EXHIBIT 10.8
THIRD AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
CRAMERTON AUTOMOTIVE PRODUCTS, L.P.
Dated as of December 11, 1996
by and among
CRAMERTON MANAGEMENT CORP.
JPS AUTOMOTIVE L.P.
SEIREN U.S.A. CORPORATION
and
SEIREN AUTOMOTIVE TEXTILE CORPORATION
THIRD AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
CRAMERTON AUTOMOTIVE PRODUCTS, L.P.
This Third Amendment (this "Amendment") is made as of December
11, 1996, by and among Cramerton Management Corp., a Delaware corporation
("CMC"), JPS Automotive L.P., a Delaware limited partnership ("JPS Automotive"),
Seiren U.S.A. Corporation, a Delaware corporation ("Seiren Affiliate 1") and
Seiren Automotive Textile Corporation, a Delaware corporation ("Seiren Affiliate
2"), and amends the Amended and Restated Agreement of Limited Partnership of
Cramerton Automotive Products, L.P. (the "Partnership"), dated as of December 2,
1991, as amended by the First Amendment to Amended and Restated Agreement of
Limited Partnership of Cramerton Automotive Products, L.P., dated as of June 28,
1994 and the Second Amendment to Amended and Restated Agreement of Limited
Partnership of Cramerton Automotive Products, L.P. dated as of October 3, 1994
(as so amended, the "Agreement"). Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned to such terms in the
Agreement.
WHEREAS, Seiren Affiliate 1 has agreed to transfer and assign
its 18.5% limited partnership interest in the Partnership to JPS Automotive
effective the date hereof; and
WHEREAS, Seiren Affiliate 2 has agreed to transfer and assign
its 1% general partnership interest in the Partnership to JPS Automotive
effective the date hereof; and
WHEREAS, the Parties wish to amend the Agreement (i) to admit
JPS Automotive as a general partner of the Partnership, (ii) to provide for the
withdrawal of Seiren Affiliate 2 as a general partner of the Partnership, (iii)
to provide for the withdrawal of Seiren Affiliate 1 as a limited partner of the
Partnership, (iv) to record the increase in the limited partnership interest of
JPS Automotive, and (v) authorize and consent to the transactions contemplated
by the Equity Purchase Agreement (the "Transactions"), to the extent the
Partnership is a party thereto.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein and for other good, valuable and binding
consideration, the receipt and sufficiency of which are hereby acknowledged, and
subject to the terms hereof, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Authority; Transactions. The Partnership and the
Managing General Partner on behalf of the Partnership, without any further act,
vote or approval of any Partner, are hereby authorized to enter into and perform
the following transactions.
(a) Execution of Transaction Documents. Notwithstanding any of
the terms or provisions of the Agreement, the Partnership and the
General Partner on behalf of the Partnership are hereby authorized to
enter into, and perform their obligations under, each of the
instruments and agreements necessary or desirable in connection with
the Transactions, to which the Partnership or the General Partner on
behalf of the Partnership is a party, and any other instrument or
agreement referenced or contemplated therein, or necessary or
desirable, in the sole judgment of the General Partner, to effectuate
the transactions contemplated therein.
(b) Admission of JPS Automotive. Notwithstanding any of the
terms or provisions of the Agreement to the contrary, upon the transfer
by Seiren Affiliate 2 to JPS Automotive of its 1% general partnership
interest in the Partnership, and the execution and delivery of this
Amendment, JPS Automotive shall be and hereby is admitted to the
Partnership as a general partner of the Partnership. JPS Automotive, as
a general partner of the Partnership, hereby agrees to be bound by the
terms and conditions of the Agreement and this Amendment, and to assume
the obligations of Seiren Affiliate 2 arising under or in connection
with the Agreement.
(c) Withdrawal of Seiren Affiliate 2. Notwithstanding any of
the terms or provisions of the Agreement to the contrary, upon the
admission of JPS Automotive as a general partner, Seiren Affiliate 2
shall withdraw from the Partnership as a Partner and from and after
such date shall cease to be a general partner of the Partnership or
have the power to exercise any right or power as a partner of the
Partnership. For purposes of this Amendment, the admission of JPS
Automotive pursuant to Section 1(b) is deemed to occur immediately
prior to the withdrawal of Seiren Affiliate 2 pursuant to this Section
1(c).
(d) Withdrawal of Seiren Affiliate 1. Notwithstanding any of
the terms or provisions of the Agreement to the contrary, upon the
transfer of the 18.5% limited partnership interest in the Partnership
by Seiren Affiliate 1 to JPS Automotive, Seiren Affiliate 1 shall
withdraw from the Partnership as a Partner and from and after such date
shall cease to be a limited partner of the Partnership or have the
power to exercise any right or power as a partner of the Partnership.
(e) Increase in Limited Partnership Interest of JPS
Automotive. The parties acknowledge that upon the transfer by Seiren
Affiliate 1 of its 18.5% limited partnership interest in the
Partnership, JPS Automotive will hold a 98% limited partnership
interest in the Partnership.
(f) Continuation of Partnership. The parties hereto agree that
the consummation of the transactions contemplated in this Amendment,
the admission of JPS Automotive as a general partner of the Partnership
and the withdrawal of Seiren Affiliate 2 as a general partner of the
Partnership and Seiren Affiliate 1 as a limited partner of the
Partnership will not dissolve the Partnership and that the business of
the Partnership shall be continued by the Managing General Partner.
(g) Interim Closing. Each of the parties hereto who is a
Partner pursuant to the Agreement prior to this Amendment agrees that
it will be allocated income or loss for tax purposes pursuant to an
interim closing of the books as of the date of this Amendment, pursuant
to the relevant provisions of the Agreement.
Section 2. Consent and Waiver. Notwithstanding any of the
terms or provisions of the Agreement to the contrary, each of the parties hereto
hereby consents to all actions that are necessary or desirable to effectuate the
consummation of any an all of the transactions contemplated in Section 1 to the
fullest extent necessary or desirable so as not to cause a violation of or
conflict with any provision of the Agreement and hereby waives any and all right
it may have to challenge such transactions. All acts by the Partnership and the
Managing General Partner heretofore taken on behalf of the Partnership which are
in accordance with this Section 2 are hereby approved, ratified and confirmed in
all respects and for all purposes.
Section 3. Effect of Amendment. On and after the date hereof,
each reference in the Agreement to "this Agreement", "hereof", "hereunder" or
words of like import referring to the Agreement shall mean and be a reference to
the Agreement as amended by this Amendment. The Agreement, as amended by this
Amendment, shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed.
Section 4. Further Assurances. From time to time upon request
and without further consideration, each of the parties hereto shall, and shall
cause its subsidiaries and affiliates to, execute, deliver and acknowledge all
such further instruments and do such further acts as any other party hereto may
reasonably require to evidence or implement the transactions contemplated by
this Amendment. Notwithstanding anything to the contrary contained in the
Agreement, each of the parties hereto hereby consents to any and all of the
transactions contemplated by this Amendment to the extent necessary so as not to
cause a default or event of default under such documents.
Section 5. Waiver. Any failure of any of the parties to
comply with any obligation, covenant, agreement or condition herein may be
waived by any of the parties entitled to the benefit thereof only by a written
instrument signed by each such
party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, representation, warrant, covenant, agreement or
condition shall not operate as a waiver of or estoppel with respect to any
subsequent or other failure.
Section 6. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
Section 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
and delivered by means of facsimile transmission or otherwise, each of which
when so executed and delivered shall be deemed to be an original and all of
which when taken together shall constitute but one and the same Amendment. If
any party hereto elects to execute and deliver a counterpart signature page by
means of facsimile transmission, it shall deliver an original of such
counterpart to each of the other parties thereto within ten business days of the
date hereof, but in no event will the failure to do so affect in any way the
validity of the facsimile signature or its delivery.
Section 8. Severability. If any provision of this Amendment
shall be held to be illegal, invalid or unenforceable under any applicable law,
then such contravention or invalidity shall not invalidate the entire Amendment.
Such provision shall be deemed to be modified to the extent necessary to render
it legal, valid and enforceable, and if no such modification shall render it
legal, valid and enforceable, then this Amendment shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
Section 9. Headings. The headings used herein are for
convenience of reference only, are not a part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
any provision of this Amendment or the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their respective duly authorized officers thereunto
as of the date first written above.
CRAMERTON MANAGEMENT CORP.,
as Managing General Partner
/s/ Xxxx X. Xxxxxxx
---------------------------
By:
Title: Executive Vice President &
Chief Operating Officer
JPS AUTOMOTIVE L.P.
By: PACJ, INC.
Its: General Partner
as Limited Partner
/s/ J. Xxxxxxx Xxxxx
---------------------------
By: J. Xxxxxxx Xxxxx
Title: Executive Vice President &
Chief Financial Officer
SEIREN U.S.A. CORPORATION
as Withdrawing Limited Partner
/s/ X. Xxxxxxx
----------------------------
By: Xxxxx Xxxxxxx
Title: President
SEIREN AUTOMOTIVE TEXTILE
CORPORATION
As Withdrawing General Partner
/s/ X. Xxxxxxx
By: Xxxxx Xxxxxxx
Title: Chairman
JPS AUTOMOTIVE L.P.
By: PACJ, INC.
Its: General Partner
as Limited Partner
/s/ J. Xxxxxxx Xxxxx
---------------------------
By: J. Xxxxxxx Xxxxx
Title: Executive Vice President &
Chief Financial Officer
