Exhibit 3.18
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
GRAHAM RECYCLING COMPANY, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP is entered into as of the 2nd day of February, 1998, by
and between GPC Sub GP LLC, a Delaware limited liability company
with its offices at 1110 E. Princess Street, York, Pennsylvania
17403, as general partner (the “General Partner”), and
Graham Packaging Company, a Delaware limited partnership with its
offices at 1110 E. Princess Street, York, Pennsylvania 17403, as
limited partner (formerly known as Graham Packaging Holdings I,
L.P., the “Limited Partner”). The General Partner and
the Limited Partner are hereinafter sometimes referred to
collectively as the “Partners” and individually as a
“Partner.”
W I T N E S S E T H :
WHEREAS, Graham Recycling Corporation, a
Pennsylvania corporation (“Recycling”), and Graham
Packaging Holdings Company, a Pennsylvania limited partnership with
its offices at 1420 Sixth Avenue, York, Pennsylvania 17405
(formerly known as Graham Packaging Company, “GPHC”),
formed a limited partnership (the “Partnership”) in
accordance with the provisions of the Pennsylvania Revised Uniform
Limited Partnership Act (15 Pa. Cons. Stat. ch. 85), under the name
Graham Recycling Company , L.P. pursuant to a Certificate of
Limited Partnership filed on November 16, 1993;
WHEREAS, on January 1, 1994, Recycling
contributed to the Partnership an undivided 1% interest in
Recycling’s assets, subject to 1% of its liabilities, in
exchange for a general partner interest in the
Partnership;
WHEREAS, on January 1, 1994, Recycling
contributed to GPHC an undivided 99% interest in Recycling’s
assets, subject to 99% of its liabilities, which interest in assets
subject to liabilities was transferred to the Partnership, at
GPHC’s direction in exchange for a 99% limited partnership
interest in the Partnership; and
WHEREAS, pursuant to the terms of an Agreement
and Plan of Recapitalization, Redemption and Purchase dated as of
December 18, 1997 (the “Recapitalization Agreement”) by
and among GPHC, Graham Capital Corporation, a Pennsylvania
corporation, Graham Family Growth Partnership, a Pennsylvania
limited partnership, Graham Packaging Corporation, a Pennsylvania
corporation, Graham Engineering Corporation, a Pennsylvania
corporation, Recycling, Donald C. Graham, BCP/Graham Holdings
L.L.C., a Delaware limited liability company, and BMP/Graham
Holdings Corporation, a Delaware corporation, (i) Recycling
assigned to General Partner all of its general partnership interest
in the Partnership and
(ii) GPHC assigned to Limited Partner all of
its limited partnership interest in the Partnership;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained, the parties hereto
hereby agree that the Agreement of Limited Partnership of the
Partnership is hereby amended and restated in its entirety by this
Amended and Restated Agreement of Limited Partnership and, as so
amended and restated hereby, shall read in its entirety as
follows:
ARTICLE I
THE
LIMITED PARTNERSHIP
1.1
Formation, etc .
(a)
Recycling and GPHC became partners in the Partnership formed under
and pursuant to the provisions of the Act to engage in the business
hereinafter described for the period and upon the terms and
conditions hereinafter set forth.
(b)
Recycling and GPHC were admitted to the Partnership as a general
partner and a limited partner, respectively, and contributed to the
capital of the Partnership their initial Capital Contributions, as
set forth in Section 3.1 below.
(c)
As of the date hereof, Recycling has withdrawn from the Partnership
as general partner, and General Partner has become the general
partner of the Partnership. As of the date hereof, GPHC has
withdrawn from the Partnership as a limited partner, and Limited
Partner has become a limited partner of the Partnership.
1.2
Certificate of Limited Partnership . Recycling
executed and caused to be filed on November 16, 1993 a Certificate
of Limited Partnership of the Partnership (the
“Certificate”) in the office of the Secretary of State
of the Commonwealth of Pennsylvania, and the General Partner has
executed and caused to be filed on February 2, 1998 an Amended and
Restated Certificate of Limited Partnership of the Partnership (the
“Amended Certificate”) in said office. The General
Partner hereafter shall execute such further documents (including
any further amendments to the Amended Certificate) and take such
further action as shall be appropriate to comply with all
requirements of law for the formation, operation and continued
existence of a limited partnership in the Commonwealth of
Pennsylvania and all other counties and states where the
Partnership may elect to do business.
1.3
Name . The name of the Partnership is Graham Recycling
Company, L.P. The General Partner may change the name
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of
the Partnership or cause the business of the Partnership to be
conducted under any other name.
1.4
Character of Business . The business of the Partnership
shall be the recycling of plastic containers and other plastic
scrap, including the acquisition, sorting, reprocessing, sale and
delivery of such materials, and such other activities and business
as are incidental to the foregoing. For such purposes, the
Partnership shall have and exercise all the powers now or hereafter
conferred by the laws of the Commonwealth of Pennsylvania on
limited partnerships formed under the laws of that Commonwealth,
and to do any and all things as fully as natural persons might or
could do as are not prohibited by law, in furtherance of the
aforesaid business of the Partnership. The business of the
Partnership shall be conducted in accordance with, and any action
required or permitted to be taken by the General Partner or any
Limited Partner shall be taken in compliance with, all applicable
laws, rules and regulations.
1.5
Principal Offices . The location of the principal
offices of the Partnership shall be at 1420 Sixth Avenue, York,
Pennsylvania, or at such other location as may be selected from
time to time by the General Partner. The Partnership may maintain
such other offices at such other places as the General Partner
deems advisable.
1.6
Fiscal Year . The fiscal year of the Partnership shall be
the calendar year (the “Partnership Year”).
1.7
Accounting Matters . Unless otherwise specified
herein, all accounting determinations hereunder shall be made, all
accounting terms used herein shall be interpreted, and all
financial statements required to be delivered hereunder shall be
prepared, in accordance with Generally Accepted Accounting
Principles, except, in the case of such financial statements, for
departures from Generally Accepted Accounting Principles that may
from time to time be approved in writing by the Partners and the
Auditor who is at the time reporting on such financial
statements.
ARTICLE II
DEFINITIONS
The
following defined terms used in this Agreement shall have the
respective meanings specified below.
2.1
Act . “Act” shall mean the Pennsylvania
Revised Uniform Limited Partnership Act (15 Pa. Cons. Stat. ch.
85), as amended from time to time and any successor to such
Act.
2.2
Affiliate . “Affiliate” shall mean (i) any
Person directly or indirectly controlling, controlled by or under
common
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control with another Person, (ii) a Person
owning or controlling ten percent (10%) or more of the outstanding
voting securities of such other Person, (iii) any officer, director
or general partner of such other Person, and (iv) if such other
Person is an officer, director or general partner, any other entity
for which such Person acts in any capacity.
2.3
Agreement . This “Agreement” shall refer to this
Agreement of Limited Partnership.
2.4
Auditor . “Auditor” shall mean any firm of
independent auditors selected by the General Partner.
2.5
Available Cash . “Available Cash” shall
mean at any point in time all cash and cash equivalents on hand of
the Partnership from any source (including, without limitation, any
proceeds from borrowings) less cash reasonably reserved or
reasonably anticipated to be required for debts and expenses,
interest and scheduled principal payments on any indebtedness,
capital expenditures, taxes or the activities of the Partnership
(including payments to Partners under any agreement other than this
Agreement).
2.6
Bankruptcy . The “Bankruptcy” of a Partner
shall mean (i) the filing by a Partner of a voluntary petition
seeking liquidation, reorganization, arrangement or readjustment,
in any form, of its debts under Title 11 of the United States Code
or any other federal or state insolvency law, or a Partner’s
filing an answer consenting to or acquiescing in any such petition,
(ii) the making by a Partner of any assignment for the benefit of
its creditors or (iii) the expiration of sixty days after the
filing of an involuntary petition under Title 11 of the United
States Code, an application for the appointment of a receiver for
the assets of a Partner, or an involuntary petition seeking
liquidation, reorganization, arrangement or readjustment of its
debts under any other federal or state insolvency law, provided
that the same shall not have been vacated, set aside or stayed
within such sixty day period.
2.7
Capital Account . The “Capital Account” of
a Partner shall be (a) credited with (i) the amount of cash or, in
the case of non-cash asset contributions, the gross fair market
value of such capital contributions as agreed upon by the Partners
at the time such contribution is made less liabilities assumed by
the Partnership in connection with such contributions (or to which
any such contributed assets are subject) and (ii) such
Partner’s allocable share of Profits of the Partnership and
(b) debited with (i) the amount of any cash and the fair market
value of any property distributed to it pursuant to Section 5.1,
and (ii) such Partner’s allocable share of Losses of the
Partnership.
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2.8
Capital Contribution . The “Capital
Contribution” of a Partner shall be the amount which such
Partner contributes to the capital of the Partnership as provided
in Article 3.
2.9
Certificate . “Certificate” shall have the
meaning ascribed to such term in Section 1.2.
2.10
Code . “Code” shall mean the Internal
Revenue Code of 1986, as amended and in effect from time to time,
or the corresponding provisions of any successor statute.
2.11
Depreciation . “Depreciation” shall mean,
for each fiscal year or other period, an amount equal to the
depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period,
except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of
such year or other period, Depreciation shall be an amount which
bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such
beginning adjusted tax basis.
2.12
Event of Withdrawal . “Event of
Withdrawal” shall have the meaning ascribed to such term in
Subsection 10.1(b).
2.13
General Partner . “General Partner” shall
have the meaning ascribed to such term in the first paragraph of
this Agreement.
2.14
Generally Accepted Accounting Principles . “Generally
Accepted Accounting Principles” shall refer to generally
accepted accounting principles as in effect from time to time in
the United States of America.
2.15
Gross Asset Value . “Gross Asset Value”
shall mean, with respect to any asset, the asset’s adjusted
basis for federal income tax purposes except as follows:
(1)
The initial Gross Asset Value of any asset contributed by a Partner
to the Partnership shall be the gross fair market value of such
asset at the time of such contribution, as agreed to by the
Partners;
(2)
The Gross Asset Values of all Partnership assets shall be adjusted
to equal their respective gross-fair market values, as agreed to by
the Partners, as of the following times: (a) the acquisition of an
additional interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis capital
contribution; (b) the distribution by the Partnership to a Partner
of more than a de minimis amount of Partnership property
other than money, unless all Partners receive simultaneous
distributions of undivided interests in the distributed property in
proportion to their respective Percentage
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Interests; (c) the liquidation of the
Partnership within the meaning of Treas. Reg. §1.704-1(b) (2)
(ii) (g); and (d) the termination of the Partnership for federal
income tax purposes pursuant to Section 708 (b) (1) (B) of the
Code; and
(3)
The Gross Asset Value of any Partnership asset distributed to any
Partner shall be the gross fair market value of such asset on the
date of distribution. If the Gross Asset Value of an asset has been
determined or adjusted pursuant to Subsections 2.15 (1) or (2)
hereof, such Gross Asset Value shall thereafter be adjusted by the
Depreciation taken into account with respect to such asset for
purposes of computing Profits and Losses.
2.16
Limited Partner . “Limited Partner” shall
have the meaning ascribed to such term in the first paragraph of
this Agreement.
2.17
Partner . “Partner” shall have the meaning
ascribed to such term in the first paragraph of this Agreement.
2.18
Partnership . “Partnership” shall have the
meaning ascribed to such term in Subsection 1.1 (a).
2.19
Partnership Interest . “Partnership
Interest” shall refer, with respect to a given Partner as of
a given date, to such Partner’s general partner interest in
the Partnership (if any) and such Partner’s limited partner
interest in the Partnership (if any), in each case as of such
date.
2.20
Partnership Year . “Partnership Year”
shall have the meaning ascribed to such term in Section 1.6.
2.21
Percentage Interest . The “Percentage Interest”
of the General Partner shall be 1%, and the “Percentage
Interest” of the Limited Partner shall be 99%.
2.22
Person . “Person” shall include an
individual, a partnership, a corporation, a trust, an
unincorporated organization, a government or any department or
agency thereof, and any other entity.
2.23
Profits and Losses . “Profits” and
“Losses” shall mean, for each fiscal year or other
period, an amount equal to the Partnership’s taxable income
or loss for such year or period, determined 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 taxable
income or loss), with the following adjustments:
(i)
Any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in
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computing Profits or Losses pursuant to this
Section 2.23 shall be added to such taxable income or
loss;
(ii)
Any expenditures of the Partnership described in Section 705 (a)
(2) (B) of the Code or treated as Code Section 705 (a) (2) (B)
expenditures pursuant to Treas. Reg. §1.704-l (b) (2) (iv)
(i), and not otherwise taken into account in computing Profits or
Losses pursuant to this Section 2.23, shall be subtracted from such
taxable income or loss;
(iii)
In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to Subsection 2.15 (2) or (3) hereof, the amount
of such adjustment shall be taken into account as gain or loss from
the disposition of such asset for purposes of computing Profits or
Losses;
(iv)
Gain or loss resulting from any disposition of Partnership property
with respect to which gain or loss is recognized for federal income
tax purposes shall be computed by reference to the Gross Asset
Value of the property disposed of, notwithstanding that the
adjusted tax basis of such property differs from its Gross Asset
Value; and
(v)
In lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such
fiscal year or other period.
