EXHIBIT 3.2
AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF ▇▇▇▇▇▇ PACKAGING COMPANY
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the
"Agreement") of ▇▇▇▇▇▇ Packaging Company (formerly known as ▇▇▇▇▇▇ Packaging
Holdings I, L.P., the "Partnership") is made and entered into as of February 2,
1998 by and between GPC Opco GP LLC, a Delaware limited liability Company with
its offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Opco GP"), as
general partner, and ▇▇▇▇▇▇ Packaging Holdings Company, a Pennsylvania limited
partnership with its offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (formerly known as ▇▇▇▇▇▇ Packaging Company, "GPHC"), as limited partner
(Opco GP and GPHC shall be collectively referred to herein as "Partners" and
individually as a "Partner").
W I T N E S S E T H :
WHEREAS, the Partnership was originally formed under the name ▇▇▇▇▇▇
Packaging Holdings I, L.P. under the provisions of the Delaware Revised Uniform
Limited Partnership Act (as amended, the "Act"), with ▇▇▇▇▇▇ Recycling
Corporation, a Pennsylvania corporation with its offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Recycling"), as general partner, and GPHC, as
limited partner; 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, ▇▇▇▇▇▇ Capital Corporation, a
Pennsylvania corporation, ▇▇▇▇▇▇ Family Growth Partnership, a Pennsylvania
limited partnership, ▇▇▇▇▇▇ Packaging Corporation, a Pennsylvania corporation,
▇▇▇▇▇▇ Engineering Corporation, a Pennsylvania corporation, Recycling, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, BCP/▇▇▇▇▇▇ Holdings L.L.C., a Delaware limited liability company, and
BMP/▇▇▇▇▇▇ Holdings Corporation, a Delaware corporation, on the date hereof,
Recycling has assigned to Opco GP all of its general 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 PARTNERSHIP
Section 1.1 Glossary. Certain terms used herein are defined in the Glossary
attached hereto as Exhibit A, which is incorporated herein and made a part
hereof.
Section 1.2 Organization. Recycling, by the filing on September 21, 1994 of
the Certificate, formed the Partnership as a limited partnership pursuant to the
Delaware Revised Uniform Limited Partnership Act (as amended, the "Act") for the
purposes and upon the terms and conditions set forth herein. On the date hereof,
Recycling has withdrawn from the Partnership as a general partner, and Opco GP
has become the general partner of the Partnership. Except as otherwise provided
herein, the relative rights and obligations of the Partners shall be as provided
in the Act.
Section 1.3 Name. The name of the Partnership has been ▇▇▇▇▇▇ Packaging
Holdings I, L.P. and, from and after the date hereof, shall be ▇▇▇▇▇▇ Packaging
Company. All business of the Partnership shall be conducted in such name and/or
such other assumed, trade, or fictitious names as the General Partner shall from
time to time determine.
Section 1.4 Place of Business. The initial principal office of the
Partnership shall be located c/o The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Partnership may also maintain such
additional offices as the General Partner may from time to time determine.
Section 1.5 Purpose. The purpose of the Partnership shall be the sale and
manufacturing of rigid plastic containers and any business necessary or
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 State of
Delaware on limited partnerships formed under the laws of that State, 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 purpose of the Partnership.
The business of the Partnership shall be conducted in compliance with, and any
action required or permitted to be taken by the General Partner or any Limited
Partner shall be taken in accordance with, all applicable laws, rules and
regulations. Such business may be conducted directly by the Partnership or
thorough such subsidiary corporations, partnerships or other entities as the
General Partner deems advisable.
Section 1.6 Term. The Partnership commenced its existence upon the filing
of a Certificate of Limited Partnership with respect thereto (the "Certificate")
with the Secretary of State of the State of Delaware and shall dissolve at 11:59
p.m. on December 31, 2044 unless sooner dissolved pursuant to law or this
Agreement.
Section 1.7 Powers of the Partnership. The Partnership shall have and may
exercise all powers now or
hereafter permitted by the State of Delaware to be exercised by a limited
partnership formed under the laws of that state, and to do any and all things
not prohibited by law in furtherance of the business of the Partnership as fully
as natural persons might or could do.
Section 1.8 Fiscal Year. The fiscal year ("Fiscal Year") of the Partnership
shall be the calendar year.
Section 1.9 Partnership Assets.
(a) The Partners shall use the Partnership's credit and assets solely for
the benefit of the Partnership. All real and personal property owned by the
Partnership shall be owned by the Partnership as an Entity. Each Partner's
interest in the Partnership shall be personal property for all purposes.
(b) No Partner shall, either directly or indirectly, take any action to
require partition or appraisement of the Partnership or of any of its assets or
properties or cause the sale of any Partnership property for other than a
Partnership purpose, and notwithstanding any provision of applicable law to the
contrary, each Partner (and its legal representatives, successors and assigns)
hereby irrevocably waives any and all right to maintain any action for partition
or to compel any sale with respect to its Partnership Interest or with respect
to any assets or properties of the Partnership, except as expressly provided in
this Agreement.
Section 1.10 Limitation on Liability of Partners. Except as otherwise
required by the Act or applicable law or as expressly agreed in writing, neither
the Limited Partner nor any director, officer, shareholder, partner, employee or
agent of any Partner shall be personally liable for the payment of any sums
owing by such Partner to the Partnership or any other Partner under the terms of
this Agreement or for the performance of any other covenant or agreement of such
Partner contained herein.
