EXHIBIT 4.9
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER ANY APPLICABLE STATE SECURITIES LAW. IT MAY NOT BE OFFERED FOR SALE OR
SOLD IN THE ABSENCE OF: (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) APPLICABLE EXEMPTIONS
FROM SUCH REGISTRATION REQUIREMENTS.
FAVORITE BRANDS INTERNATIONAL, INC.
10% SENIOR NOTE DUE 2005
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$17,000,000.00 October 22, 1998
FOR VALUE RECEIVED, Favorite Brands International, Inc., a Delaware
corporation ("Maker"), whose address is 00 Xxx Xxxxx Xxxxxxxxxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxxx 00000, promises to pay to TPG Partners, L.P., a Delaware
limited partnership ("Payee"), at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx
00000, the aggregate principal sum of SEVENTEEN MILLION AND NO/100 DOLLARS
($17,000,000.00), together with interest thereon at the rates hereinafter
provided.
Section 1. Interest. Interest on the principal amount of this Note shall
be payable in cash at the rate of ten percent (10.00%) per annum (the "Interest
Rate").
Section 2. Payment. Principal of, and interest on, this Note shall be due
and payable on November 20, 2005.
Section 3. Method of Payment. Cash payments of principal, interest and
other amounts due hereunder shall be made in lawful money of the United States
of America by wire transfer of immediately available funds to the account of
Payee designated in the records maintained by Maker (which account designation
may be changed from time to time by Payee by written notice to Maker).
Section 4. Default Interest. If any principal or interest is not paid
within fifteen (15) days after the due date thereof, interest shall accrue on
such unpaid amount at a default rate equal to the lesser of (a) five percent
(5%) per annum above the Interest Rate or (b) the highest rate permitted under
applicable law, until such amount is paid in full (the "Default Rate").
Section 5. Prepayment. This Note may be prepaid by Maker in whole or in
part at any time without prepayment premium or penalty. Any prepayment shall
be credited first to accrued but unpaid interest and then to principal.
Section 6. Defaults and Remedies.
6.1 Events of Default. Any one or more of the following shall
constitute an Event of Default hereunder: (a) default shall be made in the
payment of the principal of, or interest on, this Note when and as the same
shall become due and payable, whether at stated maturity, by acceleration, or
otherwise; (b) Maker shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or be generally
unable to pay its debts as such debts become due; (c) an involuntary case or
other proceeding shall be commenced against Maker seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property or an order for
relief shall be entered against Maker under the federal bankruptcy laws or the
laws of the jurisdiction of organization of Maker as now or hereafter in effect,
and such involuntary case or other proceeding or order shall remain undismissed
or unstayed for a period of sixty (60) days, and if stayed, such involuntary
case or other proceeding or order shall be dismissed upon termination of such
stay; (d) default shall be made in the performance or observance of any other
covenant, agreement or condition contained herein and such default shall have
continued for a period of thirty (30) days after such default shall first have
become known to Maker; or (e) a default shall occur that results in acceleration
under the terms and provisions of that certain Credit Agreement, dated as of May
19, 1998, by and among Maker, Favorite Brands International Holding Corp., Bank
of America National Trust and Savings Association, as documentation and co-
syndication agent, The Chase Manhattan Bank, as letter of credit issuing bank,
swingline lender, administrative agent (including any successors thereto, the
"Administrative Agent") and co-syndication agent, and the several banks and
other financial institutions party thereto, as amended (the "Credit Agreement").
6.2 Acceleration. If (a) an Event of Default shall occur pursuant to
Sections 6.1(b) or (c), the principal of, and accrued interest on, and all other
amounts due under this Note shall become immediately due and payable, and (b)
any other Event of Default shall occur, the principal of, and accrued interest
on, and all other amounts due under, this Note shall become immediately due and
payable upon notice by Payee to Maker. Notwithstanding the foregoing, (y)
principal of, interest on and other amounts due under this Note may not be
accelerated as a result of the Event of Default described in Section 6.1(d)
unless the Administrative Agent under the Credit Agreement has received at least
five business days' actual notice thereof, and (z) no remedies may be exercised
by Payee after acceleration of the amounts due under this Note as a result of an
Event of Default described in Sections 6.1(b) or (c) unless the Administrative
Agent under the Credit Agreement has received at least five business days'
actual notice thereof.
6.3 Waiver of Presentment, Etc. Maker hereby waives presentment,
demand, protest or notice of any kind (including, without limitation, demands
for payment, notice of intention to accelerate maturity and presentment for
acceleration of maturity, notice of
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acceleration, protest, notice of protest and nonpayment or dishonor, diligence
in collection, and grace) in connection with this Note, and consents to all
extensions without notice for any periods of time and partial payments, before
or after maturity, without prejudice to Payee.
Section 7. Covenants. Maker covenants and agrees that on and after the
date hereof, so long as this Note shall be outstanding:
7.1 Payment of Note. Maker shall pay the principal of and interest
on this Note on the dates and in the manner provided herein.
7.2 Legal Existence. Maker shall do or cause to be done all things
necessary to preserve and keep in full force and effect its legal existence.
Section 8. Miscellaneous.
8.1 No Waiver. It is expressly agreed that any waiver by Payee of
any item or provision hereof or of any right, remedy or option under this Note
shall not be controlling, nor shall it prevent or estop Payee from thereafter
enforcing such term, provision, right, remedy or option in any other instance,
and neither the failure or refusal of Payee to insist in any one or more
instances upon the strict performance of this Note, nor the acceptance by Payee
of any payment less than the amount then due hereunder, shall be construed as a
waiver or relinquishment for the future of any such term or provision or the
amount remaining due, but the same shall continue in full force and effect, it
being understood and agreed that Xxxxx's rights, remedies and options under this
Note are and shall be cumulative and are in addition to all of the rights,
remedies and options of Payee in law or in equity, or under any other agreement.
8.2 Savings Clause. If at any time the Interest Rate or Default
Rate, together with all fees and charges, if any, contracted for, charged,
received, taken or reserved by Payee in connection with this Note that may be
treated as interest under applicable law (collectively, the "Charges"), computed
over the full term of this Note, exceeds the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by
Payee in accordance with the laws of the State of Texas from time to time in
effect, except to the extent federal law permits Payee to contract for, charge
or receive a greater amount of interest, due credit being given for all charges
made in connection with this Note that may be treated as interest under
applicable law, the rate of interest payable hereunder, together with all
Charges, shall be limited to the Maximum Rate; provided, however, that upon any
subsequent increase in the Maximum Rate from time to time, the interest charged
on the unpaid principal amount of this Note shall remain equal to the Maximum
Rate, and any subsequent reduction in the Interest Rate shall not reduce the
rate borne by this Note, until the total amount of interest earned hereunder,
together with all Charges, equals the total amount of interest which would have
accrued at the Interest Rate if the Interest Rate had at all times been in
effect; and provided, further, that if at maturity or final payment of this Note
the total amount of interest paid or accrued under the foregoing provisions is
less than the total amount of interest which would have accrued if the Interest
Rate had at all times been in effect, Maker agrees to pay Payee, to the extent
allowed by the then applicable law, an amount equal to the difference between
(a) the lesser of (i) the amount of interest which would have been accrued on
this Note if the Maximum Rate had at all times been in effect, and (ii) the
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amount of interest which would have accrued if the Interest Rate had at all
times been in effect, and (b) the amount of interest actually accrued in
accordance with the provisions of this Note.
8.3 Representation. Maker represents and warrants to Payee that the
sole shareholder of Maker is Favorite Brands International Holding Corp., a
Delaware corporation.
8.4 Amendments; Binding Effect. Subject to, for so long as the
Credit Agreement remains in effect, the provisions of Section 8.26 of the Credit
Agreement, this Note may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto. This Note shall be binding upon
the successors, permitted assigns and legal representatives of Maker.
8.5 Assignment; Entire Agreement. Neither Maker nor Payee may assign
its rights under this Note or any interest therein without the prior written
consent of the other party, except that Payee shall be permitted to assign its
rights hereunder, in whole or in part, to any of its partners or affiliates and
Payee may grant participations in all or any portion of its rights and
obligations under this Note to one or more of the shareholders of Maker. This
Note constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
8.6 Notices. All notices hereunder shall be in writing (including
prepaid overnight courier, facsimile transmission or similar writing) and shall
be delivered to Maker at its address set forth in the first paragraph of this
Note and to Payee at its address set forth in the first paragraph of this Note
or at such other address as shall be specified by like notice to Payee or Maker
as applicable. All notices shall be deemed given as of the date when such
notice is first delivered by hand or sent by telecopier (receipt confirmed, with
a copy simultaneously mailed registered mail), one day after depositing for
delivery, fee prepaid, with a Federal Express or similar overnight deliver
service and five days after mailing, postage prepaid and properly addressed in
the U.S. mails.
8.7 Governing Law. This Note shall be governed by, and the terms and
provisions hereof and the rights and duties created hereby shall be interpreted,
construed and enforced in accordance with, the laws of the State of Texas,
without giving effect to conflicts of law provisions.
8.8 WAIVER OF JURY TRIAL. THE MAKER AND PAYEE HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, Maker has caused this 10% Senior Note Due 2005 to be
executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
FAVORITE BRANDS INTERNATIONAL, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
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