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Exhibit 10.57
CONSENT AND
FIFTH AMENDMENT TO CREDIT FACILITY AGREEMENT
This CONSENT AND FIFTH AMENDMENT TO CREDIT FACILITY AGREEMENT dated as
of November 9, 2000 (this "Fifth Amendment") is entered into among JPS
Industries, Inc. (the "Company"), JPS Elastomerics Corp. and JPS Converter and
Industrial Corp. (together, the "Borrowing Subsidiaries"), Citibank, N.A.
("Citibank"), as agent and collateral agent (the "Agent"), Bank of America,
N.A., as co-agent (the "Co-Agent"), and the Lenders, and relates to that certain
Credit Facility Agreement dated as of October 9, 1997 (as amended, restated,
supplemented or modified from time to time, the "Credit Agreement") among the
Company, the Borrowing Subsidiaries, the Agent, the Co-Agent and the Lenders.
W I T N E S S E T H:
WHEREAS, the Company and the Borrowing Subsidiaries have requested that
the Lenders, the Agent and the Co-Agent amend the Credit Agreement as provided
for herein;
NOW, THEREFORE, in consideration of the above premises, the Company,
the Borrowing Subsidiaries, the Agent, the Co-Agent and the Lenders agree as
follows:
1. Definitions. Capitalized terms used and not otherwise defined
herein have the meanings assigned to them in the Credit Agreement.
2. Amendments to the Credit Agreement. Upon the "Fifth Amendment
Effective Date" (as defined in Section 4 below), the Credit Agreement is hereby
amended as follows:
2.1 Section 1.01. Section 1.01 of the Credit Agreement is amended
as follows:
(a) The definition of "EBITDA" in Section 1.01 is amended by
adding at the end thereof a new sentence to read as follows:
"For the purpose of determining compliance with the minimum EBITDA
covenant set forth in Section 8.01 for the twelve month period ending
on the last day of the fourth fiscal quarter of Fiscal Year 2000, the
Apparel Division shall be included in the calculation of EBITDA for
such period."
(b) The definition of "Fixed Asset Portion" in Section 1.01 is
amended to read in full as follows:
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'Fixed Asset Portion' shall mean $14,000,000; provided, however, the
amount of the Fixed Asset Portion shall be reduced by the aggregate
amount of each of the following: (i) the amount of any cash proceeds
from sales of assets (other than Inventory) sold in the ordinary course
of business that exceeds Seven Hundred Fifty Thousand Dollars
($750,000) in the aggregate in any Fiscal Year, net of (A) the costs of
sale, lease, assignment or other disposition, (B) any income,
franchise, transfer or other tax liability arising from such
transaction and (C) amounts applied to the repayment of Indebtedness
(other than the Obligations) secured by a Lien on the asset disposed
of; (ii) in the event of the sale of all or substantially all of the
capital stock or assets of any Borrowing Subsidiary (to the extent
otherwise permitted hereunder), the amount of the Fixed Asset Value of
such Borrowing Subsidiary plus fifty percent (50%) of the amount, if
any, by which the Net Cash Proceeds from such sale exceed such Fixed
Asset Value; and (iii) in the event of a Permitted Disposition, an
amount equal to fifty percent (50%) of the Net Cash Proceeds from such
disposition; (iv) the amount of Net Cash Proceeds from sales of assets
(other than in connection with a Permitted Disposition); (v) in the
event of the receipt by any Loan Party of any Net Cash Proceeds of
Equity Issuances, the lesser of (A) the amount of such Net Cash
Proceeds and (B) $25,000,000; and provided further, however, the Fixed
Asset Portion shall be reduced on the last day of each fiscal quarter
of the Company ending during each Fiscal Year set forth below by the
amount set forth opposite such fiscal quarter:
Fiscal Quarter Amount
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First Fiscal Quarter 2001 1,400,000
Second Fiscal Quarter 2001 1,400,000
Third Fiscal Quarter 2001 1,400,000
Fourth Fiscal Quarter 2001 1,400,000
and provided, further, however, in the event that a Borrowing
Subsidiary receives any cash proceeds or Net Cash Proceeds referred to
in clauses (i) through (iv) above during any fiscal month, the amount
of such cash proceeds and Net Cash Proceeds shall, to the extent that
the Fixed Asset Portion is reduced by such amount pursuant to said
clauses, be deducted from the amount of reductions in the Fixed Asset
Portion specified in the immediately preceding proviso, which
deductions from such specified amounts of reductions in said proviso
shall be made in the direct order of the dates, beginning in such
fiscal month, specified for such reductions in said proviso."