Section 1.11 Conflicts of Interest and Transactions with Affiliates.
(a) Any Partner and any Affiliate of any Partner may engage in or possess
an interest in any business or activity whatsoever, whether presently existing
or hereafter created, without any accountability to the Partnership or any
Partner.
(b) The Partnership may enter into any arrangement, contract, agreement or
business venture that is not prohibited under the Act with any Partner or any
Partner's Affiliates. Each Partner understands and acknowledges that the conduct
of the business of the Partnership will involve business dealings with such
other business ventures or undertakings of the Partners and their Affiliates. It
is expressly understood and agreed that the Partnership, at the discretion of
the General Partner, may borrow funds from any Partner or its Affiliates;
provided, however, that any material transaction of the Partnership with any
Partner or Affiliate of a Partner shall be on terms reasonably determined by
the General Partner to be comparable to the terms which could be obtained from
third parties.
Section 1.12 Statutory Compliance. The General Partner has executed an
Amended and Restated Certificate of Limited Partnership of the Partnership (the
"Amended Certificate") and caused it to be filed in the office of the Secretary
of State of the State of Delaware pursuant to 17 Del. Laws ss.17-204 and
ss.17-206 and hereafter shall execute such further documents and take such
further action as shall be appropriate to comply with the Act and all other all
requirements of law for the formation and operation of a limited partnership in
the State of Delaware and all other jurisdictions in which the Partnership may
elect to do business.
Section 1.13 Power of Attorney. The Limited Partner hereby irrevocably
constitutes and appoints the General Partner and its authorized agents and
officers with full power of substitution as its true and lawful agent and
attorney-in-fact, with full power and authority in its name, place and stead,
to:
(a) execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices: (i) all certificates and other instruments and all
amendments or restatements thereof which the General Partner deems appropriate
or necessary to qualify, or continue the qualification of, the Partnership as a
limited partnership in all jurisdictions in which the Partnership may conduct
business or own property; (ii) all instruments, including any amendment or
restatement of this Agreement, which the General Partner deems appropriate or
necessary to reflect any amendment, change or modification of this Agreement
made in accordance with this Agreement; (iii) all conveyances and other
instruments or documents which the General Partner deems appropriate or
necessary to reflect the dissolution, merger or liquidation of the Partnership
pursuant to the terms of this Agreement; and (iv) all instruments relating to
the admission or substitution of any Partner pursuant to this Agreement; and
(b) sign, execute, swear to and acknowledge all ballots, consents,
approvals, waivers, certificates and other instruments which the General Partner
deems appropriate or necessary to make, evidence, give, confirm or ratify any
vote, consent, approval, agreement or other action which is made or given by the
Partners hereunder, is deemed to be made or given by the Partners hereunder, or
is consistent with the terms of this Agreement and/or appropriate or necessary,
in the sole discretion of the General Partner, to effectuate the terms or intent
of this Agreement.
ARTICLE II
CAPITAL AND INITIAL PARTNERSHIP INTERESTS
Section 2.1 Capitalization. All Capital Contributions to the Partnership
shall be made in cash or in such other form (including, in lieu of cash,
property, services, notes, other evidences of indebtedness or obligations) as
the General Partner
may determine to be appropriate and shall be made 1% by the General Partner and
99% by the Limited Partner. The initial Capital Contribution of the Partners was
$100.00 in cash. Any future non-cash contribution to the capital of the
Partnership shall be valued at its fair market value as determined in the
reasonable judgment of the General Partner.
Section 2.2 Capital Contributions Generally. Except as otherwise expressly
provided herein or to the extent that a Partner agrees to make a Capital
Contribution to, or to purchase interests from, the Partnership: (a) no Partner
shall be required to contribute any capital to the Partnership; (b) no Partner
may withdraw any of its capital from the Partnership; (c) no Partner shall be
required to make any loan to the Partnership; (d) loans by a Partner to the
Partnership shall not be considered a contribution of capital, shall not
increase the Capital Account of the lending Partner or its ownership interest of
the Partnership and the repayment of such loans by the Partnership shall not
decrease, or result in any adjustment to, the Capital Account of the Partner
making the loans; (e) no interest shall be paid on any capital contributed to
the Partnership by any Partner; (f) under any circumstances requiring a return
of all or any portion of a Capital Contribution, no Partner shall have the right
to receive property other than cash; and (g) no Partner shall be required at any
time to restore any deficit in its Capital Account.
ARTICLE III
CAPITAL ACCOUNTS
Section 3.1 Establishment and Maintenance of Capital Accounts. A capital
account ("Capital Account") shall be established for each Partner in the amount
of such Partner's initial Capital Contribution to the Partnership. Each
Partner's Capital Account shall be determined and maintained in accordance with
the rules of Treas. Reg. ss.1.704-l(b)(2)(iv). Pursuant to those rules, a
Partner's Capital Account shall be increased by:
(a) the amount of any money contributed by such Partner to the Partnership;
(b) the fair market value, on the date of contribution, of property (other
than money) contributed by such Partner to the Partnership (net of liabilities
secured by such contributed property that the Partnership either assumes or to
which it takes subject); and
(c) allocations of Partnership income and gain (or items thereof),
including income and gain exempt from tax;
and shall be decreased by:
(d) the amount of money distributed to such Partner by the Partnership
(except as payments of principal and interest on any loans);
(e) except as provided in Section 3.2 below, the fair market value of
property (other than money) distributed to such Partner by the Partnership (net
of liabilities secured by such distributed property that the Partner assumes or
subject to which it takes the property);
(f) such Partner's allocable share of expenditures of the Partnership not
deductible in computing its taxable income and not properly capitalized for
federal income tax purposes; and
(g) allocations of Partnership loss and deduction (or items thereof), but
excluding items described in (f) above.