2.24
Transfer . “Transfer” shall mean any
assignment, mortgage, hypothecation, transfer, pledge, creation of
a security interest in or lien upon, encumbrance, gift or other
disposition.
2.25
General Provisions . As used in this Agreement, except as
the context otherwise requires, each term stated in either the
singular or the plural shall include the singular and the plural,
and pronouns stated in the masculine, feminine or neuter gender
shall include the masculine, feminine and the neuter. The words
“herein”, “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole, including the Schedules hereto, and not
to any particular Article, Section, Subsection, Clause or
Subdivision contained in this Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS; CAPITAL
ACCOUNTS
3.1
Initial Capital Contributions .
(a)
The General Partner’s initial Capital Contribution to the
capital of the Partnership, as successor general partner to
Recycling, is the assets, subject to the liabilities, described in
the second WHEREAS clause of this Agreement.
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(b)
The Limited Partner’s initial Capital Contribution to the
capital of the Partnership, as successor limited partner to GPHC,
is the assets, subject to the liabilities, described in the third
WHEREAS clause of this Agreement.
3.2
Capital Accounts . A Capital Account shall be established
and maintained for each Partner on the books of the Partnership.
Each Partner’s interest in the capital of the Partnership
shall be represented by its Capital Account. The initial Capital
Account of each Partner shall reflect such Partner’s Capital
Contribution pursuant to Section 3.1.
3.3
Negative Capital Accounts . At no time during the term of
the Partnership or upon dissolution and liquidation thereof shall a
Limited Partner with a negative balance in its Capital Account have
any obligation to the Partnership or the other Partners to restore
such negative balance.
3.4
Compliance with Treasury Regulations . The foregoing
provisions and the other provisions of this Agreement relating to
the maintenance of capital accounts are intended to comply with
Section 704 (b) of the Code and Treas. Reg. §§1.704-l (b)
and 1.704-2 (or any corresponding provision of succeeding law) and
shall be interpreted and applied in a manner consistent with such
Regulation. In the event the General Partner shall determine
that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto, are computed in order
to comply with such Regulation, the Partnership may make such
modifications. The Partnership also shall make any appropriate
modifications in the event unanticipated events might otherwise
cause this Agreement not to comply with Section 704 (b) of the Code
and Treas. Reg. §§1.704-l (b) and 1.704-2 (or any
corresponding provision of succeeding law).
3.5
Succession to Capital Accounts . In the event any interest
in the Partnership is transferred in accordance with the terms of
this Agreement, the transferee shall succeed to the Capital Account
of the transferor to the extent it relates to the transferred
interest. For purposes of the preceding sentence, the portion
of the Capital Account to which the transferee succeeds shall be
that percentage of the transferor’s total Capital Account as
the Percentage Interest being transferred bears to the total
Percentage Interest of the transferor.
3.6
Certain Adjustments . In the event the Gross Asset
Values of the assets of the Partnership are adjusted pursuant to
the provisions of this Agreement, the Capital Accounts of all
Partners shall be adjusted simultaneously to reflect the aggregate
net adjustment as if the Partnership recognized gain or loss equal
to the amount of such, aggregate net adjustment.
3.7
No Withdrawal of Capital Contributions . No Partner shall
withdraw any Capital Contributions without the
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unanimous written approval of the other
Partners. No Partner shall receive any interest with respect
to its Capital Contributions.
ARTICLE IV
COSTS AND EXPENSES
4.1
Organizational and Other Costs . The Partnership shall pay
or cause to be paid all costs and expenses incurred in connection
with the formation and organization of the Partnership. Such costs
and expenses to be borne by the Partnership shall include, without
limitation, all related accounting, consulting, filing and
registration costs.
4.2
Operating Costs . The Partnership shall (i) pay or cause to
be paid all costs and expenses of the Partnership incurred in
pursuing and conducting, or otherwise related to, the business of
the Partnership, (ii) pay or cause to be paid all
employment-related costs and expenses incurred by the General
Partner in pursuing and conducting the business of the Partnership,
and (iii) reimburse
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