, specifically identified as an Excluded Asset herein; {PAGE} (b) all merchandise, materials, whole goods, finished goods, component materials now owned or hereafter acquired and held for sale or lease or which contribute to finished products, stationery, purchase orders and other forms, labels, catalogs, brochures, art work, photographs and advertising material, wherever located, which are used or held for use or sale by the Business (collectively, "Inventory") except as expressly disclosed in Section 3.10 of the Disclosure Schedule as being owned by a third party; (c) all furniture, fixtures, leasehold improvements (except to the extent such leasehold improvements are, pursuant to the terms of the relevant Lease (as defined in Section 3.11 or 3.14 below) the property of the lessor thereunder), machinery, equipment, computer hardware and software and office equipment owned or leased by Seller located at or provided to the Business, or otherwise identified in the disclosure schedule attached hereto and made a part hereof (the "Disclosure Schedule") (the "Equipment"); (d) Seller's interest in and to all telephone, telecopier, electronic mail (but only to the extent such address is independent of addresses associated with Seller's Parent, defined below), internet address (but only to the extent such address is independent of addresses associated with Seller's Parent, defined below) and telex (if any) numbers and telephone and other directory listings utilized in connection with the Business to the extent assignable; (e) except as set forth on Schedule 1.2(m), any and all formulae, trade secrets, patents, trademarks, trade names, inventions, computer software, technology, proprietary know-how, art work, designs, processes and other intellectual property now used by Seller in connection with the Business, (collectively, "Intellectual Property"); (f) except as set forth on Schedule 1.2(n), to the extent assignable, all franchises, permits and licenses, registration, certificate of occupancy, contracts, agreements and commitments, customer lists, restrictive covenants, confidentiality obligations and similar obligations of present and former shareholders, officers and employees of Seller, and any of their predecessors; (g) all rights or choses in action arising out of occurrences before or after the Closing, including without limitation all rights under express or implied warranties relating to the Assets; (h) all assets and properties reflected on the Closing Balance Sheet as defined in Section 2.5; and 131291	WP&E Western Power & Equipment Corp. ( Agricultural Machinery ) As referenced in this Asset and Business Purchase Agreement: Western Power – PURCHASE AGREEMENT AGREEMENT, dated January 29, 2003, between CDKnet.com, Inc. ("Buyer's Parent"), GCS Western Power & Equipment Corp., a Delaware corporation ("Buyer"), Western Power & Equipment Corp, a Delaware corporation ("Seller' Western Power – CDKnet.com, Inc. ("Buyer's Parent"), GCS Western Power & Equipment Corp., a Delaware corporation ("Buyer"), Western Power & Equipment Corp, a Delaware corporation ("Seller's Parent") and Western Power & Equipment Corp., an Western Power – a Delaware corporation ("Buyer"), Western Power & Equipment Corp, a Delaware corporation ("Seller's Parent") and Western Power & Equipment Corp., an Oregon corporation ("Seller"). WHEREAS, Buyer is a wholly owned subsidiary of Western Power – to the sender by the recipient, as follows: If to Seller/or Seller's Parent: Western Power & Equipment Corp. 6407-B N.E. 117th Avenue Vancouver, WA 98662 Telecopier No.: (360) WESTERN POWER – this Agreement to be duly executed as of the day and year first above written. WESTERN POWER & EQUIPMENT CORP. (Oregon) By: /s/ Dean McLain ------------------------------------ Name: Dean McLain Title: President and CEO dt 28515 ;	Cdknet com Inc
$76	Preview Subscribers	2003	Master Agreement Purchase of Assets and Business Master Agreement Purchase of Assets and Business (154K) Doc #152437: Click preview link for longer preview. MASTER AGREEMENT PURCHASE OF ASSETS AND BUSINESS BY AND BETWEEN VALTRA OY AB TRACFIN HOLDING OY PARTEK CARGOTEC HOLDING NETHERLANDS B.V. PARTEK HOLDING INC. AND AGCO CORPORATION 10 SEPTEMBER 2003 Hannes Snellman {PAGE} 2(45) TABLE OF CONTENTS {TABLE} {S} {C} 1. DEFINITIONS.......................................................................................................8 2. SALE AND PURCHASE................................................................................................12 2.1 PURCHASE AND SALE OF THE TARGET ASSETS.....................................................................12 2.2 IMPLEMENTATION OF THE TRANSACTION..........................................................................12 2.3 AGREEMENTS INTEGRATED......................................................................................12 2.4 SELLERS' REPRESENTATIVE....................................................................................12 3. THE TARGET ASSETS AND LIABILITIES................................................................................13 3.1 TARGET ASSETS..............................................................................................13 3.2 STOCK-TAKING...............................................................................................14 3.3 EXCLUDED ASSETS............................................................................................14 3.4 TRANSFER OF TITLE AND POSSESSION...........................................................................14 3.5 LIABILITIES ASSUMED AND EXCLUDED LIABILITIES...............................................................15 3.6 TRANSFER OF RISK...........................................................................................15 4. PURCHASE PRICE...................................................................................................15 4.1 PURCHASE PRICE.............................................................................................15 4.2 PURCHASE PRICE ALLOCATION..................................................................................15 4.3 COMPLETION STATEMENT.......................................................................................16 4.4 VERIFICATION OF COMPLETION STATEMENT.......................................................................16 4.5 INDEPENDENT AUDITOR........................................................................................16 4.6 TRANSFER TAXES.............................................................................................17 4.7 VALUE ADDED TAX............................................................................................17 5. PAYMENT OF THE PURCHASE PRICE....................................................................................17 5.1 PURCHASE PRICE.............................................................................................17 5.2 ADJUSTMENT AMOUNT..........................................................................................17 5.3 NO SET OFF BY BUYER........................................................................................18 6. DUE DILIGENCE REVIEW.............................................................................................18 7. REPRESENTATIONS AND WARRANTIES OF THE SELLERS....................................................................18 7.1 QUALIFICATIONS.............................................................................................18 7.2 REPRESENTATIONS AND WARRANTIES.............................................................................19 7.2.1 Organisation.........................................................................................19 7.2.2 Title and Authority to Transfer the Target Assets....................................................19 7.2.3 Capitalisation.......................................................................................20 7.2.4 Title To and Condition of Assets.....................................................................20 7.2.5 Sufficient Assets....................................................................................20 7.2.6 Consolidated Accounts................................................................................20 7.2.7 Receivables..........................................................................................21 7.2.8 Taxes................................................................................................21 7.2.9 Litigation...........................................................................................22 7.2.10 Real Property........................................................................................22 7.2.11 Permits..............................................................................................22 7.2.12 Environmental Matters................................................................................22 7.2.13 Intellectual Property................................................................................23 7.2.14 Data Processing......................................................................................23 {/TABLE} {PAGE} 3(45) {TABLE} {S} {C} 7.2.15 Product Liability....................................................................................23 7.2.16 Insurance............................................................................................24 7.2.17 Material Contracts...................................................................................24 7.2.18 Agreements with Related Parties......................................................................24 7.2.19 Employee Matters.....................................................................................25 7.2.20 Business Until Signing...............................................................................25 7.2.21 Compliance With Laws.................................................................................25 7.2.22 Information..........................................................................................26 7.3 NO OTHER REPRESENTATIONS AND WARRANTIES....................................................................26 8. COMPLETION.......................................................................................................26 8.1 COMPLETION DATE, LONG STOP DATE AND BREAK-UP FEE...........................................................26 8.2 CONDITIONS PRECEDENT.......................................................................................27 8.3 DELIVERIES AT COMPLETION...................................................................................28 8.4 BEST EFFORTS TO COMPLETE...................................................................................29 8.5 VALTRA TRAKTOR AB (SWEDEN).................................................................................30 9. INDEMNITY........................................................................................................31 9.1 LIABILITY OF THE SELLERS...................................................................................31 9.2 LIMITATIONS................................................................................................31 9.3 CERTAIN INDEMNIFICATIONS...................................................................................33 9.4 THIRD PARTY CLAIMS.........................................................................................34 9.5 RECOVERY...................................................................................................35 9.6 LITIGATION IN BRAZIL.......................................................................................35 10. REPRESENTATIONS AND WARRANTIES OF THE BUYER...................................................................35 10.1 ORGANISATION...............................................................................................35 10.2 POWER AND AUTHORITY OF BUYER...............................................................................35 10.3 SUFFICIENT FINANCING.......................................................................................35 10.4 NO BREACH BY SELLERS.......................................................................................36 11. COVENANTS.....................................................................................................36 11.1 BUSINESS UNTIL COMPLETION..................................................................................36 11.2 NON-COMPETITION, NON-SOLICITATION..........................................................................37 11.3 CONFIDENTIALITY............................................................................................38 11.4 UNENFORCEABILITY...........................................................................................38 11.5 CONTINUED SERVICES.........................................................................................38 11.6 CONTRACT ARRANGEMENTS......................................................................................39 12. CERTAIN UNDERTAKINGS..........................................................................................39 12.1 REVIEW OF THE TARGET BUSINESS..............................................................................39 12.2 TRANSACTION COSTS..........................................................................................40 12.3 CO-OPERATION UNDERTAKING...................................................................................40 12.4 COMPETITION FILING.........................................................................................40 12.5 BANK ACCOUNTS..............................................................................................40 12.6 NO CLAIMS AGAINST KEY EMPLOYEES............................................................................40 12.7 HISTORICAL FINANCIAL STATEMENTS............................................................................40 12.8 FURTHER ASSURANCES.........................................................................................41 13. EMPLOYEES.....................................................................................................41 13.1 TRANSFER OF EMPLOYEES......................................................................................41 13.2 ACCRUED LIABILITIES........................................................................................41 {/TABLE} {PAGE} 4(45) {TABLE} {S} {C} 14. ORDERS AND TENDERS............................................................................................41 15. FORCE MAJEURE.................................................................................................42 16. MISCELLANEOUS.................................................................................................42 16.1 NOTICES....................................................................................................42 16.2 APPENDICES INCORPORATED....................................................................................42 16.3 HEADINGS...................................................................................................43 16.4 ASSIGNMENT.................................................................................................43 16.5 PARENT COMPANY RESPONSIBILITY..............................................................................43 16.6 ENTIRE AGREEMENT...........................................................................................43 16.7 INTERPRETATION.............................................................................................43 16.8 NO WAIVER..................................................................................................44 16.9 GOVERNING LAW..............................................................................................44 16.10 SETTLEMENT IN GOOD FAITH................................................................................44 16.11 DISPUTE RESOLUTION......................................................................................44 16.12 AMENDMENTS..............................................................................................44 16.