Section 3.2 Distribution Upon Liquidation in Accordance with Capital
Account. Upon liquidation of the Partnership, liquidating distributions shall in
all cases be made in accordance with the positive Capital Account balances of
the Partners, as determined after taking into account all Capital Account
adjustments for the Partnership's taxable year during which such liquidation
occurs (other than those made pursuant to this Section), by the end of such
taxable year or, if later, within ninety (90) days after the date of such
liquidation, except as permitted by Treas. Reg. ss.1.704-l(b)(2)(ii)(b).
Section 3.3 Succession to Capital Accounts. In the event any Partnership
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 Partnership 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 Partnership Interest being transferred bears to the total
Partnership Interest of the transferor.
ARTICLE IV
DISTRIBUTIONS
Section 4.1 Distributions Prior to Dissolution.
(a) From time to time the General Partner may make such distributions as it
in its sole discretion may determine are appropriate, without being limited to
current or accumulated income or gains. Such distributions may be made from
Partnership revenues, borrowings or Capital Contributions. The General Partner
may in its sole discretion distribute to Partners Partnership property other
than cash.
(b) Except as provided in Section 3.2 above, all distributions shall be
made to the Partners in the following priorities and proportions: 99% to the
Limited Partner and 1% to the General Partner.
Section 4.2 In-Kind Distributions. If, at the dis- cretion of the General
Partner, any assets of the Partnership are distributed to the Partners in kind,
such assets shall be valued
on the basis of the fair market value thereof as determined by the General
Partner in its reasonable discretion on the date of distribution. Without
limiting the General Partner's discretion to make such a valuation or requiring
that any such appraisal be made, the valuation of any asset by the General
Partner on the basis of the determination of its fair market value by an
independent appraiser shall be deemed to be a reasonable value for such asset
and a reasonable exercise of such discretion.
ARTICLE V
ALLOCATIONS
(a) All Gross Income and Gross Deductions for each taxable year shall,
first, be allocated among the Partners to the extent necessary to eliminate any
negative Economic Capital Accounts, and, second, to the maximum extent possible,
be allocated among the Partners so that, if liquidating distributions were to be
made to the Partners under Section 3.2 above in accordance with the positive
balances in the Partners' then respective Economic Capital Accounts (rather than
their Capital Accounts), such liquidating distributions would be made in the
following manner: 99% to the Limited Partner and 1% to the General Partner.
(b) Any federal, state or local income tax credits available to the
Partnership shall be allocated among the Partners in accordance with Treas. Reg.
ss.1.704-l(b)(4)(ii).
(c) Notwithstanding anything to the contrary in this Section 5, the
following special allocations shall be made in the following order:
(i) If there is a net decrease in Minimum Gain during a taxable year,
then the Partners shall be allocated items of gross income and gain for
such year (and, if necessary, subsequent years) in the amount and in the
proportions necessary to satisfy the requirements of a "minimum gain
chargeback" under Treas. Reg. ss.1.704-2(f).
(ii) If there is a net decrease in Partner Minimum Gain attributable
to a partner Nonrecourse Debt during a taxable year, then any Partner with
a share of the Partner Minimum Gain attributable to such debt at the
beginning of such year shall be allocated items of income and gain for such
year (and, if necessary, subsequent years) in the amount and proportions
necessary to satisfy the provision of Treas. Reg. ss.1.704-2(i)(4).
(iii) Any Partner who unexpectedly receives an adjustment, allocation
or distribution described in clauses (4), (5) or (6) of Treas. Reg.
ss.1.704-l(b)(2)(ii)(d) that produces a deficit in its Hypothetical Capital
Account shall be allocated items of gross income and gain in an amount and
manner sufficient to eliminate the deficit in its Hypothetical Capital
Account as quickly as possible. This paragraph (iii) is intended to comply
with the "qualified
income offset" requirement in Treas. Reg. ss.1.704- 1(b)(2)(ii)(d)(3), and
shall be interpreted consistently therewith.
(iv) All Nonrecourse Deductions, if any, for each taxable year shall
be allocated 99% to the Limited Partner, and 1% to the General Partner.
(v) All Partner Nonrecourse Deductions for each taxable year shall be
allocated to the Partner or Partners who bear the economic risk of loss
with respect to the Partner Nonrecourse Debt to which such Partner
Nonrecourse Deductions are attributable, in accordance with the ratio in
which the Partners bear such economic risk of loss and Treas. Reg.
ss.1.704-2(i)(1).
(vi) No Partner shall be allocated Gross Deductions to the extent such
allocation would cause a deficit in its Hypothetical Capital Account, and
any such Gross Deductions shall be allocated to the other Partner in
proportion to their positive Hypothetical Capital Accounts.
