EXHIBIT 10.43
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of July 27, 2001 (this "Amendment"), to (i)
the Guarantee (the "2000B Guarantee"), as defined in the Participation
Agreement, dated as of October 27, 2000 (as the same may have been, amended,
supplemented or otherwise modified from time to time, the "2000B Participation
Agreement"), among Hanover Compression Limited Partnership (formerly known as
Hanover Compression Inc, "HCC"), Hanover Equipment Trust 2000B, (the "2000B
Lessor"), Bank Hapoalim B.M. and FBTC Leasing Corp., as investors, the lenders
parties thereto (the "2000B Lenders") and The Chase Manhattan Bank, a New York
banking corporation, as the administrative agent for the 2000B Lenders (the
"Administrative Agent"), (ii) the Guarantee (the "2000A Guarantee"), as defined
in the Participation Agreement, dated as of March 13, 2000 (as the same may have
been, amended, supplemented or otherwise modified from time to time, the "2000A
Participation Agreement"), among HCC, Hanover Equipment Trust 2000A (the "2000A
Lessor"), First Union National Bank and Scotiabanc Inc., as investors, the
lenders parties thereto (the "2000A Lenders") and the Administrative Agent, as
agent for the 2000A Lenders, (iii) the Guarantee (the "1999 Guarantee"), as
defined in the Participation Agreement, dated as of June 15, 1999 (as the same
may have been, amended, supplemented or otherwise modified from time to time,
the "1999 Participation Agreement"), among HCC, Hanover Equipment Trust 1999A
(the "1999 Lessor"), Societe Generale Financial Corporation and FBTC Leasing
Corp., as investors, the lenders parties thereto (the "1999 Lenders") and the
Administrative Agent, as agent for the 1999 Lenders, (iv) the Guarantee (the
"1998 Guarantee"), as defined in the Participation Agreement, dated as of July
22, 1998 (as the same may have been, amended, supplemented or otherwise modified
from time to time, the "1998 Participation Agreement"), among HCC, Hanover
Equipment Trust 1998A (the "1998 Lessor"), Societe Generale Financial
Corporation, as investor, the lenders parties thereto (the "1998 Lenders") and
the Administrative Agent, as agent for the 1998 Lenders, and (v) the Credit
Agreement (as the same may have been, amended, supplemented or otherwise
modified from time to time, the "Senior Credit Agreement"), dated as of December
15, 1997, as amended and restated on March 13, 2000, among Hanover Compressor
Company ("Holdings"), HCC, the Administrative Agent and the lenders parties
thereto (the "Senior Credit Lenders"). The 2000B Participation Agreement, the
2000A Participation Agreement, the 1999 Participation Agreement and the 1998
Participation Agreement are collectively hereinafter referred to as the
"Participation Agreements". The 2000B Guarantee, the 2000A Guarantee, the 1999
Guarantee and the 1998 Guarantee are collectively hereinafter referred to as the
"Synthetic Guarantees".
W I T N E S S E T H:
WHEREAS, Holdings and HCC have requested that the Administrative Agent
and the Required Lenders under each of the Synthetic Guarantees and the Senior
Credit Agreement amend certain of the provisions of each of the Synthetic
Guarantees and the Senior Credit Agreement; and
WHEREAS, the Administrative Agent and the Required Lenders under each
of the Synthetic Guarantees and the Senior Credit Agreement are agreeable to the
requested amendments, but only on the terms and subject to the conditions set
forth herein;
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NOW THEREFORE, in consideration of the premises herein contained and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
I. Defined Terms. As used in this Amendment, terms defined in the
preamble hereof and the recitals hereto are used herein as so defined, terms
defined in any of the Participation Agreements, the Synthetic Guarantees and the
Senior Credit Agreement and not defined herein are used herein as therein
defined.
II. Amendments to the Senior Credit Agreement, the Synthetic
Guarantees and Annex A of the Participation Agreements.
1. Amendments to Subsection 1.1 of the Senior Credit Agreement. (a)
Subsection 1.1 of the Senior Credit Agreement is hereby amended by adding the
following defined terms in proper alphabetical order;
"Consolidated Senior Indebtedness": at a particular date, as
to any Person, Consolidated Indebtedness of such Person and its
Subsidiaries other than (i) the aggregate principal amount of the 2001
Senior Subordinated Bridge Loans, (ii) subordinated guarantees of the
2001A Equipment Lease Securities, (iii) any New Subordinated Notes, (iv)
any convertible notes of Holdings, (v) the TIDES Debentures (and any
subordinated debt securities issued in connection with a structured equity
financing similar to the TIDES) and (vi) any unsecured subordinated debt
or any subordinated guarantees not included in clauses (i)-(v) above and
otherwise permitted herein.
"Joint Venture": any Person in which Holdings or one or more
Subsidiaries own equity interests representing 1% or more but 50% or less
of the aggregate equity interests of such Person.
"New Convertible Notes": convertible notes to be offered and
issued by Holdings in an aggregate principal amount not to exceed
$150,000,000 which will not have any scheduled principal payments prior to
2008 and which will have terms and conditions either (i) at least as
favorable to the Lenders, Holdings and HCC as are contained in the 2008
Notes or (ii) approved by the Required Lenders. The proceeds of the New
Convertible Notes will be used first to repay the Seller Note, second to
pay fees and expenses of issuance of the New Convertible Notes and third,
for general corporate purposes.
"New Subordinated Notes": notes to be offered and issued by
Holdings or HCC in an aggregate principal amount not to exceed
$320,000,000 in a Rule 144A or other private placement on terms and
conditions then customary for high-yield subordinated debt securities
issued in a public offering or a Rule 144A offering.
"POC": the collective reference to Production Operators
Corporation, a Delaware corporation, and its direct and indirect
subsidiaries and in joint ventures in which it directly or indirectly owns
an interest, which are being acquired by Holdings and its Subsidiaries.
"POC Acquisition": the acquisition by HCC of the capital stock
of POC in accordance with subsection 8.10(k).
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"Seller Note": as defined in subsection 8.2(k).
"2001 Senior Subordinated Bridge Loans": as defined in
subsection 8.2(l).
"2001A Equipment Lease Securities": as defined in the
definition of "2001A Equipment Lease Transaction".
"2001A Equipment Lease Transaction": the synthetic off-balance
sheet lease financing to be consummated in 2001 consisting of the
following: (i) natural gas compressors owned by POC and/or by the 1998
Lessor and presently leased to HCC having an aggregate value not to exceed
$600,000,000 will be sold to a Lessor; (ii) HCC and/or POC will lease such
natural gas compressors (and such lease will be deemed to be an Equipment
Lease); (iii) the Lessor will enter into a participation agreement having
terms and conditions satisfactory to the Administrative Agent with respect
to the financing of its acquisition of such natural gas compressors (and
such participation agreement will be deemed to be an Equipment Lease
Participation Agreement); (iv) a portion (not to exceed $582,000,000) of
the funding for the acquisition (representing up to 97% of the value of
such compressors) will be financed by the issuance by the Lessor of its
senior debt securities in a public offering or in a Rule 144A or other
private placement (the "2001A Equipment Lease Securities") on terms and
conditions satisfactory to the Administrative Agent (and such securities
and the related Indenture will be deemed to be an Equipment Lease Credit
Agreement); and (v) Holdings, HCC and their Subsidiaries that are
Guarantors may guarantee the obligations of the Lessee under the Lease and
certain other obligations in connection with the transaction described
herein on terms and conditions satisfactory to the Administrative Agent
(and such guarantee shall be deemed to be an Equipment Guarantee) (and the
2001A Equipment Lease Transaction will be deemed to be an Equipment Lease
Transaction).
"Unrestricted Subsidiary": (i) any Subsidiary of HCC that
exists on July 27, 2001 and is so designated as an Unrestricted Subsidiary
by HCC in writing to the Administrative Agent, (ii) any Subsidiary of HCC
that at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of HCC, as provided below), and (iii)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary of HCC (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary if all of the
following conditions apply and continue to apply following such
designation: (a) neither HCC nor any of its Subsidiaries (other than
another Unrestricted Subsidiary) provides credit support for Indebtedness
or other obligations of such Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness or
obligations) except as permitted by subsection 8.10 and (b) any Investment
by HCC or the Restricted Subsidiaries in such Unrestricted Subsidiary made
as a result of designating such subsidiary an Unrestricted Subsidiary
shall not violate the provisions described under subsection 8.10 and such
Unrestricted Subsidiary is not party to any agreement, contract,
arrangement or understanding at such time with HCC or any other Subsidiary
(other than another Unrestricted Subsidiary) of HCC unless the terms of
any such agreement, contract, arrangement or understanding are no less
favorable to HCC or such other Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of HCC or, in the
event such condition is not satisfied, the value of such agreement,
contract, arrangement or understanding to such Unrestricted Subsidiary
shall be deemed an Investment. Any such designation by the Board of
Directors shall be
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evidenced to the Administrative Agent by filing with the
Administrative Agent a resolution of the Board of Directors of HCC
giving effect to such designation and an officer's certificate
certifying that such designation complies with the foregoing conditions
and any Investment by HCC in such Unrestricted Subsidiary shall be
deemed the making of an Investment on the date of designation in an
amount equal to the greater of (1) the net book value of such
Investment or (2) the fair market value of such Investment as
determined in good faith by the Board of Directors (and evidenced by a
resolution of the Board of Directors). The Board of Directors may
designate any Unrestricted Subsidiary as a Subsidiary; provided (i)
that, if such Unrestricted Subsidiary has any Indebtedness, immediately
after giving effect to such designation, no Default or Event of Default
would result, and (ii) that all Indebtedness of such Subsidiary shall
be deemed to be incurred on the date such Unrestricted Subsidiary
becomes a Subsidiary. Unrestricted Subsidiaries shall be deemed to be
Affiliates of Holdings, HCC and their Subsidiaries. Any Subsidiary of
an Unrestricted Subsidiary shall also be deemed to be an Unrestricted
Subsidiary. Any Subsidiary of Holdings that is not an Unrestricted
Subsidiary shall be a "Restricted Subsidiary".
(b) Subsection 1.1 of the Senior Credit Agreement is hereby
amended by deleting therefrom the definitions of the following defined terms and
substituting in place thereof the following new definitions:
"Commitment": as to any Lender, the obligation of such Lender
to make Loans to and/or issue or participate in Letters of Credit issued
on behalf of HCC hereunder in an aggregate principal and/or stated amount
at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 1.1A, as such amount may be reduced or
increased from time to time in accordance with the terms of this
Agreement; collectively, as to all of the Lenders, the "Commitments".
"L/C Commitment": $75,000,000.
2. Amendment to Subsection 1.1 of the Senior Credit Agreement and
Annex A of the Participation Agreements. (a) Subsection 1.1 of the Senior Credit
Agreement and Annex A of each of the Participation Agreements is hereby amended
by deleting therefrom the following defined terms and substituting in place
thereof the following new definitions:
"Consolidated EBITDA": for any period, with respect to any
Person, the sum of, without duplication, (a) Consolidated Earnings Before
Interest and Taxes for such Person for such period plus (b) all amounts
attributable to depreciation and amortization, determined in accordance
with GAAP (to the extent such amounts have been deducted in determining
Consolidated Earnings Before Interest and Taxes for such period) plus (c)
all amounts classified as extraordinary charges for such period (to the
extent such amounts have been deducted in determining Consolidated
Earnings Before Interest and Taxes for such period) plus (d) cash
dividends received by Holdings or any Restricted Subsidiary from any Joint
Venture or Unrestricted Subsidiary minus (e) all amounts classified as
extraordinary income for such period (to the extent such amounts have been
included in determining Consolidated Earnings Before Interest and Taxes
for such period); provided that, if during such period such Person shall
have made a Material Acquisition, Consolidated EBITDA for such period
shall be calculated after giving pro forma effect to such Material
Acquisition as if such Material Acquisition had occurred on the first day
of such period; provided further that, the foregoing proviso shall have
effect only if the
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Agent has been furnished with unaudited, or, if available, audited,
consolidated financial statements of the acquired property for such
period, such financial statements to include the balance sheet and
statements of income and cash flows reflecting the historical performance
of the acquired property for such period to the extent applicable. As used
in this definition, "Material Acquisition" means any acquisition of
property or series of related acquisitions of property that (a)
constitutes assets or constitutes all or substantially all of the equity
interests of a Person and (b) involves the payment of consideration of at
least $15,000,000. In calculating Consolidated EBITDA, the financial
performance of Joint Ventures and Unrestricted Subsidiaries shall be
disregarded except as provided in clause (d) above.
"Consolidated Indebtedness": at a particular date, as to any
Person, the sum of (without duplication) (a) all Indebtedness of such
Person and its Subsidiaries determined on a consolidated basis in
accordance with GAAP, excluding (i) Indebtedness in respect of Financing
Leases, and (ii) the Seller Note plus the principal amount of any
additional notes issued in payment of interest thereon plus (b)(i)
Guarantee Obligations of Holdings and its Subsidiaries in respect of
obligations of Joint Ventures and Unrestricted Subsidiaries, (ii) the
Equipment Lease Tranche A Loans and (iii) the Tranche A Portion of the
2001A Equipment Lease Transaction.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified (i) all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of Holdings and (ii)
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall exclude Unrestricted Subsidiaries unless Unrestricted Subsidiaries
are expressly included.
"Tranche A Portion of the 2001A Equipment Lease Transaction"
shall mean the product of (i) the "Tranche A Percentage" determined for
purposes of, and prior to closing of, the 2001A Equipment Lease Transaction
(which is currently expected to be approximately 82-87%) and (ii) the
aggregate outstanding principal amount of the 2001A Equipment Lease
Securities plus the aggregate outstanding principal amount of the equity
financing for the 2001A Equipment Lease Transaction.
(b) Subsection 1.1 of the Senior Credit Agreement and Annex A of each
of the Participation Agreements is hereby further amended by adding the
following new sentence at the end of the definition for "Indebtedness":
For purposes of clarification, the obligations with respect to
the Equipment Leases shall not be deemed to constitute Indebtedness
under the preceding clause (d) solely by virtue of the grant by HCC
thereunder of a Lien and its interest in the Equipment subject to such
Equipment Lease to secure HCC's and the Guarantor's obligations in
connection therewith.
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3. Amendments to Subsection 1(b) of each of the Synthetic
Guarantees. Subsection 1(b) of each of the Synthetic Guarantees is hereby
amended by adding the following defined terms in proper alphabetical order:
"Consolidated Senior Indebtedness": at a particular date, as
to any Person, Consolidated Indebtedness of such Person and its
Subsidiaries other than (i) the aggregate principal amount of the 2001
Senior Subordinated Bridge Loans, (ii) subordinated guarantees of the
2001A Equipment Lease Securities, (iii) any New Subordinated Notes, (iv)
any convertible notes of Holdings, (v) the TIDES Debentures (and any
subordinated debt securities issued in connection with a structured equity
financing similar to the TIDES) and (vi) any unsecured subordinated debt
or any subordinated guarantees not included in clauses (i)-(v) above and
otherwise permitted herein.
"Guarantee Obligations": shall have the meaning set forth in
subsection 1.1 of the Corporate Credit Agreement.
"Joint Venture": any Person in which Holdings or one or more
Subsidiaries own equity interests representing 1% or more but 50% or less
of the aggregate equity interests of such Person.
"New Convertible Notes": convertible notes to be offered and
issued by Holdings in an aggregate principal amount not to exceed
$150,000,000 which will not have any scheduled principal payments prior to
2008 and which will have terms and conditions either (i) at least as
favorable to the Lenders, Holdings and HCC as are contained in the 2008
Notes or (ii) approved by the Required Lenders. The proceeds of the New
Convertible Notes will be used first, to repay the Seller Note, second to
pay fees and expenses of issuance of the New Convertible Notes and third,
for general corporate purposes.
"New Subordinated Notes": notes to be offered and issued by
Holdings or HCC in an aggregate principal amount not to exceed
$320,000,000 in a Rule 144A or other private placement on terms and
conditions then customary for high-yield subordinated debt securities
issued in a public offering or a Rule 144A offering.
"POC": the collective reference to Production Operators
Corporation, a Delaware corporation, and its direct and indirect
subsidiaries and joint ventures in which it directly or indirectly owns an
interest, which are being acquired by Holdings and its Subsidiaries.
"POC Acquisition": the acquisition by HCC of the capital stock
of POC in accordance with subsection 11.10(k).
"Seller Note": as defined in subsection 11.2(k).
"2001 Senior Subordinated Bridge Loans": as defined in
subsection 11.2(l)
"2001A Equipment Lease Securities": as defined in the
definition of "2001A Equipment Lease Transaction".
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"2001A Equipment Lease Transaction": the synthetic off-balance
sheet lease financing to be consummated in 2001 consisting of the
following; (i) natural gas compressors owned by POC and/or by the 1998
Lessor and presently leased to HCC having an aggregate value not to exceed
$600,000,000 will be sold to a Lessor, (ii) HCC and/or POC will lease such
natural gas compressors (and such lease will be deemed to be an Equipment
Lease); (iii) the Lessor will enter into a participation agreement having
terms and conditions satisfactory to the Administrative Agent with respect
to the financing of its acquisition of such natural gas compressors (and
such participation agreement will be deemed to be an Equipment Lease
Participation Agreement); (iv) a portion (not to exceed $582,000,000) of
the funding for the acquisition (representing up to 97% of the value of
such compressors) will be financed by the issuance by the Lessor of its
senior debt securities in a public offering or in a Rule 144A or other
private placement (the "2001A Equipment Lease Securities") on terms and
conditions satisfactory to the Administrative Agent (and such securities
and the related Indenture will be deemed to be an Equipment Lease Credit
Agreement); and (v) Holdings, HCC and their Subsidiaries that are
Guarantors may guarantee the obligations of the Lessee under the Lease and
certain other obligations in connection with the transaction described
herein on terms and conditions satisfactory to the Administrative Agent
(and such guarantee shall be deemed to be an Equipment Guarantee) (and the
2001A Equipment Lease Transaction will be deemed to be an Equipment Lease
Transaction).
"Unrestricted Subsidiary": (i) any Subsidiary of HCC that
exists on July 27, 2001 and is so designated as an Unrestricted Subsidiary
by HCC in writing to the Administrative Agent, (ii) any Subsidiary of HCC
that at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of HCC, as provided below), and (iii)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary of HCC (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary if all of the
following conditions apply and continue to apply following such
designation: (a) neither HCC nor any of its Subsidiaries (other than
another Unrestricted Subsidiary) provides credit support for Indebtedness
or other obligations of such Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness or
obligations) except as permitted by subsection 11.10 and (b) any
Investment by HCC or the Restricted Subsidiaries in such Unrestricted
Subsidiary made as a result of designating such subsidiary an Unrestricted
Subsidiary shall not violate the provisions described under subsection
11.10 and such Unrestricted Subsidiary is not party to any agreement,
contract, arrangement or understanding at such time with HCC or any other
Subsidiary (other than another Unrestricted Subsidiary) of HCC unless the
terms of any such agreement, contract, arrangement or understanding are no
less favorable to HCC or such other Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of HCC or, in the
event such condition is not satisfied, the value of such agreement,
contract, arrangement or understanding to such Unrestricted Subsidiary
shall be deemed an Investment. Any such designation by the Board of
Directors shall be evidenced to the Administrative Agent by filing with
the Administrative Agent a resolution of the Board of Directors of HCC
giving effect to such designation and an officer's certificate certifying
that such designation complies with the foregoing conditions and any
Investment by HCC in such Unrestricted Subsidiary shall be deemed the
making of an Investment on the date of designation in an amount equal to
the greater of (1) the net book value of such Investment or (2) the fair
market value of such
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Investment as determined in good faith by the Board of Directors (and
evidenced by a resolution of the Board of Directors). The Board of
Directors may designate any Unrestricted Subsidiary as a Subsidiary;
provided (i) that, if such Unrestricted Subsidiary has any Indebtedness,
immediately after giving effect to such designation, no Default or Event
of Default would result, and (ii) that all Indebtedness of such Subsidiary
shall be deemed to be incurred on the date such Unrestricted Subsidiary
becomes a Subsidiary. Unrestricted Subsidiaries shall be deemed to be
Affiliates of Holdings, HCC and their Subsidiaries. Any Subsidiary of an
Unrestricted Subsidiary shall also be deemed to be an Unrestricted
Subsidiary. Any Subsidiary of Holdings that is not an Unrestricted
Subsidiary shall be a "Restricted Subsidiary".
4. Amendment to Section 2 of the Senior Credit Agreement. Section 2
of the Senior Credit Agreement is amended by adding the following new subsection
2.3:
2.3 Increase of Commitments. (a) HCC shall have the right to
increase the Commitments from time to time pursuant to this subsection
2.3 by up to $200,000,000 in the aggregate as long as no Default or
Event of Default has occurred and is continuing. In the event that HCC
wishes to increase the aggregate Commitments at any time, it shall
notify the Administrative Agent in writing of the amount (the "Offered
Increase Amount") of such proposed increase (such notice, a
"Commitment Increase Notice"); provided that the aggregate amount of
any such increase in Commitments shall be at least $10,000,000. HCC
may, at its election, (i) offer one or more of the Lenders the
opportunity to participate in all or a portion of the Offered Increase
Amount pursuant to paragraph (c) below and/or (ii) with the consent of
the Administrative Agent (which consent shall not be unreasonably
withheld), offer one or more additional banks, financial institutions
or other entities the opportunity to participate in all or a portion
of the Offered Increase Amount pursuant to paragraph (b) below. Each
Commitment Increase Notice shall specify which Lenders and/or banks,
financial institutions or other entities HCC desires to participate in
such Commitment increase. HCC or, if requested by HCC, the
Administrative Agent, will notify such Lenders and/or banks, financial
institutions or other entities of such offer.
(b) Any additional bank, financial institution or other entity
which HCC selects to offer participation in the increased Commitments
and which elects to become a party to this Agreement and provide a
Commitment in an amount so offered and accepted by it pursuant to
subsection 2.3(a)(ii) shall execute a New Lender Supplement (in the
form specified by the Administrative Agent) with HCC and the
Administrative Agent, whereupon such bank, financial institution or
other entity (herein called a "New Lender") shall become a Lender for
all purposes and to the same extent as if originally a party hereto
and shall be bound by and entitled to the benefits of this Agreement,
and Schedule 1.1A shall be deemed to be amended to add the name and
Commitment of such New Lender, provided that the Commitment of any
such new Lender shall be in an amount not less than $5,000,000,
provided further that on the effective date of such New Lender
Supplement, there shall be no outstanding Eurodollar Loans hereunder
or, if any Eurodollar Loans would be outstanding on the effective date
of any such New Lender
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Supplement, HCC shall either (x) convert such Eurodollar Loans to ABR
Loans, or (y) prepay, in accordance with the provisions of Section
3,4, such Eurodollar Loans immediately prior to such New Lender
Supplement becoming effective (subject, in either case, to the payment
provisions hereof).
(c) Any Lender which accepts an offer to it by HCC to increase
its Commitment pursuant to subsection 2.3(a)(ii) shall, in each case,
execute a Commitment Increase Supplement (in the form specified by the
Administrative Agent) with HCC and the Administrative Agent whereupon
such Lender shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its Commitment as so
increased, and Schedule 1.1A shall be deemed to be amended to so
increase the Commitment of such Lender.
(d) Notwithstanding anything to the contrary in this subsection
2.3(i) in no event shall any transaction effected pursuant to this
subsection 2.3 cause the aggregate Commitments hereunder to exceed
$400,000,000 and (ii) no Lender shall have any obligation to increase
its Commitment unless it agrees to do so in its sole discretion.
5. Amendment to Subsection 3.13 of the Senior Credit Agreement.
Subsection 3.13 of the Senior Credit Agreement is hereby amendment by inserting
the phrase "conversion of or" immediately before the phrase "the making of" in
clause (d).
6. Amendment to Subsection 4.1 of the Senior Credit Agreement.
Subsection 4.1 of the Senior Credit Agreement is hereby amended by deleting
paragraph (b)(ii) of such subsection in its entirety and inserting in lieu
thereof the following:
(ii) expire at or prior to the close of business on the date
that is five Business Days prior to the Termination Date.
7. Amendment to Subsection 5.1 of the Senior Credit Agreement and
Subsection 9.1 of the 2000B Guarantee. (a) Subsection 5.1 of the Senior Credit
Agreement is hereby amended by deleting such subsection 5.1 in its entirety and
inserting in lieu thereof the following:
5.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of Holdings and its consolidated
Subsidiaries as at March 31, 2001 (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to each
Lender, has been prepared giving effect (as if such events had
occurred on such date) to the consummation of the POC
Acquisition. The Pro Forma Balance Sheet has been prepared based
on the best information available to Holdings as of the date of
delivery thereof, and presents fairly in all material respects on
a pro forma basis the estimated financial position of Holdings
and its consolidated Subsidiaries as at March 31, 2001, assuming
that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of HCC and
Production Operators Corporation as at December 31, 1999 and
December 31, 2000, and
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the related consolidated statements of income and of cash flows
for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from PricewaterhouseCoopers
LLP, present fairly in all material respects the consolidated
financial conditions of HCC and Production Operators Corporation,
respectively, as at such date, and the consolidated results of
their respective operations and their respective consolidated
cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of HCC and Production
Operators Corporation as at March 31, 2001, and the related
unaudited consolidated statements of income and cash flows for
the three-month period ended on such date, present fairly in all
material respects the consolidated financial conditions of HCC
and Production Operators Corporation, respectively, as at such
date, and the consolidated results of their respective operations
and their respective consolidated cash flows for the three-month
period then ended (subject to normal year-end audit adjustments).
All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as
approved by the aforementioned firm of accountants and disclosed
therein). Holdings, HCC and its Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward
or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent
financial statements referred to in this paragraph. During the
period from April 1, 2001 to and including the date hereof there
has been no Disposition by Holdings or any of its Subsidiaries,
as applicable, of any material part of their business or property
(other than to Holdings or any of its Subsidiaries).
Notwithstanding the foregoing, all representations and warranties
in this subsection 5.1 with respect to POC and its financial
statements are made to the knowledge of HCC.
(b) Subsection 9.1 of the 2000B Guarantee is hereby amended by
deleting such Subsection 9.1 in its entirety and inserting in lieu thereof the
following:
9.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of Holdings and its consolidated
Subsidiaries as at March 31, 2001 (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to each
Lender, has been prepared giving effect (as if such events had
occurred on such date) to the consummation of the POC
Acquisition. The Pro Forma Balance Sheet has been prepared based
on the best information available to Holdings as of the date of
delivery thereof, and presents fairly in all material respects on
a pro forma basis the estimated financial position of Holdings
and its consolidated Subsidiaries as at March 31, 2001, assuming
that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of Holdings and
Production Operators Corporation as at December 31, 1999 and
December 31, 2000, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such
dates, reported on by and accompanied by an
11
unqualified report from PricewaterhouseCoopers LLP, present
fairly in all material respects the consolidated financial
conditions of Holdings and Production Operators Corporation,
respectively, as at such date, and the consolidated results of
their respective operations and their respective consolidated
cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of Holdings and Production
Operators Corporation as at March 31, 2001, and the related
unaudited consolidated statements of income and cash flows for
the three-month period ended on such date, present fairly in all
material respects the consolidated financial conditions of
Holdings and Production Operators Corporation, respectively, as
at such date, and the consolidated results of their respective
operations and their respective consolidated cash flows for the
three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of
accountants and disclosed therein). Holdings, HCC and its
Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that
are not reflected in the most recent financial statements
referred to in this paragraph. During the period from April
1, 2001 to and including the date hereof there has been no
Disposition by Holdings or any of its Subsidiaries, as
applicable, of any material part of their business or property
(other than to Holdings or any of its Subsidiaries).
Notwithstanding the foregoing, all representations and warranties
in this subsection 9.1 with respect to Production Operators
Corporation and its financial statements are made to the
knowledge of Holdings.
8. Amendment to Subsection 5.2 of the Senior Credit Agreement.
Subsection 5.2 of the Senior Credit Agreement is hereby amended by deleting the
phrase "September 30, 1999" where it appears in the first sentence and inserting
in lieu thereof the phrase "March 31, 2001".
9. Amendment to Subsection 9.2 of the 2000B Guarantee. Subsection
9.2 of the 2000B Guarantee is hereby amended by deleting the phrase "June 30,
2000" where it appears in the first sentence and inserting in lieu thereof the
phrase "March 31, 2001".
10. Amendment to Subsection 5.14 of the Senior Credit Agreement and
Subsection 9.14 of each of the Synthetic Guarantees. (a) Subsection 5.14 of the
Senior Credit Agreement is hereby amended by deleting the phrase "As of the
Closing Date" and inserting in lieu thereof the phrase "Immediately after giving
effect to the POC Acquisition,".
(b) Subsection 9.14 of each of the Synthetic Guarantees is hereby
amended by deleting the phrase "As of the Initial Closing Date" and inserting in
lieu thereof the phrase "Immediately after giving effect to the POC
Acquisition,".
11. Deletion of Subsection 5.18 of the Senior Credit Agreement.
Subsection 5.18 of the Senior Credit Agreement is hereby deleted its entirety
and the following is substituted therefore: "5.18 [INTENTIONALLY XXXXXXX]".
00
00. Amendment of Subsection 5.19 of the Senior Credit Agreement and
Subsection 9.18 of the 2000B Guarantee. (a) Subsection 5.19 of the Senior Credit
Agreement is hereby amended by adding the following at the end thereof:
The obligations of Holdings under the Holdings Guarantee
constitute "Senior Indebtedness" or "Senior Debt" under the
(i) if applicable, terms of the Seller Note, (ii) if
applicable, under the documentation relating to the 2001
Senior Subordinated Bridge Loans or the New Subordinated
Notes and (iii) if applicable, the documentation for the
2001A Equipment Lease Transaction. The Obligations of HCC
constitute "Senior Indebtedness" or "Guarantor Senior
Indebtedness" (i) if applicable, under the documentation
relating to the 2001 Senior Subordinated Bridge Loans or the
New Subordinated Notes and (ii) if applicable, under the
documentation for the 2001A Equipment Lease Transaction. The
obligations of each Subsidiary under the Guarantees
constitute "Guarantor Senior Indebtedness" under the
documentation relating to the 2001A Equipment Lease
Transaction (if applicable), under the documentation
relating to the 2001A Senior Subordinated Bridge Loans (if
applicable), and under the documentation relating to the New
Subordinated Notes (if applicable).
(b) Subsection 9.18 of the 2000B Guarantee is hereby amended by
adding the following at the end thereof:
The obligations of Holdings under the Guarantee constitute
"Senior Indebtedness" or "Senior Debt" under the (i) if
applicable, terms of the Seller Note, (ii) if applicable,
under the documentation relating to the 2001 Senior
Subordinated Bridge Loans or the New Subordinated Notes and
(iii) if applicable, the documentation for the 2001A
Equipment Lease Transaction. The obligations of HCC under
the Guarantee constitute "Senior Indebtedness" or "Guarantor
Senior Indebtedness" (i) if applicable, under the
documentation relating to the 2001 Senior Subordinated
Bridge Loans or the New Subordinated Notes and (ii) if
applicable, under the documentation for the 2001A Equipment
Lease Transaction. The obligations of each Subsidiary under
the Guarantee constitute "Senior Indebtedness" or "Guarantor
Senior Indebtedness" under the documentation relating to the
2001A Equipment Lease Transaction (if applicable), the
documentation relating to the 2001A Senior Subordinated
Bridge Loans (if applicable) and the documentation relating
to the New Subordinated Notes (if applicable).
13. Amendment of Subsection 8.1 of the Senior Credit Agreement and
Subsection 11.1 of each of the Synthetic Guarantees. (a) Subsection 8.1 of the
Senior Credit Agreement is hereby amended by inserting after paragraph (e) the
following new paragraph:
(f) Consolidated Senior Indebtedness to Consolidated
EBITDA. Permit the ratio of Consolidated Senior Indebtedness
to Consolidated EBITDA of Holdings for the four consecutive
fiscal quarters of Holdings
13
most recently ended ("Consolidated Senior Indebtedness
Ratio") to be greater than 3.0 to 1.0.
(b) Subsection 11.1 of each of the Synthetic Guarantees is
hereby amended by inserting after paragraph (e) the following new paragraph:
(f) Consolidated Senior Indebtedness to Consolidated
EBITDA. Permit the ratio of Consolidated Senior Indebtedness
to Consolidated EBITDA of Holdings for the four consecutive
fiscal quarters of Holdings most recently ended
("Consolidated Senior Indebtedness Ratio") to be greater
than 3.0 to 1.0.
14. Amendment of Subsection 8.1(c) of the Senior Credit Agreement
and Subsection 11.1(c) of each of the Synthetic Guarantees. (a) Subsection
8.1(c) of the Senior Credit Agreement is hereby amended by deleting such
subsection 8.1(c) in its entirety and inserting in lieu thereof the following:
(c) Consolidated Senior Indebtedness to Consolidated
Adjusted EBITDA. Permit the ratio of Consolidated Senior
Indebtedness of Holdings to Consolidated Adjusted EBITDA for
the four consecutive fiscal quarters of Holdings most
recently ended to be greater than 4.0 to 1.0.
(b) Subsection 11.1(c) of each of the Synthetic Guarantees is
hereby amended by deleting such Subsection 11.1(c) in its entirety and
inserting in lieu thereof the following:
(c) Consolidated Senior Indebtedness to Consolidated
Adjusted EBITDA. Permit the ratio of Consolidated Senior
Indebtedness of Holdings to Consolidated Adjusted EBITDA for
the four consecutive fiscal quarters of Holdings most
recently ended to be greater than 4.0 to 1.0.
15. Amendment of Subsection 8.1(d) of the Senior Credit Agreement
and Subsection 11.1(d) of each of the Synthetic Guarantees. Each of subsection
8.l(d) of the Senior Credit Agreement and subsection 11.1(d) of each of the
Synthetic Guarantees is hereby amended by (i) deleting the number "4.0" where it
appears in such subsection 8.l(d) of the Senior Credit Agreement and subsection
11.1(c) and (ii) inserting in lieu thereof the number "4.5".
16. Amendment of Subsection 8.2 of the Senior Credit Agreement
and Subsection 11.2 of each of the Synthetic Guarantees. (a)(i) Subsection 8.2
of the Senior Credit Agreement is hereby amended by (i) deleting from paragraph
(c) the phrase "Closing Date" and substituting therefor the phrase "date of
consummation of the POC Acquisition" and (ii) subsection 11.2 of each of the
Synthetic Guarantees is hereby amended by (i) deleting from paragraph (c) the
phrase "Initial Closing Date" and substituting therefor the phrase "date of
consummation of the POC Acquisition".
(b) Each of subsection 8.2 of the Senior Credit Agreement and
subsection 11.2 of each of the Synthetic Guarantees is hereby further amended by
deleting paragraph (d) in its entirety therefrom and substituting in place
thereof the following:
14
(d) [INTENTIONALLY OMITTED];
(c)(i) Subsection 8.2 of the Senior Credit Agreement is hereby further
amended by deleting paragraph (k) in its entirety and inserting the following
new paragraphs:
(k) Indebtedness of Holdings evidenced by a subordinated
promissory note issued by Holdings in a principal amount not to exceed
$150,000,000 plus the principal amount of any additional notes issued
in payment of interest thereon (plus, in each case, the amount of all
accrued and unpaid interest thereon which is added to the principal
amount thereof) in connection with the POC Acquisition provided that
the terms and conditions thereof (including interest, payment dates,
covenants, defaults and subordination) are substantially similar to
those set forth on Schedule I and such note is unsecured and
unguaranteed (all such notes collectively, the "Seller Note");
(l) Indebtedness of Holdings in respect of senior subordinated
bridge loans (including Indebtedness evidenced by any exchange notes
issued in exchange therefor, the "2001 Senior Subordinated Bridge
Loans") in an aggregate principal amount not to exceed $320,000,000
incurred in connection with the POC Acquisition provided that the
terms and conditions thereof are substantially similar to those set
forth on Schedule II, which Indebtedness will be repaid on the earlier
of the consummation of the 2001A Equipment Lease Transaction and the
issuance of the New Subordinated Notes;
(m) Indebtedness in respect of New Convertible Notes in an
aggregate amount not to exceed $150,000,000; provided that the
proceeds of such Indebtedness are used first, to repay the Seller
Note, second, to pay fees and expenses of issuance of the New
Convertible Notes and third, for general corporate purposes; and
provided, further, the New Convertible Notes may be issued only if the
Seller Note has been or is concurrently being issued;
(n) if the 2001A Equipment Lease Financing Transaction is not
consummated, Indebtedness of Holdings or HCC in respect of New
Subordinated Notes, if any;
(o) Indebtedness in respect of the increased Commitments
permitted by subsection 2.3 of this Agreement and Indebtedness
consisting of additional unsecured credit facilities entered into by
HCC, provided that the aggregate principal amount of Indebtedness
permitted by this paragraph (o) shall not exceed $200,000,000;
(p) Guarantee Obligations permitted by subsection 8.4; and
(q) unsecured Indebtedness not otherwise permitted by clauses
(a)-(p) above not exceeding $100,000,000 in the aggregate at any time
outstanding.
15
(ii) Subsection 11.2 of each of the Synthetic Guarantees is hereby further
amended by deleting paragraph (k) in its entirety and inserting the following
new paragraphs:
(k) Indebtedness of Holdings evidenced by a subordinated
promissory note issued by Holdings in a principal amount not to exceed
$150,000,000 plus the principal amount of any additional notes issued
in payment of interest thereon (plus, in each case, the amount of all
accrued and unpaid interest thereon which is added to the principal
amount thereof) in connection with the POC Acquisition provided that
the terms and conditions thereof (including interest, payment dates,
covenants, defaults and subordination) are substantially similar to
those set forth on Schedule I and such note is unsecured and
unguaranteed (all such notes collectively, the "Seller Note");
(l) Indebtedness of Holdings in respect of senior subordinated
bridge loans (including Indebtedness evidenced by any exchange notes
issued in exchange therefor, the "2001 Senior Subordinated Bridge
Loans") in an aggregate principal amount not to exceed $320,000,000
incurred in connection with the POC Acquisition provided that the
terms and conditions thereof are substantially similar to those set
forth on Schedule II, which Indebtedness will be repaid on the earlier
of the consummation of the 2001A Equipment Lease Transaction and the
issuance of the New Subordinated Notes;
(m) Indebtedness in respect of New Convertible Notes in an
aggregate amount not to exceed $150,000,000; provided that the
proceeds of such Indebtedness are used first, to repay the Seller
Note, second, to pay fees and expenses of issuance of the New
Convertible Notes and third, for general corporate purposes; and
provided, further, the New Convertible Notes may be issued only if the
Seller Note has been or is concurrently being issued;
(n) if the 2001A Equipment Lease Financing Transaction is not
consummated, Indebtedness of Holdings or HCC in respect of New
Subordinated Notes, if any;
(o) Indebtedness in respect of the increased Commitments
permitted by subsection 2.3 of this Agreement and Indebtedness
consisting of additional unsecured credit facilities entered into by
HCC, provided that the aggregate principal amount of Indebtedness
permitted by this paragraph (o) shall not exceed $200,000,000;
(p) Guarantee Obligations permitted by subsection 11.4; and
(q) unsecured Indebtedness not otherwise permitted by clauses
(a)-(p) above not exceeding $100,000,000 in the aggregate at any time
outstanding.
16
17. Amendment of Subsection 8.3 of the Senior Credit Agreement and
Subsection 11.3 of each of the Synthetic Guarantees. (a) Subsection 8.3 of the
Senior Credit Agreement is hereby amended by (i) deleting the "and" at then end
of paragraph (t),(ii) deleting the period from the end of paragraph (u) and
substituting therefore the phrase "; "and" and (iii) inserting the following
paragraph (v):
(v) Liens on the property or assets of POC
securing Indebtedness permitted by subsection 8.2 and
Guarantee Obligations permitted by subsection 8.4(j),
provided that (i) such Liens existed at the time POC became
a Subsidiary and were not created in anticipation thereof,
(ii) any such Lien is not spread to cover any property or
assets of POC after the time POC becomes a Subsidiary, and
(iii) the amount of Indebtedness, Guarantee Obligations and
other obligations secured thereby is not increased.
(b) Subsection 11.3 of each of the Synthetic Guarantees is hereby
amended by (i) deleting the "and" at then end of paragraph (t), (ii)
deleting the period from the end of paragraph (u) and substituting
therefore the phrase "; and" and (iii) inserting the following paragraph
(v):
(v) Liens on the property or assets of POC securing
Indebtedness permitted by subsection 11.2 and Guarantee
Obligations permitted by subsection 11.4(j), provided that
(i) such Liens existed at the time POC became a Subsidiary
and were not created in anticipation thereof, (ii) any such
Lien is not spread to cover any property or assets of POC
after the time POC becomes a Subsidiary, and (iii) the
amount of Indebtedness, Guarantee Obligations and other
obligations secured thereby is not increased.
18. Amendment of Subsection 8.4 of the Senior Credit Agreement and
Subsection 11.4 of each of the Synthetic Guarantees. (i) Subsection 8.4 of the
Senior Credit Agreement is hereby amended by (i) deleting the word "and" where
it appears at the end of subsection 8.4(g); (ii) replacing the period at the end
of subsection 8.4(h) with a semicolon; and (iii) inserting the following new
paragraphs immediately following paragraph (h):
(i) senior subordinated Guarantee Obligations of
Holdings and its Subsidiaries which are guarantors of the
Obligations in respect of the 2001 Senior Subordinated
Bridge Loans and the New Subordinated Notes;
(j) up to $70,000,000 in the aggregate of existing
Guarantee Obligations of POC and listed on Schedule 8.4,
provided that such Guarantee Obligations existed at the time
POC became a Subsidiary and were not created in anticipation
thereof;
(k) Guarantee Obligations of HCC and its Subsidiaries
in respect of the obligations of POC listed on Schedule 8.4,
provided that the aggregate principal amount of such
obligations for which HCC and its Subsidiaries shall be
liable shall not exceed $70,000,000;
17
(l) Guarantee Obligations of Holdings and its
Subsidiaries, which are guarantors of the Obligations, in
respect of the 2001A Equipment Lease Transaction; provided
that, (i) Guarantee Obligations in respect of the 2001A
Equipment Lease Securities (and related obligations) shall
be subordinated in right of payment to other Indebtedness
and Guarantee Obligations of the respective Loan Parties,
including Guarantee Obligations under the other Equipment
Guarantees and (ii) the proceeds of the 2001A Equipment
Lease Transaction are used to pay the purchase price for
POC, to pay obligations under and in connection with the
1998 Lease, to repay the 2001A Senior Subordinated Bridge
Loans (or, if applicable, the New Subordinated Notes) and to
pay other Indebtedness of HCC and its subsidiaries including
costs in connection with the POC Acquisition and the 2001A
Equipment Lease Transaction;
(m) Guarantee Obligations of Holdings and its
Subsidiaries which are guarantors of the Obligations in
respect of the Indebtedness permitted by subsection 8.2(o)
of this Agreement; and
(n) senior subordinated Guarantee Obligations of
Holdings and its Subsidiaries which are guarantors of the
Obligations in respect of New Subordinated Notes, if any.
(ii) Subsection 11.4 of each of the Synthetic Guarantees is hereby
amended by (i) deleting the word "and" where it appears at the end of subsection
11.4(g); (ii) replacing the period at the end of subsection 11.4(h) with a
semicolon; and (iii) inserting the following new paragraphs immediately
following paragraph (h):
(i) senior subordinated Guarantee Obligations of
Holdings and its Subsidiaries which are guarantors of the
Obligations in respect of the 2001 Senior Subordinated
Bridge Loans and the New Subordinated Notes;
(j) up to $70,000,000 in the aggregate of existing
Guarantee Obligations of POC and listed on Schedule 11.4,
provided that such Guarantee Obligations existed at the time
POC became a Subsidiary and were not created in anticipation
thereof;
(k) Guarantee Obligations of HCC and its Subsidiaries
in respect of the obligations of POC listed on Schedule
11.4, provided that the aggregate principal amount of such
obligations for which HCC and its Subsidiaries shall be
liable shall not exceed $70,000,000;
(l) Guarantee Obligations of Holdings and its
Subsidiaries, which are guarantors of the Obligations, in
respect of the 2001A Equipment Lease Transaction; provided
that, (i) Guarantee Obligations in respect of the 2001A
Equipment Lease Securities (and related obligations) shall
be subordinated in right of payment to other Indebtedness
and Guarantee Obligations of the respective Loan Parties,
including Guarantee Obligations under the other Equipment
Guarantees and (ii) the proceeds of the 2001A Equipment
Lease Transaction are used to pay the purchase price for
POC, to pay obligations under and in connection with the
1998
18
Lease, to repay the 2001A Senior Subordinated Bridge
Loans (or, if applicable, the New Subordinated Notes) and to
pay other Indebtedness of HCC and its subsidiaries including
costs in connection with the POC Acquisition and the 2001A
Equipment Lease Transaction;
(m) Guarantee Obligations of Holdings and its
Subsidiaries which are guarantors of the Obligations in
respect of the Indebtedness permitted by subsection 11.2(o)
of this Agreement; and
(n) senior subordinated Guarantee Obligations of
Holdings and its Subsidiaries which are guarantors of the
Obligations in respect of New Subordinated Notes, if any.
19. Amendment to Subsection 8.6 of the Senior Credit Agreement and
Subsection 11.6 of each of the Synthetic Guarantees. Each of subsection 8.6 of
the Senior Credit Agreement and subsection 11.6 of each of the Synthetic
Guarantees is hereby amended by (x) deleting the amount "$5,000,000" where it
appears in paragraph (a) and inserting in lieu thereof the amount "$20,000,000"
and (y) inserting after the word "sale" in paragraph (h) the phrase "or
exchange".
20. Amendment to Subsection 8.8 of the Senior Credit Agreement and
Subsection 11.8 of each of the Synthetic Guarantees. Each of subsection 8.8 of
the Senior Credit Agreement and subsection 11.8 of each of the Synthetic
Guarantees is hereby amended by (x) deleting the word "and" which appears before
clause (vii) thereof and (y) adding the following new clause (viii) to the end
thereof:
and (viii) Subsidiaries of Holdings may declare and pay
dividends, or make distributions, to Holdings to the extent
necessary to allow Holdings to pay interest when due on the
New Convertible Notes, the 2001 Senior Subordinated Bridge
Loans and any New Subordinated Notes (in each case subject
to any applicable subordination provisions).
21. Amendment to Subsection 8.9 of the Senior Credit Agreement and
Subsection 11.9 of each of the Synthetic Guarantees. Each of subsection 8.9 of
the Senior Credit Agreement and subsection 11.9 of each of the Synthetic
Guarantees is hereby amended by deleting such subsection in its entirety and
inserting in lieu thereof the following:
Enter into or assume any obligations with respect
to any Derivatives except for (i) Derivatives used by
Holdings or any of its Subsidiaries in reducing the
interest rate risk exposure or foreign currency risk
exposure of Holdings and its Subsidiaries which have
been provided by a lender under this Agreement or the
Equipment Lease Transactions; provided that the
aggregate notional amounts of the Derivatives permitted
by this clause (i) shall not exceed the aggregate
amount of loans outstanding under this Agreement and
the Equipment Lease Transactions and (ii) existing
Derivatives of POC provided that such Derivatives exist
at the time POC became a Subsidiary and were not
created in anticipation thereof.
22. Amendment to Subsection 8.10 of the Senior Credit Agreement and
Subsection 11.10 of each of the Synthetic Guarantees. (a) Each of subsection
8.10 of the Senior Credit Agreement and subsection 11.10 of each of the
Synthetic Guarantees is hereby amended
19
by deleting the amount "$25,000,000" where it appears in paragraph (h) and
inserting in lieu thereof the amount "$50,000,000".
(b) Each of subsection 8.10 of the Senior Credit Agreement and
subsection 11.10 of each of the Synthetic Guarantees is hereby further amended
by (x) deleting the "and" at the end of paragraph (i),(y) deleting the period at
the end of paragraph (j) and inserting in lieu thereof a semi-colon, and (z)
adding new paragraphs (k) and (1) immediately after paragraph (j) as follows:
(k) HCC may consummate the POC Acquisition provided
that (i) the conditions set forth in clauses (a)-(e) of the
definition of "Permitted Business Acquisition" are satisfied
with respect to the POC Acquisition and (ii) the POC
Acquisition is consummated on terms and conditions
previously disclosed to the Administrative Agent; and
(l)(i) Investments in POC's Joint Ventures existing on
the date of consummation of the POC Acquisition and (ii)
Investments in POC's Joint Ventures pursuant to commitments
existing at the time of the POC Acquisition in an aggregate
amount not to exceed $30,000,000.
23. Amendment to Subsection 8.11 of the Senior Credit Agreement and
Subsection 11.11 of each of the Synthetic Guarantees. (a) Subsection 8.11 of the
Senior Credit Agreement is hereby amended by deleting such subsection in its
entirety and inserting in lieu thereof the following:
8.11 Limitation on Optional Payments and Modifications
of Debt Instruments. (i) Make any optional payment or
optional prepayment on or optional redemption, optional
purchase or optional defeasance of any portion of the
Shareholder Subordinated Debt, the 2008 Notes (other
than scheduled cash interest payments), New Convertible
Notes (other than scheduled cash interest payments),
the 2001 Senior Subordinated Bridge Loans (other than
scheduled cash interest payments and payments with the
proceeds from the 2001A Equipment Lease Securities and
New Subordinated Notes), the 2001A Equipment Lease
Securities (other than scheduled cash interest
payments, subject to applicable subordination
provisions), any New Subordinated Notes (other than
scheduled cash interest payments, subject to
subordination provisions, and payments with the
proceeds from the 2001A Equipment Lease Securities),
and lease and guarantee payments in respect of the
2001A Equipment Lease Transaction (other than scheduled
lease payments, subject to applicable subordination
provisions), (ii) make any optional payment or optional
prepayment in excess of $10,000,000 during any calendar
year on or redemption of any Indebtedness (excluding
the Seller Note for which no optional payments or
prepayments are permitted) or Guarantee Obligations
other than (a) as permitted in clause (i) above, (b)
redemptions of any portion of the 2008 Notes pursuant
to the terms thereof, including, without limitation,
the terms of any indenture in respect thereof, (c)
redemptions of any portion of the
20
TIDES Debentures pursuant to the TIDES Indenture or
redemptions of any portion of the TIDES pursuant to the
TIDES Declaration of Trust or (d) any optional payment,
prepayment or redemption of any Indebtedness or Guarantee
Obligations pursuant to the Corporate Credit Agreement or
the Equipment Lease Transactions (other than the 2001A
Equipment Lease Transaction) or (iii) amend, modify or
change, or consent or agree to any amendment, modification
or change to any of the terms of any Indebtedness or
Guarantee Obligations other than (a) any Indebtedness or
Guarantee Obligations pursuant to the Corporate Credit
Agreement or the Equipment Lease Transactions (other than
the 2001A Equipment Lease Transaction) or (b) any amendment,
modification or change which would extend the maturity or
reduce the amount of any payment of principal thereof or
which would reduce the rate or extend the date for payment
of interest thereon, or any amendment or waiver which would
render the terms of such Indebtedness or Guarantee
Obligations less restrictive. In addition, Holdings and its
Subsidiaries will not (i) make any optional or voluntary
payment, prepayment, redemption or purchase of the Seller
Note or any other payment or distribution with respect to
the Seller Note unless such payment or distribution is
permitted by the subordination provisions of the Seller Note
or (ii) amend, waive, modify or terminate (or consent to any
amendment, waiver, modification or termination) of the
subordination provisions of the Seller Note or if such
amendment, waiver, modification or termination is adverse to
the interest of the Lenders.
(b) Subsection 11.11 of each of the Synthetic Guarantees is
hereby amended by deleting such Subsection 11.11 in its entirety
and inserting in lieu thereof the following:
11.11 Limitation on Optional Payments and Modifications of
Debt Instruments. (i) Make any optional payment or optional
prepayment on or optional redemption, optional purchase or
optional defeasance of any portion of the Shareholder
Subordinated Debt, the 2008 Notes (other than scheduled cash
interest payments), New Convertible Notes, the 2001 Senior
Subordinated Bridge Loans (other than scheduled cash
interest payments and payments with the proceeds from the
2001A Equipment Lease Securities), the 2001A Equipment Lease
Securities (other than scheduled cash interest payments,
subject to applicable subordination provisions), any New
Subordinated Notes (other than scheduled cash interest
payments, subject to subordination provisions, and payments
with the proceeds from the 2001A Equipment Lease
Securities), and lease and guarantee payments in respect of
the 2001A Equipment Lease Transaction (other than scheduled
lease payments, subject to applicable subordination
provisions), (ii) make any optional payment or optional
prepayment in excess of $10,000,000 during any calendar year
on or redemption of any Indebtedness (excluding the Seller
21
Note for which no optional payments or prepayments are
permitted) or Guarantee Obligations other than (a) as
permitted by clause (i) above, (b) redemptions of any
portion of the 2008 Notes pursuant to the terms thereof,
including, without limitation, the terms of any indenture in
respect thereof, (c) redemptions of any portion of the TIDES
Debentures pursuant to the TIDES Indenture or redemptions of
any portion of the TIDES pursuant to the TIDES Declaration
of Trust or (d) any optional payment, prepayment or
redemption of any Indebtedness or Guarantee Obligations
pursuant to the Corporate Credit Agreement or the Equipment
Lease Transactions (other than the 2001A Equipment Lease
Transaction) or (iii) amend, modify or change, or consent or
agree to any amendment, modification or change to any of the
terms of any Indebtedness or Guarantee Obligations other
than (a) any Indebtedness pursuant to the Corporate Credit
Agreement or the Equipment Lease Transactions (other than
the 2001A Equipment Lease Transaction) or (b) any amendment,
modification or change which would extend the maturity or
reduce the amount of any payment of principal thereof or
which would reduce the rate or extend the date for payment
of interest thereon, or any amendment or waiver which would
render the terms of such Indebtedness or Guarantee
Obligations less restrictive. In addition, Holdings and its
Subsidiaries will not (i) make any optional or voluntary
payment, prepayment, redemption or purchase of the Seller
Note or any other payment or distribution with respect to
the Seller Note unless such payment or distribution is
permitted by the subordination provisions of the Seller Note
or (ii) amend, waive, modify or terminate (or consent to any
amendment, waiver, modification or termination) of the
subordination provisions of the Seller Note or if such
amendment, waiver, modification or termination is adverse to
the interest of the Lenders.
24. Amendment to Subsection 8.13 of the Senior Credit Agreement
and Subsection 11.13 of each of the Synthetic Guarantees. Each of subsection
8.13 of the Senior Credit Agreement and subsection 11.13 of each of the
Synthetic Guarantees is hereby amended by (x) replacing the "and" that appears
before clause (ii) with a comma and (y) inserting at the end of clause (ii) the
following:
and (iii) POC may remain party to and perform Sale and Leaseback
Transactions existing at the time POC became a Subsidiary and
which were not entered into in anticipation thereof.
25. Amendment to Section 9 of the Senior Credit Agreement. Section 9
of the Senior Credit Agreement is hereby amended by (i) deleting the word "or"
at the end of paragraph (i); (ii) inserting the word "or" at the end of
paragraph (j); and (iii) inserting immediately after paragraph (j) the following
new paragraph (k):
(k) a "change of control" (however denominated) with respect to
Holdings or HCC shall have occurred under, or for purposes of,
the 2001A Equipment Lease Securities, the 2001 Senior
Subordinated Bridge Loans or the New Subordinated
22
Notes and at least 50% of the Indebtedness then outstanding under
the 2001A Equipment Lease Securities, the 2001 Senior
Subordinated Bridge Loans, the New Subordinated Notes or the New
Convertible Notes, as the case may be, shall be tendered to, or
required to be purchased by, Holdings, HCC or any of their
Subsidiaries as a result of such change of control;
26. Amendment to Subsection 11.6 of each of the Synthetic
Guarantees. Subsection 11.6 of each of the Synthetic Guarantees is hereby
amended by deleting the word "Lessor" where it appears in paragraph (h) of such
subsection 11.6 and inserting in lieu thereof the phrase "applicable lessor".
27. Amendment to the Senior Credit Agreement and each of the
Synthetic Guarantees. The Senior Credit Agreement and each of the Synthetic
Guarantees are hereby amended by substituting each of the schedules attached
hereto under Annex B, which schedules are satisfactory to the Administrative
Agent, for its counterpart schedule to the Senior Credit Agreement or each of
the Synthetic Guarantees, as the case may be.
28. Amendment to Subsection 30.1 of the Leases. Subsection 30.1
of each of the Leases is hereby amended by (a) inserting the phrase "in
substitution for Equipment in the ordinary course of business or" after the
words "Lessee hereunder" where it appears in such subsection 30.1 and (b)
inserting at the beginning of paragraph (f) the phrase "unless such replacement
is in the ordinary course of business."
29. Effectiveness. This Amendment shall become effective (the
"Effective Date") upon fulfillment of the following conditions precedent: (a)
the consummation of the POC Acquisition, (b) Holdings and HCC shall have
delivered to the Administrative Agent duly executed copies of this Amendment,
(c) the Guarantors (other than Holdings or HCC) shall have delivered to the
Administrative Agent duly executed copies of this Amendment, (d) the
Administrative Agent shall have received duly executed copies of this Amendment
from the Required Lenders, and (e) no Default or Event of Default shall have
occurred and be continuing on the date hereof after giving effect to this
Amendment.
30. Representations and Warranties. Holdings, HCC and each of the
other Guarantors hereby represent and warrant that the representations and
warranties contained in each of the Senior Credit Agreement, the Loan Documents
and the Operative Agreements will be, after giving effect to this Amendment,
true and correct in all material respects, as if made on and as of the date
hereof (except those which expressly speak as of a certain date).
31. Continuing Effect of the Senior Credit Agreement, Participation
Agreements and Operative Agreements. This Amendment shall not constitute an
amendment or waiver of any other provision of the Senior Credit Agreement, the
Loan Documents or the Operative Agreements (as defined in each of the Synthetic
Guarantees) not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of HCC, Holdings,
the 2000B Lessor, the 2000A Lessor, the 1999 Lessor, the 1998 Lessor or the
other Guarantors that would require a waiver or consent of the Administrative
Agent and/or the 2000B Lenders, the 2000A Lenders, the 1999 Lenders or the 1998
Lenders. Except as expressly amended hereby, the provisions of each of the
Senior Credit Agreement, the Loan Documents and the Operative Agreements (as
defined in each of the Synthetic Guarantees) are and shall remain in full force
and effect.
23
32. Counterparts. This Amendment may be executed in counterparts
and all of the said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page of this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
33. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
34. Expenses. Holdings and HCC agree to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, including, without limitation, the fees and disbursements of counsel
to the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
HANOVER COMPRESSOR COMPANY, as a signatory to
the Senior Credit Agreement and as a Guarantor
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: V.P. - Treasury & Planning
HANOVER COMPRESSION LIMITED PARTNERSHIP
(formerly known as Hanover Compression Inc.), as a
signatory to the Senior Credit Agreement and as a
Guarantor
By: Hanover Compression General Holdings, LLC, its
general partner
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILEGIBLE]
Title: V.P. - Treasury & Planning
HANOVER/XXXXX LIMITED PARTNERSHIP, as a
Guarantor
By: Hanover General Holdings, Inc., its general partner
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: V.P. - Treasury & Planning
HANOVER MAINTECH LIMITED PARTNERSHIP, as a
Guarantor
By: Hanover General Holdings, Inc., its general
partner
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: V.P. - Treasury & Planning
HANOVER LAND LIMITED PARTNERSHIP, as a Guarantor
By: Hanover General Holdings, Inc., its general partner
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: V.P. - Treasury & Planning
HANOVER COMPRESSOR LIMITED HOLDINGS, LLC
By: Hanover General Holdings, Inc., as sole member
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: V.P. - Treasury & Planning
THE CHASE MANHATTAN BANK, as Administrative
Agent, a 2000B Lender, 2000A Lender, 1999 Lender, 1998
Lender, and Senior Credit Lender
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: XXXX XXXXXXXX
Title: MANAGING DIRECTOR
SOCIETE GENERALE, SOUTHWEST AGENCY, as a 1999
Lender and 1998 Lender
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Director
FBTC LEASING CORP, as a 2000B Lender and a 1999
Lender
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: Treasurer
BANK ONE, N.A. (formerly known as The First National
Bank of Chicago), as a 1998 Lender, 1999 Lender, and
2000A Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT
NATIONAL CITY BANK, as a 2000A Lender
By: /s/ Xxx Xxxxxxx
----------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
BNP PARIBAS, as a 2000A Lender, 1999 Lender, and
Senior Credit Lender
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a 2000B Lender and 2000A
Lender
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: XXXXX X. XXXXX
Title: DIRECTOR
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: XXXXX X. XXXXXXXX
Title: DIRECTOR
CITIBANK, N.A., as a 2000B Lender
By: /s/ J.Xxxxxxxxxxx Xxxxx
----------------------------------
Name: J.XXXXXXXXXXX XXXXX
Title: ATTORNEY-IN-FACT
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
AG, as a 2000A Lender and 1999 Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as a 1999
Lender, 1998 Lender, and Senior Credit Lender
By: /s/ Attila Itoc
----------------------------------
Name: Attila Itoc
Title: Senior Vice President
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a 1998 Lender
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: XXXXXX X. XXXXXXXX
Title: Vice President
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
COMERICA BANK, as a 2000B Lender and a 1999 Lender
By: /s/ X. Xxxxxxxx Xxxxxx
----------------------------------
Name: X. XXXXXXXX XXXXXX
Title: ACCOUNT OFFICER
THE BANK OF TOKYO MITSUBISHI LIMITED, as a
2000B Lender
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President & Manager
FIRST UNION NATIONAL BANK, as a 2000A Lender,
1998 Lender, and Senior Credit Lender
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: Vice President
XXXXX FARGO BANK (TEXAS) N.A., as a 1999 Lender
and Senior Credit Lender
By: /s/ Xxxxxx X. Xxxxxxxx III
----------------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Vice President
NATIONAL WESTMINSTER BANK Plc, NEW YORK BRANCH,
as a 2000B Lender
By: /s/ Xxxxxxxx X. Dundee
----------------------------------
Name: XXXXXXXX X. DUNDEE
Title: SENIOR VICE PRESIDENT
THE BANK OF NOVA SCOTIA, as a 2000A Lender, 1999
Lender, 1998 Lender, and Senior Credit Lender
By: /s/ F.C.H. Xxxxx
------------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager, Loan Operations
SUNTRUST BANK, as a 2000B Lender, 2000A Lender,
1999 Lender and 1998 Lender
By: /s/ Xxxx X. Flelda, Jr.
----------------------------------
Name: Xxxx X. Flelda, Jr.
Title: Managing Director
THE FUJI BANK, LIMITED, as a 2000B Lender, 1999
Lender, and 1998 Lender
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
Title: SENIOR VICE PRESIDENT & MANAGER
ARAB BANKING CORPORATION (B.S.C.), as a 2000B
Lender
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: XXXXXX XXXXXXXXX
Title: [ILLEGIBLE]
By: /s/ X. Xxxxxxxxx
----------------------------------
Name: X. XXXXXXXXX
Title: VP HEAD OF CREDIT
BANKERS TRUST COMPANY, as a 1999 Lender and
Senior Credit Lender
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
NATEXIS BANQUES POPULAIRES,
as a 2000A Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Group Manager
/s/ Xxxxx X. Xxxxxxx, III
------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President and
Group Manager
ABN AMRO BANK N.V.,
as a 1999 Lender and 1998 Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
BANK HAPOALIM B.M., as a 2000B Lender
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: FIRST VICE PRESIDENT
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: XXXXX XXXXXXXXX
Title: VICE PRESIDENT
BANK OF SCOTLAND, as a 1999 Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT
ANNEX B
HANOVER COMPRESSION LIMITED PARTNERSHIP
AMENDED DISCLOSURE SCHEDULES
SCHEDULE 5.14 AND 9.14: SUBSIDIARIES
SCHEDULE 8.2(c) AND 11.2(c): EXISTING INDEBTEDNESS
SCHEDULE 8.3(n) AND 11.3(n): EXISTING LIENS
SCHEDULE 8.4 AND 11.4: GUARANTEE OBLIGATIONS
