EXHIBIT 10.47
ASSIGNMENT OF LEASES, RENTS AND GUARANTEE
from
HANOVER EQUIPMENT TRUST 2000A
to
THE CHASE MANHATTAN BANK, as Agent, Assignee
March 13, 2000
ASSIGNMENT OF LEASES, RENTS AND GUARANTEE
THIS ASSIGNMENT OF LEASES, RENTS AND GUARANTEE dated as of March 13,
2000 (this "Assignment"), made by HANOVER EQUIPMENT TRUST 2000A, a Delaware
business trust (the "Assignor"), to THE CHASE MANHATTAN BANK, a New York banking
corporation, in its capacity as Agent (in such capacity, the "Assignee"), 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 Assignee and the financial institutions from time to time parties
thereto (the "Lenders").
Preliminary Statement
A. On date hereof, the Assignor and Hanover Compression Inc. (the
"Lessee") entered in a Lease whereby the Assignor agreed to lease certain
Equipment to the Lessee. Pursuant to the Lease, on the date that any Equipment
is acquired by the Assignor, the Assignor and the Lessee shall execute and
deliver a Lease Supplement to subject such Equipment to the Lease.
Simultaneously with the execution of the Lease, the Guarantor entered into a
Guarantee which, among other obligations, guarantees all of the Lessee's
obligations under the Lease.
B. Pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans to the Assignor in an aggregate amount not to exceed
$[194,000,000] upon the terms and subject to the conditions set forth therein,
to be evidenced by the Notes issued by the Assignor under the Credit Agreement.
C. It is a condition, among others, to the obligation of the Lenders
to make their respective Loans to the Assignor under the Credit Agreement that
the Assignor shall have executed and delivered, and the Lessee and the Guarantor
shall have consented to, this Assignment to the Assignee for the ratable benefit
of the Lenders and the Investors, as provided for in the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined
in this Assignment shall have the respective meanings specified in Annex A to
the Participation Agreement dated as of the date hereof among the Lessor, the
Lessee, the Investors, the Trust Company, the Agent and the Lenders named
therein, as such Participation Agreement may be amended, supplemented or
otherwise modified from time to time. A copy of the Participation Agreement or
of the other agreements referenced herein or therein may be obtained from any of
the parties hereto at the addresses set forth herein.
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2. Assignment. The Assignor hereby irrevocably assigns, transfers,
sets over and conveys to the Assignee, all the following-described property
relating to or arising in connection with the Equipment, whether now owned or
held or hereafter acquired, exclusively and without any reservation thereof unto
the Assignor:
(a) All of the estate, right, title, interest, benefits, powers and
privileges of the Assignor, as lessor, under the Lease, as the Lease is
supplemented from time to time pursuant to one or more Lease Supplements,
including, without limitation, (i) the immediate and continuing right to
make claim for, receive, collect and receipt for all rents, income,
revenues, issues, profits, insurance proceeds, sales proceeds and other
sums payable to or receivable by the Assignor under the Lease, or pursuant
to any provisions thereof, whether as rent or as the purchase price or
termination payment for any interest in the Equipment or otherwise
(including, without limitation, the Maximum Residual Guarantee Amount, the
Purchase Option Price, Termination Value, Basic Rent, Supplemental Rent,
Investor Yield and any sales proceeds payable to the Assignor pursuant to
the Lease) (collectively, the "Lease Rents"), including all cash,
securities or letters of credit, if any, delivered or deposited pursuant
thereto to secure performance by the Lessee of its obligations thereunder,
(ii) the right and power (which right and power are coupled with an
interest) upon the purchase by the Lessee of the interest of the Assignor
in the Equipment in accordance with the Lease to execute and deliver as
irrevocable agent and attorney-in-fact of the Assignor an appropriate
instrument necessary to convey the interest of the Assignor therein, or to
pay over or assign to the Assignee those sums to which it is entitled if
the Lessee becomes obligated to purchase the interest of the Assignor in
the Equipment and to perform all other necessary or appropriate acts as
said agent and attorney-in-fact with respect to any such purchase and
conveyance, (iii) the right to perform all other necessary or appropriate
acts as said agent and attorney-in-fact with respect to any purchase or
conveyance referred to in clause (ii) above, (iv) the right to declare the
Lease to be in default under Section 17.1 thereof, (v) the right to
exercise remedies under or with respect to the Lease, (vi) the right to
make all waivers and agreements on behalf of the Assignor under the Lease
provided for or permitted under the Lease, (vii) the right to give all
notices, consents, releases and other instruments provided under the Lease,
(viii) the right to give all notices of default and to take all action upon
the happening of a Lease Default or a Lease Event of Default, including the
commencement, conduct and consummation of proceedings as shall be permitted
under any provision of the Lease, or by law or in equity, (ix) the right to
receive all notices sent to the Assignor under the Lease, (x) the
Assignor's interest under the Lease in the Lessee's tangible and intangible
property used or arising in connection with the Equipment, including, but
not limited to, permits, licenses, contract rights and prepaid expenses,
(xi) the grant of lien and security interest by the Lessee pursuant to the
Lease; and (xii) the right to do any and all other things whatsoever which
the Assignor is or any lessor or mortgagor or secured party is, or may be
entitled to do under the Lease; provided that the Assignor shall retain,
and the Lease Rents shall not include, the Excepted Payments and the Lessor
shall retain, and the rights and powers assigned herein shall in no event
include, the Excepted Rights and shall be subject to the Shared Rights.
(b) All of the estate, right, title, interest, benefits, powers and
privileges of the Assignor, to and under all other leases, subleases or
licenses of the Equipment, any license, concession, management or other
agreements of a similar kind that permit the use
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or occupancy of the Equipment or any part thereof for any purpose in return
for any payment, now or hereafter entered into by the Assignor
(collectively, the "Other Leases" and, together with the Lease, the
"Leases"), together with all estate, rights, title, interest, benefits,
powers and privileges of the Assignor, as lessor, under the Other Leases
including the immediate and continuing right to make claim for, receive,
collect and receipt for all charges, fees, income, issues, profits,
receipts, rents, revenues or royalties payable under any of the Other
Leases (collectively, the "Other Lease Rents") and all estate, right, title
and interest of the Assignor thereunder, including all cash, securities or
letters of credit, if any, delivered or deposited thereunder to secure
performance by the lessees under Other Leases of their obligations
thereunder; provided that the Assignor shall retain, and the Lease Rents
shall not include, the Excepted Payments and the Lessor shall retain and
the rights and powers assigned herein shall in no event include the
Excepted Rights and shall be subject to the Shared Rights.
(c) All of the estate, right, title, interest, benefits, powers and
privileges of the Assignor, to and under all agreements or contracts for
the sale or other disposition of all or any part of the Equipment, now or
hereafter entered into by the Assignor (collectively, the "Contracts"),
together with all estate, rights, title, interest, benefits, powers and
privileges of the Assignor under the Contracts including, without
limitation, the immediate and continuing right to make claim for, receive,
collect and receipt for all charges, fees, income, issues, profits,
receipts, rents, revenues or royalties payable under any of the Contracts
(collectively, the "Contract Rents" and, together with the Lease Rents and
the Other Lease Rents, the "Rents") and all right, title and interest of
the Assignor thereunder, including all cash, securities or letters of
credit, if any, deposited thereunder to secure performance by the obligors
of their obligations thereunder; provided that the Assignor shall retain,
and the Lease Rents shall not include, the Excepted Payments and the Lessor
shall retain and the rights and powers assigned herein shall in no event
include the Excepted Rights and shall be subject to the Shared Rights.
(d) All of the estate, right, title, interest, benefits, powers and
privileges of the Assignor under the Guarantee including, without
limitation, (i) the immediate and continuing right to make claim for,
receive, collect and receipt for all Guaranteed Obligations and other sums
payable to or receivable by the Assignor under the Guarantee, or pursuant
to any provisions thereof, (ii) the right to exercise remedies under or
with respect to the Guarantee, (iii) the right to make all waivers and
agreements on behalf of the Assignor under the Guarantee provided for or
permitted under the Guarantee, (iv) the right to give all notices,
consents, releases and other instruments provided under the Guarantee, and
(v) the right to give all notices of default and to take all action as
shall be permitted under any provision of the Guarantee or by law or in
equity; provided that the Assignor shall retain the Excepted Payments and
the Lessor shall retain, and the rights and powers assigned herein shall in
no event include, the Excepted Rights and shall be subject to the Shared
Rights.
