EXHIBIT 10.100
AGREEMENT FOR PURCHASE OF ASSETS
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THIS AGREEMENT FOR PURCHASE OF ASSETS is made and effective as of the 1st
day of August, 2000, by and among TARRANT MEXICO, S. de ▇.▇. de C.V., a
corporation organized under the laws of the Republic of Mexico (the
"Purchaser"), CONFECCIONES JAMIL, S.A. de C.V. and INMOBILIARIA ▇▇▇▇▇▇▇, ▇.▇. de
C.V., corporations organized under the laws of the Republic of Mexico
(collectively, the "Sellers"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CHAPUR, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CHINELY ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (collectively, the "Shareholders" ), with respect to the following
facts:
A. Confecciones Jamil S.A. de C.V., is engaged in the manufacturing of
apparel, among other businesses.
B. Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., is engaged in the development and
sale of real estate among other businesses.
C. The Shareholders own all the issued and outstanding capital stock of
the Sellers.
D. The Purchaser desires to purchase from the Sellers, and the Sellers
desire to sell to the Purchaser, certain assets, all upon the terms and
conditions contained herein.
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. PURCHASE AND SALE OF ASSETS
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1.1 Purchase and Sale.
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(a) Confecciones Jamil S.A. de C.V. and Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de
C.V. shall sell, assign, transfer, convey and deliver to the Purchaser, and the
Purchaser shall purchase and take from such Sellers, on the dates and under the
terms described in Section 1.2 and Schedule 1.2(b) therein, the machinery and
equipment ("Machinery and Equipment"), the real property and facilities for the
manufacture of wearing apparel located in in the Plant ("Real Property") and the
other assets as set forth on Schedule 1.1(a) of the Sellers which are used in
connection with the manufacturing of apparel, as the same shall exist on the
respective Closing Date (together the Machinery and Equipment, Real Property and
other assets, the "Assets").
(b) Notwithstanding Section 1.1(a), the Sellers shall not sell,
assign, transfer, convey or deliver to the Purchaser hereunder, and shall
retain, the property and assets of the Sellers set forth on Schedule 1.1(b).
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1.2 Purchase Price.
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(a) In consideration of the sale of the Assets to the Purchaser, the
Purchaser shall pay or deliver to the Sellers the following (the "Purchase
Price"):
(i) the sum of U.S. $3,189,156.68 shall be paid in cash to
Confecciones Jamil S.A. de C.V., on or before the Initial Closing Date (as
defined below).
(ii) the sum of U.S. $7,810,843.311 shall be paid in cash to
Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., on or before the Subsequent Closing Date
(as defined below).
(b) The Purchase Price shall be allocated among the Assets and paid as
set forth on Schedule 1.2(b).
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1.3 Assumption of Liabilities.
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(a) Except as provided in Section 1.3(c), the Purchaser shall purchase
and take the Assets from Sellers free and clear of all liens, claims, charges,
encumbrances, security interests, equities, restrictions on use, liabilities,
obligations, expenses and debts ("liabilities") related to Confecciones Jamil
S.A. de C.V. in connection with the Machinery and Equipment and other assets
owned by such company that are part of this agreement and/or to Inmobiliaria
▇▇▇▇▇▇▇ ▇.▇. de C.V. in connection with the Real Property being such liabilities
known and unknown, whether absolute, contingent, accrued or otherwise,
including, but not limited to, liens, claims, charges, encumbrances and
restrictions attributable to Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., on the use,
possession, and ownership of (i) "Parcelas 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇ ▇▇/▇, and 176 Z-1
P2/2 of Ejido Pantzingo, Municipio de Ajalpan, Puebla" and constructions
therein, and (ii) those liabilities set forth in Schedule 1.3(a).
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(b) Confecciones Jamil S.A. de C.V. and its shareholders and
Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V. and its shareholders respectively and only
with regard to the assets that each of such Sellers and its shareholders own
shall pay or perform, and shall defend, indemnify and hold harmless the
Purchaser from, any and all liabilities which arise or result from or are
related to, directly or indirectly, the Assets or the business or operations
with the Sellers or the Shareholders, or any of them, including, but not limited
to, those liabilities, losses, deprivations of use, possession or ownership
related directly or indirectly with "Parcelas 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇ ▇▇/▇, and 176
Z-1 P2/2 of Ejido Pantzingo, Municipio de Ajalpan, Puebla" and constructions
therein, whether the same arise before or after the relevant
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Closing Date, other than those liabilities expressly assumed by the Purchaser
under Section 1.3(c).
(c) Notwithstanding anything to the contrary contained in this Section
1.3, the Purchaser shall assume, perform and hold the Sellers harmless from
those liabilities set forth on Schedule 1.3(c) (other than such liabilities as
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are payable on or before the relevant Closing Date or as to which the Sellers
are then in default).
(d) The Purchaser shall have the right, but not the obligation, to pay
any amount or to perform any obligations which the Purchaser, in its sole and
absolute discretion, determines is payable or is required to be performed by
Confecciones Jamil S.A. de C.V. or its shareholders under that certain Contrato
Colectivo de Trabajo, dated August 5, 1998, between Confecciones Jamil, S.A. de
C.V. and Sindicato Nacional de Trabajadores de la Industria de la Costura,
Corte, Confeccion, Bordados y Similares de la Republica Mexicana (the
"Collective Bargaining Agreement"). The assumption of labor liabilities are
specifically indicated on that certain agreement entered into by and between the
Purchaser and Confecciones Jamil, S.A. de C.V. dated August 1, 2000 (the "Labor
Agreement") attached hereto as Exhibit A. The Purchase Price shall be reduced
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by any such amount paid or the cost to the Purchaser of any such obligation
performed. The Purchaser shall have the right (i) to set off any such amount or
cost against any portion of the Purchase Price then payable to Confecciones
Jamil S.A. de C.V. or (ii) to demand that Confecciones Jamil S.A. de C.V. and
its shareholders reimburse the Purchaser therefore promptly on demand, and the
Confecciones Jamil S.A. de C.V. and its shareholders, jointly and severally,
shall do so.
1.4 Delivery of Assets.
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(a) Delivery of possession of the Real Property by Inmobiliaria
▇▇▇▇▇▇▇ ▇.▇. de C.V. shall be deemed to have occurred for all purposes at 11:59
P.M. (local time) the day before the Subsequent Closing Date, and all risk of
loss, whether or not covered by insurance, shall be on the Inmobiliaria ▇▇▇▇▇▇▇
▇.▇. de C.V. until such date and time and on the Purchaser thereafter. Delivery
of possession of the Machinery and Equipment and other assets owned by
Confecciones Jamil S.A. de C.V. that are a part of this agreement shall be
deemed to have occurred for all purposes at 11:59 P.M. (local time) the day
before the Initial Closing Date, and all risk of loss, whether or not covered by
insurance, shall be on Confecciones Jamil S.A. de C.V. until such date and time
and on the Purchaser thereafter.
(b) On the Subsequent Closing Date, Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V.
shall deliver to the Purchaser at the Plant (as defined below) physical
possession of the Real Property wherever located. On the Initial Closing Date,
Confecciones Jamil S.A. de C.V. shall deliver to the Purchaser at the Plant
physical possession of the Machinery and Equipment, wherever located. With
respect to any Assets which cannot be physically delivered because they are in
the possession of third parties, or otherwise, the Sellers respectively shall
give irrevocable instructions to the party in possession thereof that all right,
title and interest in and to the same shall have been vested in the Purchaser,
and shall take such further action and execute and deliver such further
documents, at the Sellers' sole cost and expense, as the Purchaser reasonably
may request to cause any such person to deliver any
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Assets held by it to the Purchaser at the Plant. The term "Plant" shall mean
that certain manufacturing facility located at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇.
(▇) On or before the Initial Closing Date, Confecciones Jamil S.A. de
C.V. and its shareholders shall execute and deliver all such invoices, deeds,
bills of sale, import documentation ("pedimentos de importacion"), assignments,
consents and other documents and instruments of conveyance, transfer, assignment
and further assurances as shall be necessary or desirable, in the reasonable
opinion of counsel to the Purchaser, to vest in or to confirm in the Purchaser
good title in and to the Machinery and Equipment. On the Initial Closing Date,
and from time to time thereafter, at the request of Confecciones Jamil S.A. de
C.V., the Purchaser shall execute and deliver to such party all such instruments
of assumption as shall be necessary or desirable, in the reasonable opinion of
counsel to Confecciones Jamil S.A. de C.V., to reflect the assumption by the
Purchaser of those liabilities of such seller expressly assumed by the Purchaser
under Section 1.3(c).
(d) On the Subsequent Closing Date, and from time to time thereafter,
at the request of the Purchaser, Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., and its
shareholders shall execute and deliver to the Purchaser all such deeds, bills of
sale, endorsements, assignments, consents and other documents and instruments of
conveyance, transfer, assignment and further assurances as shall be necessary or
desirable, in the reasonable opinion of counsel to the Purchaser, to vest in or
to confirm in the Purchaser good title in and to the Real Property and other
assets, including, but not limited to, the execution of public deeds in
accordance with Mexican law, for the acquisition of the Real Property and all
the legal consents, notices, and assurances by members of the "Ejido Pantzingo"
and relatives of the "Ejidatarios" and "avecindados" therein in accordance with
Articles 23, 80 and 84 of the "Ley Agraria". On the Subsequent Closing Date, and
from time to time thereafter, at the request of the Sellers, the Purchaser shall
execute and deliver to Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., all such instruments
of assumption as shall be necessary or desirable, in the reasonable opinion of
counsel to Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., to reflect the assumption by the
Purchaser of those liabilities of Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V., expressly
assumed by the Purchaser under Section 1.3(c).
1.5 Closing. The purchase and sale of the Machinery and Equipment
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contemplated by this Agreement shall take place at 10:00 A.M. (local time) on
September 1, 2000 at the offices of Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S.C. located at
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇ "▇" ▇▇▇▇ ▇, Col. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ D.F., or at such other time or place as may be mutually agreed
upon by the parties in writing. The date on which the purchase and sale of the
Machinery and Equipment contemplated by this Agreement shall take place is
referred to herein as the "Initial Closing Date." The purchase and sale of the
Assets (other than Machinery and Equipment) contemplated by this Agreement shall
take place at 10:00 A.M. (local time) on the third business day after the
conditions set forth in Section 5 have been satisfied or waived at the offices
of Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S.C. located at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇,
▇▇▇▇▇ "▇" ▇▇▇▇ ▇, Col. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ D.F., or at such other
time or place as may be mutually agreed upon by the
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parties in writing. The date on which the purchase and sale of the Assets (other
than the Machinery and Equipment) contemplated by this Agreement shall take
place is referred to herein as the "Subsequent Closing Date." The obligation of
any party to consummate the purchase and sale of the Assets contemplated by this
Agreement may be terminated by such party after May 31, 2001, if such purchase
and sale shall not have occurred by the close of business on that date,
providing the terminating party is not in default of any of its obligations
hereunder. On the respective Closing Date, the Sellers and Shareholders shall
deliver to the Purchaser the Assets in accordance with Section 1.4(b) and the
instruments of transfer referred to in Sections 1.4(c) and 1.4(d), against
receipt of the Purchase Price and the instruments of assumption referred to in
Section 1.4(c) and 1.4(d). All deliveries shall be considered to have taken
place simultaneously as a single transaction on each Closing Date, and no
delivery shall be considered to have been made until all deliveries are
completed.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND THE SHAREHOLDERS
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The Sellers and the Shareholders, jointly and severally, hereby represent
and warrant to the Purchaser that their statements set forth in Sections 2.1
through 2.18 are true and correct.
2.1 Authority to Enter Agreement and Enforceability. The Sellers and the
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Shareholders each have all requisites, rights, powers and authorities to
execute, deliver and perform their respective obligations under this Agreement
and the other agreements and instruments contemplated hereby, including, but not
limited to, the sale, assignment, transfer, conveyance and delivery of the
Assets to the Purchaser, without obtaining the approval or consent of any other
party, governmental body or authority, other than as described in Section
5.1(h); all proceedings have been taken and all authorizations have been secured
by the Sellers and the Shareholders which are necessary to authorize the
execution, delivery and performance of this Agreement and the other agreements
and instruments contemplated hereby; and this Agreement and each of the other
agreements and instruments contemplated hereby is a legal, valid and binding
agreement of the Sellers and the Shareholders and is enforceable against each of
them in accordance with its terms.
2.2 Organization and Standing. The Sellers are corporations duly
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organized, validly existing and in good standing under the laws of the Republic
of Mexico, with all requisite power and authority (corporate and other) to own,
lease and operate their properties and assets as now owned, leased or operated
and to carry on their businesses as now conducted, and are duly qualified to do
business and are in good standing in each jurisdiction in which the conduct of
their businesses or the ownership, lease or use of their properties makes such
qualification necessary.
2.3 Ownership of Shares. The Shareholders own all the issued and
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outstanding shares of the capital stock of the Sellers free and clear of any
liens, claims, encumbrances, security interests, equities, restrictions on
transfer, preemptive rights or other defects in title of any kind or
description. There are no options, warrants, rights or other
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agreements or commitments outstanding or in existence which provide for the
issuance of capital stock or other securities of the Sellers, and there are no
securities outstanding or in existence which are convertible into or
exchangeable for capital stock or other securities of the Sellers.
2.4 Financial Data. Schedule 2.4A hereto contains a statement of the
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salaries of all employees of Confecciones Jamil S.A. de C.V., as of the date
hereof. Schedule 2.4B hereto contains a true and complete list of all
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liabilities or obligations of the Sellers, whether contingent or absolute,
direct or indirect, matured or unmatured, as of the date hereof, and neither the
Sellers nor the Shareholders know of any basis for the assertion of any such
liabilities or obligations which are not set forth on Schedule 2.4B. Such
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schedules (i) were compiled from the accounting books and records of the Sellers
and (ii) accurately and completely set forth the information contained in such
accounting books and records with respect to the salaries and liabilities set
forth thereon.
2.5 Trademarks, Patents, Etc. The Sellers use and own no trade names,
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trademarks, patents, copyrights or registrations or applications therefore in
connection with, and none is required for, the manufacturing of apparel by means
of the Assets. The Sellers are not infringing any trade name, trademark,
patent, copyright or other right of any third party in connection with their
apparel manufacturing business.
2.6 Tax Matters. The Sellers have properly prepared and filed returns for
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and paid in full all federal, state, local and foreign taxes, assessments and
penalties to the extent such filings and payments are required prior to the date
hereof, and there is no outstanding or proposed deficiency by any federal,
state, local or foreign government with respect to any tax period. As of the
date hereof, the Sellers are not the beneficiaries of any extension of time to
file any tax return or pay any taxes and have no liability with respect to taxes
of any kind, whether or not assessed. The Sellers have properly registered
before all federal, state and local tax authorities and the Instituto Mexicano
del Seguro Social ("IMSS"), Instituto del Fondo Nacional Para La Vivienda de Los
Trabajadores ("Infonavit"), Fondo Nacional Para El Consumo de Los Trabajadores
("Fonacot") and Sistema de Ahorro Para El Retiro ("SAR"). The term "taxes"
shall include, but is not limited to, income taxes, value added taxes, asset
taxes, payroll taxes, import duties, real property taxes, contributions payments
and assessments regarding IMSS, Infonavit, Fonacot and SAR.
2.7 Insurance. The Sellers maintain, and will maintain from the date
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hereof to the respective Closing Date, in full force and effect insurance
policies with financially sound and reputable insurers on the Assets of a
character usually insured by companies engaged in the same or similar businesses
against loss or damage of the kinds and in the amounts customarily insured
against by such companies.
2.8 Litigation. There are no suits, actions or legal, administrative,
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arbitration or other proceedings or investigations pending or threatened by,
against or involving the Sellers or, with respect only to those suits, actions,
proceedings or investigations
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arising out of the Sellers' business, pending or threatened by, against or
involving the Shareholders or any of the Sellers' officers, directors,
shareholders, employees or agents.
2.9 Compliance with Laws and Other Instruments. Except as set forth in
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Schedule 2.13, the Sellers' businesses have been and are being conducted in
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accordance with all applicable laws, ordinances, rules and regulations of all
authorities. The Sellers are not in violation of, or in default under, any term
or provision of their Escritura Constitutiva or Estatutos Sociales (as amended
or revised) or of any lien, indenture, mortgage, lease, agreement, instrument,
commitment or other arrangement, or subject to any restriction of any kind or
character, which could adversely affect the Sellers' businesses or the Assets.
The execution and delivery of this Agreement and the other agreements and
instruments contemplated hereby, and the consummation of the transactions
contemplated herein and therein, will not conflict with or result in the breach
of any term or provision of, or constitute a default under, the Escritura
Constitutiva or Estatutos Sociales (as amended or revised) of the Sellers, or
any statute, order, judgment, writ, injunction, decree, license, permit,
approval, authorization, rule or regulation of any court or any governmental or
regulatory body, or any agreement, lease, contract, document, instrument,
commitment, obligation or arrangement of any kind or nature to which it is a
party or by which the Sellers are bound.
2.10 Brokerage and Finder's Fees. The Sellers and the Shareholders have
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not incurred any liability to any broker, finder or agent for any brokerage
fees, finder's fees or commissions with respect to the transactions contemplated
by this Agreement.
2.11 Employment Agreements. Schedule 2.11 contains a complete and correct
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list of all agreements of Confecciones Jamil S.A. de C.V., with employees or
independent contractors not cancelable at will and all employee benefit plans,
including, but not limited to, (i) any collective bargaining agreement, (ii) any
agreement or plan which contains any obligation, liability or commitment for any
vacation pay, severance or termination pay, sick or disability pay, pension or
retirement benefits, bonuses or profit sharing, deferred or delayed wages of any
kind, commissions or incentive compensation or (iii) any group medical, dental,
vision, health, hospitalization or disability insurance plans, relating to the
manufacturing of apparel by means of the Assets, or to any person employed in
connection therewith. Confecciones Jamil S.A. de C.V., has performed all of its
obligations required to be performed under all such agreements and plans, and is
not in default or in arrears under any of the respective terms thereof.
Confecciones Jamil S.A. de C.V.'s relationships with all employees or
independent contractors are satisfactory.
2.12 Inventories. All inventory of Confecciones Jamil S.A. de C.V.,
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including, but not limited to, raw materials, work in process and finished
goods, are of good, usable and merchantable quality.
2.13 Environmental Matters.
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(a) Except as set forth on Schedule 2.13, the Sellers have not (i) breached
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or been notified by any governmental or regulatory authority that it has
breached
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any Environmental Law (as defined below), (ii) released any Hazardous Substance
(as defined below) or (iii) become aware of the release or presence of any
Hazardous Substance on any property owned, leased or occupied by the Sellers.
There are no underground storage tanks on property owned, leased or occupied by
the Sellers.
(b) For purposes of this Section 2.13, (i) "Environmental Law" means
all laws relating to the protection of the environment, to human health and
safety or to any environmental activity, including, without limitation, (x) Ley
General del Equilibrio Ecologico y La Proteccion al Ambiente, its related
regulations and administrative orders or provisions, including, but not limited
to, those pertaining to environmental impact, hazardous waste, air pollution,
water pollution or noise pollution, and any other specific laws, regulations or
administrative orders or provisions relating to air, soil, ground or water
pollution or contamination, (y) all other requirements pertaining to the
reporting, licensing, permitting, investigation or remediation of emissions,
discharges, releases or threatened releases of any Hazardous Substance into the
air, surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, sale, treatment, receipt, storage, disposal,
transport or handling of any Hazardous Substance and (z) all other requirements
pertaining to the protection of the health and safety of employees or the
public, and (ii) "Hazardous Substance" means any substance that (x) is or
contains asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum or petroleum-derived substances or wastes, radon gas or related
materials, (y) requires investigation, removal or remediation under any
Environmental Law, or is defined, listed or identified as a "hazardous waste" or
"hazardous substance" thereunder or (z) is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous or is regulated by any governmental authority or Environmental Law.
2.14 Employees. Confecciones Jamil S.A. de C.V. has fully complied with
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its obligations under the Ley Federal de Trabajo, including, but not limited to,
the timely payment in full of all wages, salaries, overtime payments, vacation
and vacation bonus payments, seventh day payments, severance payments, holiday
payments, Sunday work bonuses, seniority bonuses and annual bonuses
("▇▇▇▇▇▇▇▇▇") and the timely performance in full of all obligations relating to
health and safety, training, internal regulations, working conditions and any
other legally or contractually mandated fringe benefits or obligations.
2.15 Assets. Schedule 2.15 contains a complete and correct list of all
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assets (including, but not limited to, real property, manufacturing facility,
machinery, equipment, furniture, fixtures, and other tangible assets) owned by
Sellers and Shareholders that are necessary for the conduct of, the apparel
manufacturing business of Confecciones Jamil S.A. de C.V., as presently
conducted. All such assets are owned by the Sellers free and clear of all
liens, claims, charges, encumbrances, security interests, equities or
restrictions on use of any kind or nature (collectively, "Liens") and are in
good working condition and repair (subject to normal wear and tear) and are
adequate for their intended uses.
2.16 Agreements. Schedule 2.16 contains a complete and correct list of
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all leases, contracts, agreements and commitments, whether written or oral, to
which the Sellers
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are parties or by which they are bound. Each such agreement is in full force and
effect and is a legal, valid and binding agreement of each party thereto and is
enforceable against each party thereto in accordance with its terms; each party
thereto is in compliance thereunder; and no event has occurred which through the
giving of notice or the lapse of time could cause or constitute a default or the
acceleration of any obligation of any party thereto or the creation of a lien or
encumbrance upon the Assets.
2.17 Absence of Certain Changes. Since January 1, 2000, there has not
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been any material adverse change in the condition (financial or other), net
worth, property, assets, earnings, liabilities, capitalization, business,
results of operations or prospects of the Sellers or the Assets.
2.18 Material Misstatements or Omissions. No representations, warranties
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or information furnished by the Sellers or the Shareholders to the Purchaser or
any of its employees or agents, including, but not limited to, Ernst & Young LLP
and Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S.C., in connection with the transactions
contemplated hereby contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements and facts contained
therein not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser represents and warrants to the Sellers and their shareholders
that the statements set forth in Sections 3.1 through 3.3 hereof are true and
correct.
3.1 Authority to Enter Agreement and Enforceability. The Purchaser has
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all requisite right, power and authority to execute, deliver and perform its
obligations under this Agreement and the other agreements and instruments
contemplated hereby without obtaining the approval or consent of any other
party, governmental body or authority, other than as described in Section
5.1(h); all proceedings have been taken and all authorizations have been secured
by the Purchaser which are necessary to authorize the execution, delivery and
performance of this Agreement and the other agreements and instruments
contemplated hereby; and this Agreement and each of the other agreements and
instruments contemplated hereby is a legal, valid and binding agreement of the
Purchaser and is enforceable against it in accordance with its terms.
3.2 Compliance with the Law and other Instruments. The execution and
---------------------------------------------
delivery of this Agreement and the other agreements and instruments contemplated
hereby, and the consummation of the transactions contemplated herein and therein
will not conflict with or result in the breach of any term or provision of, or
constitute a default under any statute, order, judgment, writ, injunction,
decree, license, permit, approval, authorization, rule or regulation of any
court or any governmental or regulatory body, or any agreement, lease, contract,
document, instrument, commitment, obligation or arrangement of any kind or
nature to which the Purchaser is a party or by which it is bound.
9
3.3 Brokerage and Finder's Fees. The Purchaser has not incurred any
---------------------------
liability to any broker, finder or agent for any brokerage fees, finder's fees
or commissions with respect to the transactions contemplated by this Agreement.
4. COVENANTS
---------
4.1 Operation of the Assets. During the period from the date of this
-----------------------
Agreement to the respective Closing Date, the Sellers shall operate their
businesses and the Assets as now operated and only in the ordinary course and
shall take such actions as may be necessary to ensure that the representations
and warranties of the Sellers set forth in this Agreement will be true and
correct as of the respective Closing Date, and the Shareholders shall cause the
Sellers to do so. By way of illustration only and not limitation, the Sellers
shall take each such action as is set forth in Schedule 4.1 hereto, and the
------------
Shareholders shall cause the Sellers to do so.
4.2 Access to Information. The Sellers and the Shareholders shall give to
---------------------
the Purchaser and its counsel, accountants and other representatives full access
during normal business hours throughout the period from the date of this
Agreement to the Subsequent Closing Date to all of their properties, assets,
books and records and all employees, independent contractors and agents, and
shall furnish the Purchaser during such period with all such information
concerning their businesses or the Assets as the Purchaser may request, and the
Shareholders shall cause the Sellers to do so. No investigation or inquiry made
by or on behalf of the Purchaser hereunder shall in any way affect or lessen the
representations and warranties made by the Sellers and the Shareholders under
this Agreement.
4.3 Environmental Matters. On or before the Subsequent Closing Date, the
---------------------
Sellers shall (i) remedy any breach of any Environmental Law arising before the
Subsequent Closing Date in connection with or related to the Assets, the Plant
or the apparel manufacturing business of Confecciones Jamil S.A. de C.V.,
including, but not limited to, those breaches of Environmental Laws set forth on
Schedule 2.13 or (ii) obtain the release of any liability therefor from the
-------------
appropriate governmental or regulatory authority, in each case without any
material condition or restriction on the operation of the Plant, which remedy or
release shall be acceptable to the Purchaser in all material respects.
4.4 Agrarian Matters. On or before the Subsequent Closing Date, the
----------------
Sellers shall or shall have caused ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Chapur to comply with the
provisions of the Agrarian Law for the transfer of property of "Parcelas 168 ▇-▇
▇▇, ▇▇▇ ▇-▇ ▇▇/▇, and 176 Z-1 P2/2 of Ejido Pantzingo, Municipio de Ajalpan,
Puebla, Mexico", including, but not limited to, the provisions in Articles 23,
80 and 84 of such Statute set forth on Schedule 4.4.4, and the provisions of
--------------
other applicable laws, including, but not limited to, the Federal Civil Code,
Civil Code for the State of Puebla and the Commerce Code.
5. CONDITIONS PRECEDENT
--------------------
10
5.1 Conditions Precedent to the Obligations of the Purchaser. The
--------------------------------------------------------
obligation of the Purchaser to consummate the transactions contemplated by this
Agreement is expressly subject to the following conditions (compliance with
which or the occurrence of which may be waived in whole or in part by the
Purchaser in writing):
(a) All representations and warranties of the Sellers and the
Shareholders contained in this Agreement shall be true and correct in all
respects on the date hereof and as of the respective Closing Date as if made at
and as of such date.
(b) The Sellers and the Shareholders each shall have performed and
satisfied all covenants and conditions required by this Agreement to be
performed or satisfied by them on or prior to the respective Closing Date.
(c) No action or proceeding shall have been instituted or threatened
prior to or at the respective Closing Date or, in the reasonable opinion of
counsel to the Purchaser, is likely to be instituted before any court or
governmental body or authority the result of which could prevent or make illegal
the consummation of the transactions contemplated hereunder, or which could
adversely affect the Purchaser's use of the Assets.
(d) Confecciones Jamil, S.A. de C.V. shall have executed and delivered
to the Purchaser an agreement in the form of and containing the terms and
conditions set forth in Exhibit A (the "Labor Agreement").
---------
(e) There shall not have occurred any adverse change in the business,
property, assets, operations, condition (financial or other) or prospects of the
businesses of the Sellers or the Assets.
(f) The Board of Directors of the Purchaser, in its good faith
judgment, after consultation with legal counsel, shall not have withdrawn or
modified its approval or recommendation of this Agreement and the transactions
contemplated hereby (having determined that it is necessary to do so to comply
with its fiduciary duties to the shareholders of the Purchaser under applicable
law).
(g) Confecciones Jamil S.A. de C.V. and its shareholders shall have
delivered to the Purchaser all such original invoices, deeds, bills of sale,
import documentation ("pedimentos de importacion"), assignments, consents and
other documents and instruments of conveyance, transfer, assignment and further
assurances as shall be necessary to confirm in the Purchaser good title in and
to the Machinery and Equipment.
(h) The Sellers and Shareholders shall have caused ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chapur to obtain all the legal consents, notices, and assurances by members of
the "Ejido Pantzingo" and relatives of the "ejidatarios" and "avecindados"
therein and his relatives, necessary in accordance with articles 80 and 84 of
the "Ley Agraria" to execute the sale of the "Parcelas" 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇
▇▇/▇, and 176 Z-1 P2/2 in the "Municipio" of Ajalpan, Puebla, Mexico.
11
(i) The execution and fulfillment of all legal conditions and
requirements for the execution of a public deed ("escritura publica") before a
Mexican Notary Public in accordance with Mexican Law in connection with the
purchase of the Real Property.
5.2 Conditions Precedent to the Obligations of the Sellers and the
--------------------------------------------------------------
Shareholders. The obligation of the Sellers and the Shareholders to consummate
------------
the transactions contemplated by this Agreement is expressly subject to the
following conditions (compliance with which or the occurrence of which may be
waived in whole or in part by the Sellers or the Shareholders, as the case may
be, in writing):
(a) All representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all respects on the date hereof and
as of the respective Closing Date as if made at and as of such date.
(b) The Purchaser shall have performed and satisfied all covenants and
conditions required by this Agreement to be performed or satisfied by it on or
prior to the respective Closing Date.
(c) No action or proceeding shall have been instituted or threatened
prior to or at the Closing Date or, in the reasonable opinion of counsel to the
Sellers or the Shareholders, is likely to be instituted before any court or
governmental body or authority the result of which could prevent or make illegal
the consummation of the transactions contemplated hereunder.
(d) The Purchaser shall have executed and delivered to Confecciones
Jamil S.A. de C.V. the Labor Agreement.
6. MISCELLANEOUS
-------------
6.1 Survival of Representations, Warranties and Agreements. All
------------------------------------------------------
representations, warranties and agreements made by the parties in this Agreement
(including, but not limited to, statements contained in any exhibit, schedule or
certificate or other instrument delivered by or on behalf of any party hereto or
in connection with the transactions contemplated hereby) shall survive each of
the Closing Dates notwithstanding any investigations, inspections, examinations
or audits made by or on behalf of any party.
6.2 Indemnification. Confecciones Jamil S.A. de C.V. and its shareholders
---------------
and Inmobiliaria ▇▇▇▇▇▇▇ ▇.▇. de C.V. and its shareholders (the "Indemnifying
Parties") respectively and only with regard to the assets that each of such
Sellers and its shareholders own and that are part of this agreement, jointly
and severally, respectively shall indemnify, defend and hold harmless the
Purchaser and its officers, directors, shareholders, employees, attorneys,
accountants, affiliates, agents, successors and assigns, and any person who
controls or is deemed to control any of them (the "Indemnified Parties"), from,
against and in respect of any and all payments, damages, claims, demands,
losses, expenses, costs, obligations and
12
liabilities (including, but not limited to, reasonable attorneys' fees and
costs, and the costs of investigation and preparation) (a "Loss") which,
directly or indirectly, arise or result from or are related to any breach by any
of the Indemnifying Parties of any of its or his representations, warranties,
covenants or commitments under this Agreement or the Labor Agreement. The
Indemnifying Parties, jointly and severally, shall reimburse each Indemnified
Party on demand for any payment made or loss suffered by it at any time after
the date hereof, based upon the judgment of any court of competent jurisdiction
or pursuant to a bona fide compromise or settlement of claims, demands or
actions in respect of any damages to which the foregoing indemnity relates.
Consummation of the transactions contemplated hereunder shall not be deemed or
construed to be a waiver of any right or remedy of any Indemnified Party, nor
shall this section or any other provision of this Agreement be deemed or
construed to be a waiver of any ground of defense by it. The obligation to
advance or pay promptly on demand all amounts as they are incurred shall exist
irrespective of the ultimate final judicial determination, and in the event of a
dispute about amounts owed, such amounts shall be advanced as they are incurred
pending resolution and final judicial determination. The Indemnifying Parties'
obligations hereunder shall be in addition to any liability that they or any
other person otherwise may have to the Indemnified Parties, and shall be binding
upon, and inure to the benefit of, their heirs, representatives, successors and
assigns, and shall inure to the benefit of the heirs, representatives,
successors and assigns of each Indemnified Party.
6.3 Third-Party Claims. The Indemnified Party shall promptly notify the
------------------
Indemnifying Parties of the existence of any claim, demand or other matter
involving liabilities to third parties to which the Indemnifying Parties'
indemnification obligations could apply and shall give the Indemnifying Parties
a reasonable opportunity to defend the same at their expense and with counsel of
their own selection (who shall be approved by the Indemnified Party, which
approval shall not be withheld unreasonably); provided, however, that (i) the
--------
Indemnified Party shall at all times also have the right to fully participate in
the defense at its own expense, (ii) if, in the reasonable judgment of the
Indemnified Party, based upon the written advice of counsel, a conflict of
interest may exist between the Indemnified Party and any of the Indemnifying
Parties, the Indemnifying Parties shall not have the right to assume such
defense on behalf of such Indemnified Party and (iii) the failure to so notify
the Indemnifying Parties shall not relieve the Indemnifying Parties from any
liabilities that they may have hereunder or otherwise, except to the extent that
such failure so to notify the Indemnifying Parties materially prejudices the
rights of the Indemnifying Parties. If the Indemnifying Parties shall, within a
reasonable time after said notice, fail to defend, the Indemnified Party shall
have the right, but not the obligation, to undertake the defense of, and to
compromise or settle the claim or other matter on behalf, for the account and at
the risk and expense of the Indemnifying Parties. The Indemnifying Parties
shall not compromise or settle the claim or other matter without the prior
written consent of the Indemnified Parties. If the claim is one that cannot by
its nature be defended solely by the Indemnifying Parties, the Indemnified
Parties shall make available all information and assistance that the
Indemnifying Parties may reasonably request; provided, however, that any
--------
associated expenses shall be paid by the Indemnifying Parties as incurred.
13
6.4 Notices. Any notice or other communication required or permitted
-------
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, registered or
certified, 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 of the parties shall be entitled to specify a different address
by giving the other parties notice as aforesaid.
6.5 Entire Agreement. This Agreement and the schedules and exhibits
----------------
hereto (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.
6.6 Headings. Section and subsection headings are not to be considered
--------
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.
6.7 Successors and Assigns. All of the terms, provisions and obligations
----------------------
of this Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective heirs, representatives, successors and
assigns.
6.8 Governing Law. The validity, construction and interpretation of this
-------------
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.
6.9 Counterparts. This Agreement may be executed simultaneously in two or
------------
more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
6.10 Third Parties. Nothing in this Agreement, expressed or implied, is
-------------
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.
6.11 Attorneys' Fees. In the event any party takes legal action to enforce
---------------
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.
14
6.12 Further Assurances. Each party hereto shall, from time to time at
------------------
and 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.
6.13 Arbitration. Any controversy arising out of or relating to this
-----------
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 hereunder until that party has furnished to the other party, by
registered mail, at least thirty (30) days prior written notice of its intent to
do so.
6.14 Construction. This Agreement was reviewed by legal counsel for each
------------
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.
6.15 Consent to Jurisdiction. Subject to Section 6.13, each party hereto,
-----------------------
to 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 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 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 in the United States of America by mailing a copy thereof
by United States mail, registered or certified, postage prepaid, return receipt
requested, to CT Corporation at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (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.
15
6.16 Expenses. Each party shall bear the expenses incurred by it in
--------
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.
6.17 Severable Provisions. The provisions of this Agreement are
--------------------
severable, 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.
6.18 Taxes. The Sellers shall pay timely any transfer, sales or other
-----
taxes which may become due or payable by virtue of the transactions contemplated
by this Agreement, other than the 2% transfer tax payable on the value of land
and building and the 15% value added tax payable on the purchase price of the
Assets other than land.
16
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
Purchaser: TARRANT MEXICO, S. de ▇.▇. de C.V.
By /s/ [ILLEGIBLE SIGNATURE]
________________________________
Authorized Representative
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Sellers: CONFECCIONES JAMIL, S.A. de C.V.
By /s/ ▇▇▇▇▇▇▇ Chram Chapur
________________________________
Authorized Representative
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
INMOBILIARIA ▇▇▇▇▇▇▇, ▇.▇. de C.V.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
________________________________
Authorized Representative
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
17
Shareholders: INMOBILIARIA ▇▇▇▇▇▇▇, ▇.▇. de C.V.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
____________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Shareholders: CONFECCIONES JAMIL, S.A. de C.V.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Chapur
__________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
18
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
_______________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Saiden ▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
19
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ CHIMELY SEADE
_______________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #231
Col. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
20
SCHEDULE 1.1(a)
Purchased Assets
----------------
1. All furniture, fixtures, machinery, instruments, equipment, buildings, motor
vehicles, tooling, spare parts, supplies and other tangible personal
property and assets which are used by the Sellers in connection with the
manufacturing of apparel, whether or not reflected on the books and records
of the Sellers and wherever locate which are listed on Schedule 2.15;
2. All of the Sellers right, title and interest in, to and under those leases,
contracts, agreements and commitments, to the extent unperformed at the
Closing Date, which are listed on Schedule 2.16;
-------------
3. That certain Real Property commonly known as "Parcelas 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇
▇▇/▇, and 176 Z-1 P2/2 of Ejido Pantzingo, Municipio de Ajalpan, Puebla,
Mexico", and the facilities for the manufacture of wearing apparel and
constructions therein.
4. All deposits and prepaid taxes and expenses attributable to the Assets;
5. All books and records relating to the Assets and the operation thereof,
including, but not limited to, operating manuals, purchase agreements and
manufacturers' warranties;
6. All personnel records of employees of the Sellers who are employed by the
Purchaser after the Closing Date; and
7. All insurance proceeds arising in connection with damage to the Assets
occurring from the date hereof to the Closing Date.
21
SCHEDULE 1.1(b)
Retained Assets
---------------
All assets which are not included and listed in schedule 2.15
22
SCHEDULE 1.2(b)
Allocation of Purchase Price
----------------------------
The total Purchase Price is the amount of U.S. $11,000,000.00. The Purchase
Price will be allocated among the Assets as follows:
(i) U.S. $3,189,156.68 to the purchase of the Machinery and Equipment and other
assets described in schedule 2.15 and evidenced by invoices 561, 574, 563,
564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 575 herein attached as
schedule 2.15 that are sold to the Purchaser by Confecciones Jamil S.A. de
C.V.
(ii) U.S. $7,810,843.311to the purchase of the Real Property commonly known as
"Parcelas 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇ ▇▇/▇, and 176 Z-1 P2/2 of Ejido Pantzingo,
Municipio de Ajalpan, Puebla, Mexico" and facilities for the manufacture of
wearing apparel and constructions therein.
23
SCHEDULE 1.3(a)
Excluded Liabilities
--------------------
1. Any liabilities arising from, resulting from or related to, directly or
indirectly, (i) the infringement of any trade name, trademark, patent,
copyright, or other intellectual property right of any person, (ii) the failure
to timely pay any taxes, (iii) any suits, actions or legal, administrative,
arbitration or other proceedings or investigations, (iv) any violation of or
default under the Sellers' Escrituras Constitutivas or Estatutos Sociales, or
any lien, indenture, mortgage, lease, agreement, instrument, commitment or other
arrangement, or any statute, order, judgment, writ, injunction, decree, license,
permit, approval, authorization, rule or regulation, (vi) the failure to comply
in full including but not limited with articles 80 and 84 and related provisions
of the "Ley Agraria" in connection with the privatization procedure of the
"Parcelas" 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇ ▇▇/▇, and 176 Z-1 P2/2 of Ejido Pantzingo,
Municipio de Ajalpan, Puebla, Mexico,(v) the failure by Confecciones Jamil S.A.
de C.V. to comply in full with the Ley Federal de Trabajo or to pay when due any
amounts due under employment agreements or employee benefit plans, or (vi) any
breach of any Environmental Law or any release of a Hazardous Substance.
2. Any amounts payable to Casa ▇▇▇▇ de Maquinas de Coser S.A. de C.V. by
Confecciones Jamil S.A. de C.V. or its shareholders.
24
SCHEDULE 1.3(c)
Assumed Liabilities
-------------------
1. All obligations of the Sellers under those certain leases, contracts,
agreements and commitments which are listed on Schedule 2.16 (other than such
-------------
obligations as are then payable or as to which the Sellers are then in default)
to the extent such obligations are unperformed on the Closing Date; provided,
--------
however, any obligation of the Sellers under the Collective Bargaining Agreement
shall be assumed by the Purchaser only to the extent and subject to the
limitations contained in the Labor Agreement.
25
SCHEDULE 2.4B
Liabilities
-----------
NONE
26
SCHEDULE 2.4A
Salaries
--------
1. Those salaries set forth on Exhibit A to Labor Agreement.
---------
27
SCHEDULE 2.11
Employment Agreements
---------------------
1. All such employee benefit plans as are required by law.
2. Collective Bargaining Agreement.
3. Individual Labor Agreements
28
SCHEDULE 2.13
Environmental Matters
None
29
SCHEDULE 2.15
Assets
------
(i) The Machinery and Equipment and other assets included on invoices 561, 574,
--- 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 575, herein
attached;
(ii) (ii) The Real Property known as "Parcelas 168 ▇-▇ ▇▇, ▇▇▇ ▇-▇ ▇▇/▇, and 176
---- Z-1 P2/2 of Ejido Pantzingo, Municipio de Ajalpan, Puebla, Mexico" and the
facilities for the manufacture of wearing apparel and constructions
therein.
30
SCHEDULE 2.16
Agreements
----------
1. Collective Bargaining Agreement.
2. Lease Agreement ("Contrato de Arrendamiento") entered into by and
between YKK (U.S.A.) Inc., and Confecciones Jamil S.A. de C.V.,
herein attached as part of this Schedule 2.16.
31
SCHEDULE 4.1
Operations
----------
1. Make, amend or terminate contracts only in the ordinary
course of business;
2. Refrain from suffering or refrain from creating any security
interest, encumbrance or restriction on the Assets;
3. Refrain from disposing of any of the Assets, except in the
ordinary course of business;
4. Maintain its books, accounts and records in the usual,
regular and ordinary manner and in compliance with all applicable laws;
5. Meet its obligations under all contracts and not become in
default thereunder;
6. Maintain all of the Assets and the Plant in customary repair,
order and condition, reasonable wear and tear excepted, and maintain insurance
upon the Assets and the Plant comparable in amount and kind to that in effect on
the date hereof;
7. Operate in the ordinary course of business; and
8. Operate in such manner as to assure that the representations
and warranties of the Sellers and the Shareholders set forth in this Agreement
will be true and correct on and as of the Closing Date.
32
SCHEDULE 4.4.4
Agrarian Matters
----------------
1.- In accordance with Articles 23, 80 and 84 of the Mexican
Agrarian Law ("Ley Agraria"), ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Chapur must fulfill the
following requirements for the transfer of property of "Parcelas 168 ▇-▇ ▇▇, ▇▇▇
▇-▇ ▇▇/▇, and 176 Z-1 P2/2 of Ejido Pantzingo, Municipio de Ajalpan, Puebla,
Mexico".
a. Register the assignment of rights over the "Parcelas" and related
documents before the National Agrarian Registry ("RAN").
b. Celebrate an "Asamblea Dura" with members of the "Ejido Pantzingo"
whereby ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Chapur is authorized to acquire the
ownership of the "Parcelas" under a private regime.
c. Notify the relatives of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Chapur (wife and children)
as well as to the rest of the "ejidatarios", "avecindados" and
relatives of such individuals of ▇▇. ▇▇▇▇▇'▇ intention to sell the
Parcels, granting them a right of first refusal to purchase the
land.
d. Obtain a full and legal Ownership Title ("Titulo de Propiedad")
granted by and dully registered by the proper Agrarian and Civil
Authorities.
e. Execute, deliver and register all acts and documents related with
the acquisition and transfer of the "Parcelas" before the
corresponding Agrarian and Civil Authorities, in accordance with
Mexican Law.
33