EXHIBIT 10.29
YARN SUPPLY AGREEMENT
This YARN SUPPLY AGREEMENT (this "Agreement") is dated this 5th day of January,
2005 and is made by and between Parkdale Mills, Inc., a North Carolina
corporation, and Parkdale America, LLC, a North Carolina limited liability
company (collectively, "Parkdale"), and Delta Apparel, Inc., a Georgia
corporation ("Delta").
WITNESSETH
WHEREAS, Parkdale produces yarns and related products for sale and Delta
and its Subsidiaries (as hereafter defined) consume yarns in connection with the
manufacture of activewear;
WHEREAS, Parkdale America, LLC and Delta have entered into an Asset
Purchase Agreement, dated as of November 18, 2004 (the "Acquisition Agreement"),
pursuant to which Parkdale America, LLC has agreed to purchase from Delta
substantially all of the assets and properties used in the operation of a
yarn-spinning facility located in Edgefield, South Carolina (the "Facility");
and
WHEREAS, Parkdale and Delta wish to enter into an agreement for the supply
of yarn.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and agreements herein contained, the legal sufficiency and adequacy of
which is hereby expressly acknowledged, the parties hereto agree as set forth in
this Agreement.
1. Definitions. The following terms used in this Agreement shall have
the meanings set forth in this SECTION 1:
"Acquisition Agreement" shall have the meaning set forth in the Recitals.
"Basis" shall mean the premium or discount charged by merchants
(suppliers) of cotton over and above the future market cost of such cotton,
which premium or discount is based on the quality type, payment terms and
delivery point of such cotton and which Basis (i) is calculated in points per
pound where one point is equal to $.0001 (or one hundredth of one cent) and (ii)
shall be proposed annually by Parkdale on the anniversary date of this Agreement
and be acceptable to Delta.
"Cost Price" shall mean the cotton price per pound based on the pricing
procedures set forth on EXHIBIT C.
"Disputes" shall have the meaning set forth in SECTION 15.
"Facility" shall have the meaning set forth in the Recitals.
"New Business" shall have the meaning set forth in SECTION 3.
"Specifications" shall have the meaning set forth in SECTION 4(a).
"Subsidiary" shall mean any corporation, partnership, limited liability
company or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity are at the time owned, or
the management of which is otherwise at the time controlled, directly or
indirectly, through one or more intermediaries, or both, by Delta.
"Taxes" shall have the meaning set forth in SECTION 7.
"Term" shall have the meaning set forth in SECTION 2.
"Territory" shall mean the United States of America, Canada, Mexico,
Guatemala, Belize, El Salvador, Honduras, Nicaragua, Costa Rica and Panama.
"Yarn" shall mean Yarn Counts made from one hundred percent (100%) cotton
or fifty percent (50%) cotton/fifty percent (50%) polyester (hereinafter
"50/50") open end spun yarn, ring spun yarn, or air jet spun yarn, or other
cotton/polyester blends to form heather yarns ("hereinafter "Blends") to be
delivered pursuant to SECTION 4, excluding, however, yarns that Parkdale does
not manufacture as of the date of this Agreement in the ordinary course of its
business.
"Yarn Counts" means such yarn counts made from 100% cotton or 50/50 open
end spun yarn, ring spun yarn, or air jet spun yarn, or Blends as are set forth
in the Specifications.
2. Term. The term of this Agreement (hereinafter the "Term") shall
commence on January 1, 2005 and shall continue until and include December 31,
2009 unless written notice of termination is served by either party upon the
other in accordance with the provisions of SECTIONS 11 OR 12 below.
3. Product; Quantity. Subject to the terms and conditions of this
Agreement, during the Term, Delta shall purchase exclusively from Parkdale, and
Parkdale shall supply to Delta, all Yarn required by Delta and its Subsidiaries
for use in manufacturing operations conducted by Delta and its Subsidiaries in
the Territory. Parkdale's obligation under this Agreement to supply to Delta,
and Delta's obligation to purchase from Parkdale, Yarn required by Delta and its
Subsidiaries shall include Yarn required by any new business operated or
acquired (whether acquired by means of an asset purchase, stock purchase,
merger, consolidation, or otherwise) by Delta or any of its Subsidiaries during
the Term (each, a "New Business"), as long as such Yarn is required for use in
manufacturing operations conducted by such New Business in the Territory.
Notwithstanding the foregoing, Delta shall not be required to purchase
exclusively from Parkdale, and Parkdale shall not be required to supply to
Delta, any Yarn required by any New Business acquired by Delta or any of its
Subsidiaries during the Term to the extent that an obligation exists for such
New Business to acquire Yarn from a supplier other than Parkdale under a supply
agreement or other binding arrangement in effect prior to Delta's or its
Subsidiary's acquisition of such New Business.
4. Duties and Obligations of Parkdale.
(a) Compliance with Standards. Parkdale shall supply Yarn in full
compliance with the product specifications (the "Specifications") set forth in
EXHIBIT A attached hereto. Any modifications to the Specifications may only be
made by agreement in writing by both parties.
(b) Delivery. Parkdale shall ship and regularly fulfill the weekly supply
of Yarn (as set forth in purchase orders provided by Delta to Parkdale) to Delta
or to such destination(s) as Delta shall designate in writing on an F.O.B.
(Parkdale's facility) basis with carriers designated by Delta so that Delta
shall assume all freight, transportation, and insurance from the time of
delivery. If Parkdale determines that it will be unable to meet Delta's delivery
requirements, as set forth in any purchase order provided by Delta to Parkdale,
it shall so notify Delta no later than ten (10) days after receipt of Delta's
order and propose an alternative delivery schedule. If such alternative delivery
schedule is not acceptable to Delta, Delta shall have the right to reject the
alternative delivery schedule by written notice to Parkdale and to utilize an
alternative supply source with respect to such order. In addition, in the event
that Parkdale fails to deliver Yarn on any required delivery date, Delta may
utilize an alternative supply source with respect to such Yarn. Claims by Delta
for inadequate delivery of Yarn shall be void unless Delta gives Parkdale
written notice of the claim within thirty (30) calendar days of receipt of the
Yarn at the destination designated by Delta.
(c) Records. All original records, in whatever form, relating to the
manufacturing, production, quality control assurance, proof of origin records
and shipment of Yarn shall be retained by Parkdale for a period of not less than
two (2) years from the date of delivery of each lot of Yarn to which said
records pertain. Parkdale shall provide Delta or its representatives with
access, upon reasonable notice to Parkdale, to inspect Parkdale's quality
control and other records relating to the Yarn and all other records relating to
obligations of Parkdale pursuant to this Agreement.
(d) Shipping Pallets. Parkdale shall, at its expense, (i) provide all
shipping pallets for the transportation of Yarn, and (ii) pick up on a regular
basis and return to its premises all shipping pallets which have been emptied by
Delta.
(e) Time of the Essense. Parkdale acknowledges that time is of the essence
under this Agreement.
(f) Location of Manufacturing Operations. Parkdale agrees that all Yarn
delivered hereunder shall be manufactured by it in North Carolina, South
Carolina, or Virginia, or at such other location as Delta may approve in
writing.
5. Warranty. Parkdale warrants that the Yarn delivered hereunder shall
conform in all respects to the Specifications and shall be manufactured,
produced and shipped in accordance with the Specifications and warrants that the
Yarn shall be free from defects in materials and workmanship and that, at the
time of delivery, Parkdale shall have good title and right to transfer and sell
the same and that the same shall be delivered free of encumbrances. If Parkdale
fails to deliver any Yarn hereunder free of encumbrances, Delta may reject such
Yarn pursuant to SECTION 6 or Delta may, upon written notice to Parkdale,
require that Parkdale, at its expense, defend the title thereto and promptly
cause any security interest, claim, demand, lien, or other encumbrance to be
removed. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 5, PARKDALE MAKES
NO OTHER WARRANTIES OF QUALITY, AND PARKDALE
HEREBY DISCLAIMS ALL OTHER WARRANTIES OF QUALITY, WHETHER EXPRESS OR IMPLIED,
WHETHER CREATED BY CONTRACT OR BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Rejection of Yarn.
(a) Delta may reject any Yarn that does not conform in any respect to
the warranties provided by Parkdale in SECTION 5 of this Agreement provided that
Delta gives notice to Parkdale of such rejection within thirty (30) days after
Delta discovers the nonconformity.
(b) Upon rejection of Yarn by Delta, Parkdale shall promptly replace the
nonconforming Yarn with Yarn conforming to the warranties in SECTION 5 of this
Agreement. Parkdale shall bear all costs in fulfilling its obligation to replace
nonconforming Yarn, including all freight costs associated with return of
nonconforming Yarn to Parkdale and all freights costs associated with the
shipment of replacement Yarn to Delta.
7. Purchase Price, Payment; Rebates. The purchase price for each pound
of Yarn delivered by Parkdale pursuant to this Agreement shall be calculated in
accordance with the formula set forth on EXHIBIT B attached hereto. Parkdale
shall invoice Delta weekly for all Yarn delivered during the preceding week
pursuant to Delta's purchase orders. Such invoices shall be payable by Delta on
a net forty-five (45) day basis following actual receipt of the invoice. All
payments shall be remitted to Parkdale at the address specified in or given
pursuant to SECTION 18 hereof. Delta is solely responsible for, and will pay,
any and all applicable sales, use, value added, or excise taxes, and any and all
imposts, customs, duties or consular fees or charges related to importation or
exportation of goods, imposed by any governmental authority in the Territory in
connection with the sale of Yarn by Parkdale to Delta (collectively "Taxes"),
excluding, however, any Taxes measured upon Parkdale's income. Each party agrees
to take all actions reasonably required to obtain exemptions from or reductions
of Taxes (other than income Taxes) required to be paid or withheld that may be
applicable to any payment due hereunder. Parkdale agrees to pay to Delta all
rebate amounts actually received by Parkdale under any rebate program(s)
administered by the USDA for the benefit of cotton consumers to the extent such
rebates are attributable to bales of cotton opened by Parkdale to fulfill its
obligations under this Agreement. Such rebate payments shall be made by Parkdale
within seven (7) days of the end of each month.
8. Purchase Orders. All sales of Yarn produced for Delta in accordance
with this Agreement will be made pursuant to purchase orders submitted by Delta
from time to time, the terms of which shall be controlled by the terms of this
Agreement, regardless of whether such purchase orders reference this Agreement.
To the extent the terms of a purchase order conflict with the terms of this
Agreement, the terms of this Agreement shall control. Except as provided in
SECTION 4(b) with respect to delivery schedules, each purchase order for Yarn
submitted by Delta in accordance with the provisions of this Agreement shall be
deemed automatically accepted by Parkdale, subject to the provisions of Section
4(b) with respect to delivery requirements.
9. Limitation of Liability. Subject to compliance with the
Specifications and without limiting SECTION 5, the determination of the
suitability of the Yarn furnished hereunder for the uses contemplated by Delta
is the sole responsibility of Delta and Parkdale shall have no responsibility in
connection therewith. Except in the case of gross negligence or gross
misconduct, Parkdale's sole
liability and Delta's sole remedy for the non-delivery or delivery of inadequate
quantities of Yarn, or for the delivery of Yarn not conforming to
Specifications, shall be for Delta's direct damages, if such failure is not
excused pursuant to SECTION 11 of this Agreement. Neither party shall, under any
circumstances, be liable for loss of profits or any other indirect or
consequential damages except in the case of gross negligence or gross
misconduct.
10. Confidentiality.
(a) This Agreement, the terms herof, and all information furnished or to
be furnished by Delta to Parkdale or by Parkdale to Delta in connection with and
during the Term of this Agreement shall be kept confidential by the party
receiving said information, except for purposes authorized by this Agreement,
and neither party shall disclose such information to any person or firm unless
previously authorized in writing by the other party to do so; provided, however,
that the party receiving such information may disclose the same to its
responsible officers and employees who require the information for the purposes
contemplated by this Agreement, provided that such officers and employees are
made aware of, and agree to be bound by, the provisions of this Section. Any
other provision hereof to the contrary notwithstanding, it is expressly
understood and agreed by the parties that each party's obligations of
confidentiality and nondisclosure herein assumed shall not apply to any
information which (i) such party can demonstrate was already lawfully in its
possession prior to the disclosure thereof by the other party, (ii) became known
to the public through no fault of such party, (iii) is later lawfully acquired
by such party from other sources without breach of any confidentiality
obligation; or (iv) is required to be disclosed by applicable law or legal
process. In the event that disclosure is required pursuant to legal process, (a)
the receiving party shall provide the other party with prompt notice of such
requirement so the other party may seek a protective order or other appropriate
remedy or waive compliance with the provisions of this Agreement; (b) in the
event that a protective order or other remedy is obtained, the receiving party
shall use all reasonable efforts to assure that all information disclosed shall
be covered by such order or other remedy; and (c) whether or not such protective
order or other remedy is obtained or the other party waives compliance with the
provisions of this Agreement, the receiving party will disclose only that
portion of the information which it is legally required to disclose.
(b) The provisions of this SECTION 10 shall remain in force for a period
of two (2) years following the termination of this Agreement, except with
respect to any information that constitutes a trade secret, the protection of
which shall be unlimited in duration.
(c) The parties acknowledge that breach of this SECTION 10 by either
party may cause damage to the other party which could not be adequately
compensated by a monetary award. Accordingly, such other party shall be
entitled, in addition to any other right or remedy available to it, to an
injunction restraining such breach or any threatened breach and to specific
performance of every provision of this SECTION 10 and, in any such case, no
security shall be required to be posted in connection with such injunction.
11. Force Majeure.
(a) Neither party shall be liable to the other for damages resulting
from any failure to perform its obligations hereunder if such failure is due to
any of the following: strikes, lockouts, concerted acts of workmen or other
industrial disturbances, fires, explosions, floods or other natural
catastrophes, civil disturbance, riots or armed conflict whether declared or
undeclared, curtailment,
shortage, rationing or allocation of normal sources of supply of labor,
materials, transportation, energy or utilities, accidents, acts of God, delays
of subcontractors or vendors, sufferance of or voluntary compliance with acts of
government and government regulations (whether valid or invalid), embargoes, or
any other similar or dissimilar cause, any of which is beyond the reasonable
control of the party affected and which makes performance commercially
impracticable.
(b) Neither party shall be required to make any concession or grant any
demand or request to bring to an end any strike or other concerted act of
workmen.
(c) Either party affected by an event described in SECTION 11(a) shall
promptly, upon learning of such event and ascertaining that it has affected or
will affect that party's performance under this Agreement, give notice to the
other party, stating the nature of the event, its anticipated duration and any
action being taken to amend or minimize its effect, and such party will use
commercially reasonable efforts to minimize the effect of such event on the
performance of its obligations under this Agreement.
(d) If any event described in SECTION 11(a) partially reduces Parkdale's
ability to produce or deliver Yarn, then Parkdale may prorate its available
supply amongst Delta and Parkdale's other customers in a fair and equitable
manner. If any event described in SECTION 11(a) partially or wholly reduces
Parkdale's ability to produce or deliver Yarn, Delta shall be entitled to
purchase Yarn from alternative sources of supply and, if such inability to
produce or deliver Yarn persists in excess of sixty (60) days, Delta shall have
the option to terminate this Agreement by written notice to Parkdale.
(e) Notwithstanding this SECTION 11, Delta shall pay Parkdale for all
Yarn shipped and received by Delta during the Term pursuant to the terms of this
Agreement.
12. Termination. This Agreement may be earlier terminated as set forth
below.
(a) Either party by written notice may terminate this Agreement at any
time if the other party materially defaults in carrying out its terms and
does not cure such default within thirty (30) days of receipt of written
notice thereof. Notwithstanding the foregoing, Delta may terminate this
Agreement forthwith upon notice to Parkdale, with no additional cure
rights for Parkdale, if Parkdale fails for any reason whatsoever to
deliver Yarn in accordance with the requirements of this Agreement on more
than two (2) occasions in any one (1) calendar year.
(b) Delta may terminate this Agreement forthwith upon notice to Parkdale
if Andy Warlick is no longer actively involved in the operation of
Parkdale.
(c) Delta may terminate this Agreement forthwith upon written notice to
Parkdale if (i) Parkdale disposes or attempts to dispose of all or any
material portion of its business, whether by way of sale of assets or
stock, or by way of merger, consolidation, joint venture or other
arrangement, (ii) Parkdale ceases to function as a going concern, (iii)
Parkdale ceases to conduct its operations in the ordinary course of
business, (iv) a receiver for Parkdale is appointed, or (v) Parkdale
otherwise takes advantage of any insolvency, bankruptcy, moratorium or
similar laws or an involuntary proceeding under any such laws is
initiated against Parkdale and such involuntary proceeding is not
dismissed within ninety (90) days after it is initiated.
Upon termination of this Agreement as set forth above, neither party shall have
any further obligation to the other; provided, however, that upon termination of
this Agreement pursuant to this SECTION 12, Parkdale shall supply to Delta, and
Delta shall purchase from Parkdale, all Yarn that was ordered by Delta pursuant
to purchase orders submitted by it prior to termination of this Agreement. No
termination of this Agreement shall prejudice any claim that arises prior to
such termination or arises pursuant to deliveries of Yarn made pursuant to this
Agreement.
13. Authority; No Conflict. Each party represents and warrants to the
others that (a) it has the power and authority to enter into this Agreement and
to carry out its terms and (b) the performance of this Agreement is not
restricted by, in violation of, or in conflict with, any applicable agreement,
contract, or order to which it is a party.
14. Independent Contractor. Parkdale is an independent contractor and
neither Parkdale nor Delta is in any way an agent or partner of the other.
Neither Parkdale nor Delta shall have any right to enter into any contract or
agreement on behalf of the other or to bind the other in any manner.
15. Dispute Resolution. Except for (a) matters relating to specific
performance, injunctive relief or other equitable remedies or (b) third party
claims, the parties hereto agree that any disputes, controversies or claims
relating to the rights and obligations of the parties under, and to the
transactions contemplated by, this Agreement ("Disputes") that are not resolved
by the personnel of the respective parties directly involved shall first be
referred to the appropriate senior management personnel of each party for
resolution. If said senior management personnel are unable to resolve the
Dispute within thirty (30) days following its referral to them, the Dispute
shall be determined and adjudged by a panel of three arbitrators, unless the
amount in controversy is less than $250,000, in which case a single arbitrator
shall preside. The hearing shall be held in Charlotte, North Carolina. The
selection of an arbitrator and the procedure shall be in accordance with the
commercial arbitration rules then in effect of the American Arbitration
Association. The arbitrator(s) shall be empowered to order discovery to the
extent permitted under the Federal Rules of Civil Procedure. Any award rendered
shall be final and conclusive upon the parties and a judgment thereon may be
entered in the highest court of the forum, state or federal, having
jurisdiction. The expenses of the arbitration shall be borne equally by the
parties to the arbitration, provided that each party pay for and bear the costs
of its own experts, evidence, and counsel's fees, and provided further that in
the discretion of the arbitrator, any award may include the fees of a party's
counsel if the arbitrator expressly determines that the party against which such
award is entered has caused the dispute, controversy, or claim to be submitted
to arbitration in bad faith.
16. Assignment. Neither party may assign or transfer this Agreement
without the other party's written consent, except that (i) Parkdale may assign
its rights to payment under this Agreement to any bank, trust company, insurance
company, or financial institution under the terms of financing agreements (but
any such assignment shall not relieve Parkdale of its obligations hereunder);
(ii) Delta may collaterally assign this Agreement to any bank, trust company,
insurance company, or financial institution under the terms of financing
agreements (but any such assignment shall not relieve Delta of its obligations
hereunder); (iii) each of Delta and Parkdale America, LLC may assign this
Agreement to a wholly-owned subsidiary or a successor resulting from a
consolidation or merger provided that any such successor shall have assumed the
obligations of Delta or Parkdale America, LLC, as applicable, hereunder; and
(iv) each of Delta and Parkdale may assign this Agreement to a purchaser of
substantially all of its business and assets provided that any such purchaser
shall have assumed the obligations of Delta or Parkdale, as applicable,
hereunder (but any such assignment shall not relieve Delta or Parkdale, as
applicable, of its obligations hereunder). Notwithstanding the foregoing,
Parkdale may not assign this Agreement or control of the Facility to any Delta
Competitor. For purposes hereof, the term Delta Competitor shall mean any
marketer or manufacturer of activewear.
17. Binding Effect. Except as otherwise provided in this Agreement, this
Agreement shall be binding upon and inure to the benefit of all parties and
their respective successors and permitted assigns.
18. Notices. Except for routine communications hereunder, all notices,
requests, demands, and other communications hereunder shall be in writing (which
shall include communications by facsimile transmission) and shall be delivered
(a) in person or by courier or overnight service, (b) by mail by first class
registered or certified mail, postage prepaid, return receipt requested, or (c)
by facsimile transmission, as follows:
To Delta:
Delta Apparel, Inc.
2750 Premiere Parkway, Suite 100
Duluth, GA 30097
Attention: Robert W. Humphreys, President and CEO
Telecopy: 678-775-6999
Telephone: 678-775-6900
To Parkdale:
Parkdale Mills, Inc.
531 Cotton Blossom Circle
Gastonia, NC 28054
Attention:
Telecopy:
Telephone:
or to such other address of a party as that party may designate in writing to
the other in accordance with this Section. Either party may change the address
to which notices are to be sent by giving written notice of such change of
address to the other party in the manner provided above for giving notice. If
delivered personally or by courier, the date on which the notice, request,
instruction or document is delivered shall be the date on which such delivery is
made and if delivered by facsimile transmission or mail as aforesaid, the date
on which such notice, request, instruction or document is received shall be the
date of delivery.
19. Waiver. A waiver of a breach of any term of this Agreement will not
be construed as a waiver of any succeeding breach of that term or as a waiver of
the term itself. A party's performance after the other's breach shall not be
construed as a waiver of that breach. No failure or
delay by either party to enforce or take advantage of any provision or right
under this Agreement shall constitute a waiver of that provision or right, nor
shall it be a waiver of any of the other terms and conditions of this Agreement.
20. Headings. Whenever the context requires in this Agreement, the
singular includes the plural, the plural includes the singular, and the gender
of any pronoun includes the other gender. Headings, titles and captions of or in
this Agreement are inserted only as a matter of convenience and for reference
and in no way define, limit, extend, or describe the scope of this Agreement or
the intent of any of its provisions.
21. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of North Carolina, without regard to
conflicts of laws and principles. The parties acknowledge and agree that the
Yarn sold hereunder and this Agreement are not subject to any provision of the
United Nations Convention on the International Sale of Goods.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which once executed shall be deemed an original but all of
which together shall constitute one and the same instrument.
23. Currency. All amounts referred to in this Agreement and all payments
hereunder shall be made in the lawful currency of the United States of America.
24. Entire Agreement; Modification. This Agreement and all documents
incorporated herein by reference constitute the entire agreement between the
parties, and supersede all prior agreements and understandings between them,
relating to the subject matter hereof. This Agreement may not be supplemented,
amended or modified except by a written instrument duly signed and executed by
or on behalf of each party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective duly authorized officers as of the day and
year first above written.
PARKDALE MILLS, INC.
By: _______________________________
Name:
Title:
PARKDALE AMERICA LLC
By: _______________________________
Name:
Title:
DELTA APPAREL, INC.
By: _______________________________
Name:
Title:
EXHIBIT A
SPECIFICATIONS:
See Attached.
EXHIBIT B
PURCHASE PRICE OF YARN:
The purchase price for each pound of Yarn delivered shall be calculated in
accordance with the following formula: PURCHASE PRICE = [(A + B) / C] + D
Where: A = Cost Price
B = Basis, which for the purposes hereof for 2005
shall mean * points off
C = * (representing a waste factor of *) for 100%
cotton Yarn and * (representing a waste
factor of *) for 50/50 Yarn and Blends
D = Conversion Price for each of the following
respective counts of Yarn (the "Yarn Counts"):
Yarn Count: Conversion Price Per Pound:
- ----------- --------------------------
10/1 count (50/50) *
14/1 count (50/50) *
18/1 count (50/50) *
17 counts (100%) *
18/1 count (100%) *
19 counts (100%) *
20/1 count (50/50) *
20/1 count (100%) *
18/1 count heathers *
17/1 count heathers *
This EXHIBIT B shall be amended from time to time to add conversion prices per
pound for Yarn Counts required by Delta or any of its Subsidiaries not set forth
above, as agreed to by the parties in their reasonable discretion.
EXAMPLE: *
The Conversion Price per pound will be increased in 2007 by * per pound and by
an additional * per pound in 2009. The Cost Price per pound shall be adjusted
over the term of this Agreement on a quarterly basis and shall be calculated for
any given quarter based on the weighted average of cotton prices fixed for that
quarter pursuant to EXHIBIT C. The Basis per pound shall be adjusted over the
term of this Agreement on an annual basis on each anniversary date of this
Agreement.
Cotton Prices:
Parkdale shall purchase cotton at prices determined by Delta in accordance with
EXHIBIT C attached hereto.
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed separately with the Securities and
Exchange Commission.
Inventory acquired Pursuant to Acquisition Agreement:
Notwithstanding any other provision of this Agreement to the contrary, the
purchase price for Yarn produced from raw materials and work-in-process
purchased by Parkdale from Delta pursuant to the Acquisition Agreement shall be
computed (i) in the case of raw materials, on the basis of the Stated Value of
the Inventory (as such terms are defined in the Acquisition Agreement) in lieu
of Cost Price and Basis, and (ii) in the case of any work-in-process other than
cotton at uniflock, on the basis of the Stated Value of the Inventory in lieu of
Cost Price and Basis, a waste factor of * for 100% cotton Yarn and * for 50/50
Yarn and Blends in lieu of the applicable waste factor, and fifty (50%) percent
of the applicable conversion price in lieu of the applicable conversion price.
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed separately with the Securities and
Exchange Commission.
EXHIBIT C
COTTON PRICING:
For each quarter during the term of this Agreement, Delta shall prior to the
respective dates set forth below (i) deliver fixation orders to Parkdale in
writing for cotton at a price per pound or a range of acceptable prices per
pound for the applicable NY Futures Cover Month and in multiples of 100 bales or
(ii) transfer to a brokerage account of Parkdale an equivalent number of NYBOT
Cotton Futures. In the event that Delta fails to exercise its right to fix the
price of cotton for any quarter prior to the respective date set forth below,
Parkdale shall have the right to fix the cotton price for that quarter. If Delta
fails to fix the price of cotton for any quarter in quantities that are
sufficient for Parkdale to fulfill the purchase orders for Yarn issued by Delta
for delivery during that quarter, the applicable Cost Price for such excess Yarn
shall be equal to the cost fixed by Parkdale, if Parkdale manufactures such
excess Yarn from cotton delivered to it pursuant to futures contracts, or
Parkdale's cost to obtain cotton in the spot market, if Parkdale manufacturers
such excess Yarn from cotton purchased by it in the spot market.
SCHEDULE FOR COTTON PRICE FIXATIONS:
Quarter: Prices to be fixed prior to: NY Futures Cover Month:
- ------- --------------------------- ----------------------
First November 30 March
Second February 28 May
Third May 31 July
Fourth August 30 December
In the event that the number of bales fixed for any quarter exceeds the actual
cotton content of the Yarn delivered by Parkdale during such quarter, the excess
cotton fixation will be rolled forward to the next quarter at the price for the
current quarter and Delta shall reimburse Parkdale's carrying costs for the
excess cotton fixation until such fixation is exhausted. Carrying costs are *
per bale per month (* per pound) and shall accrue on the last day of the month
(e.g. unused cotton on March 31st will be subject to carrying charges if still
unused on April 30th). Accrued carrying costs shall be paid by Delta on a
quarterly basis or upon demand by Parkdale.
All fixation orders and executions must be promptly confirmed in writing by any
of the respective representatives listed below or otherwise designated by
written notice in accordance with Section 18.
INDIVIDUALS RESPONSIBLE FOR FIXATION ORDERS/EXECUTION:
Delta: Parkdale:
- ----- --------
Robert W. Humphreys Duke Kimbrell
Herbert M. Mueller Andy Warlick
Charles Sutlief Gene Frye
Deborah H. Merrill Stuart Frazer
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed separately with the Securities and
Exchange Commission.