(d) For income tax purposes:
(i) If property is contributed to the Partnership, income, gain, loss
and deductions with respect to such property (and, to the extent necessary,
other gross income, gain, loss and deductions of the Partnership), as
computed for income tax purposes, shall be allocated among the Partners so
as to take account of any variation between the adjusted tax basis of such
property and its Book Value, in accordance with Code section 704(c); and
(ii) In any other case where the Book Value of any Partnership asset
differs from its adjusted tax basis (including any difference attributable
to the revaluation of Partnership property as of the date hereof),
subsequent allocations of income, gain, loss and deduction with respect to
such asset (and, to the extent necessary, other gross income, gain, loss
and deductions of the Partnership), as computed for federal income tax
purposes, shall take account of any variation between the adjusted basis of
such asset for federal income tax purposes and its Book Value in the same
manner as under Code section 704(c).
ARTICLE VI
CONTROL AND MANAGEMENT
Section 6.1 General. The General Partner shall, except as expressly limited
by this Agreement, to the fullest extent not prohibited by the Act, exercise all
of the powers of the Partnership, implement all Partnership decisions and have
full, exclusive and complete discretion in the management and control of the
Partnership including, without limitation, the power, authority, and right to:
(a) expend the capital and revenues of the Partnership in furtherance of
the Partnership's business and pay all expenses, debts and obligations of the
Partnership to the extent that funds of the Partnership are available therefor;
(b) invest the Partnership's funds pending disbursement thereof in
furtherance of the Partnership's business or to provide a source from which to
meet contingencies;
(c) purchase property and assets in furtherance of the business of the
Partnership, protect and preserve the Partnership's title and interest in such
properties and assets, and sell, Transfer or otherwise dispose of such
properties and assets;
(d) institute, defend and settle litigation arising in connection with the
Partnership's business, submit claims to arbitration and confess judgment
against the Partnership, and give receipts, releases and discharges with respect
to all of the foregoing;
(e) maintain, at the expense of the Partnership, records and accounts of
operations and expenditures;
(f) purchase, at the expense of the Partnership, liability, casualty, fire
and other insurance and bonds to protect the Partnership's properties, business,
Partners and employees and to protect the General Partner and its employees;
(g) at the expense of the Partnership, consultants, accountants, attorneys,
and others and terminate such employment;
(h) negotiate, enter into, perform and terminate any and all agreements,
documents, licenses and other instruments necessary or incidental to the conduct
of the business of the Partnership (including, without limitation, agreements of
merger or consolidation in which the Partnership is the surviving entity);
(i) incur indebtedness, borrow funds and/or issue guarantees, and pledge
the Partnership's assets to secure the same, in each case in furtherance of the
Partnership's business;
(j) issue or cause to be issued, and purchase, interests in the
Partnership, including, without limitation, rights, options, warrants, notes,
and bonds and admit additional or substitute Partners;
(k) amend this Agreement in accordance with its terms; and
(l) perform all other functions related to the business and affairs of the
Partnership.
By executing this Agreement, the Limited Partner hereby expressly consents to
any exercise by the General Partner of all or any of the foregoing powers.
Section 6.2 Third Parties.
(a) As to any third Person, any officer of the General Partner shall have
full power and authority to execute all documents and take all other actions of
the General Partner and thereby bind the Partnership with respect thereto. The
duly adopted resolution of the board of directors of the General Partner
authorizing any officer or director of the General Partner to undertake any
action shall be conclusive evidence of such officer's authority with respect
thereto.
(b) The Limited Partner shall not be personally liable for any debts or
other obligations of the Partnership to third parties, except to the extent
provided herein or in the Act.
Section 6.3 Exculpation; Indemnification.
(a) Neither the General Partner nor any Affiliate of the General Partner
nor any of their respective partners, shareholders, officers, directors,
employees or agents shall be liable, in damages or otherwise, to the Partnership
or to any Partner for any breach of such Person's duty of loyalty to the
Partnership or the Partners or for acts of omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, or (in the case of
the General Partner only) any breach by the General Partner of any of the
material terms and provisions of this Agreement. The Partnership shall
indemnify, defend and hold harmless, to the fullest extent not prohibited by
law, the General Partner and each of its Affiliates and their respective
partners, shareholders, officers, directors, employees and agents, from and
against any claim, loss or liability of any nature whatsoever (including
attorneys' fees) arising out of or in connection with the assets or business of
the Partnership, unless the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted intentional
misconduct or a knowing violation of law by such Person or (in the case of the
General Partner only) a breach by the General Partner of any of the material
terms and provisions of this Agreement. The foregoing obligation of the
Partnership shall be satisfied only out of the assets of the Partnership and
under no circumstances shall any recourse be available against the General
Partner or any other Partner or the assets of any Partner.
(b) The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers and other consultants and
advisers selected by it and any opinion of any such Person as to matters which
such General Partner believes to be within such Person's professional or expert
competence shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by the General Partner hereunder in
accordance with such opinion. The General Partner may also rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, agreement, report, notice, request, order, bond,
debenture, or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
(c) Expenses incurred by a Partner or other Person in defending any action
or proceeding against which indemnification may be made pursuant to this Section
shall be paid by the Partnership in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of such
Person to repay such amount if it shall ultimately be determined that it is not
entitled to be indemnified by the Partnership.
(d) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall, continue as to a Person who has ceased to serve
in the capacity as to which it was indemnified and shall inure to the benefit of
the heirs, executors, administrators, successors and assigns of such Person.
Section 6.4 Expenses; Compensation. Except as otherwise provided herein,
the Partnership shall pay or cause to be paid (a) all costs and expenses
incurred in connection with the formation and organization of the Partnership,
(b) all costs and expenses of the Partnership incurred in pursuing and
conducting, or otherwise related to, the business of the Partnership, and (c)
all employment-related costs and expenses incurred by the General Partner in
pursuing and conducting the business of the Partnership. The General Partner
shall also be entitled to reimbursement of all of its other expenses
attributable to the performance of its obligations hereunder. Subject to the
Act, no amount so paid to the General Partner shall be deemed to be a
distribution of Partnership assets for purposes of this Agreement. Except for
reimbursement of its expenses and its right to distributions as provided in this
Agreement, the General Partner shall not receive any compensation for its
services as such.
Section 6.5 No Right of Limited Partner in Management. The Limited Partner
shall not (a) have the power to sign for or to bind the Partnership, (b) take
any part in the management of the business of, or transact any business for, the
Partnership, or (c) except as required by the Act or expressly provided by this
Agreement, have any right to vote on or consent to any matter.
Section 6.6 Restrictions on General Partner's Authority. Notwithstanding
any other provision of this Agreement, the General Partner shall not have
authority to do any of the following:
(i) act in contravention of this Agreement;
(ii) any act which would make it impossible to carry on the ordinary
business of the Partnership, except as otherwise provided in this
Agreement;
(iii) possess Partnership property or assign any rights in specific
Partnership property, for other than a Partnership purpose; or
(iv) knowingly commit any act which would subject any Limited Partner
to liability as a general partner in any jurisdiction in which the
Partnership transacts business.
ARTICLE VII
ACCOUNTING AND RECORDS
Section 7.1 Books and Records. The General Partner shall keep books of
account for the Partnership in accordance with the accrual method of accounting
used for federal income tax purposes.
Section 7.2 Annual Report. By ninety (90) days after the end of each Fiscal
Year (or such earlier date as may be required under the Code) the General
Partner shall cause to be delivered to each Partner a report indicating each
Partner's share for federal income tax purposes of the Partnership's income,
credits and deductions for the immediately preceding Fiscal Year together with
all other information concerning the Partnership which may be required by the
Code from time to time. The General Partner shall also cause an annual report of
the operation of the Partnership to be distributed to the Partners within ninety
(90) days after the end of each Fiscal Year together with financial statements
reflecting the Partnership's operation during such year.
Section 7.3 Tax Returns. The General Partner shall prepare all income and
other tax returns of the Partnership and cause the same to be filed in a timely
manner. The General Partner shall be the tax matters partner (as defined in Code
section 6231(a)(7)).
ARTICLE VIII
RESTRICTIONS ON TRANSFER OF INTERESTS
Section 8.1 Restrictions on Transfer. Partnership Interests may not be
sold, transferred, assigned, pledged or otherwise disposed of without the
consent of the General Partner, except that Partnership Interests may be pledged
as collateral and such pledge may be foreclosed upon in the event of a default.
ARTICLE IX
DISSOLUTION AND WINDING UP OF THE PARTNERSHIP
Section 9.1 Events of Dissolution. The occurrence of any of the following
shall constitute an event of dissolution of the Partnership (an "Event of
Dissolution"):
(a) the expiration of the term of the Partnership as provided in Section
1.6 above;
(b) the sale or other disposition in a single transaction or series of
related transactions of all or substantially all of the assets of the
Partnership unless such sale or other disposition involves any deferred payment
of the consideration for such sale or disposition, in which case the Partnership
shall not dissolve until the last day of the calendar
year during which the Partnership shall receive the balance of such deferred
payment;
(c) the resignation, withdrawal, or dissolution of the General Partner or
the occurrence of an Event of Bankruptcy of the General Partner, which is not,
in the case of an involuntary Event of Bankruptcy, discharged or stayed within
one hundred and twenty (120) days of occurrence, unless at the time of such
withdrawal, dissolution, resignation, bankruptcy or death, there shall be one or
more other General Partners who are members of or simultaneously admitted to the
Partnership;
(d) the occurrence of an Event of Bankruptcy of the Limited Partner, which
is not, in the case of an involuntary Event of Bankruptcy, discharged or stayed
within one hundred and twenty (120) days of occurrence, unless at the time of
such bankruptcy, there shall be one or more other Limited Partners who are
members of or simultaneously admitted to the Partnership;
(e) the acquisition by a single Person of all of the Partnership Interests;
(f) the issuance of a decree of dissolution by a court of competent
jurisdiction pursuant to the Act; or
(g) as otherwise required by the Act.
Section 9.2 Effect of Dissolution. Upon the occurrence of an Event of
Dissolution, the Partnership shall not terminate but shall continue solely for
the purposes of winding up its business and liquidating in accordance with this
Article 9 all of its assets and collecting the proceeds from such sales and
liquidations at which time the Partnership shall be wound up. After the
occurrence of an Event of Dissolution the Partnership shall engage in no further
business other than as necessary to operate on an interim basis and for the
Partnership to collect its receivables, liquidate its assets and pay or
discharge its liabilities in accordance with this Article 9.
Section 9.3 Sale of Assets by Liquidator.
(a) Upon dissolution of the Partnership, the General Partner shall, as
"Liquidator," proceed to wind up the affairs of the Partnership and distribute
its assets in accordance with this Article 9, unless the General Partner is
unable or unwilling to serve as Liquidator, in which case a substitute
Liquidator shall be appointed by the Limited Partner. If the Liquidator shall
determine that an immediate sale of part or all of the Partnership's assets
would cause undue loss to the Partners, then the Liquidator, in order to avoid
or lessen such loss, may either (i) defer liquidation of, and withhold from such
distribution for a reasonable time, any assets of the Partnership, except those
necessary to satisfy Partnership debts and obligations, or (ii) distribute the
assets to the Partners or their assigns in kind in the manner set forth in this
Section 9.3.
