EXHIBIT 3.1
LIMITED PARTNERSHIP AGREEMENT
OF
HANOVER COMPRESSION LIMITED PARTNERSHIP
This Limited Partnership Agreement of Hanover Compression L.P. is made
and entered into to be effective as of the 8 day of December, 2000, by and among
Hanover LLC 3, LLC, a Delaware limited liability company, as general partner,
and Hanover Compression Limited Holdings, LLC, a Delaware limited liability
company, as limited partner. All capitalized terms used herein shall have the
meaning set forth in Section 1.08 hereof and Exhibit A hereto unless the context
clearly indicates otherwise.
WITNESSETH:
For and in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the adequacy, receipt and sufficiency
of which are hereby acknowledged, the Partners hereby agree as follows:
ARTICLE I.
ORGANIZATION AND PURPOSE
Section 1.01 Formation of Limited Partnership. The Partners hereby
agree to form a limited partnership pursuant to the Act.
Section 1.02 Name. The name of the Partnership shall be Hanover
Compression Limited Partnership or such other name as shall be selected by the
General Partner. All business and affairs of the Partnership shall be conducted
solely under, and all Partnership Assets shall be held solely in, such name
unless otherwise determined by the General Partner.
Section 1.03 Effective Date and Term. The Partnership shall be in
effect for a term beginning on the Effective Date and shall continue under this
Agreement (as amended from time to time) until dissolved upon the occurrence of
an event that causes the dissolution of the Partnership in accordance with the
provisions of this Agreement, and thereafter to the extent provided by
applicable law, until wound up and terminated as provided herein.
Section 1.04 Business and Purpose. The business and purpose of the
Partnership is to engage in any and all business activities that may be lawfully
conducted under the Act.
Section 1.05 Documents. The Partners hereby ratify and approve the
actions of the General Partner in executing the Certificate in accordance with
the Act and causing the same to be filed in the office of the Secretary of State
of the State of Delaware on December 7, 2000.
Section 1.06 Principal Place of Business. The principal place of
business of the Partnership shall be 12001 North Houston Rosslyn, Houston,
Texas, 77806 or at such other place or places as the General Partner may
designate from time to time. The General Partner shall be responsible for
maintaining at the Partnership's principal place of business those records
required by the Act to be maintained there.
Section 1.07 Registered Agent and Office. The registered agent for
service of process on the Partnership in the State of Delaware or any other
jurisdiction shall be The Corporation Trust Company or such other Person or
Persons as the General Partner may designate from time to time. The registered
office of the Partnership in the State of Delaware shall be at 1209 Orange
Street, Wilmington, Delaware 19801 or such other place as the General Partner
may designate from time to time.
Section 1.08 Certain Definitions. As used in this Agreement, the
following terms shall have the meanings specified as follows:
"ACT" shall mean the Delaware Revised Uniform Limited Partnership Act,
Del. Code Ann., Sections 17-101, et seq., or, from and after the date any
successor statute becomes, by its terms, applicable to the Partnership, such
successor statute, in each case as amended at such time by amendments that are,
at that time, applicable to the Partnership. All references to sections of the
Act include any corresponding provision or provisions of any such successor
statute.
"AFFILIATE" shall mean, with respect to any specified Person, (i) any
Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with the specified Person
or (ii) any Person that is an officer or director of, partner in, or trustee of,
or serves in a similar capacity with respect to, the specified Person or of
which the specified Person is an officer, director, partner or trustee, or with
respect to which the specified Person serves in a similar capacity. As used in
this definition of "Affiliate", the terms "controls", "controlled by" and "under
common control with" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"AGREEMENT" shall mean this Limited Partnership Agreement, as from time
to time amended, supplemented or restated.
"CAPITAL CONTRIBUTIONS" shall mean, with respect to any Partner,
such Partner's total contributions to the capital of the Partnership pursuant
to this Agreement.
"CERTIFICATE" shall mean the Partnership's Certificate of Limited
Partnership, as such Certificate may from time to time be amended or restated.
"CORPORATION ELECTION" shall have the meaning set forth in Section 4.01
hereof.
"COVERED PERSON" shall have the meaning set forth in Article VII
hereof.
"EFFECTIVE DATE" shall mean the date set forth in the opening
paragraph of this Agreement.
"ENTITY" shall mean any corporation, general partnership, limited
partnership, limited liability company, joint venture, trust, business trust,
cooperative, association or other entity.
"GENERAL PARTNER" shall mean Hanover LLC 3, LLC and/or any other Person
admitted to the Partnership as a General Partner pursuant to the terms
hereof.
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"LIMITED PARTNER" shall mean Hanover Compression Limited Holdings,
LLC and/or any other Person admitted to the Partnership as a Limited Partner
pursuant to the terms hereof.
"PARTNER" and "PARTNERS" shall mean, as the context requires, each
or all of the General Partner and the Limited Partners.
"PARTNERSHIP" shall mean Hanover Compression Limited Partnership, a
Delaware limited partnership, and its successors.
"PARTNERSHIP ASSETS" shall mean all assets, whether tangible or
intangible and whether real, personal or mixed, at any time owned by the
Partnership.
"PERCENTAGE INTEREST" shall mean for each Partner the percentage
interest in the Partnership set forth opposite its name on the attached Schedule
A which is made a part of this Agreement for all purposes.
"PERSON" shall mean any natural person or Entity.
"SUBSTITUTED PARTNER" shall mean any Person admitted to the Partnership
in connection with the Transfer of an interest pursuant to Section 5.02 hereof.
"TERMINATING PARTNER" shall have the meaning set forth in Section 6.05
hereof.
"TRANSFER" shall have the meaning set forth in Section 5.01 hereof.
"WITHDRAWING PARTNER" shall have the meaning set forth in Section 6.03
hereof.
ARTICLE II.
OPERATIONS
Section 2.01 Management of Partnership.
(a) The General Partner shall have exclusive control over
the business of the Partnership and shall have all rights, powers and authority
generally conferred by law or necessary, advisable or consistent in connection
therewith. The General Partner may, in its discretion, appoint officers of the
Partnership (such as President, Vice President, Treasurer, Secretary and
Assistant Secretary) to act as agents of the Partnership. If the General Partner
so resolves in writing, any such officer may bind the Partnership by executing
and delivering contracts, agreements or instruments in the name and on behalf of
the Partnership. The Limited Partner shall have no right to participate in or
vote upon any Partnership matters except as specifically provided by this
Agreement or required by any mandatory provision of the Act.
(b) Without limiting the foregoing, the General Partner
shall have full power on behalf and in the name of the Partnership to carry out
any and all of the objects and purposes of the Partnership and to perform all
acts and to execute and deliver all agreements, instruments and other documents
which it, in its sole discretion, may deem necessary or desirable, including
without limitation, the power to:
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(i) enter into, deliver, perform, construe and take any
action under, any contract, agreement or other instrument as the
General Partner shall determine to be necessary or desirable to further
the purpose of the Partnership;
(ii) open, maintain and close bank accounts, make deposits
thereunder and investment decisions with respect thereto and draw
checks or other orders for the payment of moneys;
(iii) collect all sums due the Partnership, including the
assertion by all advisable means of the Partnership's right to payment;
(iv) to the extent that funds of the Partnership are
available therefor, pay as they become due all debts, obligations and
operating expenses of the Partnership including, without limitation,
the salaries, bonuses, benefits and expenses of the employees and
agents of the Partnership and equipment and office acquisitions and
operating costs;
(v) employ and dismiss from employment, and pay the fees
and expenses of, any and all employees, attorneys, accountants,
consultants, advisors or other agents, on such terms and for such
compensation as the General Partner may determine, whether or not such
person may also be otherwise employed by any affiliate of the General
Partner;
(vi) obtain insurance for the Partnership;
(vii) admit additional partners;
(viii) determine distributions of Partnership cash and other
property as provided in Article IV;
(ix) bring and defend actions, investigations and
proceedings at law or equity or arbitrations or other forms of
alternative dispute resolution before any governmental, administrative
or other regulatory agency, body or commission or arbitrator, mediator
or other forum for dispute resolution;
(x) make all elections, investigations, evaluations and
decisions, binding the Partnership thereby, that may in the sole
judgment of the General Partner be necessary or desirable for the
acquisition, management or disposition of assets by the Partnership,
including without limitation the exercise of rights to elect to adjust
the tax basis of Partnership assets;
(xi) incur expenses and other obligations on behalf of the
Partnership and, to the extent that funds of the Partnership are
available for such purpose, pay all such expenses and obligations;
(xii) cause the Partnership to incur or guarantee
indebtedness for borrowed money;
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(xiii) possess and exercise all rights and powers of general
partners under the Act, in furtherance of the purposes of the
Partnership;
(xiv) consult with and seek the advice of
one or more of the Limited Partners as contemplated by Section 17-303
of the Act;
(xv) borrow money, execute instruments evidencing
indebtedness and secure indebtedness by mortgage, deed of trust,
pledge, security interest or other lien in furtherance of Partnership
purposes; to pay and discharge all indebtedness owing with respect to
and secured by the Partnership's assets, or any part thereof, and to
cause the Partnership to make such other payments and perform such
other acts as the General Partner may deem necessary to preserve the
interest of the Partnership therein;
(xvi) sell, assign, transfer, convey or otherwise dispose
of Partnership property; to merge one or more entities with and into
the Partnership; to file any documents relating thereto with any public
official or third party;
(xvii) prepare and file all requisite tax returns required
by federal, state and local authorities having jurisdiction over the
Partnership, and to cause the Partnership to pay and discharge all
taxes and assessments levied and assessed against the Partnership's
assets or any part thereof;
(xviii) keep all books of accounts and other records required
by the Partnership, and to keep vouchers, statements, receipted bills
and invoices and other records, covering collections, disbursements,
and other data in connection with the Partnership; and
(xix) do any act which is necessary to carrying out any of
the purposes of the Partnership, including without limitation the
foregoing.
Section 2.02 Power of Attorney. By the execution of this Agreement, the
Limited Partner does irrevocably constitute and appoint the General Partner as
its true and lawful attorney-in-fact and agent with full power and authority to
act in its name, place and stead in the execution, acknowledgement, delivering,
filing and recording of all certificates and documents that the General Partner
deems necessary or reasonably appropriate for the following specific purposes:
(i) to qualify or continue the Partnership as a limited
partnership in Delaware and to qualify the Partnership to do business
in the states in which the Partnership is required to qualify;
(ii) to reflect a change in the identity of any Partner,
the addition of any Partner pursuant to the provisions of Article V or
an amendment of this Agreement made pursuant to the provisions of
Section 8.03; and
(iii) to reflect the dissolution and termination of the
Partnership after same has been dissolved and terminated in accordance
herewith.
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The power of attorney granted herein shall be deemed to be coupled with an
interest, shall be irrevocable and shall, to the extent permitted by law,
survive the termination of the Limited Partner, and shall be binding on any
assignee or vendee of the Limited Partner's Percentage Interest hereunder, or
any portion thereof, including any of the distributive rights relating thereto.
Section 2.03 Partnership Expenses. Except as otherwise provided in this
Agreement, the Partnership shall be responsible for paying all costs and
expenses related to the business of the Partnership. In the event any such costs
and expenses are or have been paid by any Partner, then, except as expressly
provided herein to the contrary, such Partner shall be entitled to be reimbursed
for such payment. The payments and reimbursements provided in this Section 2.02
shall be made regardless of whether any distributions are made to the Partners
under Article IV hereof.
ARTICLE III.
FINANCING
Section 3.01 Capital Contributions; Etc.
(a) On the Effective Date, each of Hanover LLC 3, LLC and
Hanover Compression Limited Holdings, LLC agrees to contribute to the capital of
the Partnership the property set forth opposite its name on the attached
Schedule A, which is made a part of this Agreement for all purposes, as its
initial Capital Contribution.
(b) The Partners shall not be obligated to make any
additional Capital Contributions or loan money to the Partnership.
Section 3.02 Limited Liability of Partners. The Limited Partner shall
not be liable for the losses, debts, liabilities, contracts or other obligations
of the Partnership except as otherwise required by the law.
Section 3.03 Treatment of Capital Contributions. Except as may
otherwise be provided in this Agreement, no Partner shall be entitled to
interest on its Capital Contributions nor shall any Partner be entitled to
demand the return of all or any part of such Capital Contributions.
Section 3.04 No Third Party Beneficiaries. Nothing in this Agreement,
and, without limiting the generality of the foregoing, in this Article III,
expressed or implied, is intended or shall be construed to give to any creditor
of the Partnership or to any creditor of any Partner or any other Person
whatsoever, other than the Partners and the Partnership, any legal or equitable
right, remedy or claim against, under or in respect of the Partnership, the
Partners or this Agreement or any covenant, condition or provisions herein
contained, and such provisions are and shall be held to be for the sole and
exclusive benefit of the Partners and the Partnership.
ARTICLE IV.
ALLOCATION, DISTRIBUTIONS AND ACCOUNTING MATTERS
Section 4.01 Certain Tax and Accounting Matters. The Partnership shall
file an Internal Revenue Service Form 8832 (Entity Classification Election) and
elect to be classified as a corporation for federal tax purposes under Treasury
Regulation Section 301.7701-3 (the
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"Corporation Election"). For those jurisdictions that do not give effect to the
Corporation Election, the Partnership shall establish and maintain Partner
capital accounts, allocate Profits and Losses, and address tax and accounting
matters in accordance with the provisions of Exhibit A, hereunto annexed and
made a part hereof, which provisions are incorporated herein and shall
constitute part of this Agreement.
Section 4.02 Distributions to Partners. From time to time, the General
Partner shall distribute funds in such amounts as it may determine, in its sole
discretion. All funds shall be distributed to the Partners in accordance with
their respective Percentage Interests at the time of the distribution. In
determining the amount of funds to distribute pursuant to this Section 4.02, the
General Partner may consider such factors as the need to allocate funds to any
reserves for Partnership contingencies or any other Partnership purposes that
the General Partner deems necessary or appropriate.
ARTICLE V.
TRANSFERS
Section 5.01 Transfers. Any Limited Partner or the General Partner
may not sell, transfer, assign, mortgage, hypothecate or otherwise permit or
suffer any encumbrance of ("Transfer") all or any part of its interest in the
profits, losses or distributions of the Partnership without the prior unanimous
written consent of the other Partners. All reasonable costs and expenses
incurred by the Partnership in connection with any Transfer, and the admission
of a Person as a Substituted Partner, shall be paid by the transferee.
Section 5.02 Restrictions on Transfer. In the event of any Transfer or
Transfers permitted by this Article V, the interest so Transferred shall remain
subject to all terms and provisions of this Agreement; and the assignee or
transferee shall be deemed, by accepting the interest so Transferred, to have
assumed all the obligations hereunder relating to the interest so Transferred.
Any transferee or assignee of the interest of a Partner shall automatically be
admitted as a Substituted Partner. Any assignee of a General Partner interest in
the Partnership admitted to the Partnership as a Substituted Partner shall
succeed to and assume the management and voting rights of the Transferring
General Partner. Except as provided herein, upon admission, a Substituted
Partner shall be subject to all provisions of the Agreement in the place and
stead of its assignor as if the Substituted Partner were originally a party to
this Agreement. Upon admission of a transferee of the entire interest of a
Partner as a Substituted Partner, the transferor shall be automatically
withdrawn as a Partner from the Partnership, and shall be relieved of any
corresponding obligations as a Partner hereunder, including, without limitation,
any obligations of the Partnership or any other Partner.
ARTICLE VI.
WITHDRAWAL, DISSOLUTION, AND TERMINATION
Section 6.01 Withdrawal. Except in connection with the Transfer of an
interest in the Partnership, no Partner shall at any time retire or withdraw
from the Partnership without obtaining the prior unanimous written consent of
the remaining Partners. The withdrawal of any Limited Partner shall not dissolve
the Partnership; and the Partnership shall continue notwithstanding such
withdrawal.
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Section 6.02 Dissolution/Winding-Up. The Partnership shall be dissolved
and wound up upon the occurrence of any of the following:
(a) the resignation of a General Partner other than in
connection with the Transfer of an interest in the Partnership, unless:
(i) the remaining General Partner, if any,
elects in writing within thirty (30) days after such withdrawal to
reconstitute the Partnership, to continue as the General Partner and to
continue the Partnership and its business, or
(ii) if there is no remaining General Partner
within ninety (90) days after such withdrawal, all of the Limited
Partners agree to appoint in writing a successor General Partner, as of
the date of the withdrawal of the General Partner, and agree to
reconstitute the Partnership and to continue the business of the
Partnership, and such successor General Partner agrees in writing to
accept such appointment;
(b) the sale, exchange or other disposition of all or
substantially all of the Partnership Assets; or
(c) the unanimous written election of the Partners.
Section 6.03 Continuation and Reconstitution of Partnership. If the
Partnership is continued as provided in Sections 6.01, 6.02(a)(i) or (ii) then,
as of the date of withdrawal, the Partner with respect to which an event of
withdrawal under Sections 6.01 or 6.02 has occurred (or its successor in
interest) (the "Withdrawing Partner") shall have none of the powers of a Partner
under the Agreement or applicable law and shall have only the rights and powers
of an assignee of the interest of such Partner hereunder to share in any
Partnership profits, losses and distributions in accordance with its interest in
the Partnership and shall have no other rights, powers or liabilities of a
Partner hereunder; provided, however, that any Withdrawing Partner shall remain
subject to all of its obligations, liabilities, restrictions and remedies with
respect to Capital Contributions, and shall remain subject to all restrictions
provided for with respect to a Partner's interest hereunder unless specifically
otherwise agreed by all the remaining Partners.
Section 6.04 Bankruptcy, etc. of a Limited Partner. The withdrawal,
termination (in the case of a Limited Partner that is a partnership),
dissolution (in the case of a Limited Partner that is a corporation), retirement
or adjudication as a bankrupt of a Limited Partner shall not dissolve nor
wind-up the Partnership, but the rights of such Limited Partner to share in the
profits and losses of the Partnership and to receive distributions of
Partnership funds shall, upon the happening of such an event, pass to the
Limited Partner's legal representative, or successor in interest, as the case
may be, subject to the Agreement, and the Partnership shall continue as a
limited partnership but in no event shall such Limited Partner's legal
representative, or successors in interest, become a Substituted Partner except
with the consent of all of the Partners.
Section 6.05 Termination of Partnership.
(a) Upon the winding-up and dissolution of the
Partnership unless continued pursuant to Sections 6.01 or 6.02, the Partnership
shall be terminated as rapidly as business circumstances will reasonably permit.
At the direction of the General Partner, or a Person
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approved by the Limited Partner(s) if the winding-up and dissolution of the
Partnership is pursuant to Section 6.02(a)(ii) hereof (the General Partner or
the other Person, as the case may be, being herein called the "Terminating
Partner"), a full accounting of the assets and liabilities of the Partnership
shall be taken and a statement of the Partnership Assets shall be furnished to
all Partners as soon as is reasonably practicable.
(b) After the payment of all expenses of liquidation and
of all debts and liabilities of the Partnership in such order or priority as
provided by law (including any debts or liabilities to Partners, who shall be
treated as secured or unsecured creditors, as may be the case, to the extent
permitted by law, for sums loaned to the Partnership, if any, as distinguished
from Capital Contributions) and after all resulting items of Partnership Profits
and Losses have been allocated to the Partners in accordance with the terms of
Exhibit A, all remaining Partnership Assets shall then be distributed among the
Partners in accordance with the provisions of Section 4.02 hereof. All
liquidating distributions shall be made in assets of the Partnership and/or in
cash as the Terminating Partner shall determine in its sole and absolute
discretion.
Section 6.06 General Partners Not Personally Liable for Return of
Capital Contributions. No General Partner nor any Affiliate of any General
Partner shall be personally liable for the return of the Capital Contributions
of any Partner, and such return shall be made solely from available Partnership
Assets, if any, and each Limited Partner hereby waives any and all claims it may
have against any General Partner or any such Affiliate in this regard.
Section 6.07 Provisions Cumulative. All provisions of this Agreement
relating to the dissolution, liquidation and termination of the Partnership
shall be cumulative to the extent not inconsistent with other provisions herein;
that is, the exercise or use of one of the provisions hereof shall not preclude
the exercise or use of any other provision of this Agreement to the extent not
inconsistent therewith.
ARTICLE VII.
INDEMNIFICATION
The Partnership shall indemnify and hold harmless each General Partner
and Limited Partner and its equity holders, members, directors, officers,
employees, agents and Affiliates (each, a "Covered Person") from and against any
and all claims or liabilities of any nature whatsoever, including legal fees and
other expenses reasonably incurred, arising out of or in connection with the
activities of the Partnership or any action taken or omitted by any such Covered
Person by or on behalf of the Partnership pursuant to authority granted by this
Agreement except (i) for those incurred as a result of, arising from, or
relating to, the gross negligence, willful misconduct or bad faith of such
Covered Person, or a knowing and material violation by such Covered Person of
the provisions of this Agreement, (ii) as to which indemnification is barred
under the federal securities law, the Act or other applicable law, or (iii) as
to its share as Partner in any losses or expenses of the Partnership, including
any indemnification provided pursuant to this Article VII. In the event that any
Covered Person becomes involved in any capacity in any suit, action, proceeding
or investigation with respect to which such Covered Person may be entitled to
indemnification under this Article VII, the Partnership will periodically
reimburse such Covered Person for its reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in connection
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therewith; provided, however, that such Covered Person shall provide an
undertaking to promptly repay to the Partnership the amount of any such expenses
paid to it if it shall ultimately be determined that such Covered Person is not
entitled to be indemnified by the Partnership as herein provided in connection
with such suit, action, proceeding or investigation.
The satisfaction of any indemnification and any saving harmless
pursuant to this Article VII shall be solely from Partnership Assets and no
Partner shall be required to contribute additional capital or otherwise pay any
amounts in respect of any indemnification obligations hereunder.
No amendment, alteration or repeal of this Article VII or any provision
hereof will be effective as to any Covered Person for acts, events and
circumstances that occurred, in whole or in part, before that amendment,
alteration or repeal. The provisions of this Article VII will continue as to any
Covered Person whose company status has ceased for any reason and will inure to
the benefit of its heirs, executors, administrators, successors and assigns.
Neither the provisions of this Article VII nor those of any agreement to which
the Partnership is a party will preclude the indemnification of any person,
entity or organization which this Article VII does not specify as having the
right to receive indemnification or is not a party to any such agreement, but
which the Partnership has the power or obligation to indemnify under the
provisions of the Act.
ARTICLE VIII.
MISCELLANEOUS
Section 8.01 Other Competing Business. Except as may be provided in any
other agreement to which the parties hereto may be a party but notwithstanding
anything else to the contrary contained in or inferable from this Agreement, the
Act or any other statute or principle of law, neither the Partners nor any of
their respective Affiliates shall be prohibited or restricted in any way from
investing in or conducting, either directly or indirectly, businesses of any
nature whatsoever, including the ownership and operation of businesses or
properties similar to, competitive with or in the same geographical area as
those held by the Partnership. Any investment in or conduct of any such
businesses by a Partner or any of their respective Affiliates shall not give
rise to any claim for an accounting by the other Partners or the Partnership or
any right to claim any interest therein or the profits therefrom or damages in
respect thereof.
Section 8.02 Notice.
(a) All notices, demands or requests provided for or
permitted to be given pursuant to this Agreement must be in writing and sent to
a Partner at the address listed under such Partner's name on the signature page
of this Agreement or via telecopier or other similar device to the telephone
number listed opposite such Partner's name on the signature page, as both shall
be changed by notice in accordance with this Section.
(b) All notices, demands and requests to be sent to a
Partner pursuant to this Agreement shall be deemed to have been properly given
or served if: (i) personally delivered, (ii) deposited for next day delivery by
Federal Express, or other similar overnight courier services, addressed to such
Partner, (iii) deposited in the United States mail, addressed to such
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Partner, prepaid and registered or certified with return receipt requested or
(iv) transmitted via telecopier or other similar device to the attention of such
Partner. Any notice sent in compliance with the above provisions shall be deemed
given on the date received, except that notices sent by registered or certified
mail, return receipt requested, shall be deemed given on the third business day
next succeeding the day on which it was sent, or, if sooner, on the actual date
received.
Section 8.03 Amendments. Except as provided herein, amendments and
supplements may be made to or restatements made of this Agreement only with the
prior unanimous consent of the Partners.
Section 8.04 Force Majeure. If, as a result of force majeure (including
and without limitation any and all events and circumstances not within or
subject to a party's reasonable control), the General Partner is unable to carry
out, wholly or in part, its duties and obligations under this Agreement, then
the duties and obligations of the General Partner, so far as the General
Partner's ability to comply with them is affected by the force majeure, shall be
suspended during the continuance of the force majeure. The General Partner shall
use all reasonable diligence to remove the force majeure as quickly as
reasonably possible. The requirement that any force majeure shall be remedied
with all reasonable diligence shall not require the settlement of strikes,
lockouts or other labor difficulty suffered, but resolution of all such
difficulties shall be entirely within the discretion of the party concerned.
Section 8.05 GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTNERS
HEREUNDER SHALL BE INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF.
Section 8.06 Entire Agreement. Except as provided herein, this
Agreement, including all exhibits and schedules to this Agreement, contains the
entire agreement among the parties relative to the matters contained in this
Agreement.
Section 8.07 Waiver. No consent or waiver, express or implied, by any
Partner to or for any breach or default by any other Partner in the performance
by such other Partner of its or its obligations under this Agreement shall be
deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such other Partner of the same or any other
obligations of such other Partner under this Agreement. Failure on the part of
any Partner to complain of any act or failure to act of any of the other
Partners or to declare any of the Partners in default, regardless of how long
such failure continues, shall not constitute a waiver by such Partner of its
rights hereunder.
Section 8.08 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby, and the intent of this Agreement shall be enforced to the greatest
extent permitted by law.
Section 8.09 Binding Agreement. Subject to the restrictions on
transfers and encumbrances set forth in this Agreement, this Agreement shall
inure to the benefit of, and be
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binding upon, the undersigned Partners and their respective legal
representatives, successors and assigns. Whenever, in this Agreement, a
reference to any party or Partner is made, such reference shall be deemed to
include a reference to the legal representatives, successors and assigns of such
party or Partner.
Section 8.10 Waiver of Partition. Except as may be otherwise required
by law in connection with the winding-up, liquidation and dissolution of the
Partnership, each Partner hereby irrevocably waives any and all rights that it
may have to maintain an action for partition of any of the Partnership Assets.
Section 8.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and all
of which when taken together shall constitute a single counterpart instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Agreement to be effective as of the Effective Date.
GENERAL PARTNER
Hanover LLC 3, LLC, a Delaware limited
liability company
By: /s/ William S. Goldberg
------------------------------
William S. Goldberg
President
LIMITED PARTNER
Hanover Compression Limited Holdings,
LLC, a Delaware limited liability company
By: ______________________________
William C. Bryant
Vice President
S-1
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Agreement to be effective as of the Effective Date.
GENERAL PARTNER
Hanover LLC 3, LLC, a Delaware limited
liability company
By:_______________________________
William S. Goldberg
President
LIMITED PARTNER
Hanover Compression Limited Holdings,
LLC, a Delaware limited liability company
By: /s/ William C. Bryant
------------------------------
William C. Bryant
Vice President
S-1
SCHEDULE A
TO THE
LIMITED PARTNERSHIP AGREEMENT
OF
HANOVER COMPRESSION LIMITED PARTNERSHIP
INITIAL CAPITAL
GENERAL PARTNER PERCENTAGE INTEREST CONTRIBUTIONS
--------------- ------------------- ---------------
Hanover LLC 3, LLC 1.0% $10
LIMITED PARTNER
Hanover Compression Limited Holdings 99.0% $990
EXHIBIT A
TO THE
LIMITED PARTNERSHIP AGREEMENT
OF
HANOVER COMPRESSION, LIMITED PARTNERSHIP
CAPITAL ACCOUNTS; ALLOCATIONS OF PROFITS AND LOSSES;
TAX AND ACCOUNTING MATTERS; CERTAIN OTHER PROVISIONS
ARTICLE I
CAPITAL ACCOUNTS
Section 1.1 Definitions. When used in this Exhibit A, the following
terms will have the meanings respectively indicated.
"Adjusted Capital Account" means the Book Capital Account of a Partner
reduced by any adjustments, allocations or distributions described in paragraphs
(b)(2)(ii)(d)(4), (5) or (6) of Section 1.704-1 of the Regulations and increased
by any amounts such Partner is obligated to restore to the Partnership or is
deemed obligated to restore pursuant to the penultimate sentences of Section
1.704-2(g)(l) and 1.704-2(i)(5) of the Regulations.
"Book Basis" means with respect to any asset, the asset's adjusted
basis for federal income tax purposes provided, however, (i) if property is
contributed to the Partnership, the initial Book Basis of such property shall
equal its fair market value on the date of contribution; and (ii) if the Book
Capital Accounts of the Partnership are adjusted pursuant to Regulations Section
1.704-1(b) to reflect the fair market value of any Partnership asset, the Book
Basis of such asset shall be adjusted to equal its respective fair market value
as of the time of such adjustment in accordance with such Regulation. The Book
Basis of all assets shall be adjusted thereafter by Book Depreciation as
provided in Regulations Section 1.704-l(b)(2)(iv)(g) and any other adjustment to
the basis of assets other than Book Depreciation.
"Book Capital Account" has the meaning set forth in Section 1.2 of this
Exhibit A.
"Book Depreciation" means for each taxable year or other period, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset of the Partnership for the year or other
period, except that if the Book Basis of an asset differs from its adjusted
basis for federal income tax purposes at the beginning of the year or other
period, Book Depreciation with respect to that asset shall be an amount which
bears the same ratio to the beginning Book Basis as the federal income tax
depreciation, amortization or other cost recovery deduction with respect to that
asset for the year or other period bears to the beginning adjusted tax basis,
provided that if the federal income tax depreciation, amortization, or other
cost recovery deduction with respect to that asset for the year or other period
is zero, Book Depreciation will be determined with reference to the beginning
Book Basis using any reasonable method selected by the General Partner.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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"Nonrecourse Deductions" has the meaning set forth in Section
1.704-2(b)(1) of the Regulations.
"Nonrecourse Liability" has the meaning set forth in Section
1.752-1(a)(2) of the Regulations.
"Partner Nonrecourse Debt" has the meaning set forth in Section
1.704-2(b)(4) of the Regulations.
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Section 1.704-2(i)(2) of the Regulations.
"Partner Nonrecourse Deductions" has the meaning set forth in Sections
1.704-2(i) and 1.704-2(i)(2) of the Regulations.
"Partnership Minimum Gain" has the meaning set forth in Sections
1.704-2(b)(2) and 1.704-2(d) of the Regulations.
"Profits" or "Losses" means the Partnership's taxable income or loss,
respectively, as calculated in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in such
taxable income or loss), with the following adjustments:
(i) any income and gain that is exempt from tax and all
expenditures described in Section 705(a)(2)(B) of the Code (or treated
as expenditures so described pursuant to Section 1.704-1(b)(2)(iv)(i)
of the Regulations), and not otherwise taken into account in computing
Profits or Losses shall be reflected in such Profits or Losses;
(ii) Book Depreciation, and not the depreciation,
depletion or amortization deduction or allowance that shall be
allowable for federal income tax purposes to the Partnership with
respect to a Partnership Asset, shall be taken into account;
(iii) The Book Basis of Partnership assets and not the
adjusted tax basis, shall be used in calculating such Profits or
Losses;
(iv) Any increase or decrease to Book Capital Accounts as
a result of any adjustment pursuant to Regulations Section
1.704-1(b)(2)(iv)(g) shall constitute an item of Profit or Loss as
appropriate; and
(v) Any amounts allocated under Sections 2.2 and 2.3 of
this Exhibit A shall not be taken into account in computing Profits or
Losses.
"Regulations" means the temporary, final and proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding Regulations).
Section 1.2 Book Capital Accounts. A capital account (the "Book Capital
Account") for each Partner shall be maintained at all times during the term of
the Partnership in accordance
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with this Section 1.2 and the capital accounting rules set forth in Section
1.704-1(b)(2)(iv) and in Section 1.704-2 of the Regulations. In the event that
at any time during the term of the Partnership it shall be determined that the
Book Capital Accounts shall not have been maintained as required by this Section
1.2, then said accounts shall be retroactively adjusted so that the same shall
conform to this Section 1.2.
(a) Initial Book Capital Accounts. The Book Capital Accounts of
the Partners as of the date hereof (and after the contributions described in
Section 3.01 of the Agreement have been made) shall be as more fully reflected
on the Partnership's books and records.
(b) Optional Revaluations of Partnership Property. The Partnership
will make the election to revalue Partnership Assets permitted under Section
1.704-1(b)(2)(iv)(f) of the Regulations unless otherwise determined by the
General Partner.
(c) Book Adjustments on Distributions. With respect to all
distributions of Partnership Assets to Partners, the Partnership shall comply
with the provisions contained in Section 1.704-1(b)(2)(iv)(e) of the Regulations
(relating to adjustments to the Partners' Book Capital Accounts in connection
with such distributions) and all allocations and adjustments made in connection
therewith shall be in accordance with Article II of this Exhibit A.
ARTICLE II
ALLOCATION OF CERTAIN PROFITS AND LOSSES
FOR BOOK AND TAX PURPOSES
Section 2.1 Profits and Losses.
(a) Allocation. The Profits or Losses of the Partnership shall be
allocated to the Partners in accordance with their respective Percentage
Interests.
(b) Limitation. To the extent Losses which otherwise would have
been allocated to a Limited Partner pursuant to Section 2.1(a) would cause such
Limited Partner to have a deficit in its Adjusted Capital Account at the end of
any fiscal year, such Losses shall not be allocated to the such Limited Partner
but instead shall be allocated to the General Partner. This Section 2.1(b) is
intended to ensure that allocations of Losses have economic effect pursuant to
Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted
consistently therewith.
Section 2.2 Special Allocations. The following special allocations
shall be made in the following order:
(a) Partnership Minimum Gain Chargeback. Notwithstanding any other
provision of this Agreement to the contrary, if there is a net decrease in
Partnership Minimum Gain during any Partnership taxable period, each Partner
shall be allocated items of Partnership income and gain for such period (and, if
necessary, subsequent periods) in the manner and amounts provided in Sections
1.704-2(f)1.704-2(g)(2) and 1.704-2(j)(2)(i) of the Regulations, or any
successor provisions. Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be determined in
accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the
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Regulations. This Section 2.2(a) is intended to comply with the Partnership
Minimum Gain chargeback requirement in Section 1.704-2(f) of the Regulations and
shall be interpreted consistently therewith.
(b) Partner Nonrecourse Debt Minimum Gain Chargeback. Except as
provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding any other
provision of this Exhibit A to the contrary, if there is a net decrease in
Partner Nonrecourse Debt Minimum Gain during any Partnership taxable period, any
Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning
of such taxable period shall be allocated items of Partnership income and gain
for such period (and, if necessary, subsequent periods) in the manner and
amounts provided in Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii) of the
Regulations, or any successor provisions. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The items to be so allocated shall
be determined in accordance with Sections 1.704-2(i)(4) and 1.704-20(2) of the
Regulations. This Section 2.2(b) is intended to comply with the chargeback of
items of income and gain requirement in Section 1.704-2(i)(4) of the Regulations
and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Limited Partner
unexpectedly receives any adjustments, allocations, or distributions described
in Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, items of
Partnership income and gain shall be specially allocated to such Partner in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations promulgated under Code Section 704(b), the deficit balance,
if any, in its Adjusted Capital Account created by such adjustments,
allocations, or distributions, as quickly as possible; provided, however, that
an allocation pursuant to this Section 2.2(c) shall be made only if and to the
extent that such Limited Partner would have a deficit balance in its Adjusted
Capital Account after all other allocations provided for in this Exhibit A have
been tentatively made as if this Section 2.2(c) were not in the Agreement.
(d) Nonrecourse Deductions. Nonrecourse Deductions for any taxable
period shall be allocated to the Partners in accordance with their respective
Percentage Interests. If the General Partner determines in good faith discretion
that the Partnership's Nonrecourse Deductions must be allocated in a different
ratio to satisfy the safe harbor requirements of the Treasury Regulations
promulgated under Code Section 704(b), the General Partner is authorized, upon
notice to the Partners, to revise the prescribed ratio to the numerically
closest ratio that does satisfy such requirements.
(e) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions
for any taxable period shall be allocated to the Partner that bears the economic
risk of loss with respect to the Partner Nonrecourse Debt to which such Partner
Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i) of
the Regulations.
Section 2.3 Certain Book/Tax Differences. In accordance with Section
704(c) of the Code and the applicable Regulations thereunder, income, gain, loss
and deduction with respect to any Partnership Asset contributed to the capital
of the Partnership, or with respect to any Partnership Asset which has a Book
Basis different than its adjusted tax basis, shall, solely for income tax
purposes, be allocated among the Partners so as to take into account any
variation
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between the adjusted tax basis of such Partnership Asset to the Partnership and
the Book Basis of such Partnership Asset.
ARTICLE III
TAX AND ACCOUNTING MATTERS; REPORTING.
Section 3.1 Tax and Accounting Matters.
(a) The Partnership will be on the accrual basis for both tax and
accounting purposes.
(b) The Partnership books and records shall be prepared in
accordance with either tax accounting principles, consistently applied, or
generally accepted accounting principles, consistently applied, as the General
Partner shall determine in its sole discretion. Such books and records shall be
audited by a firm of independent certified public accountants as determined by
the General Partner at such times as the General Partner may determine, and the
expenses of all such audits shall be borne by the Partnership; provided, however
that if the Partnership makes an election under Section 754 of the Code, any
Partner receiving an adjustment in tax basis in Partnership Assets by
application of Section 743 of the Code shall bear that portion of the accounting
and audit expenses as is properly attributable to the calculation of such basis
adjustment and the maintenance of the accounts with respect thereto.
(c) All federal and state income tax returns of the Partnership
shall be prepared under the direction of the General Partner, and all tax audits
and litigation shall be conducted under the direction of the General Partner.
The General Partner is hereby designated as the "tax matters partner" for the
Partnership (as such term is defined in Section 6231(a)(7) of the Code).
(d) The fiscal year of the Partnership shall end on the 31st day
of December in each year.
(e) The Partnership shall invest its funds in such interest
bearing or non-interest bearing accounts as the General Partner shall determine
from time to time.
Section 3.2 Reporting. Within 60 days after the close of each calendar
year, the General Partner shall provide a copy of a set of unaudited financial
statements to each Partner which shall include, as of the end of such year:
(a) a balance sheet and a statement of net assets of the
Partnership;
(b) a statement of income;
(c) a statement of cash flows;
(d) a statement of the capital accounts of each Partner; and
(e) a statement of Partnership allocations and distributions
during such year.
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ARTICLE IV
NO DEFICIT FUNDING OBLIGATION
Notwithstanding anything to the contrary contained in this Exhibit A or
in the Partnership Agreement, at no time shall any Partner be obligated to
restore all or any portion of any deficit balance in such Partner's Book Capital
Account.
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