(e) All of the right, title and interest of the Assignor in and to all
claims and rights to the payment of money at any time arising in connection
with any repudiation, rejection or breach of the Lease by the Lessee or a
trustee or receiver of the Lessee (whether pursuant to the Lease, the
Guarantee or any Other Lease by any lessee thereunder, trustee or receiver
of any such lessee) under any insolvency statute, law or
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regulation, including all rights to recover damages arising out of such
breach or rejection, all rights to charges payable by the Lessee or such
trustee or receiver (or by such lessee, trustee or receiver) in respect of
the Equipment or any portions thereof following rejection, repudiation or
disaffirmance of the Lease or following the entry of an order for relief
under any insolvency statute, law or regulation in respect of the Lessee
(or such lessee) and all rentals and other charges outstanding under the
Lease (or Other Lease) as of the date of entry of such order for relief;
provided that the Assignor shall retain and the Lease Rents shall not
include, the Excepted Payments and the Lessor shall retain and the rights
and powers assigned herein shall in no event include, the Excepted Rights
and shall be subject to the Shared Rights.
The Assignor hereby agrees that any action taken by Assignee (or its designee)
pursuant to this Assignment shall be exclusive, and no party relying on such
action of the Assignee (or such designee) pursuant hereto shall be required to
obtain the concurrence or consent of the Assignor to such action or to a request
for such action. The Assignor further agrees that this Agreement shall not
relieve Assignor from any obligations it may have as lessor under the Lease.
3. Receipt of Payments. The Assignor hereby irrevocably designates
the Assignee (or its designee) to receive all payments of (i) the Lease Rents,
the Other Lease Rents and the Contract Rents and any other sums payable to the
Assignor under the Lease, any Other Lease or any Contract and (ii) all
Guaranteed Obligations and any other sums payable to the Assignor under the
Guarantee. The Assignor agrees to direct (and hereby directs) the Lessee, any
other lessees and any contracting parties to deliver to the Assignee (or its
designee), at its address provided herein or at such other address or to such
other Person as the Assignee shall designate, all such payments and sums on
account of the Rents, and no delivery thereof by the Lessee, such other lessee
or such contracting party shall be of any force or effect unless made to the
Assignee (or its designee), as herein provided. The Rents shall for all
purposes be considered the property of the Assignee and not of the Assignor,
whether before or after the occurrence of an Event of Default.
4. Receipt of Notices. The Assignor hereby designates the Assignee
(or its designee) to receive (in addition to, and not to the exclusion of, the
Assignor) duplicate originals or copies of all notices, undertakings, demands,
statements, documents, financial statements and other communications which the
Lessee, the Guarantor, any other lessee or any contracting party is required or
permitted to give, make, deliver to or serve pursuant to the Lease, the
Guarantee, any Other Lease or any Contract. The Assignor agrees to direct (and
hereby directs) the Lessee, the Guarantor, and such other lessees and
contracting parties to deliver to the Assignee (or its designee), at its address
provided herein or at such other address or to such other Person as the Assignee
shall designate, duplicate originals or copies of all such notices,
undertakings, demands, statements, documents, financial statements and other
communications, and no delivery thereof by the Lessee, the Guarantor, such other
lessee or such contracting party shall be of any force or effect unless made to
the Assignor and also made to the Assignee (or its designee), as herein
provided. The Assignor further agrees that upon receipt by the Assignor of any
such notices, undertakings, demands, statements, documents, financial statements
and other communications, the Assignor shall promptly deliver copies thereof to
the Assignee unless the Assignor shall reasonably believe that the Assignee has
already received such copies.
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5. Irrevocability; Supplemental Instruments. The Assignor agrees
that this Assignment and the designation and direction to the Lessee set forth
in Sections 3 and 4 of this Assignment are irrevocable and that it will not take
any action as lessor under the Lease, or under the Guarantee, or otherwise which
is inconsistent with this Assignment and that any action, assignment,
designation or direction inconsistent herewith shall be void. The Assignor will
from time to time execute and deliver all instruments of further assurance and
do such further acts as may be necessary or proper to carry out more effectively
the purpose of this Assignment.
