Exhibit 4.1
U.S. $535,000,000
CREDIT AGREEMENT,
dated as of February 25, 1999,
among
SNAPPLE BEVERAGE CORP.,
MISTIC BRANDS, INC.,
CABLE CAR BEVERAGE CORPORATION,
RC/ARBY'S CORPORATION
and
ROYAL CROWN COMPANY, INC.,
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as the Documentation Agent for the Lenders,
and
THE BANK OF NEW YORK,
as the Administrative Agent for the Lenders.
ARRANGED BY
DLJ CAPITAL FUNDING, INC.
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms..........................................................
1.2. Use of Defined Terms..................................................
1.3. Cross-References......................................................
1.4. Accounting and Financial Determinations...............................
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Loans and Commitments.................................................
2.1.1. Term Loans..........................................................
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment............
2.1.3. Letter of Credit Commitment.........................................
2.1.4. Lenders Not Permitted or Required to Make Loans.....................
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.........
2.1.6. RC/Arby's and Royal Crown...........................................
2.2. Reduction of Commitment Amounts.......................................
2.2.1. Optional............................................................
2.2.2. Mandatory...........................................................
2.3. Borrowing Procedures and Funding Maintenance..........................
2.3.1. Term Loans and Revolving Loans......................................
2.3.2. Swing Line Loans....................................................
2.4. Continuation and Conversion Elections.................................
2.5. Funding...............................................................
2.6. Issuance Procedures...................................................
2.6.1. Other Lenders' Participation........................................
2.6.2. Disbursements; Conversion to Revolving Loans........................
2.6.3. Reimbursement.......................................................
2.6.4. Deemed Disbursements................................................
2.6.5. Nature of Reimbursement Obligations.................................
2.7. Register; Notes.......................................................
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application...............................
3.1.1. Repayments and Prepayments..........................................
3.1.2. Application.........................................................
3.1.3. Cash Collateral.....................................................
3.2. Interest Provisions...................................................
3.2.1. Rates...............................................................
3.2.2. Post-Maturity Rates.................................................
3.2.3. Payment Dates.......................................................
3.3. Fees..................................................................
3.3.1. Commitment Fee......................................................
3.3.2. Agents' and Arrangers' Fees.........................................
3.3.3. Letter of Credit Fees...............................................
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful............................................
4.2. Deposits Unavailable..................................................
4.3. Increased LIBO Rate Loan Costs, etc...................................
4.4. Funding Losses........................................................
4.5. Increased Capital Costs...............................................
4.6. Taxes.................................................................
4.7. Payments, Computations, etc...........................................
4.8. Sharing of Payments...................................................
4.9. Setoff................................................................
4.10. Change of Lending Office.............................................
4.11. Replacement of Lenders...............................................
ARTICLE V
CONDITIONS PRECEDENT
5.1. Initial Credit Extension..............................................
5.1.1. Resolutions, etc....................................................
5.1.2. Delivery of Notes...................................................
5.1.3. Transaction Consummated..............................................
5.1.4. Closing Date Certificate.............................................
5.1.5. Transaction Documents, etc...........................................
5.1.6. Payment of Outstanding Indebtedness, etc.............................
5.1.7. Subsidiary Guaranty..................................................
5.1.8. Pledge Agreements....................................................
5.1.9. Security Agreements..................................................
5.1.10. UCC Filing Service.................................................
5.1.11. Financial Information, etc.........................................
5.1.12. Solvency, etc......................................................
5.1.13. Opinions of Counsel................................................
5.1.14. Reliance Letters...................................................
5.1.15. Insurance..........................................................
5.1.16. RC/Arby's Notes Repayment..........................................
5.1.17. Closing Fees, Expenses, etc........................................
5.2. All Credit Extensions................................................
5.2.1. Compliance with Warranties, No Default, etc..........................
5.2.2. Credit Extension Request.............................................
5.2.3. Satisfactory Legal Form..............................................
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc.....................................................
6.2. Due Authorization, Non-Contravention, etc.............................
6.3. Government Approval, Regulation, etc..................................
6.4. Validity, etc.........................................................
6.5. Financial Information.................................................
6.6. No Material Adverse Effect............................................
6.7. Litigation, Labor Controversies, etc..................................
6.8. Subsidiaries..........................................................
6.9. Ownership of Properties...............................................
6.10. Taxes................................................................
6.11. Pension and Welfare Plans............................................
6.12. Environmental Warranties.............................................
6.13. Regulations U and X..................................................
6.14. Accuracy of Information..............................................
6.15. Solvency.............................................................
6.16. Year 2000............................................................
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants................................................
7.1.1. Financial Information, Reports, Notices, etc.........................
7.1.2. Compliance with Laws, etc............................................
7.1.3. Maintenance of Properties............................................
7.1.4. Insurance............................................................
7.1.5. Books and Records....................................................
7.1.6. Environmental Covenant...............................................
7.1.7. Future Subsidiaries..................................................
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property.................................
