EXHIBIT (2)
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and entered into this
17th day of December, 2003 (the "Effective Date"), by and among TEXTILES ZANA,
S.A. DE C.V., a Mexican corporation ("TZ"), AMERICAN TEXTIL, S.A. DE C.V., a
Mexican corporation ("AT"), SERVICIOS CORPORATIVOS AMBAR, S.A. DE C.V. ("SCA"),
and XXXXXXXX XXXXX, INC., a Delaware corporation ("Guilford").
W I T N E S S E T H:
WHEREAS, TZ is owned entirely by Xxxxxx Xxxxxxxxxxx Cvilich
("Zaidenweber") and Xxxxxxx Nabielsky Xxxxxxxx ("Nabielsky", and together with
Zaidenweber, the "Principals"); and
WHEREAS, Guilford is the owner of all of the outstanding equity
interests in American Textil Acquisition, LLC, a North Carolina limited
liability company ("Acquisition LLC"); and
WHEREAS, Acquisition LLC is the owner of Twenty Million Eight Hundred
and Thirteen Thousand Five Hundred Twenty-Three (20,813,523) shares of the
common stock of AT, and Six Million Seven Hundred and Twenty Thousand Two
Hundred Twelve (6,720,212) shares of the common stock of SCA; and
WHEREAS, Guilford desires to sell to TZ, and TZ desires to purchase from
Guilford, all of Guilford's outstanding equity interests in Acquisition LLC (the
"Purchased Interests") on the terms and conditions set forth herein; and
WHEREAS, Guilford de Mexico, S.A. de C.V. ("NewGuilford") is an entity
organized under the laws of Mexico and a wholly owned subsidiary of Guilford.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and premises set forth herein, the parties hereto agree as follows:
1. PURCHASE AND SALE OF PURCHASED INTERESTS. Guilford hereby sells,
assigns, transfers and conveys to TZ, and TZ hereby purchases and accepts from
Guilford, all of Guilford's rights, title and interest in and to the Purchased
Interests, as evidenced by Guilford's and TZ's execution of the Assignment of
Membership Interest, dated the date hereof, the form of which is attached hereto
as Exhibit A. The consideration for Guilford's sale to TZ of the Purchased
Interests is (i) TZ's payment to Guilford of One Dollar ($1.00), (ii) the
execution of the Loan Agreement (as hereinafter defined in Section 2), (iii) the
execution, delivery and performance of the Release Agreements, the Assignment of
Collection Rights, the Supply Agreement, the Noncompetition Agreement, the
Information Technology Agreement and the Administrative Services Agreement (as
such terms are defined hereunder) by the appropriate parties thereto and (iv)
the performance by TZ, AT and SCA of all of their other obligations hereunder.
2. INTERCOMPANY PAYABLES. As of the Effective Date, AT is indebted to
Guilford in the amount of Four Hundred Thousand and No/100 Dollars
($400,000.00). Simultaneously with the execution of this Agreement, AT, SCA, TZ
and Guilford shall enter into and execute a Loan Agreement with Promissory Note
attached, to be delivered by AT, SCA and TZ in the form attached hereto as
Exhibit B (collectively, the "Loan Agreement") to Guilford evidencing such debt.
The principal balance due under the terms of the Loan Agreement shall be
increased to include any other amounts owed by any of AT, SCA or TZ to Guilford
upon the termination of the Supply Agreement (as defined in Section 5 below).
3. RELEASE AGREEMENTS.
(a) Simultaneously with the execution of, and as a condition to, this
Agreement, each of Guilford and Zaidenweber are executing and delivering to each
other a Release Agreement, the form of which is attached hereto as Exhibit C-1
(the "Zaidenweber Release Agreement"). Each of the parties hereto acknowledges
that the execution, delivery and performance of the Zaidenweber Release
Agreement by Guilford and Zaidenweber are part of the consideration for the
others' willingness to enter into this Agreement.
(b) Simultaneously with the execution of, and as a condition to, this
Agreement, each of Guilford and Nabielsky are executing and delivering to each
other a Release Agreement, the form of which is attached hereto as Exhibit C-2
(the "Nabielsky Release Agreement"). Each of the parties hereto acknowledges
that the execution, delivery and performance of the Nabielsky Release Agreement
by Guilford and Nabielsky are part of the consideration for the others'
willingness to enter into this Agreement.
(c) Simultaneously with the execution of, and as a condition to, this
Agreement, each of Guilford and TZ, AT, and SCA are executing and delivering to
each other a Release Agreement, the form of which is attached hereto as Exhibit
C-3 (the "TZ Release Agreement" and collectively with the Zaidenweber Release
Agreement and the Nabielsky Release Agreement, the "Release Agreements"). Each
of the parties hereto acknowledges that the execution, delivery and performance
of the TZ Release Agreement by Guilford, TZ, AT and SCA are part of the
consideration for others' willingness to enter into this Agreement.
4. ASSIGNMENT OF COLLECTION RIGHTS. Simultaneously with the execution of
this Agreement, each of Guilford and AT are executing and delivering to each
other the Assignment of Collection Rights, the form of which is attached hereto
as Exhibit D (the "Assignment of Collection Rights"). Each of the parties hereto
acknowledges that the execution, delivery and performance of the Assignment of
Collection Rights by Guilford and AT are part of the consideration and
conditions precedent to the others' willingness to enter into this Agreement.
5. EXCLUSIVE SUPPLY AGREEMENT. Simultaneously with the execution of this
Agreement, each of Guilford, NewGuilford, AT, SCA, Acquisition LLC and TZ are
executing and delivering to each other the Exclusive Supply Agreement, the form
of which is attached hereto as Exhibit E (the "Supply Agreement"). Each of the
parties hereto acknowledges that the execution, delivery and performance of the
Supply Agreement by Guilford, NewGuilford, AT,
SCA, Acquisition LLC and TZ are part of the consideration for and conditions
precedent to the others' willingness to enter into this Agreement.
6. NONCOMPETITION AGREEMENT. Simultaneously with the execution of this
Agreement, each of Guilford, NewGuilford, TZ, AT, SCA, Acquisition LLC and the
Principals are executing and delivering to each other the Noncompetition
Agreement, the form of which is attached hereto as Exhibit F (the
"Noncompetition Agreement"). Each of the parties hereto acknowledges that the
execution, delivery and performance of the Noncompetition Agreement by Guilford,
NewGuilford, TZ, AT, SCA, Acquisition LLC and the Principals are part of the
consideration for and conditions precedent to each other party's willingness to
enter into this Agreement.
7. INFORMATION TECHNOLOGY AGREEMENT. Simultaneously with the execution
of this Agreement, each of Guilford, AT, SCA and TZ are executing and delivering
to each other the Information Technology Agreement, the form of which is
attached hereto as Exhibit G (the "Information Technology Agreement"). Each of
the parties hereto acknowledges that the execution, delivery and performance of
the Information Technology Agreement by Guilford, AT, SCA and TZ are part of the
consideration for and conditions precedent to the others' willingness to enter
into this Agreement.
8. ADMINISTRATIVE SERVICES AGREEMENT. Simultaneously with the execution
of this Agreement, each of AT, SCA, TZ, Guilford de Altamira, S.A. de C.V.
("Altamira") and Guilford de Tamaulipas, S.A. de C.V. ("Tamaulipas") are
executing and delivering to each other the Administrative Services Agreement,
the form of which is attached hereto as Exhibit H (the "Administrative Services
Agreement"). Each of the parties hereto acknowledges that the execution,
delivery and performance of the Administrative Services Agreement by AT,
Altamira and Tamaulipas, are part of the consideration for and conditions
precedent to each other's willingness to enter into this Agreement.
9. ANTI-TRUST APPROVAL; SHAREHOLDER RELEASE; AT AND SCA EMPLOYEES.
(a) Anti-Trust Approval. The parties acknowledge and agree that the sale
of the Purchased Interests is contingent upon the receipt of the approval of
certain Mexican government anti-trust authorities (the "Anti-Trust
Authorities"). The parties further acknowledge and agree that they are
proceeding with such sale and the closing of the transactions and agreements
that are described herein and that are the consideration for the sale of the
Purchased Interests prior to obtaining the approval of the Anti-Trust
Authorities. The parties believe it is in their best interests to agree to a
procedure that will mitigate the damages to all parties if the approval of the
Anti-Trust Authorities is not obtained. Therefore, the parties agree that, in
the event that the Anti-Trust Authorities do not approve the sale of the
Purchased Interests:
(i) The parties will use their commercially reasonable best
efforts to modify the transactions described herein and
in the other documents related hereto that form a part
hereof such that the approval of the Anti-Trust
Authorities can be obtained.
(ii) If the transactions described herein and in the other
documents related hereto that form a part hereof cannot
be modified in accordance with Section 9(a)(i), to the
extent commercially reasonable, the business
relationship of the parties shall be restored to that
which was in place immediately prior to the Effective
Date. Specifically:
(A) The Assignment of Membership Interest shall be
null and void, and the parties thereto shall
execute and deliver all other documents or
instruments necessary to reinstate Guilford's
title to and ownership of the Purchased
Interests;
(B) The Supply Agreement shall be terminated and
Section 7(a) of the Supply Agreement shall be
null and void;
(C) Any Deposit (as defined in the Supply Agreement)
shall be added to the Loan Agreement and TZ
shall be released of its obligations under the
Loan Agreement;
(D) The Noncompetition Agreement shall be null and
void;
(E) The Release Agreements shall be null and void;
(F) The Information Technology Agreement shall be
terminated; provided, however, that AT shall
remain liable to Guilford for any amounts owed
by AT to Guilford for the period prior to such
termination; and
(G) Section 1 of this Agreement shall be null and
void.
(b) Shareholder Release. TZ, AT, and SCA acknowledge that Guilford's
willingness to enter into the sale of the Purchased Interests and the closing of
the other transactions and agreements that are described herein and that are the
consideration for the sale of the Purchased Interests is expressly conditioned
upon the release by the shareholders of AT and SCA of Xxxx Xxxxxx from any and
all liability to AT and SCA for acts or omissions with respect to Xx. Xxxxxx'x
service as a director to AT, GA and/or SCA. TZ, AT and SCA further acknowledge
and agree that Guilford is proceeding with such sale and the closing of such
transactions and agreements prior to obtaining such a release and is relying on
the assurances of TZ, AT and SCA that such a release will be obtained
immediately after the Effective Date.
(c) AT and SCA Employees.
(i) Subject to the terms of this Section 9(c), the parties
acknowledge and agree that Guilford intends to cause one
of its subsidiaries to offer employment to those
employees of SCA and AT set forth on Schedule 9(c) (the
"Designated Employees") and that any such offer is
contingent upon such Designated Employee's voluntary
resignation from AT or SCA,
as applicable, and the execution of a Waiver (as defined
in Section 9(c)(iii) below). AT and SCA represent and
warrant to Guilford that Schedule 9(c) accurately
reflects and states the annual base salary of each of
the Designated Employees immediately prior to the
Effective Date.
(ii) Guilford may elect to delay the hiring of the Designated
Employees past the Effective Date but no later than
January 15, 2004. In such event, each of AT and SCA, as
applicable, will lease the services of the Designated
Employees to Guilford. Guilford shall be entitled to the
use of the full services of the Designated Employees
during the lease period, and such Designated Employees
shall remain in the employment of AT and SCA, unless
otherwise directed by Guilford. Guilford shall be
entitled to determine the salary and/or wages paid to
the Designated Employees during the lease period. In
consideration for its lease of the Designated Employees,
Guilford will pay to SCA and AT, as applicable, all of
SCA and AT's actual costs and expenses related to the
employment of such Designated Employees during the lease
term and consistent with past practices, including such
amounts paid for wages, salary, and benefits consistent
with past benefits afforded to those Designated
Employees. Guilford will provide SCA and AT five (5)
days written notice prior to the time Guilford wishes to
terminate this lease relationship and hire the
Designated Employees in accordance with Section 9(c)(i)
above.
(iii) At such time as any Designated Employee is hired by
Guilford's subsidiary, and as a condition to such
Designated Employee being hired by Guilford's
subsidiary, the Designated Employee will execute a
waiver of severance benefits (the "Waiver") pursuant to
which such Designated Employee waives any entitlements
to severance benefits or similar entitlements arising
with respect to the Designated Employee's hiring by
Guilford's subsidiary or termination by SCA or AT, as
applicable, whether such benefits arise by operation of
law, contract or otherwise. In the event any Designated
Employee hired by Guilford's designated subsidiary does
not execute a Waiver and makes a claim for severance
benefits, SCA and AT shall be solely and directly liable
for paying any such benefits to which such employee is
entitled.
(iv) Except as otherwise provided in this Section 9(c),
Guilford shall give those employees referenced in
Schedule 9(c) and hired by Guilford's subsidiary credit
for the period such employees worked with AT or SCA for
purposes of calculating such person's entitlements to
employee benefits; provided, however, that Guilford
shall not be liable for any salary, wages or severance
benefits owed to those employees during the period they
worked for AT or SCA, as applicable.
(v) Notwithstanding the foregoing, as long as the
Non-competition Agreement remains in force, Guilford,
NewGuilford and any of their Affiliates shall
not offer employment to, or hire any of the employees
of, AT or SCA, and AT and SCA shall not offer employment
to, or hire any of the employees of, Guilford,
NewGuilford or any of their Affiliates.
10. GUILFORD TO RETAIN INTELLECTUAL PROPERTY. Each of TZ, AT and SCA
(the "AT Group") hereby acknowledges that Intellectual Property (as defined
below) of Guilford and Guilford's subsidiaries and affiliated companies may have
been made available to or shared with the AT Group as part of the ongoing
business relationship between Guilford and the AT Group. Each of the AT Group,
jointly and severally, hereby acknowledges and agrees that, to the extent that
any Intellectual Property of Guilford or Guilford's subsidiaries and affiliated
companies has been made available to or shared with the AT Group, such
Intellectual Property shall be retained by Guilford or such subsidiary or
affiliated company, as applicable, and that (a) none of the AT Group has any
ownership or proprietary rights or interest in such Intellectual Property of
Guilford, (b) except as set forth in the Information Technology Agreement, none
of the AT Group has any license or other right to use such Intellectual Property
without the prior written consent of Guilford, and (c) none of the AT Group has
any right to transfer, assign, license, sublicense, loan or disclose to or share
with any other Person any of Guilford's Intellectual Property without the prior
written consent of Guilford, such prior written consent to be granted or
withheld by Guilford, in Guilford's sole discretion and for any reason. For
purposes of this Section 10, "Intellectual Property" means, whether exclusively
or nonexclusively, (i) all patent rights and all right, title and interest in
and to all letters patent and applications for letters patent, industrial
models, industrial designs, xxxxx patents, patents of importation, utility
models, certificates of invention and other government issued or granted indicia
of invention ownership including any reissue, division, continuation or
continuation-in-part applications throughout the world; (ii) all rights, title
and interest in and to all trade secrets and trade secret rights arising under
any law (including common law); (iii) all copyright rights, and all other author
rights whether or not copyrightable; and all rights, title and interest in and
to all copyrights, copyright registrations, certificates of copyright and
copyrighted interests throughout the world; (iv) all rights, title and interest
in and to all know-how and show-how whether or not protectable by patent,
copyright or trade secret law, or as a registered xxxx work; (v) all trademarks,
trade names and service marks, whether registered or arising under the common
law or any other law, and all registrations thereof and interests therein
throughout the world; (vi) licenses and/or rights to use or ownership of any
computer programs, operating systems or other software (including source code
and object code), including, without limitation, off-the-shelf or modified
for-hire programs or software; and (vii) all of the foregoing rights with
respect to work of employees or independent contractors.
11. REPRESENTATIONS AND WARRANTIES.
(a) Guilford's Representations and Warranties. Guilford hereby
represents and warrants to TZ that, as of the Effective Date:
(i) Guilford is duly organized, validly existing and in good
standing under the laws and regulations of the state of
Delaware;
(ii) Guilford has the corporate power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder;
(iii) The execution and delivery of and performance under this
Agreement by Guilford have been duly authorized by all
necessary corporate action;
(iv) There are no actions, suits or proceedings pending
against or affecting Guilford before any court,
governmental department, commission, board, bureau or
agency which would have a material adverse affect on the
ability of Guilford to perform its obligations under
this Agreement;
(v) Guilford possesses good title to the Purchased
Interests, free and clear of all liens, encumbrances,
and claims whatsoever, and upon consummation of the
purchase and sale of the Purchased Interests as provided
herein, TZ shall obtain good and marketable title to the
Purchased Interests, free and clear of all liens,
encumbrances, and claims whatsoever; and
(vi) Guilford is not bound by any agreement, instrument,
order, judgment, or decree of any court, arbitrator, or
governmental body that would be breached by and that any
required consent of any third party, except for the
consent of the anti-trust enforcement authorities of the
Mexican government, has been obtained with respect to
the purchase and sale of the Purchased Interests.
(vii) Acquisition LLC was organized on December 1, 2003 and is
validly existing and in good standing under the laws and
regulations of the state of North Carolina;
(viii) The Purchased Interests were duly and validly issued by
Acquisition LLC to Guilford and such issuance did not
and does not violate or conflict with any applicable
law, Acquisition LLC's Articles of Organization,
operating agreement or other documents of limited
liability governance;
(ix) Acquisition LLC has not engaged in any active trade or
business other than with respect to receiving and
holding its direct and indirect ownership interests in
AT and SCA, or except as otherwise specifically stated
herein;
(x) Guilford's sale to TZ of the Purchased Interests will
not violate or conflict with any applicable law,
Acquisition LLC's Articles of Organization, operating
agreement or other documents of limited liability
governance;
(xi) The Purchased Interests represent all of the outstanding
equity interests in Acquisition LLC; and
(xii) There are no actions, suits or proceedings pending
against or affecting Acquisition LLC before any court,
governmental department, commission,
board, bureau or agency which would have a material
adverse affect on the Purchased Interests.
(b) Representations and Warranties of TZ. Each of TZ, AT and SCA hereby
represents and warrants to Guilford that, as of the Effective Date:
(i) TZ is duly organized, validly existing and in good
standing under the laws and regulations of Mexico;
(ii) Each of TZ, AT and SCA has the power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder;
(iii) The execution and delivery of and performance under this
Agreement by each of TZ, AT and SCA have been duly
authorized by all necessary corporate action;
(iv) There are no actions, suits or proceedings pending
against or affecting TZ before any court, governmental
department, commission, board, bureau or agency which
would have a material adverse affect on the ability of
TZ to perform its obligations under this Agreement;
(v) TZ is not bound by any agreement, instrument, order,
judgment, or decree of any court, arbitrator, or
governmental body that would be breached by and that any
required consent of any third party has been obtained
with respect to the purchase and sale of the Purchased
Interests;
(vi) Guilford's sale to TZ of the Purchased Interests will
not violate or conflict with any applicable law, TZ's
Articles of Organization, operating agreement or other
documents of limited liability governance.
(c) No Guilford Representations or Warranties Concerning AT or SCA.
Anything to the contrary in Section 11(a) or elsewhere in this Agreement
notwithstanding, Guilford makes no representations and warranties with respect
to the business, operations or organization of AT or SCA.
12. DISPOSITION OF INDUSTRIAS GLOBALES. By virtue of the execution of
this Agreement by all parties, AT hereby assigns, transfers and conveys any and
all of its stock and other direct and indirect ownership and equity interests in
and with respect to Industrias Globales de Mexico, S.A. de C.V., a corporation
organized under the laws of Mexico ("Industrias Globales"), to Guilford Airmont,
Inc., a North Carolina corporation and wholly-owned subsidiary of Guilford
("Airmont"). The transfer of AT's stockholdings and other direct and indirect
equity interests of Industrias Globales to Airmont shall be for no additional
consideration, and AT shall execute and endorse such other agreements,
documents, instruments, stock certificates and/or affidavits of lost
certificates, as necessary, or as reasonably required by Guilford to further
evidence the transactions set forth in this Section 12.
13. INDEMNIFICATION.
(a) Obligation of Guilford to Indemnify. Guilford hereby agrees to
indemnify, defend and hold harmless TZ, AT and SCA against and in respect of any
and all claims, demands, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including, without limitation, interest, penalties
and reasonable attorneys' fees ("Losses") that TZ, AT or SCA shall incur or
suffer in connection with the transactions contemplated by this Agreement, which
directly or indirectly arise out of, result from or relate to the breach by
Guilford of any representation, warranty, covenant or other provision of this
Agreement.
(b) Obligation of TZ, AT and SCA to Indemnify. TZ, AT and SCA, jointly
and severally, hereby agree to indemnify, defend and hold harmless Guilford
against and in respect of any and all Losses that Guilford shall incur or suffer
in connection with the transactions contemplated by this Agreement, which
directly or indirectly arise out of, result from or relate to the breach by TZ,
AT and SCA of any representation, warranty, covenant or other provision of this
Agreement.
(c) Claims for Indemnification. Any claim for indemnification which is
based upon a final judgment, decree or award of a court of competent
jurisdiction requiring the payment of money by any party to this Agreement or
any of its officers, directors, shareholders or controlling persons, shall be
conclusive as to the amount of such claim, provided a certified copy of such
judgment, decree or award accompanies the notice relating to such claim and
provided further that the party seeking indemnification (the "Indemnitee") shall
have complied with the requirements of Section 13(d) below. Any claim for
indemnification shall be conclusive in all respects thirty (30) days after
receipt by the party from whom indemnification is sought (the "Indemnitor") of
notice thereof, unless within such period the Indemnitor shall have sent to the
Indemnitee, and Indemnitee shall have received, notice questioning the propriety
of the claim, in which case such claim, unless settled by agreement of the
parties, shall be promptly referred to arbitration as provided in Section 14
below. In the event that a party makes a claim for indemnification, and the
Indemnitor contests such claim but the claim is not settled or referred to
arbitration within sixty (60) days after receipt by the Indemnitor of notice of
the claim from the Indemnitee, such claim shall be regarded as conclusive in all
respects.
(d) Third Party Claims. In the event that any legal proceeding shall be
instituted, or any claim or demand shall be asserted, by any third party in
respect of which indemnity may be sought by either party pursuant to the
provisions of this Agreement, the Indemnitee, with reasonable promptness after
obtaining knowledge of such proceeding, claim, or demand shall give written
notice thereof to the Indemnitor, who shall then engage counsel of its choice in
connection with such matter, which counsel shall be reasonably satisfactory to
the Indemnitee, and defend against, negotiate, settle or otherwise deal with any
such proceeding, claim or demand; provided, however, that without the prior
written consent of the Indemnitee, which consent shall not be unreasonably
withheld, the Indemnitor shall not consent to the entry of any judgment in or
agree to any settlement of any such matters; further provided, that the
Indemnitee may retain counsel, at its own expense, to represent it and
participate in connection with any such proceeding or claim or demand. Failure
by the Indemnitor to commence defending any proceeding, claim or demand with
respect to which indemnity is sought within thirty (30) days
after notice thereof shall have been given by the Indemnitee shall be a breach
of the Indemnitor's obligations hereunder. The Indemnitor shall take or cause to
be taken all steps necessary in connection with such defense, and the Indemnitee
shall in all events be entitled to indemnity with respect to such matter, as
provided in this Agreement. In the event that the Indemnitor breaches its
obligations hereunder by failing to defend any proceeding, claim or demand with
respect to which indemnity is sought, the Indemnitee may defend against, settle
or otherwise deal with any such proceeding, claim or demand in such matter as it
may in its good faith discretion deem appropriate and the Indemnitor shall be
liable for indemnification with respect to such matter, including without
limitation the reasonable costs of such defense, as provided in this Agreement.
In the event of any proceeding, claim or demand by a third party with respect to
which a claim for indemnification is made hereunder, the parties hereto agree
that they will cooperate fully with each other in connection with the defense or
settlement of such matter.
14. GOVERNING LAW; ARBITRATION; JURISDICTION AND VENUE.
(a) This Agreement shall be construed, governed by and enforced in
accordance with the laws of the State of Delaware, USA, excluding any
choice-of-law provisions that might cause another state's or country's laws to
apply.
(b) Any controversy or claim arising out of or relating to this
Agreement or breach hereof shall be settled exclusively by binding arbitration
administered by the American Arbitration Association in accordance with its
International Arbitration Rules (the "AAA Rules") as modified by Section 14(c)
below; provided, however, that in the event that any party hereto named in such
controversy or claim seeks injunctive relief, such party may elect to file such
controversy or claim in a State or federal court located in New York City, New
York, USA.
(c) In the event of arbitration of a claim or controversy, there shall
be three arbitrators. Guilford shall select one arbitrator, TZ shall select one
arbitrator, and the two selected arbitrators will designate the third
arbitrator. The place of arbitration shall be New York City, New York, USA,
unless otherwise agreed by the parties to the arbitration, and the language of
the arbitration shall be the English language. The parties shall share equally
the cost of the arbitrator's fees and expenses and any administrative expenses
as they arise. Judgment upon the award by the arbitrator may be entered in any
court having jurisdiction thereof. As part of such award, the prevailing party
(as determined by the arbitrator) shall be awarded the arbitrator's fees and
expenses and any administrative expenses previously paid by such party. Any
award shall be a conclusive determination of the matter and shall be binding
upon the parties and shall not be contested by any of them.
(d) In the event that a party to a claim or controversy seeks injunctive
relief and desires that a State or federal court hear such claim or controversy,
each party hereto agrees that a State or federal court located in New York City,
New York, USA, shall be the exclusive forum for the filing of any lawsuit
arising out of, resulting from or filed in connection with this Agreement or its
interpretation, performance or breach.
(e) Each party hereto hereby (i) consents to the personal jurisdiction
of the state and federal courts located in New York City, New York, USA, with
respect to any lawsuit arising out
of, resulting from or filed in connection with this Agreement or its
interpretation, performance and breach, and (ii) waives any claim that any state
or federal court located in New York City, New York, USA, is an inappropriate or
inconvenient forum; provided, however, that this sentence shall not be construed
as a waiver of any party's right to demand arbitration nor shall it be used by
either party as a defense to the other party's claim for arbitration.
15. NOTICES. All notices or other communications required or permitted
hereunder to be delivered in writing shall be effective (a) when personally
delivered by courier or otherwise to the party to be given such notice or other
communication, or (b) on the business day following the day that such notice or
other communication is sent by overnight mail or package service, fully prepaid,
or by telex, facsimile or similar electronic device, fully prepaid, which telex,
facsimile or similar electronic communication shall promptly be confirmed by
telephone communication. The addresses for such notices shall be as follows:
If to TZ, AT or SCA:
Textiles Zana, S.A. de C.V. and/or
American Textil, S.A. de C.V. and/or
Servicios Corporativos Ambar, S.A. de C.V.
Av. Via Morelos No. 68
Col. Rustica Xalostoc
Ecatepec xx Xxxxxxx, Xalostoc
Edo. de Mexico C.P. 55540
Attention: Xxxxxxx Nabielsky
Facsimile: 011-5255-5699-2290
Phone: 000-0000-0000-0000
With copy to:
Xxxxxxx Xxxxxx X.
Xxxxxx, Xxxxxxx y Xxxxxx, S.C.
Blvd. Xxxxxx Xxxxx Xxxxxxx 24, Piso 7
Col. Xxxxx xx Xxxxxxxxxxx
00000 Xxxxxx, D.F.
Facsimile:011 5255 5540-9202
Phone: 000 0000 0000-0000
If to Guilford:
Xxxxxxxx Xxxxx, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
Phone: (000) 000-0000
With copy to:
Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P.
000 X. Xxx Xxxxxx (27401)
Post Office Box 26000 (27420)
Greensboro, North Carolina
Attention: Xxx Xxxxxxxx and Xxxx Xxxxx
Facsimile (000) 000-0000
Phone: (000) 000-0000
Any party hereto may, by notice to the other parties hereto, change its
address for receipt of notices hereunder.
16. ASSIGNABILITY. This Agreement shall not be transferred or assigned
by any party, in whole or in part, except in accordance with this Section 16.
Any party not currently in default with respect to this Agreement may assign or
transfer its rights hereunder to any successor or wholly-owned subsidiary;
provided, however, that (i) such transfer or assignment shall not relieve such
assigning party of any obligation or liability hereunder and (ii) such assignee
shall execute an instrument of accession or other appropriate document or
instrument to bind assignee to the terms of this Agreement. Without limiting the
foregoing, this Agreement shall inure to the benefit of and be binding upon the
parties and their successors and assigns.
17. OTHER AGREEMENTS. This Agreement, along with the Assignment of
Membership Interest, Release Agreements, Assignment of Collection Rights, Supply
Agreement, Administrative Services Agreement, Loan Agreement, Noncompetition
Agreement and Information Technology Agreement, contains the entire agreement
among the parties with respect to the subject matter hereof, and merges and
supersedes all prior agreements, understandings, or negotiations whatsoever with
respect to the subject matter hereof. Each party shall do all such further acts
necessary or desirable to effect the transactions contemplated herein.
18. EXPENSES; DISCLOSURE. Each party hereto shall bear its own expenses
and costs with respect to the negotiation, execution and performance of this
Agreement. No party shall issue any public announcement, statement or release
concerning the negotiation, execution or performance of this Agreement, other
than those required by law, without the consent of the other parties.
19. WAIVER; AMENDMENT. No waiver by any party of any breach by the other
party of any of the representations, warranties, covenants or other obligations
of such party set forth herein shall be construed as a waiver of any succeeding
breach of the same or any other representation, warranty, covenant or other
obligation. No waiver shall be binding unless executed in writing by the party
or parties making such waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the parties
hereto.
20. COUNTERPARTS. This Agreement 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. Execution of this
Agreement by facsimile shall be deemed effective and signatures received by
facsimile shall be effective as original signatures.
21. SEVERABILITY. If any provision contained in this Agreement shall for
any reason be held invalid or unenforceable by an arbitrator or a court of
competent jurisdiction, then the party entitled to the benefit of such provision
may either (i) rescind this Agreement in its entirety, or (ii) elect to have
this Agreement continue in effect by either (as such party may elect) reforming
(to the extent permitted by law) such provision to make it enforceable or
treating the provision as deleted from this Agreement.
22. NO CONSTRUCTION AGAINST DRAFTER. Each party has cooperated in the
drafting and preparation of this Agreement. Therefore, the status of any party
as drafter of any term of this Agreement shall not affect the construction or
interpretation of such term of this Agreement. Each term of this Agreement is
contractual and not merely a recital. Each of the parties hereto has been
advised and represented by competent counsel with respect to the negotiations
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives, on the day and year first
above written.
TEXTILES ZANA, S.A. DE C.V.
By: /s/ Xxxxxxx Nabielsky
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Name: Xxxxxxx Nabielsky
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Title: Attorney in Fact
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AMERICAN TEXTIL, S.A. DE C.V.
By: /s/ Xxxxxxx Nabielsky
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Name: Xxxxxxx Nabielsky
------------------------------------------------
Title: Attorney in Fact
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SERVICIOS CORPORATIVOS AMBAR, S.A. DE C.V.
By: /s/ Xxxxxxx Nabielsky
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Name: Xxxxxxx Nabielsky
------------------------------------------------
Title: Attorney in Fact
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XXXXXXXX XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: General Counsel and Secretary
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