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EXHIBIT 10.29
AMENDMENT, WAIVER AND CONSENT
This Amendment, Waiver and Consent dated as of December 23, 1996 (this
"Agreement"), is among Hanover Compressor Company, a Delaware corporation (the
"Borrower"), Joint Energy Development Investments Limited Partnership, a
Delaware limited partnership ("JEDI"), as Agent for the financial institutions
parties to the Loan Agreement described below (the "Agent"), and the
undersigned financial institutions parties to such Loan Agreement (the
"Lenders").
INTRODUCTION
The Borrower, the Agent, and the Lenders are parties to the Loan
Agreement dated as of December 19, 1995 (the "Loan Agreement"), the defined
terms of which are used herein unless otherwise defined herein. The Borrower,
the Agent, and the Lenders have agreed to amend, waive, and consent to certain
matters regarding the Loan Agreement and the Loan Documents as set forth
herein.
THEREFORE, in connection with the foregoing and for other good and
valuable consideration, the Borrower, the Agent, and the Lenders hereby agree
as follows:
1. AMENDMENT TO SECTION 1.1. Section 1.1 of the Loan Agreement is amended
by inserting the following new definitions therein:
"Consolidated Indebtedness Coverage Ratio" shall mean, for any
Person and for any period of its determination, the ratio of (a) such
Person's Consolidated EBITDA for such period to (b) such Person's
Consolidated Indebtedness as of the end of such period.
"Shareholder Subordinated Loan Agreement" shall mean the
Exchange and Subordinated Loan Agreement dated as of December 23,
1996, between the Borrower and certain shareholders of the Borrower.
2. AMENDMENT TO SECTION 4.2. Section 4.2 of the Loan Agreement is amended
by inserting the following new covenant as Section 4.2(h) (and making
appropriate corrections to the punctuation to include Section 4.2(h) in the
listing of covenants of such Section 4.2):
(h) promptly, any and all notices received by the Borrower
under the Shareholder Subordinated Loan Agreement, including, without
limitation, any notices received from any Agent or Senior Lender (as
such terms are defined in the Shareholder Subordinated Loan
Agreement).
3. AMENDMENT TO SECTION 5.1. Section 5.1 of the Loan Agreement is amended
by inserting the following new financial covenant as Section 5.1(g) (and making
appropriate corrections to the
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punctuation to include Section 5.1 (g) in the listing of covenants of such
Section 5.1 ):
(g) As of the last day of the then most recently ended fiscal
quarter of the Borrower, permit the Consolidated Indebtedness Coverage
Ratio of the Borrower and its Qualified Subsidiaries for the preceding
four fiscal quarters ended as of such date to be less than 1.00 to
4.50.
4. AMENDMENT TO SECTION 5.10. Section 5.10 of the Loan Agreement is
amended by deleting paragraphs (a) and (b) thereof in their entirety and
inserting in lieu thereof the following new paragraphs (a) and (b):
(a) investments in the Borrower and Subsidiaries of the
Borrower;
(b) investments in minority interests in Persons engaged
in the natural gas compression and production equipment industries not
to exceed $1,500,000 during any fiscal year of the Borrower;
5. AMENDMENT TO SECTION 6.1(F). Section 6.1(f) of the Loan Agreement is
amended by inserting the following new clause (iv) (and making appropriate
corrections to the punctuation to include clause (iv)):
; or (iv) there shall occur any violation of the subordination
provisions and other provisions for the benefit of the Agent and the
Lenders under the Shareholder Subordinated Loan Agreement, including
those specified in Section 8 thereof; or
6. AMENDMENT TO SECTION 7.2(FL). Section 7.2(e of the Loan Agreement is
amended by inserting the following new financial covenant as Section
7.2(0(viii) (and making appropriate corrections to the punctuation to include
Section 7.2(0(viii) in the listing of covenants of such Section 7.2(0):
(viii) As of the last day of the then most recently ended
month, but including the effect of the Loan as if the Loan had been
outstanding as of such date, the Consolidated Indebtedness Coverage
Ratio of the Borrower and its Qualified Subsidiaries for the preceding
twelve month period ended as of such date shall be equal to or greater
than 1.00 to 4.50.
7. AMENDMENT TO SECTION 7.3(F). Section 7.3(f) of the Loan Agreement is
amended by inserting the following new financial covenant as Section 7.3(f)(v)
(and making appropriate corrections
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to the punctuation to include Section 7.3(0(v) in the listing of covenants of
such Section 7.3(f)):
(v) The Consolidated Indebtedness Coverage Ratio of the
Borrower and its Qualified Subsidiaries for the most recently ended
twelve month period ending as of the last day of the then most
recently ended month, adjusted to reflect the effect of the acquired
assets and the Loan as if such Acquisition and the Loan had been made
at the beginning of such period, shall be equal to or greater than
1.00 to 4.50.
8. WAIVER OF SECTION 5.2. The Agent and the Lenders hereby waive (a) the
Default with respect to, and compliance with, the provisions of Section 5.2 of
the Loan Agreement solely in connection with the posting by the Borrower of
that certain irrevocable documentary letter of credit P-266843 dated November
20, 1996 issued by Chase for the benefit of Banco Commercial Antioqueno S.A.,
as Fiduciary in the face amount of US $816,000.00, and (b) the Default with
respect to Section 4.7 (a) of the Loan Agreement for failure to notify the
Agent and each Lender of the Default described in this paragraph.
9. WAIVER OF SECTION 5.8. The Agent and the Lenders hereby waive
compliance with the provisions of Section 5.8 of the Loan Agreement solely with
respect to (a) the transactions contemplated by the Exchange Agreement (the
"Exchange Agreement"), dated as of December 23, 1996, by and between the
Borrower and JEDI, a copy of which is attached hereto as Exhibit A and (b) the
transactions contemplated by the Shareholder Subordinated Loan Agreement, a
copy of which is attached hereto as Exhibit B.
10. WAIVER OF SUBSECTION 5(J) OF HANOVER ACQUISITION SECURITY AGREEMENT.
The Agent and the Lenders hereby waive compliance with the provisions of
Subsection 5(j) of the Security Agreement made by Hanover Acquisition solely to
the extent required to allow Hanover Acquisition to transfer all of its assets
(including, without limitation, Hanover Acquisition's shares of stock in Astra
Resources International, Inc.) to the Borrower other than Hanover Acquisition's
interest in real property located in East Xxxxxxx, Texas.
11. AMENDMENT TO BORROWER SECURITY AGREEMENT. After giving effect to the
transaction described in paragraph 10 herein, Schedule III of the Security
Agreement made by the Borrower shall be amended to add thereto the asset
locations that are set forth on Exhibit C attached hereto.
12. AMENDMENT TO HANOVER ACQUISITION SECURITY AGREEMENT. After giving
effect to the transaction described in paragraph 10 herein, Schedule III of the
Security Agreement made by Hanover Acquisition shall be amended by deleting all
of the counties and states listed
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under the heading COUNTY/STATE thereon and in lieu thereof, substituting the
word "None".
13. WAIVER OF SUBSECTION 5(B)(II) OF THE HANOVER ACQUISITION PLEDGE
AGREEMENT. In order to permit the consummation of the transaction contemplated
by paragraph 10 hereof, the Agent and the Lenders hereby waive compliance with
the provisions of Subsection 5(b)(ii) of the Pledge Agreement made by Hanover
Acquisition solely to the extent necessary to allow Hanover Acquisition to
transfer its shares of stock in Astra Resources International, Inc. (the "ARI
Shares") to the Borrower.
14. AMENDMENT TO HANOVER ACQUISITION PLEDGE AGREEMENT. Schedule I of the
Pledge Agreement made by Hanover Acquisition is hereby amended by deleting
therefrom the reference to the ARI Shares.
15. WAIVER OF SECTIONS 4.4 AND 5.5. The Agent and the Lenders hereby waive
compliance with Sections 4.4 and 5.5 of the Loan Agreement solely to the extent
necessary to allow the Borrower to cause the dissolution of Astra Resources
International, Inc.; provided. however, that the effectiveness of this waiver
is conditioned upon the completion by the Borrower and Hanover Acquisition of
the transaction contemplated by paragraph 10 hereof.
16. AMENDMENT TO BORROWER PLEDGE AGREEMENT. (a) Schedule I of the Pledge
Agreement made by the Borrower is hereby amended by deleting existing Schedule
I in its entirety and substituting in lieu thereof the modified Schedule I
attached hereto as Exhibit D and in connection therewith, within thirty (30)
days from the date of this Agreement, the Borrower shall deliver to the
Collateral Trustee stock certificates evidencing the Hanover Compressor
Columbia, Inc., shares, the Hanover Caymen, Limited, shares, and the Contract
Compression International Argentina, S.A. shares that are set forth on such
modified Schedule I together with any and all other documents reasonably
requested by the Agent to create a valid, first priority perfected lien in such
shares in favor of the Collateral Agent and (b) Subsection 4(a) of the Pledge
Agreement made by the Borrower is hereby amended by deleting the words "H.C.C.
Compressor de Venezuela, C.A." from the fourth line of such Subsection and
inserting in lieu thereof the words "any Unqualified Subsidiary (as defined in
the Bank Agreement) listed on Schedule I.".
17. WAIVER RELATING TO HANOVER/XXXXX TEXAS LEASEHOLD MORTGAGE. The Agent
and the Lenders hereby waive (a) any Default in respect of and compliance with
Section 4.11 of the Loan Agreement solely to the extent necessary to postpone
the requirement that Hanover/Xxxxx execute and deliver a Mortgage with respect
to its interest in the property described on Exhibit E attached hereto (the
"Hanover/Xxxxx Property") until the earlier of (i) six months from the date
hereof and (ii) the acquisition by Hanover/Xxxxx of the Hanover/Xxxxx Property
and (b) the Default with respect to Section 4.7(a) of the
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Loan Agreement for failure to notify the Agent and each Lender of the Default
described in this paragraph 17.
18. CONSENT TO SHAREHOLDER SUBORDINATED DEBT. The Agent and the Lenders
hereby consent to the Borrower entering into the Shareholder Subordinated Loan
Agreement in the form attached hereto as Exhibit B and making the borrowings
contemplated thereunder.
19. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
that (a) the execution, delivery, and performance of this Agreement are within
the corporate power and authority of the Borrower and have been duly authorized
by appropriate proceedings, (b) this Agreement constitutes the legal, valid,
and binding obligation of the Borrower enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the rights of creditors generally and
general principles of equity, and (c) upon the effectiveness of this Agreement,
the amendment of the Loan Documents as provided for herein, and the completion
of the transactions contemplated hereby, no Event of Default shall exist under
the Loan Documents and there shall have occurred no event which with notice or
lapse of time would become an Event of Default under the Loan Documents, as
amended.
20. EFFECT ON LOAN DOCUMENTS. Except as expressly amended and waived
herein, the Loan Agreement and all other Loan Documents are and shall remain in
full force and effect. The Borrower shall continue to comply with the terms of
the Loan Documents, as amended and waived. This Agreement is a Loan Document
for the purposes of the provisions of the other Loan Documents. Without
limiting the foregoing, any breach of representations, warranties, and
covenants under this Agreement may be a default or event of default under the
Loan Agreement and the other Loan Documents. This Agreement shall not
constitute an amendment, consent or waiver of any other provisions of the Loan
Agreement or the other Loan Documents not expressly referred to herein and
shall not be construed as a waiver, amendment or consent to any further or
future action of the Borrower or any other Loan Party that would require a
waiver, amendment or consent of the Agent and/or the Lenders.
21. EFFECTIVENESS. The effectiveness of this Agreement and the amendments
and waivers set forth herein, is subject to the satisfaction of the following
conditions precedent to the satisfaction of the Agent:
(a) No Default. No Default or Event of Default shall have
occurred and be continuing;
(b) Representations and Warranties. All representations,
warranties, and certifications made or deemed made herein, in the Loan
Agreement or in any other Loan Document by the Borrower or any
Guarantor and in all certificates furnished to
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the Lender pursuant to the provisions hereof shall be true and correct
in all material respects as though made as of the effective date of
this Agreement and after giving effect to the amendments and waivers
set forth herein;
(c) Certificates and Transaction Agreements. The Agent
shall have received (i) a certificate signed by a Responsible Officer
of the Borrower certifying the matters set forth in clauses (a) and
(b) above and the Borrower's compliance with the provisions set forth
in Section 5.2(g) of the Loan Agreement with respect to the
transactions contemplated under the Shareholder Subordinated Loan
Agreement, including the calculations made by the Borrower to comply
with the provisions of Section 5.2(g), (ii) execution counterparts of
this Agreement from the Borrower, the Subsidiaries of the Borrower
listed on the signature pages hereto and the Collateral Trustee, and
(iii) execution copies of that certain Amendment, Waiver and Consent
dated December 23, 1996 executed in connection with the Chemical
Credit Agreement (the "Chemical Waiver"), the Exchange Agreement and
the Shareholder Subordinated Loan Agreement and all transactions
contemplated under the above documents shall have been consummated;
and
(d) Collateral Items. Except as set forth in paragraph 16
herein, all lien filings, stock pledges, and other items required in
connection with the foregoing amendments and waivers have been
completed, including the execution by Hanover Acquisition and the
Borrower of such UCC-1's and UCC-3 assignments and amendments in
connection with the transactions contemplated under paragraph 10
herein that have been delivered to the Borrower prior to the date
hereof to create a valid, perfected, first priority lien in favor of
the Collateral Trustee in the assets that are being transferred to the
Borrower.
22. POST EFFECTIVE DATE MATTERS. After the effective date of this
Agreement, the Borrower covenants and agrees to (a) provide to the Agent prior
to the consummation of the transactions described in Paragraphs 10, 13 and 15
herein, forms of the documents that will be entered into to effect the
transactions described in paragraphs 10, 13 and 15 herein and such forms shall
be reasonably satisfactory to the Agent and (b) execute and deliver to the
Agent such other documents, certificates, opinions and information with respect
to the transactions contemplated hereunder as the Agent may reasonably request.
23. PAYMENT OF EXPENSES. The Borrower agrees to pay or reimburse the Agent
for all of its out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of this Agreement including, without
limitation, the fees and expenses of counsel to the Agent.
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24. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
25. MISCELLANEOUS. The miscellaneous provisions of the Loan Agreement
apply to this Agreement. This Agreement may be signed in any number of
counterparts, each of which shall be an original.
26. CONSENT TO CHEMICAL WAIVER. Pursuant to Section 9.2 of the Loan
Agreement, JEDI, as Agent and as Lender, hereby agrees to waive the terms of
Section 5.11 (b) of the Loan Agreement solely to the extent necessary to allow
for the amendments, modifications and waivers to the Chemical Credit Agreement
contemplated by the Chemical Waiver, a copy of which is attached hereto as
Exhibit F.
THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS, AS DEFINED IN THIS
AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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EXECUTED as of the date first above written.
BORROWER:
HANOVER COMPRESSOR COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGENT:
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED
PARTNERSHIP
By: Enron Capital Management Limited
Partnership, its General Partner
By: Enron Capital Corp., its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LENDER:
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED
PARTNERSHIP
By: Enron Capital Management Limited
Partnership, its General Partner
By: Enron Capital Corp., its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXECUTED as of the date first above written.
BORROWER:
HANOVER COMPRESSOR COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGENT:
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED
PARTNERSHIP
By: Enron Capital Management Limited
Partnership, its General Partner
By: Enron Capital Corp., its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LENDER:
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED
PARTNERSHIP
By: Enron Capital Management Limited
Partnership, its General Partner
By: Enron Capital Corp., its General
Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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Acknowledged and Agreed to as
of the date hereof.
MAINTECH ENTERPRISES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HANOVER/XXXXX, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HANOVER ACQUISITION CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HANOVER LAND COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank),
as Collateral Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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Acknowledged and Agreed to as
of the date hereof
MAINTECH ENTERPRISES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HANOVER/XXXXX, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HANOVER ACQUISITION CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HANOVER LAND COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank)
as Collateral Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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