EXHIBIT 3.7
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF JPS AUTOMOTIVE L.P.
DATED AS OF DECEMBER 11, 1996
BY AND AMONG
JPSGP INC.,
XXXXXXX & XXXXXX PRODUCTS CO.,
PACJ, INC.,
FOAMEX-JPS AUTOMOTIVE L.P.
AND
FOAMEX INTERNATIONAL INC.
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF JPS AUTOMOTIVE L.P.
This Second Amendment (the "Amendment") is made as of December
11, 1996, by and among JPSGP Inc., a Delaware corporation ("JPSGP"), Xxxxxxx &
Xxxxxx Products Co., a Delaware corporation ("C&A"), PACJ, Inc., a Delaware
corporation ("PACJ"), Foamex-JPS Automotive L.P., a Delaware limited partnership
("FJPS"), and Foamex International Inc., a Delaware corporation ("FII"), and
amends the First Amended and Restated Agreement of Limited Partnership of JPS
Automotive L.P. (the "Partnership"), dated as of June 27, 1994, as amended by
the First Amendment to the First Amended and Restated Agreement of Limited
Partnership of JPS Automotive dated December 11, 1996 (as so amended, the
"Partnership Agreement"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the
Partnership Agreement.
WHEREAS, JPSGP owns a 0.0001% general partnership interest,
FII owns a 0.9999% limited partnership interest and FJPS owns a 99% limited
partnership interest in the Partnership;
WHEREAS, pursuant to the terms and conditions of the Equity
Purchase Agreement, dated as of August 28, 1996, as amended (the "Equity
Purchase Agreement"), by and among JPSGP, FJPS, FII and C&A ("Purchaser"),
JPSGP, FII and FJPS have agreed to sell their respective Partnership Interests
to Purchaser; and
WHEREAS, the Partners wish to amend the Partnership Agreement
to (i) admit C&A as a limited partner of the Partnership, (ii) admit PACJ as a
general partner of the Partnership, (iii) provide for the withdrawal of FJPS and
FII as limited partners of the Partnership, (iv) provide for the withdrawal of
JPSGP as a general partner of the Partnership 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 amend the Partnership Agreement as follows:
Section 1. Authority; Execution of Transaction Documents.
Notwithstanding any of the terms or provisions of the Partnership Agreement, the
Partnership and the 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 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 (collectively, the "Transaction Documents"). All acts by
the Partnership and the General Partner heretofore taken on behalf of the
Partnership which are in accordance with this Section 1 are hereby approved,
ratified and confirmed in all respects and for all purposes.
Section 2. General Consent and Waiver. Notwithstanding any of
the terms or provisions of the Partnership Agreement, each of the parties hereto
hereby consents to all actions that are necessary or desirable to effectuate the
consummation of any and all of the transactions contemplated in the Transaction
Documents to the fullest extent necessary or desirable so as not to cause a
violation of or conflict with any provision of the Partnership Agreement and
hereby waives any and all rights it may have to challenge such transactions.
Section 3. Transactions. In furtherance of and in addition to
the general consents and waivers granted by the parties hereto in Section 2, and
without limiting in any way the scope of such consents and waivers:
(a) Admission of C&A. Notwithstanding any of the terms or
provisions of the Partnership Agreement to the contrary, upon the
transfer by FJPS to C&A of its 99% limited partnership interest in the
Partnership and by FII to C&A of its 0.9999% limited partnership
interest in the Partnership and upon the execution and delivery of this
Amendment, C&A shall be and hereby is admitted to the Partnership as a
limited partner of the Partnership. C&A, as a limited partner of the
Partnership, hereby agrees to be bound by the terms and conditions of
the Partnership Agreement and this Amendment and to assume the
obligations of FJPS and FII, as limited partners, arising under or in
connection with the Agreement.
(b) Admission of PACJ. Notwithstanding any of the terms or
provisions of the Partnership Agreement to the contrary, upon the
transfer by JPSGP to PACJ of its general partnership interest in the
Partnership, and upon the execution and delivery of this Amendment,
PACJ shall be and hereby is admitted to the Partnership as a general
partner of the Partnership. PACJ, as general partner of the
Partnership, hereby agrees to be bound by the terms and conditions of
the Partnership Agreement and this Amendment and to assume the
obligations of JPSGP, as general partner, arising under or in
connection with the Partnership Agreement.
(c) Withdrawal of FJPS. Notwithstanding any of the terms or
provisions of the Partnership Agreement to the contrary, upon the
execution and delivery of this Amendment, FJPS shall withdraw from the
Partnership as a Partner and
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from and after the date hereof shall cease to be a limited partner
of the Partnership or have the power to xercise any right or power
as a limited partner of the Partnership. For purposes of this
Amendment, the admission of C&A pursuant to Section 3(a) is deemed to
occur immediately prior to the withdrawal of FJPS pursuant to this
Section 3(c).
(d) Withdrawal of JPSGP. Notwithstanding any of the terms or
provisions of the Partnership Agreement to the contrary, upon the
execution and delivery of this Amendment, JPSGP shall withdraw from the
Partnership as a Partner and from and after the date hereof shall cease
to be a general partner of the Partnership or have the power to
exercise any right or power as general partner of the Partnership. For
purposes of this Amendment, the admission of PACJ pursuant to Section
3(b) is deemed to occur immediately prior to the withdrawal of JPSGP
pursuant to this Section 3(d).
(e) Withdrawal of FII. Notwithstanding any of the terms or
provisions of the Partnership Agreement to the contrary, upon the
execution and delivery of this Amendment, FII shall withdraw from the
Partnership as a Partner and from and after the date hereof shall cease
to be a limited partner of the Partnership or have the power to
exercise any right or power as a limited partner of the Partnership.
For purposes of this Amendment, the admission of C&A pursuant to
Section 3(a) is deemed to occur immediately prior to the withdrawal of
FII pursuant to this Section 3(e).
(f) Continuation of Partnership. The parties hereto agree that
the consummation of the transactions contemplated in this Amendment,
the admission of C&A as a limited partner of the Partnership and PACJ
as a general partner of the Partnership, the withdrawal of FJPS and FII
as limited partners of the Partnership and the withdrawal of JPSGP as
general partner of the Partnership will not dissolve the Partnership
and that the business of the Partnership shall be continued by the
newly appointed General Partner.
Section 4. Release of JPSGP, FII and FJPS; Absence of
Liability; Indemnification.
(a) The Partnership hereby consents to the withdrawal of
JPSGP, FII and FJPS from the Partnership and hereby releases JPSGP, FII
and FJPS from any and all duties, obligations and liabilities as
general partner and limited partners, respectively of the Partnership.
(b) To the fullest extent permitted by law, the Partnership
shall indemnify JPSGP, FII and FJPS, their officers, directors and
employees against all expenses (including attorney's fees, judgments
and amounts paid in settlement) actually and reasonably incurred by any
of them in connection with any threatened, pending or completed
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action, suit or proceeding against any of them or by, against or in the
right of the Partnership to which any of them was or is a party, or is
threatened to be made a party, involving an alleged cause of action
arising out of, or in any way related to or connected with (i) the
business or internal affairs of the Partnership, if, in the transaction
giving rise to such action, suit or proceeding, JPSGP, FII and/or FJPS
acted in good faith, without gross negligence or willful misconduct or
the willful breach of the Partnership Agreement and in a manner JPSGP,
FII and/or FJPS reasonably believed to be both within the scope of its
authority and in the best interest of the Partnership or (ii) any act
or omission of FJPS or of FII as a limited partner. Notwithstanding any
other provision of the Partnership Agreement, in no event shall FJPS,
JPSGP or FII be entitled to indemnification pursuant to this Section 4
for the amount of any indemnification required to be provided by any of
them under the Equity Purchase Agreement.
(c) To the fullest extent permitted by law, the Partnership
may pay the expenses incurred by JPSGP, FII and/or FJPS in defending a
civil or criminal action in advance of the final disposition of such
action; provided, that JPSGP, FII and/or FJPS undertakes to repay such
expenses if it is adjudicated not to be entitled to indemnification
under this Section 4.
Section 5. Effect of Amendment. On and after the date hereof,
each reference in the Partnership Agreement to "this Agreement", "hereof",
"hereunder" or words of like import referring to the Partnership Agreement shall
mean and be a reference to the Partnership Agreement as amended by this
Amendment. The Partnership 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 6. 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 and the Transaction Documents. Notwithstanding anything to the
contrary contained in the Partnership Agreement or in any of the Transaction
Agreements, each of the parties hereto hereby consents to any and all of the
transactions contemplated by this Amendment and the Transaction Documents to the
extent necessary so as not to cause a default or event of default under such
documents.
Section 7. 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
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party granting such waiver, but such waiver or failure to insist upon
strict compliance with such obligation, representation, warranty,
covenant, agreement or condition shall not operate as a waiver of or estoppel
with respect to any subsequent or other failure.
Section 8. 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 9. 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 hereto 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 10. 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 11. 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 Partnership Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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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.
JPSGP INC.,
as Withdrawing General Partner
/s/ Xxxxxx X. Xxxxx, Xx.
By: Xxxxxx X. Xxxxx, Xx.
Title: Vice President and Secretary
FOAMEX-JPS AUTOMOTIVE L.P.,
as a Withdrawing Limited Partner
By: FJGP INC.
Its: General Partner
/s/ Xxxxxx X. Xxxxx, Xx.
By: Xxxxxx X. Xxxxx, Xx.
Title: Vice President and Secretary
FOAMEX INTERNATIONAL INC.
as a Withdrawing Limited Partner
/s/ Xxxxxx X. Xxxxx, Xx.
By: Xxxxxx X. Xxxxx, Xx.
Title: Vice President and Secretary
PACJ, INC.
as General Partner
/s/ J. Xxxxxxx Xxxxx
By: J. Xxxxxxx Xxxxx
Title: Executive Vice President and
Chief Financial Officer
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XXXXXXX & XXXXXX PRODUCTS CO.
as Limited Partner
/s/ J. Xxxxxxx Xxxxx
By: J. Xxxxxxx Xxxxx
Title: Executive Vice President
and Chief Financial Officer
JPS AUTOMOTIVE L.P.
By: PACJ, INC.
Its: General Partner
/s/ J. Xxxxxxx Xxxxx
By: J. Xxxxxxx Xxxxx
Title: Executive Vice President
and Chief Financial Officer
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