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EXHIBIT 10.1
EXECUTION COPY
THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT
THIS THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT dated as of July 12,
1999 (this "Third 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"), NationsBank, 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 agree to 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 "Third 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 "Fixed Asset Portion" is amended to read in full as
follows:
"'Fixed Asset Portion' shall mean $55,000,000; 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 exceed Two Million Dollars ($2,000,000) 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
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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; (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 (vi) $1,000,000 on the Third
Amendment Effective Date and $1,000,000 on August 1, 1999 provided
that the requirement that the Fixed Asset Portion be reduced by
$833,000 on the last day of each fiscal month ending during Fiscal
Year 1999 will be credited in order of maturity by the $1,000,000
reduction made on August 1, 1999; 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 one-fourth of the amount set forth opposite such period:
Fiscal Year Annual Amount
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Fiscal Year 1998 $3,000,000
Fiscal Year 1999 4,000,000
Fiscal Year 2000 5,000,000
Fiscal Year 2001 6,000,000
Fiscal Year 2002 7,000,000
and provided, further, however, in addition to the reduction in the
Fixed Asset Portion contemplated by the preceding provisos, the Fixed
Asset Portion shall be further reduced by $833,000 on the last day of
each fiscal month of the Company ending during Fiscal Year 1999
commencing with the fiscal month ending on December 5, 1998; 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 two immediately preceding provisos, which
deductions from such specified amounts of reductions in said provisos
shall be made in the direct order of the dates, beginning in such
fiscal month, specified for such reductions in said provisos."
(b) The definition of "Revolving Credit Facility" 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, One Hundred Thirty-Four Million Dollars
($134,000,000) until July 31, 1999 and One Hundred Thirty-Three
Million Dollars ($133,000,000) thereafter, less all reductions in such
amount effected pursuant to Sections 2.03 and 2.06."
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 Third Amendment Effective Date and after giving effect to this Third
Amendment:
(a) Each of the representations and warranties contained in this Third
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 Third Amendment
Effective Date, as if then made, other than representations and warranties
which expressly speak as of a different date; and
(b) No Default or Event of Default has occurred and is continuing.
4. Third Amendment Effective Date. This Third Amendment shall become
effective as of the date hereof (the "Third Amendment Effective Date") when the
Agent shall have received, by facsimile, counterparts of this Third Amendment
executed by the Company, each Borrowing Subsidiary, the Agent, the Co-Agent and
the Requisite Lenders, and acknowledged by each of JCC, JPS Auto and
International Fabrics.
5. Reference to and Effect on the Loan Documents.
(a) On and after the Third 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 Third 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.
6. 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 Third Amendment and all other Loan Documents entered into
in connection herewith, including, without limitation, the
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reasonable fees, expenses and disbursements of legal counsel for the Agent with
respect to any of the foregoing.
7. Miscellaneous. The headings herein are for convenience of reference
only and shall not alter or otherwise affect the meaning hereof.
8. Counterparts. This Third 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.
9. GOVERNING LAW. THIS THIRD 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.
IN WITNESS WHEREOF, the Agent, the Co-Agent, the Lenders, the Company and
the Borrowing Subsidiaries have caused this Third Amendment to be executed by
their respective officers thereunto duly authorized as of the date first above
written.
JPS INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: EVP & CFO
JPS CONVERTER AND INDUSTRIAL CORP.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
JPS ELASTOMERICS CORP.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
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IN WITNESS WHEREOF, the Agent, the Co-Agent, the Lenders, the Company and
the Borrowing Subsidiaries have caused this Third Amendment to be executed by
their respective officers thereunto duly authorized as of the date first above
written.
JPS TEXTILE GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: EVP & CFO
JPS CONVERTER AND INDUSTRIAL CORP.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
JPS ELASTOMERICS CORP.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
CITIBANK, N.A., as Agent, as Issuing Bank and as a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
NATIONSBANK, N.A., as Co-Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Title: Duly Authorized Signatory
XXXXXX FINANCIAL, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
BNY FINANCIAL CORPORATION
BANKBOSTON, N.A.
By: /s/ Xxxx X. Xxxx
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Title: Managing Director
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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 Third
Amendment to 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/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
JPS AUTO INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
INTERNATIONAL FABRICS, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Title: VP
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