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES..............................................................44 16.14 PROVISIONS SEVERABLE....................................................................................45 16.15 PUBLICITY...............................................................................................45 16.16 COUNTERPARTS OF THE AGREEMENT...........................................................................45 {/TABLE} {PAGE} 5(45) LIST OF APPENDICES APPENDIX 1.1 Accounting principles 1.2 Accounts of the Business Sellers and the Subsidiaries dated 31 December 2002 1.13 Calculation of the Completion Accounts Value 1.19 Consolidated Accounts of the Business Sellers and the Subsidiaries dated 31 December 2002 1.20 Consolidated Interim Accounts of the Business Sellers and the Subsidiaries dated 30 June 2003 1.21 List of Subsidiaries directly held by the Sellers 1.47 List of the direct and indirect subsidiaries of the Sellers 1.50 List of the business conducted by the Business Sellers and the Subsidiaries 2.2(i)-(iii) The Completion Agreements (i) the Real Property Agreements (ii) the Share Purchase Agreements (iii) the Asset Purchase Agreements 3.1(a) List of real property owned by the Business Sellers 3.1(b) List of shares and participations owned by the Sellers 3.1(c)(ii) List of intellectual property rights owned by either of the Business Sellers on the Completion Date. 3.2 Stock-taking procedure particulars 3.3 List of excluded assets 3.5 Excluded Liabilities 4.2 Purchase Price Allocation 7.2.1 Copies of the articles of association and the trade register entries of the Sellers and the Subsidiaries 7.2.2 (b) Direct Subsidiaries, exceptions 7.2.2 (f) List of certain approvals 7.2.3 Capitalisation 7.2.6 Certain subsidiaries 7.2.9 Litigation 7.2.11 Permits 7.2.12 Exceptions from Environmental Permits 7.2.13 List of intellectual property rights owned by the Business Sellers and the Subsidiaries 7.2.14 Data Processing, exceptions 7.2.15 List of product liability claims filed against the Business Sellers 7.2.17 List of Material Contracts 7.2.18 List of agreements with Related Parties 7.2.19 (a) List of Key Employees {PAGE} 6(45) 7.2.19 (b) Key Employee bonus arrangements 7.2.19 (c) Deferred compensation arrangements etc. 7.2.19 (d) Notices or claims regarding non-compliance with any employment, labour or related laws 9.3 (b) Valtra do Brazil Dispute 13.1 List of Employees of the Business Sellers transferring to the Buyer {PAGE} 7(45) MASTER AGREEMENT This Master Agreement on Purchase of Assets and Business, has been entered into on September 10, 2003, by and between (i) Valtra Oy Ab, a company organised and existing under the laws of Finland (the "SELLER"); (ii) Tracfin Holding Oy, a company organised and existing under the laws of Finland (the "SUBSIDIARY BUSINESS SELLER"); (iii) Partek Cargotec Holding Netherlands B.V., a company organised and existing under the laws of the Netherlands ("PARTEK CARGOTEC"); (iv) Partek Holding Inc., a company organised and existing under the laws of the State of Nevada (the "US SELLER"); (v) AGCO Corporation, a company organised and existing under the laws of the State of Delaware, (the "BUYER"); and (vi) KONE Corporation, a public listed company organised and existing under the laws of Finland (the "GUARANTOR"); (each a "PARTY"; collectively the "PARTIES"; the Parties set out in items (i) to (iv) the "SELLERS"; the Seller and the Subsidiary Business Seller collectively the "BUSINESS SELLERS" the Parties set out in items (iii) to (iv) the "SHARE SELLERS") WITNESSETH: WHEREAS, the Business Sellers and the Subsidiaries are engaged in, inter alia, the production, exportation, importation, distribution, sale and service of agricultural tractors and engines for agricultural tractors world-wide. WHEREAS, the Sellers own all of the assets of the Guarantor's group of companies engaged in the production, exportation, importation, distribution, sale and service of agricultural tractors and agricultural tractor engines and forming the Target Assets and Target Business. WHEREAS, the US Seller owns all of the issued and outstanding shares in Valtra USA, Inc., a company organised and existing under the laws of the State of Illinois (the "US SUBSIDIARY"). WHEREAS, the Seller, Partek Cargotec and the US Seller own directly or indirectly all of the issued and outstanding shares in the Subsidiaries (as defined below). WHEREAS, the Guarantor is the ultimate parent company of the Sellers and in that capacity shall, procure the due performance of all the obligations of the Sellers under this Agreement. {PAGE} 8(45) WHEREAS, the Buyer, desires to purchase and acquire the Target Assets and the Target Business, and the Sellers wish to sell such Target Assets and Target Business to the Buyer for the consideration and upon the terms and subject to the conditions set out in this Agreement. NOW, THEREFORE, the following is agreed: 1. DEFINITIONS In this Agreement, unless expressly otherwise stated or provided, or unless the context otherwise requires, the following terms shall have the following meaning, the singular (where appropriate) shall include the plural and vice versa and references to Appendices and Sections shall mean Appendices and Sections of this Agreement. {TABLE} {S} {C} {C} 1.1 "ACCOUNTING PRINCIPLES" shall mean the accounting principles set out in Appendix 1.1. 1.2 "ACCOUNTS" shall mean the audited or reviewed profit and loss statement and balance sheet of each of the Business Sellers and the Subsidiaries for the year ended 31 December 2002, including the notes thereto, as well as the auditors' statutory reports related thereto, attached hereto as Appendix 1.2. 1.3 "ADJUSTMENT AMOUNT" shall have the meaning set out in Section 4.1. 1.4 "THIS AGREEMENT" shall mean this Master Agreement on Purchase of Assets and Business and the Appendices and Enclosures hereto. 1.5 "ASSET PURCHASE AGREEMENT" shall mean the agreement regarding the sale and purchase of the Business Assets to be entered into between the Seller and Subsidiary Business Seller respectively and the Buyer as set out in Section 2.2. 1.6 "BUSINESS ASSETS" shall have the meaning set out in Section 3.1 (c). 1.7 "BUSINESS SELLERS" shall have the meaning set out in the introductory paragraph. 1.8 "BUYER" shall have the meaning set out in the introductory paragraph. 1.9 "BUYER AFFILIATE" shall mean any other entity directly or indirectly controlling, controlled by, or under direct or indirect control of the Buyer. 1.10 "BUYER'S AUDITORS" shall mean KPMG. 1.11 "BUYER'S KNOWLEDGE" shall mean the actual knowledge of Messrs. Robert Ratliff, Stephen Lupton and the financial and legal advisors of the Buyer engaged in the Transaction. 1.12 "COMPLETION" shall mean the completion of the transactions contemplated by this Agreement as set out in Section 8. 152437	AGCO AGCO Corp. ( Agricultural Machinery ) ; Valtra Oy Ab; Tracfin Holding Oy;	Partek Cargotec Holding Netherlands B.V.; Partek Holding Inc.
$56	Preview Subscribers	2003	Fairness Opinion Presentation Fairness Opinion Presentation (68K) Doc #167053: Click preview link for longer preview. *Lexent Inc.* Summary of Analysis TRANSACTION VALUATION Proposed transaction price $ 1.50 Shares outstanding (a) 42,690 Equity value $ 64,036 Plus net debt assumed $ (79,748 ) . . . 167053	AES AES Corp. ( Electric Utilities ) As referenced in this Fairness Opinion Presentation: AES Corp – 10/01 NS Power Hldg Inc Bangor Hydro-Electric Co 26.81 15.00 15.25 15.13 78.7 % 75.8 % 77.3 % 07/17/00 03/27/01 AES Corp IPALCO Enterprises Inc 25.00 21.50 21.38 19.94 16.3 % 17.0 % 25.4 % 07/24/00 05/31/01 Deutsche Telekom AG VoiceStream Wireless Corp _____________ dt 1345678 ; Cendant Cendant Corp. ( Hotels & Motels ) As referenced in this Fairness Opinion Presentation: Cendant Corp – Corp Azurix Corp 8.38 3.56 3.56 3.58 135.2 % 135.2 % 134.2 % 11/03/00 04/02/01 Cendant Corp Fairfield Communities Inc 16.00 13.94 12.50 10.56 14.8 % 28.0 % 51.5 % 02/12/01 08/01/ _____________ dt 278042 ; Cincinnati Bell Cincinnati Bell Inc. ( Communications Services ) As referenced in this Fairness Opinion Presentation: Cincinnati Bell Inc – CommNet Cellular Inc 31.00 30.25 32.06 21.43 2.5 % -3.3 % 44.7 % 07/21/99 11/09/99 Cincinnati Bell Inc IXC Communications Inc 49.43 36.25 37.31 42.00 36.4 % 32.5 % 17.7 % 08/13/99 09/22/ _____________ dt 275739 ;	Enron Enron Corp. ( Natural Gas Utilities ) As referenced in this Fairness Opinion Presentation: Enron Corp – 12/31/00 Technical Olympic USA Inc Engle Homes Inc 19.10 15.75 15.63 15.75 21.3 % 22.2 % 21.3 % 10/27/00 03/16/01 Enron Corp Azurix Corp 8.38 3.56 3.56 3.58 135.2 % 135.2 % 134.2 % 11/03/00 04/02/01 Cendant Corp Fairfield Communities Inc 16.00 _____________ Enron Corp – 25/00 07/31/01 Investor Group Uno Restaurant Corp 9.75 7.31 6.06 6.81 33.3 % 60.8 % 43.1 % 10/27/00 03/16/01 Enron Corp Azurix Corp 8.38 3.56 3.56 3.58 135.2 % 135.2 % 134.2 % 11/10/00 01/31/01 HCH Acquisition Corp Holts Cigar Holding Inc _____________ dt 1336269 ; Forrester Forrester Research, Inc. ( Business Services ) As referenced in this Fairness Opinion Presentation: Forrester Research Inc – Numerical Technologies Inc 7.00 3.70 3.70 3.10 89.2 % 89.2 % 125.8 % 01/21/03 03/03/03 Forrester Research Inc Giga Information Group Inc 4.75 1.56 1.73 1.55 204.5 % 174.6 % 206.5 % 04/16/03 05/ _____________ dt 269091 ; More...
$63	Preview Subscribers	2003	Management Agreement Management Agreement (112K) Doc #244280: Click preview link for longer preview. Universal Compression Holdings Inc EX-10.5 9 a2102348zex-10_5.htm EXHIBIT 10.5 QuickLinks -- Click here to rapidly navigate through this document EXHIBIT 10.5 MANAGEMENT AGREEMENT AMONG UNIVERSAL COMPRESSION, INC., AS MANAGER, UCO COMPRESSION 2002 LLC, AS AN OWNER AND BRL UNIVERSAL COMPRESSION FUNDING I 2002, L.P., AS AN OWNER DECEMBER 31, 2002 ALL RIGHT, TITLE AND INTEREST IN AND TO THIS AGREEMENT ON THE PART OF UCO COMPRESSION 2002 LLC AND BRL UNIVERSAL COMPRESSION FUNDING I 2002, L.P. HAVE BEEN ASSIGNED TO AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, UNDER AN INDENTURE, DATED AS OF DECEMBER 31, 2002, FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN. EXHIBITS Exhibit A Form of Manager Report Exhibit B [Reserved] Exhibit C Credit and Collection Policies Exhibit D Form of Officer's Certificate (pursuant to Section 404 of Indenture) Exhibit E Form of Asset Base Certificate MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT, dated as of December 31, 2002 (as amended, modified or supplemented from time to time in accordance with the terms hereof, this "*Agreement") is entered into among UCO COMPRESSION 2002 LLC, a limited liability company formed under the laws of the State of Delaware whose principal office is at 4444 Brittmoore Road, Houston, Texas (together with its successors and permitted assigns, the "Head Lessee" or an "Owner"), BRL UNIVERSAL COMPRESSION FUNDING I 2002, L.P., a limited partnership organized under the laws of the State of Delaware (together with its successors and assigns, the "Head Lessor" or an "Owner"; collectively with the Head Lessee, the "Owners") and UNIVERSAL COMPRESSION, INC., a corporation organized under the laws of the State of Texas whose principal office is at 4444 Brittmoore Road, Houston, Texas (together with its successors and permitted assigns, "UCI"), as the initial Manager hereunder (in such capacity, together with any Replacement Manager appointed hereunder (including, upon the occurrence of the Management Replacement Date under and as defined in the Back-up Management Agreement, the Back-up Manager), the "Manager"). RECITALS* WHEREAS, the Owners are the owners of, or otherwise entitled to the use of, the Owner Compressors; WHEREAS, the Manager is in the business of leasing Compressors to various Users thereof; WHEREAS, the Head Lessor has leased all of its Compressors to the Head Lessee pursuant to that certain Master Equipment Lease Agreement between Head Lessor and Head Lessee, dated as of December 31, 2002 (as amended, modified or supplemented from time to time in accordance with its terms, the "*Head Lease"); WHEREAS, the Head Lessee (and, to the extent any Compressors are returned to Head Lessor, the Head Lessor) and the Manager desire to enter into this Agreement pursuant to which the Manager will operate and sublease the Owner Compressors to Users on behalf of the Owners; NOW, THEREFORE, in consideration of the premises and mutual representations, warranties, covenants and agreements contained herein, the parties hereto hereby agree as follows: 1. DEFINITIONS Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings assigned to such terms in Appendix A to the Indenture, dated as of December 31, 2002 (as amended, modified or supplemented from time to time in accordance with its terms, the "Indenture"), between the Issuer and Wells Fargo Bank Minnesota, National Association, as indenture trustee (together with its successors and assigns, the "Indenture Trustee"), as such Appendix A may be amended, supplemented or otherwise modified from time to time in accordance with the provisions of the Indenture, and the rules of usage set forth in such Appendix A shall apply to this Agreement. 2. APPOINTMENT OF THE MANAGER 2.1. Appointment. Upon the terms and conditions hereinafter provided, the Owners hereby appoint UCI as the initial Manager of the Owner Compressors. The Manager shall be responsible for the operation, leasing and managing of the Owner Compressors on behalf of each Owner. UCI, as initial Manager, and each other Person as may from time to time become Manager hereunder, hereby accepts such appointment and agrees to so manage the Owner Compressors in accordance with this Agreement. 2.2. Standard of Performance. In performing its obligations hereunder (including UCI's obligations (x) to identify Collections that are allocable to the Securitization Collateral and (y) to perform its obligations under the Intercreditor Agreement), the Manager shall use such efforts which are in accordance with the Services Standard. The duties of the Manager will be limited to those expressly set forth in this Agreement and the Related Documents and the Manager will not have any fiduciary or other implied duties or obligations to the Owners or any of their assignees. 2.3. Conflicts of Interest. The Manager shall perform its duties and obligations under this Agreement on a fair and equitable basis. Without prejudice to the generality of the foregoing, the Manager will not discriminate between the Owner Compressors and any Other UCI Compressor (or, in the case of any Manager other than UCI or an Affiliate of UCI, any other equipment of a type similar to the Compressors that is owned, leased or managed by such Manager for its own account) on any basis which could reasonably be considered discriminatory or adverse. 2.4. Similar Services. It is expressly understood and agreed that nothing herein shall be construed to prevent, prohibit or restrict the Manager or any Affiliate of the Manager from providing the same or similar services as those provided under this Agreement to any other Person or from manufacturing, selling, owning, leasing, managing or otherwise dealing with compressors on its or others' behalf; provided that no such activity shall in any way reduce the obligations of the Manager hereunder to comply with the Services Standard. 2.5. Use of Affiliates. Each Owner hereby consents to and agrees that, in performing its duties hereunder, the Manager may further contract with its Affiliates to provide any or all services to be provided by the Manager; provided that the Manager shall remain liable for all services to be provided by the Manager which its Affiliates have contracted to perform; provided, further, that the Manager shall pay the fees and expenses (which shall be negotiated and determined at an arms-length basis) of all such Affiliates with which the Manager shall have so contracted. 2.6. Relationship between Owner and Manager. All of the functions, duties and services performed by the Manager under this Agreement shall be performed by the Manager as an independent contractor and not as an agent of any Owner except to the limited extent set forth in the following sentence. The Manager does not have the authority to act as an agent of any Owner and the Manager, in its capacity as such, does not, except as to the execution of User Leases with respect to the Owner Compressors, have the authority to bind any Owner and/or their respective assets. Neither Owner shall have any liability for the acts of the Manager. Any fees or other compensation payable by any Owner to the Manager are ordinary and necessary business expenses of such Owner. 2.7. Back-up Manager. If the Back-up Manager or any other Person shall become the Replacement Manager, then the Series Enhancer shall have the right to appoint another Eligible Back-up Manager as Back-up Manager. 