1
EXHIBIT 10.28
AMENDMENT, WAIVER, AND CONSENT
This Amendment, Waiver, and Consent dated as of April 14, 1997 (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 (as modified, 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 and waive certain
provisions set forth in the Loan Agreement and the Loan Documents and to grant
certain consents in connection therewith.
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. WAIVER REGARDING INCREASE IN CHEMICAL CREDIT AGREEMENT; INSTRUCTIONS
TO COLLATERAL TRUSTEE. The Agent and the Lenders hereby waive compliance with
Sections 5.2 and 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 and related documents contemplated by the Amendment, Waiver and
Consent dated as of April 14, 1997, among the Borrower and the parties to the
Chemical Credit Agreement in the form provided to the Agent prior to the
execution of this Agreement, including the increase in the amount of the
aggregate commitments of the lenders under the Chemical Credit Agreement (the
"Chemical Commitment Amount") provided for thereunder, provided that (a)
neither the Chemical Commitment Amount nor the aggregate outstanding principal
amount under the Chemical Credit Agreement shall exceed $150,000,000 and (b)
contemporaneously with each drawdown under the Chemical Credit Agreement the
Agent is provided with a certificate from a Responsible Officer of the Borrower
stating that no Default or Event of Default under the Loan Documents exists or
could reasonably be expected to occur as a result of such drawdown. The
Borrower agrees to comply with the requirements of this paragraph. The Agent
and the Lenders hereby waive compliance with the thirty day written notice
requirement of Subsection 8 of the Collateral Trust Agreement solely with
respect to the increase in the Chemical Credit Agreement described above and
agree that such increased indebtedness under the Chemical Credit Agreement
shall constitute Additional Indebtedness and Master Debt under the class of
Bank Obligations under the Collateral Trust Agreement and instruct the
Collateral Trustee to act accordingly.
2
2. WAIVER OF RELATED TO OKLAHOMA DISPOSITION; INSTRUCTIONS TO COLLATERAL
TRUSTEE. The Agent and the Lenders hereby waive compliance with the provisions
of the Loan Documents solely to the extent necessary to permit the Borrower's
prior sale of its Oklahoma facility located at 0000 Xxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxx (and waive any existing Event of Default caused solely by such
sale). The Agent and the Lenders instruct the Collateral Trustee to release
and terminate the Mortgage on such facility, but not any other security
interests granted under any other Security Documents (including security
interests on natural gas compressors which shall remain in effect).
3. WAIVER OF RELATED TO COLUMBUS FACILITY; INSTRUCTIONS TO COLLATERAL
TRUSTEE. The Agent and the Lenders hereby waive compliance with the provisions
of Section 5.3 of the Loan Agreement solely to the extent necessary to permit
Hanover/Xxxxx to grant purchase money Liens on the real property and fixtures
located at the production equipment fabrication facility of Hanover/Xxxxx in
Columbus, Texas, in connection with the purchase thereof provided that (a) the
amount of Indebtedness secured thereby does not exceed $2,400,000 (and for the
purposes of the Loan Agreement such Indebtedness shall be deemed to be
permitted under Section 5.2(d) of the Loan Agreement, and therefore the
incurrence of such Indebtedness must meet the requirements under Section 5.2(d)
of the Loan Agreement), (b) such Liens cover only the real property and
fixtures comprising such facility (the determination of the fixtures which may
be subject to such Liens to be determined under the intercreditor agreement
discussed in clause (c) following), and (c) the purchase money lender provides
the Collateral Trustee with an intercreditor agreement in form and substance
satisfactory to the Agent waiving any rights to other collateral, including any
rights to natural gas compressors. Upon execution of such intercreditor
agreement, the Agent and the Lenders shall instruct the Collateral Trustee to
release any fixtures determined to be appropriate collateral for the purchase
money lender. The Agent and the Lenders hereby waive compliance with the
provisions of Section 5.4 of the Loan Agreement solely to the extent necessary
to permit the Borrower to guaranty such Indebtedness. The Agent and the
Lenders hereby waive compliance with the provisions of Section 5.16 of the Loan
Agreement solely to the extent necessary to permit a negative pledge on such
real property and fixtures in favor of the purchase money lender.
4. WAIVER OF RELATED TO FUTURE MORTGAGES. The Agent and the Lenders
hereby waive compliance with the provisions of the Loan Documents solely to the
extent necessary to permit the Borrower and its Subsidiaries to purchase and
own the real properties described in numbered paragraphs 2 and 3 above without
the requirement of Mortgages on such properties until further notice from the
Agent that the terms of the Loan Documents requiring the Borrower and its
Subsidiaries to provide such Mortgages are again in effect, at which time the
Borrower and its Subsidiaries must provide all such
2
3
Mortgage requested by the Agent to the extent such Mortgages could have been
requested under the terms of the Loan Documents prior to such time. The
Borrower agrees to comply and cause compliance with the requirements of this
paragraph
5. AMENDMENT TO SCHEDULE I OF THE HCC PLEDGE AGREEMENT; INSTRUCTIONS TO
COLLATERAL TRUSTEE. Schedule I of the HCC Pledge Agreement is hereby amended
by deleting the number "2" from the column representing the stock certificate
number relating to the pledged shares of Contract Compression International
Argentina S.A., and substituting in lieu thereof the number "1" and the Agent
and the Lenders instruct the Collateral Trustee to act accordingly.
6. 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 dully
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 amendments, waivers, and consents related to the Loan
Document 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.
7. EFFECT ON LOAN DOCUMENTS. Except as expressly modified 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 modified 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 modify any provisions of the Loan
Agreement or the other Loan Documents that are not expressly referred to herein
and shall not be construed as an amendment, waiver or consent to any further or
future action of the Borrower or any other Loan Party that would require an
amendment, waiver, or consent of the Agent or the Lenders.
8. EFFECTIVENESS. The effectiveness of this Agreement and the
amendments, waivers, and consents set forth herein are 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;
3
4
(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 the Lender pursuant to
the provisions hereof shall bc 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, waivers, and consents set forth
herein;
(c) This Agreement. This Agreement shall have been
executed and delivered by the parties hereto; and
(d) Chemical Credit Agreement. The Agent shall have
received a copy of the executed and delivered Amendment, Waiver and
Consent related to the Chemical Credit Agreement described above and
executed in connection with this Agreement and an approval of this
Agreement from the Lenders under the Chemical Credit Agreement.
9. 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.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. 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. This Agreement may be
executed and delivered by telecopier.
[the remainder of this page is intentionally blank]
4
5
THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS, AS DEFINED IN THIS
AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARITIES 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.
EXECUTED as of the date first above written.
BORROWER:
HANOVER COMPRESSOR COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGENT AND LENDER:
JOINT ENERGY DEVELOPMENT INVESTMENTS
LIMITED PARTNERSHIP,
as Agent and as Lender
By: Enron Capital Management Limited
Partnership, its General Partner
By: Enron Capital Corp.,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
5
6
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:
---------------------------
6
