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