6. Validity. The Assignor represents and warrants and covenants to
the Assignee that (i) the Assignor has not assigned or executed any assignment
of, and will not assign or execute any assignment of its interest in the Lease,
of the Guarantee, of any Other Lease, of any Contract or of any Rents or of any
other subject matter of this Assignment to anyone other than the Assignee and
any assignment, designation or direction by the Assignor inconsistent herewith
shall be void, (ii) no Lease Event of Default has occurred and is continuing and
(iii) the Assignor has not done any act or executed any document that impairs
the rights of the Assignee to the Lease or the Lease Rents or to the Guarantee
under this Assignment.
7. The Assignor Remains Liable. While the assignment made hereby is
present, direct, absolute and continuing, it has been made for the purpose of
providing the Assignee with security for the performance of the Assignor's
obligations under the Credit Agreement and the Notes and the execution and
delivery hereof shall not impair or diminish in any way the obligations of the
Assignor under the Lease or impose any of such obligations on the Assignee.
Neither the Assignee nor its designee shall be responsible or liable for
performing any of the obligations of the Assignor under the Lease, any Other
Lease or any Contract, for any waste by the Lessee or others, for any dangerous
or defective conditions of the Equipment, for negligence in the management,
upkeep, repair or control of the Equipment or any other act or omission by any
other Person. Nothing contained herein shall operate or be construed to (i)
obligate the Assignee (or its designee) to assume the obligations of the
Assignor under the Lease, any Other Lease or any Contract, to perform any of the
terms and conditions contained in the Lease, any Other Lease or any Contract or
otherwise to impose any obligation upon the Assignee with respect to the Lease,
any Other Lease or any Contract or (ii) place upon the Assignee (or its
designee) any responsibility for the operation, control, care, management or
repair of any of the Equipment or any part thereof. Subject at all times to the
terms and conditions of this Assignment, the Assignor will at all times promptly
and faithfully perform in all respects, or cause to be performed in all
respects, all of its covenants, conditions and agreements contained in the
Lease, any Other Lease or any Contract now or hereafter existing on the part of
the Assignor to be kept and performed.
8. Amendments; Lessee's Consent. The Assignor will not enter into
any agreement subordinating, amending, extending or terminating the Lease or the
Guarantee without the prior written consent thereto of the Assignee, which
consent may be withheld in Assignee's sole discretion, and any such attempted
subordination, amendment, modification, extension or termination without such
consent shall be void. If the Lease, the Guarantee, any Other Lease or any
Contract shall be amended, it shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto.
The Assignor and the Assignee hereby consent to the provisions of Xxxxxx's and
Guarantor's Consent attached to this Assignment and agree to be bound thereby.
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9. Absolute Assignment. The Assignor has, subject to and in
accordance with the terms and conditions of this Assignment, assigned and
transferred unto the Assignee all of the Assignor's right, title and interest in
and to Rents now or hereafter arising from (i) the Lease, any Other Lease or any
Contract heretofore or hereafter made or agreed to by the Assignor and (ii) the
Guarantee, it being intended to establish an absolute transfer and assignment,
subject to and in accordance with the terms and conditions of this Assignment,
of all such Rents, Guaranteed Obligations, the Lease, the Guarantee, the Other
Leases and the Contracts to the Assignee and not merely to grant a security
interest therein. Subject to the terms of the Lease and Xxxxxx's rights
thereunder, the Assignee (or its designee) may in the Assignor's name and stead
operate the Equipment and rent, lease or let all or any portion of the Equipment
to any party or parties at such rental and upon such terms as the Assignee (or
its designee) shall, in its discretion, determine.