(c) The definition of "Revolving Credit Facility" in Section 1.01
is amended to read in full as follows:
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"'Revolving Credit Facility' shall mean the revolving credit facility
provided for in Section 2.03 not to exceed, in the aggregate at any
time outstanding, Forty Five Million Dollars ($45,000,000), less all
reductions in such amount effected pursuant to Sections 2.03 and 2.06."
(d) The definition of "Scheduled Termination Date" in Section 1.01
is amended to read in full as follows:
"'Scheduled Termination Date' shall mean November 12, 2001."
2.2 Section 6.16. Section 6.16 of the Credit Agreement is amended
in full to read as follows:
"6.16. Real Estate Documents. On or prior to December 1, 2000, the
Company shall cause the real estate documents set forth on the Schedule
attached hereto to be recorded and shall have obtained title insurance
with respect thereto."
2.3 Section 7.05(b). Section 7.05(b) of the Credit Agreement is
amended in full to read as follows:
"(b) The Company may repurchase its common stock from the public
market in an aggregate amount of up to the sum of (i) $6,000,000 plus
(ii) 100% of the amount of the Company's Consolidated Net Income
determined at the end of each fiscal quarter, beginning with the first
fiscal quarter of the Fiscal Year 2000 upon the delivery of financial
statements pursuant to Section 5.01(c) so long as the cumulative amount
under this subsection (ii) does not exceed $4,000,000; provided that
prior to and after giving effect to such repurchase, no Event of
Default or Potential Event of Default has occurred and is continuing
and the Borrowers have Availability of at least $5,000,000."
2.4 Section 8.01. Section 8.01 of the Credit Agreement is amended
to read in full as follows:
"8.01. Minimum EBITDA. EBITDA of the Company and its Subsidiaries on
a consolidated basis, as determined as of the last day of each fiscal
quarter set forth below for the period indicated below, shall not be
less than the minimum amount set forth opposite such fiscal quarter:
Period Minimum Amount
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Twelve month period ending on the last day of
the fourth fiscal quarter of Fiscal Year 2000 22,000,000
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Three month period ending on the last day of
the first fiscal quarter of Fiscal Year 2001 3,000,000
Six month period ending on the last day of
the second fiscal quarter of Fiscal Year 2001 8,000,000
Nine month period ending on the last day of
the third fiscal quarter of Fiscal Year 2001 13,000,000
Twelve month period ending on the last day of
the fourth fiscal quarter of Fiscal Year 2001 18,000,000
3. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to each Lender, the Agent and the Co-Agent that, as of
the Fifth Amendment Effective Date and after giving effect to this Fifth
Amendment:
(a) Each of the representations and warranties contained in this
Fifth Amendment, the Credit Agreement as amended hereby and the other Loan
Documents are true and correct in all material respects on and as of the
Fifth Amendment Effective Date, as if then made, other than
representations and warranties which expressly speak as of a different
date; and
(b) No Potential Event of Default or Event of Default has occurred
and is continuing.
4. Fifth Amendment Effective Date. This Fifth Amendment shall
become effective as of the date hereof (the "Fifth Amendment Effective Date")
when each of the following conditions shall have been satisfied:
(a) The Agent shall have received, by facsimile, counterparts of
this Fifth Amendment executed by the Company, each Borrowing Subsidiary,
the Agent, the Co-Agent and the Lenders, and acknowledged by each of JCC,
JPS Auto and International Fabrics.
(b) Each of the representations and warranties contained in this
Fifth Amendment, the Credit Agreement as amended hereby and the other Loan
Documents shall be true and correct in all material respects on and as of
the Fifth Amendment Effective Date, as if then made, other than
representations and warranties which expressly speak as of a different
date.
(c) No Event of Default or Potential Event of Default shall have
occurred and be continuing on the Fifth Amendment Effective Date.
5. Consent and Direction. The Lenders hereby (i) consent to the
transactions contemplated under the Asset Purchase Agreement dated as of
November __, 2000 among JPS Industries, Inc., JPS Converter & Industrial Corp.
and JPSA Acquisition Corp., a copy of which is attached hereto, provided that
the Borrowers prepay the principal amount of the Loans in an
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amount equal to the Net Cash Proceeds received from such transactions and
(ii) direct the Agent to release its lien in the "Assets" (as such term is
defined in such Asset Purchase Agreement) and to execute and deliver the
appropriate documentation in connection therewith.
6. Reference to and Effect on the Loan Documents.
(a) On and after the Fifth Amendment Effective Date, each
reference in the Credit Agreement as amended hereby to "this Agreement",
"hereunder", "hereof" or words of like import, and each reference in the other
Loan Documents to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended above, all of the terms of the
Credit Agreement and all other Loan Documents shall remain unchanged and in full
force and effect.
(c) The execution, delivery and effectiveness of this Fifth
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender, the Agent or the Co-Agent under the
Credit Agreement or any of the Loan Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
7. Fees, Costs and Expenses. The Company and the Borrowing
Subsidiaries jointly and severally agree to pay upon demand in accordance with
the terms of Section 11.03 of the Credit Agreement all reasonable costs and
expenses of the Agent in connection with the preparation, reproduction,
negotiation, execution and delivery of this Fifth Amendment and all other Loan
Documents entered into in connection herewith, including, without limitation,
the reasonable fees, expenses and disbursements of legal counsel for the Agent
with respect to any of the foregoing.
8. Miscellaneous. The headings herein are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof.
9. Counterparts. This Fifth Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered by facsimile shall be
an original, but all of which shall together constitute one and the same
instrument.
10. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE INTERPRETED, AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO AND TO THE CREDIT AGREEMENT AS
AMENDED HEREBY DETERMINED, IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Agent, the Co-Agent, the Lenders, the
Company and the Borrowing Subsidiaries have caused this Fifth Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
JPS INDUSTRIES, INC.
By: /s/
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Title: Asst. Sec.
JPS CONVERTER AND INDUSTRIAL CORP.
By: /s/
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Title: Asst. Sec.
JPS ELASTOMERICS CORP.
By: /s/
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Title: Asst. Sec.
CITIBANK, N.A., as Agent, as Issuing Bank and as a
Lender
By: /s/
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Vice President
BANK OF AMERICA, N.A., as Co-Agent and as a Lender
By:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
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THE CIT GROUP/COMMERCIAL SERVICES, INC.
By:
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Title:
FLEET CAPITAL CORPORATION
By:
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Title:
GMAC COMMERCIAL CREDIT LLC
By:
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Title:
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ACKNOWLEDGMENT
Reference is hereby made to (i) the Guaranty dated as of March 18, 1993
executed by JPS Carpet Corp., (ii) the Guaranty dated as of March 18, 1993
executed by JPS Auto Inc., and (iii) the Guaranty dated as of August 5, 1993
executed by International Fabrics, Inc., each as amended as of October 9, 1997
(each, as so amended, a "Guaranty") in favor of the Agent and the Lenders. Each
of the undersigned hereby consents to the terms of the foregoing Fifth Amendment
to the Credit Facility Agreement, and agrees that the terms thereof shall not
affect in any way its obligations and liabilities under each such Guaranty or
any other Loan Document (as defined therein), all of which obligations and
liabilities shall remain in full force and effect and each of which is hereby
reaffirmed.
JPS CARPET CORP.
By: /s/
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Title: Asst. Sec.
JPS AUTO INC.
By: /s/
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Title: Asst. Sec.
INTERNATIONAL FABRICS, INC.
By: /s/
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Title: Asst. Sec.
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