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EXHIBIT 10.54
MANAGEMENT AGREEMENT
This Management Agreement ("Agreement"), is entered into as of this 14th day
of November, 2000, by and between OEC Compression Corporation, an Oklahoma
corporation ("OEC"), and Hanover Compression Inc., a Delaware corporation
("Hanover"). OEC and Hanover are sometimes collectively referred to herein as
the "Parties" and individually as a "Party."
W I T N E S S E T H:
WHEREAS, OEC, Hanover Compressor Company ("HCC") and Caddo Acquisition,
Inc. are parties to that certain Agreement and Plan of Merger dated as of July
13, 2000 as amended by that certain Amendment No. 1 dated as of even date
herewith (the "Merger Agreement") pursuant to which OEC would be acquired by HCC
and become a wholly owned subsidiary of HCC; and
WHEREAS, it was contemplated that the merger and transactions contemplated
by the Merger Agreement (the "OEC Acquisition") would have been consummated by
no later than mid-October of 2000; and
WHEREAS, the OEC Acquisition has been delayed due to factors outside the
control of HCC and OEC and as a result of such delay, OEC has suffered losses of
key employees; and
WHEREAS, OEC is engaged in compressor rental and the provision of full
compression services (the "Business"); and
WHEREAS, Hanover has expertise in the compressor rental and the provision
of full compression services business and, subject to the terms and conditions
set forth herein, OEC desires to engage the services of Hanover to provide day
to day management of the field and shop operations and certain portions of the
Business of OEC; and
WHEREAS, during the month of October, 2000 Hanover has been providing
planning, consulting and integration services to the Company; and;
WHEREAS, subject to the terms and conditions of this Agreement, Hanover
desires to accept such engagement;
NOW, THEREFORE, in view of the foregoing recitals and in consideration of
the mutual covenants contained herein, OEC hereby engages Hanover, and Hanover
accepts such engagement, to supervise and manage certain aspects of the day-to-
day field and shop operations of the Business as more specifically set forth
below.
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I.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meaning
ascribed thereto unless otherwise specified or clearly required by the context
in which such term is used.
1.1 Affiliates. "Affiliates," means, with respect to either Party,
entities that directly through one or more intermediaries control or are
controlled by, or are under common control with such Party, and the term
"control" shall mean the possession, directly or indirectly of the power to
direct or cause the direction of the management and policies of any entity,
whether through the ownership of voting securities, by contract or otherwise.
1.2 Agreement. "Agreement" means this Management Agreement as modified by
any duly adopted amendments.
1.3 Business. "Business" means the compressor rental and full compression
service business of OEC as now conducted or as such business may be conducted in
the future.
1.4 Commencement Date. "Commencement Date" means as of October 1, 2000.
1.6 OEC. "OEC" means OEC Compression Corporation and its subsidiary,
Ouachita Energy Corporation, a Delaware corporation.
1.7 Merger Agreement. "Merger Agreement" means that certain Agreement and
Plan of Merger by and among OEC, Hanover Compressor Company, a Delaware
corporation, and Caddo Acquisition Corporation dated July 13, 2000 as amended by
that certain Amendment No. 1 dated as of November 14, 2000..
1.8 Term of Agreement. "Term of Agreement" means the period from the date
hereof until the Agreement is terminated pursuant to Article XII hereof.
II.
AUTHORITY AND RESPONSIBILITY OF OEC
2.1 Legal Ownership Retained in OEC. Consistent with applicable law, OEC
shall retain legal title to its properties during the Term of Agreement. Any
addition to the assets of OEC purchased with OEC' funds shall be purchased in
the name of OEC.
2.2 Specific Duties and Responsibilities Retained by OEC with Respect to
the Business. OEC shall remain responsible for (i) making all bids for new
business and dealing with customers for potential new business and all other
sales and marketing activities; (ii) pricing for products and services, (iii)
filing all tax returns with the Internal Revenue Service; (iv) financial and
accounting functions including billing and required reports with the Securities
and Exchange Commission, and (v) administering all benefits, payroll and
administrative costs of all OEC employees. Except as specifically provided for
in this Agreement, Hanover shall have no right
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or obligations concerning the foregoing nor shall Hanover be provided with or
have access to any information with respect to the foregoing.
III.
STATUS OF HANOVER
Hanover shall have the authority and responsibility to deal with the
Business as specifically delegated to it under this Agreement. Hanover shall
render services hereunder as OEC's agent to the extent specifically provided
herein or as further delegated from time to time by OEC and accepted in writing
by Hanover. The relationship created by this Agreement is one of principal and
agent, and nothing to the contrary shall be inferred from this Agreement.
IV.
AUTHORITY AND RESPONSIBILITY OF HANOVER
4.1 General. As an agent for OEC, Hanover shall have the authority and
the responsibility for the supervision and management of the day-to-day field
and shop operation of the Business. As agent for OEC, Hanover agrees to manage
the day-to-day field and shop operations of Business in a prudent manner,
consistent with generally accepted standards of the compressor rental and full
compression services business. Hanover's management and activities under this
Agreement shall be subject to the terms hereof and the approval of the Board of
Directors of OEC as provided for herein (the "Board of Directors").
4.2 Managerial Personnel. Hanover shall make sufficient number of its
officers and employees available to manage and operate the Business as Hanover
shall in good faith determine to be necessary. Such officers and employees
shall be employees of Hanover and shall report to and be responsible to Hanover.
Such officers and employees shall not be employees of OEC.
4.3 Day-to-Day Field and Shop Operation. Day-to-day field and shop
operations of the Business shall include, without limitation, (i) establishment
of operational policies and specific operational decisions for implementation of
such policies for the field and shop operations of OEC and (ii) personnel
administration. Hanover will provide direct management of OEC field and shop
personnel. This management function will include evaluating the day to day
activities of OEC field and shop personnel and adjusting these activities to
improve efficiencies, field training of OEC personnel, and maintaining
compression and other OEC assets. Hanover will be responsible for the safety
training of any OEC employees to meet as required any DOT, OSHA or other
applicable regulations. Hanover will submit written reports
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to OEC management of maintenance and/or repairs made to OEC owned equipment.
These reports will describe the nature of the repair or the extent of any
maintenance performed.
4.4 OEC's Approval. OEC must approve the following matters before they
are undertaken by Hanover for the account of OEC, and, notwithstanding any other
term hereof, none of the following shall be undertaken without OEC' approval:
4.4.1 Capital Costs. Capital leases and capital expenditures.
4.4.2 Indebtedness. Borrowing of any funds.
4.4.3 Hypothecation. The pledge of any asset of OEC.
4.4.4 Disposition of Assets. The disposition of any asset, other than in
the ordinary course of business or as contemplated herein.
4.4.5 Expenditures. The expenditure of funds in excess of the amount
approved in advanced by OEC.
4.4.6 Long Term Contracts. The approval or execution of any contract.
4.5 Additional Limitations on Hanover. In addition to the limitations set
forth in Section 4.4 above, the Hanover shall have no authority with respect to
the following area.
4.5.1 Marketing. Hanover shall not have any authority or responsibility
with respect to the marketing and sales operations of OEC and Hanover shall not
have access to nor shall be provided with any information with respect to the
marketing operations of OEC. In particular, all customer proposals and bids
shall be the sole and exclusive responsibility of OEC. Hanover shall have no
authority to enter into any customer contracts on behalf of OEC or to make any
amendment, modification or changes to any existing OEC customer contracts.
4.5.2 Accounting and Financial Reporting. Hanover shall have no authority
or responsibility with respect to the financial reporting or accounting
operations.
4.5.3 Employee Matters. Hanover may not hire for OEC nor terminate an OEC
employee without prior written approval from OEC management. Any disciplinary
action of any OEC employee recommended by Hanover will be presented to OEC
management for approval prior to execution of the disciplinary action.
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V.
PERSONNEL ADMINISTRATION
Subject to Section 4.5.3 hereof, Hanover shall determine the numbers and
qualifications of employees needed in the day-to-day field operations of the
Business and shall supervise, train and assign employees needed to operate the
field and shop operations of the Business and shall supervise the establishment
of wage scales, rates of compensation, employee benefits, rates and conditions
of employment, and job and position descriptions with respect to all such
employees.
VI.
FINANCIAL ADMINISTRATION
6.1 Accounting. Hanover will provide at no additional cost personnel
supporting payroll, account payable and revenue billing and collections to
assist OEC. Such personnel will work under the supervision of the Chief
Financial Officer of OEC.
6.2 Accounting and Financial Records. Hanover will maintain existing OEC
procedures for tracking actual and allocated labor and material expenses
associated with specific OEC compressor units. Field personnel, Hanover or OEC,
will maintain records of their time spent on specific OEC equipment. Hanover
will provide a report of these labor hours on a weekly basis to OEC's accounting
department. OEC employees under Hanover supervision will continue to report
their time on a daily basis as per existing OEC procedure. All purchases made
for OEC compression equipment shall be purchased using OEC Purchase Order (PO)
numbers or "Proservice" purchasing numbers. Receipt tickets from these purchases
will be sent to OEC office in West Monroe for processing on a weekly basis. With
the execution of this management agreement Hanover will not charge OEC for labor
at third party rates. Labor cost for Hanover employees will be included in the
monthly charge for the management service. Hanover employees will be required to
submit time reports as described above for their labor time spent maintaining or
repairing OEC equipment.
VII.
INDEMNIFICATION
7.1 Responsibility For Misconduct and Indemnification. Hanover shall
incur no liability for damages caused by the dishonesty, willful misconduct or
negligence of any officer, employee or agent of OEC. With respect to any loss
to the Business, Hanover shall indemnify and hold harmless OEC only for damages
caused by the dishonesty, willful misconduct or gross negligence of Hanover
personnel in rendering services hereunder.
Other than with respect to any claim, suit or judgment asserted by OEC
alleging damages caused by the dishonesty, willful misconduct or gross
negligence of Hanover in rendering services hereunder, OEC, shall indemnify and
hold harmless Hanover and any Affiliate of Hanover with respect to any claims,
suits or judgments asserted by or on behalf of any person (i) alleging
negligence of Hanover in rendering services hereunder, (ii) asserted by or on
behalf of any person arising out of the conduct of OEC, or (iii) other related
to the provision of services by Hanover pursuant to this Agreement.
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7.2 Non-Assumption of Liabilities. Hanover shall not, by entering into
this Agreement, assume or become liable for any of the obligations, debts or
other liabilities of OEC in existence or arising on or prior to the date hereof.
Other than with respect to any damages caused by the dishonesty, willful
misconduct or gross negligence of Hanover in rendering services hereunder,
Hanover shall not, by providing management services to OEC, assume or become
liable for any of the obligations, debts or other liabilities of OEC arising
after the date hereof.
VIII.
CONTRACTS
8.1 Contracts. Day-to-day operation of the Business shall include
negotiating, entering into, administering and terminating contracts with respect
to the use, maintenance and repair of the field and shop operations of the
Business. Contracts for the field and shop operations of OEC that by their
terms are not terminable within a thirty (30) day period shall not be concluded
without the prior written approval of OEC.
8.2 Purchases for the Account of OEC.
8.2.1 General. Day-to-day operation of the Business shall include the
purchase of such equipment, supplies and other goods necessary for the efficient
operation of field and shop operations of the Business.
8.2.2 Purchasing Policy. Purchases shall be made only at reasonable costs
pursuant to the "prudent buyer" principle. Hanover is not a merchant, as that
term is defined in the Uniform Commercial Code, and makes no warranty, express
or implied, including, without limitation, that of fitness for a particular
purpose, for any item purchased for the administration of the Business or on
behalf of OEC. Hanover shall make available to OEC the benefit of any purchasing
discounts available to Hanover.
8.2.3 Inventory. Hanover will maintain and supervise the parts and
materials inventory of OEC. Hanover will evaluate the status of OEC's inventory
and make recommendations to OEC management to improve the inventory process and
utilization. When practical Hanover will prioritize the utilization of OEC's
parts inventory for the repair and maintenance of OEC compression equipment over
using the Hanover parts inventory or acquiring parts and materials from third
parties. Any parts and materials removed from OEC inventory will be noted as
per the existing OEC process for inventory control. These inventories will
include the main parts depot in West Monroe, Louisiana as well as remote parts
depots and inventory on OEC personnel's trucks. These parts and materials may be
used for Hanover compression equipment with the appropriate documentation and
processing . Any inventory provided to OEC by Hanover or transferred by OEC to
Hanover shall be priced based on the prices that such inventory would be
acquired from third parties.
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IX.
COMPENSATION OF HANOVER
Conditioned on the closing of the merger, Hanover shall receive a
management fee equal to Nine Hundred Thousand and no/100s Dollars ($900,000) per
month payable in arrears with a fee of Nine Hundred Thousand and no/100s Dollars
($900,000) being owed for the period ended October 31, 2000.
X.
ACCESS TO INFORMATION, BOOKS AND RECORDS; CONFIDENTIALITY
10.1 Access. Hanover and its duly authorized representatives shall have
complete access to OEC's offices, facilities and records wherever located, in
order to discharge Hanover's responsibilities hereunder. OEC shall afford
Hanover and its duly authorized representatives access during ordinary business
hours and in such a manner as not to interfere with OEC's business to OEC's
corporate headquarters located at the address set forth in Section 13.5 hereof.
All records and materials furnished to Hanover by OEC in performance of this
Agreement shall at all times during the Term of Agreement remain the property of
OEC.
10.2 Confidentiality. Hanover recognizes and acknowledges that
confidential information of various kinds may exist, from time to time, with
respect to the Business and assets of OEC. Accordingly, Hanover covenants that,
except with prior written consent of OEC or except pursuant to its specified
duties on behalf of OEC, Hanover shall at all times keep confidential and not
divulge, furnish or make accessible to anyone any OEC confidential information
to which Hanover has been or shall become privy relating to the Business or
assets of OEC. The provisions of this Section 11.12 shall not apply to any
information to the extent it is or shall become generally known to the public or
the trade (without commission of a tortious act) or to the extent it is or shall
become available in trade or other publications.
XI.
CONFLICTS OF INTEREST AND GOOD FAITH
OEC each expressly acknowledge that Hanover and its Affiliates own, manage,
and/or operate assets that compete directly with the business of OEC and may
own, manage and/or operate additional businesses in the future that compete
directly with the business of OEC.
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XII.
TERM AND TERMINATION OF THE AGREEMENT
12.1 Initial Term. This Agreement shall be effective from the
Commencement Date to January 15, 2001; subject, however, to the terms of Section
12.2 hereof.
12.2 Termination. This Agreement may be sooner terminated on the first to
occur of the following:
12.2.1 Termination by Mutual Agreement. In the event the Parties shall
mutually agree in writing, this Agreement may be terminated on the terms and
dates stipulated therein.
12.2.2 Optional Termination. Hanover may, with or without cause, give to
OEC at least thirty (30) days advance written notice of its intent to terminate,
whereupon this Agreement shall terminate on the future date specified in such
notice.
12.2.3 Termination for Cause. In the event either Party shall fail to
discharge any of its material obligations hereunder, or shall commit a material
breach of this Agreement, and such default or breach shall continue for a period
of 30 days after the other Party has served notice of such default, this
Agreement may then be terminated at the option of the non-breaching Party by
notice thereof to the breaching Party.
12.3 Effects of Termination.
12.3.1 Survival. Except for covenants or other provisions herein that by
their terms expressly extend beyond the Term of Agreement, the Parties'
obligations hereunder are limited to the Term of Agreement.
12.3.2 Return of Assets. In the event this Agreement is terminated for
any reason, Hanover shall deliver possession of all assets and records of OEC in
its possession, less any assets disposed of in the ordinary course of business
during the Term of Agreement or otherwise disposed of in accordance with the
terms of this Agreement.
12.4 Hanover's Remedies. If OEC shall at anytime owe or otherwise become
liable to Hanover for any amount pursuant to the terms of this Agreement, in
addition to Hanover's other rights hereunder, at law or in equity, Hanover shall
have the right to offset any such amount against any amount held by Hanover for
the account of OEC and against any amount otherwise due or to become due to OEC
from Hanover or any Affiliate of Hanover.
12.5 OEC's Remedies. If OEC or Hanover exercises its option to terminate
this Agreement under Section 12.2.3, such termination shall be OEC's sole remedy
and relief against Hanover, other than with respect to any damages caused by the
dishonesty, willful misconduct or gross negligence of Hanover in rendering
services hereunder.
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XIII.
MISCELLANEOUS
13.1 Relationship of Parties. This Agreement does not create a
partnership, joint venture or association; nor does this Agreement, or the
operations hereunder, create the relationship of lessor and lessee or bailor and
bailee. Nothing contained in this Agreement or in any agreement made pursuant
hereof shall ever be construed to create a partnership, joint venture or
association, or the relationship of lessor and lessee or bailor and bailee, or
to impose any duty, obligation or liability that would arise therefrom with
respect to either or both of the Parties. Specifically, but not by way of
limitation, except as otherwise expressly provided for herein, nothing contained
herein shall be construed as imposing any responsibility on Hanover for the
debts or obligations of OEC or any of its Affiliates. It is expressly
understood that Hanover is hereby engaged by OEC to provide management of field
operations of the Business and as an agent of OEC. Hanover and its Affiliates
shall have the right to render similar services for other business entities and
persons, including its own, whether or not engaged in the same business as OEC,
and may enter into such other business activities as Hanover and its Affiliates,
in their sole discretion, may determine.
13.2 No Third Party Beneficiaries. Except to the extent a third party is
expressly given rights herein, any agreement to pay an amount and any assumption
of liability herein contained, expressed or implied, shall be only for the
benefit of the Parties and their respective legal representatives, successors
and assigns, and such agreements or assumption shall not inure to the benefit of
the obligees of any indebtedness of any Party whomsoever, it being the intention
of the Parties hereto that no person or entity shall be deemed a third party
beneficiary of this Agreement except to the extent a third party is expressly
given rights herein.
13.3 General Representations. Each Party represents and warrants that on
the Commencement Date: (1) it is a corporation, duly established, validly
existing and in good standing under the laws of its state of incorporation, each
with power and authority to carry on the business in which it is engaged and to
perform its respective obligations under this Agreement; (2) the execution and
delivery of this Agreement have been duly authorized and approved by all
requisite corporate action; (3) it has all the requisite corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder; and (4) the execution and delivery of this Agreement do not, and
consummation of the transactions contemplated herein will not, violate any of
the provisions of its charter or by-laws or any applicable state or federal
laws.
13.4 Representatives. Except as may herein be more specifically provided,
the Parties shall be accountable to each other for the satisfactory discharge of
their respective obligations hereunder through the Chief Executive Officer of
Hanover and the chief Executive Officer of OEC.
13.5 Notices. Any notice, demand, or communication required, permitted,
or desired to be given hereunder shall be deemed effectively given when
personally delivered or mailed by prepaid certified mail, return receipt
requested, addressed as follows:
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(i) if to OEC, to:
OEC Compression Corporation
2501 Cedar Springs Road, Suite 600
Dallas, Texas 75201
Attn: Chief Executive Officer
With copies to:
Ray C. Davis
Kelcy L. Warren
2838 Woodside
Dallas, TX 75201
and
Schlanger, Mills, Mayer & Silver, LLP
109 North Post Oak Lane, Suite 300
Houston, TX 77024
Attention: Kyle Longhofer
(ii) if to Hanover, to:
Hanover Compressor Company
12001 N. Houston Rosslyn Road
Houston, Texas 77086
Attn: Michael J. McGhan
With a copy to:
Latham & Watkins
233 South Wacker Drive, Suite 5800
Chicago, Illinois 60606
Attn: Richard Meller, Esq.
Or to such other address and to the attention of such other person(s) or
officer(s) as either Party may designate by written notice pursuant to this
Section 13.5.
13.6 Governing Law. This Agreement has been executed and delivered in and
shall be interpreted, construed and enforced pursuant to and in accordance with
the laws of the State of Texas.
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13.7 Assignment. No assignment of this Agreement or any of the rights or
obligations set forth herein by either Party shall be valid without the specific
written consent of the other Party; provided, however, that Hanover shall have
the right to assign its rights and obligations under this Agreement to any
Affiliate without the consent of OEC, and any such Affiliate may reassign such
rights and obligations so long as such rights and obligations are not assigned
to any entity other than an Affiliate of Hanover.
13.8 Waiver of Breach. The waiver by either Party of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same or any other
provision hereof.
13.9 Enforcement. In the event either Party shall resort to legal action
to enforce the terms and provisions of this Agreement, the prevailing Party may
recover from the other Party the costs of such action including, without
limitation, reasonable attorneys' fees.
13.10 Gender and Number. Whenever the context hereof requires, the gender
of all words shall include the masculine, feminine, and neuter, and the number
of all words shall include the singular and plural.
13.11 Additional Assurances. The provisions of this Agreement shall be
self-operative and shall not require further accord between the Parties except
as may herein specifically be provided to the contrary; provided, however, that
at the request of either Party, the other Party shall execute such additional
instruments and take such additional actions as shall be necessary to effectuate
this Agreement.
13.12 Force Majeure. Neither party shall be liable nor in default for any
delay or failure of performance under this Agreement or other interruption of
service or employment resulting directly or indirectly from acts of God, civil
or military authority, acts of public enemy, war, accidents, fires, explosions,
earthquakes, floods, failure. of transportation, strikes or other work
interruptions by either Party's employees or agents or any similar or dissimilar
cause beyond the reasonable control of either Party.
13.13 Severability. In the event any provision of this Agreement is held
to be unenforceable for any reason, such provision shall be severable from this
Agreement if it is capable of being identified with and apportioned to
reciprocal consideration or to the extent that it is a provision that is not
essential and the absence of which would not have prevented the parties from
entering into this Agreement. The unenforceability of a provision that has been
performed shall not be grounds for invalidation of this Agreement under
circumstances in which the true controversy between the parties does not involve
such provision.
13.14 Article and Section Headings. The article and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
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13.15 Discretionary Terms. Determination of "necessary", "appropriate"
and other discretionary terms as used herein shall be according to the judgment
and discretion of Hanover in accordance with generally accepted standards of the
compressor rental and full compression service business.
13.16 Amendments and Contract Execution. This Agreement and amendments
hereto shall be in writing and executed in multiple copies by duly authorized
agents of the Parties. Each multiple copy shall be deemed an original, but all
multiple copies together shall constitute one and the same instrument.
13.17 Entire Agreement. This Agreement supersedes all previous contracts
between the Parties and constitutes the entire Agreement between the Parties
with respect to the subject matter of this Agreement. No oral statements or
prior written material not specifically incorporated herein shall be of any
force and effect, and no changes in or additions to this Agreement shall be
recognized unless incorporated herein by amendment, such amendment(s) to become
effective on the date(s) stipulated herein.
13.18 Effect on Merger Agreement. The provision of services by Hanover
to OEC pursuant to this Agreement shall not be deemed a default or breach of
the Merger Agreement and OEC shall not be in default or breach of any of its
obligations under the Merger Agreement due to any action taken by Hanover
pursuant to this Agreement. The compensation and other amounts to be paid by
OEC to Hanover pursuant to this Agreement shall not be deemed a default or a
breach of the Merger Agreement and OEC shall not be deemed to be in breach or
default due to such payment (even if such payments cause OEC to be in
noncompliance with any financial or loan covenant).
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year first
above written.
OEC
OEC COMPRESSION CORPORATION
By:
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Name:
Title:
HANOVER
HANOVER COMPRESSION INC.
By:
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Name:
Title:
