JPS AUTOMOTIVE L.P.
AMENDMENT NO.1 TO
EQUITY PURCHASE AGREEMENT
BY AND AMONG
JPSGP INC.,
FOAMEX-JPS AUTOMOTIVE L.P.,
FOAMEX INTERNATIONAL INC.
AND
XXXXXXX & XXXXXX PRODUCTS CO.
Dated as of December 11, 1996
TABLE OF CONTENTS
Page
ARTICLE I. AMENDMENT OF AGREEMENT........................................1
Section 1.1. Definitions.............................................1
Section 1.2. Amendment of Section 2.2................................1
Section 1.3. Amendment of Section 2.3(g)(iii)........................2
Section 1.4. Addition of New Section 3.1(c); Authority of
FII...................................................2
Section 1.5. Amendment of Section 3.3; Partnership
Recapitalization......................................3
Section 1.6. Certain Litigation Matters; Schedule 3.20
and Section 10.8......................................3
Section 1.7. New Section 3.33........................................3
Section 1.8. Correction of Schedule 5.1..............................3
Section 1.9. Amendment of Section 6.12...............................3
Section 1.10. Amendment of Sections 8.1 and 8.6; Addition
of FII................................................4
Section 1.11. Amendment of Section 8.7; FIRPTA........................4
Section 1.12. Amendment of Section 8.8................................4
Section 1.13. New Section 8.14; Additional Undertaking................4
Section 1.14. Amendment of Section 10.2; Limitation on
Cramerton Damages.....................................4
Section 1.15. Amendment of Article XIII...............................5
Section 1.16. Addition of New Article XIV.............................5
ARTICLE II. MISCELLANEOUS PROVISIONS....................................5
Section 2.1. Effect of Amendment.....................................5
Section 2.2. Expenses................................................5
Section 2.3. Counterparts............................................5
Section 2.4. Governing Law...........................................6
Section 2.5. Headings................................................6
Section 2.6. Conflict of Terms.......................................6
EXHIBIT EXHIBIT NAME
D-1 Indemnity Agreement
E FIRPTA Certificates
SCHEDULE SCHEDULE NAME
I Article XIV
II SMT Pricing
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AMENDMENT NO.1 TO EQUITY PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO EQUITY PURCHASE AGREEMENT (the
"Amendment") is made and entered into as of December 11, 1996, by and among
JPSGP INC., a Delaware corporation ("JPSGP"), FOAMEX-JPS AUTOMOTIVE L.P., a
Delaware limited partnership ("FJPS"), FOAMEX INTERNATIONAL INC., a Delaware
corporation ("FII" and, together with JPSGP and FJPS, "Sellers"), and XXXXXXX &
XXXXXX PRODUCTS CO., a Delaware corporation ("Purchaser").
PRELIMINARY STATEMENT
WHEREAS, JPSGP, FJPS and Purchaser entered into an Equity
Purchase Agreement (the "Agreement") dated as of August 28, 1996 relating to the
purchase and sale of all of the partnership interests in JPS Automotive L.P.
(the "Company"); and
WHEREAS, the parties hereto wish to amend the Agreement in the
manner set forth in this Amendment to add FII as a Seller in the Agreement as
further set out herein and to make such other changes as are specified herein.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
AMENDMENT OF AGREEMENT
Section 1.1. Definitions.
(a) Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed to them in the Agreement.
(b) The following definition set forth in Section 1.1 of the
Agreement is amended and restated in its entirety as follows:
"Sellers" means JPSGP, FJPS, and FII.
(c) The following new definition is added to Section
1.1 of the Agreement as follows:
"FII" means Foamex International Inc.
Section 1.2. Amendment of Section 2.2.
(a) Section 2.2(a) is amended by deleting the "." at the end
of such Section, and replacing it with the following: "and FII shall
deliver to Purchaser or its designees certificates representing a
.9999% limited partnership interest in the Company (the "New LP
Interest"), duly endorsed in blank for transfer or accompanied by
appropriate powers duly executed in blank.
(b) In order to reflect the understanding of the parties in
connection with the termination of the Company's swap agreement, (i)
Section 2.2(b) is hereby amended by changing the figure "220,000,000 to
"220,125,000" and (ii) no asset or liability relating to such swap
agreement, including without limitation any receivable from Purchaser
relating to such swap agreement, will be reflected in either the Base
Line Adjusted Net Assets or the Closing Date Adjusted Net Assets under
the Agreement.
(c) Section 2.2(b) is also amended by deleting the phrase "of
which 99% shall be paid by Purchaser to FJPS and 1% shall be paid by
the Affiliate described in Section 2.2(a) hereof to JPSGP." at the end
of such Section, and replacing it with the following: "of which 99%
shall be paid by Purchaser to FJPS, .9999% shall be paid by Purchaser
to FII and .0001% shall be paid by the Affiliate described in Section
2.2(a) hereof to JPSGP."
Section 1.3. Amendment of Section 2.3(g)(iii). The second
sentence of Section 2.3(g)(iii) is amended and restated in its entirety as
follows: "Any net payment to Sellers shall be made 99% to FJPS, 0.9999% to
FII and .0001% to JPSGP."
Section 1.4. Addition of New Section 3.1(c); Authority of FII.
A new Section 3.1(c) is added to the Agreement as follows:
(a) FII is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. FII has full
corporate power and authority to execute and deliver this Agreement,
and the execution and delivery by FII of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of
FII, and this Agreement constitutes the legal, valid and binding
obligation of FII enforceable against FII in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, or similar laws from time to time in effect
which affect creditors' rights generally and by legal and equitable
limitations on the enforceability of specific remedies.
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Section 1.5. Amendment of Section 3.3; Partnership
Recapitalization. The first two sentences of Section 3.3 are deleted and
replaced with the following:
As of August 28, 1996: (a) the partnership equity of the Company is as
follows: (i) the LP Interest, which, except as set forth on Schedule
3.3, is owned solely by FJPS, and (ii) the GP Interest, which is owned
solely by JPSGP, and (b) the Company has no other partners other than
FJPS and JPSGP. As of the Closing Date: (a) the partnership equity of
the Company is as follows: (i) the LP Interest, which, except as set
forth on Schedule 3.3, is owned solely by FJPS, (ii) the New LP
Interest, which is owned solely by FII, and (ii) the GP Interest, which
is owned solely by JPSGP, and (b) the Company has no other partners
other than FJPS, FII and JPSGP. FII will have at the Closing valid and
marketable title to the New LP Interest, free and clear of any Liens,
except those arising under this Agreement and the Partnership
Agreement.
Section 1.6. Certain Litigation Matters; Schedule 3.20 and
Section 10.8.
(a) Schedule 3.20 is amended by adding the following Item 4:
"4. Claim set forth in the letter of Ruff, Bond, Xxxx, Xxxx & XxXxxx,
L.L.P. to Mr. Xxxxx Xxxxx, dated October 28, 1996 and any other claim
resulting from or arising out of the Xxxxx Industries fire in
Cramerton, North Carolina which occurred on or about October 19,
1994."
(b) Section 10.8(a) is amended by deleting the reference to
"Item 2" and replacing such reference with a reference to "Items 2 and
4."
Section 1.7. New Section 3.33. A New Section 3.33 is hereby
added to the Agreement which reads in its entirety as follows: "Section
3.33 Cramerton Claims. As of the Closing Date, to the actual knowledge of
the persons listed on Schedule 1.1, Cramerton has no claims (including,
without limitation, for money owed) against Seiren Co. Ltd. or any
Affiliates or Subsidiaries of Seiren Co. Ltd. other than (x) as reflected
on the Interim Balance Sheet, or (y) for the performance of contracts to
which Seiren is a party listed on the Schedules to the Agreement."
Section 1.8. Correction of Schedule 5.1. Schedule 5.1 to the
Agreement is hereby amended to delete Item 8 thereof, as of the date of the
Agreement.
Section 1.9. Amendment of Section 6.12. Section 6.12(a)(ii)
is amended by adding after the phrase "taking no
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action" the following: ", except pursuant to the terms of this Agreement,".
Section 1.10. Amendment of Sections 8.1 and 8.6; Addition of
FII. Sections 8.1 and 8.6 are amended by adding "and FII" after "JPSGP" in
each of such Sections.
Section 1.11. Amendment of Section 8.7; FIRPTA. Section 8.7 of
the Agreement is hereby amended to add the following at the end thereof:
"Sellers shall also cause Cramerton and Cramerton Management Corporation to
deliver a certificate to Purchaser and to Seiren Co. Ltd., Seiren U.S.A.
Corporation and Seiren Automotive Textile Corporation, dated the Closing
Date, pursuant to Section 1445 of the Code (Foreign Investment in Real
Property Tax Act of 1980 affidavit) in substantially the form of Exhibit E
attached hereto."
Section 1.12. Amendment of Section 8.8. Section 8.8 of the
Agreement is hereby amended to add at the end thereof after the words "and
on such other terms as are reasonably satisfactory to Purchaser" the
following: ", and such purchase pursuant to such definitive agreements
shall have closed prior to or simultaneously with the Closing."
Section 1.13. New Section 8.14; Additional Undertaking. A new
section 8.14 is hereby added to the Agreement which reads in its entirety
as follows: "Section 8.14. Additional Undertaking. Sellers will provide to
Seiren Co. Ltd., on or prior to the Closing Date, an undertaking in the
form of Exhibit D-1." Exhibit D-1 to the Agreement shall read in its
entirety as set forth in the Exhibit D-1 attached hereto. Purchaser shall
cause the Company and its Subsidiaries and Affiliates to cooperate
reasonably with Sellers in connection with the defense of any claim arising
out of the indemnity agreement attached hereto as Exhibit D-1, including,
without limitation, providing access to their personnel, books and records,
and making their personnel reasonably available for deposition and
testimony. Sellers will reimburse the Company and its Subsidiaries and
Affiliates for all reasonable out-of-pocket expenses incurred in connection
with such cooperation.
Section 1.14. Amendment of Section 10.2; Limitation on
Cramerton Damages. The penultimate sentence of Section 10.2(a) of the
Agreement is hereby amended and restated to read in its entirety as
follows: "Notwithstanding anything to the contrary contained in this
Agreement, but subject to the proviso at the end of this sentence, to the
extent any Damages for which Purchaser may claim indemnity (or satisfaction
of the Deductible) pursuant to this Section 10.2 relate to a breach of any
of the representations or warranties contained in Article III (other than
Section 3.5) and are due to Damages suffered by Cramerton (which are not
directly suffered by Purchaser or the Company or
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any other Subsidiary of the Company other than Cramerton), Sellers shall
only be obligated to indemnify Purchaser and its Affiliates for (or reduce
the remaining portion of the Deductible by) 80% of the total Damages
suffered by Cramerton; provided, however, that if such Damages relate to a
breach which is not also a breach of the representations and warranties of
Seiren U.S.A. Corporation, Seiren Automotive Textile Corporation and Seiren
Co. Ltd. (collectively, "Seiren") in Article III of that certain Equity
Purchase Agreement, dated as of December 11, 1996 between Purchaser and
Seiren, then Sellers shall be obligated to indemnify Purchaser and its
Affiliates for (or reduce the remaining portion of the Deductible by) 100%
of the total Damages suffered by Cramerton relating to such a breach."
Section 1.15. Amendment of Article XIII. Article XIII is
amended as follows:
(a) All references in Article XIII to "Sellers" shall be
replaced with "JPSGP and FJPS".
(b) Section 13.2 is amended by deleting from the first
sentence the phrase "is the exclusive remedy of Purchaser against
Guarantor and".
(c) Section 13.3 is amending by replacing "hereunder" with
"under this Article XIII."
Section 1.16. Addition of New Article XIV. A new Article XIV
in the form set forth as Schedule I to this Amendment is hereby added to
the Agreement.
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.1. 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 2.2. Expenses. Except as expressly set forth herein,
each party to this Amendment shall bear all of its legal, accounting, and other
expenses incurred by it or on its behalf in connection with the transactions
contemplated by this Amendment.
Section 2.3. Counterparts. This Amendment may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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Section 2.4. Governing Law. This Amendment shall be governed
by and construed in accordance with the internal laws of the State of New York,
without giving effect to conflicts of law principles.
Section 2.5. Headings. The headings of the several sections of
this Amendment are inserted for convenience only and shall not in any way affect
the meaning or construction of this Amendment.
Section 2.6. Conflict of Terms. In the event of any
inconsistency between the provisions of this Amendment and any provision of the
Agreement the terms and provisions of this Amendment shall govern and control.
[The rest of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Sellers and Purchaser have executed and
delivered this Amendment as of the day and year first written above.
SELLERS: FOAMEX-JPS AUTOMOTIVE L.P.
BY: FJGP Inc.
Its: General Partner
BY:
Name:
Title:
JPSGP INC.
BY:
Name:
Title:
FOAMEX INTERNATIONAL INC.
BY:
Name:
Title:
PURCHASER: XXXXXXX & XXXXXX PRODUCTS CO.
BY:
Name:
Title:
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