3. MANAGEMENT TERM 3.1. Duration of Management Term. The Management Term shall commence as of the date hereof and shall continue in force with respect to an Owner Compressor until the earliest to occur of: (i) the occurrence of a Casualty Loss (as defined below) with respect to such Owner Compressor, (ii) the date on which (x) the Indenture is discharged in accordance with its terms and all Outstanding Obligations (including all amounts owing to each Series Enhancer pursuant to any Enhancement Agreement) have been paid in full, and (iii) with respect to any Manager, the removal and replacement of the Manager in accordance with the provisions of Section 12* hereof. Except as set forth in *Section 12* hereof, the rights and obligations of the Manager hereunder may not be terminated by, or on behalf of, any Owner for any reason. 3.2. Resignation by Manager. Neither UCI nor any successor Manager may resign from its obligations and duties as the Manager hereunder, except (i) with the prior written consent of the Control Party or (ii) upon a determination that the performance by UCI or any successor Manager, as the case may be, of its duties under this Agreement is no longer permissible under Applicable Law, which determination shall be evidenced by an Opinion of Counsel, in form and substance reasonably satisfactory to the Control Party, to such effect addressed and delivered to the Indenture Trustee (on 2 behalf of the Noteholders, the Series Enhancer and the other Persons specified in the Indenture), the Head Lessee and the Control Party. No such resignation will become effective until a Replacement Manager has assumed the obligations and duties of the Manager under this Agreement in accordance with the terms hereof. 3.3. Termination with Respect to an Owner Compressor. Notwithstanding the other provisions of this *Section 3* to the contrary (but subject to the provisions of *Section 12), the Management Term shall terminate with respect to any Owner Compressor which is sold, foreclosed upon, lost, stolen, damaged beyond repair, requisitioned (other than a temporary requisition for a period of not more than 180 days) by any Governmental Authority, worn out, unsuitable for use or economically obsolete (any of the foregoing, a "Compressor Termination Event") as of the date of such Compressor Termination Event after the deposit into the Head Lessee Collection Account of all Casualty Proceeds and other amounts received with respect to such Owner Compressor. Each of the Owners and the Manager shall notify the other party and the Indenture Trustee promptly after it obtains knowledge of any Compressor Termination Event. 4. OWNERSHIP OF OWNER COMPRESSORS 4.1. Retention of Title. Each Owner (the Head Lessee with respect to the Head Lessee Compressors or the Head Lessor with respect to the Head Lessor Compressors) shall at all times retain full legal and equitable title to its respective Owner Compressors, notwithstanding the management thereof by the Manager hereunder. The Manager shall not make reference to or otherwise deal with or treat the Owner Compressors in any manner except in conformity with this Section 4.1. 4.2. Liens. The Manager will promptly pay or discharge any and all sums claimed by any party which, if unpaid, might become a Lien, charge, security interest or other encumbrance upon or with respect to any Owner Compressor, including any accession thereto, or any part thereof or the interest of any Owner therein other than Permitted Encumbrances (each a "Lien Claim") and will promptly discharge any Lien Claim which arises; provided, however, that the Manager shall be under no obligation to pay or discharge any Lien Claim so long as it is contesting the validity thereof in good faith, in a reasonable manner and by appropriate legal proceedings, and the nonpayment thereof does not, in the commercially reasonable opinion of the Manager, adversely affect the title, property or rights of the applicable Owner or any Entitled Party thereto. Without limiting the generality of this Section 4.2, the Manager shall be required to pay or discharge any Lien Claim (1) that results from an act or omission by the Manager with respect to which the Manager would not be entitled to indemnification pursuant to Section 16* hereof ("*Manager Malfeasance") or (2) if prior to such payment or discharge, the Manager receives from the applicable Owner the amount thereof (the "Owner Lien Claim Amount"). If any Lien Claim shall have resulted from Manager Malfeasance and shall have been paid by the applicable Owner, whether directly or by Payment of the Owner Lien Claim Amount to the Manager, then, in either case, the Manager shall promptly reimburse such Owner, upon presentation of an invoice therefor. 5. DUTIES/RIGHTS OF THE MANAGER 5.1. Duties of the Manager. Subject to the terms and provisions hereof, the Manager shall provide the services specified in this Section 5* to, and on behalf of, the Owners during the Management Term with respect to the Owner Compressors. The parties hereto acknowledge and agree that, if an Owner Compressor is then subject to a User Lease, the User under such User Lease may provide certain of the obligations set forth in *Sections 5.6, 5.7 and 5.8* hereof; provided, however, that as long as UCI is the Manager hereunder, UCI shall remain the primary obligor of all such obligations and liable for any breaches thereof. 3 5.2. Marketing. A. During the Management Term, Manager shall market, service, maintain and lease the Owner Compressors consistent with the Services Standard. In addition, for so long as UCI or any of its Affiliates is the Manager, UCI shall keep the Owner Compressors under User Leases subject to the same utilization rates and rental rates and in the same manner as Other UCI Compressors. In addition, the Manager shall, consistent with the Services Standard, negotiate the terms and conditions of all User Leases; provided that the terms and conditions of such User Leases must be consistent with those of User Leases for Other UCI Compressors (or, if the Manager is not UCI or an Affiliate of UCI, equipment of a type similar to the Compressors that is owned, leased or managed by such Manager for its own account and third parties other than the Owners) and, in any event, must comply with (i) then generally accepted industry standards, (ii) with respect to the Head Lessor Compressors, the provisions of *Section 11* of the Head Lease and (iii) for so long as the Manager is UCI or an Affiliate of UCI, the terms of the Contribution Agreement. The Manager shall market, lease and maintain the Owner Compressors in compliance with the Services Standard and using such efforts which are at least equal to the efforts used by the Manager (or any appointed subcontractor) with respect to (x) if the Manager is UCI or any of its Affiliates, the Other UCI Compressors, and (y) if the Manager is not UCI or any of its Affiliates, any other Compressors owned, managed or leased by the Manager (or any appointed subcontractor). B. In performing its marketing duties pursuant to this *Section 5.2, UCI shall use its best efforts to comply with the applicable concentration limits set forth in the definition of Excess 99 hp Amount, Excess 299 hp Amount, Excess 599 hp Amount, Excess 999 hp Amount, Excess B Rated Lessee Concentration Amount, Excess BB Rated Lessee Concentration Amount, Excess Investment Grade Lessee Concentration Amount and Excess Aged Equipment Amount set forth in Appendix A to the Indenture. 5.3. Lease and Administration Obligations. The Manager shall, consistent with the Services Standard, cause to be performed when due, on behalf of the Owners, all of the Owner's respective performance obligations under the User Leases, the Head Lease, the Head Lessee Security Agreement and the other Related Documents to which the applicable Owner is a party; provided, however, that nothing contained herein shall be construed as creating credit recourse to the Manager for (i) principal, interest or premium payments on the Notes or Certificates or (ii) indemnification payments otherwise the obligation of the Head Lessee or Head Lessor pursuant to the Related Documents (except to the extent that the Manager would otherwise be liable for such indemnification payment pursuant to the provisions of Section 16* hereof). 5.4. Billing and Other Information. During the Management Term, the Manager shall bill, on behalf of the Owners, for all rentals and other sums due to the Owners with respect to those Owner Compressors then subject to a User Lease and shall also be responsible for the collection thereof. Such bills may be prepared in summary format for all Compressors leased to the User, but shall contain a detailed listing of each Compressor so leased. 5.5. Defaults by Users; Lease Amendments and Waiver. A. In the event of any breach or default by a User under a User Lease, the Manager shall, consistent with the Services Standard, take such action, in the name of the applicable Owner, with respect to such defaulted User Lease including, without limitation, (i) the termination of such User Lease as to any or all Owner Compressors subject thereto, (ii) the recovery of possession of any or all Owner Compressors subject thereto and (iii) the enforcement of any other rights or remedies of such Owner under such User Lease, including, without limitation, the right to payment of any rent or other amounts owed by the User under such User Lease. In furtherance of the foregoing, the Manager shall, consistent with the Services Standard, (i) institute and prosecute such legal proceedings in the name of the Owner as is permitted by Applicable Law in order to accomplish 4 the foregoing, (ii) settle, compromise and/or terminate such proceedings or (iii) reinstate such User Lease; provided that the Manager shall not be required to take any such action if, in the exercise of its reasonable commercial judgment, the Manager would not take such action if such Owner Compressors were Other UCI Compressors (or, if the Manager is not UCI or an Affiliate of UCI, equipment of a type similar to the Compressors that is owned, leased or managed by such Manager for its own account or third parties other than the Owners). All amounts expended by the Manager in performing its obligations pursuant to the provisions of this *Section 5.5, after reduction of such amounts for enforcement costs actually received by the Manager pursuant to the terms of the related User Leases, shall be a Reimbursable Service. Each Owner reserves the right to take, upon written notice to the Manager, in its sole discretion, any or all of the actions described in this Section 5.5* directly in its own name and on its own behalf. In such an event the Manager, at the Owner's expense, shall cooperate with such Owner and provide the Owner with such assistance as such Owner may reasonably request. B. In performing its obligations hereunder, the Manager may, acting in the name of the Owner and without the necessity of obtaining the prior consent of any Owner or any Entitled Party, grant consents or enter into and grant modifications, waivers and amendments to the terms of any User Lease except for consents, modifications, waivers or amendments that (x) are inconsistent with the Services Standard or (y) contravene (or permit the contravention of) any provision of the Head Lease (including without limitation, *Sections 8, 9, 10 and 11* thereof). 5.6. Maintenance; Manager's Expenses. A. The Manager shall, consistent with the Services Standard, cause the Owner Compressors to be maintained in good operating order and condition. The standard for such maintenance shall be the highest of the following: (i) any standard required or set forth for the Owner Compressors by Applicable Law, (ii) the Services Standard, and (iii) with respect to the Owner Compressors leased to each User, any standard set forth in the related User Lease. All amounts expended by the Manager for maintenance (other than an overhaul made in compliance with *Section 5.6(b)* hereof) of the Owner Compressors, after reduction of such amounts for maintenance payments actually received by the Manager pursuant to the terms of any related User Lease, shall be at the expense of the Manager. B. The Manager shall conduct, or cause to be conducted, overhauls of the Owner Compressors at such intervals and in such detail as it conducts overhauls of the Other UCI Compressors (or, if the Manager is not UCI or an Affiliate of UCI, equipment of a type similar to the Compressors that is owned, leased or managed by such Manager for its own account or third parties other than the Owners). C. Maintenance and/or overhauls may be performed by the Manager or third parties as reasonably determined by the Manager. For overhauls, the Owner of the applicable Owner Compressor(s) will pay for (i) materials, supplies and direct parts at the Manager's actual cost therefor and (ii) labor at hourly rates established by the Manager from time to time; provided that such costs are reasonable and consistent with industry expenses (the sum of (i) and (ii), an "*Overhaul Fee"). Such hourly rates shall be based upon the Manager's direct costs of labor and shall include amounts for the Manager's plant or facility overhead based on the Manager's job cost system for allocating overhead. 5.7. Insurance. A. The Manager will cause to be carried and maintained, at its sole expense, with respect to each Owner Compressor at all times during the Management Term thereof and for the geographic area in which such Owner Compressor is at any time located (i) physical damage insurance insuring against risks of physical loss or damage to the Owner Compressors ("Property Insurance") 5 with a maximum aggregate annual loss limit of $20,000,000 except for certain perils which have sub-limits in the amounts set forth on Schedule 2 hereof, and (ii) liability insurance against liability for bodily injury, death and property damage resulting from the use and operation of the Owner Compressors ("Liability Insurance") with a maximum aggregate loss limit of $20,000,000 per occurrence except for certain perils which have sub-limits in the amounts set forth on Schedule 2 hereof and in each case shall be on terms reasonably satisfactory to the Control Party; provided, however, that if by reason of a force majeure event or other event outside of the control of the Manager, one or more of the terms of such insurance as required hereby are not available in the commercial insurance markets on commercially reasonable terms, the Manager shall nevertheless be deemed to have complied with this Section 5.7* if the Manager obtains such insurance on commercially reasonable terms then available to the Manager with such premiums, deductibles and policy limits that are consistent with industry standards. Property Insurance and Liability Insurance shall be subject to deductibles that are consistent with industry standards. The policies of insurance required under this *Section 5.7(a)* shall be valid and enforceable policies issued by insurers having an A.M. Best Company general policyholder rating of "A-" and a financial rating of "IX" or in each case better or otherwise acceptable to the Control Party and shall provide coverage with respect to incidents occurring anywhere in the United States. B. Such Property Insurance policy or policies will name each Owner, the Series Enhancer and the Indenture Trustee, individually and on behalf of the Entitled Parties, as the loss payees, as their respective interest may appear. Such Liability Insurance policy or policies will name the Head Lessee, the Head Lessor, the Series Enhancer and the Indenture Trustee, individually and on behalf of the Entitled Parties, as additional insureds (each an "*Additional Insured"). Each such policy shall provide that (i) the insurers waive any claim for premiums and any right of subrogation or setoff against Additional Insureds, (ii) it may not be invalidated against any Additional Insured by reason of any violation of a condition or breach of warranty of the policies or the application therefor by Manager, Head Lessor or Head Lessee, (iii) it may be canceled or materially altered or reduced in coverage by the insurer only after no less than ten (10) days' prior written notice from the Manager's insurance broker to Indenture Trustee and the Control Party, and (iv) the insurer will give written notice to Indenture Trustee and the Control Party in the event of nonpayment of premium by the Manager when due. C. On the Closing Date, and thereafter not less than three (3) days prior to the expiration dates of any expiring policies required under this Section 5.7, the Manager shall furnish Indenture Trustee and the Control Party with certificates of the insurance or replacement insurance coverage required by this Section 5.7. D. Any deductibles or losses that are not covered by either the Property Insurance or Liability Insurance shall be paid by, and for the account, of the Manager. Manager agrees to promptly, but in any event within three (3) Business Days after receipt of proceeds of such loss, deposit such amounts into the Head Lessee Collection Account in accordance with Section 7.2(a)* of the Head Lessee Security Agreement for distribution in accordance with *Section 7.2(c)* of the Head Lessee Security Agreement. 5.8. Taxes. The Manager shall cause to be paid when due, and will indemnify the Head Lessee and each Entitled Party from and against, all local, state, federal and foreign personal property, sales or use taxes, license fees, assessments, charges, fines, interest and penalties (all such taxes, license fees, assessments, charges, fines, interest and penalties being hereinafter called "*Impositions") hereafter levied or imposed upon the Head Lessee or any Entitled Party, in connection with or measured by the possession, rental, use or operation of any Owner Compressors but excluding any federal, state or local tax calculated based on the taxable income of the Owner or the applicable Entitled Party. The Manager will also pay all Impositions that might in any way affect the title of any Owner, or result in a Lien upon any Owner Compressors; provided, however, that the Manager shall not be required to pay any 6 Imposition of any kind so long as it is contesting such Imposition in good faith and by appropriate legal proceedings, provided, further, that the nonpayment thereof shall not, in the reasonable opinion of the Manager, adversely affect the title, property or rights of any Owner. In the event any reports or returns with respect to Impositions are required to be filed, the Manager will either cause such reports or returns to be prepared and filed in such manner as to show the interests of the applicable Owner in the Owner Compressors. 5.9. Compliance with Law. The Manager, at the expense of the applicable Owner, shall, consistent with the Services Standard, cause the Owner Compressors to comply, and each User Lease entered into or renewed after the date hereof shall require the User thereunder to comply, in all material respects with (x) all Applicable Laws and (y) in the case of the Head Lessor Compressors, the provisions of Section 8* of the Head Lease. In the event that such laws, rules or regulations require any alteration of an Owner Compressor, or in the event that any equipment or appliance of an Owner Compressor shall be required to be changed or replaced, or in the event that any additional or other equipment or appliance is required to be installed on an Owner Compressor in order to materially comply with such laws, rules or regulations, the Manager, at the expense of the applicable Owner, shall make such alteration, change, replacement or addition (a "*Mandatory Alteration"); provided, however, that the Manager, in good faith, shall contest the validity or application of any such law, rule or regulation which it would have contested if the affected Owner Compressor had been an Other UCI Compressor, in any reasonable manner which does not, in the opinion of the Manager, adversely affect the property or rights of the Owners. 5.10. Records and Information. The Manager shall, consistent with the Services Standard, maintain separate, complete and accurate records relating to the Owner Compressors and all matters covered by this Agreement in the same form and to the same extent as the Manager customarily maintains records in respect of the Other UCI Compressors. The Manager shall promptly, upon request of any Owner or the Series Enhancer, deliver to such Owner, the Series Enhancer or any designee such records. Upon request, the Manager shall promptly supply each Owner with all information necessary for such Owner to prepare all reports required of the Owner under the Related Documents. 5.11. User Lease. The Manager shall store at its offices at 4444 Brittmoore Road, Houston, Texas all User Leases and all lease documents related thereto in a locked, fire retardant storage facility, and if transferred to a fire retardant storage facility other than the present storage facility then such storage facility shall require the approval of the Series Enhancer. Within thirty (30) days after the related Contribution Date or Substitution Date, the Manager shall stamp Schedule A (or the appropriate counterpart of Schedule A or the appropriate schedule of equipment attached to each User Lease) of each User Lease to indicate the Indenture Trustee's security interest in such User Lease. 5.12. Other Services. The Manager shall be responsible for the provision of such other services incidental to the foregoing as may from time to time be required under the User Leases and other Related Documents or may be reasonably necessary in connection with the ownership, maintenance leasing and operation of the Owner Compressors. 6. AUTHORITY AND CONSENTS. 6.1. Owner. Each Owner confers on the Manager all such authorities and grants all such consents as may be necessary for the Manager's performance of its duties under this Agreement, and will, at the request of the Manager, confirm any such authorities and consents to any third parties, execute such other documents and do such other things as the Manager may reasonably request for the purpose of giving full effect to this Agreement and enabling the Manager to carry out its duties hereunder. 7 6.2. Manager Default. After the occurrence and during the continuance of a Manager Default, the Manager irrevocably, and by way of security to the Owners for the obligations of the Manager herein, appoints the Head Lessor or the Head Lessor's designee (which shall be the Indenture Trustee so long as any Outstanding Obligations remain unpaid) to be its attorney-in-fact with full power of substitution on behalf of the Manager and in its name or otherwise to execute any documents contemplated by this Agreement and any Related Document, and to give any notice and to do any act or thing which the Manager is obliged to execute or do under this Agreement and any Related Document. The Manager hereby confirms and agrees to ratify and confirm whatever any such attorney shall do or propose to do in the exercise or purported exercise of all or any of the powers, authorities and discretion referred to in this paragraph. 7. ACCOUNTS AND PAYMENTS 7.1. Lockbox Accounts. A. On or prior to the Closing Date, the Lockbox Account shall have been established and shall be under the exclusive control of the Intercreditor Collateral Agent, and UCI, as Manager, shall, or shall cause, all Collections related to the Domestic Contract Compression Business to be deposited in the Lockbox Account, in each case, in accordance with the terms of the Intercreditor Agreement and the Letter Agreement. So long as the Manager is UCI, UCI shall comply with its obligations and duties under the Intercreditor Agreement and the Letter Agreement. Immediately after the completion of such daily allocation, all Collections allocable to the Securitization Collateral will be transferred to the Head Lessee Collection Account. B. During the continuation of a Trigger Event, the Manager shall, on a weekly basis, provide to each Owner, the Control Party and the Indenture Trustee a copy of each daily cash reconciliation prepared during the preceding week. At any time during the continuation of a Trigger Event, each of the Owners, the Control Party and the Indenture Trustee and their respective accountants and attorneys shall be entitled, at the expense of the Manager, to visit the Manager's office and conduct a review of all backup documentation supporting the daily cash allocation report. C. Upon an Event of Default or a Manager Default and the continuation of such event, as the case may be, the Back-up Manager and the Control Party (or their designees), are each hereby authorized and empowered, as each Owner's attorney-in-fact, to endorse any contract compression payments relating to an Owner Compressor deposited in a Lockbox or presented for deposit in any Lockbox Account requiring the endorsement of the applicable Owner, which authorization is coupled with an interest. Such authorization shall continue in effect until revoked by the applicable Owner in writing. 7.2. Deposits to the Head Lessee Collection Account. If the Manager shall receive any Collections with respect to any Head Lessee Compressor or Head Lessor Compressor directly, the Manager shall deposit such funds into the Lockbox Account within three (3) Business Days of the receipt thereof. The obligation of the Manager to make such deposit shall constitute a full recourse obligation of the Manager (for which the Manager shall not be entitled to receive indemnification from either Owner). 7.3. Withdrawal from Head Lessee Collection Account. The Manager shall be entitled to request withdrawals (and the Indenture Trustee upon written notice from the Manager shall make such withdrawals) of the Operations Fee and S&A Fee from the Head Lessee Collection Account, and, so long as (x) the Rent Reserve Account is fully funded and (y) the Scheduled Deposit for the immediately preceding month has been made in full, the Overhaul Fee from the Head Lessee Collection Account in accordance with Section 7.2(b)* of the Head Lessee Security Agreement. The Indenture Trustee is under no obligation to verify that the requirements of (x) and (y) of this section have been met before making any such withdrawals. 8 7.4. No Set-Off, Counterclaim, etc. The Manager's obligations under this Agreement and the other Related Documents to make deposits to the Lockbox Account shall be absolute and unconditional and all payments thereof shall be made free and clear of and without any deduction for or on account of any set-off (except to the extent expressly set forth herein) or counterclaim or any circumstance, recoupment, defense or other right which the Manager may have against any Owner or any other Person for any reason whatsoever (whether in connection with the transactions contemplated hereby or any other transactions), including without limitation, (i) any defect in title, condition, design or fitness for use of, or any damage to or loss or destruction of, any Compressor, (ii) any insolvency, bankruptcy, moratorium, reorganization or similar proceeding by or against the Manager or any other Person, or (iii) any other circumstance, happening or event whatsoever, whether or not unforeseen or similar to any of the foregoing. 7.5. Manner of Payment. All payments required to be made by the Manager hereunder shall be made in Dollars by wire transfer of immediately available funds prior to 3:00 p.m., New York time, on the date of payment. 8. MANAGER ADVANCES 8.1. Manager Advances. A. On each Determination Date, the Manager may (in its sole discretion) advance funds (each, a "*Manager Advance") and remit to the Head Lessee Collection Account, in such manner as will ensure immediately available funds will be on account thereof by 11:00 a.m. New York time on the Rent Payment Date, an amount equal to all or any portion of rental payments (other than uncollectible amounts) due on User Leases with respect to the Owner Compressors during the preceding Collection Period for which the related Users have not remitted such payment on or prior to such Determination Date; provided, however, that the aggregate amount of all such Manager Advances outstanding (i.e. not yet reimbursed under Section 8.1(b)* below) at any point in time may not exceed an amount equal to the product of (x) ten percent (10%) and (y) the Aggregate Outstanding Amounts on the immediately preceding Payment Date (after giving effect to payments made on such date). Notwithstanding the foregoing, the Manager will not be obligated to make a Manager Advance with respect to (i) any defaulted User Lease, or (ii) any User Lease if the Manager, in its reasonable good faith judgment, believes that such Manager Advance would not be recoverable from a corresponding remittance from the User on the related User Lease. B. The Manager shall be reimbursed for Manager Advances on each Rent Payment Date pursuant to *Section 7.2(c)* of the Head Lessee Security Agreement. 9. COVENANTS OF THE MANAGER 9.1. Preparation and Delivery of Reports. The Manager shall deliver to the Control Party and the Indenture Trustee, or as otherwise specified in any of the clauses below: A. Annual Financial Statements. As soon as available and in any event within 120 days after the end of fiscal year of the Manager, the audited consolidated and unaudited consolidating statements of income, stockholders' equity and cash flows of the Manager and its consolidated subsidiaries for such fiscal year, and the related consolidated and consolidating balance sheet of the Manager and its consolidated subsidiaries as at the end of the fiscal year, and setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, and accompanied by the related opinion of independent public accountants of recognized national standing acceptable to the Control Party which opinion shall state that said financial statements fairly present the consolidated and consolidating financial condition and results of operations of the Manager and its consolidated subsidiaries as at the end of, and for, such fiscal year and that such financial statements have been prepared in accordance with GAAP, except for such changes in such principles with which the independent public accountants shall have concurred and such 9 opinion shall not contain a "going concern" or like qualification or exception, and a certificate of such accountants stating that, in making the examination necessary for their opinion, they obtained no knowledge, except as specifically stated, of any Manager Default; B. Quarterly Financial Statements. As soon as available and in any event within sixty (60) days after the end of each of the first three fiscal quarterly periods of each fiscal year of the Manager, consolidated and consolidating statements of income, stockholders' equity and cash flows of the Manager and its consolidated subsidiaries for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated and consolidating balance sheets as at the end of such period, and setting forth in each case in comparative form the corresponding figures for the corresponding period in the preceding fiscal year, accompanied by the certificate of a Responsible Officer, which certificate shall state that said financial statements fairly present the consolidated and consolidating financial condition and result of operations of the Manager and its consolidated subsidiaries in accordance with GAAP, as at the end of, and for, such period (subject to normal year-end audit adjustments); C. Monthly Asset Base Certificate. By not later than each Determination Date, an Asset Base Certificate, substantially in the form of Exhibit E hereto calculated as of the last day of the immediately preceding Collection Period; D. SEC and Other Reports. Promptly upon their becoming available, one copy of each report (if any), definitive proxy statement, registration statement (upon it becoming effective) and definitive prospectus filed by the Manager with or delivered to any securities exchange, the Securities and Exchange Commission (or any successor agency or any other Governmental Authority); E. Requested Information. With reasonable promptness, (A) any data, information and reports regarding the Owner Compressors that is reasonably available and (B) any other publicly available information with respect to the Manager, in each case as may be reasonably requested from time to time by the Owner, Deal Agent, Indenture Trustee, any Interest Rate Hedge Provider or any Series Enhancer; F. Updated Policies. Within sixty (60) days of the Manager's fiscal year end and only to the extent such policies have been changed or updated, two (2) copies of its current Credit and Collection Policy, a currently effective copy of which is attached hereto as *Exhibit C*; G. Manager Report. On each Determination Date, a Manager Report, substantially in the form of Exhibit A hereto, calculated for the immediately preceding Collection Period, a copy of which shall also be delivered to the Indenture Trustee, Deal Agent and the Series Enhancer; H. Manager Report on He