RECITALS
EXHIBIT 4.13
FIRST AMENDMENT TO AMENDED AND RESTATED
SENIOR SUBORDINATED NOTE AGREEMENT
This FIRST AGREEMENT TO AMENDED AND RESTATED SENIOR SUBORDINATED NOTE
AGREEMENT (this "Amendment") is dated as of March 20, 1998 and entered into by
and among Favorite Brands International Inc., a Delaware corporation
("Company"), and the lenders listed on the signature pages hereof ("Lenders")
and is made with reference to that certain Amended and Restated Senior
Subordinated Note Agreement dated as of September 12, 1997 (the "Note Agreement
"), by and among Company and Lenders. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Note
Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Note Agreement as set
forth below:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO THE NOTE AGREEMENT
Clause (ii) of the definition of Permitted Indebtedness contained in
Schedule B of the Note Agreement is hereby amended by deleting clause (3)
thereof in its entirety and renumbering clause (4) thereof as clause (3).
SECTION 2. REPRESENTATIONS AND WARRANTIES
Company represents and warrants to each Lender that:
A. POWER. Company and each Guarantor has the power and authority to
execute and deliver this Amendment and to perform its Obligations under the
Note Agreement as amended by this Amendment (the "Amended Agreement").
B. AUTHORIZATION; NO CONTRAVENTION. The execution and delivery by
Company and Guarantors of this Amendment and the performance by Company and
Guarantors of the Amended Agreement have duly authorized by all necessary
corporate action, and do not and will not:
(i) contravene the terms of any such Person's Organizational
Documents;
(ii) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or
(iii) violate any Requirement of Law.
C. GOVERNMENTAL AUTHORIIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the execution
or delivery by Company of this Amendment or the performance by, or enforcement
against, Company of the Amended Agreement.
D. BINDING EFFECT. This Amendment and the Amended Agreement
constitute the legal, valid and binding obligations of Company and each
Guarantor, enforceable against such Person in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE NOTE AGREEMENT.
(i) On and after the date hereof, each reference in the Note
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Note Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specially amended by this Amendment, the Note
Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of any Lender under,
the Note Agreement.
B. GOVERNING LAW. This Amendment shall be construed and enforced in
accordance with, and the rights of the parties, shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
state that would require the application of the laws of a jurisdiction other
than such state.
C. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto. This Amendment shall become effective as of
September 12, 1997 upon the execution of a counterpart hereof by Company,
Guarantors and Required Lenders and receipt by Company of written notification
of such execution.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FAVORITE BRANDS INTERNATIONAL, INC.
By: [SIGNATURE ILLEGIBLE]
--------------------------------
Title: Vice President
-----------------------------
SATHERS, INC.
By: [SIGNATURE ILLEGIBLE]
--------------------------------
Title: Vice President
-----------------------------
XXXXXX TRUCKING CORPORATION
By: [SIGNATURE ILLEGIBLE]
--------------------------------
Title: Vice President
-----------------------------
XXXXXX XXXXX COMPANY
By: [SIGNATURE ILLEGIBLE]
--------------------------------
Title: Vice President
-----------------------------
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TROLLI, INC
By: [SIGNATURE ILLEGIBLE]
---------------------------------
Title: Vice President
------------------------------
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxx X. Xxxx
---------------------------------
Title: Vice President
------------------------------
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Investment Manager
------------------------------
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Investment Manager
------------------------------
OAK HILL SECURITIES FUND, LP.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MSP, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name XXXXX X. XXXXX
Title Vice President
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AMERICAN GENERAL LIFE AND
ACCIDENT INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
THE FRANKLIN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Xxxxx X. Xxxxxx
----------------------------------
Investment Officer
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By: /s/ Xxxxxxxx X. Kites
-------------------------------------
Title: Xxxxxxxx X. Kites
----------------------------------
Attorney-in-Fact
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:_____________________________________
Title:__________________________________
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:_____________________________________
Title:__________________________________
GREAT AMERICAN INSURANCE COMPANY
By: [SIGNATURE ILLEGIBLE]
--------------------------------------
Title: Asst. Vice President
----------------------------------
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GREAT AMERICAN LIFE INSURANCE
COMPANY
By: [SIGNATURE ILLEGIBLE]
------------------------------
Title: Senior Vice President
---------------------------
SENIOR HIGH INCOME PORTFOLIO, INC.
By: [SIGNATURE ILLEGIBLE]
------------------------------
Title:___________________________
DEBT STRATEGIES FUND, INC.
By: [SIGNATURE ILLEGIBLE]
------------------------------
Title:___________________________
METROPOLITAN LIFE INSURANCE COMPANY
By: [SIGNATURE ILLEGIBLE]
------------------------------
Title: Director
---------------------------
OCTAGON BOND TRUST
By:______________________________
Title:___________________________
ORIX USA CORPORATION
By:______________________________
Title:___________________________
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PAMCO CAYMAN LTD,
By:________________________________
Title:_____________________________
PARIBAS CAPITAL FUNDING LLC
By:___________________________________
Title:________________________________
TCW LEVERAGED INCOME TRUST, L.P.
By TCW Advisors (Bermuda), Limited, as General
Partner
By TCW Investment Management Company, as
Investment Advisor
/s/ Xxxx-Xxxx Chapus
--------------------------------------
Xxxx-Xxxx Chapus
Managing Director
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Title: Xxxxxxx Xxxxxx
--------------------------------
Managing Director
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Its authorized representative
--------------------------------
XXXXXXX XXXXX ASSET
MANAGEMENT as Investment Advisor
by Xxxxxxx Xxxxx Debt Strategies Portfolio
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Title:________________________________
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Title: ??? ????
--------------------------------
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ALLIANCE CAPITAL MANAGEMENT
By:________________________________
Title:_____________________________
CONTINENTAL CASUALTY COMPANY
By:___________________________________
Title:________________________________
XXXXX & CO.
By:___________________________________
Title:________________________________
HARE & CO.
By:___________________________________
Title:________________________________
CHASE SECURITIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
--------------------------------
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES
INCOME STRATEGIES PORTFOLIO
By Xxxxxxx Xxxxx Asset Management as Investment
Advisor
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Title:________________________________
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