Exhibit 3.34
Limited Partnership Agreement of EB Sadsbury General Partner, LP, dated as of
May 23, 2005, by and between EB Sadsbury Second, LLC and Electronics Boutique of
America Inc.
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
EB SADSBURY GENERAL PARTNER, LP
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT of EB Sadsbury
General Partner, LP, a Delaware limited partnership (the "Partnership"), is made
as of the 23rd day of May, 2005, by and between EB Sadsbury Second, LLC, a
Delaware limited liability company, as general partner (the "General Partner"),
and Electronics Boutique of America Inc., a Pennsylvania corporation, as limited
partner (the "Limited Partner").
NOW, THEREFORE, intending to be legally bound hereby, and in consideration
of the mutual promises and covenants contained herein, the parties hereto agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, and in addition to capitalized terms
defined elsewhere in this Agreement, the following terms shall have the meanings
ascribed below:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time.
Affiliate" means, with respect to any referenced Person, (i) a member of
such Person's immediate family; and (ii) any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with the
Person in question. As used herein, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Limited Partnership Agreement of EB Sadsbury General
Partner, LP, including all Exhibits hereto, as amended from time to time.
"Available Cash Flow" means such portion of the cash in hand or in bank
accounts of the Partnership as is determined by the General Partner to be
available for distribution to the Partners after payment of the current
liabilities, obligations and expenses of the Partnership, and after reasonable
provision has been made for reasonably required reserves.
"Code" means the Internal Revenue Code of 1986, as amended, including
corresponding provisions of succeeding law.
"Limited Partner" means a Person admitted to the Partnership as a limited
partner and "Limited Partners" means all Persons admitted to the Partnership as
limited partners.
"Partner" or "Partners," means, individually, a General Partner or a
Limited Partner, and collectively, the General Partner and all the Limited
Partners, including Persons admitted to the Partnership after the date hereof in
accordance with the terms hereof.
"Percentage Interests" means the relative percentages allocated to the
Partners as set forth on Exhibit A hereto, as the same may be amended from time
to time in accordance with this Agreement
"Person" means any individual, corporation, partnership, trust, limited
liability company or other organization or entity.
"Property Holding Partnership" means EB Sadsbury Property Holding, LP, a
Delaware limited partnership formed to hold certain parcels of real estate,
including the lands, buildings and other improvements now located or hereafter
constructed thereon, consisting of approximately 28 acres with all easements and
other rights benefiting such ground and all improvements thereon, if any,
situate in Sadsbury Township, Chester County, Pennsylvania.
"Regulations" means the Income Tax Regulations promulgated under the Code,
as such regulations may be amended from time to time.
ARTICLE II
GENERAL
2.1 Formation of Partnership.
2.1.1 The Partnership was formed as a limited partnership pursuant to
the Act by the filing of the certificate of limited partnership with the Office
of the Secretary of State of the State of Delaware on October 14, 2003. Except
as modified by this Agreement, the Partnership shall be governed by the Act.
2.2 Name of Partnership. The name of the Partnership is EB Sadsbury General
Partner, LP, or such other name as the General Partner may from time to time
determine, subject to the requirements of the Act and other applicable law.
2.3 Registered Office and Registered Agent. The initial registered agent
and registered office of the Partnership shall be Corporation Trust Center, 1209
Orange Street, Wilmington, County of New Castle, Delaware 19801. The registered
agent and registered office of the Partnership may be changed from time to time
in the discretion of the General Partner, subject to the requirements of the
Act. The business of the Partnership may be conducted at such office or offices
as the General Partner may determine from time to time.
2.4 Purpose. The Partnership may do all things permitted to be done by
limited partnerships under the Act, and do all things necessary, convenient or
incidental to that purpose,
2.5 Term. The Partnership shall continue until dissolved pursuant to
Article IX. Dissolution of the Partnership shall occur only upon the occurrence
of one of an event specified in Article IX.
2
2.6 Tax Status. It is intended that, for federal income tax purposes, the
Partnership will be treated as a disregarded entity as long as it is deemed to
have only a single partner for federal income tax purposes, or as a partnership
if it is deemed to have more than a single partner for federal income tax
purposes. No election shall be made under the Regulations to treat the
Partnership as a corporation for federal income tax purposes unless all of the
Partners unanimously consent to the filing of such an election.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Contributions.
3.1.1 Each Partner shall contribute the cash or property set forth
opposite the name of such Partner on Exhibit A to the capital of the
Partnership.
