EXHIBIT 10.45
WAIVER AND AMENDMENT
WAIVER AND AMENDMENT, dated as of March 15, 2002 (this
"Waiver"), under (i) the Guarantee (the "2000B Guarantee") and the Credit
Agreement (the "2000B Credit Agreement"), 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") and the
Credit Agreement (the "2000A Credit Agreement"), 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") and the Credit
Agreement (the "1999 Credit Agreement"), 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, and (iv) 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 December 3, 2002, 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 and the 1999 Participation Agreement are collectively hereinafter
referred to as the "Participation Agreements". The 2000B Guarantee, the 2000A
Guarantee and the 1999 Guarantee are collectively hereinafter referred to as the
"Synthetic Guarantees", and the 2000B Credit Agreement, the 2000A Credit
Agreement and the 1999 Credit Agreement are collectively referred to herein as
the "Synthetic Credit Agreements".
W I T N E S S E T H:
WHEREAS, pursuant to a report on Form 8-K filed with the
Securities and Exchange Commission on February 26, 2002 Holdings disclosed (the
"8-K Earnings Disclosure") that it would restate earnings for its fiscal year
ended December 31, 2000 and the nine months ended September 30, 2001 to reflect
changes in its accounting treatment for certain transactions;
WHEREAS, Holdings has disclosed to the Lenders under the Senior
Credit Agreement and the Synthetic Credit Agreements that it has violated
Section 30.1(c) of the Lease (as defined in the 2000A Participation Agreement)
as a result of equipment substitutions made prior to the date hereof;
WHEREAS, Holdings and HCC have requested that the Administrative
Agent and the Required Lenders under each of the Synthetic Guarantees, the
Synthetic Credit
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Agreements and the Senior Credit Agreement waive any Default or Event of Default
arising under the Synthetic Guarantees, the Synthetic Credit Agreements and the
Senior Credit Agreement as a result of or with respect to the matters disclosed
in the 8-K Earnings Disclosure and such equipment substitution;
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:
1. Defined Terms. As used in this Waiver, terms defined in the
preamble hereof and the recitals hereto are used herein as so defined, and 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.
2. Waiver of the Senior Credit Agreement, the Synthetic
Guarantees and Synthetic Credit Agreements; Amendment of Synthetic Guarantees
and 2000A Synthetic Lease.
(a) The Required Lenders under the Senior Credit Agreement
waive any Default or Event of Default that may arise (i) under paragraph (d) or
(f) of Section 9 of the Senior Credit Agreement as a result of any default under
Section 7.1, 7.2, 7.6 or 7.7 of the Senior Credit Agreement or Section 10.1,
10.2, 10.6 or 10.7 of the Synthetic Guarantees arising from or with respect to
the matters disclosed in the 8-K Earnings Disclosure, (ii) from non-compliance
with Section 6 of the Senior Credit Agreement arising from or with respect to
the matters disclosed in the 8-K Earnings Disclosure and (iii) under paragraph
(f) of Section 9 of the Senior Credit Agreement arising from the matters
described in paragraph (d) below.
(b) The Required Lenders under each Synthetic Credit Agreement
waive any Default or Event of Default that may arise (i) under paragraph (c) or
(k) of Section 6 of the Synthetic Credit Agreements as a result of any default
under Section 10.1, 10.2, 10.6 or 10.7 of the Synthetic Guarantees or Section
7.1, 7.2, 7.6 or 7.7 of the Senior Credit Agreement arising from or with respect
to the matters disclosed in the 8-K Earnings Disclosure, (ii) from
non-compliance with Section 4 of the Synthetic Credit Agreements arising from
or with respect to the matters disclosed in the 8-K Earnings Disclosure and
(iii) under paragraph (k) of Section 6 of the Synthetic Credit Agreements and
paragraph (g) of Section 17.1 of the Leases (as defined in the respective
Participation Agreements) arising from the matters described in paragraph (d)
below.
(c) Section 10.2 of each of the Synthetic Guarantees is amended
by adding at the end of paragraph (b) thereof the phrase:
and to set forth a description of each substitution of Equipment
made during such period pursuant to Section 30.1 (i) of the
Lease, including the identification, value and location of the
Replacement Equipment and the Equipment for which it has been
substituted and (ii) the other Equipment subject to the Lease,
including the identification, value and location of such
Equipment.
(d) The Required Lenders under the 2000A Synthetic Credit
Agreement waive any Default, Event of Default or Lease Event of Default that
may arise under Section 17 of the Lease (as defined in the 2000A Participation
Agreement) or under paragraph (f) of Section 6 of the Credit Agreement (as
defined in the 2000A Participation Agreement) as a result of any default under
Section 30.1(c) of the Lease prior to the Effective Date (as defined below). The
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Required Lenders under the Credit Agreement (as defined in the 2000A
Participation Agreement) agree that the reference in Section 30.1(c) of the
Lease (as defined in the 2000A Participation Agreement) to the "Initial Closing
Date" shall instead be deemed to be a reference to the Effective Date.
3. Effectiveness. The Waiver shall become effective (the
"Effective Date") upon fulfillment of the following conditions precedent: (a)
Holdings and HCC shall have delivered to the Administrative Agent duly executed
copies of this Waiver, (b) the Administrative Agent shall have received duly
executed copies of this Waiver from the Required Lenders under each of the
Senior Credit Agreement and the Synthetic Guarantees, (c) no Default or Event of
Default shall have occurred and be continuing on the date hereof after giving
effect to this Waiver and (d) HCC shall have delivered to the Lenders (as
defined in the 2000A Participation Agreement) an Appraisal of the Equipment
subject to the Lease on the Effective Date demonstrating that the value of the
Equipment subject to the Lease is equal to or greater than the Termination Value
(as such terms are defined in the 2001A Participation Agreement).
4. Representations and Warranties. Holdings and HCC hereby
represent and warrant that the representations and warranties contained in each
of the Senior Credit Agreement, the Loan Documents and the Operative Agreements
(as defined in each of the Synthetic Guarantees) will be, after giving effect to
this Waiver, 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).
5. Continuing Effect of the Senior Credit Agreement,
Participation Agreements and Operative Agreements. This Waiver shall not
constitute an amendment or waiver of any other provision of the Senior Credit
Agreement, the Loan Documents or the Operative Agreements 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
or the 1999 Lessor that would require a waiver or consent of the Administrative
Agent and/or the 2000B Lenders, the 2000A Lenders or the 1999 Lenders. Except as
expressly amended hereby, the provisions of each of the Senior Credit Agreement,
the Loan Documents and the Operative Agreements are and shall remain in full
force and effect.
6. Counterparts. This Waiver 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
Waiver by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
7. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. 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
Waiver, including, without limitation, the fees and disbursements of counsel to
the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Waiver to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
HANOVER COMPRESSOR COMPANY
By: /s/ [ILLEGIBLE]
------------------------------
Name:
Title:
HANOVER COMPRESSION LIMITED PARTNERSHIP
By: /s/ [ILLEGIBLE]
------------------------------
Name:
Title:
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
BNP PARIBAS
----------------------------------
[LENDER]
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
/s/ Xxxxx X. Xxxxx
----------------------------------
Bankers Trust Company
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: MANAGING DIRECTOR
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
CREDIT SUISSE FIRST BOSTON
/s/ Xxxxx X. Xxxxx
------------------------------
XXXXX X. XXXXX
DIRECTOR
/S/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX
ASSOCIATE
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
Natexis Banques Populaires
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Group Manager
By: /s/ Xxxxx X. Xxxxxxx, III
------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President and
Group Manager
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
RZB Finance LLC
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: PRESIDENT
By: /s/ XXXXX X. XXXXX
------------------------------
Name: XXXXX X. XXXXX
Title: First Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
Bank One, NA (Main Office Chicago)
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
BANK OF SCOTLAND
----------------------------------
[LENDER]
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
SUNTRUST BANK
----------------------------------
[LENDER]
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
COMERICA BANK
----------------------------------
[LENDER]
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: First Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
ARABBANKING CORPORATION
------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: XXXXXXX X. XXXXXXXXX
Title: VP HEAD OF CREDIT
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
----------------------------------
Bank of Tokyo-Mitsubishi, Ltd.
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: VP & Manager
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
THE ROYAL BANK OF SCOTLAND PLC
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: XXXXX XXXXXXX
Title: SENIOR VICE PRESIDENT.
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: XXXXX XXXXXXX
Title: SENIOR VICE PRESIDENT.
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
First Union National Bank
----------------------------------
[LENDER]
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
XXXXX FARGO BANK (TEXAS) N.A.
----------------------------------
By: /s/ P.C. Xxxxxxxx III
------------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
CREDIT LYONNAIS NEW YORK BRANCH
----------------------------------
[LENDER]
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: Senior Vice President
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 0000
Xxx Xxxx xx Xxxx Xxxxxx
By: /s/ X. Xxxx
------------------------------
Name: X. Xxxx
Title: Senior Manager
HANOVER COMPRESSOR COMPANY WAIVER AND
AMENDMENT DATED AS OF MARCH 15, 2002
JPMORGAN CHASE BANK
----------------------------------
[LENDER]
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: XXXX XXXXXXXX
Title: MANAGING DIRECTOR
