EXHIBIT 4.7
FIRST AMENDMENT AND WAIVER
FIRST AMENDMENT AND WAIVER, dated as of August 26, 1998 (this
"Amendment"), to (i) the Credit Agreement, dated as of May 19, 1998 (as amended,
supplemented or otherwise modified, the "Credit Agreement"), among Favorite
Brands International, Inc., a Delaware corporation (the "Borrower"), Favorite
Brands International Holding Corp., a Delaware corporation ("Holdings"), the
several banks and other financial institutions parties thereto (the "Lenders"),
Bank of America National Trust and Savings Association, as documentation agent
for the Lenders (in such capacity, the "Documentation Agent") and as co-
syndication agent (in such capacity, a "Co-Syndication Agent"), and The Chase
Manhattan Bank, as letter of credit issuing bank, swingline lender, and as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and as co-syndication agent (in such capacity, a "Co-Syndication Agent")
and (ii) the Guarantee and Collateral Agreement, dated as of May 19, 1998 (the
"Guarantee and Collateral Agreement"; together with the Credit Agreement, the
"Agreements") by the Borrower, Holdings, Trolli, Inc., a Delaware corporation
("Trolli"), and Xxxxxx Trucking Corporation, a Delaware corporation ("Xxxxxx"),
in favor of the Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, Holdings, the Lenders, the Documentation Agent
and the Administrative Agent are parties to the Credit Agreement; and
WHEREAS, the Borrower, Holdings, Trolli, Xxxxxx and the Administrative
Agent are parties to the Guarantee and Collateral Agreement; and
WHEREAS, the Borrower has requested that certain provisions of the
Agreements be modified in the manner provided for in this Amendment and the
Lenders are willing to agree to such modifications upon the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the Borrower, Holdings, the Lenders, Trolli,
Sather, the Documentation Agent and the Administrative Agent hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement shall have such meanings when used herein.
2. Amendment to the Guarantee and Collateral Agreement. The first
sentence of Section 3 of Exhibit A ("Collection Deposit Account Agreement") to
the Guarantee and Collateral Agreement is hereby amended by (i) deleting such
sentence in its entirety and (ii) inserting the following language in its place:
2
"The Administrative Agent shall have the sole right of withdrawal over
the Collection Deposit Account; provided, however, that unless the
Administrative Agent shall have notified the Sub-Agent that an Event of
Default (as defined in the Credit Agreement) exists and no subsequent
notice of waiver or cure has been given by the Administrative Agent to the
Sub-Agent, the Administrative Agent authorizes the Borrower to have access
to and to make withdrawals (to the extent of any cash balance then
available) from and deposits to the Collection Deposit Account."
3. Waivers by Lenders. (a) The Lenders hereby waive compliance by
the Borrower with the requirement of Section 7.1(d) of the Credit Agreement that
the Borrower furnish the Administrative Agent with a copy of the budget for each
of the four fiscal quarters following the end of the fiscal year ending June 27,
1998 within 60 days after the end of such fiscal year; provided that such copies
are furnished by the Borrower to the Administrative Agent by September 30, 1998.
(b) The Lenders hereby waive compliance by the Borrower with the
requirement of Section 5.11 of the Guarantee and Collateral Agreement that the
Borrower establish and maintain the Collection Deposit Accounts within 20 days
of the Closing Date; provided that such waiver is given subject to the condition
that all such Collection Deposit Accounts are established by September 30, 1998.
The Lenders hereby agree that zero balance accounts of Holdings and its
Subsidiaries shall not be Collection Deposit Accounts or be required to be
subject to a Collection Deposit Account Agreement.
4. Representations and Warranties. The Borrower hereby confirms,
reaffirms and restates the representations and warranties made by it in (i)
Article 6 of the Credit Agreement and (ii) Section 4 of the Guarantee and
Collateral Agreement; provided that each reference to the Credit Agreement
therein shall be deemed to be a reference to the Credit Agreement after giving
effect to this Amendment and that each reference to the Guarantee and Collateral
Agreement therein shall be deemed to be a reference to the Guarantee and
Collateral Agreement after giving effect to this Amendment. The Company
represents and warrants that no Default or Event of Default has occurred and is
continuing.
5. Continuing Effect of the Agreements. This Amendment shall not
constitute a waiver, amendment or modification of any other provision of the
Agreements not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of the Borrower
that would require a waiver or consent of the Lenders, the Documentation Agent
or the Administrative Agent. Except as expressly modified hereby, the
provisions of the Agreements are and shall remain in full force and effect.
6. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
this Amendment (or its signature page thereof) shall be deemed to be an executed
original thereof.
3
7. Effectiveness. This Amendment shall be effective upon receipt by
the Administrative Agent of counterparts hereof, duly executed and delivered by
the Borrower, each other Loan Party for which a signature line is included
below, the Majority Lenders and the Majority Revolving Credit Lenders.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
FAVORITE BRANDS INTERNATIONAL, INC.,
the Borrower
By:
-------------------------------
Name:
Title:
FAVORITE BRANDS INTERNATIONAL HOLDING CORP.
By:
-------------------------------
Name:
Title:
TROLLI, INC.
By:
-------------------------------
Name:
Title:
XXXXXX TRUCKING CORPORATION
By:
-------------------------------
Name:
Title:
4
THE CHASE MANHATTAN BANK,
individually as a Lender,
the Issuing Bank, the
Swingline Lender, Co-Syndication Agent and
as Administrative Agent
By:
-------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Documentation Agent as Co-Syndication
Agent and as a Lender
By:
-------------------------------
Name:
Title:
AT&T COMMERCIAL FINANCE
CORPORATION,
as a Lender
By:
-------------------------------
Name:
Title:
BANKBOSTON N.A., formerly known as
BANK OF BOSTON,
as a Lender
By:
-------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Lender
By:
-------------------------------
Name:
Title:
5
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Lender
By:
-------------------------------
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT,
as a Lender
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I,
as a Lender
By: Xxxxxx Commercial Paper Inc., not in
its individual capacity but solely as
administrative agent
By:
-------------------------------
Name:
Title:
CYPRESSTREE SENIOR FLOATING RATE
FUND
BY: CypressTree Investment Management
Company, Inc.
As Portfolio Manager
By:
-------------------------------
Name:
Title:
6
DEBT STRATEGIES FUND, INC.
By:
-------------------------------
Name:
Title:
KZH CYPRESSTREE-1 LLC,
as a Lender
By:
-------------------------------
Name:
Title:
KZH ING-1 LLC,
as a Lender
By:
-------------------------------
Name:
Title:
KZH ING-2 LLC,
as a Lender
By:
-------------------------------
Name:
Title:
KZH IV LLC,
as a Lender
By:
-------------------------------
Name:
Title:
KZH III LLC,
as a Lender
By:
-------------------------------
Name:
Title:
7
LASALLE NATIONAL BANK,
as a Co-Agent
By:
-------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS INC.,
as its Investment Manager
By:
-------------------------------
Name:
Title:
PRIME INCOME TRUST,
as a Lender
By:
-------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
-------------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
as a Lender
By:
-------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
-------------------------------
Name:
Title:
0
XXX XXXXXX XXX XX, XXXXXXX,
Xx: Xxx Xxxxxx American Capital Management,
Inc. as collateral manager
By:
-------------------------------
Name:
Title:
