EXHIBIT 10(x)
AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT (this "Amendment"),
dated as of March 19, 2002, is entered into by and among Fruit of the Loom,
Ltd., a Cayman Islands company, Fruit of the Loom, Inc., a Delaware corporation,
Union Underwear Company, Inc., a New York corporation (collectively, "Sellers"),
FTL Caribe, Ltd., a Cayman Islands company ("FTL Caribe"), New FOL Inc., a
Delaware corporation ("Purchaser"), and Berkshire Hathaway Inc., a Delaware
corporation ("Berkshire").
RECITALS
WHEREAS, Sellers, FTL Caribe, Purchaser, and Berkshire previously
entered into an Asset Purchase Agreement, dated as of November 1, 2001 (as
amended or modified from time to time, the "Asset Purchase Agreement"), and have
subsequently amended the Asset Purchase Agreement twice; and
WHEREAS, Sellers, FTL Caribe, Purchaser, and Berkshire wish to further
amend the Asset Purchase Agreement as provided below in connection with
amendments to the Plan and to the Disclosure Statement to be filed with the U.S.
Bankruptcy Court pursuant to that certain Settlement Agreement, dated as of
March 19, 2002, among Sellers, their chapter 11 debtor affiliates, and an ad hoc
committee of unsecured bondholders (the "Settlement Agreement");
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
AGREEMENT
1. Amendment to Definition of "Funding Deficit". If the U.S.
Bankruptcy Court approves the amendments to the Disclosure Statement made
pursuant to the Settlement Agreement in the form filed with the U.S. Bankruptcy
Court on March 19, 2002 (the "Disclosure Amendments"), the definition of
"Funding Deficit" in Section 1.04(e) of Sellers' Disclosure Schedule will be
amended as of the date of such approval, without any further action by the
parties hereto being necessary, to (a) insert ", and" at the end of clause (2)
thereof and (b) insert the following as clause (3) thereof: "(3) subtracting
$7,650,000 from the product computed pursuant to clause (2) above."
2. Additional Covenant of Purchaser. If the U.S. Bankruptcy Court
approves the Disclosure Amendments, Article V of the Asset Purchase Agreement
will be amended as of the date of such approval, without any further action by
the parties hereto being necessary, to add the following provision as Section
5.08 thereof:
"5.08 Xxxxxx Xxxxx Up Reserve. If (a) a Xxxxxx Claim, or any
portion thereof, is Allowed by Final Order as a Class 4A claim under
the Plan and (b) the Unsecured Creditors Trust determines that the
Plan and attendant documents require that it make a distribution to
Xxxxxx on account of the Xxxxxx Claim, then Purchaser will at that
time, at the written request of the FOL Liquidation Trust,
contribute to the FOL Liquidation Trust, for distribution under
Section 7.17.3 of the Plan, an amount equal to 45% of the amount
equal to 5.42 cents per $1.00 of the Allowed Xxxxxx Claim, provided,
however, that the Pre-Petition Secured Creditors concurrently
contribute (or have previously contributed into a reserve) an amount
equal to 55% of such amount, and provided further that the maximum
amount that Purchaser will be required by this Section to contribute
will be $1,269,000. Capitalized terms used in this section and not
defined in this Agreement have the meanings ascribed to them in the
Plan."
3. Amendment to Section 1.09. Section 1.09 of the Asset Purchase
Agreement is hereby amended to add the following as the final sentence thereof:
"In addition, such Seller, a Transferred Subsidiary or, with respect
to those items as to which Union is a party, Newco LLC may assume
such Business Contracts, Real Property Leases, Personal Property
Leases, and Leases that are not listed on Section 1.09 of Sellers'
Disclosure Schedule but which Xxxx Xxxxxxx, in his reasonable
business judgment, determines it is in the best interests of the
ongoing Business to assume and for which no cure or other cost is
associated with the assumption."
4. No Other Changes. Except as expressly set forth above, all of the
provisions of the Asset Purchase Agreement shall remain in full force and
effect. If the U.S. Bankruptcy Court does not approve the Disclosure Amendments
on or before March 29, 2002 or the Settlement Agreement terminates pursuant to
its terms, Sections 1 and 2 of this Amendment will terminate and be of no force
or effect, and the rights of the parties to the Asset Purchase Agreement will be
as they would have been had Sections 1 and 2 of this Amendment never been
entered into.
5. Certain Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Asset Purchase Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
FRUIT OF THE LOOM, LTD.
By: /s/ Xxxx X. Xxx III
-----------------------------------
Name: Xxxx X. Xxx III
Title: Chief Administrative Officer
FRUIT OF THE LOOM, INC.
By: /s/ Xxxx X. Xxx III
-----------------------------------
Name: Xxxx X. Xxx III
Title: Chief Administrative Officer
UNION UNDERWEAR COMPANY, INC.
By: /s/ Xxxx X. Xxx III
-----------------------------------
Name: Xxxx X. Xxx III
Title: Chief Administrative Officer
FTL CARIBE, LTD.
By: /s/ Xxxx X. Xxx III
-----------------------------------
Name: Xxxx X. Xxx III
Title: Chief Administrative Officer
NEW FOL INC.
By: /s/ Xxxx X. Hamburg
-----------------------------------
Name: Xxxx X. Hamburg
Title: President
BERKSHIRE HATHAWAY INC.
By: /s/ Xxxx X. Hamburg
-----------------------------------
Name: Xxxx X. Hamburg
Title: Vice President and Chief
Financial Officer
