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EXHIBIT 10.36
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT dated as of the 30th day of September,
1996 (this "Agreement") between THE BANK OF NEW YORK COMMERCIAL CORPORATION, a
New York corporation ("Purchaser") and JPS ELASTOMERICS CORP., a Delaware
corporation ("Seller").
Seller is engaged through its Rubber Products Group (the "Rubber
Products Group") in the production and marketing of [rubber and synthetic
elastic used in apparel products, diaper products and specialty applications].
On the date hereof (the "Closing Date"), Seller is divesting the Rubber
Products Group pursuant to an Assets Purchase Agreement (the "Assets Purchase
Agreement") between Elastomer Technologies Group, Inc. ("Elastomer") and
Seller.
Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, all the accounts receivable of the Rubber Products Group existing
on the date hereof, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
and the representations and warranties, conditions and promises herein
contained, and intending to be legally bound hereby, Purchaser and Seller
hereby agree as follows:
1. Sale and Purchase of Transferred Receivables. Seller hereby
unconditionally conveys, sells, transfers, assigns and delivers to Purchaser,
and its successors and assigns forever, and Purchaser hereby purchases, all of
the right, title and interest of Seller in and to all its unpaid existing
accounts receivable as of the date hereof, arising out of or in connection with
the sale or lease of goods or the rendering of services by the Rubber Products
Group, including, without limitation, the accounts receivable set forth on
Schedule 1 hereto (the "Transferred Receivables").
2. Purchase Price. The purchase price for the Transferred
Receivables being acquired by Purchaser pursuant to this Agreement shall be an
amount equal to $2,597,328 (the "Purchase Price"), such amount representing
100% of the face value of the Transferred Receivables, less an agreed upon
allowance for doubtful accounts
3. Representations and Warranties. (a) Seller hereby represents
and warrants that: it has full power, authority and legal right to enter into
this Agreement and to perform all its respective obligations hereunder; the
execution, delivery and performance of this Agreement are within its corporate
powers, have been duly authorized, are not in contravention of law or the terms
of its by-laws or certificate of incorporation; it is duly incorporated and in
good standing under the laws of the state of its organization and is qualified
to do business and is in good
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standing in all states in which qualification and good standing are necessary
for it to conduct its business and own its property and where the failure to so
qualify could have a material adverse effect on Seller; Seller is not in
violation of any applicable statute, regulation or ordinance in any respect
which could have a material adverse effect on Seller, nor is Seller in
violation of any order of any court, governmental authority or arbitration
board or tribunal which could have a material adverse effect on the business
conducted by the Rubber Products Group; and no provision of any mortgage,
indenture, contract, agreement, judgment, decree or order binding on Seller
conflicts with, or requires any consent which has not already been obtained, or
would in any way prevent the execution, delivery or performance of the terms of
this Agreement.
(b) Seller hereby represents and warrants that: each Transferred
Receivable is based on an actual and bona fide sale and delivery of goods or
rendition of services to customers made by it in the ordinary course of its
business; the goods and inventory sold by it and the Transferred Receivables
created thereby are its exclusive property and are not and subject to an lien,
consignment arrangement, encumbrance, security interest or financing statement
whatsoever; and any taxes or fees relating to the Transferred Receivables are
solely the responsibility of Seller.
4. Books and Records. Seller agrees to make its records, files
and books of account in any way relating to the Transferred Receivables
available to Purchaser or its designee on request and that Purchaser may visit
the premises of Seller during normal business hours to examine such records,
files and books of account and to make copies of extracts thereof and to
conduct such examinations thereof as Purchaser reasonably deems necessary.
5. Collection; Receipt of Payment. (a) As owner and assignee of
the Transferred Receivables, Purchaser shall have the right to collect the
Transferred Receivables and to bring suit in the name of Seller or Purchaser or
through the representatives and agents of Purchaser, including Elastomer, and
generally shall have all other rights of an owner of the Transferred
Receivables including without limitation the right to: accelerate or extend the
time of payment, settle, compromise, release in whole or in part any amounts
owing on any Transferred Receivables and issue credits in the name of Seller or
Purchaser. Any checks, cash, notes or other instruments or property received by
Seller with respect to any Transferred Receivables shall be held by it in
trust for Purchaser, separate from its own property and funds, and immediately
turned over to Purchaser with proper assignments or endorsements. Purchaser may
endorse or sign the name of Seller or Purchaser on any checks or other
instruments with respect to Transferred Receivables or the goods covered
thereby.
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(b) In the event that subsequent to the Closing Date Seller shall
receive any payment with respect to a Transferred Receivable, including,
without limitation, payment under the letters of credit listed in Exhibit A
hereto, Seller shall hold such payments in trust and promptly pay over and
deliver to Purchaser such payment and endorse to the order of Purchaser any
check received. Purchaser shall not have any obligation or liability with
respect to any account debtor by reason of this Agreement or be obligated to
perform any of the obligations or duties of Seller with respect thereto.
6. Further Actions. From time to time, as and when requested by
Purchaser, Seller shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments and shall take, or cause to be
taken, all such further or other actions, as Purchaser may reasonably deem
necessary or desirable to carry out the intent and purposes of this Agreement,
to convey, transfer, assign and deliver on the date hereof to Purchaser, and
its successors and assigns, the Transferred Receivables (or to evidence the
foregoing) and to consummate the other transactions contemplated hereby.
7. Entire Agreement. This Agreement contains the entire agreement
between Purchaser and Seller with respect to the transactions contemplated by
this Agreement and supersedes all prior arrangements or understandings with
respect thereto.
8. Descriptive Headings. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
9. Guaranty, Inducement and Cooperation Agreement. It is a
condition precedent to the effectiveness of this Agreement that on the date
hereof Elastomer executes and delivers a guaranty in favor of the Purchaser
guaranteeing payment of the Transferred Receivables in an amount at least equal
to the Purchase Price.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
transactions to be performed solely within it borders.
11. Assignability. Seller shall not sell, assign or otherwise
transfer all or any of its rights or obligations hereunder without the consent
of Purchaser, except as required the Fourth Amended and Restated Credit
Agreement dated as of June 24, 1994, as amended, among JPS Textile Group, Inc.,
Seller, JPS Converter and Industrial Corp., General Electric Capital
Corporation, Citibank, N.A. and the other lenders named therein. Purchaser may
at any time sell, assign or otherwise transfer all
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or any of its rights or obligations hereunder. No assignment by Seller or
Purchaser shall relieve Seller or Purchaser of its obligations hereunder.
12. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
13. Headings. Headings are for reference purposes only and shall
not in any manner affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed in their respective corporate names by their respective duly
authorized officers, all as of the day and year first above written.
THE BANK OF NEW YORK COMMERCIAL CORPORATION
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Assistant Vice President
JPS ELASTOMERICS CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
Letters of Credit
1. Letter of credit issued by Banco Internacional del Peru on behalf of
Mimo, for the benefit of JPS Elastomerics dated 07/17/95
2. Letter of credit issued by Banco Santander on behalf of Fabricas
Hollywood for the benefit of JPS Elastomerics dated 07/12/96
3. Letter of credit issued by ABN AMRO Bank N.V. on behalf of Sagrin for
the benefit of JPS Elastomerics dated 09/16/96
4. Letter of credit issued by Standard Bank of South Africa on behalf of
Ninian and Xxxxxx for the benefit of JPS Elastomerics dated 09/03/96
5. Letter of credit issued by Bank International Indonesia on behalf of
PT The Univenus Company for the benefit of JPS Elastomerics dated 06/21/96
6. Letter of credit issued by Standard Bank of South Africa on behalf of
Ninian and Xxxxxx for the benefit of JPS Elastomerics dated 07/08/96