10. Ongoing Right to Collect Rents; Receivers. If notwithstanding
the terms of this Assignment, a petition or order for sequestration of rents, or
the appointment of a receiver or some similar judicial action or order is deemed
required under applicable state law to allow the Assignee to continue to collect
the moneys described in paragraphs 2 (a), (b), (c), (d) and (e) of this
Assignment, then it is agreed by the Assignor that any proof of claim or similar
document filed by the Assignee in connection with the breach or rejection of the
Lease by the Lessee thereunder or the trustee of any lessee under any federal or
state insolvency statute shall for the purpose of perfecting the Assignee's
rights conferred in said paragraph 2(e) and to the extent permitted under
applicable law be deemed to constitute action required under such state law.
Upon the occurrence and during the continuance of an Event of Default, the
Assignor hereby consents to the appointment of a receiver for any or all of the
Equipment as a matter of right and without any requirement for notice to the
Assignor and without regard to the solvency of the Assignor or to the collateral
that may be available for the satisfaction of the Notes and all other
obligations under the Credit Agreement and the other Operative Agreements.
11. Amendment. This Assignment may not be amended or otherwise
modified except by a writing signed by the Assignor and the Assignee in
accordance with the terms of the Credit Agreement.
12. Notices. All notices, demands, requests, consents, approvals and
other instruments under this Assignment shall be made in accordance with the
notice provisions of the Participation Agreement.
13. Successors and Assigns. All covenants, agreements,
representations and warranties in this Assignment by the Assignor and the
Assignee shall bind, and shall inure to the benefit of and be enforceable by,
their respective successors and permitted assigns.
14. Severability. If any provision or provisions, or if any portion
of any provision or provisions, in this Assignment 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 parties hereto 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 Assignment shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
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provisions were not contained therein, and that the obligations of the Assignor
under the remainder of this Assignment shall continue in full force and effect.
15. Governing Law. THIS ASSIGNMENT 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.
16. Obligations Are Without Recourse. Anything to the contrary
herein notwithstanding, the Assignor's liability for any sums due hereunder
shall be limited in accordance with Section 9.17 of the Credit Agreement.
17. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed as of the day and year first above written.
HANOVER EQUIPMENT TRUST 2000A
By: Wilmington Trust Company,
not in its individual capacity but
solely as Trustee
By: ___________________________
Name:
Title:
By execution of this Assignment the Investors hereby irrevocably assign,
transfer, set over and convey to the Assignee all of the estate, right, title,
interest, benefits, powers and privileges of the Investors under the Guarantee
which transfer shall be in accordance with all of the terms and provisions of
this Assignment.
FIRST UNION NATIONAL BANK, as an Investor
By: ___________________________
Name:
Title:
SCOTIABANC INC., as an Investor
By: ___________________________
Name:
Title:
XXXXXX'S AND GUARANTOR'S CONSENT
As of this 13th day of March, 2000, HANOVER COMPRESSOR COMPANY, a
Delaware corporation, HANOVER COMPRESSION INC., a Delaware corporation
("Lessee"), and certain of their Subsidiaries listed on the signature pages
hereto (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 2000A, a Delaware business trust ("Assignor"), and joined in by
First Union National Bank and ScotiaBanc Inc., a Delaware corporation, 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 (this "Consent"); (ii) the Lease is 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 Assignor 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 a
Guarantor
By: ______________________________
Name:
Title:
HANOVER COMPRESSION INC., as Lessee and Guarantor
By: ______________________________
Name:
Title:
HANOVER COMPRESSOR LIMITED HOLDINGS, LLC, as a
Guarantor
by Hanover General Holdings, Inc.,
as sole member
By: ___________________________
Name:
Title:
HANOVER MAINTECH LIMITED PARTNERSHIP, as a
Guarantor
by Hanover General Holdings, Inc.,
as general partner
By: ___________________________
Name:
Title:
HANOVER/XXXXX LIMITED PARTNERSHIP,
as a Guarantor
by Hanover General Holdings, Inc.,
as general partner
By:____________________________
Name:
Title:
HANOVER LAND LIMITED PARTNERSHIP,
as a Guarantor
by Hanover General Holdings, Inc.,
general partner
By:________________________________
Name:
Title:
For purposes of Section 5 hereof:
HANOVER EQUIPMENT TRUST 2000A
By: Wilmington Trust Company, not in
its individual capacity but solely
as Trustee
By: ______________________________
Name:
Title:
