EXHIBIT 10.41
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 30, 2000 (this "Amendment"),
to (i) the Guarantee (the "2000A Guarantee"), as defined in the Participation
Agreement, dated as of March 13, 2000 (as the same may be, and may have been,
amended, supplemented or otherwise modified from time to time, the "2000A
Participation Agreement"), among Hanover Compressor Company ("Holdings"),
Hanover Compression Inc., a Delaware corporation ("HCC"), Hanover Equipment
Trust 2000A, (the "2000A Lessor"), First Union National Bank and Scotiabanc Inc.
(the "2000A Investors"), the lenders parties thereto (the "2000A Lenders"), and
The Chase Manhattan Bank, a New York banking corporation, as the agent for the
2000A Lenders (the "Agent"), (ii) the Guarantee (the "1999 Guarantee"), as
defined in the Participation Agreement, dated as of June 15, 1999 (as the same
may be, and 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"), and Societe Generale Financial Corporation and FBTC
Leasing Corp., Inc. (the "1999 Investors"), the lenders parties thereto (the
"1999 Lenders") and the Agent as agent for the 1999 Lenders, (iii) the Guarantee
(the "1998 Guarantee"), as defined in the Participation Agreement, dated as of
July 22, 1998 (as the same may be, and may have been, amended, supplemented or
otherwise modified from time to time, the "1998 Participation Agreement"), among
HCC, Hanover Equipment Trust 1998A (the "1998 Lessor"), Societe Generale
Financial Corporation (the "1998 Investor"), and the lenders parties thereto
(the "1998 Lenders") and the Agent, as agent for the 1998 Lenders and (iv) the
Amended and Restated Senior Credit Agreement (as the same may be, and may have
been, amended, supplemented or otherwise modified from time to time, the "Senior
Credit Agreement"), dated March 13, 2000, among Holdings, HCC, the Agent, and
the lenders parties thereto (the "Senior Credit Lenders"). The 2000A
Participation Agreement, the 1999 Participation Agreement and the 1998
Participation Agreement are collectively hereinafter referred to as the
"Participation Agreements".
W I T N E S S E T H:
WHEREAS, Holdings and HCC have requested that the Agent and the
Required Lenders under each of the Synthetic Guarantees and the Senior Credit
Agreement amend certain covenants and certain defined terms in each of the
Synthetic Guarantees and the Senior Credit Agreement; and
WHEREAS, the Agent and the Required Lenders under each of the
Synthetic Guarantees and the Senior Credit Agreement are agreeable to the
requested amendments, but only on the terms and subject to the conditions set
forth herein;
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:
I. Defined Terms. As used in this Amendment, terms defined in
the preamble hereof and the recitals hereto are used herein as so defined, terms
defined in any of the
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Participation Agreements and the Senior Credit Agreement and not defined herein
are used herein as therein defined and the following terms shall have the
following meanings:
"Synthetic Guarantee" shall mean any of the 2000A Guarantee, the
1999 Guarantee, or the 1998 Guarantee.
"Guarantor" shall mean a Guarantor under any of the Synthetic
Guarantees or the Senior Credit Agreement.
II. Amendments to the Senior Credit Agreement and the Synthetic
Guarantees.
1. Amendment to Subsection 1.1 of the Senior Credit Agreement
and Subsection 1(b) of each of the Synthetic Guarantees. (a) Subsection 1.1 of
the Senior Credit Agreement is hereby amended by deleting therefrom the
definitions of the following defined terms in their entireties and substituting
in place thereof the following new definitions, and Subsection l(b) of each of
the Synthetic Guarantees is hereby amended by inserting therein in alphabetical
order such defined terms with such definitions:
"Consolidated EBITDA": for any period, with respect to any
Person, the sum of (a) Consolidated Earnings Before Interest and Taxes for
such Person for such period plus, (b) all amounts attributable to
depreciation and amortization, determined in accordance with GAAP (to the
extent such amounts have been deducted in determining Consolidated Earnings
Before Interest and Taxes for such period) plus, (c) all amounts classified
as extraordinary charges for such period (to the extent such amounts have
been deducted in determining Consolidated Earnings Before Interest and
Taxes for such period) minus, (d) all amounts classified as extraordinary
income for such period (to the extent such amounts have been included in
determining Consolidated Earnings Before Interest and Taxes for such
period); provided that, if during such period such Person shall have made a
Material Acquisition, Consolidated EBITDA for such period shall be
calculated after giving pro forma effect to such Material Acquisition as if
such Material Acquisition had occurred on the first day of such period;
provided further that, the foregoing proviso shall have effect only if the
Agent has been furnished with unaudited, or, if available, audited,
consolidated financial statements of the acquired property for such period,
such financial statements to include the balance sheet and statements of
income and cash flows reflecting the historical performance of the acquired
property for such period to the extent applicable. As used in this
definition, "Material Acquisition" means any acquisition of property or
series of related acquisitions of property that (a) constitutes assets or
constitutes all or substantially all of the equity interests of a Person
and (b) involves the payment of consideration of at least $15,000,000.
"Equipment Guarantees": (i) the Guarantee dated as of
July 22, 1998 (as amended and restated through March 13, 2000 and as
further amended, supplemented or otherwise modified from time to time),
made by Holdings, HCC, and certain of their subsidiaries listed on the
signature pages, in favor of Hanover Equipment Trust 1998A, The Chase
Manhattan Bank, as agent, and certain lenders and investors, (ii) the
Guarantee dated as of June 15, 1999 (as amended and restated through
March 13, 2000 and as further amended, supplemented or otherwise modified
from time to time), made by Holdings, HCC, and certain of their
subsidiaries listed on the signature pages, in favor of Hanover Equipment
Trust 1999A, The Chase Manhattan Bank, as agent, and certain
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lenders and investors, (iii) the Guarantee dated as of March 13, 2000 (as
amended, supplemented or otherwise modified from time to time), made by
Holdings, HCC and certain of their subsidiaries listed on the signature
pages thereto, in favor of Hanover Equipment Trust 2000A, The Chase
Manhattan Bank, as agent, and certain lenders and investors, (iv) a
Guarantee, in connection with and dated as of the date of the 2000B
Participation Agreement (as amended, supplemented or otherwise modified
from time to time), to be made by Holdings, HCC and certain of their
subsidiaries that will be listed on the signature pages thereto, in favor
of a Delaware business trust that may be named "Hanover Equipment Trust
2000B," The Chase Manhattan Bank, as agent, and certain lenders and
investors and (v) any Guarantee, in connection with and dated as of the
date of an Additional Participation Agreement (as amended, supplemented or
otherwise modified from time to time), to be made by Holdings, HCC and
certain of their subsidiaries that will be listed on the signature pages
thereto, in favor of a Delaware business trust, the agent and certain
lenders and investors.
"Equipment Lease Credit Agreements": (i) the Credit
Agreement dated as of July 23, 1998 (as amended, supplemented or otherwise
modified from time to time), among Hanover Equipment Trust 1998A, as
borrower, the several lenders from time to time parties thereto and The
Chase Manhattan Bank, as agent, (ii) the Credit Agreement dated as of June
15, 1999 (as amended, supplemented or otherwise modified from time to
time), among Hanover Equipment Trust 1999A, as borrower, the several
lenders from time to time parties thereto, the managing agents thereto and
The Chase Manhattan Bank, as agent, (iii) the Credit Agreement dated as of
March 13, 2000 (as amended, supplemented or otherwise modified from time to
time), among Hanover Equipment Trust 2000A, as borrower, the several
lenders from time to time parties thereto, Industrial Bank of Japan, LTD.,
as syndication agent, The Bank of Nova Scotia, as documentation agent and
The Chase Manhattan Bank, as agent, (iv) a Credit Agreement, in connection
with and dated as of the date of the 2000B Participation Agreement (as
amended, supplemented or otherwise modified from time to time), among a
Delaware business trust that may be named "Hanover Equipment Trust 2000B,"
as borrower, the several lenders from time to time parties thereto, a
syndication agent, a documentation agent and The Chase Manhattan Bank, as
agent and (v) any Credit Agreement, in connection with and dated as of the
date of an Additional Participation Agreement (as amended, supplemented or
otherwise modified from time to time), among a Delaware business trust, as
borrower, the several lenders from time to time parties thereto, a
syndication agent, a documentation agent and an agent.
"Equipment Lease Participation Agreements": (i) the
Participation Agreement dated July 22, 1998 (as amended, supplemented or
otherwise modified from time to time), among HCC, Hanover Equipment Trust
1998A, Societe Generale Financial Corporation, as investor, The Chase
Manhattan Bank, as agent, and the lenders parties thereto, (ii) the
Participation Agreement dated June 15, 1999 (as amended, supplemented or
otherwise modified from time to time), among HCC, Hanover Equipment Trust
1999A, Societe Generale Financial Corporation and FBTC Leasing Corp., as
investors, the managing agents thereto, The Chase Manhattan Bank, as agent,
and the lenders parties thereto, (iii) the Participation Agreement dated
March 13, 2000 (as amended, supplemented or otherwise modified from time to
time), among HCC, Hanover Equipment Trust 2000A, First Union National Bank
and Scotiabanc Inc., as investors, Industrial Bank of Japan, LTD., as
syndication agent, The Bank of Nova Scotia, as
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documentation agent, The Chase Manhattan Bank, as agent, and the lenders
parties thereto, (iv) a Participation Agreement (as amended, supplemented
or otherwise modified from time to time, the "2000B Participation
Agreement"), among HCC, a Delaware business trust that may be named
"Hanover Equipment Trust 2000B," an investor or investors, a syndication
agent, a documentation agent, The Chase Manhattan Bank, as agent, and the
lenders parties thereto and (v) any additional participation agreements
that may be entered into, upon notice to the Agent, by and among HCC, a
Delaware business trust, an investor or investors, one or more agents and
the lenders parties thereto (as amended, supplemented or otherwise modified
from time to time, the "Additional Participation Agreements"); provided
that, the 2000B Participation Agreement and any Additional Participation
Agreements shall be considered Equipment Lease Participation Agreements
only so long as (1) such 2000B Participation Agreement and any Additional
Participation Agreements provide for transactions reasonably similar to
those provided for in the Participation Agreements described in (i)-(iii)
above and (2) the aggregate value of (a) the equipment leased under such
2000B Participation Agreement and any Additional Participation Agreements
and (b) any natural gas compressors leased by Holdings or HCC as lessee
under any other leases ("Equipment True Leases") other than the Equipment
Leases, does not exceed $300,000,000.
"Equipment Leases": (i) the Lease dated as of July 23, 1998
(as amended, supplemented or otherwise modified from time to time), between
Hanover Equipment Trust 1998A, as lessor, and HCC, as lessee, (ii) the
Lease dated as of June 15, 1999 (as amended, supplemented or otherwise
modified from time to time), between Hanover Equipment Trust 1999A, as
lessor, and HCC, as lessee, (iii) the Lease dated as of March 13, 2000 (as
amended, supplemented or otherwise modified from time to time), between
Hanover Equipment Trust 2000A, as lessor, and HCC, as lessee, (iv) a Lease,
in connection with and dated as of the date of the 2000B Participation
Agreement (as amended, supplemented or otherwise modified from time to
time), between a Delaware business trust that may be named "Hanover
Equipment Trust 2000B," as lessor, and HCC, as lessee and (v) any Lease, in
connection with and dated as of the date of an Additional Participation
Agreement (as amended, supplemented or otherwise modified from time to
time), between a Delaware business trust, as lessor, and HCC, as lessee.
(b) Subsection 1.1 of the Senior Credit Agreement is hereby amended by
deleting therefrom the definition of the following defined term in its entirety
and substituting in place thereof the following:
"Adjusted EBITDA Companies": Holdings and each of its
wholly-owned Subsidiaries which (i) is organized under a jurisdiction of
the United States, Canada, the United Kingdom and any other country
approved by the Required Lenders and (ii) has at least 90% of its assets
located in any such jurisdiction or which derives at least 90% of its
revenues from such jurisdiction, in each case, at the time the applicable
calculation is being made for purposes of subsection 8.1(c).
(c) Subsection l(b) of each of the Synthetic Guarantees is hereby
amended by inserting therein in alphabetical order the following defined term
and definition:
"Adjusted EBITDA Companies": Holdings and each of its
wholly-owned Subsidiaries which (i) is organized under a jurisdiction of
the United States, Canada, the United Kingdom and any other country
approved by the Required Lenders and (ii) has at
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least 90% of its assets located in any such jurisdiction or which
derives at least 90% of its revenues from such jurisdiction, in each
case, at the time the applicable calculation is being made for purposes
of subsection 11.1(c).
2. Amendment to Subsection 7.2(b) of the Senior Credit
Agreement and Subsection 10.2(b) of each of the Synthetic Guarantees. Subsection
7.2(b) of the Senior Credit Agreement and Subsection 10.2(b) of each of the
Synthetic Guarantees are hereby amended by inserting the following immediately
preceding the final semicolon: ", such certificate to include the original total
dollar amount of any Equipment True Leases".
3. Amendment to Subsection 8.7 of the Senior Credit Agreement
and Subsection 11.7 of each of the Synthetic Guarantees. Subsection 8.7 of the
Senior Credit Agreement and Subsection 11.7 of each of the Synthetic Guarantees
are hereby amended by inserting the following immediately preceding the final
period: ", except to the extent any such excess results from expenses relating
to any Equipment True Leases".
III. General.
1. Effectiveness. This Amendment shall become effective upon
fulfillment of the following conditions precedent: (a) Holdings and HCC shall
have delivered to the Agent duly executed copies of this Amendment, (b) the
Guarantors (other than Holdings or HCC) shall have delivered to the Agent duly
executed copies of this Amendment, (c) the Agent shall have received duly
executed copies of this Amendment from the Required Lenders, and (d) no Default
or Event of Default shall have occurred and be continuing on the date hereof
after giving effect to this Amendment.
2. Representations and Warranties. Holdings, HCC and each of
the other Guarantors hereby represents and warrants that the representations and
warranties contained in each of the Participation Agreements and the Operative
Agreements will be, after giving effect to this Amendment, 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).
3. Continuing Effect of the Senior Credit Agreement,
Participation Agreements and Operative Agreements. This Amendment shall not
constitute an amendment or waiver of any other provision of the Senior Credit
Agreement, 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 2000A Lessor, 1999 Lessor, the
1998 Lessor or the other Guarantors that would require a waiver or consent of
the Agent and/or the 2000A Lenders, 1999 Lenders or 1998 Lenders. Except as
expressly amended hereby, the provisions of each of the the Senior Credit
Agreement, the Loan Documents and the Operative Agreements are and shall remain
in full force and effect.
4. Counterparts. This Amendment 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
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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6. Expenses. Holdings and HCC agree to pay or reimburse the
Agent for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of this Amendment,
including, without limitation, the fees and disbursements of counsel to the
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
HANOVER COMPRESSOR COMPANY, as a signatory to
the Senior Credit Agreement and as a Guarantor
By:
--------------------------------------
Name:
Title:
HANOVER COMPRESSION INC., as a signatory to the
Senior Credit Agreement and as a Guarantor
By:
--------------------------------------
Name:
Title:
HANOVER/SMITH LIMITED PARTNERSHIP, as a
Guarantor
By: Hanover General Holdings, Inc.,
its general partner
By:
--------------------------------------
Name:
Title:
HANOVER MAINTECH LIMITED PARTNERSHIP,
as a Guarantor
By: Hanover General Holdings, Inc.,
its general partner
By:
--------------------------------------
Name:
Title:
HANOVER LAND LIMITED PARTNERSHIP, as a
Guarantor
By: Hanover General Holdings, Inc.,
its general partner
By:
--------------------------------------
Name:
Title:
HANOVER COMPRESSOR LIMITED HOLDINGS, LLC
By: Hanover General Holdings, Inc.,
as sole member
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Agent, a 2000A
Lender, 1999 Lender, 1998 Lender, and Senior
Credit Lender
By:
-------------------------------------
Name:
Title:
ABN AMRO BANK N.V., as a 1999 Lender and 1998
Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as a 2000A Lender, 1999
Lender, 1998 Lender, and Senior Credit Lender
By:
--------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK, as a 2000A Lender,
1998 Lender, and Senior Credit Lender
By:
--------------------------------------
Name:
Title:
BANK OF SCOTLAND, as a 1999 Lender
By:
--------------------------------------
Name:
Title:
BNP PARIBAS, as a 2000A Lender, 1999 Lender, and
Senior Credit Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
FUJI BANK, LIMITED, as a 1999 Lender,
and 1998 Lender
By:
--------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as a 1999 Lender and
Senior Credit Lender
By:
--------------------------------------
Name:
Title:
COMERICA BANK, as a 1999 Lender
By:
--------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as a 1999
Lender, 1998 Lender, and Senior Credit Lender
By:
--------------------------------------
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTBANK AG,
as a 2000A Lender and 1999 Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a 1998 Lender
By:
--------------------------------------
Name:
Title:
BANK ONE, N.A. (formerly known as The First
National Bank of Chicago), as a 1998 Lender, 1999
Lender, and 2000A Lender
By:
--------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD., NEW YORK
BRANCH, as a 2000A Lender and 1999 Lender
By:
--------------------------------------
Name:
Title:
SUNTRUST BANK, as a 2000A Lender, 1999 Lender and
1998 Lender
By:
--------------------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY, as a 1999
Lender and 1998 Lender
By:
--------------------------------------
Name:
Title:
WELLS FARGO BANK (TEXAS) N.A., as a 1999 Lender
and Senior Credit Lender
By:
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a 2000A Lender
By:
--------------------------------------
Name:
Title:
NATEXIS BANQUE BFCE, as a 2000A Lender
By:
--------------------------------------
Name:
Title:
NATIONAL CITY BANK, as a 2000A Lender
By:
---------------------------------
Name:
Title:
FBTC LEASING CORP, as a 1999 Lender
By:
--------------------------------------
Name:
Title: