EXHIBIT 10.43
AGREEMENT
The present agreement (the "Agreement") is made effective as of the 1/st/ day of
February 2002 by and between
Tecnopea Srl, a company established and organized under the laws of the Italian
Republic, having its legal address in Italy, 25027 Quinazno d'Oglio (BS), Via
Xxx X. Xxxxx 2, registered nr. 0159523986, represented by its legal
representative Xx. Xxxxxx Xxxxxx (hereinafter "Tecnopea");
On one hand
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 and 900, Xxxxxx, Xxxxxxx 00000, represented
by its legal representative and executive officer Xx. Xxxxxx X. Xxxxxxxx;
On the other hand
Preliminary Statements:
A. On account of certain past transactions between Tecnopea and Xxxxxxxx
(hereinafter the "Transactions"), several debts emerged toward Tecnopea;
B. Presently, Xxxxxxxx owes to Tecnopea the total amount of USD 4,000.00 (Four
Thousand US Dollar) plus (Euro) 8.292,81 (Eight Thousand Two Hundred Ninety-Two
and 81/100 Euro);
E. The Parties wish to enter this Agreement for the purpose of agreeing and
confirming the terms and conditions of payment of Speizman's outstanding trade
debts 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 commit itself to insure the correct and full performance of all
outstanding and further trade debts towards Tecnopea according to the terms and
conditions of payment
previously agreed upon by Tecnopea itself and Xxxxxxxx in the purchase orders
and related correspondence.
2.2 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, Tecnopea hereby agrees to refrain and forbear temporarily from
exercising and enforcing any of their remedies with respect to the outstanding
debt of Xxxxxxxx to Tecnopea.
3. Further trade debts
3.1 Xxxxxxxx shall pay all future trade spare part orders on and after the date
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 date 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 Tecnopea for the Products. With respect to the 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 Tecnopea. Other terms of
the Letters of Credit must be satisfactory to Tecnopea.
3.5 The terms of payment set forth in this Section 3 shall apply to all
purchases made 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 50,000.00 (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 Tecnopea may terminate this Agreement and/or the 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
2
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 thirty (30) 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 $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 Dollar) and for a term extending
beyond July 31, 2003.
4.2 Accordingly, in the event of early termination of this Agreement, the time
limits provided herein favour of debtor are to expiry immediately and Tecnopea
will be entitled to claim any and all accrued credits against Xxxxxxxx pursuant
to the Transactions.
4.3 Immediately upon the occurrence of any default under this Agreement (i) the
obligations, agreement, and commitments of Tecnopea 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) Tecnopea shall
have the right to declare the principal of and interest on the indebtedness of
Xxxxxxxx to Tecnopea, at the time outstanding, and all other amounts owed to
Tecnopea 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 (iii) Tecnopea shall have the
right to exercise and enforce any and all rights and remedies available to
Tecnopea under this Agreement, under any and all documents executed and
delivered in connection with this Agreement, under the Transactions and under
applicable laws to the same extent as though no forbearance had been agreed to
by
3
Tecnopea 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
Xxxxxxxx will be Tecnopea's exclusive distributor in U.S.A. and Canada for the
sale of Tecnopea's products through and including July 3/rd/, 2004, unless the
early termination of the Transactions and/or of this Agreement occur.
6. Reference currency
All transactions relating to this Agreement, as well as the Transactions, are to
be wholly paid in Euros (Euro) or US Dollars on account of the currency
designated in the respective 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, Tecnopea shall
have the further right to file any legal proceeding against Xxxxxxxx before any
court of competent jurisdiction, State or Federal, in the States of North and
South Carolina.
8. Final Clause
8.1 Should any provision 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 Transactions which
shall remain in full force and effect except expressly amended hereby.
Tecnopea SpA Xxxxxxxx Industries, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- -------------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Xxxxxxxx Yarn Equipment, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
4
Wink Xxxxx Equipment Co., Inc.
By: /s/ P. Xxxxxx Xxxxxx, XX
-------------------------------------
Name: P. Xxxxxx Xxxxxx, XX
Title: President
Brescia, (date) Charlotte, (date)
24-06-02
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.
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)
/s/ June 25, 02
5