3.1.2 Additional capital contributions shall be made as unanimously
agreed by the Partners, but no Partner shall be obligated to contribute any
additional capital to the Partnership, whether upon the liquidation of the
Partnership or otherwise. No Partner shall be obligated to restore the deficit
balance in its capital account in the Partnership.
3.2 No Withdrawals. No Partner shall have the right to withdraw or reduce
his contribution of capital to the Partnership. The General Partner shall have
no personal liability for repayment of the capital contributions of the limited
Partner.
ARTICLE IV
DISTRIBUTIONS
4.1 Available Cash Flow. Available Cash Flow, as determined by the General
Partner, shall be distributed to the Partners in proportion to their Percentage
Interests on an annual or more frequent basis as determined by the General
Partner.
4.2 Liquidation. Notwithstanding anything in this Agreement to the
contrary, upon the liquidating and winding up of the Partnership, distributions
to the Partners shall be made as set forth in Section 9.4.1 below.
ARTICLE V
ALLOCATIONS
5.1 General. If the Partnership is ever considered a partnership for
federal income tax purposes (rather than a disregarded entity), then, except as
otherwise required under section 704(b) pf the Code or the Regulations
promulgated thereunder, all income, gain, loss, deduction and credit of the
Partnership shall be allocated to the Partners in proportion to their respective
Percentage Interests.
3
ARTICLE VI
MANAGEMENT
6.1 General. The General Partner shall have the full and exclusive power on
the Partnership's behalf, and in its name, to manage, control, administer and
operate the business and affairs of the Partnership and to do or cause to be
done anything it deems necessary or appropriate to carry out the purposes of the
Partnership, as set forth in Section 2.4 above. Without limiting the generality
of the foregoing, the General Partner shall have the authority to make all
decisions regarding development, construction, lease, sale, exchange, retention,
financing or refinancing of any assets held by the Partnership, and whether the
proceeds realized from any sale, financing or similar transaction shall be
reinvested by the Partnership, used to pay Partnership obligations or
distributed to the Partners.
6.2 Compensation of the General Partners; Dealings with Affiliates.
6.2.1 The General Partner shall be entitled to receive reasonable
management fees for serving as General Partner hereunder; provided, however,
that such fees are no greater than would be paid to an unrelated party
performing comparable management services pursuant to an agreement negotiated at
arm's-length.
6.2.2 All reasonable costs and expenses paid to third parties and
incurred in connection with the business and affairs of the Partnership,
including without limitation, all legal, accounting and travel expenses, shall
be Partnership expenses, and the General Partner and its Affiliates shall be
entitled to reimbursement to the extent they pay any such expenses.
6.2.3 The General Partner shall be authorized to cause the Partnership
to obtain management services or other services from Affiliates of some or all
of the Partners. The Partnership shall be responsible for a reasonable portion
of office and overhead expenses with respect to office space mat the Partnership
shares with Affiliates of some or all of the Partners.
6.3 Other Interests of Partners. The General Partner shall devote to the
Partnership such time as reasonably may be required to manage the business and
affairs of the Partnership. In view of the exclusive and limited purposes of the
Partnership, no Partner, or any Affiliate of any Partner, shall have any
obligation to make any other investment or business opportunity available to the
Partnership or to any of its Partners. It is further expressly agreed that any
Partner and/or its Affiliates may engage in and possess interests in other
businesses and ventures of every nature and description, independently or with
others, and any such engagement will not constitute a breach of the Partners'
fiduciary duties to the Partnership, and neither the Partnership nor any Partner
shall have any rights by virtue of this Agreement or the existence of this
Partnership in and to such independent ventures or to the income or profits
derived therefrom.
6.4 Limitations on Limited Partners. Except as otherwise expressly set
forth herein, the Limited Partners (in such capacity) shall in no event (i) be
permitted to take part in the control of the business or affairs of the
Partnership; or (ii) have the authority or power, in the capacity of a Limited
Partner, to act as agent for or on behalf of the Partnership or any other
4
Partner to do any act which would be binding on the Partnership or any other
Partner, including without limitation the incurring of any expenditures on
behalf of the Partnership.
6.5 Liability of Limited Partners. The Limited Partner shall in no event be
liable personally for any of the debts or losses of the Partnership or of the
General Partner beyond the aggregate amount of agreed upon contributions to the
capital of the Partnership as provided in Article III.
