Exhibit 99.6
__________, 2002
Form of Exchange Agent Agreement
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Wilmington Trust FSB
1100 N. Market Street
Rodney Square North
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Re: Hanover Equipment Trust 2001B / 8.75% Senior Secured Notes due
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2011
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Ladies and Gentlemen:
Hanover Equipment Trust 2001B, a Delaware business trust (the
"Issuer"), proposes to make an offer (the "Exchange Offer") to exchange an
aggregate principal amount of up to $250,000,000 of its outstanding 8.75% Senior
Secured Notes due 2011 (the "Old Notes"), for a like principal amount of the
Issuer's 8.75% Senior Secured Notes due 2011, which have been registered under
the Securities Act of 1933, as amended (the "New Notes"). The New Notes are
guaranteed by Hanover Compressor Company, a Delaware corporation ("Hanover"),
and Hanover Compression Limited Partnership, a Delaware limited partnership
("HCLP"; we refer to HCLP and Hanover collectively as the "Guarantors"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus dated ___________, 2002 (the "Prospectus"), proposed to be
distributed to all record holders of the Old Notes as of __________, 2002. The
Old Notes and the New Notes are collectively referred to herein as the "Notes."
The Issuer hereby appoints Wilmington Trust FSB to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Wilmington Trust FSB.
The Exchange Offer is expected to be commenced by the Issuer on or
about __________, 2002. The Letter of Transmittal accompanying the Prospectus
or, in the case of book-entry securities, the Automated Tender Offer Program of
The Depository Trust Company (the "Book-Entry Transfer Facility"), are to be
used by the holders of the Old Notes to accept the Exchange Offer, and the
Letter of Transmittal contains instructions with respect to the delivery of
certificates for Old Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_________, 2002 or on such later date or time to which the Issuer may extend the
Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Issuer expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by giving oral
(promptly confirmed in writing) or written notice to you before 9:00 A.M., New
York City time, on the business day following the previously scheduled
Expiration Date.
The Issuer expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Notes not theretofore
accepted for exchange. The Issuer will give oral (promptly confirmed in writing)
or written notice of any amendment, termination or nonacceptance to you as
promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus entitled "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way will your
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general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish an account with respect to the Old Notes at the
Book-Entry Transfer Facility for purposes of the Exchange Offer within two
business days after the date of the Prospectus, or, if you already have
established an account with the Book-Entry Transfer Facility suitable for the
Exchange Offer, you will identify such pre-existing account to be used in the
Exchange Offer, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Notes by causing the Book-Entry Transfer Facility to transfer such Old Notes
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes and each confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility and any other documents
delivered or mailed to you by or for holders of the Old Notes to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and that such book-entry confirmations are in due and proper form and
contain the information required to be set forth therein and (ii) the Old Notes
have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
where such book-entry confirmations are not in due and proper form or omit
certain information, or where any of the certificates for Old Notes are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will use commercially reasonable
and customary efforts to inform the presenters of the need (i) for fulfillment
of all requirements and (ii) to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the President and Chief Executive Officer,
the Executive Vice President, any Vice President or the Secretary of Hanover
(such approval, if given orally, to be promptly confirmed in writing) or any
other party designated by such officer
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in writing, you are authorized to waive any defects, irregularities or
conditions of tender in connection with any tender of Old Notes pursuant to the
Exchange Offer.
5. At the written request and expense of the Issuer, you shall notify
tendering holders of Old Notes (through the facilities of the Book-Entry
Transfer Facility in the case of book-entry securities) in the event of any
extension, termination or amendment of the Exchange Offer. In the event of any
such termination, you will return all tendered Old Notes to the persons entitled
thereto, at the request and expense of the Issuer.
6. Tenders of Old Notes may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer--Procedures for Tendering," and Old Notes shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein. Notwithstanding the provisions of this paragraph 6, Old Notes which the
President and Chief Executive Officer, the Executive Vice President, any Vice
President or the Secretary of Hanover or any other party designated by such
officer in writing shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, shall be
promptly confirmed in writing).
7. You shall advise the Issuer and the Guarantors with respect to any
Old Notes delivered subsequent to the Expiration Date and accept their
instructions with respect to disposition of such Old Notes.
8. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
9. You shall accept partial tenders of Old Notes where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Notes to the transfer agent therefor for split-up and return any untendered Old
Notes to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
10. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuer will notify you (such notice, if given orally, to be
promptly confirmed in writing) of the acceptance, promptly after the Expiration
Date, of all Old Notes properly tendered and you, on behalf of the Issuer, will
exchange such Old Notes for New Notes and cause such Old Notes to be canceled.
Delivery of New Notes will be made on behalf of the Issuer by you at the rate of
$1,000 principal amount of New Notes for each $1,000 principal amount of Old
Notes tendered promptly after notice (such notice, if given orally, to be
promptly confirmed in writing) of
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acceptance of such Old Notes by the Issuer; provided, however, that in all
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cases, Old Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Old Notes (or confirmation
of book-entry transfer into your account at the Book-Entry Transfer Facility), a
properly completed and duly executed Letter of Transmittal (or facsimile thereof
or an agent's message in lieu thereof) with any required signature guarantees
and any other required document. You shall issue New Notes only in denominations
of $1,000 or any integral multiple thereof.
11. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
12. The Issuer shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Issuer not to exchange any Old Notes tendered
shall be given (such notice, if given orally, shall be promptly confirmed in
writing) by the Issuer to you.
13. If, pursuant to the Exchange Offer, the Issuer does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer--Conditions to the Exchange Offer" or otherwise, you shall
as soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Old Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
14. All certificates for reissued Old Notes, unaccepted Old Notes or
for New Notes shall be forwarded by (a) first-class mail, postage prepaid under
a blanket surety bond protecting you and the Issuer from loss or liability
arising out of the nonreceipt or nondelivery of such certificates or (b) by
registered mail insured separately for the replacement value of each of such
certificates.
15. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank, trust company or
other persons or to engage or utilize any person to solicit tenders.
16. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Old Notes represented thereby
deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value
or genuineness of the Exchange Offer; provided, however, that in no
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way will your general duty to act in good faith and without gross
negligence or willful misconduct be limited by the foregoing;
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(b) shall not be obligated to take any action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity
therefore;
(c) shall not be liable to the Issuer or the Guarantors for any
action taken or omitted by you, or any action suffered by you to be
taken or omitted, without gross negligence, willful misconduct or bad
faith on your part, by reason of or as a result of the administration
of your duties hereunder in accordance with the terms and conditions
of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may rely on and shall be
protected in acting in good faith in reliance upon any certificate,
instrument, opinion, notice, letter, facsimile or other document or
security delivered to you and reasonably believed by you to be genuine
and to have been signed by the proper party or parties;
(d) may act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also
as to the truth and accuracy of any information contained therein,
which you in good faith reasonably believe to be genuine or to have
been signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written or
oral instructions from the President and Chief Executive Officer, the
Executive Vice President, any Vice President or the Secretary or other
duly designated officer of Hanover, acting on behalf of Hanover or as
attorneys-in-fact and agents of the Issuer or HCLP, with respect to
the Exchange Offer;
(f) shall not advise any person tendering Old Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old
Notes; provided, however, that in no way will your general duty to act
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in good faith and without gross negligence or willful misconduct be
limited by the foregoing;
(g) may consult with your counsel and the written opinion of such
counsel (a copy of which shall be promptly provided to the Issuer and
the Guarantors) shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by you
hereunder in good faith and in accordance with such written opinion of
such counsel; and
(h) in no event will you be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits) arising in connection with this Agreement.
17. You shall take such action as may from time to time be requested
by the Issuer, the Guarantors or their outside counsel (and such other action as
you may reasonably deem necessary) to furnish copies of the Prospectus, the
Letter of Transmittal and the Notice of Guaranteed Delivery, or such other forms
as may be approved from time to time by the Issuer
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and the Guarantors, to all persons requesting such documents and to accept and
comply with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for accepting
(or withdrawing from) the Exchange Offer. The Issuer will furnish you with
copies of such documents as you may request. All other requests for information
relating to the Exchange Offer shall be directed to Hanover, Attention:
Secretary.
18. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to, Bradley C. Faris, Esq. of Latham &
Watkins, 233 South Wacker Drive, Suite 5800, Chicago, IL 60606, (312) 876-6514
(phone), (312) 993-9767 (fax), and such other person or persons as the Issuer or
the Guarantors may request, daily on each business day, and more frequently if
reasonably requested, up to and including the Expiration Date, as to the number
of Old Notes which have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received; provided, however, that if, on a particular business day, no
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additional Old Notes have been tendered, no additional items have been received
by you and such totals have not changed since you last provided such information
as required above, you need not provide the information referred to above in
this paragraph 18 on such day. In addition, you will also confirm, and cooperate
in making available, to the Issuer and the Guarantors or any such other person
or persons as the Issuer or the Guarantors request from time to time prior to
the Expiration Date such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting by
you to the Issuer and the Guarantors and such person as the Issuer or the
Guarantors may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately prior to
the Expiration Date the Issuer and the Guarantors shall have received
information in sufficient detail to enable a decision whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Notes tendered and the aggregate
principal amount of Old Notes accepted and deliver said list to the Issuer and
the Guarantors.
19. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt and shall, except
as provided in paragraph 13, be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities (or, if earlier, until such time as such documents are
delivered to the Issuer upon termination of this Agreement, pursuant to
paragraph 31).
20. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reason of amounts, if any, borrowed by the
Issuer or the Guarantors, or any of their subsidiaries or affiliates pursuant to
any loan or credit agreement with you or for compensation owed to you hereunder.
21. For services rendered as Exchange Agent hereunder, you shall
be entitled to compensation of $_____ and you shall be entitled to reimbursement
of your reasonable out-of-pocket expenses (including reasonable attorneys' fees
and expenses of your counsel) incurred in connection with your services
hereunder or under any other agreement.
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22. You hereby acknowledge receipt of the Prospectus, the Letter
of Transmittal and the other documents associated with the Exchange Offer
attached hereto and further acknowledge that you have examined each of them to
the extent necessary to perform your duties hereunder. Any inconsistency between
this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time), on the other hand, shall
be resolved in favor of the latter two documents, except with respect to the
duties, liabilities and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
23. The Issuer and each Guarantor agrees, jointly and severally,
to indemnify and hold harmless you, in your capacity as Exchange Agent
hereunder, against any liability, cost or expense, including reasonable
attorneys' fees, incurred without gross negligence or willful misconduct on your
part, arising out of or in connection with any act, omission, delay or refusal
made by you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
believed by you in good faith to be valid and genuine and in accepting any
tender or effecting any transfer of Old Notes believed by you in good faith to
be authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Old Notes or otherwise arising out of or in connection
with your acting as Exchange Agent hereunder; provided, however, that the none
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of the Issuer or the Guarantors shall be liable for indemnification or otherwise
for any loss, liability, cost or expense to the extent arising out of your gross
negligence, willful misconduct or bad faith. In no case shall the Issuer or the
Guarantors be liable under this indemnity with respect to any claim against you
unless the Issuer and the Guarantors shall be notified by you, by letter or
cable or by facsimile confirmed by letter, of the assertion of a claim against
you or of any other action commenced against you, promptly after you shall have
received any such assertion or notice of the commencement of any such action.
The Issuer and the Guarantors shall be entitled to participate at their own
expense in the defense of any such claim or other action, and, if the Issuer or
the Guarantors so elect, it or they may assume the defense of any suit brought
to enforce any such claim. In the event that any of the Issuer or the Guarantors
assume the defense of any such suit, none of the Issuer or the Guarantors shall
be liable for the fees and expenses of any additional counsel thereafter
retained by you so long as it or they retain counsel reasonably satisfactory to
you to defend such suit.
24. You shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
25. You shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Old Notes, your check in the amount of all transfer
taxes so payable, and the Issuer shall reimburse you for the amount of any and
all transfer taxes payable in respect of the exchange of Old Notes; provided,
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however, that, subject to such reimbursement by the Issuer, you shall reimburse
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the Issuer for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
26. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to
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agreements made and to be performed entirely within such state, and without
regard to conflicts of law principles, and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the successors and assigns
of each of the parties hereto.
27. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
28. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be effected or impaired thereby.
29. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
30. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Issuer, to it at: Hanover Equipment Trust 2001B
c/o Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy No.: 302-651-8882
If to Hanover, to it at: Hanover Compressor Company
12001 North Houston Rosslyn
Houston, Texas 77806
Attention: Chief Financial Officer
Telecopy No.: 281-447-8781
with a copy to: Latham & Watkins
Sears Tower, Suite 5800
233 South Wacker Drive
Chicago, Illinois 60606
Attention: Richard S. Meller, Esq.
Telecopy No.: 312-993-9767
If to HCLP, to it at: Hanover Compression Limited Partnership
12001 North Houston Rosslyn
Houston, Texas 77806
Attention: Chief Financial Officer
Telecopy No.: 281-447-8781
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with a copy to: Latham & Watkins
Sears Tower, Suite 5800
233 South Wacker Drive
Chicago, Illinois 60606
Attention: Richard S. Meller, Esq.
Telecopy No.: 312-993-9767
If to the Exchange Agent: Wilmington Trust FSB
1100 N. Market Street
Rodney Square North
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Re: Hanover Equipment Trust 2001A
Telecopy No.: (302) 651-8882
31. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 20, 21, 23 and 25 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Issuer, with copies thereof to the Guarantors, any certificates
for Notes, funds or property (including, without limitation, Letters of
Transmittal and any other documents relating to the Exchange Offer) then held by
you as Exchange Agent under this Agreement.
32. Each of the Issuer and HCLP hereby constitutes and appoints
the President and Chief Executive Officer, the Executive Vice President, any
Vice President or the Secretary of Hanover, its true and lawful attorney-in-fact
and agent, with full power of substitution, for it and in its name, place and
stead, and any and all capacities, to sign any notices, requests or any other
communications in connection with this Agreement or the Exchange Offer, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
33. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
HANOVER EQUIPMENT TRUST 2001B
By: Wilmington Trust Company, not
individually but solely as
Trustee
By: ________________________
Name:
Title:
HANOVER COMPRESSOR COMPANY
By: _____________________________
Name:
Title:
HANOVER COMPRESSION LIMITED
PARTNERSHIP
By: _____________________________
Name:
Title:
Accepted as of the date
first above written:
WILMINGTON TRUST FSB,
as Exchange Agent
By:__________________________
Name:
Title:
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