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Exhibit 99.3
AMENDMENT
THIS AMENDMENT, dated as of May 21, 1999 (this "AMENDMENT"), is
entered into by and among Flexible Funding Corp. (the "SELLER"), Falcon Asset
Securitization Corporation ("FALCON") and The First National Bank of Chicago,
individually ("FIRST CHICAGO") and as agent (the "AGENT") with respect to that
certain Receivables Purchase Agreement dated as of August 22, 1996 by and among
the parties hereto (as previously amended and as amended hereby, the "RPA").
Capitalized terms used and not otherwise defined herein are used with the
meanings attributed thereto in the RPA.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments.
1.1. The definition of "LIQUIDITY TERMINATION DATE" set forth in
Exhibit I to the RPA is hereby amended to delete "August 20, 2001" where it
appears and to substitute "December 31, 2003" in lieu thereof.
1.2. The definition of "ADJUSTED LIBOR RATE" set forth in Exhibit I to
the RPA is hereby amended and restated in its entirety to read as follows:
"ADJUSTED LIBOR RATE" means, on any date of determination with respect
to any Receivable Interest: the sum of (a) the applicable LIBOR Rate, plus
(b) 0.50% per annum with respect to any Receivable Interest of Falcon, and
2.75% per annum with respect to any Receivable Interest of the Investors.
1.3. The following new definitions are hereby inserted in their
appropriate alphabetical order into Exhibit I to the RPA:
"AGREEMENT ACCOUNTING PRINCIPLES" has the meaning provided in the
Credit Agreement.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by the
Originator and its Subsidiaries during that period that, in conformity with
Agreement Accounting Principles, are required to be included in or
reflected by the property, plant, equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of the Originator and its
Subsidiaries, other than Permitted Acquisitions.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership,
partnership interests (whether general or limited) and (iv) any other
interest or participation that confers on a Person the right to
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receive a share of the profits and losses of, or distributions of assets
of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"CREDIT AGREEMENT" means that certain Amended and Restated Credit
Agreement dated as of May 21, 1999 among Printpack, Inc., a Georgia
corporation, the lenders from time to time party thereto, and The First
National Bank of Chicago, in its capacity as agent thereunder, as the same
may be amended, restated or otherwise modified from time to time in
accordance with the terms thereof.
"EBITDA" means, for any period, on a consolidated basis for the
Originator and its Subsidiaries, the sum of the amounts for such period of
(i) Net Income, plus (ii) Interest Expense, plus (iii) charges against
income for foreign, federal, state and local taxes, plus (iv) depreciation
expense, plus (v) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets, and fees, costs,
Original Transaction Costs (as defined in the Credit Agreement) and
expenses in connection with Permitted Acquisitions, plus (vi) other
non-cash charges classified as long-term deferrals in accordance with
Agreement Accounting Principles.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any and
all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, exchange rates
or forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
"INDEBTEDNESS" has the meaning provided in the Credit Agreement.
"INTEREST EXPENSE" means, for any period, the sum of (i) the total
interest expense of the Originator and its consolidated Subsidiaries,
whether paid or
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accrued (including the interest component of Capitalized Leases, commitment
and letter of credit fees, and discount and other fees and charges incurred
under the Transaction Documents), but excluding interest expense not
payable in cash (including amortization of discount), and (ii) the product
of (a) all cash dividend payments on any series of preferred stock issued
by the Originator or any of its Subsidiaries, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of the
Originator, expressed as a decimal, in each case on a consolidated basis,
all as determined in conformity with Agreement Accounting Principles.
"LETTER OF CREDIT" has the meaning provided in the Credit Agreement.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of the Originator and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity
with Agreement Accounting Principles; provided, that when calculating Net
Income the following items shall be excluded from such calculation: (i) the
earnings (but not loss) of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting, except to the extent of
the amount of dividends or distributions paid in cash to the Originator or
a consolidated Subsidiary; (ii) the earnings of a Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by
such Subsidiary to the Originator with respect to such earnings is not, at
the date of determination, permitted without the prior approval of a
Governmental Authority (and such approval has not been obtained), or is
prohibited, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Subsidiary or the
holders of its Capital Stock, (iii) the cumulative effect of a change in
accounting principles and (iv) nonrecurring items, such as gains or losses
on the sale of assets or any Restructuring Items; but when calculating Net
Income such calculation shall include historical audited Net Income (as
calculated above) for such period of any Person (or division of such
Person) that became a Subsidiary of the Originator during such period or
was merged into or was consolidated with the Originator or any of its
Subsidiaries during such period, or where the assets of such Person (or
division of such Person) were acquired by the Originator or any of its
Subsidiaries during such period, whether accrued prior or subsequent to the
date of such acquisition, merger or consolidation.
"PERMITTED ACQUISITION" has the meaning provided in the Credit
Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" has the meaning provided in
the Credit Agreement.
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"RESTRUCTURING ITEMS" shall mean the charges or reserves taken on the
financial statements of the Originator or any of its Subsidiaries in
accordance with Agreement Accounting Principles in connection with
severance, plant closings, equipment relocations or other charges related
to the consolidation or rationalization of operations.
"TOTAL DEBT" means, for any period, on a consolidated basis for the
Originator and its Subsidiaries, the sum of Indebtedness of the Originator
and its Subsidiaries, other than (i) Hedging Obligations and (ii) the sum
of the amounts then available for drawing under Letters of Credit.
1.4. Section 7.1 of the RPA is hereby amended to add the following new
subsections (m), (n) and (o) thereto:
(m) The Originator fails to maintain a ratio ("FIXED CHARGE COVERAGE
RATIO") of EBITDA to Interest Expense of at least the ratio set forth below
at the end of each fiscal quarter ending in the periods set forth in the
table below:
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APPLICABLE PERIOD RATIO
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May 21, 1999 through June 30, 2000 1.75 to 1.00
July 1, 2000 through June 30, 2001 2.00 to 1.00
July 1, 2001 through June 30, 2002 2.25 to 1.00
July 1, 2002 and thereafter 2.50 to 1.00
In each case the Fixed Charge Coverage Ratio shall be determined as of the
last day of each fiscal quarter for the four-quarter period ending on such
day.
(n) The Originator permits the ratio (the "LEVERAGE RATIO") of Total
Debt to EBITDA to be greater than the ratio set forth in the table below
under the column entitled "Default Ratio" at the end of each fiscal quarter
ending in the periods set forth in the table below:
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APPLICABLE PERIOD DEFAULT RATIO
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May 21, 1999 through December 31, 1999 5.50 to 1.00
January 1, 2000 through June 30, 2000 5.25 to 1.00
July 1, 2000 through June 30, 2001 5.00 to 1.00
July 1, 2001 through June 30, 2002 4.75 to 1.00
July 1, 2002 and thereafter 4.50 to 1.00
The Leverage Ratio shall be calculated, in each case, determined as of the
last day of each fiscal quarter based upon (a) for Total Debt, Total Debt
as of the last day
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of each such fiscal quarter; and (b) for EBITDA, the actual amount for the
four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical audited and
reviewed unaudited financial statements obtained from the seller, broken
down by fiscal quarter in the Originator's reasonable judgment.
(o) The Originator and its Subsidiaries expend, or commit to expend,
for Capital Expenditures during the periods set forth in the table below,
on a non-cumulative basis except as provided herein, in the aggregate for
the Originator and its Subsidiaries, in excess of the corresponding amounts
set forth in the table below for such period:
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APPLICABLE PERIOD MAXIMUM AMOUNT
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May 21, 1999 through June 30, 1999 $47,000,000
July 1, 1999 through June 30, 2000 $48,000,000
July 1, 2000 through June 30, 2001 $49,000,000
July 1, 2001 through June 30, 2002 $50,000,000
July 1, 2002 through June 30, 2003 $50,000,000
July 1, 2003 through March 31, 2004 $50,000,000
In the event that for any of the foregoing periods the actual amount of
Capital Expenditures for the Originator and its Subsidiaries shall be less
than the applicable limitation amount set forth above (plus any increase
therein pursuant to this sentence), an amount (the "CARRY-OVER AMOUNT")
equal to fifty percent (50.0%) of (i) permitted Capital Expenditures minus
(ii) actual amount of Capital Expenditures for such period, shall be added
to the permitted Capital Expenditures for the next succeeding fiscal year;
provided, that the Carry-Over Amount shall not exceed $25,000,000 in any
fiscal year.
2. Representations and Warranties. In order to induce the Agent and
the Purchasers to enter into this Amendment, the Seller hereby represents and
warrants to the Agent and the Purchasers that (a) this Amendment has been duly
authorized, executed and delivered by the Seller and is enforceable against the
Seller in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally, and (b) after giving
prospective effect to the amendments set forth herein, each of the
representations and warranties set forth in Section 3.1 of the RPA will be true
and correct as of the date hereof, and no Servicer Default or Potential Servicer
Default will exist and be continuing.
3. Conditions Precedent to Effectiveness. This Amendment will become
effective when (a) each of the parties hereto has duly executed a counterpart
hereof and delivered such executed counterpart to the Agent, and (b) the Seller
has executed and delivered to the
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Agent an amendment fee letter dated the date hereof and paid the fee required to
be paid thereunder in immediately available funds.
4. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
(b) Reaffirmation. Except as expressly modified hereby, the RPA
remains unaltered and in full force and effect, and is hereby ratified and
confirmed.
(c) Counterparts; Severability. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same Agreement. Any
provisions of this Amendment which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date
hereof.
FLEXIBLE FUNDING CORP.
By:/s/ Xxxxxxx X. Xxxxxxx III
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Name: Xxxxxxx X. Xxxxxxx III
Title: Treasurer
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO, as an
Investor and as Agent
By: /s/ Xxxxx X. Xxxxx
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Authorized Agent
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