(b) Upon dissolution of the Partnership, the Liquidator shall cause a final
accounting to be made by an
independent accountant and, upon termination and subject to due provision for
the payment of all the expenses of the liquidation and all other debts and
obligations of the Partnership:
(i) Any or all non-cash assets of the Partnership may be sold by
public or private sale, at the discretion of and on terms set by the
General Partner, at which any Partner or any Affiliate of a Partner may bid
for such assets; and
(ii) Following such sale, if any, of noncash assets, Partnership cash
shall be distributed to the Partners in accordance with Section 9.3(e).
(c) If any assets of the Partnership are to be distributed in kind, such
assets shall be distributed on the basis of the fair market value thereof as
determined in the reasonable judgment of the General Partner. Without limiting
the General Partner's discretion to make such valuation or requiring that any
such appraisal be made, the valuation given to any such assets by an independent
appraiser shall be conclusively deemed a reasonable fair value and the use of
such valuation by the General Partner a reasonable exercise of its discretion. A
Partner entitled to an interest in such distributed assets shall receive such
interest therein as a tenant-in-common with the other Partners so entitled. The
fair market value of such assets shall be determined by an independent appraiser
to be selected by the General Partner. In the event of such liquidation in kind,
a distributee Partner shall not thereafter sell or otherwise transfer or dispose
of any interest in any assets so distributed which it holds as a
tenant-in-common without first offering such interest in writing to the other
tenants-in-common upon the same terms and conditions and for the same price as
such proposed sale or transfer. The other tenants-in-common shall have 30 days
after the receipt of such offer within which to accept the same and shall have
the right to acquire such interest in proportion to their Partnership Interest
formerly held in the Partnership. If the other tenants-in-common shall fail to
accept such offer within such period of time, such distributee Partner shall be
free to sell the interest in said assets upon the terms and conditions described
in the offer disclosed to the other tenants-in-common.
(d) The Partners specifically intend and agree that any distribution under
this Section 9.3 shall confer upon the distributee the actual economic ownership
and equitable title to all such properties distributed. If the title or form of
ownership by which any Partnership property is held is different from that
necessary to fully accomplish the foregoing intent, then all Partners agree to
execute and deliver such deeds, bills of sale and other documents, and to take
such other steps, as may be necessary or appropriate to secure to each Partner
the full economic ownership and title in such property to which such Partner is
so entitled hereunder.
(e) Any distributions of cash and/or other assets pursuant to this Section
9.3 shall be made in accordance with Section 3.2.
(f) The liquidation of the Partnership shall be final when all of the
Partnership's assets have been collected and applied to the Partnership's
obligations and its remaining assets, if any, have been distributed to the
Partners in accordance with this Agreement.
Section 9.4 Time Limitations on Liquidating Distributions. Nothing in this
Article 9 shall be construed to extend the time period prescribed under Section
3.2 above and Treas. Reg. ss.1.704-1(b)(2)(ii)(b) for making liquidating
distributions of the Partnership's assets. If the Liquidator deems it
impracticable to cause the Partnership to make distributions of the liquidating
proceeds to the Partners within the time period described under Treas. Reg.
ss.1.704-1(b)(2)(ii)(b), the Liquidator may make any arrangement that is
considered for federal income tax purposes to effectuate liquidating
distributions of all of the Partnership's assets to the Partners within the time
period prescribed in such regulation and that will permit the sale of the
non-cash assets considered so distributed in a manner that gives effect, to the
extent possible, to the intent of the preceding provisions of this Article 9.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Separability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 10.2 Assignment and Benefit. This Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors and
assigns. This Agreement and the rights and obligations set forth herein may not
be assigned or delegated by any party without the written consent of each other
party hereto, except as provided herein. Nothing in this Agreement shall be
deemed to create any right in any person not a party hereto (other than the
permitted successors and assigns of a party hereto) and this Agreement shall not
be construed in any respect to be a contract in whole or in part for the benefit
of any third party.
Section 10.3 Indemnification and Contribution. The Partnership shall
indemnify each Partner from and against any damage, liability, loss, cost or
deficiency (including, but not limited to, reasonable attorneys' fees)
("Damages") which each such Partner pays or becomes obligated to pay on account
of the imposition upon or assessment against such Partner of any obligation or
liability of the Partnership. The foregoing obligation of the Partnership shall
be satisfied only out of the assets of the Partnership and under no
circumstances shall any recourse be
available against the General Partner or any other Partner or the assets of any
Partner with respect thereto.
Section 10.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original; and any person may
become a party hereto by executing a counterpart hereof, but all of such
counterparts together shall be deemed to be one and the same instrument. It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
Section 10.5 Governing Law. This Agreement is made pursuant to, and shall
be construed and enforced in accordance with, the internal laws of the State of
Delaware (and United States federal law, to the extent applicable), without
giving effect to otherwise applicable principles of conflicts of law.
Section 10.6 Terms. Common nouns and pronouns shall be deemed to refer to
the masculine, feminine, neuter, singular and plural, as the identity of the
Person may in the context require. Any reference to the Code, Act or other
statutes or laws shall include all amendments, modifications or replacements of
the specific sections and provisions concerned.
Section 10.7 Further Assurances. The Partners hereto agree that they will
execute and deliver, or cause to be delivered, all such instruments, and will
take all such other actions, as may be reasonably required from time to time in
order to effectuate the provisions and purposes hereof.
Section 10.8 References to Agreement. Numbered or lettered articles,
sections and subsections herein contained refer to articles, sections and
subsections of this Agreement unless otherwise expressly stated. The words
"herein," "hereof," "hereunder, "this Agreement" and other similar references
shall be construed to mean and include this Partnership Agreement and all
amendments and supplements thereto unless the context shall clearly indicate or
require otherwise.
Section 10.9 Complete Agreement. This Agreement constitutes the complete
and exclusive statement of the agreement between the Partners with respect to
the matters to which it relates. It supersedes all prior written and oral
statements and no representation, statement, covenant, condition or warranty not
contained in this Agreement shall be binding on the Partners or have any force
or effect whatsoever.
Section 10.10 Reliance on Authority of Person Signing Agreement. If a
Partner is a trust (with or without disclosed beneficiaries), general
partnership, limited partnership, joint venture, corporation, or any Entity
other than a natural Person, the Partnership and the Partners shall:
(a) not be required to determine the authority of the Person signing this
Agreement to make any commitment or undertaking on behalf of such Entity or to
determine any fact or circumstance bearing upon the existence of the authority
of such
Entity or to determine any fact or circumstance bearing upon the existence or
the authority of such Person;
(b) not be required to see to the application or distribution of proceeds
paid or credited to Persons signing this Agreement on behalf of such Entity;
(c) be entitled to rely on the authority of the Person signing this
Agreement with respect to the voting of the Partnership Interest of such Entity
and with respect to the giving of consent on behalf of such Entity in connection
with any matter for which consent is permitted or required under this Agreement;
and
(d) be entitled to rely upon the authority of any general partner, joint
venturer, trustee, or president or vice president, as the case may be, of any
such Entity the same as if such Person were the Person originally signing this
Agreement on behalf of such Entity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
GENERAL PARTNER:
GPC OPCO GP LLC
By: ▇▇▇▇▇▇ Packaging Holdings
Company, member
By: ▇▇▇▇▇▇ Packaging
Corporation, general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: CEO ▇▇▇▇▇▇
Packaging
LIMITED PARTNER:
▇▇▇▇▇▇ PACKAGING HOLDINGS
COMPANY
By: ▇▇▇▇▇▇ Packaging
Corporation, general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: CEO ▇▇▇▇▇▇
Packaging
Exhibit A
GLOSSARY OF DEFINED TERMS
▇▇▇▇▇▇ Packaging Company
Amended and Restated Agreement of Limited Partnership
dated as of February 2, 1998
Term (Definition or Section in which definition appears)
Act 1.2
Affiliate A Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under
common control with the Person in question and any officer,
director, general partner, trustee, employee, or limited
partner or stockholder (in either case owning 10% or more of
the equity)of the Person in question or such other Person.
For purposes of this definition, "control" of an Entity
means the power to direct the management of such Entity,
whether by ownership, contract or otherwise.
Agreement Preamble
Book Value With respect to any asset, that asset's adjusted basis for
federal income tax purposes, except that (i) where an asset
has been revalued on the books of the Partnership the Book
Value of such asset shall be adjusted to reflect such
revaluation; (ii) where an asset has been contributed by a
Partner to the Partnership or distributed by the Partnership
to a Partner its Book Value shall be its fair market value
as determined pursuant to the provisions of this Agreement;
and (iii) the Book Value of Partnership assets shall be
adjusted to reflect the Depreciation taken into account with
respect to such assets for purposes of determining Gross
Income or Gross Deductions.
Capital Account Section 3.1
Capital
Contribution Any amount of cash, property, or services contributed by a
Partner to the Partnership in respect of its equity interest
therein in accordance with the Partnership Agreement.
Certificate Section 1.6
Code The Internal Revenue Code of 1986, as the same may be
amended from time to time. Any reference herein to any
section of the Code shall mean and include any and all
corresponding provisions of succeeding law.
Depreciation For each taxable year, an amount equal to the depreciation,
amortization or other cost recovery reduction allowable with
respect to an asset for such year or other period, except
that if the Book Value of an asset differs from its adjusted
basis for federal income tax purposes at the beginning of
such taxable year (as a result of the revaluation of such
asset or its contribution to the Partnership by a Partner),
Depreciation shall be an amount that bears the same ratio to
such beginning Book Value as the federal income tax
depreciation, amortization or other cost recovery deduction
for such taxable year bears to such beginning adjusted tax
basis; provided that if the beginning adjusted tax basis is
zero, Depreciation for such fiscal year shall be determined
with reference to such beginning Book Value using any
reasonable method selected by the General Partner, and
provided further that "Depreciation" with respect to any
asset for which the Partnership uses the "remedial
allocation method" shall be computed in accordance with
Treas. Reg.ss.1.704-3(d)(2).
Entity Any general partnership, limited partnership, corporation,
joint venture, trust, business trust, limited liability
company, cooperative or association.
Event of Bankruptcy As to the Partnership or a Partner:
- filing a voluntary petition in bankruptcy or for
reorganization or for the adoption of an arrangement under
the Bankruptcy Code (as now or in the future amended) or an
admission seeking the relief therein provided;
- making a general assignment for the benefit of its
creditors;
- consenting to the appointment of a receiver for all or a
substantial part of its property;
- in the case of the filing of an involuntary petition in
bankruptcy, an entry of an order for relief;
- the entry of a court order appointing a receiver or
trustee for all or a substantial part of its property
without its consent; or
- the assumption of custody or sequestration by a court of
competent jurisdiction of all or substantially all of its
property.
Event of
Dissolution Section 9.1
Fiscal Year Section 1.8
General Partner Opco GP or any other Person or Entity that becomes a general
partner of the Partnership in accordance with this
Agreement.
GPHC Preamble.
Gross Income or
Gross Deductions Respectively, the Partnership's gross income and gains or
gross losses and deductions for a taxable year, as computed
for federal income tax purposes (including all items of
Partnership income, gain, loss, or deduction regardless of
whether such items are required to be separately stated
under Code section 702(a)), with the following adjustments:
A. Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in
determining Gross Income shall be added to such Gross
Income;
B. Any expenditures of the Partnership described in Code
section 705(a)(2)(B) or treated as section 705(a)(2)(B)
expenditures pursuant to Treas. Reg. ss.1.704-1(b)(2)(iv)(i)
and not otherwise taken into account in computing Gross
Deductions shall be taken into account in computing such
Gross Deductions;
C. In any case where, in accordance with Treas. Reg.
ss.1.704-1(b)(2)(iv)(e) or (f), Partnership property is
revalued on the books of the Partnership to reflect its fair
market value, the amount of such upward or downward
adjustment (to the extent not previously taken into account)
shall be taken into account as gain or loss from a taxable
disposition of such property for purposes of computing Gross
Income or Gross Deductions;
D. 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 Book Value of the Property disposed of,
notwithstanding that the adjusted tax basis of such property
differs from such Book Value;
E. In lieu of the depreciation, amortization and other cost
recovery deductions taken into account for federal income
tax purposes, Depreciation as defined herein shall be taken
into account in computing Gross Deductions; and
F. Notwithstanding any other provisions of this definition,
Nonrecourse Deductions, Partner Nonrecourse Deductions, and
any items of income, gain, loss or deduction that are
specially allocated pursuant to one or more Partners shall
not be taken into account in computing Gross Income or Gross
Deductions.
Hypothetical
Capital Account A Partner's Capital Account, after giving effect to the
following adjustments:
A. Such Capital Account shall be reduced to reflect the
items described in clauses (4), (5) and (6) of Treas. Reg.
ss.1.704-1(b)(2)(ii)(d) (provided that any anticipated
distribution of the proceeds of a nonrecourse liability
shall be offset by an anticipated increase in Minimum Gain,
as provided in Treas. Reg. ss.1.704-2(h)); and
B. Such Capital Account shall be increased by any amount
such Partner is obligated to restore or is treated as being
obligated to restore for purposes of Treas. Reg.
ss.1.704-1(b)(2)(ii)(d), including such Partner's Minimum
Gain Share and such Partner's share of Partner Minimum Gain.
Limited Partner GPHC or any other Person or Entity that becomes a limited
partner in accordance with the Agreement.
Liquidator Section 9.3
Minimum Gain An amount determined by computing, with respect to each
nonrecourse liability of the Partnership, the amount of gain
(of whatever character), if any, that would be realized by
the Partnership if it disposed of (in a taxable transaction)
the Partnership property subject to such liability in full
satisfaction thereof, and by then aggregating the amounts so
computed. Such amount shall be determined in a manner
consistent with Treas. Reg.ss.1.704-2(d).
Minimum Gain Share For each Partner, such Partner's share of any Minimum Gain
as of the end of a taxable year, as determined under Treas.
Reg. ss.1.704-2(g).
Nonrecourse
Deductions For each taxable year, the Partnership deductions (and all
other items that would otherwise be included in Gross
Deductions) that are characterized as "nonrecourse
deductions" under Treas. Reg. ss.1.704-2(c).
Opco GP Preamble.
Partner Preamble.
Partnership Preamble.
Partnership
Interest The entire ownership interest of a Partner in the
Partnership at any particular time, including the right of
such Partner to any and all benefits to which a Partner may
be entitled as provided in this Agreement and in the Act,
together with the obligations of such Partner to comply with
all the terms and provisions of this Agreement and of the
Act.
Partner Minimum
Gain An amount determined by computing, with respect to each
Partner Nonrecourse Debt, the Minimum Gain that would result
if such Partner Nonrecourse Debt were treated as a
nonrecourse liability, determined in accordance with Treas.
Reg. ss.1.704-l(i)(3).
Partner Nonrecourse
Deductions For each taxable year, the partnership deductions (and all
other items that would otherwise be included in Gross
Deductions) that are attributable to Partner Nonrecourse
Debt and are characterized as partner nonrecourse deductions
under Treas. Reg.ss.1.704-2(i)(1).
Partner Nonrecourse
Debt Nonrecourse Partnership debt for which one or more Partners
bears an economic risk of loss, as defined in Treas. Reg.
ss.1.704-2(b)(4).
Person Any individual or Entity, and the heirs, executors,
administrators, legal representatives, successors and
assigns of such Person where the context so admits.
Recycling Preamble.
Treas. Reg. The Income Tax Regulations promulgated under the Code, as
such regulations may be amended from time to time.