EXHIBIT 10.93
EQUIPMENT PURCHASE AGREEMENT
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THIS EQUIPMENT PURCHASE AGREEMENT is made and effective as of the
fifth day of October, 2000, by and between TARRANT MEXICO, S. de X.X. de C.V., a
limited liability company formed under the laws of the Republic of Mexico
("Seller"), and TEX TRANSAS, S.A. de C.V., a corporation formed under the laws
of the Republic of Mexico ("Buyer"), with respect to the following facts:
A. Seller is the owner of certain equipment and other tangible,
personal property used in connection with the production of twill and denim
fabric and certain cotton, work in process and twill and denim fabric.
B. Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, such equipment and inventory on the terms and conditions set forth
in this Agreement.
C. Seller has advanced to Buyer from time to time an aggregate of
U.S. $12,469,624.
D. Seller and Buyer each desires to provide for the repayment of
such advances on the terms and conditions set forth in this Agreement.
ACCORDINGLY, subject to the terms and conditions of this Agreement,
and on the basis of the premises, representations, warranties and agreements
contained herein, the parties hereto agree as follows:
1. Sale of Equipment.
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(a) Seller hereby grants, bargains, sells and conveys to Buyer, and
Buyer hereby purchases from Seller, the equipment and other tangible, personal
property described on Exhibit A hereto (the "Equipment").
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(b) In consideration for the Equipment, Buyer shall pay Seller the
amount of $33,820,279 (the "Equipment Purchase Price").
2. Sale of Inventory.
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(a) Seller hereby grants, bargains, sells and conveys to Buyer, and
Buyer hereby purchases from Seller, the cotton, work in process and twill and
denim fabric described on Exhibit B hereto (the "Inventory").
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(b) In consideration for the Inventory, Buyer shall pay Seller the
amount of $1,412,225 (the "Inventory Purchase Price"). The Equipment Purchase
Price and the Inventory Purchase Price are referred to herein collectively as
the "Purchase Price."
3. Promissory Note. Simultaneously with the execution and delivery of
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this Agreement, Buyer has satisfied the Purchase Price in full by executing in
favor of Seller in the amount of the Purchase Price a secured promissory note
(the "Secured Promissory Note") which is attached as Exhibit C. The Secured
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Promissory Note represents the Purchase Price together with U.S. $12,469,624 of
funds previously advanced by Seller to Buyer.
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4. Title to the Equipment and the Inventory shall pass to Buyer on the
date entered on the Xxxx of Sale attached as Exhibit D.
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5. No Warranty. Seller makes no representation or warranty, either
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express or implied, as to the fitness, quality, design, condition, capacity,
suitability, merchantability or performance of the Equipment or the Inventory or
the material or workmanship thereof. The Equipment and the Inventory are being
sold "AS IS," and all such risks, as between Seller and Buyer, are to be borne
by Buyer at its sole risk and expense. Buyer hereby acknowledges that it has
had the opportunity to inspect the Equipment and the Inventory and that the
Equipment and the Inventory are in good condition and are fit for Buyer's
intended purposes.
6. Relationship of the Parties. The relationship between the parties
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hereto under this Agreement is solely that of seller and purchaser, and neither
party is or shall be construed to be a partner, joint venturer, employee, agent,
representative, franchisee or participant of or with the other party for any
purpose whatsoever. Neither party shall have any right or authority whatsoever
to assume or to create any obligation or responsibility, express or implied, on
behalf of or in the name of the other party or to bind the other party in any
capacity.
7. No failure to exercise, and no delay in exercising, any right, power or
remedy hereunder shall impair any right, power or remedy which any party may
have, nor shall any such delay be construed as a waiver of any such rights,
powers or remedies or an acquiescence in any breach or default under this
Agreement. The rights and remedies herein specified are cumulative and not
exhaustive of any rights or remedies which any party would have. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
8. Notices. Any notice or other communication required or permitted
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hereunder shall be in writing in the English language and shall be deemed to
have been given (i) if personally delivered, when so delivered, (ii) if mailed,
one (1) week after being placed in the United States mail certified, return
receipt requested, postage prepaid, addressed to the party to whom it is
directed at the address set forth on the signature page hereof or (iii) if given
by telecopier, when such notice or communication is transmitted to the
telecopier number set forth on the signature page hereof and written
confirmation of receipt is received. Each such address shall be deemed to be a
"domicilio convencional" pursuant to Article 34 of the Civil Code for the
Federal District and Article 38 of the Civil Code for the State of Tlaxcala.
Each of the parties shall be entitled to specify a different address by giving
the other parties notice as aforesaid.
9. Entire Agreement. This Agreement and the schedules and exhibits hereto
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(which are incorporated herein by reference) constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof and supersede
all prior agreements, understandings, negotiations and discussions, whether oral
or written, relating to the subject matter of this Agreement. No supplement,
modification, waiver or termination of this Agreement shall be valid unless
executed by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver, unless otherwise expressly provided.
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10. Headings. Section and subsection headings are not to be considered
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part of this Agreement and are included solely for convenience and reference and
in no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
11. Successors and Assigns. All of the terms, provisions and obligations
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of this Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns.
12. Governing Law. The validity, construction and interpretation of this
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Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
13. Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
14. Parties. Nothing in this Agreement, expressed or implied, is
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intended to confer upon any person other than the parties hereto and their
respective heirs, representatives, successors and assigns any rights or remedies
under or by reason of this Agreement.
15. Attorneys' Fees. In the event any party takes legal action to enforce
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any of the terms of this Agreement, the unsuccessful party to such action shall
pay the successful party's expenses (including, but not limited to, reasonable
attorneys' fees and costs) incurred in such action.
16. Further Assurances. Each party hereto shall, from time to time at and
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after the date hereof, execute and deliver such instruments, documents and
assurances and take such further actions as the other parties reasonably may
request to carry out the purpose and intent of this Agreement.
17. Arbitration. Any controversy arising out of or relating to this
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Agreement or the transactions contemplated hereby shall be referred to
arbitration before the American Arbitration Association strictly in accordance
with the terms of this Agreement and the substantive law of the State of
California. The board of arbitrators shall convene at a place mutually
acceptable to the parties in the State of California and, if the place of
arbitration cannot be agreed upon, arbitration shall be conducted in Los
Angeles. The parties hereto agree to accept the decision of the board of
arbitrators, and judgment upon any award rendered hereunder may be entered in
any court having jurisdiction thereof. Neither party shall institute a
proceeding under this Section 17 until that party has furnished to the other
party at least thirty (30) days prior written notice of its intent to do so in
accordance with Section 8.
18. Construction. This Agreement was reviewed by legal counsel for each
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party hereto and is the product of informed negotiations between the parties
hereto. If any part of this Agreement is deemed to be unclear or ambiguous, it
shall be construed as if it were drafted jointly by the parties. Each party
hereto acknowledges that no party was in a superior bargaining position
regarding the substantive terms of this Agreement.
19. Consent to Jurisdiction. Subject to Section 17, each party hereto, to
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the fullest extent it may effectively do so under applicable law, irrevocably
(i) submits to the exclusive jurisdiction of any court of the State of
California or the United States of America sitting in the City of Los Angeles
over any suit, action or proceeding arising out of or relating to this
Agreement, (ii) waives and agrees
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not to assert, by way of motion, as a defense or otherwise, any claim that it is
not subject to the jurisdiction of any such court, any objection that it may now
or hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum,
(iii) agrees that a final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon such party and
may be enforced in the courts of the United States of America, the State of
California or the Republic of Mexico (or any other courts to the jurisdiction of
which such party is or may be subject) by a suit upon such judgment and (iv)
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof by United States mail, registered or certified, postage
prepaid, return receipt requested, to CT Corporation at 000 Xxxx Xxxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (and each party hereby irrevocably appoints CT
Corporation as its lawful agent to accept such service of process on behalf of
such party). Each party agrees that such service (i) shall be deemed in every
respect effective service of process upon such party in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to such party.
20. Expenses. Each party shall bear the expenses incurred by it in
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connection with the negotiation, execution and delivery of this Agreement and
the other agreements and instruments contemplated hereby and the consummation of
the transactions contemplated hereby and thereby.
21. Severable Provisions. The provisions of this Agreement are severable,
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and if any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provisions to the extent enforceable, shall nevertheless be
binding and enforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
Seller: TARRANT MEXICO, S. de X.X. de C.V.,
a limited liability company formed
under the laws of the Republic of Mexico
By /s/ Xxxxxx Xxxx
______________________________________
Xxxxxx Xxxx
Authorized Representative
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
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Buyer: TEX TRANSAS, S.A. de C.V.,
a corporation form under the laws of
the Republic of Mexico
By /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Authorized Representative
Xxxxx Xxxxx Xxx #231
Col. Xxxxxxx, X.X. 00000
Xxxxxx D.F.
Telecopier: (000) 000-0000
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EXHIBIT D
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Xxxx of Sale
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XXXX OF SALE
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FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, and pursuant to that certain Equipment Purchase Agreement
dated as of October 5, 2000 (the "Equipment Purchase Agreement"), by and between
Tarrant Mexico, S. de X.X. de C.V., a limited liability company formed under the
laws of the Republic of Mexico, ("Seller"), and Tex Transas, S.S. de C.V., a
corporation formed under the laws of the Republic of Mexico ("Buyer"), Seller
does hereby grant, bargain, transfer, sell, assign, convey and deliver to Buyer
all right, title and interest in and to the Equipment and the Inventory, as such
terms are defined in the Equipment Purchase Agreement.
Seller hereby covenants and agrees that, at any time and from time to time
forthwith upon the written request of Buyer, Seller will do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered, each and all of such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may reasonably be required by
Buyer in order to assign, transfer, set over, convey, assure and confirm unto
and vest in Buyer, its successors and assigns, title to the Equipment and the
Inventory sold, conveyed, transferred and delivered by this Xxxx of Sale.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of October 5,
2000.
TARRANT MEXICO, S. de X.X. de C.V.,
a limited liability company formed under
the laws of the Republic of Mexico
By /s/ Xxxxxx Xxxx
_______________________________
Xxxxxx Xxxx
Authorized Representative
