AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDED AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP
("Certificate") of Sonoco Graham Company, a Pennsylvania limited partnership
(the "Partnership"), is made this third day of April, 1989, by and among Sonoco
Graham Corporation, a Pennsylvania corporation, as general partner (the "General
Partner"), Graham Engineering Corporation, a Pennsylvania corporation (the
"Initial Limited Partner"), and Graham Container Corporation, a Pennsylvania
corporation, and Sonoco Products Company, a South Carolina corporation (the
"Additional Limited Partners," and, collectively with the Initial Limited
Partner, hereinafter the "Limited Partners"). Hereinafter, the General Partner
and the Limited Partners are collectively referred to as "Partners."
W I T N E S S E T H :
---------------------
WHEREAS, on March 24, 1989, a Certificate of Limited
Partnership was filed in the Department of State of the Commonwealth of
Pennsylvania whereby the Partnership was formed by the General Partner and the
Initial Limited Partner under the Pennsylvania Uniform Limited Partnership Act;
and
WHEREAS, the Partners now desire to amend and restate the
terms and provisions of the Certificate of Limited Partnership of the
Partnership, all in accordance with the Amended and Restated Agreement of
Limited Partnership of the Partnership dated April 3, 1989 (the "Restated
Agreement"), a copy of which is attached hereto as Exhibit A; and
WHEREAS, the Partners also wish to admit the Additional
Limited Partners to the Partnership as additional Limited Partners.
NOW, THEREFORE, pursuant to the Pennsylvania Uniform Limited
Partnership Act, the undersigned hereby certify as follows:
ARTICLE ONE
Name
The name of the Partnership is Sonoco Graham Company.
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ARTICLE TWO
Character of Business
The character of the Partnership's business and the purposes
of the Partnership shall be as set forth in Section 1.4 of the Restated
Agreement.
ARTICLE THREE
Location of Principal Place of Business
The Partnership shall have its principal offices at 1420 Sixth
Avenue, York, Pennsylvania 17403-1104, or at such other location as may be
selected from time to time by the General Partner.
ARTICLE FOUR
Names and Places of Residence of Partners
The names and places of residence of the Partners are as
follows:
General Partner:
Sonoco Graham Corporation
1420 Sixth Avenue
York, PA 17403-1104
Limited Partners:
Sonoco Products Company
One North Second Street
Hartsville, SC 29550
Graham Engineering Corporation
1420 Sixth Avenue
York, PA 17403-1104
Graham Container Corporation
1420 Sixth Avenue
York, PA 17403-1104
ARTICLE FIVE
Term
The term of the Partnership shall be as set forth in Section
10.1 of the Restated Agreement.
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ARTICLE SIX
Capital Contributions by Limited Partners
The amount of cash and the agreed value of other property
contributed to the capital of the Partnership by each Limited Partner is set
forth opposite such Limited Partner's name on Schedule "A" to the Restated
Agreement.
ARTICLE SEVEN
Additional Capital Contributions by Limited Partners
The amount of additional contributions to the capital of the
Partnership agreed to be made by each Limited Partner, and the times at which
such contributions shall be made, if any, are set forth in Section 3.2 to the
Restated Agreement.
ARTICLE EIGHT
Return of Contributions
There has been no agreement as to when the contributions of
each Limited Partner is to be returned except as provided for in Sections 5.1
and 10.3 of the Restated Agreement.
ARTICLE NINE
Share of Profits
The share of profits and other compensation by way of income
which each Limited Partner shall receive by reason of its contribution to the
Partnership is set forth in Article 5 and Section 10.3 of the Restated
Agreement.
ARTICLE TEN
Substitution of Assignee in Place of Limited Partner
The right of a Limited Partner to transfer his interest and to
substitute an assignee as contributor in his place, and the terms and conditions
of such substitution, are set forth in Article 9 of the Restated Agreement.
ARTICLE ELEVEN
Right of Partners to Admit Additional Limited Partners
The Partners may not admit additional limited partners.
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ARTICLE TWELVE
Priority
The Limited Partners shall have such rights to priority as to
contributions to the Partnership or as to compensation by way of income as is
provided in Article 5 of the Restated Agreement.
ARTICLE THIRTEEN
Continuation of Partnership Business on Removal,
Withdrawal, Death, Dissolution, Adjudication
or Incompetence or Bankruptcy of a General Partner
The withdrawal, resignation, dissolution, revocation of the
charter or bankruptcy of the General Partner or the occurrence of any other
event which causes the General Partner to cease to be a general partner of the
Partnership shall cause an immediate dissolution of the Partnership.
ARTICLE FOURTEEN
Right of a Limited Partner or the
Special Limited Partner to Demand and
Receive Property Other than Cash
No Limited Partner shall have any right to demand and receive
property other than cash in return for his contribution to the Partnership
except in accordance with Section 10.3 of the Restated Agreement.
ARTICLE FIFTEEN
Power of Attorney
The power of attorney given by each Limited Partner to the
General Partner, pursuant to which the General Partner may execute this
Certificate as attorney-in-fact for each of the Limited Partners, is set forth
in Section 14.10 of the Restated Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Amended
and Restated Certificate of Limited Partnership on the date first above written.
GENERAL PARTNER:
[SEAL] SONOCO GRAHAM CORPORATION
By:
-----------------------------------------------
William H. Kerlin, Jr.,
Vice President
LIMITED PARTNERS:
[SEAL] SONOCO PRODUCTS COMPANY
By:
-----------------------------------------------
Harris E. De Loach, Jr.,
Vice President-Administration
[SEAL] GRAHAM ENGINEERING CORPORATION
By:
-----------------------------------------------
William H. Kerlin, Jr.,
Executive Vice President
[SEAL] GRAHAM CONTAINER CORPORATION
By:
-----------------------------------------------
William H. Kerlin, Jr.,
Executive Vice President
Exhibit A
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF SONOCO GRAHAM COMPANY
DATED AS OF APRIL 3, 1989
TABLE OF CONTENTS
Page No.
--------
ARTICLE 1
THE LIMITED PARTNERSHIP............................................ 2
1.1 Formation.......................................................... 2
1.2 Certificate of Limited Partnership................................. 2
1.3 Name............................................................... 2
1.4 Character of Business.............................................. 2
1.5 Principal Offices.................................................. 2
1.6 Fiscal Year........................................................ 3
1.7 Accounting Matters................................................. 3
ARTICLE 2
DEFINITIONS........................................................ 3
2.1 Act................................................................ 3
2.2 Affiliate.......................................................... 3
2.3 Agreement.......................................................... 3
2.4 Agreement Date..................................................... 3
2.5 Auditor............................................................ 3
2.6 Available Cash..................................................... 4
2.7 Bankruptcy......................................................... 4
2.8 Capital Account.................................................... 4
2.9 Capital Contribution............................................... 4
2.10 Certificate........................................................ 4
2.11 Code............................................................... 5
2.12 Container.......................................................... 5
2.13 Depreciation....................................................... 5
2.14 Engineering........................................................ 5
2.15 Event of Withdrawal................................................ 5
2.16 General Partner.................................................... 5
2.17 Generally Accepted Accounting Principles........................... 5
2.18 Gross Asset Value.................................................. 5
2.19 Limited Partner.................................................... 6
2.20 Opening Balance Sheet.............................................. 6
2.21 Organization Agreement............................................. 6
2.22 Partner............................................................ 6
2.23 Partnership........................................................ 6
2.24 Partnership Interest............................................... 6
2.25 Partnership Year................................................... 6
2.26 Percentage Interest................................................ 6
2.27 Person............................................................. 6
2.28 Profits and Losses................................................. 6
2.29 Sonoco............................................................. 7
2.30 Transfer........................................................... 7
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Page No.
--------
2.31 General Provisions................................................. 7
ARTICLE 3
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS............................ 8
3.1 Initial Capital Contribution....................................... 8
3.2 Additional Capital Contributions................................... 8
3.3 Opening Balance Sheet.............................................. 8
3.4 Capital Accounts................................................... 8
3.5 Negative Capital Accounts.......................................... 9
3.6 Compliance with Treasury Regulations............................... 9
3.7 Succession to Capital Accounts..................................... 9
3.8 Certain Adjustments................................................ 9
3.9 No Withdrawal of Capital Contributions............................. 9
ARTICLE 4
COSTS AND EXPENSES................................................. 10
4.1 Organizational and Other Costs..................................... 10
4.2 Operating Costs.................................................... 10
ARTICLE 5
DISTRIBUTIONS, PARTNERSHIP ALLOCATIONS;
TAX MATTERS........................................................ 10
5.1 Distributions Prior to Dissolution................................. 10
5.2 Partnership Allocations............................................ 11
5.3. Tax Allocations; Code Section 704(c)............................... 14
5.4 Accounting Method.................................................. 14
ARTICLE 6
MANAGEMENT......................................................... 14
6.1 Rights and Duties of the Partners.................................. 14
6.2 Fiduciary Duty of General Partner.................................. 14
6.3 Powers of General Partner.......................................... 15
6.4 Other Activities................................................... 16
6.5 Transactions with Affiliates....................................... 16
6.6 Confidentiality of Certain Information............................. 17
6.7 Exculpation........................................................ 17
ARTICLE 7
COMPENSATION....................................................... 18
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Page No.
--------
ARTICLE 8
ACCOUNTS............................................................ 18
8.1 Books and Records................................................... 18
8.2 Reports, Returns and Audits......................................... 18
ARTICLE 9
TRANSFERS........................................................... 19
9.1 Transfer of General Partner's Interest.............................. 19
9.2 Transfer of a Limited Partner's Interest............................ 20
9.3 Partnership's Right of First Refusal................................ 20
9.4 Limited Partner's Right of Second Refusal........................... 21
9.5 Deviation from Bona Fide Offers..................................... 21
9.6 Partnership's Call Option........................................... 21
9.7 Closing............................................................. 22
9.8 Involuntary Transfers............................................... 23
9.9 Allocation of Distributions Subsequent to Assignment................ 23
9.10 Death, Incompetence, Bankruptcy, Liquidation or
Withdrawal of a Limited Partner................................... 24
9.11 Satisfactory Written Assignment Required............................ 24
9.12 Transferee's Rights................................................. 24
9.13 Transferees Admitted as Partners.................................... 24
ARTICLE 10
DISSOLUTION......................................................... 25
10.1 Events of Dissolution............................................... 25
10.2 Final Accounting.................................................... 25
10.3 Liquidation......................................................... 25
10.4 Cancellation of Certificate......................................... 26
ARTICLE 11
AMENDMENTS TO AGREEMENT............................................. 26
ARTICLE 12
NOTICES............................................................. 26
12.1 Method of Notice.................................................... 26
12.2 Computation of Time................................................. 26
ARTICLE 13
INVESTMENT REPRESENTATIONS.......................................... 26
13.1 Investment Purpose.................................................. 26
13.2 Investment Restriction.............................................. 27
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Page No.
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ARTICLE 14
GENERAL PROVISIONS.................................................. 27
14.1 Entire Agreement.................................................... 27
14.2 Amendment Waiver.................................................... 27
14.3 Governing Law....................................................... 27
14.4 Binding Effect...................................................... 27
14.5 Separability........................................................ 27
14.6 Headings............................................................ 28
14.7 No Third-Party Rights............................................... 28
14.8 Waiver of Partition................................................. 28
14.9 Nature of Interests................................................. 28
14.10 Power of Attorney................................................... 28
iv
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is
entered into as of the 3rd day of April, 1989, by and among Sonoco Graham
Corporation, a Pennsylvania corporation with its offices at 1420 Sixth Avenue,
York, Pennsylvania 17403-1104, as general partner (the "General Partner"), and
Sonoco Products Company, a South Carolina corporation with its offices at One
North Second Street, Hartsville, South Carolina ("Sonoco"), Graham Container
Corporation, a Pennsylvania corporation with its offices at 1420 Sixth Avenue,
York, Pennsylvania 17403-1104 ("Container"), and Graham Engineering Corporation,
a Pennsylvania corporation with its offices at 1420 Sixth Avenue, York,
Pennsylvania 17403-1104 ("Engineering"), as limited partners (hereinafter
collectively referred to as the "Limited Partners"). The General Partner and the
Limited Partners 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, the General Partner and Engineering heretofore
have formed a limited partnership in accordance with the provisions of the
Pennsylvania Uniform Limited Partnership Act (59 Pa. Cons. Stat. ch. 5), under
the name Sonoco Graham Company pursuant to a Certificate of Limited Partnership
dated March 22, 1989 and an Agreement of Limited Partnership filed March 24,
1989; and
WHEREAS, the parties hereto desire to amend and restate in its
entirety the Agreement of Limited Partnership of the partnership as hereinafter
set forth;
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 1
THE LIMITED PARTNERSHIP
1.1 Formation.
(a) The parties hereto, in consideration of the mutual
covenants herein contained, are hereby becoming partners in a limited
partnership (hereinafter referred to as 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) The General Partner and the Limited Partners have been
admitted to the Partnership as a general partner and limited partners,
respectively, and have contributed to the capital of the Partnership their
initial Capital Contributions, as set forth in Section 3.1 below.
1.2 Certificate of Limited Partnership. The General Partner
has executed and caused to be filed a Certificate of Limited Partnership of the
Partnership (hereinafter referred to as the "Certificate") in the office of the
Secretary of State of the Commonwealth of Pennsylvania on March 24, 1989, shall
cause to be filed an amendment to the Certificate reflecting this Agreement
promptly after the execution hereof, and hereafter shall execute such further
documents (including any further amendments to the Certificate) and take such
further action as shall be appropriate to comply with all requirements of law
for the formation and operation 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 Sonoco Graham
Company. The General Partner may change the name 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 manufacturing and marketing of plastic containers to purchasers in
the United States 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,
2
Pennsylvania 17403-1104, 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 2
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, except that prior to the effective date of
such Revised Uniform Limited Partnership Act, "Act" shall mean the Pennsylvania
Uniform Limited Partnership Act (59 Pa. Cons. Stat. ch. 5).
2.2 Affiliate. "Affiliate" shall mean (i) any Person directly
or indirectly controlling, controlled by or under common 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 Amended
and Restated Agreement of Limited Partnership, including Schedule A hereto, as
the same may be amended from time to time.
2.4 Agreement Date. "Agreement Date" shall mean the date of
this Agreement.
2.5 Auditor. "Auditor" shall mean Ernst & Whinney or any
successor firm of independent auditors selected by the General Partner.
3
2.6 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).
2.7 Bankruptcy. The "Bankruptcy" of a Partner shall mean (i)
the filling 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.
2.8 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 connecting 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 other than clause (iii) of Subsection 5.1(a), (ii) the
amount of any payments by the Partnership to such Partner under any agreement
other than this Agreement that are ultimately determined for Federal income tax
purposes not to constitute (A) payments to a partner other than in its capacity
as a partner under Section 707(a) of the code or (B) guaranteed payments under
Section 707(c) of the Code and (iii) such Partner's allocable share of Losses of
the Partnership. For purposes of this Section 2.8, the note of the Partnership
referred to in Subsection 5.1(b) shall not be treated as "property" distributed
to Container, and payments of principal under such note shall be treated as cash
distributed to Container.
2.9 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.
2.10 Certificate. "Certificate" shall have the meaning
ascribed to such term in Section 1.2.
4
2.11 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.
2.12 Container. "Container" shall have the meaning ascribed to
such term in the first paragraph of this Agreement.
2.13 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.
2.14 Engineering. "Engineering" shall have the meaning
ascribed to such term in the first paragraph of this Agreement.
2.15 Event of Withdrawal. "Event of Withdrawal" shall have the
meaning ascribed to such term in Subsection 10.1(b).
2.16 General Partner. "General Partner" shall have the meaning
ascribed to such term in the first paragraph of this Agreement.
2.17 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.
2.18 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 Interests; (c) the liquidation of the Partnership
within the meaning of Treas. Reg. ss.1.704-1(b)(2)(ii)(g); and (d) the
5
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 2.18(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.
2.19 Limited Partner. "Limited Partner" shall have the
meaning ascribed to such term in the first paragraph of this
Agreement.
2.20 Opening Balance Sheet. "Opening Balance Sheet" shall
have the meaning ascribed to such term in Section 3.3.
2.21 Organization Agreement. "Organization Agreement" shall
mean that certain Organization Agreement, dated as of March 31, 1989, by and
among Sonoco, Engineering, Container, the General Partner and the Partnership,
as the same may be amended and in effect from time to time.
2.22 Partner. "Partner" shall have the meaning ascribed to
such term in the first paragraph of this Agreement.
2.23 Partnership. "Partnership" shall have the meaning
ascribed to such term in Subsection 1.1(a).
2.24 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.
2.25 Partnership Year. "Partnership Year" shall have the
meaning ascribed to such term in Section 1.6.
2.26 Percentage Interest. The "Percentage Interest" of
a Partner shall be the percentage set forth next to its respective name on
Schedule A hereto.
2.27 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.
2.28 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
6
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 computing Profits or Losses
pursuant to this Section 2.28 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. ss.1.704- 1(b)(2)(iv)(i), and not otherwise taken into
account in computing Profits or Losses pursuant to this Section 2.28, 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 2.18(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.
2.29 Sonoco. "Sonoco" shall have the meaning ascribed
to such term in the first paragraph of this Agreement.
2.30 Transfer. "Transfer" shall mean any assignment, mortgage,
hypothecation, transfer, pledge, creation of a security interest in or lien
upon, encumbrance, gift or other disposition.
2.31 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 a
similar import refer to this Agreement as a whole, including Schedule A hereto,
and not to any particular Article, Section, Subsection, Clause or Subdivision
contained in this Agreement. Capitalized terms used in this Agreement which are
not otherwise defined herein shall have the respective meanings ascribed to such
term in the Organization Agreement.
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ARTICLE 3
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
3.1 Initial Capital Contribution.
(a) The General Partner shall, as its initial
Capital Contribution to the capital of the Partnership, pay or cause to be paid
into the Partnership the sum of $500,000.
(b) Sonoco shall, as its initial Capital
Contribution to the Capital of the Partnership, convey, transfer and assign into
the name of the Partnership, or cause to be signed so conveyed, transferred and
assigned, all its right, title and interest in and to the Sonoco Assets, subject
to the Sonoco Liabilities, as such terms are defined in the Organization
Agreement.
(c) Container shall, as its initial Capital
Contribution to the capital of the Partnership, convey, transfer and assign into
the name of the Partnership, or cause to be so conveyed, transferred and
assigned, all its right, title and interest in and to the Container Assets,
subject to the Container Liabilities, as such terms are defined in the
Organization Agreement.
(d) Engineering shall, as its initial Capital
Contribution to the capital of the Partnership, convey, transfer and assign into
the name of the Partnership, or cause to be so conveyed, transferred and
assigned, all its right, title and interest in and to the Engineering Assets,
subject to the Engineering Liabilities, as such terms are defined in the
Organization Agreement.
3.2 Additional Capital Contributions. Except to the extent set
forth in Section 11.2 of the Organization Agreement (relating to indemnification
payments, none of which shall result in a change in a Partner's Percentage
Interest), no additional contributions shall be required to be made by the
Partners. Unless otherwise agreed, any additional contributions shall be made
pro rata by the Partners in accordance with their Percentage Interests.
3.3 Opening Balance Sheet. Promptly after the Agreement Date,
the Partnership shall prepare a balance sheet (the "Opening Balance Sheet") of
the Partnership, as of the Agreement Date (after giving effect to initial
Capital Contributions of the Partners) in accordance with Generally Accepted
Accounting Principles.
3.4 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, which reflects such
8
Partner's Capital Contribution pursuant to Section 3.1, is set forth opposite
its respective name on Schedule A.
3.5 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.
3.6 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. ss.1.704-1(b) (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. ss.1.704-1(b) (or any corresponding provision of succeeding law.
3.7 Succession to Capital Accounts. In the event any interest
in the Partnership is transferred in accordance with the terms of this Agreement
and the Organization 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.
3.8 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.
3.9 No Withdrawal of Capital Contributions. No Partner shall
withdraw any Capital Contributions without the unanimous written approval of the
other Partners No Partner shall receive any interest with respect to its Capital
Contributions.
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ARTICLE 4
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, except to the extent that such
costs are required to be borne by the parties to the Organization Agreement as
set forth therein. 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 the General Partner for any out-of-pocket costs and expenses
incurred by it in connection therewith (including, without limitation, in the
performance of its duties as tax matters partner) to the extent permitted by
Section 6.5.
ARTICLE 5
DISTRIBUTIONS, PARTNERSHIP ALLOCATIONS;
TAX MATTERS
5.1 Distributions Prior to Dissolution.
(a) Promptly after the execution of this Agreement,
the Partnership shall borrow funds to enable it to make the following
distributions and payments:
(i) $100 million shall be distributed to
Sonoco immediately after the borrowing of such funds by
the Partnership;
(ii) On January 1, 1990, $100 million shall
be distributed to Container; and
(iii) On each of (A) the date of the
distribution to Sonoco under Clause (i), (B) July 1, 1989 and
(C) October 1, 1989, interest on $100 million for the period
beginning on such date and ending with the end of the calendar
quarter including or immediately following such date, computed
at the prime rate in effect on such date as announced by the
Morgan Guaranty Bank (New York City), shall be paid to
Container.
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To the extent, if any, that the Partnership is unable to borrow funds sufficient
to make the full amount of the foregoing distributions, the amounts
distributable to each Partner under Clauses (i), (ii) and (iii) shall be reduced
proportionately. Each amount payable to Container under Clause (iii) is intended
to be treated for Federal income tax purposes as a "guaranteed payment" for the
use of capital under Section 707(c) of the Code.
(b) The Partnership shall make arrangements with
its lending bank for such bank, contemporaneously with the distribution to
Sonoco under Clause (i) of Subsection 5.1(a), to issue an unconditional letter
of credit for the benefit of Container as security for fulfillment of the
Partnership's obligation to make the distribution and payments to Container
described in Clauses (ii) and (iii) of Subsection 5.1(a).
(c) Except as provided in Subsection 5.1(a) and
Section 10.3, distributions shall be made to the Partners in proportion to their
respective Percentage Interests.
(d) Available Cash shall be distributed to the
Partners at the following times and in the following amounts:
(i) On or before ninety days after the end
of each Partnership Year, Available Cash shall be distributed
to the Partners in proportion to their respective Percentage
Interests in an aggregate cumulative amount at least equal to
the sum of (1) the income tax liability for the Partner with
the largest percentage income tax liability (of itself or its
shareholders) from cumulative Partnership taxable income
allocated to such Partner under Subsection 5.2(b) hereof, and
(2) for the other Partners, a proportional cash amount
adjusted only for respective Percentage Interests; and
(ii) Any remaining Available Cash shall be
distributed to the Partners in proportion to their respective
Percentage Interests at such times and in such amounts as the
General Partner shall determine.
5.2 Partnership Allocations.
(a) If any payments to a Partner by the Partnership under an
agreement other than this Agreement are determined for Federal income tax
purposes not to constitute (1) payments to a partner other than in its capacity
as a partner under Section 707(a) of the Code or (2) guaranteed payments under
Section 707(c) of the Code, gross income of the Partnership shall first be
allocated to each such Partner in proportion to and up to the excess of (x) the
aggregate cumulative amount of such payments by the Partnership to such Partner
over (y) the aggregate cumulative amount of gross income previously allocated to
such Partner pursuant to this Subsection 5.2(a). Such allocated gross income
11
shall consist of pro rata portions of each item of income and gain recognized by
the Partnership in the taxable year.
(b) Except as otherwise provided in Subsection 5.2(a) or (c)
or elsewhere in this Agreement, for purposes of this Agreement, and for federal,
state and local income tax purposes, all items of Profits, Losses, income, gain,
loss, deduction or credit shall be determined with respect to each taxable year
of the Partnership as of the end thereof, and allocated to the Partners in
accordance with their Percentage Interests. Each Partner's Percentage Interest
shall constitute its interest in partnership profits for purposes of determining
such Partner's share of nonrecourse liabilities of the Partnership under Temp.
Treas. Reg. ss.1.752-1T(e)(3)(ii)(C).
(c) Notwithstanding Subsections 5.2(a) and (b):
(i) Minimum Gain and Hypothetical Capital Accounts. For
purposes of complying with Treasury Regulations relating to tax allocation, the
Partnership's "minimum gain," "minimum gain attributable to partner nonrecourse
debt" and the Partners' hypothetically adjusted Capital Accounts ("Hypothetical
Capital Accounts") must be determined from time to time. The amount of minimum
gain or minimum gain attributable to partner nonrecourse debt is determined in
accordance with Temp. Treas. Reg. ss.1.704-1T(b)(4)(iv)(c) or
1.704-1T(b)(4)(iv)(h)(6), as the case may be, 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. A
Partner's Hypothetical Capital Account shall equal its true Capital Account,
increased by any amount that such Partner is treated as being obligated to
restore under Treas. Reg. ss.1.704- 1T(b)(2)(ii)(c) (including the Partner's
share of minimum gain, computed as provided in Temp. Treas. Reg.
ss.1.704-1T(b)(4)(iv)(f), and of minimum gain attributable to partner
nonrecourse debt, computed as provided in Temp. Treas. Reg. ss.1.704-
1T(b)(4)(iv)(h)(5)), and decreased by the items described in Treas. Reg.
ss.1.704-1(b)(2)(ii)(d), clauses (4), (5) and (6). For purposes of determining
each Partner's share of minimum gain or minimum gain attributable to partner
nonrecourse debt, any distributions pursuant to Section 5.1(a) shall be treated
as allocable to the nonrecourse liabilities, if any, that are incurred by the
Partnership in connection with such distributions.
(ii) Qualified Income Offset. A Partner who
unexpectedly receives an adjustment, allocation, or distribution described in
Treas. Reg. ss.1.704-1(b)(2)(ii)(d), clauses (4), (5) and (6), that creates a
deficit in his Hypothetical Capital account shall be allocated items of income
and gain (consisting of a pro rata portion of each item of Partnership income,
including gross income, and gain for such year) in an amount and
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manner sufficient to eliminate such deficit as quickly as possible.
(iii) Minimum Gain Chargeback. If there is a net
decrease in the Partnership's minimum gain or minimum gain attributable to
partner nonrecourse debt during a Partnership taxable year, any Partner with a
share of such minimum gain at the beginning of such year shall be allocated,
before any other allocation is made of Partnership items for such taxable year,
items of income and gain for such year (and, if necessary, subsequent years) in
proportion to, and to the extent of, an amount equal to the greater of (A) the
portion of such Partner's share of the net decrease in such minimum gain that is
allocable to the disposition of Partnership property or (B) the deficit balance
in such Partners's Hypothetical Capital Account as of the end of such year (but
before any allocations of income or loss for such year) in accordance with Temp.
Treas. Reg. ss.ss.1.704- 1T(b)(4)(iv)(e) and 1.704-1T(b)(4)(iv)(h)(4) (the
"Minimum Gain Chargeback"). The Minimum Gain Chargeback allocated in any taxable
year shall consist first of gains recognized from the disposition of items of
Partnership property subject to one or more nonrecourse liabilities of the
Partnership to the extent of the decrease in Minimum Gain attributable to the
disposition of such items of property, with the remainder of the Minimum Gain
Chargeback, if any, made up of a pro rata portion of the Partnership's other
items of income and gain for that year.
(iv) Special Limitation on Losses Allocated to a
Limited Partner. No loss or deduction shall be allocated to a Limited Partner to
the extent that such allocation would reduce such Partner's Hypothetical Capital
Account below zero, and such loss or deduction shall instead be allocated to the
other Partners in proportion to the positive balances of their respective
Hypothetical Capital Accounts.
(v) Restoration. If any items of income, gain,
loss or deduction shall be specially allocated pursuant to paragraph (ii), (iii)
or (iv) of this Subsection 5.2(c), then as quickly as possible thereafter (but
not in such a manner as to create or increase a deficit in any Partner's
Hypothetical Capital Account) items of income, gain, loss or deduction shall be
specially allocated to other Partners so as to return all Capital Accounts to
such balances as they would have had if no such special allocations had been
made pursuant to Paragraph (ii), (iii) or (iv) of this Subsection 5.2(c).
(vi) Rule of Construction. This Section 5.2 is
intended to satisfy the alternate test for economic effect set forth in Treas.
Reg. ss.1.704-1T(b)(2)(ii)(d) and the rules for allocations of nonrecourse
deductions set forth in Temp. Treas. Reg. ss.1.704-1T(b)(4)(iv)(d) and
allocations of partner nonrecourse deductions set forth in Temp. Treas.
Reg. ss.1.704-1T(b)(4)(iv)(h) and should be so construed.
13
5.3 Tax Allocations; Code Section 704(c).
(a) In accordance with Section 704(c) of the Code and the
Treasury Regulations thereunder, income, gain, loss, and deduction with respect
to any property contributed to the capital of the Partnership shall, solely for
tax purposes, be allocated among the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes and its initial Gross Asset Value.
(b) In the event the Gross Asset Value of any asset of the
Partnership shall be adjusted pursuant to the provisions of this Agreement,
subsequent allocations of income, gain, loss and deduction with respect to such
asset shall take account of any variation between the adjusted basis of such
asset for federal income tax purposes and its Gross Asset Value in the same
manner as under Section 704(c) of the Code and the Treasury Regulations
thereunder.
(c) Any elections or other decisions relating to such Section
704(c) allocations shall be made by the Partners in any manner that reasonably
reflects the purpose and intention of this Agreement. Section 704(c) allocations
pursuant to this Section 5.3 are solely for purposes of federal, state, and
local taxes and shall not affect, or in any way be taken into account in
computing, any partner's Capital Account or share of profits, Losses, other
items, or distributions pursuant to any provision of this Agreement.
5.4 Accounting Method. The books of the Partnership
(for both tax and financial reporting purposes) shall be kept on
an accrual basis.
ARTICLE 6
MANAGEMENT
6.1 Rights and Duties of the Partners.
(a) The Limited Partners as limited partners in the
Partnership shall not participate in the control of the business of the
Partnership and shall have no power to act for or bind the Partnership.
(b) Pursuant to Pennsylvania law, each Limited Partner shall
not be liable for losses or debts of the Partnership beyond the aggregate amount
such Partner is required to contribute to the Partnership pursuant to this
Agreement plus his share of the undistributed net profits of the Partnership,
except that a Partner may be liable under Pennsylvania law to repay certain
distributions received by it.
6.2 Fiduciary Duty of General Partner. The General
Partner shall have fiduciary responsibility for the safekeeping
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and use of all funds and assets (including records) of the partnership, whether
or not in his immediate possession or control, and the General Partner shall not
employ, or permit another to employ, such funds or assets in any manner except
for the exclusive benefit of the Partnership.
6.3 Powers of General Partner.
(a) Subject to the terms and conditions of this Agreement, the
General partner shall have full and complete charge of all affairs of the
Partnership, and the management and control of the Partnership's business shall
rest exclusively with the General Partner. Except as otherwise provided in the
Act or by this Agreement, the General Partner shall possess all of the rights
and powers of a partner in a partnership without limited partners under
Pennsylvania law. The General Partner shall be required to devote to the conduct
of the business of the Partnership such time and attention as is necessary to
accomplish the purposes, and to conduct properly the business, of the
Partnership.
(b) Subject to the limitations set forth in this Agreement,
the General Partner shall perform or cause to be performed all management and
operational functions relating to the business of the Partnership. Without
limiting the generality of the foregoing, the General Partner is authorized on
behalf of the Partnership, in its sole discretion and without the approval of
the Limited Partners, to:
(i) expand the capital and revenues of the
Partnership in furtherance of the Partnership's business as
described in Section 1.4 and pay, in accordance with the
provisions of this Agreement, all expenses, debts and
obligations of the Partnership to the extent that funds of the
Partnership are available therefor;
(ii) make investments in United States government
securities, securities of governmental agencies, commercial
paper, money market funds, bankers' acceptances, certificates
of deposit, and any other debt instruments or other
securities, pending disbursement of the Partnership funds in
furtherance of the Partnership's business as described in
Section 1.4 or to provide a source from which to meet
contingencies;
(iii) enter into and terminate agreements and
contracts with third parties in furtherance of the
Partnership's business as described in Section 1.4, institute,
defend and settle litigation arising therefrom, and give
receipts, releases and discharges with respect to all of the
foregoing;
15
(iv) maintain, at the expense of the Partnership,
adequate records and accounts of all operations and
expenditures and furnish any Partner with the reports referred
to in Section 8.2;
(v) 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;
(vi) employ, at the expense of the Partnership,
consultants, accountants, attorneys and others and terminate
such employment; provided, however, that if any Affiliate of
any Partner is so employed, such employment shall be in
accordance with Section 6.5;
(vii) execute and deliver any and all agreements,
documents and other instruments necessary or incidental to the
conduct of the business of the Partnership; and
(viii) incur indebtedness, borrow funds and/or issue
guarantees, in each case for the conduct of the Partnership's
business as described in Section 1.4.
By executing this Agreement, each Limited Partner shall be deemed to have
consented to any exercise by the General Partner of any of the foregoing powers.
6.4 Other Activities. Any Partner (other than the General
Partner in such capacity) (the "Interested Party") may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, whether presently existing or hereafter created, and neither the
Partnership nor any Partner (including the General Partner) other than the
Interested Party shall have any rights in or to such independent ventures or the
income or profits derived therefrom.
6.5 Transactions with Affiliates.
(a) Nothing in this Agreement shall preclude transactions
between the Partnership and any Partner (including the General Partner) or an
Affiliate or Affiliates of any Partner acting in and for its own account,
provided that any services performed or products provided by the Partner or any
such Affiliates are services an/or products that the General Partner reasonably
believes, at the time of requesting such services and/or products, to be in the
best interests of the Partnership, and further provided that the rate of
compensation to be paid for any such services and/or products shall be
comparable to the amount paid for similar services and/or products under similar
circumstances to or by independent third parties in arm's length transactions.
16
(b) All bills with respect to services provided to the
Partnership by a Partner or any affiliate of a Partner shall be separately
submitted and shall be supported by logs or other written data.
(c) Nothing contained herein shall preclude the Partnership
from entering into, and complying with, the Master Purchase and License
Agreement with Engineering and the Promotion and Marketing Agreement with
Sonoco, both of which agreements are dated April 3, 1989.
6.6 Confidentiality of Certain Information.
(a) At all times during and after the term of the Partnership,
Sonoco, on behalf of itself and its affiliates, agrees to (i) keep private and
confidential, and not disclose to other Persons without the prior written
consent of Engineering, all technical information, expertise, knowledge, trade
secrets, know-how, process technology and other proprietary information, now
owned or hereafter developed or acquired by Engineering, and made available to
Sonoco or to the Partnership by Engineering pursuant to this Agreement, the
Joint Venture Agreement, dated March 28, 1984, between Boise Cascade Corporation
("Boise") and Engineering, the First Amendment to Joint Venture Agreement, dated
June 28, 1985, between Boise and Engineering, the Assignment and Assumption
Agreement, dated March 31, 1987, between Boise and Sonoco, the Organization
Agreement or the Master Purchase and License Agreement, dated April 3, 1989
between the Partnership and Engineering, contemplated thereunder (the
"Proprietary Information"), and (ii) make no use for its own behalf or that of
any person, directly or indirectly, of any Proprietary Information, except as a
Limited Partner and shareholder of the General Partner in accordance with the
terms of this Agreement.
(b) At all times during and after the term of the Partnership,
to the extent that Sonoco develops and contributes (or has developed and
contributed) Proprietary Information relating to the production of Similar
Products, Container and Engineering shall keep such Proprietary Information
private and confidential, and shall not disclose such Proprietary Information to
other Persons without the prior written consent of Sonoco.
6.7 Exculpation. 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 of the Limited Partners for any act or
omission on its or his part, except for (i) any act or omission resulting from
its or his own wilful misconduct or bad faith, (ii) any breach by the General
Partner of its obligations as a fiduciary of the Partnership or (iii) any breach
by the General Partner of any of the terms and provisions of this Agreement. The
Partnership shall indemnify, defend and hold harmless, to the fullest extent
permitted by law, the General partner and each of its Affiliates
17
and their respective partners, shareholders, officers, directors, employees and
agents, from and against any claim or liability of any nature whatsoever arising
out of or in connection with the assets or business of the Partnership, except
where attributable to the willful misconduct or bad faith of such individual or
entity or where relating to a breach by the General Partner of its obligations
as a fiduciary of the Partnership or to a breach by the General Partner of any
of the terms and provisions of this Agreement.
ARTICLE 7
COMPENSATION
The General Partner shall be entitled to reimbursement of all
of its expenses attributable to the performance of its obligations hereunder, as
provided in Article 4 hereof, to the extent permitted by Section 6.5. 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.
ARTICLE 8
ACCOUNTS
8.1 Books and Records. The General Partner shall maintain
complete and accurate books of account of the Partnership's affairs at the
Partnership's principal office, including a list of the names and addresses of
all Partners. Each Partner shall have the right to inspect the Partnership's
books and records (including the list of the names and addresses of Partners).
Each of the Partners shall have the right to audit independently the books and
records of the Partnership, any such audit being at the sole cost and expense of
the Partner conducting such audit.
8.2 Reports, Returns and Audits.
(a) The books of account shall be closed promptly after the
end of each Partnership Year. The books and records of the Partnership shall be
audited as of the end of each Partnership Year by the Auditor. Within ninety
days after the end of such Partnership Year, the General Partner shall make a
written report to each person who was a Partner at any time during such
Partnership Year which shall include financial statements comprised of at least
the following: a balance sheet as of the close of the preceding Partnership Year
and a statement of earnings or losses, changes in financial position and changes
in Partners' Capital Accounts for the Partnership Year then
18
ended, which financial statements shall be certified by the Auditor as in
accordance with Generally Accepted Accounting Principles.
(b) Prior to May 15 of each year, each Partner shall be
provided with an information letter (containing such Partner's Form K-1 or
comparable information) with respect to its distributive share of income, gains,
deductions, losses and credits for income tax reporting purposes for the
previous Partnership Year, together with any other information concerning the
Partnership necessary for the preparation of a Partner's income tax return(s),
and the Partnership shall provide each Partner with an estimate of the
information to be set forth in such information letter by no later than April 15
of each year. With the sole exception of mathematical errors in computation, the
financial statements and the information contained in such information letter
shall be deemed conclusive and binding upon such Partner unless written
objection shall be lodged with the General Partner within ninety days after the
giving of such information letter to such Partner.
(c) The General Partner shall also furnish the Partners with
quarterly financial statements of the Partnership and such other periodic
reports concerning the Partnership's business and activities as the General
partner considers necessary to advise all Partners properly about their
investment in the Partnership.
(d) The General Partner shall prepare or cause to be prepared
all federal, state and local returns of the Partnership (the "Returns") for each
year or other period for which such Returns are required to be filed. To the
extent permitted by law, for purposes of preparing the Returns, the Partnership
shall use the Partnership Year. The General Partner may make any elections under
the Code and/or applicable state or local tax laws, and the General Partner
shall be absolved from all liability for any and all consequences to any
previously admitted or subsequently admitted Partners resulting from its making
or failing to make any such election. Notwithstanding the forgoing, the General
Partner shall make the election provided for in Section 754 of the Code, if
requested to do so by any Partner.
(e) The General Partner shall be the "tax matters partner," as
such term is defined in Section 6231(a)(7) of the Code.
ARTICLE 9
TRANSFERS
9.1 Transfer of General Partner's Interest.
(a) The General Partner shall not withdraw from the
Partnership or resign as General Partner nor shall it Transfer
19
its general partner interest in the Partnership, in each case without the
written approval of the Limited Partners.
(b) The General Partner shall be liable to the Partnership for
any withdrawal or resignation in violation of Subsection 9.1(a) above.
9.2 Transfer of a Limited Partner's Interest.
(a) Except as otherwise provided in this Article 9, no Limited
Partner may Transfer its Partnership Interest or any portion thereof to any
Person without the written approval of the other Partners.
(b) The Limited Partners agree, upon request of the General
Partner, to execute such certificates or other documents and perform such acts
as the General Partner reasonably deems appropriate to preserve the status of
the Partnership as a limited partnership, after the completion of any Transfer
of an interest in the Partnership, under the laws of the Commonwealth of
Pennsylvania.
(c) A Limited Partner's Partnership Interest may be
transferred by such Limited Partner to any Affiliate or such Limited Partner
provided that (i) notice of the transfer is given to the Partnership and all
other Partners by the Limited Partner making the transfer, and (ii) the
Affiliate to whom such interest is to be transferred satisfies the condition set
forth in Subsection 9.4(b).
9.3 Partnership's Right of First Refusal. If either Sonoco, on
the one hand, or Engineering and Container on the other hand (for purposes of
this Section 9.3 and Section 9.4, Engineering and Container shall be treated as
a single Limited Partner) (the "Selling Partner") wishes to sell any Partnership
Interest (the "Offered Interest") pursuant to a bona fide written offer from a
third party to purchase the Offered Interest (a "Bona Fide Offer"), it shall
first give written notice (the "Notice of Sale") to the Partnership, and the
Partnership shall in turn forward a copy of such notice to the other Limited
Partner (the "Non-Selling Partner"), of its intention to do so. A Notice of Sale
shall name the proposed transferee and specify the amount of the Offered
Interest, the price and the terms of payment and shall have attached thereto a
copy of the Bona Fide Offer. The Partnership shall have the right to purchase
all but not less than all of the Offered Interest at the price and on the terms
of the Bona Fide Offer and shall exercise such rights by giving written notice
to the Selling Partner within 60 days after the Partnership shall have received
the Notice of Sale. If the Offered Interest constitutes less than all of the
Partnership Interests of the Selling Partner, nothing herein shall be construed
to give any party the right to purchase any Partnership Interest (or portion
thereof) that is not included in the Offered Interest.
20
9.4 Limited Partner's Right of Second Refusal.
(a) If the Partnership does not elect to purchase the Offered
Interest within the time period specified in Section 9.3, the Partnership shall
so notify the Non-Selling Partner. The Non-Selling Partner shall have the right
to purchase all, but not less than all, of the Offered Interest at the price and
on the terms of the Bona Fide Offer and shall exercise such right as follows:
(i) Within 10 days after the Partnership notifies the
Non-Selling Partners of its election not to purchase the
Offered Interest, the Non-Selling Partners shall give the
Selling Partner written notice of such Non-Selling Partner's
election to purchase the Offered Interest.
(ii) If the Non-Selling Partner does not elect to
purchase the Offered Interest within the time period
specified, the Selling Partner may, within 30 days of the
expiration of the period specified in Clause (i) above, sell
the Offered Interest to the Person named and in accordance
with the terms set forth in the Bona Fide Offer; provided that
the condition set forth in paragraph (b) below shall have been
satisfied.
(b) As a condition precedent to the effectiveness of any
transfer of a Partnership Interest pursuant to this Agreement to any person or
entity not a party to this Agreement, such transferee shall agree in writing to
become a party to this Agreement with all of the rights and obligations relating
thereto. A copy of such agreement shall be executed by the transferee and
delivered to the Secretary of the General Partner.
9.5 Deviation from Bona Fide Offers. The parties hereby
acknowledge and agree that in cases where nonfungible property such as real
estate constitutes part of the price under the Bona Fide Offer and such offer
depends on the unique situation of the proposed transferee, or otherwise cannot
be precisely duplicated by anyone other than the proposes transferee, purchases
by any Non-Selling Partner or the Partnership pursuant to Section 9.3 or 9.4
shall be made for a consideration upon terms which constitute the reasonable
economic equivalent of the price and terms of the Bona Fide Offer as determined
by the Board of Directors of the General Partner. For these purposes, the
promissory note of any Non-Selling Partner of the Partnership shall be
considered the reasonable economic equivalent of the promissory note of the
proposed transferee, notwithstanding any differences in financial condition.
9.6 Partnership's Call Option.
(a) At any time within one year after there shall be a Change
in Control (as hereinafter defined) of a Limited Partner, the Partnership shall
have the right and option to purchase the
21
Partnership Interest owned by the Limited Partner of which such Change in
Control occurred (the "Affected Partner") and such Affected Partner shall be
required to sell such Partnership Interests for the price and upon the terms set
forth in this Section 9.6. The option granted hereunder may be exercised by
written notice from the Partnership to the Affected Partner given at any time
prior to the expiration of said option. A "Change in Control" with respect to
either Engineering or Container (or an Affiliate thereof who may become a
Limited Partner hereunder after the date hereof) means the sale or transfer by
Donald C. Graham, directly or indirectly, of the beneficial ownership of capital
stock representing fifty percent (50%) or more of the outstanding voting rights
of such Limited Partner to a transferee or transferees other than an Affiliate
of Engineering or Container, the spouse or a lineal descendant (whether natural
or adopted) of Donald C. Graham, his estate or a trust created for the benefit
of Donald C. Graham or his spouse or lineal descendants. A "Change in Control"
of any other Limited Partner means the sale or transfer, directly or indirectly,
to a person (as "person" is defined in Section 13(d) of the Securities Exchange
Act of 1934), in a transaction or series of related transactions, of the
beneficial ownership of capital stock representing thirty percent (30%) or more
of the outstanding voting rights of such Limited Partner.
(b) The purchase price for any Partnership Interest which the
Partnership purchases upon exercise of its option pursuant to Section 9.6(a)
shall be the fair market value of such Partnership Interest on a going concern
basis as determined by a reputable investment banking firm. Such firm shall be
selected by the Partnership within 30 days after the exercise of the option
hereunder and shall be reasonably acceptable to each of the Partners. The
determination by such investment banking firm of the fair market value of the
Partnership Interests shall be made as of the date of the exercise of the option
to purchase such Partnership Interests and such determination shall be final and
binding on all parties to this Agreement. The Partners and the Partnership shall
use their respective best efforts to cause the determination of fair market
value to be completed within 60 days after the appointment of the investment
banking firm.
(c) The Partnership shall have the right, at any time prior to
the exercise of its option hereunder, to assign its option and all of its other
rights under this Section 9.6 to any Limited Partner other than the Affected
Partner pro rata in proportion to each such Limited Partner's Partnership
Interest and, upon notice of such assignment by the Partnership, the Affected
Partner shall be obligated to sell its Partnership Interest to such assignee
upon exercise of the option assigned pursuant thereto.
9.7 Closing. The closing of the purchase and sale of a
Partnership Interest pursuant to Section 9.3, 9.4 or 9.6 shall take place at the
principal office of the Partnership (or such other location as may be mutually
agreed upon by the Partnership
22
and the Partners), within 30 days after notice of the exercise by the
Partnership or the Non-Selling Partner of its right to purchase the Offered
Interest pursuant to Section 9.3 or 9.4, as the case may be, or, in the case of
a purchase under Section 9.6, within 30 days after the final determination of
the fair market value of the Partnership Interest. At closing the seller shall
deliver to the purchaser of the Partnership Interest an assignment of such
interest, free and clear of any lien, claim, charge, pledge, security interest
or encumbrance whatsoever, and the purchaser shall deliver to the seller
consideration therefor at the price and on the terms of the Bona Fide Offer (or
the reasonable economic equivalent thereof pursuant to Section 9.5 above) or at
the price fixed by the investment banking firm pursuant to Section 9.6, as the
case may be. The seller shall warrant to the purchaser that the interest being
transferred is free and clear of any lien, claim, charge, pledge, security
interest or encumbrance whatsoever.
9.8 Involuntary Transfers. In the event that the Partnership
Interest owned by any Limited Partner shall be subject to sale or other transfer
by reason of (i) bankruptcy or insolvency proceedings, whether voluntary or
involuntary, (ii) attachment or garnishment; or (iii) distraint, levy, execution
or other involuntary transfer, then such Limited Partner shall give the
Partnership and the other Partners written notice thereof promptly upon the
occurrence of such event, stating the terms of such proposed transfer, the
identity of the proposed transferee, the price or consideration, if readily
determinable, for which the Partnership Interest is proposed to be transferred,
and the number of the Partnership Interest to be transferred. After receipt of
such notice, or, failing such receipt, after the Partnership or any of other
Partners otherwise obtains actual knowledge of such proposed transfer, the
Partnership and the other Limited Partners (unless applicable law would
otherwise prohibit) shall have the same rights of first and second refusal as
are set forth in Sections 9.3 and 9.5 above, respectively; provided, however,
that if the nature of the event is such that no readily determinable
consideration is to be paid for the transfer of the Partnership Interest the
price to be paid shall be the book value thereof, as determined by the
Partnership in accordance with Generally Accepted Accounting Principles,
consistently applied.
9.9 Allocation of Distributions Subsequent to Assignment. All
Profits and Losses of the Partnership attributable to any Partnership Interest
acquired by reason of any Transfer of such Partnership Interest and any
distributions made with respect thereto shall be allocated (i) in respect of the
portion of the Partnership Year ending on the effective date of the Transfer, to
the transferor and (ii) in respect of subsequent periods, to the transferee. The
effective date of any Transfer permitted under this Agreement, subject to the
provisions of Section 9.12 below, shall be the close of business on the day the
Partnership is notified of the Transfer.
23
9.10 Death, Incompetence, Bankruptcy, Liquidation or
Withdrawal of a Limited Partner. The death, incompetence, Bankruptcy,
liquidation or withdrawal of a Limited Partner shall not cause (in and of
itself) a dissolution of the Partnership, but the rights of such a Limited
Partner to share in the Profits and Losses of the Partnership, to receive
distributions as to assign its Interest pursuant to this Article 9, on the
happening of such an event, shall devolve on its beneficiary or other successor,
executor, administrator, guardian or other legal representative for the purpose
of settling its estate or administering its property, and the Partnership shall
continue as a limited partnership. Such successor or personal representative,
however, shall become a substituted limited partner only upon compliance with
the requirements of Section 9.13 hereof with respect to a transferee of a
Partnership Interest. The estate of a Bankrupt Limited Partner shall be liable
for all the obligations of the Limited Partner.
9.11 Satisfactory Written Assignment Required. Anything herein
to the contrary notwithstanding, both the Partnership and the General Partner
shall be entitled to treat the transferor of a Partnership Interest as the
absolute owner thereof in all respects, and shall incur no liability for
distributions of cash or other property made in good faith to it, until such
time as a written assignment or other evidence of the consummation of a Transfer
that conforms to the requirements of this Article 9 and is reasonably
satisfactory to the General Partner has been received by and recorded on the
books of the Partnership, at which time the Transfer shall become effective for
purposes of this Agreement.
9.12 Transferee's Rights. Any purported Transfer of a
Partnership Interest which is not in compliance with this Agreement is hereby
declared to be null and void and of no force and effect whatsoever. A permitted
transferee of any Partnership Interest pursuant to Section 9.1, 9.2, 9.3, 9.4,
9.8 or 9.10 hereof shall be entitled to receive distributions of cash or other
property from the Partnership and to receive allocations of the income, gains,
credits, deductions, profits and losses of the Partnership attributable to such
Partnership Interest after the effective date of the Transfer but shall not
become a Partner unless and until admitted pursuant to Section 9.13 hereof.
9.13 Transferees Admitted as Partners. The assignee or
transferee of any Partnership Interest shall be admitted as a Partner only upon
the satisfaction of the following conditions:
(a) A duly executed and acknowledged written instrument of
Transfer approved by the General Partner and either a copy of this Agreement
duly executed by the transferee or an instrument of assumption in form and
substance satisfactory to the General Partner setting forth the transferee's
agreement to be bound by the provisions of this Agreement have been delivered to
the Partnership.
24
(b) The transferee has paid any fees and reimbursed the
Partnership for any expenses paid by the Partnership in connection with the
Transfer and admission.
The effective date of an admission of a Partner and the withdrawal of the
transferring Partner, if any, shall be the first day which is the last business
day of a calendar month to occur following the satisfaction of the foregoing
conditions.
ARTICLE 10
DISSOLUTION
10.1 Events of Dissolution. The Partnership shall continue
until December 31, 2019, or such later date as the Partners may unanimously
agree, unless sooner dissolved upon the earliest to occur of the following
events, which shall cause an immediate dissolution of the Partnership:
(a) the sale, exchange or other disposition of all or
substantially all of the Partnership's assets;
(b) the withdrawal, resignation, filing of a certificate of
dissolution or revocation of the charter or Bankruptcy of the General Partner or
the occurrence of any other event which causes the General Partner to cease to
be a general partner of the Partnership under the Act (each an "Event of
Withdrawal"); or
(c) such earlier date as the Partners shall unanimously elect.
10.2 Final Accounting. Upon the dissolution of the Partnership
as provided in Section 10.1 hereof, a proper accounting shall be made by the
Partnership's Auditor from the date of the last previous accounting to the date
of dissolution.
10.3 Liquidation. Upon the dissolution of the Partnership as
provided in Section 10.1 hereof, the General Partner or, if there is no General
Partner, a person approved by a majority in interest of the remaining Partners,
shall act as liquidator to wind up the Partnership. The liquidator shall have
full power and authority to sell, assign and encumber any or all of the
Partnership's assets and to wind up and liquidate the affairs of the Partnership
in an orderly and business-like manner. All proceeds from liquidation shall be
distributed in the following orders of priority: (a) to the payment and
discharge of the debts and liabilities of the Partnership (other than
liabilities for distributions to Partners) and expenses of liquidation, (b) to
the setting up of such reserves as the liquidator may reasonably deem necessary
for any contingent liability of the Partnership (other than liabilities for
distributions to Partners), and (c) the balance to the Partners in accordance
with their positive Capital Accounts after
25
adjustment to reflect all Profit and Loss for the Partnership Year in which such
liquidation occurs.
10.4 Cancellation of Certificate. Upon the completion of the
distribution of Partnership assets as provided in Section 10.3 hereof, the
Partnership shall be terminated and the person acting as liquidator shall cause
the cancellation of the Certificate (as amended) and shall take such other
actions as may be necessary or appropriate to terminate the Partnership.
ARTICLE 11
AMENDMENTS TO AGREEMENT
Without the written approval of each of the Partners, no
amendment shall be made to this Agreement. The General Partner shall give
written notice to all partners promptly after any amendment has become
effective.
ARTICLE 12
NOTICES
12.1 Method of Notice. Any notices or other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or transmitted by telex or telecopier,
receipt acknowledged, or in the case of documented overnight delivery service or
registered or certified mail, return receipt requested, postage prepaid, on the
date shown on the receipt therefor, addressed to the Partners at their
respective addresses as set forth in Schedule A annexed hereto (except that any
Partner may from time to time give notice changing its address for that
purpose).
12.2 Computation of Time. In computing any period of time
under this Agreement, the day of the act, event or default from which the
designated period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, Sunday or
legal holiday, in which event the period shall run until the end of the next day
which is not a Saturday, Sunday or legal holiday.
ARTICLE 13
INVESTMENT REPRESENTATIONS
13.1 Investment Purpose. Each Limited Partner represents and
warrants to the Partnership and to each other Partner that it has acquired its
limited partner interest in the Partnership for its own account, for investment
only and not with
26
a view to the distribution thereof, except to the extent provided in or
contemplated by this Agreement.
13.2 Investment Restriction. Each Partner recognizes that (a)
the limited partner interests in the Partnership have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), in reliance upon
an exemption from such registration, and agrees that it will not sell, offer for
sale, transfer, pledge or hypothecate its limited partner interest in the
Partnership (i) in the absence of an effective registration statement covering
such limited partner interest under the Securities Act, unless such sale, offer
of sale, transfer, pledge or hypothecation is exempt from registration for any
proposed sale, and (ii) except in compliance with all applicable provisions of
this Agreement, and (b) the restrictions on transfer imposed by this Agreement
may severely affect the liquidity of an investment in limited partner interests
in the Partnership.
ARTICLE 14
GENERAL PROVISIONS
14.1 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes any prior agreement or understanding among the parties hereto
with respect to the subject matter hereof.
14.2 Amendment Waiver. Except as provided otherwise herein,
this Agreement may not be amended nor may any rights hereunder be waived except
by an instrument in writing signed by the party sought to be charged with such
amendment or waiver.
14.3 Governing Law. This Agreement shall be construed in
accordance with and governed by the Act and the other laws of the Commonwealth
of Pennsylvania, without giving effect to the provisions, policies or principles
thereof relating to choice or conflict of laws.
14.4 Binding Effect. Except as provided otherwise herein, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
assigns.
14.5 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.
27
14.6 Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
14.7 No Third-Party Rights. 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 (except as aforesaid).
14.8 Waiver of Partition. Each Partner, by requesting and
being granted admission to the Partnership, is deemed to waive until termination
of the Partnership any and all rights that it may have to maintain an action for
partition of the Partnership's assets.
14.9 Nature of Interests. All Partnership property, whether
real or personal, tangible or intangible, shall be deemed to be owned by the
Partnership as an entity, and none of the Partners shall have any direct
ownership of such property.
14.10 Power of Attorney. Each of the Partners does hereby
constitute and appoint the General Partners as its true and lawful
representative and attorney-in-fact, in its name, place and stead to make,
execute, sign and file any amendment to the Certificate which may be required
because of this Agreement or the making of any amendments or supplements thereto
as provided in Article 11, and to make, execute, sign and file all such other
instruments, documents and certificates which, in the opinion of the General
Partner, may from time to time be required by the laws of the United States of
America, the Commonwealth of Pennsylvania or any other jurisdiction in which the
Partnership shall determine to do business, or any political subdivision or
agency thereof or which the General Partner may deem necessary or appropriate to
effectuate, implement and continue the valid and subsisting existence and
business of the Partnership.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
GENERAL PARTNER:
SONOCO GRAHAM CORPORATION
By: /s/ William H. Kerlian, Jr.
----------------------------
Title: Vice President
28
LIMITED PARTNERS:
SONOCO PRODUCTS CORPORATION
By:
--------------------------------------------
Title: Vice President - Administration
GRAHAM CONTAINER CORPORATION
By: /s/ William H. Kerlian, Jr.
--------------------------------------------
Title: Executive Vice President
GRAHAM ENGINEERING CORPORATION
By: /s/ William H. Kerlian, Jr.
--------------------------------------------
Title: Executive Vice President
29
Schedule A
Percentage Initial
Name and Address Interest Capital Account
- ---------------- -------- ---------------
General Partner
- ---------------
Sonoco Graham Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 1.0% $ 500,000
Attention: Chairman
Limited Partners
- ----------------
Sonoco Products Company
One North Second Street
Hartsville, South Carolina 39.6% $125,400,000
Attention: Chairman
Graham Container Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 58.4% $142,100,000
Attention: Chairman
Graham Engineering Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 1.0% $ 700,000
Attention: Chairman
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CERTIFICATE
OF LIMITED PARTNERSHIP OF SONOCO GRAHAM COMPANY is entered into on the 31st day
of August, 1989, effective as of the 3rd day of April, 1989, by and among Sonoco
Graham Corporation, a Pennsylvania corporation with its offices at 1420 Sixth
Avenue, York, Pennsylvania 17403-1104, as general partner, and Sonoco Products
Company, a South Carolina corporation with its offices at One North Second
Street, Hartsville, South Carolina 29550, Graham Container Corporation, a
Pennsylvania corporation with its offices at 1420 Sixth Avenue, York,
Pennsylvania 17403-1104, and Graham Engineering Corporation, a Pennsylvania
corporation with its offices at 1420 Sixth Avenue, York, Pennsylvania
17403-1104, as limited partners.
W I T N E S S E T H:
--------------------
WHEREAS, the parties hereto heretofore have entered into an
Amended and Restated Certificate of Limited Partnership of Sonoco Graham
Company, dated as of April 3, 1989 (the "Certificate"); and
WHEREAS, the parties hereto desire to amend the Certificate to
reflect the agreed-upon valuations of contributed assets and interests in
partnership profits and capital, as such amounts have now been determined.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained in the Agreement and herein, the parties hereto agree that
the Certificate shall be and is hereby amended as follows:
(a) Schedule A to Exhibit A to the Certificate is hereby
amended and restated in its entirety as attached hereto.
2
IN WITNESS WHEREOF, the parties hereto have executed this
agreement on the day and year first above written.
GENERAL PARTNER:
----------------
SONOCO GRAHAM CORPORATION
By:/s/ William H. Kerlin, Jr.
---------------------------------------
William H. Kerlin, Jr., Secretary
LIMITED PARTNERS:
-----------------
Sonoco Products Company
Graham Container Corporation
Graham Engineering Corporation
BY: SONOCO GRAHAM CORPORATION,
as attorney-in-fact for the above-
named limited partners
By:/s/ William H. Kerlin, Jr.
---------------------------------------
William H. Kerlin, Jr., Secretary
AFFIDAVIT
---------
I, William H. Kerlin, Jr., Secretary of Sonoco Graham
Corporation (the "General Partner"), being duly sworn, hereby represent that
Sonoco Products Company, Graham Container Corporation, Graham Engineering
Corporation (collectively the "Limited Partners") and the General Partners have
executed an Amended and Restated Certificate of Limited Partnership of Sonoco
Graham Company dated April 3, 1989, which was filed with the Pennsylvania
Corporation Bureau on April 4, 1989, pursuant to Section 14.10 of which the
Limited Partners constituted and appointed the General Partner as their true and
lawful representative and attorney-in-fact, in their name, place and stead, and
granted the General Partner the power to execute, sign and file any amendment to
the Certificate of Limited Partnership.
/s/ William H. Kerlin, Jr.
-----------------------------------------
William H. Kerlin, Jr.
Secretary
Subscribed and Sworn to
before me in the City of
York, Pennsylvania this
29th day of September, 1989.
/s/ Candace J. Lawford
- ----------------------------
Notary Public
Schedule A
Percentage Initial
Name and Address Interest Capital
- ---------------- -------- -------
Account
-------
General Partner
- ---------------
Sonoco Graham Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 1.0% $ 500,000
Attention: Chairman
Limited Partners
- ----------------
Sonoco Products Company
One North Second Street
Hartsville, South Carolina 29550 39.6% $108,911,952
Attention: Chairman
Graham Container Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 55.4% $112,467,975
Attention: Chairman
Graham Engineering Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 4.0% $ 900,000
Attention: Chairman
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED CERTIFICATE OF
LIMITED PARTNERSHIP of Sonoco Graham Company, a Pennsylvania limited partnership
(the "Partnership"), is made this 22nd day of May, 1990, by and among Sonoco
Graham Corporation, a Pennsylvania corporation, as general partner (the "General
Partner"), Graham Engineering Corporation, a Pennsylvania corporation, Graham
Capital Corporation (f/k/a Graham Container Corporation), a Pennsylvania
corporation, and Sonoco Products Company, a South Carolina corporation, as
limited partners (the "Limited Partners"). Hereinafter, the General Partner and
the Limited Partners are collectively referred to as "Partners."
W I T N E S S E T H:
--------------------
WHEREAS, on March 24, 1989, a Certificate of Limited
Partnership was filed in the Department of State of the Commonwealth of
Pennsylvania whereby the Partnership was formed under the Pennsylvania Uniform
Limited Partnership Act;
WHEREAS, on April 4, 1989, an Amended and Restated Certificate
of Limited Partnership of the Partnership (the "Certificate") was filed in the
Department of State of the Commonwealth of Pennsylvania;
WHEREAS, the name of Graham Container Corporation has
been changed to Graham Capital Corporation; and
WHEREAS, the Partners now desire to amend the terms and
provisions of the Certificate to reflect such change of name and the terms of
Amendments Nos. 1, 2 and 3 (the "Amendments") to the Amended and Restated
Agreement of Limited Partnership of the Partnership (the "Restated Agreement"),
entered into on August 23, 1989, effective as of April 3, 1989, on January 31,
1990 and on February 21, 1990, effective as of April 3, 1989, respectively, and
copies of which are attached hereto as Exhibits A, B and C.
NOW, THEREFORE, pursuant to the Pennsylvania Uniform Limited
Partnership Act, the undersigned hereby certify as follows:
1. Article Four of the Certificate shall be, and hereby is,
amended by changing the reference therein from Graham Container Corporation to
Graham Capital Corporation (f/k/a Graham Container Corporation).
2. Article Six of the Certificate shall be, and hereby is,
amended to read as follows:
2
ARTICLE SIX
Capital Contributions by Limited Partners
-----------------------------------------
The amount of cash and the agreed value of other property
contributed to the capital of the Partnership by each Limited Partner is set
forth opposite such Limited Partner's name on Schedule "A" to the Restated
Agreement as amended by the Amendments.
3. Article Nine of the Certificate shall be, and hereby is,
amended to read as follows:
ARTICLE NINE
Share of Profits
----------------
The share of profits and other compensation by way of income
which each Limited Partner shall receive by reason of its contribution to the
Partnership is set forth in Article 5 and Section 10.3 of the Restated Agreement
as amended by the Amendments.
4. Article Twelve of the Certificate shall be, and hereby is,
amended to read as follows:
ARTICLE TWELVE
Priority
--------
The Limited Partners shall have such rights to priority as to
contributions to the Partnership or as to compensation by way of income as is
provided in Article 5 of the Restated Agreement as amended by the Amendments.
3
IN WITNESS WHEREOF, the undersigned have executed this
Amendment No. 1 to Amended and Restated Certificate of Limited
Partnership on the date first above written.
GENERAL PARTNER:
----------------
[SEAL] SONOCO GRAHAM CORPORATION
By: /s/ William H. Kerlin, Jr.
---------------------------------
William H. Kerlin, Jr.,
Secretary
LIMITED PARTNERS:
[SEAL] SONOCO PRODUCTS COMPANY
By: SONOCO GRAHAM CORPORATION
pursuant to power of
attorney as reflected in
Article Fifteen of the
Certificate
By: /s/ William H. Kerlin, Jr.
----------------------------------
William H. Kerlin, Jr.,
Secretary
[SEAL] GRAHAM ENGINEERING CORPORATION
By: /s/ William H. Kerlin, Jr.,
----------------------------------
William H. Kerlin, Jr.,
Executive Vice President
[SEAL] GRAHAM CAPITAL CORPORATION
By: /s/ William H. Kerlin, Jr.,
----------------------------------
William H. Kerlin, Jr.,
Executive Vice President
AMENDMENT NO. 1 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDMENT NO. 1 TO THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF SONOCO GRAHAM COMPANY is entered into on the 23rd day of
August, 1989, effective as of the 3rd day of April, 1989, by and among Sonoco
Graham Corporation, a Pennsylvania corporation with its offices at 1420 Sixth
Avenue, York, Pennsylvania 17403-1104, as general partner, and Sonoco Products
Company, a South Carolina corporation with its offices at One North Second
Street, Hartsville, South Carolina 29550, Graham Container Corporation, a
Pennsylvania corporation with its offices at 1420 Sixth Avenue, York,
Pennsylvania 17403-1104, and Graham Engineering Corporation, a Pennsylvania
corporation with its offices at 1420 Sixth Avenue, York, Pennsylvania
17403-1104, as limited partners.
W I T N E S S E T H:
--------------------
WHEREAS, the parties hereto heretofore have entered into an
Amended and Restated Agreement of Limited Partnership of Sonoco Graham Company,
dated as of April 3, 1989 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to
reflect the agreed-upon valuations of contributed assets and interests in
partnership profits and capital, as such amounts have now been determined, as
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in the Agreement and herein, the parties hereto agree that
the Agreement shall be and is hereby amended as follows:
1. Section 2.3 and 2.31 of the Agreement are hereby amended
by replacing the words "Schedule A" with the words "the Schedule."
2. Section 3.4 of the Agreement is amended by adding the
following sentence at the end thereof:
"The fair market value of the assets contributed by
the Partners pursuant to Section 3.1 at the time of
such contribution, as agreed to by the Partners, are
as set forth on Schedule B."
3. Schedule A of the Agreement is amended to read as annexed
hereto.
2
4. A new Schedule B, as amended hereto, is added to the
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
GENERAL PARTNER:
---------------
SONOCO GRAHAM CORPORATION
By:
---------------------------------
Title Vice President
LIMITED PARTNERS:
-----------------
SONOCO PRODUCTS CORPORATION
By:
---------------------------------
Title: Vice President
Administration
GRAHAM CONTAINER CORPORATION
By: /s/ William H. Kerlin, Jr.
--------------------------------
Title: Executive Vice President
GRAHAM ENGINEERING CORPORATION
By: /s/ William H. Kerlin, Jr.,
--------------------------------
Title: Executive Vice President
Schedule A
Percentage Initial
Name and Address Interest Capital Account
- ---------------- -------- ---------------
General Partner
- ---------------
Sonoco Graham Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 1.04% $ 500,000
Attention: Chairman
Limited Partners
- ----------------
Sonoco Products Company
One North Second Street
Hartsville, South Carolina 29550 39.6% $108,911,952
Attention: Chairman
Graham Container Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 55.4% $112,467,975
Attention: Chairman
Graham Engineering Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 4.0% $ 900,000
Attention: Chairman
SCHEDULE B
It is agreed that the fair market value of each asset as of
April 3, 1989 is its book value immediately prior to its contribution to the
Partnership, except that, as of such date, the fair market value of goodwill and
going concern value contributed by Container is $77,240,000, and the fair market
value of the exclusive license contributed by Engineering referred to in clause
(i) of Section 1.23 of the Organization Agreement is $890,000.
AMENDMENT NO. 2 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDMENT NO. 2 TO THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF SONOCO GRAHAM COMPANY is entered into on the 31st day of
January, 1990, by and among Sonoco Graham Corporation, a Pennsylvania
corporation with its offices at 1420 Sixth Avenue, York, Pennsylvania
17403-1104, as general partner, and Sonoco Products Company, a South Carolina
corporation with its offices at One North Second Street, Hartsville, South
Carolina 29550, Graham Container Corporation, a Pennsylvania corporation with
its offices at 1420 Sixth Avenue, York, Pennsylvania 17403-1104, and Graham
Engineering Corporation, a Pennsylvania corporation with its offices at 1420
Sixth Avenue, York, Pennsylvania 17403-1104, as limited partners.
W I T N E S S E T H:
--------------------
WHEREAS, the parties hereto heretofore have entered into an
Amended and Restated Agreement of Limited Partnership of Sonoco Graham Company,
dated as of April 3, 1989, as amended August 23, 1989 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to
change the dates prior to which the Partnership must provide certain information
to each of its partners;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in the Agreement and herein, the parties hereto agree that
the Agreement shall be and is hereby amended as follows:
1. Section 8.2(b) of the Agreement is hereby amended by
replacing the references to "May 15" and "April 15" in the first sentence
thereof with "July 15" and "March 15," respectively
2
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
GENERAL PARTNER:
----------------
SONOCO GRAHAM CORPORATION
By:
---------------------------------
Title Vice President
LIMITED PARTNERS:
-----------------
SONOCO PRODUCTS CORPORATION
By:
---------------------------------
Title: Vice President
Administration
GRAHAM CONTAINER CORPORATION
By: /s/ William H. Kerlin, Jr.
--------------------------------
Title: Executive Vice President
GRAHAM ENGINEERING CORPORATION
By: /s/ William H. Kerlin, Jr.,
--------------------------------
Title: Executive Vice President
AMENDMENT NO. 3 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDMENT NO. 3 TO THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF SONOCO GRAHAM COMPANY is entered into on the 21st day of
February, 1990, effective as of the 3rd day of April, 1989, by and among Sonoco
Graham Corporation, a Pennsylvania corporation with its offices at 1420 Sixth
Avenue, York, Pennsylvania 17403-1104, as general partner, and Sonoco Products
Company, a South Carolina corporation with its offices at One North Second
Street, Hartsville, South Carolina 29550, Graham Container Corporation, a
Pennsylvania corporation with its offices at 1420 Sixth Avenue, York,
Pennsylvania 17403-1104, and Graham Engineering Corporation, a Pennsylvania
corporation with its offices at 1420 Sixth Avenue, York, Pennsylvania
17403-1104, as limited partners.
W I T N E S S E T H:
--------------------
WHEREAS, the parties hereto heretofore have entered into an
Amended and Restated Agreement of Limited Partnership of Sonoco Graham Company,
dated as of April 3, 1989, as amended August 23, 1989 and January 31, 1990 (the
"Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to
reflect the agreed-upon valuations of contributed assets and interests in
partnership capital, as such amounts have now been further determined, as
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in the Agreement and herein, the parties hereto agree that
the Agreement shall be and is hereby amended as follows:
1. Schedule A and B of the Agreement are amended to read as
annexed hereto.
2
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
GENERAL PARTNER:
----------------
SONOCO GRAHAM CORPORATION
By:
---------------------------------
Title Vice President
LIMITED PARTNERS:
-----------------
SONOCO PRODUCTS CORPORATION
By:
---------------------------------
Title: Vice President
Administration
GRAHAM CONTAINER CORPORATION
By: /s/ William H. Kerlin, Jr.
--------------------------------
Title: Executive Vice President
GRAHAM ENGINEERING CORPORATION
By: /s/ William H. Kerlin, Jr.,
--------------------------------
Title: Executive Vice President
Schedule A
Percentage Initial
Name and Address Interest Capital Account
- ---------------- -------- ---------------
General Partner
- ---------------
Sonoco Graham Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 1.0% $ 500,000
Attention: Chairman
Limited Partners
- ----------------
Sonoco Products Company
One North Second Street
Hartsville, South Carolina 39.6% $108,750,740
Attention: Chairman
Graham Container Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 55.4% $112,242,196
Attention: Chairman
Graham Engineering Corporation
1420 Sixth Avenue
York, Pennsylvania 17403-1104 4.0% $ 900,000
Attention: Chairman
Schedule B
It is agreed that the fair market value of each asset as of
April 3, 1989 is its book value immediately prior to its contribution to the
Partnership; except that, as of such date, the fair market value of goodwill and
going concern value contributed by Container is $77,013,845, and the fair market
value of the exclusive license contributed by Engineering referred to in clause
(i) of Section 1.23 of the Organization Agreement is $890,000.
AMENDMENT NO. 2 TO AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SONOCO GRAHAM COMPANY
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED CERTIFICATE OF
LIMITED PARTNERSHIP of Sonoco Graham Company, a Pennsylvania limited partnership
(the "Partnership"), is made this 22nd day of May, 1990, by Sonoco Graham
Corporation, a Pennsylvania corporation, as general partner (the "General
Partner").
W I T N E S S E T H:
--------------------
WHEREAS, on March 24, 1989, a Certificate of Limited
Partnership was filed in the Department of State of the Commonwealth of
Pennsylvania whereby the Partnership was formed under the Pennsylvania Uniform
Limited Partnership Act;
WHEREAS, on April 4, 1989, an Amended and Restated Certificate
of Limited Partnership of the Partnership was filed in the Department of State;
WHEREAS, an Amendment No. 1 to the Amended and Restated
Certificate of Limited Partnership of the Partnership was executed on May 22,
1990, and, immediately prior to the filing of the within Amendment No. 2, is to
be filed in the Department of State; and
WHEREAS, the Amended and Restated Agreement of Limited
Partnership of the Partnership, as amended, provides that the Partnership shall
be governed by the Pennsylvania Revised Uniform Limited Partnership Act during
all periods after the effective date of such Act, and, accordingly, the General
Partner now desires to amend and restate the terms and provisions of the
Certificate of Limited Partnership of the Partnership in accordance with the
provisions of such Act;
NOW, THEREFORE, pursuant to the Pennsylvania Revised Uniform
Limited Partnership Act, the undersigned hereby certifies as follows:
ARTICLE ONE
Name
----
The name of the Partnership is Sonoco Graham Company.
ARTICLE TWO
Location of Registered Office
-----------------------------
The Partnership has its registered office at 1110 East
Princess Street, York, Pennsylvania 17403.
2
ARTICLE THREE
Name and Business Address of General Partner
--------------------------------------------
The name and business address of the sole general partner of
the Partnership is:
Sonoco Graham Corporation
1110 East Princess Street
York, PA 17403
IN WITNESS WHEREOF, the undersigned has executed this
Amendment No. 2 to Amended and Restated Certificate of the Limited Partnership
on the date first above written.
[SEAL] SONOCO GRAHAM CORPORATION
By: /s/ William H. Kerlin, Jr.,
-------------------------------
William H. Kerlin, Jr.,
Secretary
CONSENT TO USE OF SIMILAR NAME
Pursuant to 19 Pa. Code ss. 17.3 (relating to use of a
confusingly similar name) the undersigned association, desiring to consent to
the use by another association of a name which is confusingly similar to its
name, hereby certifies that:
1. The name of the association executing this Consent to Use of Similar Name is:
Graham Packaging Corporation
----------------------------------------------------------------------------
2. The (a) address of this association's current registered office in this
Commonwealth or (b) commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct the following
address to conform to the records of the Department):
(a) 1420 Sixth Avenue York PA 17405-1104 York
----------------------------------------------------------------------------
Number and Street City State Zip County
(b)
----------------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For an association represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the association is
located for venue and official publication purposes.
3. The date of its incorporation or other organization is: March 9, 1989
-------------------
4. The statute under which it was incorporated or otherwise organized is
PA BCL, Act of May 5, 1933, as amended
----------------------------------------------------------------------------
5. The association is entitled to the benefit of this Consent to Use of Similar
Name is :
--
Graham Packaging Company
----------------------------------------------------------------------------
6. A check in this box __ indicates that the association executing this
Consent to Use of Similar Name is the parent or prime affiliate of a group
of associations using the same name with geographic or other designations,
and that such association is authorized to and does hereby act on behalf of
all such affiliated associations, including the following (see 19 Pa. Code
ss. 17.3(c) (6)):
-----------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
IN TESTIMONY WHEREOF, the undersigned association has caused this consent to be
signed by a duly authorized officer thereof this 28th day of March 1991.
Graham Packaging Corporation
-----------------------------------
(Name of Association)
By: /s/ William H. Kerlin, Jr.
-------------------------------
(Signature)
William H. Kerlin, Jr.
Title: Secretary
-----------------------------
Microfilm Number 91171194 Filed with the Department of State on Mar 28, 1991
---------
Entity Number 1071490 /s/ Christopher Al Lewis
------- -----------------------------------
Secretary of the Commonwealth
CERTIFICATE OF AMENDMENT LIMITED PARTNERSHIP
In compliance with the requirements of 15 Pa. C.S. ss. 8512 (relating
to certificate of amendment), the undersigned limited partnership, desiring to
amend its Certificate of Limited Partnership, hereby certifies that:
1. The name of the limited partnership is: Sonoco Graham Company
----------------------------------
--------------------------------------------------------------------------
2. The date of filing of the original Certificate of Limited Partnership is:
March 24, 1989
---------------------------
3. (Check, and if appropriate complete, one of the following):
x The amendment adopted by the limited partnership, set forth in full,
--- is as follows:
A. Article One is amended to read:
"The name of the limited partnership is: Graham Packaging Company."
B. The name of the general partner referenced in Article Four and on the
signature line is amended to read "Graham Packaging Corporation."
--- The amendment adopted by the limited partnership is set forth in full
in Exhibit A, attached hereto and made a part hereof.
4. (Check, and if appropriate complete, one of the following):
x The amendment shall be effective upon filing this Certificate of
--- Amendment in the Department of State.
--- The amendment shall be effective on: ______________________________
5. (Check if the amendment restates the Certificate of Limited Partnership):
--- The restated Certificate of Limited Partnership supersedes the
original Certificate of Limited Partnership and all amendments
thereto.
IN TESTIMONY WHEREOF, the undersigned limited partnership has caused this
certificate to be executed this 28th day of March, 1991.
SONOCO GRAHAM COMPANY
-----------------------------------------
(Name of Partnership)
By: GRAHAM PACKAGING CORPORATION, its G.P.
By: /s/ William H. Kerlin, Jr.
------------------------------------
William H. Kerlin, Jr.
Title: Secretary of GENERAL PARTNER
----------------------------------
RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GRAHAM PACKAGING COMPANY
1. The name of the Partnership is Graham Packaging Company.
2. The current registered office of the Partnership in the
Commonwealth of Pennsylvania is at 1420 Sixth Avenue, York, York County,
Pennsylvania 17405-1104.
3. The name and business address of each general partner of
the Partnership is as follows:
Graham Packaging Corporation
1420 Sixth Avenue
York, PA 17405-1104
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
JANUARY 12, 1998
TO ALL WHOM THESE PRESENTS SHALL COME, GREETING:
GRAHAM PACKAGING COMPANY
1. Yvette Kane, Secretary of the Commonwealth of Pennsylvania
do hereby certify that the foregoing and annexed is a true and correct photocopy
of Certificate of Limited Partnership and all Amendments which appear of record
in this department
[SEAL] IN TESTIMONY WHEREOF, I have hereunto set my
hand and caused the Seal of the Secretary's
Office to be affixed, the day and year above
written.
--------------------------------
Secretary of the Commonwealth
Entity Number
--------------------- ----------------------------------
Secretary of the Commonwealth
CERTIFICATE OF AMENDMENT-LIMITED PARTNERSHIP
In compliance with the requirements of 15 Pa. C.S. 1/28512 (relating
to certificate of amendment), the undersigned limited partnership, desiring to
amend its Certificate of Limited Partnership, hereby certifies that:
1. The name of the limited partnership is: Graham Packaging Company
------------------------------------
----------------------------------------------------------------------------
2. The date of filing of the original Certificate of Limited Partnership is:
March 24, 1989
-------------------------
3. (Check, and if appropriate complete, one of the following):
--- The amendment adopted by the limited partnership, set forth in full,
is as follows:
x The amendment adopted by the limited partnership is set forth
--- in full in Exhibit A attached hereto and made a part hereof.
4. (Check, and if appropriate complete, one of the following):
x The amendment shall be effective upon filing this Certificate
--- of Amendment in the Department of State.
--- The amendment shall be effective on: ___________ at ______________
Date Hour
5. (Check if the amendment restates the Certificate of Limited Partnership):
x The restated Certificate of Limited Partnership supersedes the
--- original Certificate of Limited Partnership and all amendments
thereto.
IN TESTIMONY WHEREOF, the undersigned limited partnership has caused
this Certificate of Amendment to be executed this 2nd day of February, 1998.
GRAHAM PACKAGING COMPANY
By: Graham Packaging Corporation, By: BCP/Graham Holdings LLC,
General Partner General Partner
By: BMP/Graham Holdings
Corporation, member
By: /s/ William H. Kerlin, Jr. By: /s/ Simon Lonergan
------------------------------ ---------------------------
Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GRAHAM PACKAGING HOLDINGS COMPANY
1. The name of the Partnership is Graham Packaging Holdings Company.
2. The current registered office of the Partnership in the Commonwealth of
Pennsylvania is at 1110 East Princess Street, York, York County, Pennsylvania
17403.
3. The name and business address of each general partner of the Partnership is
as follows:
BCP/Graham Holdings LLC
c/o Blackstone Capital Partners III Merchant Banking Fund L.P.
345 Park Avenue
New York, New York 10154
Graham Packaging Corporation
1420 Sixth Avenue
York, Pennsylvania 17405-1104
ANNEX A
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
ROOM 308 NORTH OFFICE BUILDING
P.O. BOX 8722
HARRISBURG, PA 17105-8722
GRAHAM PACKAGING HOLDINGS COMPANY
THE CORPORATION BUREAU IS HAPPY TO SEND YOU YOUR FILED DOCUMENT.
PLEASE NOTE THE FILE DATE AND THE SIGNATURE OF THE SECRETARY OF THE
COMMONWEALTH. THE CORPORATION BUREAU IS HERE TO SERVE YOU AND WANTS TO THANK
YOU FOR DOING BUSINESS IN PENNSYLVANIA. IF YOU HAVE ANY QUESTIONS PERTAINING
TO THE CORPORATION BUREAU, CALL (717) 787-1057.
ENTITY NUMBER: 1071490
MICROFILM NUMBER: 09806
1574-1575
CSC NETWORKS
COUNTER
Entity Number 1071590 ----------------------------------
------------- Secretary of the Commonwealth
CERTIFICATE OF AMENDMENT-LIMITED PARTNERSHIP
In compliance with the requirements of 15 Pa.C.S. 1/2 8512 (relating
to certificate of amendment), the undersigned limited partnership, desiring to
amend its Certificate of Limited Partnership, hereby certifies that:
1. The name of the limited partnership is: Graham Packaging Company
------------------------------------
----------------------------------------------------------------------------
2. The date of filing of the original Certificate of Limited Partnership is:
March 24, 1989
------------------------
3. (Check, and if appropriate complete, one of the following):
--- The amendment adopted by the limited partnership, set forth in full,
is as follows:
x The amendment adopted by the limited partnership is set forth
--- in full in Exhibit A attached hereto and made a part hereof.
4. (Check, and if appropriate complete, one of the following):
x The amendment shall be effective upon filing this Certificate
--- of Amendment in the Department of State.
--- The amendment shall be effective on: ___________ at _______________
Date Hour
5. (Check if the amendment restates the Certificate of Limited Partnership):
x The restated Certificate of Limited Partnership supersedes the
--- original Certificate of Limited Partnership and all amendments
thereto.
IN TESTIMONY WHEREOF, the undersigned limited partnership has caused
this Certificate of Amendment to be executed this 2nd day of February, 1998.
GRAHAM PACKAGING COMPANY
By: Graham Packaging Corporation, By: BCP/Graham Holdings LLC,
General Partner General Partner
By: BMP/Graham Holdings Corporation,
member
By: /s/ William H. Kerlin, Jr. By: /s/ Simon Lonergan
-------------------------- --------------------------
Exhibit 3.1
State of Delaware
Office of the Secretary of State
-----------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "GRAHAM PACKAGING HOLDINGS I, L.P.", FILED IN THIS
OFFICE ON THE TWENTY-FIRST DAY OF SEPTEMBER, A.D. 1994, AT 1:30 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8871374
DATE: 01-16-98
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GRAHAM PACKAGING HOLDINGS I, L.P.
This Certificate of Limited Partnership (the "Certificate") of Graham
Packaging Holdings I, L.P., a Delaware limited partnership is being filed
pursuant to Section 17-201 of the Delaware Revised Uniform Limited Partnership
Act:
1. The name of the partnership is Graham Packaging Holdings I, L.P.
2. The name and address of the registered office and registered agent
is:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801.
3. The name and business address of the General Partner is:
Graham Recycling Corporation
1420 6th Avenue
York, Pennsylvania 17405-1104
IN WITNESS WHEREOF, the undersigned has executed this Certificate the
____ day of September, 1994.
Graham Recycling Corporation
By:
----------------------------
William H. Kerlian
Vice President