EXHIBIT 10.10
AGREEMENT
The present agreement (the "Agreement") is made effective as of the 1/st/ day of
February 2002 by and between
Xxxxxxx SpA, a corporation established and organized under the laws of the
Italian Republic, having its legal address in Italy, 25135 Brescia, Xxx Xxxxx
Xxxxx 00, fiscal code and registered nr. 00273280172, represented by its legal
representative Xx. Xxxxxx Xxxxxx (hereinafter "Santoni");
Vignoni Srl, a company established and organized under the laws of the Italian
Republic, having its legal address in Italy, 23135 Brescia, Xxx Xxxxx Xxxxx 00,
registered nr. 03476200179, represented by its legal representative Xx. Xxxxxx
Xxxxxx (hereinafter "Vignoni");
Marchisio Srl on voluntary winding up, a company established and organized under
the laws of the Italian Republic, having its legal address in Italy, 25135
Brescia, Xxx Xxxxx Xxxxx 00, registered nr. 03452440179, represented by its
liquidator Xx. Xxxxxx Xxxxxx (hereinafter "Marchisio");
Matec SpA, a corporation established and organized under the laws of the Italian
Republic, having its xxxxx xxxxxxx xx Xxxxx, 00000 Scandicci (FI), Via
dellenazioni Unite 7, registered nr. 04475560480, represented by its legal
representative Xx. Xxxxxx Xxxxxx (hereinafter "Matec");
Dinema SpA, a corporation established and organized under the laws of the
Italian Republic, having its legal address in Italy, 25134 Brescia, Via San Polo
183, fiscal code and registered nr. 00292820172, represented by its legal
representative Xx. Xxxxxx Xxxxxx (hereinafter "Dinema")
(hereinafter collectively the "Compan(y)ies")
parties of the first part
and
Xxxxxxxx Industries, Inc., a corporation established and organized under the
laws of the State of Delaware ("Xxxxxxxx"), having its legal address and
principal office at 000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
represented by its legal representative and executive officer, Xx. Xxxxxx X.
Xxxxxxxx;
Xxxxxxxx Yarn Equipment, Inc., a corporation established and organized under the
laws of the State of South Carolina, having its legal address and principal
office at 000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, represented by its
legal representative and executive officer, Xx. Xxxxxx X. Xxxxxxxx;
Wink Xxxxx Equipment Co., Inc., a corporation established and organized under
the laws of the State of Georgia, having its legal address and principal office
at 0000 X. Xxxxxxx Xxxx, Xxxxx 000 & 900, Xxxxxx, Xxxxxxx 00000, represented by
its legal representative and executive officer Xx. Xxxxxx X. Xxxxxxxx;
(hereinafter collectively "Xxxxxxxx")
parties of the second part
Preliminary Statement:
A. On March 12/th/, 1999 Xxxxxxx and Xxxxxxxx entered a certain Exclusive
Distributorship Agreement, (hereinafter the "Original Agreement"), in
order to appoint Xxxxxxxx as Xxxxxxx'x exclusive distributor in U.S.A.
and Canada for the sale of its products (machines and spare parts);
B. During the Original Agreement performance, Xxxxxxxx was on default on its
contractual obligations to pay Xxxxxxx'x ordered products;
C. On account of separate past transactions (hereinafter the "other
transactions"), several debts emerged toward Vignoni, Marchisio, Matec
and Dinema;
D. Presently, Xxxxxxxx owes to the above mentioned Companies the following
amount of money:
d.1 Xxxxxxx'x outstanding claim: (Euro) 258.531,30 (Two Hundred
Fifty-Eight Thousand Five Hundred Thirty-One and 30/100 Euro), net of
Speizman's counterclaims;
d.2 Vignoni's outstanding claim: USD 185,185.48 (One Hundred Eighty-Five
Thousand One Hundred Eighty-Five and 48/100 US Dollar);
d.3 Marchisio's outstanding claim: USD 287,043.00 (Two Hundred
Eighty-Seven Thousand Forty-Three and 00/100 US Dollar);
d.4 Matec's outstanding claim: (Euro) 28.995,05 (Twenty-Eight Thousand
Nine Hundred Ninety-Five and 05/100 Euro)
d.5 Dinema's outstanding claim: USD 172,371.00 (One Hundred Seventy-Two
Thousand Three Hundred Seventy-One and 00/100 US Dollar);
E. The Parties wish to enter this Agreement for the purpose of agreeing and
confirming the terms and conditions of payment of both the outstanding
and subsequent trade Speizman's debts as well as the supplements and
modifications to the Original Agreement as set forth herein.
Now therefore, in consideration of the premises and the mutual promises and
covenants set forth herein, the Parties hereby agree as follows:
Agreement:
1. Premises
The above stated premises are an integral part of this Agreement.
2. Outstanding debt
2.1 Xxxxxxxx shall repay the total outstanding debt owed to Xxxxxxx, Vignoni and
Marchisio ((Euro) 258.531,30 + USD 185,815.48 + USD 287,043.00) with sixty-nine
(69) successive equal weekly payments of (Euro) 10,000.00 each (Ten Thousand and
00/100 Euro) - total for all three aforementioned companies), on Friday of each
week and a seventieth (70) and final weekly payment in an amount equal to the
outstanding unpaid balance , until the debt is paid in full, with the first
payment due on March 1/st/, 2002. Xxxxxxxx and Xxxxxxx further acknowledge and
agree that Xxxxxxx'x outstanding claim in the present amount of (Euro)
253.531,30 is net of, and calculated after credit for, the sum of USD 252,729.73
(Two Hundred Fifty-Two Thousand Seven Hundred Twenty-Nine and 73/100 U.S.
Dollars) which was owed by Xxxxxxx to Xxxxxxxx as of February 27/th/, 2002 (the
"Credited Amount"), excluding the amount of USD 285,000.00 according to the Alba
Waldensian, Inc., settlement, and which has been paid and satisfied in full by
setting off such
amount against the amounts owed by Xxxxxxxx to Xxxxxxx. Xxxxxxxx acknowledges
and agrees that after crediting the Credited Amount against the indebtedness of
Xxxxxxxx, there remains outstanding and payable by Xxxxxxxx to Xxxxxxx the
indebtedness comprising the outstanding claim in the amount of (Euro)
258.531,30.
2.2 All payments shall be allocated among Xxxxxxx, Vignoni and Marchisio in
proportion to the outstanding amount of the indebtedness owned to each of such
companies by Xxxxxxxx. In the event that any weekly payment is not made when
due, the amount which is delinquent shall bear interest until paid at a default
rate of interest of 6% per year, which interest shall be due and payable weekly
on Friday of each week together with the regularly scheduled installment of
principal.
2.3 Xxxxxxxx shall repay the USD 172,371.00 (One Hundred Seventy-Two Thousand
Three Hundred Seventy-One and 00/100 US Dollar) outstanding debt owed to Dinema
with monthly payment of USD 14,300.00 (Fourteen Thousand Three Hundred and
00/100 US Dollar) each until paid in full, with first payment due on March
1/st/, 2002.
2.4 Moreover, Xxxxxxxx commits themselves to insure the correct and full
performance of all outstanding and further trade debts towards Matec according
to the terms and conditions of payment previously agreed upon by Matec itself
and Xxxxxxxx in the purchase orders and related correspondence.
2.5 Subject to the terms, conditions, and understandings contained in this
Agreement, and for so long as there does not exist a default under the terms of
this Agreement, the Companies hereby agree to refrain and forbear temporarily
from exercising and enforcing any of their remedies with respect to the
outstanding debt of Xxxxxxxx to the Companies.
3. Further trade debts
3.1 Xxxxxxxx shall pay all future spare parts orders on and after the ate of
this Agreement by irrevocable and confirmed Letter of Credit net ninety (90)
days from the date of the invoice.
3.2 Furthermore, on and after the ate of this Agreement, Xxxxxxxx shall pay for
new machine orders comprising Products on the following payment terms: ten
percent (10%) of the purchase price by down-payment in cash at the order
confirmation and the remaining ninety percent (90%) of the purchase price
against ninety (90) days irrevocable and confirmed Letter of Credit.
3.3 The effectiveness of each purchase order is conditioned upon the correct and
full payment and performance of the aforementioned ten percent (10%)
down-payment.
3.4 Each irrevocable Letter of Credit shall be issued at least 7 days prior to
the shipment date and shall be payable at 90 (ninety) days from the invoice
issued by each Company for the Products. With respect to purchases after the
date of this Agreement, Xxxxxxxx shall pay for Products in Euros ((Euro)) or US
Dollars on account of the currency designated in the invoices and all letters of
credit issued with respect to such purchases shall be payable in Euros ((Euro))
or US Dollars as well. All letters of credit must be irrevocable when issued and
must be issued and confirmed by a bank satisfactory to the Companies. Other
terms of the Letters of Credit must be satisfactory to each Company.
3.5 The terms of payment set forth in this Section 3 shall apply to all
purchases by Xxxxxxxx of Products (as defined in the Original Agreement and
other transactions), including spare parts and new machines, made after the date
of this Agreement.
Spare part orders that are less than USD 50,000 (Fifty Thousand and 00/100 US
Dollars) in value shall be paid by wire transfer upon each Company's notice that
the goods are ready to be shipped.
4. Default and termination
4.1 The Companies may terminate this Agreement and/or the Original Agreement
and/or the other transactions immediately by written notice to Xxxxxxxx in the
event that:
a) Xxxxxxxx is in breach of its contractual obligations and fails to remedy
such breach within a reasonable term, not to exceed thirty (30) days from
the receipt of the other party's written notice stating the occurrence of
the breach.
b) Xxxxxxxx or any subsidiary of Xxxxxxxx shall (i) commence a voluntary
case under the federal bankruptcy laws (as now or hereafter in effect),
(ii) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition for adjustment of debts, (iii) consent to or
fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other
laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by a
receiver, custodian, trustee, or liquidator of itself or of a substantial
part of its property, domestic or foreign, (v) admit in writing its
inability to pay its debts as they become due, (vi) make a general
assignment for the benefit of creditors, or (vii) take any corporate
action for the purpose of authorizing any of the foregoing;
c) A case or other proceeding shall be commenced against Xxxxxxxx or any
subsidiary of Xxxxxxxx in any court of competent jurisdiction seeking (i)
relief under the federal bankruptcy laws (as now or hereafter in effect)
or under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts, or (ii)
the appointment of a trustee, receiver, custodian, liquidator or the like
for Xxxxxxxx or any subsidiary of Xxxxxxxx or for all or any substantial
part of their respective assets, domestic or foreign, and such case or
proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such
case or proceeding (including but not limited to an order for relief
under such federal bankruptcy laws) shall be entered.
d) A judgment or order for the payment of money which causes the aggregate
amount of all such judgments (to the extent not fully covered by
insurance) to exceed $1,000,000 shall be entered against Xxxxxxxx or any
of its subsidiaries by any court and such judgment or order shall
continue without discharge or stay for a period of sixty (60) days.
e) Xxxxxxxx shall default in the payment or performance of its existing
credit facility with SouthTrust Bank, N.A. (apart from the continuation
during any agreed-upon forbearance period of any existing default which
is the subject of a binding forbearance agreement by SouthTrust Bank,
N.A.).
f) Xxxxxxxx or any of its subsidiaries shall default in the payment of any
indebtedness for borrowed money, the aggregate outstanding amount of
which indebtedness is in excess of USD 1,000,000 beyond the period of
grace if any, provided in the instrument or agreement under which such
indebtedness was created.
g) Xxxxxxxx shall fail to obtain refinancing of the existing credit facility
from SouthTrust Bank, N.A. or other banks upon maturity of such facility
(by acceleration upon default or otherwise) in the principal amount of at
least USD 12,000,000.00 (Twelve Million US Dollars) and for a term
extending beyond January 31, 2003.
4.2 Accordingly, in the event of early termination of this agreement, the time
limits provided herein in favour of debtor are to expiry immediately and each
Company will be entitled to claim any and all accrued credits against Xxxxxxxx
pursuant to the Original Agreement and other transactions.
4.3 Immediately upon the occurrence of any default under this Agreement (i) the
obligations, agreement, and commitments of the Companies set forth in this
Agreement shall immediately and automatically terminate and be of no further
force or effect without further notice to or consent of Xxxxxxxx, (ii) Xxxxxxx
shall have the right to terminate the Original Agreement, as amended hereby, and
all of Speizman's rights and agency thereunder, (iii) the Companies shall each
have the right to declare the principal of and interest on the indebtedness of
Xxxxxxxx to such Companies, or any of them, at the time outstanding, and all
other amounts owed to the Companies, or any of them, to be immediately due and
payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived and (iv) each of the Companies shall have the right to exercise
and enforce any and all rights and remedies available to each such Company under
this Agreement, under any and all documents executed and delivered in
connections with this Agreement, under the Original Agreement and under
applicable laws to the same extent as though no forbearance had been agreed to
by the Companies as provided in this Agreement, without regard to any notice or
cure period contained in any of the foregoing or otherwise available under
applicable laws.
5. Exclusive distribution
5.1 Xxxxxxxx will be Xxxxxxx'x exclusive distributor in the U.S.A. and Canada
for the sale of the Products through and including July 3/rd/, 2004, unless the
early termination of the Original Agreement and/or of this Agreement occur.
6. Reference currency
All transactions relating to this Agreement, Original Agreement as well as the
other transactions, are to be wholly paid in Euros ((euro)) or US Dollars on
account of the currency designated in the invoices.
7. Governing law and Exclusive Forum for disputes
7.1 This Agreement shall be governed and construed in all respects in accordance
with the Laws of the Republic of Italy. The parties expressly exclude the
applicability of the United Nations Convention on Contracts for the
International Sale of Goods and any other international conventions or treaties
regarding the international sale of goods. Any allusion to local uses or customs
is merely indicative.
7.2 The Parties agree that the exclusive competent Forum to resolve any dispute
that could arise between the Parties in terms of interpretation, execution and
performance of this agreement or otherwise directly or indirectly pertaining to
this agreement, shall be the Court of Brescia (Italy). However, the Companies
shall have the further right to file any legal
proceeding against Xxxxxxxx before any court of competent jurisdiction, State or
Federal, in the Sates of North and South Carolina.
8. Final Clause
8.1 Should any provisions of this agreement be or become invalid, illegal or
unenforceable under applicable law, the other provisions of this Agreement shall
not be affected, and, to the extent permissible under applicable law, the
Parties shall use their best efforts to modify said invalid, illegal, or
unenforceable provisions so as to comply with such laws.
8.2 This Agreement shall not constitute a novation of the Original Agreement and
the other transactions which shall remain in full force and effect except
expressly amended hereby.
Xxxxxxx SpA Xxxxxxxx Industries, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ -----------------------------
Name: X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Vignoni Srl Xxxxxxxx Yarn Equipment, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ -----------------------------
Name: X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Marchisio Srl in liquidazione Wink Xxxxx Equipment Co., Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ P. Xxxxxx Xxxxxx, XX
------------------------------ -----------------------------
Name: X. Xxxxxx Name: P. Xxxxxx Xxxxxx, XX
Title: President Title: President
Matec SpA
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: X. Xxxxxx
Title: President
Dinema SpA
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: X. Xxxxxx
Title: President
Brescia, (date) Charlotte, (date)
24-06-02 June 25, 2002
Specific Acceptance
Xxxxxxxx declare to accept specifically, pursuant to articles 1341 and 1342 of
the Italian Civil Code, the following clauses as described above: 4. default and
termination; 5. exclusive distribution; 7. governing law and exclusive forum for
disputes.
Xxxxxxxx Industries, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
Xxxxxxxx Yarn Equipment, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
Wink Xxxxx Equipment Co., Inc.
By: /s/ P. Xxxxxx Xxxxxx, XX
----------------------------------
Name: P. Xxxxxx Xxxxxx, XX
Title: President
Charlotte (date)
June 25, 2002
/s/ EL
