Exhibit 10.65
GUARANTEE
GUARANTEE dated as of August 31, 2001, made by HANOVER COMPRESSION
LIMITED PARTNERSHIP, a Delaware limited partnership; HANOVER COMPRESSOR COMPANY,
a Delaware corporation; HANOVER APPLIED PROCESS SOLUTIONS, INC., a Delaware
corporation; EUREKA ENERGY LIMITED PARTNERSHIP, a Delaware limited partnership;
HANOVER ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership; HANOVER
COMPRESSOR LIMITED HOLDINGS LLC, a Delaware limited liability company; HANOVER
LAND LIMITED PARTNERSHIP, a Delaware limited partnership; HANOVER MAINTECH
LIMITED PARTNERSHIP, a Delaware limited partnership; HANOVER/XXXXX LIMITED
PARTNERSHIP, a Delaware limited partnership; HANOVER OEC COMPRESSION
CORPORATION, an Oklahoma corporation; PRODUCTION OPERATORS CORPORATION, a
Delaware corporation; and PRODUCTION OPERATORS, INC., a Florida corporation
(individually, a "Guarantor" and collectively, the "Guarantors"), in favor of
the Beneficiaries (as hereinafter defined).
Preliminary Statement
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The Guarantors wish to induce (i) Hanover Equipment Trust 2001A (the
"Lessor") to enter into this Guarantee and the other Operative Agreements to
which it is a party; (ii) the Securityholders to purchase the Securities; and
(iii) the Certificate Holders to make the Certificate Holder Contributions and
to enter into the Trust Agreement, the Participation Agreement (as hereinafter
defined) and the other Operative Agreements to which they are a party.
NOW, THEREFORE, in consideration of the premises contained herein and
to induce (i) the Lessor to enter into this Guarantee and the other Operative
Agreements to which it is a party; (ii) the Securityholders to purchase the
Securities; and (iii) the Certificate Holders to make the Certificate Holder
Contributions and to enter into the Trust Agreement, the Participation Agreement
and the other Operative Agreements to which it is a party, the Guarantors hereby
agree for the benefit of the Lessor, the Collateral Agent, the Securityholders,
the Indenture Trustee and the Certificate Holders, and their respective
successors and assigns (individually a "Beneficiary" and collectively, the
"Beneficiaries"), as follows:
1. Defined Terms. (a) Capitalized terms not otherwise defined herein
(including in the Preliminary Statement) shall have the meanings ascribed to
them in Annex A to the Participation Agreement dated as of the date hereof among
Hanover Compression Limited Partnership (the "Lessee"), the Lessor, the
Certificate Holders, the Guarantors, Indenture Trustee, Collateral Agent and the
Trust Company, as the same may from time to time be amended, supplemented or
otherwise modified (the "Participation Agreement").
(b) As used herein, the following terms shall have the following
meanings:
"Contribution Obligations" means the collective reference to the
outstanding amount of the Certificate Holder Contributions and the Certificate
Holder Yield with respect thereto and all rights of the Certificate Holders to
receive payments under the Trust Agreement and any of the other Operative
Agreements.
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"Guaranteed Obligations" means the collective reference to (i) the
Security Obligations, (ii) the Contribution Obligations and (iii) the Lease
Obligations and, with respect to each such obligation, interest accruing thereon
at the applicable rate provided in the Operative Agreements before and after
maturity and interest accruing at the then applicable rate provided in the
Operative Agreements after the filing of any petition in bankruptcy, or the
commencement of an insolvency, reorganization or like proceeding, whether or not
a claim for post-filing or post-petition interest is allowed in such proceeding
and whether such obligations are direct or indirect, absolute or contingent, due
or to become due, or now existing or hereinafter incurred, which may arise,
under, out of or in connection with any of the Operative Agreements, any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, Certificate Holder Contributions or
Certificate Holder Yield, reimbursement obligations, fees, indemnities, costs,
expenses, or payment obligations (including, without limitation, all fees and
disbursements of counsel to any of the Beneficiaries that are required to be
paid by Hanover pursuant to the terms of the Operative Agreements).
"Lease Obligations" means the collective reference to the payment
obligations and undertakings applicable to the Lessee contained in or arising
under the Lease or any of the other Operative Agreements to which the Lessee is
a party, including, but not limited to, the full and punctual payment by the
Lessee, when due, of any and all Rent, the payments required pursuant to Section
17.2 and 17.3 of the Lease, the Purchase Option Price and the Final Rent
Payment.
"Security Obligations" means the collective reference to the unpaid
principal of and interest on the Securities and all other payment obligations
and liabilities of the Lessor to the Securityholders under the Securities, the
Indenture and any of the other Operative Agreements.
"Tranche B Portion" means that portion of the principal balance of the
Securities in excess of that portion of the principal balance of the Securities
equal to (a) 77.33% times (b) the aggregate principal balance of the Securities.
2. Guaranty. (a) Subject to the provisions of paragraph 2(b), the
Guarantors hereby unconditionally and irrevocably fully guarantee, as primary
obligor and not merely as surety, jointly and severally with each other
Guarantor, to the Beneficiaries and their respective successors, endorsees,
transferees and assigns, the prompt and complete payment when due (whether at
the stated maturity, by acceleration or otherwise) of the Guaranteed
Obligations.
(b) Anything in any of the Operative Agreements to the contrary
notwithstanding, the Guarantors shall not at any time be required to make any
payment with regard to the Tranche B Portion or with regard to the Contribution
Obligations unless at such time a Lease Event of Default has occurred and is
continuing.
(c) The Guarantors further agree, jointly and severally, to pay any
and all costs, expenses (including all fees and disbursements of counsel) and
damages which may be paid or incurred in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting from the
Guarantors, any or all of the Guaranteed Obligations and/or enforcing any rights
with respect to, or collecting against, the Guarantors under this Guarantee.
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3. Right of Set-off. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Certificate Holders, Indenture Trustee, Collateral Agent and each
Securityholder is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Lessor, the
Guarantors or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by the Certificate
Holders, Indenture Trustee, Collateral Agent or such Securityholder (including,
without limitation, by branches and agencies of the Certificate Holders,
Indenture Trustee, Collateral Agent or such Securityholder wherever located) to
or for the credit or the account of the Guarantors against and on account of the
obligations and liabilities of the Guarantors hereunder or under any of the
other Operative Agreements, and all other claims of any nature or description
arising out of or connected with this Guarantee or any other Operative
Agreement, irrespective of whether the Certificate Holders, Indenture Trustee,
Collateral Agent or such Securityholder shall have made any demand hereunder and
although said obligations, liabilities or claims, or any of them, shall be
contingent or unmatured. The Certificate Holders, Indenture Trustee, Collateral
Agent and each Securityholder shall notify such Guarantor promptly of any such
set-off and the application made by the Certificate Holders, Indenture Trustee
or such Securityholder; provided, that the failure to give such notice shall not
affect the validity of such set-off and application.
4. No Subrogation. Notwithstanding any payment or payments made by
the Guarantors hereunder or any set-off or application of funds of the
Guarantors by any Securityholder, the Guarantors shall not be entitled to
exercise or enforce any subrogation rights of the Certificate Holders, Indenture
Trustee, Collateral Agent or any Securityholder against the Lessor or any other
Person or any collateral security or guarantee or right of offset held by the
Certificate Holders, Indenture Trustee, Collateral Agent or any Securityholder
for the payment of the Guaranteed Obligations, nor shall the Guarantors seek or
be entitled to seek any contribution or reimbursement from the Lessor or any
other Person in respect of payments made by the Guarantors hereunder, until all
amounts owing to the Certificate Holders, Indenture Trustee, Collateral Agent
and the Securityholders by the Lessor on account of the Guaranteed Obligations
and all amounts owing hereunder are paid in full and the Commitments are
terminated. If any amount shall be paid to the Guarantors on account of such
subrogation rights at any time when all of the Guaranteed Obligations and all
amounts owing hereunder shall not have been paid in full or the Commitments
shall not have been terminated, such amount shall be held by the Guarantors in
trust for the Certificate Holders, Indenture Trustee, Collateral Agent and the
Securityholders, segregated from other funds of the Guarantors, and shall,
forthwith upon receipt by the Guarantors, be turned over to the Collateral Agent
in the exact form received by the Guarantors (duly indorsed by the Guarantors to
the Collateral Agent, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as the Collateral Agent
may determine.
5. Amendments, etc. with respect to the Guaranteed Obligations;
Waiver of Rights. The Guarantors shall remain obligated hereunder
notwithstanding that, without any reservation of rights against the Guarantors
and without notice to or further assent by the Guarantors, any demand for
payment of any of the Guaranteed Obligations made by the
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Certificate Holders, Indenture Trustee, Collateral Agent or any Securityholder
may be rescinded by such party and any of the Guaranteed Obligations continued,
and the Guaranteed Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Certificate Holders, Indenture Trustee,
Collateral Agent or any Securityholder, and the Indenture, the Participation
Agreement and the other Operative Agreements may be amended, modified,
supplemented or terminated, in whole or in part, as the Indenture Trustee (or
the Required Holders, as the case may be) may deem advisable from time to time
in accordance with the terms thereof, and any collateral security, guarantee or
right of offset at any time held by the Certificate Holders, Indenture Trustee,
Collateral Agent or any Securityholder for the payment of the Guaranteed
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Certificate Holders, the Indenture Trustee, the Collateral Agent or any
Securityholder shall have any obligation to protect, secure, perfect or insure
any Lien at any time held by it as security for the Guaranteed Obligations or
for this Guarantee or any property subject thereto. When making any demand
hereunder against the Guarantors, the Certificate Holders, Indenture Trustee,
Collateral Agent or any Securityholder may, but shall be under no obligation to,
make a similar demand on the Lessor, the Lessee or any other guarantor, and any
failure by the Certificate Holders, Indenture Trustee, Collateral Agent or any
Securityholder to make any such demand or to collect any payments from the
Lessor, the Lessee or any other guarantor or any release of the Lessor, the
Lessee or such other guarantor shall not relieve the Guarantors from their
obligations under this Guarantee, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of the Certificate Holders,
Indenture Trustee, Collateral Agent or any Securityholder against the
Guarantors. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Certificate
Holders, Indenture Trustee, Collateral Agent or any Securityholder upon this
Guarantee or acceptance of this Guarantee, the Guaranteed Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guarantee; and all dealings between the Lessor and such Guarantor, on the one
hand, and the Indenture Trustee, Collateral Agent and the Securityholders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Lessor or such Guarantor with respect to the Guaranteed Obligations.
Each Guarantor understands and agrees that this Guarantee shall be construed as
a continuing, absolute and unconditional guarantee and surety of payment (and
not merely a guaranty of collection) without regard to (a) the validity,
regularity or enforceability of the Indenture or any other Operative Agreement,
any of the Guaranteed Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Beneficiaries, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by the Lessor, the Lessee or such Guarantor against the
Beneficiaries, or (c) any other circumstance whatsoever (with or without notice
to or knowledge of the Lessor, the Lessee or such Guarantor) which constitutes,
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or might be construed to constitute, an equitable or legal discharge of the
Lessor or the Lessee for the Guaranteed Obligations, or of such Guarantor under
this Guarantee, in bankruptcy or in any other instance. When pursuing its rights
and remedies hereunder against any Guarantor, the Beneficiaries may, but shall
be under no obligation to, pursue such rights and remedies as it may have
against the Lessor, the Lessee or any other Person or against any collateral
security or guarantee for the Guaranteed Obligations or any right of offset with
respect thereto, and any failure by the Beneficiaries to pursue such other
rights or remedies or to collect any payments from the Lessor, the Lessee or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the Lessor, the
Lessee or any such other Person or any such collateral security, guarantee or
right of offset, shall not relieve such Guarantor of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Beneficiaries against such Guarantor.
This Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon such Guarantor and the
successors and assigns thereof, and shall inure to the benefit of the
Beneficiaries and their respective successors, indorsees, transferees and
assigns, until all the Guaranteed Obligations and the obligations of such
Guarantor under this Guarantee shall have been satisfied by payment in full and
the Commitments shall be terminated, notwithstanding that from time to time
during the term of the Indenture the Lessor or the Lessee may be free from any
Guaranteed Obligations. Each Guarantor further agrees that, as between such
Guarantor, on the one hand, and the Beneficiaries on the other hand, (x) the
maturity of the Guaranteed Obligations may be accelerated as provided in the
Indenture and the other Operative Agreements for the purposes of its guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guaranteed Obligations and (y) in the event
of any such declaration of acceleration of such Guaranteed Obligations, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantors for the purposes of this Guarantee.
7. Reinstatement. This Guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Guaranteed Obligations is rescinded or must otherwise be restored
or returned by the Certificate Holders, Indenture Trustee, Collateral Agent or
any Securityholder upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Lessor, the Lessee or the Guarantors, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Lessor, the Lessee or the Guarantors or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
8. Limitation on Liability; Termination, Release and Discharge. The
obligations of each Guarantor hereunder will be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the Senior Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of such Guarantor under this Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law.
Each Guarantor may consolidate with or merge into or sell its assets to
Hanover or another Guarantor without limitation. Subject to Section 9.10 of the
Participation Agreement,
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each Guarantor may consolidate with or merge into or sell all or substantially
all its assets to a corporation, partnership or trust other than the Hanover or
another Guarantor (whether or not affiliated with the Guarantor), except that if
the surviving corporation of any such merger or consolidation is a Subsidiary of
Hanover, such merger, consolidation or sale shall not be permitted unless (i)
the Person formed by or surviving any such consolidation or merger assumes all
the obligations of such Subsidiary under this Guarantee pursuant to a
supplemental guarantee in form and substance reasonably satisfactory to the
Indenture Trustee, the Indenture and this Guarantee, (ii) immediately after
giving effect to such transaction, no Default or Event of Default exists; and
(iii) Hanover delivers to the Indenture Trustee an Officers' Certificate and an
Opinion of Counsel addressed to the Indenture Trustee with respect to the
foregoing matters. Upon the sale or disposition of a Guarantor (by merger,
consolidation, the sale of its Capital Stock or the sale of all or substantially
all of its assets (other than by lease), and whether or not the Guarantor is the
surviving corporation in such transaction) to a Person (whether or not an
Affiliate of the Guarantor) which is not Hanover or a Restricted Subsidiary of
Hanover (other than a Receivables Entity), which sale or disposition is
otherwise in compliance with the Participation Agreement (including Sections
9.6, 9.8 and 9.10 thereof), such Guarantor will be deemed released from all its
obligations under the Indenture and its Subsidiary Guarantee and such Subsidiary
Guarantee will terminate; provided, however, that any such termination will
occur only to the extent that all obligations of such Guarantor under the Senior
Credit Agreement and all of its guarantees of, and under all of its pledges of
assets or other security interests which secure, any other Indebtedness of
Hanover or its Restricted Subsidiaries will also terminate upon such release,
sale or transfer.
A Guarantor will be deemed released and relieved of its obligations
under this Guarantee without any further action required on the part of Hanover
or such Guarantor upon the designation of such Guarantor as an Unrestricted
Subsidiary in accordance with the terms of the Indenture.
9. Subordination. (a) Agreement to Subordinate. Each Guarantor agrees
that its obligations under this Guarantee are subordinated in right of payment
to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness and Guarantor Senior Indebtedness of any Guarantor and that the
subordination is for the benefit of and enforceable by the holders of Senior
Indebtedness and Guarantor Senior Indebtedness of the applicable Guarantor. This
Guarantee shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness and Guarantor Senior Subordinated Indebtedness of each
Guarantor and only Indebtedness of a Guarantor that is Senior Indebtedness and
Guarantor Senior Indebtedness of such Guarantor will rank senior to this
Guarantee in accordance with the provisions set forth herein.
(b) Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of any Guarantor to creditors upon a total or partial
liquidation or a total or partial dissolution of such Guarantor or in a
reorganization, bankruptcy, insolvency, receivership or similar proceeding
relating to such Guarantor or its properties or an assignment for the benefit of
creditors or marshalling of such Guarantor's assets or liabilities:
(i) holders of Senior Indebtedness or Guarantor Senior
Indebtedness of such Guarantor shall be entitled to receive payment in
full in cash or Cash Equivalents of the Senior Indebtedness or
Guarantor Senior Indebtedness (including interest accruing after, or
which would accrue but for the commencement of, any proceeding referred
to in this
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clause (b) at the rate specified in the applicable Senior Indebtedness
or Guarantor Senior Indebtedness, whether or not a claim for such
interest would be allowed), of such Guarantor before any Beneficiary
shall be entitled to receive any payment of the Guaranteed Obligations
with respect to this Guarantee; and
(ii) until the Senior Indebtedness or Guarantor Senior
Indebtedness of such Guarantor is paid in full in cash or Cash
Equivalents, any payment or distribution to which any Beneficiary would
be entitled but for this Section shall be made to holders of Senior
Indebtedness or Guarantor Senior Indebtedness of such Guarantor, as
their respective interests may appear.
(c) Default on Guarantor Senior Indebtedness of Guarantors. A
Guarantor shall not pay any obligations in respect of this Guarantee
(collectively, "pay Guaranteed Obligations") if (A) any Senior Indebtedness or
Guarantor Senior Indebtedness of such Guarantor is not paid when due in cash or
Cash Equivalents or (B) any other default on Senior Indebtedness or Guarantor
Senior Indebtedness of such Guarantor occurs and the maturity of such Senior
Indebtedness or Guarantor Senior Indebtedness of such Guarantor is accelerated
in accordance with its terms unless, in either case, (x) the default has been
cured or waived and any such acceleration has been rescinded in writing or (y)
such Senior Indebtedness or Guarantor Senior Indebtedness of such Guarantor has
been paid in full in cash or Cash Equivalents; provided, however, that such
Guarantor may pay Guaranteed Obligations, without regard to the foregoing, if
such Guarantor and the Indenture Trustee receive written notice approving such
payment from any Representative of the Senior Indebtedness or Guarantor Senior
Indebtedness of such Guarantor with respect to which either of the events set
forth in clause (A) or (B) of this sentence has occurred and is continuing.
During the continuance of any default (other than a default described in clause
(A) of the preceding sentence or a default resulting in acceleration described
in clause (B) of the preceding sentence) with respect to any Designated Senior
Indebtedness of any Guarantor pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, such Guarantor may not pay Guaranteed Obligations for a period (a
"Payment Blockage Period") commencing upon the receipt by the Indenture Trustee
of written notice (a "Blockage Notice") of such default from the
Representative(s) of the holders of such Designated Senior Indebtedness of such
Guarantor specifying an election to effect a Payment Blockage Period and ending
179 days thereafter (or earlier if such Payment Blockage Period is terminated
(i) by written notice to the Indenture Trustee from the Person or Persons who
gave such Blockage Notice, (ii) because the default giving rise to such Blockage
Notice is no longer continuing or (iii) because such Designated Senior
Indebtedness of such Guarantor has been repaid in full in cash or Cash
Equivalents). Notwithstanding the provisions of the immediately preceding
sentence, unless (1) the holders of such Designated Senior Indebtedness of a
Guarantor or the Representative(s) of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness or (2) an event described in
clause (A) of this Section 9(c) then exists, such Guarantor may resume
Guaranteed Obligations payments after the end of such Payment Blockage Period.
Not more than one Blockage Notice may be given, and not more than one Payment
Blockage may occur, in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Indebtedness of any
Guarantor during such period.
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(d) Acceleration of Payment of Guaranteed Obligations. If payment of
Guaranteed Obligations is accelerated because of a Lease Event of Default, each
Guarantor shall promptly notify the holders of the Designated Senior
Indebtedness of such Guarantor (or their Representatives) of the acceleration;
provided, however, that any Guarantor shall be obligated to notify such a
Representative only if such Representative has delivered or caused to be
delivered to any Guarantor an address for service of such a notice (and any
Guarantor shall only be obligated to deliver the notice to the address so
specified). If any Designated Senior Indebtedness of any Guarantor is
outstanding, no Guarantor shall pay Guaranteed Obligations until five (5)
Business Days after the holders or Representative(s) of such Designated Senior
Indebtedness of such Guarantor receive notice of such acceleration and,
thereafter, may pay Guaranteed Obligations, only if this Section 9 otherwise
permits payments at that time.
(e) When Guaranteed Obligations Must Be Paid Over. If Guaranteed
Obligations are paid (or distribution made with respect thereof) to any
Beneficiary that because of this Section 9 should not have been paid or made,
such Beneficiary shall hold such payment or distribution in trust for holders of
Senior Indebtedness and Guarantor Senior Indebtedness of any Guarantor and
promptly pay it over to them as their respective interests may appear.
(f) Subrogation. After all Senior Indebtedness and Guarantor Senior
Indebtedness of any Guarantor is paid in full and until the Guaranteed
Obligations under this Guarantee are paid in full in cash or Cash Equivalents,
each Beneficiary shall be subrogated to the rights of holders of Senior
Indebtedness and Guarantor Senior Indebtedness of any Guarantor to receive
payments applicable to Senior Indebtedness and Guarantor Senior Indebtedness of
any Guarantor. Any payment made under this Section 9 to holders of Senior
Indebtedness or Guarantor Senior Indebtedness of any Guarantor which otherwise
would have been made to a Beneficiary is not, as between any Guarantor and such
Beneficiary, a payment by any Guarantor of its obligations hereunder.
(g) Relative Rights. This Section 9 defines the relative rights of the
Beneficiaries and holders of any Guarantor's Senior Indebtedness and Guarantor
Senior Indebtedness. Nothing in this Section 9 shall:
(i) impair, as between any Guarantor and any Beneficiary, the
obligation of any Guarantor which is absolute and unconditional, to pay
Guaranteed Obligations under this Guarantee in accordance with its
terms; or
(ii) prevent any Beneficiary from exercising its available
remedies upon a Lease Default or Lease Event of Default, subject to the
rights of holders of any Guarantor's Senior Indebtedness or Guarantor
Senior Indebtedness to receive payments and distributions otherwise
payable to the Beneficiaries.
(h) Subordination May Not Be Impaired by Any Guarantor. No right of
any holder of Senior Indebtedness or Guarantor Senior Indebtedness of any
Guarantor to enforce the subordination of the obligations under this Guarantee
shall be impaired by any act or failure to act by any Guarantor or by the
failure to comply with the terms of this Guarantee.
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(i) Distribution or Notice to Representative. Whenever a payment or
distribution is to be made or a notice given to holders of Senior Indebtedness
or Guarantor Senior Indebtedness of any Guarantor, the distribution may be made
and the notice given to their Representative (if any).
(j) Section 9 Not to Prevent Events of Default or Limit Right to
Accelerate. The failure to make a Guaranteed Obligations payment, by reason of
any provision in this Section 9, shall not be construed as preventing the
occurrence of a Lease Default or Lease Event of Default. Nothing in this Section
9 shall have any effect on the right of Lessor to accelerate the Guaranteed
Obligations or exercise any other remedies in connection therewith.
(k) Reliance by Holders of Guarantor Senior Indebtedness on
Subordination Provisions. Lessor acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness or Guarantor Senior
Indebtedness of any Guarantor, whether such Senior Indebtedness or Guarantor
Senior Indebtedness was created or acquired before or after the date hereof, to
acquire, or to continue to hold, such Senior Indebtedness or Guarantor Senior
Indebtedness and such holder of Senior Indebtedness or Guarantor Senior
Indebtedness of any Guarantor shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness or Guarantor Senior Indebtedness.
10. Payments. The Guarantors hereby guarantee that payments hereunder
will be paid to the Collateral Agent without set-off or counterclaim in Dollars
at the office of the Collateral Agent located at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
11. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) when delivered by hand, (b) one
Business Day after delivery to a nationally recognized courier service
specifying overnight delivery, (c) three Business Days after being deposited in
the mail, certified or registered, postage prepaid, or (d) in the case of
facsimile notice, when sent and receipt has been confirmed, addressed as
follows:
(a) if to the Lessor, the Certificate Holders, the Collateral
Agent or Indenture Trustee, at their respective addresses or
transmission numbers for notices provided in Section 14.3 of the
Participation Agreement; and
(b) if to any Guarantor, at its address or transmission number
for notices set forth on the signature page below.
The Certificate Holders, Indenture Trustee, each Securityholder and
each Guarantor may change its address and transmission numbers for notices by
notice in the manner provided in this Section 12.
12. Severability. Any provision of this Guarantee which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
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prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
13. Integration. This Guarantee and the other Operative Agreements
represents the agreement of the Guarantors with respect to the subject matter
hereof and there are no promises or representations by the Lessor, the
Certificate Holders, the Collateral Agent, any Securityholder or any Guarantor
relative to the subject matter hereof not reflected herein or in the other
Operative Agreements.
14. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by an instrument in writing executed by the
Guarantors and the Collateral Agent.
(b) None of the Lessor, the Certificate Holders, the Collateral Agent,
nor any Securityholder shall by any act (except by a written instrument pursuant
to Section 14(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the Lessor,
the Certificate Holders, the Collateral Agent or any Securityholder, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Certificate Holders, Indenture Trustee or any
Securityholder of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Certificate Holders,
Indenture Trustee or such Securityholder would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
15. Section Headings. The section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
16. Successors and Assigns. The rights and obligations of the
Guarantors may not be assigned or delegated without the prior written consent of
the Beneficiaries, other than with respect to a merger, consolidation or other
similar transaction involving any Guarantor or any direct or indirect beneficial
owner of any Guarantor (to the extent otherwise permitted in the Operative
Agreements). This Guarantee shall be binding upon the successors and assigns of
the Guarantors and shall inure to the benefit of the Lessor, the Certificate
Holders, the Collateral Agent and the Securityholders and their successors and
assigns.
17. SUBMISSION TO JURISDICTION; WAIVERS. (a) EACH GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
11
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND THE OTHER OPERATIVE
AGREEMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT
OF ANY JUDGEMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH PERSON AT ITS ADDRESS SET FORTH IN SECTION 11 OR AT
SUCH OTHER ADDRESS OF WHICH THE INDENTURE TRUSTEE SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(v) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES.
18. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
19. Survival of Representations, Warranties, etc. All representations,
warranties, covenants and agreements made herein and in statements or
certificates delivered pursuant hereto shall survive any investigation or
inspection made by or on behalf of the Lessor and shall continue in full force
and effect until all of the obligations of the Guarantors under this Guaranty
shall be fully performed in accordance with the terms hereof, and until the
payment in full of all the Guaranteed Obligations, and until performance in full
of all obligations of Hanover in accordance with the terms and provisions of
such agreements.
12
20. Authority of Collateral Agent. Each Guarantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Guarantee
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Certificate Holders, the Securityholders and the
Collateral Agent, be governed by the Indenture, the Participation Agreement and
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Collateral Agent and each Guarantor, the Collateral
shall be conclusively presumed to be acting as Collateral Agent for the
Securityholders and the Certificate Holders with full and valid authority so to
act or refrain from acting, and no Guarantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
21. Third Party Beneficiaries. Each Guarantor expressly acknowledges
and agrees that each of the Trust Company, the Trustee, and the Indenture
Trustee, and their respective successors, assigns, directors, shareholders,
partners, officers, employees, agents and Affiliates shall be a third party
beneficiary of this Guaranty.
22. Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 4 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to Beneficiaries and each Guarantor shall remain liable to the
Beneficiaries for the full amount guaranteed by such Guarantor hereunder.
23. WAIVER OF JURY TRIAL. THE GUARANTORS EACH HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTY AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
HANOVER COMPRESSION LIMITED
PARTNERSHIP
By: ____________________________________
Name:
Title:
HANOVER COMPRESSOR COMPANY
By: ____________________________________
Name:
Title:
HANOVER APPLIED PROCESS SOLUTIONS,
INC.
By: ____________________________________
Name:
Title:
EUREKA ENERGY LIMITED PARTNERSHIP
By: ____________________________________
Name:
Title:
HANOVER ACQUISITION LIMITED
PARTNERSHIP
By: ____________________________________
Name:
Title:
14
HANOVER COMPRESSOR LIMITED
HOLDINGS LLC
By: ____________________________________
Name:
Title:
HANOVER LAND LIMITED PARTNERSHIP
By: ____________________________________
Name:
Title:
HANOVER MAINTECH LIMITED
PARTNERSHIP
By: ____________________________________
Name:
Title:
HANOVER/XXXXX LIMITED PARTNERSHIP
By: ____________________________________
Name:
Title:
HANOVER OEC COMPRESSION
CORPORATION
By: ____________________________________
Name:
Title:
PRODUCTION OPERATORS CORPORATION
By: ____________________________________
Name:
Title:
15
PRODUCTION OPERATORS, INC.
By: ____________________________________
Name:
Title:
Address for Notices for all Guarantors:
00000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy: 000-000-0000
