EXHIBIT 10.41
XXXXXX'S AND GUARANTOR'S CONSENT
As of this 15th day of June, 1999, HANOVER COMPRESSOR COMPANY, a
Delaware corporation ("Lessee"), HANOVER/XXXXX, INC., a Delaware corporation,
HANOVER MAINTECH, INC., a Texas corporation and HANOVER LAND COMPANY, a Texas
corporation (collectively the "Guarantors", individually a "Guarantor"),hereby
consent and agree to all of the terms of the Assignment of Leases, Rents and
Guarantee dated as of the date hereof (the "Assignment") made by HANOVER
EQUIPMENT TRUST 1998A, a Delaware business trust ("Assignor"), and joined in by
SOCIETE GENERALE FINANCIAL CORPORATION, a Delaware corporation, and FBTC LEASING
CORP., a [], in favor of the Chase Manhattan Bank, as Agent under the Credit
Agreement dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among the Assignor, the
Agent and the financial institutions from time to time parties thereto (the
"Lenders"), and further agree as follows:
1. Definitions. Each capitalized term used herein and not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Assignment, as such Assignment may be amended, supplemented or otherwise
modified from time to time.
2. Acknowledgments, Confirmations and Agreements. (a) The Lessee
acknowledges, confirms and agrees that: (i) the Lessee has the right, power and
authority to enter into this consent (the "Consent"); (ii) the Lease in full
force and effect and enforceable in accordance with its terms; (iii) neither the
Lessee nor, to the Lessee's knowledge, the Assignor is in default in the
observance or performance of any condition or agreement to be observed or
performed by the Lessee or the Assignor, respectively, thereunder; (iv) no
Lease Rents have been paid by the Lessee except as provided in the Lease; (v) no
Rent has been waived, released, reduced, discounted or otherwise discharged or
compromised by the Assignor; and (vi) the Lessee has not received notice of any
other assignment of the Lessor's interest in the Lease.
(b) The Guarantors acknowledge, confirm and agree that: (i) the
Guarantors have the right, power and authority to enter into this Consent; and
(ii) the Guarantee is in full force and effect and enforceable in accordance
with its terms.
3. Consent. (a) The Lessee, as lessee under the Lease, consents to the
Assignment and each of the terms thereof, and agrees to pay and deliver to the
Assignee (or its designee) all Lease Rents and other sums payable under the
Lease without any offset, deduction, defense, abatement, deferment, diminution
or counterclaim, and the Lessee will not assert any offset, deduction, defense
(other than the defense of payment to the Assignee (or its designee)),
abatement, deferment, diminution or counterclaim in any proceeding brought under
the Assignment or with respect to the transactions contemplated therein or
herein. The Lessee will not, for any reason whatsoever, seek to recover from the
Assignee (or its designee) any moneys paid to the Assignee (or its designee) by
virtue of the Assignment. Lessee agrees (i) to deliver to the Assignee (or its
designee) and the Assignor, at their addresses provided in the Participation
Agreement or at such other addresses as the Assignee or the Assignor, as the
case may be, may designate, duplicate original or copies of all notices,
undertakings, demands, statements,
documents and other communications which the Lessee is required or permitted to
deliver pursuant to the Lease or the Assignment: (ii) that, subject to the
Excepted Rights, any notice delivered or declaration made to the Lessee by the
Assignee (or its designee) pursuant to the Lease shall be effective as a notice
given or declaration made to the Lessee by the Assignee as lessor under the
Lease; (iii) that the Assignee (and its designee) shall not by reason of the
Assignment be subject to any liability or obligation under the Lease; and (iv)
that, subject to the Excepted Rights, any waiver, consent or approval by the
Assignor under the Lease shall not be valid unless approved in writing by the
Assignee (or its designee).
(b) The Guarantors consent to the Assignment and each of the terms
thereof, and agrees to pay and deliver to the Assignee (or its designee) the
Guaranteed Obligations, subject to the Excepted Rights, and other sums payable
under the Guarantee without any offset, deduction, defense, abatement,
deferment, diminution or counterclaim, and the Guarantors will not assert any
offset, deduction, defense (other than the defense of payment to the Assignee
(or its designee)), abatement, deferment, diminution or counterclaim in any
proceeding brought under the Assignment or with respect to the transactions
contemplated therein or herein. The Guarantors will not, for any reason
whatsoever, seek to recover from the Assignee (or its designee) any moneys paid
to the Assignee (or its designee) by virtue of the Assignment.
(c) Subject to the Excepted Rights, the Lessee shall cause the Lease
Rents and other sums payable to the Assignor under the Lease to be delivered to
the Assignee (or its designee), as agent under the Credit Agreement, as an
absolute net sum, in such manner that the Assignee (or its designee) shall have
"collected funds" on the date and at the time payments are due under the Lease.
(d) The Guarantors shall cause the Guaranteed Obligations, subject to
the Excepted Rights, and other sums payable to the Assignor under the Guarantee
to be delivered to the Assignee (or its designee), as agent under the Credit
Agreement, at its address set forth in Section 13.3 of the Participation
Agreement.
(e) The Lessee hereby agrees to remain obligated under the Lease and
this Consent in accordance with their respective terms, and to take no action to
terminate (except in accordance with the express terms of the Lease), annul,
rescind or avoid the Lease or this Consent or to xxxxx, reduce, offset, suspend
or defer or make any counterclaim or raise any defense (other than the defense
of payment to the Assignee (or its designee)) with respect to the Lease Rents
payable thereunder or to cease paying such Lease Rents to the Assignee (or its
designee) as provided herein.
(f) The Guarantors hereby agree to remain obligated under the Guarantee
and this Consent in accordance with their respective terms, and to take no
action to terminate (except in accordance with the express terms of the
Guarantee), annul, rescind or avoid the Guarantee or this Consent or to xxxxx,
reduce, offset, suspend or defer or make any counterclaim or raise any defense
(other than the defense of payment to the Assignee (or its designee)) with
respect to the Guaranteed Obligations payable thereunder.
(g) The Lessee and the Guarantors hereby agree that upon the occurrence
of a Default or an Event of Default, the Assignee (or its designee) shall have
the right to deliver a notice of such default and make demand for payment under
the Guarantee, which shall be effective for all purposes as if sent by the
Assignor.
(h) The Lessee shall notify the Assignee (or its designee) at its
address specified in the Participation Agreement, or such other address as the
Assignee may designate, of any Lease Event of Default and agrees that no such
default shall entitle the Lessee to terminate, annul, rescind or avoid the Lease
or reduce or xxxxx the Lease Rents or other sums payable thereunder.
4. Amendment or Termination; Assignee's Designation. (a) The Lessee
agrees that it will not, unilaterally or by agreement, subordinate, amend,
supplement, modify, extend (except in accordance with the express terms of the
Lease), discharge, waive or terminate (except in accordance with the express
terms of the Lease) the Lease or this Consent or any provision of any thereof
without the Assignee's prior written consent, which consent may be withheld in
the Assignee's sole discretion, and that any attempted subordination, amendment,
supplement, modification, extension, discharge, waiver or termination without
such consent shall be null and void. In the event that the Lease shall be
amended or supplemented as herein permitted, the Lease, as so amended or
supplemented, shall continue to be subject to the provisions of the Assignment
and this Consent without the necessity of any further act by any of the parties
hereto. Nothing in this Section 4 shall be construed as limiting or otherwise
affecting in any way the Assignor's Excepted Rights or Shared Rights.
(b) The Guarantors agree that they will not, unilaterally or by
agreement, subordinate, amend, supplement, modify, extend (except in accordance
with the express terms of the Guarantee), discharge, waive or terminate (except
in accordance with the express terms of the Guarantee) the Guarantee or this
Consent or any provision of any thereof without the Assignee's prior written
consent, which consent may be withheld in the Assignee's sole discretion, and
that any attempted subordination, amendment, supplement, modification,
extension, discharge, waiver or termination without such consent shall be null
and void. In the event that the Guarantee shall be amended or supplemented as
herein permitted, the Guarantee, as so amended or supplemented, shall continue
to be subject to the provisions of the Assignment and this Consent without the
necessity of any further act by any of the parties hereto. Nothing in this
Section 4 shall be construed as limiting or otherwise affecting in any way the
Assignor's Excepted Rights or Shared Rights.
5. Continuing Obligations of the Assignor and the Lessee. Neither the
execution and delivery of the Assignment, nor any action or inaction on the part
of the Assignee shall impair or diminish any obligations of the Assignor or the
Lessee under the Lease or the Guarantors under the Guarantee, and shall not
impose on the Assignee (or its designee) any such obligations, nor shall it
impose on the Assignee (or its designee) a duty to produce Rents or cause the
Assignee to be a mortgagee in possession for any purpose.
6. Severability. If any provision or provisions, or if any portion of any
provision or provisions, in this Consent is found by a court of law of competent
jurisdiction to be in violation of any local, state or Federal ordinance,
statute, law, administrative or judicial decision, or public policy, and if such
court should declare such portion, provision or provisions to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
the Lessee that such portion, provision or provisions shall be given force to
the fullest possible extent that they are legal, valid and enforceable, that the
remainder of this Consent shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions, were not
contained herein, and that the obligations of the Lessee under the remainder of
this Consent shall continue in full force and effect.
7. Governing Law. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS TO
MATTERS RELATING TO THE CREATION OF LIENS AND THE EXERCISE OF REMEDIES WITH
RESPECT THERETO, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE IN WHICH THE EQUIPMENT IS LOCATED.
IN WITNESS WHEREOF, the Lessee and the Guarantors have caused this Consent
to be duly executed as of the date first written above.
HANOVER COMPRESSOR COMPANY, as
Lessee and Guarantor
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
HANOVER/XXXXX, INC., as Guarantor
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
HANOVER MAINTECH, INC., as Guarantor
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
HANOVER LAND COMPANY, as Guarantor
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
For purposes of Section 5 hereof:
HANOVER EQUIPMENT TRUST 1999A
By: Wilmington Trust Company, not in
its individual capacity but solely
as trustee
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
