Exhibit 2.2
ADDENDUM TO ASSET PURCHASE AGREEMENT
THIS ADDENDUM TO ASSET PURCHASE AGREEMENT, dated as of October 1, 1997
is made by and among GENERAL FELT INDUSTRIES, INC., a Delaware corporation
("GFI"), FOAMEX L.P., a Delaware limited partnership ("FLP"), and BRETLIN, INC.,
a Georgia corporation, ("Buyer") and THE XXXXX GROUP, INC., a Tennessee
corporation ("Dixie").
W I T N E S S E T H:
WHEREAS, the parties have previously entered into and are parties to
that certain Asset Purchase Agreement dated as of August 29, 1997 (the
"Agreement"); and
WHEREAS, such parties desire that the Agreement be supplemented and
amended and that the form of the Supply Agreement to be entered into by GFI and
Buyer at Closing shall be amended by the provisions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual promises
and conditions contained herein, and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All capitalized terms shall have the meanings ascribed
to them in the Agreement or the Supply Agreement, as applicable, unless
otherwise defined herein.
2. Triggering Event. The parties hereto acknowledge and agree that a
Triggering Event occurred during September 1997 and that the first month in the
Fee Payment Period shall be October 1997. The parties hereto further agree that
notwithstanding the first sentence of Section 2.4(d) of the Supply Agreement, at
Closing the maximum possible aggregate Monthly Termination Fee payable from the
Closing Date through September 30, 2000 shall be either placed in Escrow or
provided in the form of an LC pursuant to Section 2.4 of the Supply Agreement.
If an Escrow is utilized, GFI shall subsequently be entitled to substitute an
LC, and vice versa. No further notice of such Triggering Event shall be required
pursuant to Section 2.4(c) of the Supply Agreement. Such Triggering Event shall
be deemed to be continuing from and after the date hereof and the parties hereto
agree that no event other than a Permitted Termination under Section 2.4(b)(i)
of the Supply Agreement may have any effect on the continuation of such
Triggering Event. The parties hereto acknowledge and agree that no Permitted
Termination under Section 2.4(b) has occurred prior to the date hereof. In
addition, the parties agree that Sections 2.4(b)(ii) and 2.4(b)(iii) shall be
deleted from the form of the Supply Agreement to be executed by GFI and Bretlin
at Closing. The second sentence of Section 2.4(e) of the Supply Agreement is
hereby amended by adding both (i) before the phrase "of Products" and (ii) after
the phrase "Customer and its Affiliates" the phrase "and their respective
successors and assigns." The first sentence of Section 2.4(f) of the Supply
Agreement is hereby amended by adding after the phrase "Customer and its
Affiliates" the phrase "and their respective successors and assigns."
3. Indemnification. The $250,000 limitation set forth in Section 15.6
of the Agreement shall not be applicable to any Losses incurred by Buyer or
Xxxxx arising out of any claim by Habitat relating to the Agreement (including
entering into the Supply Agreement), the Habitat APA or the Supply Agreement
between Habitat and GFI dated as of October 31, 1996, including, but not limited
to, any Losses resulting from Habitat International, Inc. vs. General Felt
Industries, Inc. and Bretlin, Inc., Superior Court of Xxxxxx County, State of
Georgia, Civil Action Number E-61978 (the "Action").
4. Defense of the Action. Buyer consents to the immediate removal of
the Action to federal court.
5. Closing Date. The parties agree that the Closing Date shall be
October 6, 1997 or as soon thereafter as practicable but in no event later than
October 14, 1997 provided that all conditions to Closing set forth in Articles
XII and XIII of the Agreement have been met or waived.
6. Binding Effect and Benefit. The parties agree that this Addendum is
in full compliance with Section 17.7 of the Agreement and is a valid
modification and supplement to the Agreement which shall inure to the benefit
of, and shall be binding upon, the parties, their heirs, successors and
permitted assigns.
7. Incorporation. Sections 17.3 through 17.17 of the Agreement
are incorporated herein as if fully set forth herein.
IN WITNESS WHEREOF, the parties have executed this Addendum the day and
year aforesaid.
GFI:
GENERAL FELT INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
FLP:
FOAMEX L.P.
By FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
BUYER:
BRETLIN, INC.
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
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XXXXX:
THE XXXXX GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
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