Exhibit 10.68
ASSIGNMENT OF LEASE, RENTS AND GUARANTEE
from
HANOVER EQUIPMENT TRUST 2001A, Assignor
to
WILMINGTON TRUST FSB, as Collateral Agent, Assignee
August 31, 2001
ASSIGNMENT OF LEASE, RENTS AND GUARANTEE
THIS ASSIGNMENT OF LEASE, RENTS AND GUARANTEE dated as of August 31,
2001 (this "Assignment"), made by HANOVER EQUIPMENT TRUST 2001A, a Delaware
business trust (the "Assignor"), to WILMINGTON TRUST FSB, a federal savings
bank, in its capacity as Collateral Agent (in such capacity, "Assignee") under
the Indenture dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "Indenture") among the Assignor, Wilmington
Trust FSB, as Indenture Trustee, and the Hanover Guarantors, and under the
Participation Agreement (as defined below), for the first priority benefit of
the Securityholders and the second priority benefit of the Certificate Holders.
Preliminary Statement
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A. On the date hereof, the Assignor and Hanover Compression Limited
Partnership (the "Lessee") entered in a Lease whereby the Assignor agreed to
lease certain Equipment to the Lessee. Simultaneously with the execution of the
Lease, the Guarantors entered into the Hanover Guarantee which, among other
obligations, guarantees all of the Lessee's obligations under the Lease.
B. Pursuant to the Indenture, the Securityholders have agreed to
advance to the Assignor in an aggregate amount not to exceed $300,000,000 upon
the terms and subject to the conditions set forth therein, to be evidenced by
the Securities issued by the Assignor under the Indenture.
C. Pursuant to the Trust Agreement and the Participation Agreement,
the Certificate Holders have agreed to make the Certificate Holder Contributions
to the Assignor in an aggregate amount not to exceed $9,300,000 upon the terms
and subject to the conditions set forth therein, to be evidenced by Certificates
issued by Assignor under the Trust Agreement.
D. It is a condition, among others, to the obligation of the
Securityholders to purchase Securities and the Certificate Holders to make
Certificate Holder Contributions to the Assignor that the Assignor shall have
executed and delivered, and the Lessee and the Guarantors shall have consented
to, this Assignment to the Assignee for the ratable benefit of, first, the
Securityholders and thereafter the Certificate Holders.
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 Certificate Holders, the Hanover Guarantors, the Indenture Trustee
and the Trust Company, 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) Subject to Section 7 hereof, 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 Final Rent Payment, the Purchase Option Price, Equity Proceeds
Purchase Price, Control Purchase Price, Excess Proceeds Purchase Price,
Termination Value, Basic Rent, Supplemental Rent, Certificate Holder 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, certificates, financial statements and other
documents 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 in, to and under all other leases, subleases or
licenses of the Equipment, any license,
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concession, management or other agreements of a similar kind that permit the use
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 Hanover 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 Hanover Guarantee, or pursuant to any
provisions thereof, (ii) the right to exercise remedies under or with respect to
the Hanover Guarantee, (iii) the right to make all waivers and agreements on
behalf of the Assignor under the Hanover Guarantee provided for or permitted
under the Hanover Guarantee, (iv) the right to give all notices, consents,
releases and other instruments provided under the Hanover 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 Hanover 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 Hanover Guarantee or
any Other Lease by any lessee thereunder, trustee or
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receiver of any such lessee) under any insolvency statute, law or 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
Hanover 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.
The Assignor shall at all times retain the right, but not to the exclusion of
the Assignee, (A) to receive from the Lessee all notices, certificates and other
documents and all information that the Lessee is permitted or required to give
or furnish to the "Lessor" pursuant to the Lease, the Participation Agreement or
any other Operative Document, (B) to inspect the Equipment, (C) to retain all
rights with respect to insurance that Section 14 of the Lease specifically
confers upon the "Lessor", (D) to provide such insurance as the Lessee shall
have failed to maintain or as the Assignor may desire and (E) to enforce
compliance by the Lessee with the provisions of Section 8, 9, 10, 11 and 14 of
the Lease.
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 Guarantors, any other lessee or any contracting party is required or
permitted to give, make, deliver to or serve pursuant to the Lease, the
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Hanover Guarantee, any Other Lease or any Contract. The Assignor agrees to
direct (and hereby directs) the Lessee, the Guarantors, 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 Guarantors, 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.
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 Hanover 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 Hanover 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 Hanover 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 Indenture, the Securities, the Participation Agreement and
the other Operative Agreements to which it is a party 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
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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
Hanover Guarantee, or any waiver of the terms thereof, without the prior written
consent thereto of the Assignee, which consent may be withheld in Assignee's
sole discretion, and any such attempted waiver, subordination, amendment,
modification, extension or termination without such consent shall be void. If
the Lease, the Hanover 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.
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 Hanover
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 Hanover 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 Securities and all other
obligations under the Indenture and the other Operative Agreements.
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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 Indenture and the Participation 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
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 9.8 of the Indenture.
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.
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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 2001A
By: Wilmington Trust Company,
not in its individual capacity but
solely as Trustee
By:
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Name:
Title:
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By execution of this Assignment, the Certificate Holders hereby
irrevocably assign, transfer, set over and convey to the Assignee all of the
estate, right, title, interest, benefits, powers and privileges of the
Certificate Holders under the Hanover Guarantee, which transfer shall be in
accordance with all of the terms and provisions of this Assignment (provided,
however, that the Certificate Holders shall not be liable for any of the
obligations of the Assignor under this Agreement).
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Certificate Holder
By:
-------------------------------------
Name:
Title:
XXXXXX'S AND GUARANTOR'S CONSENT
As of this 31st day of August, 2001, HANOVER COMPRESSOR COMPANY, a
Delaware corporation, HANOVER COMPRESSION LIMITED PARTNERSHIP, a Delaware
limited partnership ("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
Lease, Rents and Guarantee dated as of the date hereof (the "Assignment") made
by HANOVER EQUIPMENT TRUST 2001A, a Delaware business trust ("Assignor"), and
joined in by the Certificate Holders, in favor of Wilmington Trust FSB, as
Collateral Agent under the Indenture and the Participation Agreement, 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 Hanover 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
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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 Hanover 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 Collateral Agent under the Indenture, 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 Hanover
Guarantee to be delivered to the Assignee (or its designee), as Collateral Agent
under the Indenture, at its address set forth in Section 14.3 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 Hanover
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
Hanover Guarantee), annul, rescind or avoid the Hanover 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 Hanover Guarantee, which shall be effective for all purposes as if sent by
the Assignor.
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(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 Hanover Guarantee), discharge, waive or terminate
(except in accordance with the express terms of the Hanover Guarantee) the
Hanover 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 Hanover Guarantee
shall be amended or supplemented as herein permitted, the Hanover 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 Hanover 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
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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.
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IN WITNESS WHEREOF, the Lessee and the Guarantors have caused this
Consent to be duly executed as of the date first written above.
HANOVER COMPRESSION LIMITED PARTNERSHIP,
as Lessee
By: ____________________________________
Name:
Title:
HANOVER COMPRESSOR COMPANY, as a
Guarantor
By: ____________________________________
Name:
Title:
HANOVER APPLIED PROCESS SOLUTIONS,
INC., as a Guarantor
By: ____________________________________
Name:
Title:
EUREKA ENERGY LIMITED PARTNERSHIP,
as a Guarantor
By: ____________________________________
Name:
Title:
HANOVER ACQUISITION LIMITED
PARTNERSHIP, as a Guarantor
By: ____________________________________
Name:
Title:
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HANOVER COMPRESSOR LIMITED HOLDINGS
LLC, as a Guarantor
By: ____________________________________
Name:
Title:
HANOVER LAND LIMITED PARTNERSHIP, as
a Guarantor
By: ____________________________________
Name:
Title:
HANOVER MAINTECH LIMITED
PARTNERSHIP, as a Guarantor
By: ____________________________________
Name:
Title:
HANOVER/XXXXX LIMITED PARTNERSHIP, as
a Guarantor
By: ____________________________________
Name:
Title:
HANOVER OEC COMPRESSION
CORPORATION, as a Guarantor
By: ____________________________________
Name:
Title:
PRODUCTION OPERATORS CORPORATION,
as a Guarantor
By: ____________________________________
Name:
Title:
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PRODUCTION OPERATORS, INC., as a
Guarantor
By: ____________________________________
Name:
Title:
For purposes of Section 5 hereof:
HANOVER EQUIPMENT TRUST 2001A
By: Wilmington Trust Company, not in
its individual capacity but solely
as Trustee
By: ______________________________
Name:
Title:
