EXHIBIT (10)(x)
EXCLUSIVE SUPPLY AGREEMENT
THIS EXCLUSIVE SUPPLY AGREEMENT (this "Agreement") is made and entered
into on December 17, 2003 (the "Effective Date"), by and among XXXXXXXX XXXXX,
INC., a Delaware corporation ("Guilford"), and GUILFORD DE MEXICO, S.A. DE C.V.,
an entity organized under the laws of Mexico ("NewGuilford", and together with
Guilford, "Purchaser"), and TEXTILES ZANA, S.A. DE C.V., an entity organized
under the laws of Mexico ("TZ"), AMERICAN TEXTIL ACQUISITION, LLC, a North
Carolina limited liability company ("Acquisition, LLC"), SERVICIOS CORPORATIVOS
AMBAR S.A. DE C.V. ("SCA") and AMERICAN TEXTIL, S.A. DE C.V., an entity
organized under the laws of Mexico ("AT").
RECITALS:
WHEREAS, NewGuilford is a wholly-owned subsidiary of Guilford; and
WHEREAS, on the Effective Date, Guilford, TZ, Acquisition LLC, SCA and
AT have entered into a Purchase and Release Agreement, pursuant to which
Guilford sold to TZ all of Guilford's direct and indirect equity interests in
Acquisition LLC and AT (the "Purchase Agreement"), causing Acquisition LLC, SCA
and AT to become direct or indirect subsidiaries of TZ; and
WHEREAS, as an inducement to Guilford to enter into the Purchase
Agreement, TZ, Acquisition LLC, SCA and AT have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and in the Purchase Agreement, the parties agree as follows:
1. TERM. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall end on the earlier of (i) ninety (90) days after either
party's delivery of written notice of termination to the other, provided,
however, that such written notice may not be delivered prior to September 17,
2004, or (ii) an Early Termination Event (as defined in Section 6 below) (either
such date, the "Termination Date").
2. CUSTOMERS; FABRIC.
(a) On and after the Effective Date, NewGuilford shall be the
vendor of record for sales of certain styles of automotive fabric manufactured
or improved by AT and sold to certain customers, each as set forth on Schedule
2(a), attached hereto and incorporated herein by reference ("Fabric" and
"Customers", respectively).
(b) Certain Fabric shall be manufactured by AT to certain
specifications (such Fabric identified on Schedule 2(a) and referred to herein
as "AT-Made Fabric"), such specifications set forth on Schedule 2(b), attached
hereto and incorporated herein by reference. The specifications for AT-Made
Fabric may include, without limitation, requirements that AT knit, weave, dye,
finish, and/or laminate AT-Made Fabric. At any time and from time to time, if
Purchaser desires
to amend the specifications for AT-Made Fabric, it shall do so in accordance
with the Specification Amendment Procedure set forth in Section 2(d) below.
(c) Certain other Fabric shall be manufactured by Purchaser or
procured by Purchaser from third party suppliers and, in Purchaser's sole
discretion, may be delivered to AT for lamination in accordance with certain
specifications (such Fabric identified on Schedule 2(a) and referred to herein
as "Laminated Fabric"), such specifications set forth on Schedule 2(b). At any
time and from time to time, if Purchaser desires to amend the specifications for
Laminated Fabric, it shall do so only in accordance with the Specification
Amendment Procedure set forth in Section 2(d) below.
(d) If Purchaser desires to amend the specifications for any
Fabric, Purchaser shall deliver to AT written notice containing (i) a
description of the particular Fabric style and end use relevant to the
amendment, (ii) the desired amendment to the specifications, and (iii) the
effective date of the amendment (the "Amendment Notice"). Within thirty (30)
days after Purchaser's delivery of the Amendment Notice to AT, AT may deliver to
Purchaser (i) a written rejection to the Amendment Notice, (ii) a written
acceptance of the Amendment Notice or (iii) a written acceptance stating that
such acceptance is subject to the Purchaser being responsible for additional
costs with respect to the changes set forth in such Amendment Notice (the
"Qualified Acceptance") and such additional costs shall be specifically stated
in the Qualified Acceptance. Purchaser shall have ten (10) days from its receipt
of a Qualified Acceptance to accept and agree to the terms set forth therein. If
AT does not deliver to Purchaser a written rejection of the Amendment Notice or
a Qualified Acceptance within thirty (30) days after Purchaser's delivery to AT
of the Amendment Notice, or if AT delivers to Purchaser a written acceptance of
the Amendment Notice, then the specifications shall be amended as set forth in
the Amendment Notice, and AT shall produce such Fabric in accordance with such
amended specifications. If AT delivers to Purchaser a written rejection within
thirty (30) days after Purchaser's delivery to AT of the Amendment Notice, or if
Purchaser rejects the Qualified Acceptance, if applicable, then Purchaser shall
be entitled to obtain such Fabric (or Lamination Services, if such Fabric is
Laminated Fabric) with the amended specifications from an entity other than AT.
The procedure described in this Section 2(d) is the "Specification Amendment
Procedure."
3. PURCHASE; PAYMENT TERMS.
(a) AT-Made Fabric.
(i) Subject to Section 3(d) below and except as otherwise
provided in this Agreement, during the Term,
Purchaser shall order from AT, and AT shall supply to
Purchaser, all of Purchaser's requirements of AT-Made
Fabric for sales to Customers.
(ii) Subject to Section 3(g) and Section 9 below, the
purchase price per meter that Purchaser shall pay to
AT for AT-Made Fabric shall be ninety percent (90%)
of the Net Sales Price (as defined in Section
3(a)(iii) below) in connection with the relevant
AT-Made Fabric.
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(iii) For purposes of this Agreement, "Net Sales Price",
with respect to any AT-Made Fabric, means the price
per meter of such AT-Made Fabric that will be charged
by Purchaser to the Customer for whom such AT-Made
Fabric is manufactured, exclusive of taxes and
tariffs, less any royalty which is paid by AT, and
reimbursed to AT by Purchaser (as more particularly
set forth in Section 3(a)(iv) hereunder). All Net
Sales Prices are set forth on Schedule 2(a);
provided, however, that if Purchaser determines, in
good faith, that it may be necessary for Purchaser to
reduce any Net Sales Price for any AT-Made Fabric to
any Customer in order to retain such Customer's
business, then (A) if AT agrees to such reduction,
Schedule 2(a) shall be amended to reflect such
reduced Net Sales Price, or (B) if AT does not agree
to such reduction, Purchaser shall be entitled to
obtain such AT-Made Fabric from another supplier. If
Purchaser elects to increase the price sold to
Customers resulting in a change in the Net Sales
Price for any AT-Made Fabric, then Schedule 2(a)
shall be amended to reflect the new Net Sales Price.
If AT's production costs increase in such a manner
that it is necessary to increase the Net Sales Price
for its business to be viable, AT shall notify such
need to Purchaser, and Purchaser shall negotiate in
good faith with the Customer to increase the prices
charged such that it will be sufficient to offset
AT's increased production cost; provided, however,
that Purchaser makes no guarantee as to the success
of such negotiations or any such price increase.
(iv) When applicable, Purchaser shall reimburse AT for any
royalty required to be paid and actually paid by AT
with respect to the sale of AT-Made Fabric to
Purchaser in accordance with the royalty arrangements
in existence as of the date hereof as set forth in
Schedule 3(a)(iv) of this Agreement attached hereto
and incorporated herein by reference.
(b) Lamination Services.
(i) Subject to Section 3(d) below and except as otherwise
provided in this Agreement, during the Term,
Purchaser, in its sole discretion, may order from AT
and, if so ordered, AT shall supply to Purchaser,
lamination services for Laminated Fabric ("Lamination
Services").
(ii) The price per meter that Purchaser shall pay to AT
for Lamination Services shall be the "Lamination
Price" set forth on Schedule 2(a); provided, however,
that if Purchaser determines, in good faith, that it
may be necessary for Purchaser to reduce the price
set forth on Schedule 2(a) for any Lamination Service
for any Customer in order to retain such Customer's
business, then (A) if Purchaser and AT agree on such
reduction, Schedule 2(a) shall be amended to reflect
such reduction, or (B) if Purchaser and AT do not
agree on such reduction, Purchaser shall be entitled
to obtain such Lamination Services from another
supplier.
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(c) Weekly Demand Releases.
(i) Subject to Section 3(d) below and except as otherwise
provided in this Agreement, during the Term,
Purchaser shall order from AT Fabric and Lamination
Services by having its Automotive Business Unit
Planning Manager deliver by facsimile or e-mail to
AT's Operation Manager, with copy to AT's Planning
Assistant, a report of Purchaser's requirements, such
report being substantially in the form of Exhibit A,
attached hereto and incorporated herein by reference
(a "Weekly Demand Release"). Purchaser shall use its
reasonable best efforts to deliver the Weekly Demand
Release by 11:00 A.M. EST on Monday of each week (the
"Release Date").
(ii) The Weekly Demand Release shall set forth the number
of meters of each style of Fabric and the number of
meters of each style of Laminated Fabric for which
Lamination Services are being ordered that will be
required during the ninety (90) day period following
the Release Date, the applicable purchase price for
such Fabric and Lamination Services and the
Customers' required delivery dates.
(iii) Upon receipt of each Weekly Demand Release, AT shall
accept or reject the new production requirements set
forth in such Weekly Demand Release that have not
been previously accepted by AT (the "New
Requirements") no later than seventy-two (72) hours
following their receipt of the Weekly Demand Release
on the Release Date excluding holidays and weekends.
AT shall not be entitled to reject any production
requirements previously accepted by AT. AT shall
reject the New Requirements by notifying the
Purchaser's Automotive Business Unit Planning Manager
by facsimile or email; provided, however, that AT
shall not reject any New Requirements except pursuant
to Section 3(d) below. AT's failure to reject in such
manner shall be deemed an acceptance.
(iv) After the Release Date, with respect to a Weekly
Demand Release that has been accepted by AT,
Purchaser: (A) shall not modify the production
requirements for the thirty (30) day period following
the Release Date without AT's written consent; and
(B) shall not modify the production requirements
during the period beginning thirty (30) days after
the Release Date and ending ninety (90) days after
the Release Date by more than fifteen percent (15%)
of the volume requested without AT's written consent.
(v) If AT accepts a Weekly Demand Release, then Purchaser
shall purchase all Fabric ordered therein, as such
order may be modified in accordance with Section
3(c)(iv) above.
(vi) If AT consents to a modification beyond the
modifications allowed
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pursuant to Section 3(c)(iv) above of any Weekly
Demand Release, including, but not limited to, a
modification of volume requirements or delivery
dates, then any failure of AT to perform in
accordance with such modification shall be a breach
of this Agreement.
(vii) If AT rejects any Weekly Demand Release, Purchaser
shall be entitled to obtain from other suppliers,
including Purchaser or Purchaser's affiliates, the
Fabric and/or Lamination Services ordered therein.
(viii) If AT fails to deliver any Fabric, including
Laminated Fabric, on or before the delivery date for
such Fabric as set forth in the Weekly Demand Release
(as such delivery date may be modified by Purchaser
in accordance with Section 3(c)(iv) above or by AT's
written consent), then upon Purchaser's request, AT
shall (A) ship, at AT's sole expense, such Fabric to
the appropriate Customer using an expedited, premium
freight service, and (B) reimburse Purchaser for any
other expenses or losses that Purchaser incurs as a
result of such late delivery; provided that Purchaser
shall use its reasonably best efforts to obtain the
best settlement possible as to any Customer claim
which may result in such reimbursed losses and
provide reasonable documentation as to such
reimbursed losses.
(d) Lack of AT Capacity. AT shall devote to the production of
Fabric and the performance of Lamination Services the number of machines,
personnel and other resources of AT as necessary for AT to have the same
production capacity as available on the Effective Date. If, upon receipt of any
Weekly Demand Release, AT determines in good faith and provides to Purchaser
evidence that AT is unable to fulfill Purchaser's requirements of Fabric as set
forth in such Weekly Demand Release because the number of meters of Fabric,
including Laminated Fabric, required by Purchaser exceeds AT's manufacturing
capacity, AT promptly shall notify Purchaser of such inability. If, within ten
(10) days after AT notifies Purchaser of such inability, Purchaser and AT cannot
agree upon a modification of such Weekly Demand Release that falls with in AT's
manufacturing capacity, Purchaser shall be entitled to obtain the portion of
Purchaser's requirements of Fabric as set forth in such Weekly Demand Release,
which AT is unable to fulfill, as specifically communicated by AT to Purchaser,
from another supplier. If AT does not specify the portion of the Weekly Demand
Release which it is unable to fulfill with reasonable specificity, Purchaser
shall be entitled to obtain all or any portion of the Purchaser's requirements
of Fabric as set forth in the Weekly Demand Release, including the portion, if
any, for which AT has capacity to produce, from another supplier.
(e) Invoices. Upon the packing of Fabric that conforms to the
specifications set forth on Schedule 2(b) applicable to such Fabric ("First
Quality Fabric"), AT shall deliver to Purchaser an invoice for such First
Quality Fabric, referencing the applicable Weekly Demand Release and applicable
Customer and setting forth the amount owed to AT by Purchaser (each such
invoice, an "Invoice"). Title to and ownership of AT-Made Fabric shall vest in
Purchaser on the date of the applicable Invoice. To the extent that there are
any value added or sales taxes due from AT to any national, state or local
governmental authority arising from AT's sale of the Fabric or Lamination
Services to Purchaser ("Taxes"), the amount of such Taxes shall be added to the
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applicable Invoice and Purchaser shall pay to AT such Taxes in addition to the
purchase price of the Fabric or Lamination Services billed on such Invoice.
(f) Payment Dates. For Invoices dated prior to the sixteenth
(16th) day of any calendar month, Purchaser shall pay to AT the total amount of
such Invoice no later than the last day of such calendar month. For Invoices
dated on or after the sixteenth (16th) day of any calendar month, Purchaser
shall pay to AT the total amount of such Invoice no later than the fifteenth
(15th) day of the following calendar month. Any past due amount on such Invoices
shall accrue interest at a rate equal to the prime rate, as quoted by Wachovia
Bank, N.A., from time to time, plus 3%.
In the event any portion of the amount due as stated in an Invoice is
disputed in good faith by Purchaser, and Purchaser provides reasonably
sufficient evidence of such dispute, Purchaser shall pay the undisputed portion
of the Invoice in accordance with its terms. Otherwise Purchaser shall pay the
full amount due as stated in the relevant Invoice. The disputed portion of the
relevant Invoice shall be negotiated in good faith by Purchaser and AT.
Purchaser may set-off amounts due and owing on any Invoice from any
amounts owed by AT to Purchaser.
(g) Deposit. On the Effective Date and from time to time
thereafter, Purchaser may pay to AT a deposit as set forth on Schedule 3(g),
attached hereto and incorporated herein by reference, to be applied against
Purchaser's purchase of Fabric and/or Lamination Services (the "Deposit"). No
later than the fifteenth (15th) day of each calendar month, AT shall provide to
Purchaser an accounting of the application of the Deposit during the previous
calendar month and the Deposit balance as of the end of such previous calendar
month. The Deposit shall be applied as follows:
(i) In accordance with the schedule set forth on Schedule
3(g), AT shall apply to the amounts of certain
invoices a portion of the Deposit equal to five
percent (5%) of the total amount of each Invoice,
thereby reducing the amount owed by Purchaser under
such Invoice to ninety-five percent (95%) of the
amount of such Invoice calculated pursuant to
Sections 3(a)(ii) and 3(b)(ii);
(ii) After delivery of each Invoice to which a portion of
the Deposit is applied in accordance with Section
3(g)(i) above, the Deposit balance as shown in AT's
books and records shall be reduced by such portion;
(iii) At such time as the Deposit balance is less than five
percent (5%) of the Invoice to which a portion of the
Deposit is to be applied pursuant to Section 3(g)(i)
above, the total amount of the Deposit balance shall
be applied to such Invoice, and, thereafter,
Purchaser shall pay the full amount of each Invoice;
and
(iv) If, on the Termination Date, there is a Deposit
balance, then:
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(A) such Deposit balance shall be applied to any
unpaid Invoices, beginning with the oldest
Invoice and continuing toward the most
recent Invoice, until either all Invoices
have a zero (0) balance or the Deposit
balance is zero (0); and
(B) any Deposit balance remaining after the
process described in Section 3(g)(iv)(A)
above shall be added to the outstanding
principal balance of the Note (as defined in
the Purchase Agreement) and repaid by AT to
Guilford in accordance with the terms
thereof. If mutually agreed upon, the Note
may be re-issued from time to time to
reflect the new principal balance, if
applicable.
(h) USD Standard.
(i) All calculations, Invoices and payments required or
permitted by this Agreement shall be in US Dollars
("USDs"); provided, however, that if any Customer
requires that it be billed and permitted to pay
Purchaser in Mexican Pesos ("Pesos"), then the Net
Sales Prices, Invoices and payments by Purchaser to
AT related to such Customer shall be calculated and
paid in Pesos.
(ii) For purposes of this Agreement, the initial exchange
rate between the USD and the Peso expressed as a
fraction is $1.00 USD/$11.2728 Peso (the "Exchange
Rate"). If, during the Term, the Exchange Rate
increases or decreases as published in the Diario
Oficial de la Federacion of Mexico as the exchange
rate for payment of obligations by more than five
percent (5%), the Net Sales Prices set forth on
Schedule 2(a) shall be adjusted in the same
proportion as the increase/decrease in the Exchange
Rate.
(iii) If the Net Sales Prices are increased or decreased
pursuant to this Section 3(h), then (A) Schedule 2(a)
shall be amended to reflect the increased or
decreased Net Sales Prices, and (B) for purposes of
calculating future increases in the Exchange Rate,
the Exchange Rate shall be that exchange rate between
the USD and the Peso as published by Diario Oficial
de la Federacion of Mexico as the exchange rate for
payment of obligations on the date that the Net Sales
Prices were increased or decreased pursuant to this
Section 3(h).
(i) In Process Fabric and Existing Fabric. Purchaser and AT
acknowledge that, as of 11:59 P.M. EST on the Effective Date, certain Fabric is
in process pursuant to Customer orders obtained by AT prior to the Effective
Date ("In Process Fabric"), and certain Fabric has been packed and is awaiting
shipment pursuant to Customer orders obtained by AT prior to the Effective Date
("Existing Fabric").
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(i) On the Effective Date, Purchaser shall purchase from
AT, and AT shall sell to Purchaser, the Existing
Fabric. On the Effective Date, AT shall execute and
deliver to Purchaser a Xxxx of Sale for the Existing
Fabric, the form of which is attached hereto as
Exhibit B (the "Xxxx of Sale"), and thereafter, the
Existing Fabric shall be included in and covered by
AT's representations, warranties and covenants as if
the Existing Fabric was AT-Made Fabric or Laminated
Fabric, as applicable. The purchase price per meter
that Purchaser shall pay to AT for the Existing
Fabric shall be ninety percent (90%) of the Net Sales
Price (the "Purchase Price") and shall be paid by
Purchaser to AT in accordance with the following
provisions of this Section 3(g) below. In addition,
Purchaser shall pay any Taxes owed for the Existing
Fabric.
(ii) The parties shall estimate the amount of the First
Quality Fabric that is packed and awaiting shipment
as of the Effective Date and shall set forth the same
on Schedule 3(i)(ii), attached hereto and
incorporated herein by reference (the "Estimated
Existing Fabric"). On the Effective Date, Purchaser
shall pay to AT ninety-five percent (95%) of the
Purchase Price for the Estimated Existing Fabric (the
"Estimated Payment").
(iii) Within fourteen (14) days after the Effective Date,
Purchaser and AT shall conduct an inventory and
examine the books and records of AT to determine the
type and amount of Existing Fabric and jointly
prepare a written report describing the Existing
Fabric (such report, the "Existing Fabric
Inventory"); provided, however, that the Existing
Fabric Inventory shall include only First Quality
Fabric that was packed, awaiting shipment and in AT's
warehouse at 11:59 P.M. EST on the Effective Date.
(iv) If the Purchase Price for the Existing Fabric listed
on the Existing Fabric Inventory exceeds the
Estimated Payment, then Purchaser, within ten (10)
days after the Existing Fabric Inventory has been
prepared, shall pay to AT such excess. If the
Estimated Payment exceeds the Purchase Price for the
Existing Fabric listed on the Existing Fabric
Inventory, then AT, within ten (10) days after the
Existing Fabric Inventory has been prepared, shall
pay to Purchaser such excess. Any amount due to
either AT or Purchaser pursuant to this Section
3(i)(iv) may be credited or offset (in the sole
discretion of the payor) against any amounts due from
either Purchaser or AT, respectively, pursuant to
Section 3(b)(iv) of the Purchase Agreement.
(v) At 11:59 P.M. EST on the Effective Date, In Process
Fabric shall become subject to this Agreement as if
Purchaser had obtained the Customer order covering
such In Process Fabric. Therefore, after the
Effective Date, Purchaser shall direct AT with
respect to scheduling the production of In Process
Fabric and, upon the packing of In Process Fabric, AT
shall deliver to Purchaser an Invoice covering such
In Process Fabric that is First Quality Fabric in
accordance with Section 3(e) above.
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(j) Guilford Guaranty. Without limiting the foregoing, Guilford
hereby guaranties the payment and collection of all amounts owed to AT by
NewGuilford in accordance with this Section 3.
4. QUALITY; CUSTOMER COMPLAINTS.
(a) All Fabric, including, without limitation, Existing Fabric and
In Process Fabric, purchased by Purchaser from AT shall (i) be First Quality
Fabric, (ii) conform to the applicable Weekly Demand Release, and (iii) be
merchantable (any Fabric that fails to conform with the requirements of this
Section 4(a), "Defective Fabric").
(b) Upon Purchaser's receipt of a claim from any Customer that any
Fabric is Defective Fabric, Purchaser promptly shall notify AT of such claim,
giving AT a description setting forth the manufacturing order number and piece
number so that AT will be able to identify the Fabric. Purchaser and AT shall
review such claim and confer with each other and the Customer to determine
whether such Fabric is Defective Fabric. AT, with Purchaser's prior consent
(such consent not to be unreasonably withheld), may contact the complaining
Customer directly in order to discuss such Customer's claim. If, after
Purchaser's and AT's efforts to resolve the claim, (i) Purchaser reduces the Net
Sales Price in order to induce the Customer to purchase the Fabric, then
Purchaser shall be entitled to a refund from AT of ninety percent (90%) of such
reduction; or (ii) the Customer refuses to purchase the Fabric because it is
Defective Fabric, then Purchaser shall be entitled to return to AT, at AT's sole
cost, expense and risk of loss, the Defective Fabric for, at the election of
Purchaser, (A) a full refund of the amounts paid by Purchaser to AT for such
Defective Fabric, or (B) replacement Fabric. In Purchaser's sole discretion, any
refund may be in the form of a credit against existing or future Invoices.
Purchaser's rights with respect to such Defective Fabric shall be in addition to
any other rights Purchaser may have hereunder or under applicable law,
including, without limitation, any rights to indemnification under Section 11
below.
(c) All Lamination Services performed by AT shall be performed (i)
in a xxxxxxx-like manner to Purchaser's specifications, (ii) shall conform to
the applicable Weekly Demand Release, and (iii) shall not cause any Laminated
Fabric to cease being First Quality Fabric (as defined in Section 3(e) herein)
or to become Defective Fabric (as such term is defined in Section 4(a) above).
(d) Upon Purchaser's receipt of a claim from any Customer that any
Lamination Service performed by AT was not performed in accordance with Section
4(c) above, Purchaser promptly shall notify AT of such claim, giving AT a
description sufficient for AT to identify the Laminated Fabric. Purchaser and AT
shall review such claim and confer with each other and the Customer to determine
whether such Laminated Fabric is Defective Fabric. AT, with Purchaser's prior
consent (such consent not to be unreasonably withheld), may contact the
complaining Customer directly in order to discuss such Customer's claim. If,
after Purchaser's and AT's efforts to resolve the claim, (i) Purchaser reduces
the selling price to the Customer of the Laminated Fabric in order to induce the
Customer to purchase the Laminated Fabric, then Purchaser shall be entitled to a
refund from AT of the amount of such reduction; or (ii) the Customer refuses to
purchase the Laminated Fabric because it is Defective Fabric, then AT shall
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refund to Purchaser (i) all amounts paid by Purchaser to AT with respect to such
Lamination Services, and (ii) all amounts paid or owed by Purchaser for the
purchase of the Laminated Fabric and all other costs or expenses incurred by
Purchaser in the production or improvement of the Laminated Fabric, if any. In
Purchaser's sole discretion, such refund may be in the form of a credit against
existing or future Invoices. Purchaser's rights with respect to such Laminated
Fabric shall be in addition to any other rights Purchaser may have hereunder or
under applicable law, including, without limitation, any rights to
indemnification under Section 11 below.
(e) Each of AT and Purchaser shall use their commercially
reasonable best efforts to cooperate with each other with respect to scheduling
production of and shipping Fabric, including, without limitation, Laminated
Fabric, and resolving any complaints by Customers concerning Fabric (including,
without limitation, Laminated Fabric), including, without limitation, complaints
involving quality, production times or service issues; provided, however, that
AT shall not communicate directly with any Customer with respect to Fabric
without the prior written consent of Purchaser. In the event that AT produces
Fabric, including, without limitation, Laminated Fabric or Piece-Dyed Fabric,
that does not conform to the specifications for that Fabric, AT may ship such
Fabric to the Customer for whom it was ordered upon obtaining Approval.
"Approval" means Purchaser's written instructions to ship such Fabric, such
instructions given in Purchaser's sole discretion and delivered to AT after AT
has delivered written notice to Purchaser that such Fabric does not conform to
its specifications and describing in reasonable detail the nonconformity.
Anything herein to the contrary notwithstanding, Purchaser's failure to give or
delay in giving Approval shall not toll or extend the production time or
delivery date.
5. INVOICED INVENTORY. For a maximum of thirty (30) days, at no additional
cost to Purchaser, AT shall hold at mutually agreed upon finished product
warehouses (provided that, AT shall not be bound to provide more than 600 square
meters of storage space) Fabric for which it has delivered to Purchaser an
Invoice until Purchaser requests that such Fabric be shipped to another location
(such Fabric, "Invoiced Inventory"); provided, however, that after such thirty
(30) day period, AT shall be entitled to collect from Purchaser a reasonable
monthly fee, such fee being set forth on Schedule 5, attached hereto and
incorporated herein by reference, for the storage of such Invoiced Inventory.
Should Purchaser require more than 600 square meters of storage space for
Fabric, (a) if AT has any available space it shall hold the Fabric and charge a
reasonable monthly fee for the storage of Fabric beyond the 600 square meters,
or (b) if AT does not have any available space, it shall notify so to Purchaser,
and deposit the Fabric in the warehouse that Purchaser notifies to AT, or
failing to do so in warehouse chosen by AT, at Purchaser's sole cost. AT shall:
(i) take reasonable care to safeguard the Invoiced Inventory, (ii) store the
Invoiced Inventory in a manner to avoid damage, destruction and theft; provided,
however, that Purchaser agrees that AT's current manner of storing Invoiced
Inventory is satisfactory; (iii) segregate the Invoiced Inventory from the
inventory of AT and inventory of others held by AT; (iv) identify, through
labeling or otherwise, the Invoiced Inventory as owned by Purchaser; (v) not
permit any liens of AT's creditors to attach to the Invoiced Inventory; (vi)
pack the Invoiced Inventory for shipping in accordance with Purchaser's
instructions consistent with past practices; and (vii) arrange for shipping of
the Invoiced Inventory in accordance with Purchaser's instructions consistent
with past practices, such instructions to be provided to AT, along with all
necessary shipping documents, at least forty-eight (48) hours prior to
Purchaser's
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desired shipping date. In addition, AT shall procure and provide, at AT's sole
expense, and shall provide to Purchaser evidence of insurance policies covering
the Invoiced Inventory against loss caused by theft, fire, flood, natural
disaster and other casualty naming Purchaser as an additional insured. Such
insurance shall be in such amounts and under such terms as consistent with AT's
past practices and existing policies, and AT shall notify Purchaser of the
amount of such insurance so that Purchaser may obtain additional insurance to
insure for the balance of the full replacement value if so desired. Purchaser
shall be entitled to inspect and count the Invoiced Inventory at any time during
AT's normal business hours.
6. EARLY TERMINATION EVENTS.
(a) Upon the occurrence of any of the following events, Purchaser
may terminate this Agreement by delivering written notice of such termination to
AT:
(i) The amount of Purchaser's returns and allowances with
respect to Fabric and Lamination Services (based on
the Net Sales Prices of the Fabrics returned by
Customers, the amounts paid by Purchaser to AT with
respect to Laminated Fabrics returned by Customers
and the amounts of any reductions in price arising
from quality claims allowed to Customers) during any
consecutive sixty (60) day period exceeds two and
one-half percent (2.5%) of the aggregate amount of
sales of Fabric to Customers during the same period
(based on the Net Sales Prices); provided, however,
that any Fabric, including, but not limited to
Laminated Fabric, for which AT has obtained Approval
that is subsequently returned by the Customer shall
not be included in the calculations of returns and
allowances.
(ii) Delivery, during any consecutive sixty (60) day
period, of more than ten percent (10%) of all
shipments of Fabric, including, without limitation,
Laminated Fabric, Existing Fabric and In Process
Fabric, after the delivery date set forth in the
applicable Weekly Demand Release (as such delivery
date may be modified by Purchaser in accordance with
Section 3(c)(iv) above or by AT's written consent.
(iii) Three (3) notifications, pursuant to Section 3(d)
above, in any sixty (60) day period by AT to
Purchaser that AT is unable to fulfill Purchaser's
requirements of Fabric and/or Lamination Services as
set forth in the Weekly Demand Release.
(iv) AT's failure to pay timely any amount owed by AT to
Purchaser within ten (10) days after receipt of
written notice from Purchaser of such failure;
(v) AT's failure to cure any breach of this Agreement,
other than the breach described in Section 6(a)(i)
above, within ten (10) days after Purchaser's
delivery to AT of written notice thereof; or
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(vi) The breach of the Noncompetition Agreement, as
defined in the Purchase Agreement, by any party
thereto other than Purchaser;
(b) Upon the occurrence of any of the following events, AT may
terminate this Agreement by delivering written notice of such termination to
Purchaser:
(i) Purchaser's failure to pay timely any Invoice within
ten (10) days after receipt of written notice from
Purchaser of such failure, unless Purchaser, in good
faith, disputes the amount of such Invoice or the
quality of the goods covered by such Invoice and has
delivered to AT written notice of such dispute;
(ii) Purchaser's failure to cure any breach of this
Agreement within ten (10) days after AT's delivery to
Purchaser of written notice thereof; or
(iii) Commencing 2004, on each December 16 occurring during
the Term, if, during the previous year, Purchaser has
not ordered Fabric and/or Lamination Services with an
aggregate purchase price of at least Ten Million and
No/100 Dollars ($10,000,000.00); provided, however,
that (A) Purchaser shall not be in breach of this
Agreement merely because AT becomes entitled to
terminate this Agreement pursuant to this Section
6(b)(iii), (B) AT's right to terminate this Agreement
pursuant to this Section 6(b)(iii) shall be the sole
and exclusive consequence of Purchaser's ordering
Fabric and Lamination Services in an amount less than
Ten Million and No/100 Dollars ($10,000,000.00), and
(C) the amounts of all orders of Purchaser that are
rejected by AT shall be included in the calculation
of such aggregate purchase price.
Each of the events described in Sections 6(a) and 6(b) is an "Early
Termination Event."
(c) Anything herein to the contrary notwithstanding, termination
of this Agreement for any reason shall not alter, diminish or limit (i) the then
existing obligations of either party to pay to the other any amounts due
hereunder, (ii) the post-termination obligations set forth in Section 7 below,
or (iii) the indemnification obligations of either party set forth in Section 10
below.
7. TERMINATION OF AGREEMENT.
(a) If this Agreement is terminated by any party in accordance
with clause (i) of Section 1 or by AT in accordance with Section 6(b), then
within thirty (30) days after the Termination Date, Purchaser shall purchase
from AT, and AT shall sell to Purchaser, all inventory owned by AT, including,
without limitation, all raw materials, yarn, greige goods and in-process goods,
purchased or acquired at the direction or request of Purchaser and necessary for
the production of the AT-Made Fabric ordered by Purchaser in Weekly Demand
Releases previously accepted by AT. Without limiting the foregoing, if at the
termination of this Agreement there remains any raw materials in AT's inventory,
which was purchased prior to the
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Effective Date to satisfy previously made orders for AT-Made Fabric or
Lamination Services, and is not yet In Process Fabric, Purchaser shall purchase
such raw materials. The purchase price for any such raw materials and other
inventory in accordance with this Section 7(a) shall be AT's cost, as "cost" is
defined by United States General Accepted Accounting Principles (GAAP).
(b) Upon termination of this Agreement, Purchaser shall have not
less than forty-five (45) days after the Termination Date to remove from AT's
production facility the Invoiced Inventory and any other inventory or materials
owned by Purchaser. Until such time as Purchaser has removed the Invoiced
Inventory and all other inventory and materials owned by Purchaser, AT shall
store and maintain the Invoiced Inventory and all other inventory and materials
owned by Purchaser in accordance with Section 5 above. After the forty five (45)
day-period mentioned above, AT shall be entitled to deposit at the sole cost of
Purchaser the Invoiced Inventory and any other inventory or materials owned by
Purchaser with a Deposit General Warehouse (Almacen General de Deposito) and
appear before a judge having jurisdiction on Ecatepec xx Xxxxxxx, Estado de
Mexico to perform delivery by means of consignacion de pago.
8. [INTENTIONALLY OMITTED]
9. PIECE-DYED AUTOMOTIVE PRODUCTS. AT shall cooperate with Purchaser to
transfer the production of the piece-dyed automotive products identified on
Schedule 2(a), attached hereto and incorporated herein by reference ("Piece-Dyed
Goods"), from AT's facility to another production facility. Purchaser shall use
its commercially reasonable efforts to accomplish such transfer by December 31,
2003. Until such time as the production of any Piece-Dyed Good is transferred
from AT's facility, such Piece-Dyed Good shall be deemed "AT-Made Fabric" for
purposes of this Agreement and the production and sale of such Piece-Dyed Good
shall be subject to the terms and conditions of this Agreement; provided,
however, that the price for the Piece-Dyed Goods shall be the full Net Sales
Price. After the transfer of the production of any Piece-Dyed Good, to the
extent that AT shall provide Lamination Services for such Piece-Dyed Good, such
Piece-Dyed Good shall be deemed "Laminated Fabric" for purposes of this
Agreement and the Lamination Services performed by AT with respect to such
Piece-Dyed Good shall be subject to the terms and conditions of this Agreement.
When the production of all Piece-Dyed Goods has been transferred, AT shall sell
to Purchaser and Purchaser shall purchase from AT all inventory (including,
without limitation, raw materials) required for the production of the Piece-Dyed
Goods ordered by Purchaser in the most recent Weekly Demand Release and
purchased or acquired by AT at Purchaser's request. The purchase price for such
inventory shall be AT's cost as defined by GAAP.
10. LEASE OF OFFICE SPACE. TZ, AT, SCA, or such other appropriate
affiliated party of any of them (as referenced in this Section 10, the
"Landlord") shall lease to Purchaser certain office space as more particularly
described in Schedule 10 (the "Office Space") at a rate equal to $4,000 (U.S.
Dollars) per month, or such pro rata portion thereof. All rent shall be due and
payable on the 1st day of each month. The Landlord shall be responsible for
paying any and all taxes incurred, insurance, maintenance and utilities (but
excluding telephone services) with respect to the Office Space. Purchaser shall
lease the Office Space during the Term of this Agreement; provided, however,
that (i) Purchaser shall have the option to earlier terminate its lease of the
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Office Space pursuant to this Section 10 upon delivering notice to the Landlord
no less that thirty (30) calendar days prior to such termination, and (ii) in
the event this Agreement is terminated by Purchaser pursuant to an Early
Termination Event (as defined in Section 6 of this Agreement), Purchaser, at its
option, shall be entitled to remain in the Office Space for a period not to
exceed forty five (45) days following the date of such termination.
11. INDEMNIFICATION.
(a) Obligation of AT, SCA, TZ and Acquisition LLC to Indemnify.
AT, SCA, TZ and Acquisition LLC each agrees to indemnify, defend and hold
harmless Purchaser against and with respect to any and all claims, demands,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including, without limitation, interest, penalties and reasonable attorneys'
fees ("Losses") that Purchaser 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 (i) the breach by AT, SCA, TZ or Acquisition
LLC of any provision of this Agreement, (ii) AT's manufacture, lamination,
transport, testing, inspection, packing or other treatment of Fabric, (iii) AT's
performance of the Lamination Services, or (iv) any negligent, reckless or other
tortious act or failure to act by AT, TZ, SCA or Acquisition LLC.
(b) Obligation of Purchaser to Indemnify. Purchaser agrees to
indemnify, defend and hold harmless AT, TZ, SCA and Acquisition LLC against and
in respect of any and all Losses that AT 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 Purchaser, TZ or
Acquisition LLC of any 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 11(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 12
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
14
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.
12. 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 12(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.
15
(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
Xxx Xxxx Xxxx, Xxx Xxxx, XXX 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 Xxx Xxxx Xxxx, Xxx Xxxx,
XXX 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.
13. ASSIGNMENT. This Agreement shall not be transferred or assigned by any
party, in whole or in part, except in accordance with this Section 13. 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.
14. WAIVER. 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.
15. NOTICES.
(a) Except as set forth in this Section 15, 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 such notice or other communication is sent by telex, facsimile
or similar electronic device, fully prepaid, which telex, facsimile or similar
electronic communication shall promptly be confirmed by telephone communication,
or (c) on the fifth day following the date of deposit in the United States mail
if such notice or other communication is sent by certified or registered air
mail (or its equivalent) with return receipt requested and postage thereon fully
prepaid. The addresses for such notices shall be as follows:
16
If to AT:
American Textil, 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 Purchaser:
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
(b) With respect to notices to and from Purchaser's Automotive
Business Unit Planning Manager and AT's Operation Manager and Planning
Assistant, as contemplated in Section 3(c) of this Agreement, the parties shall
notify each other in writing as to the identity and mailing address and contact
information for such Automotive Business Unit Planning Manager, Operation
Manager and Planning Assistant, from time to time, and the parties shall provide
notices in the manner set forth in Section 3(c).
17
(c) Any party hereto may, by notice to the other parties hereto,
change its address for receipt of notices hereunder.
16. FORCE MAJEURE. If any party is prevented from complying, either totally
or in part, with any of the terms or provisions of this Agreement by reason of
fire, flood, storm, strike, lockout or other labor trouble, riot, war,
rebellion, accident or other acts of God, then any other party's sole remedies
with respect thereto are as follows: (i) suspending this Agreement during the
period of such disability and/or (ii) terminating this Agreement in accordance
with its terms. If the non-breaching party elects to suspend or continue this
Agreement, the party prevented from complying shall make all reasonable efforts
to remove such disability within thirty (30) days of giving such notice.
17. ENTIRE AGREEMENT. This Agreement, along with all Exhibits and Schedules
attached hereto, and the Purchase Agreement, Assignment of Collection Rights,
the Noncompetition Agreement, the Release Agreements, Administrative Services
Agreement, the Information Technology Agreement and any other documents referred
to herein or therein which form a part hereof or thereof, embody the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties,
covenants or understandings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter. Except as set forth
herein, no supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by all of the parties hereto.
18. 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.
19. CONFLICT. In the event that the terms contained in any Purchase Order,
Invoice or other document evidencing a xxxx, order, shipment or other
transaction contemplated hereby conflicts with the terms of this Agreement, the
terms of this Agreement shall control.
20. SEVERABILITY. If any provision contained in this Agreement shall for
any reason be held invalid or unenforceable by 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.
21. CAPITALIZED TERMS. Capitalized terms not otherwise defined herein shall
have the meaning assigned in the Purchase 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.
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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
---------------------
Name: Xxxxxxx Nabielsky
---------------------
Title: Attorney-in-Fact
---------------------
AMERICAN TEXTIL ACQUISITION, LLC
By: /s/ Xxxxxxx Nabielsky
------------------------------
Name: Xxxxxxx Nabielsky on behalf of
Textiles Zana, S.A. de C.V.
------------------------------
Title: Attorney-in-Fact
------------------------------
SERVICIOS CORPORATIVOS AMBAR, S.A. DE C.V.
By: /s/ Xxxxxxx Nabielsky
---------------------
Name: Xxxxxxx Nabielsky
---------------------
Title: Attorney-in-Fact
---------------------
AMERICAN TEXTIL, S.A. DE C.V.
By: /s/ Xxxxxxx Nabielsky
---------------------
Name: Xxxxxxx Nabielsky
---------------------
Title: Attorney-in-Fact
---------------------
GUILFORD DE MEXICO, S.A. DE C.V.
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------
Name: Xxxxxx X. Xxxxx, Xx.
------------------------
Title: Attorney-in-Fact
------------------------
19
XXXXXXXX XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------
Name: Xxxxxx X. Xxxxx, Xx.
------------------------
Title: General Counsel
------------------------
20