6.6 Loans from or to Affiliates. Subject to any restrictions or limitations
contained in this Agreement, the Partnership shall be authorized (i) to borrow
funds from Affiliates of the Partnership or the Partners to the extent that
capital contributions made by the Partners and the proceeds of third party
borrowings shall not be sufficient for the purposes of the Partnership, and (ii)
to lend funds not required by the Partnership to Affiliates of the Partnership
and the General Partner, provided such loans provide for commercially reasonable
interest or are approved by the General Partners and the Limited Partner.
6.7 Additional Limitations and Covenants. Notwithstanding any provision
hereof or of any other document governing the formation, management or operation
of the Partnership to the contrary, and in addition to the other provisions set
forth in this Agreement, in order to preserve and ensure the separate and
distinct identity of the Partnership, the Partnership shall conduct its affairs
in accordance with the following provisions:
6.7.1 The Partnership shall operate its business separate and apart
from that of any of its Affiliates.
6.7.2 The Partnership shall maintain partnership records and books of
account separate from those of any Affiliate of the Partnership.
6.7.3 The Partnership shall conduct its own business in its own name.
6.7.4 The Partnership shall hold itself out as an entity separate from
any Affiliate.
ARTICLE VII
FISCAL MATTERS
7.1 Partnership Books: Access to Information.
7.1.1 The Partnership shall maintain at its principal office (as the
same may be designated by the General Partner from time to time) all records
required to be maintained at such office(s) under the Act or under any other
applicable law.
7.1.2 During regular business hours and upon reasonable notice, each
Partner and its duly authorized representatives shall have access to and may
inspect and copy any of such books and records.
5
7.2 Accounting and Tax Decisions. All decisions as to accounting and tax
matters shall be made by the General Partner. The General Partner may rely upon
the advice of the Partnership's counsel or accountants as to the appropriate
accounting and tax decisions. The General Partner may elect to treat certain
items differently for accounting purposes than the manner in which such items
are treated for tax purposes.
7.3 Bank Accounts. The General Partner shall be responsible for causing one
or more bank accounts to be maintained in the Partnership's name into which all
funds of the Partnership shall be deposited and from which payment of all
Partnership business expenditures shall be made. Notwithstanding the foregoing,
funds of the Partnership may be held in one or more accounts maintained by
Affiliates of the Partnership or its Partners, provided that an accurate
accounting of deposits and withdrawals on behalf of the Partnership is
maintained
ARTICLE VIII
ASSIGNABILITY OF PARTNER'S INTERESTS
8.1 Permitted Transfers. General or limited partnership interests in the
Partnership may be transferred only with the unanimous written consent of the
Partners.
ARTICLE IX
DISSOLUTION AND TERMINATION
9.1 Liquidating Events.
9.1.1 The Partnership shall dissolve and commence winding up and
liquidating upon the first to occur of any of the following ("Liquidating
Events"):
(i) The dissolution, winding up and liquidation of the
Partnership is approved by the unanimous consent of the Partners;
(ii) A sale of all or substantially all of the assets of the
Partnership and the collection of the proceeds from such sale;
(iii) An event of withdrawal, as defined in Section 17-402 of the
Act (or any successor provision), occurs with respect to the General
Partner (unless there is at least one remaining General Partner, in which
case the remaining General Partner(s) shall be authorized to continue the
Partnership); provided, however, that the Partnership shall not be
dissolved upon the withdrawal of the last remaining General Partner if,
within 90 days after such withdrawal, a majority in interest of the
remaining Partners agree in writing to continue the business of the
Partnership and to the appointment of one or more replacement general
partners;
(iv) The happening of any other event that makes it unlawful or
impossible to carry on the business of the Partnership; or
(v) In any event, at 11:59 p.m. on December 31, 2103.
6
9.1.2 The Partners hereby agree that, notwithstanding any provision of
the Act, the Partnership shall not dissolve prior to the occurrence of a
Liquidating Event. If it is determined by a court of competent jurisdiction that
the Partnership has dissolved prior to the occurrence of a Liquidating Event,
the Partners hereby agree to continue the business of the Partnership without a
winding up or liquidation.
9.2 Dissolution, Winding Up and Termination. Upon the occurrence of a
liquidating Event, the General Partner shall have the full power and authority
to proceed with the liquidation of the Partnership and to take all steps which
they may deem necessary or desirable to wind up the Partnership's affairs,
having for such purpose all the powers referred to and provided for in Article
VI appropriate to accomplish the same and allowing for a reasonable time in
order to minimize losses attendant to the liquidation, so that the Partnership
may be terminated in accordance with the Act. In the event that there is no
General Partner, the Limited Partner may designate one or more Partners or a
non-Partner or both to proceed with the liquidation of the Partnership's assets
and the termination of the Partnership. In the event that a liquidator is
designated pursuant to the preceding sentence, hereinafter in this Article all
references to the General Partner shall be deemed to refer to such liquidator.
9.3 Final Accounting. Upon such dissolution, an accounting shall be
prepared and furnished to each Partner to cover the period from the date of the
last previous accounting to the date of such dissolution. Upon completion or
distribution in accordance with Section 9.4, a further statement for the period
of dissolution shall be so prepared and furnished.
9.4 Distributions Upon Winding Up and Termination.
9.4.1 The proceeds from all assets of the Partnership upon its winding
up and termination shall be distributed and applied in the following order of
priority, with no distribution being made in any category being set forth below
until each preceding category has been satisfied in full:
(i) Payment of debts and liabilities of the Partnership (other
than amounts owing to Partners) and the expenses of liquidation; provided
however, that loans guaranteed by Partners or their Affiliates shall not be
considered as being made by such Partners, and provided further that the
General Partner shall have the right to designate the order in which
specific liabilities are to be satisfied out of Partnership assets, to the
extent permitted with reference to the order provided by law, in order to
minimize the risk of personal liability on the part of any Partner(s),
including the General Partner and its Affiliates.
(ii) Establishment of reserves deemed reasonably necessary to
cover contingent or unforeseen liabilities or obligations of the
Partnership or the General Partner arising out of or in connection with the
Partnership. These reserves may be held by the Partnership or paid over to
an attorney-in-law or a bank or trust company to be held in escrow for the
purpose of paying any such contingent or unforeseen liabilities or
obligations and at the expiration of such period as the General Partners
shall deem advisable, any then remaining balance shall be distributed as
the General Partner shall direct but in accordance with the order of
priority set forth below.
7
(iii) Repayment of all loans owing to the Partners, including
accrued but unpaid interest thereon.
(iv) To the Partners in proportion to their Percentage Interests.
9.4.2 Notwithstanding anything to the contrary in the Act or any other
statute or rule of law, no Partner shall have any right of priority over any
other Partner with respect to repayment of loans and advances or otherwise in
the application and distribution of the assets of the Partnership upon
dissolution as provided herein.
ARTICLE X
MISCELLANEOUS
10.1 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Partners, their respective successors and assigns.
Each and every successor to any Partner, whether such successor acquires its
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement.
10.2 Amendment. This Agreement may only be amended upon the unanimous
approval of the Partners.
10.3 No Third Party Beneficiaries. None of the provisions of this Agreement
are intended to benefit, and none shall inure to the benefit of or be
enforceable by, any creditors of the Partnership or any other third parties.
10.4 Entire Agreement This Agreement contains the entire agreement between
the Partners and supersedes all prior understandings and agreements between them
concerning the subject matter hereof. No representations, warranties, conditions
or agreements pertaining to the subject matter of this Agreement have been made
by, or shall be binding upon, any of the Partners, except as expressly set forth
in this herein.
10.5 Captions. Titles or captions of articles and sections contained in
this Agreement are inserted only as a matter of convenience and for reference,
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision thereof.
10.6 Number and Gender. All pronouns used herein shall be deemed to refer
to the masculine, feminine, neuter, singular or plural as the identity of the
Person or Persons may require in the context, and the singular form of nouns,
pronouns and verbs shall include the plural, and vice versa, whichever the
context may require.
10.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original for all purposes, but all of
which taken together shall constitute only one agreement. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
8
10.8 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed under seal as of the day
and year first above written.
GENERAL PARTNER:
EB SADSBURY SECOND, LLC
By: Electronics Boutique of
America Inc., its sole member
By: /s/ Illegible
-----------------------------------
Name: Illegible
Title: Assistant Secretary
LIMITED PARTNER:
ELECTRONICS BOUTIQUE OF AMERICA INC.
By: /s/ Illegible
-----------------------------------
Name: Illegible
Title: Assistant Secretary
10
EXHIBIT "A"
PARTNERS, CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
Capital Percentage
Name and Address Contribution Interest
- ---------------- ------------ ----------
GENERAL PARTNER:
EB Sadsbury Second, LLC $ 1.20 0.1%
c/o Electronics Boutique of America Inc.
931 South Matlack Street
West Chester, PA 19382
LIMITED PARTNER:
Electronics Boutique of America Inc. $1198.80 99.9%
931 South Matlack Street
West Chester, PA 19382