7.1.9. Use of Proceeds, etc.................................................
7.1.10. Hedging Obligations................................................
7.1.11. RC/Arby's Notes Repayment; Execution and Delivery of Loan
Documents..........................................................
7.1.12. Consummation of Acquisition; Prepayment of Term C Loans............
7.1.13. Additional Post-Closing Items......................................
7.2. Negative Covenants...................................................
7.2.1. Business Activities..................................................
7.2.2. Indebtedness.........................................................
7.2.3. Liens................................................................
7.2.4. Financial Covenants..................................................
7.2.5. Investments..........................................................
7.2.6. Restricted Payments, etc.............................................
7.2.7. Capital Expenditures, etc............................................
7.2.8. Consolidation, Merger, Acquisitions, etc.............................
7.2.9. Asset Dispositions, etc.............................................
7.2.10. Modification of Certain Agreements................................
7.2.11. Transactions with Affiliates......................................
7.2.12. Negative Pledges, Restrictive Agreements, etc.....................
7.2.13. Sale and Leaseback................................................
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................
8.1.1. Non-Payment of Obligations.........................................
8.1.2. Breach of Warranty.................................................
8.1.3. Non-Performance of Certain Covenants and Obligations...............
8.1.4. Non-Performance of Other Covenants and Obligations.................
8.1.5. Default on Other Indebtedness......................................
8.1.6. Judgments..........................................................
8.1.7. Pension Plans......................................................
8.1.8. Change in Control..................................................
8.1.9. Bankruptcy, Insolvency, etc........................................
8.1.10. Impairment of Security, etc........................................
8.2. Action if Bankruptcy...............................................
8.3. Action if Other Event of Default...................................
ARTICLE IX
THE AGENTS
9.1. Actions..............................................................
9.2. Funding Reliance, etc................................................
9.3. Exculpation..........................................................
9.4. Successor............................................................
9.5. Loans or Letters of Credit Issued by the Agents......................
9.6. Credit Decisions.....................................................
9.7. Copies, etc..........................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc..........................................
10.2. Notices...........................................................
10.3. Payment of Costs and Expenses.....................................
10.4. Indemnification...................................................
10.5. Survival..........................................................
10.6. Severability......................................................
10.7. Headings..........................................................
10.8. Execution in Counterparts, Effectiveness, etc.....................
10.9. Governing Law; Entire Agreement...................................
10.10. Successors and Assigns............................................
10.11. Sale and Transfer of Loans and Notes; Participation in Loans
and Notes.........................................................
10.11.1. Assignments.......................................................
10.11.2. Participations....................................................
10.12. Confidentiality...................................................
10.13. Other Transactions................................................
10.14. Forum Selection and Consent to Jurisdiction.......................
10.15. Waiver of Jury Trial..............................................
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 25, 1999, among
SNAPPLE BEVERAGE CORP., a Delaware corporation ("Snapple"), MISTIC BRANDS, INC.,
a Delaware corporation ("Mistic"), CABLE CAR BEVERAGE CORPORATION, a Delaware
corporation ("Cable Car"), RC/ARBY'S CORPORATION, a Delaware corporation
("RC/Arby's") and ROYAL CROWN COMPANY, INC., a Delaware corporation ("Royal
Crown") (Snapple, Mistic, Cable Car and, following the consummation of the
RC/Arby's Notes Repayment, RC/Arby's and Royal Crown, are collectively referred
to as the "Borrowers", and each, individually, a "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (the
"Syndication Agent") for the Lenders, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as documentation agent (the "Documentation Agent") for the
Lenders, and THE BANK OF NEW YORK ("BNY"), as administrative agent (the
"Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, Snapple, Mistic, Cable Car and Royal Crown are engaged
directly and through their Subsidiaries in the business of producing, marketing
and distributing beverages, beverage concentrates and other similar or related
products under various trademarks and trade names, and Arby's (as defined below)
is engaged directly and through its Subsidiaries in the business of franchising
"Arby's" restaurants and other restaurant and food service concepts
(collectively, with any related and ancillary businesses, the "Business");
WHEREAS, each Borrower is a direct or indirect, wholly-owned
Subsidiary of Triarc Consumer Products Group, LLC, a Delaware limited liability
company ("Holdco"), and Holdco is a direct, wholly-owned Subsidiary of Triarc
Companies, Inc., a Delaware corporation ("Triarc");
WHEREAS, Holdco and Triarc Beverage Holdings Corp., a Delaware
corporation ("Triarc Beverage"), intend to issue senior subordinated notes due
2009 (the "Subordinated Notes Offering") for gross cash proceeds of at least
$300,000,000;
WHEREAS, the Borrowers intend to use the proceeds of the
Borrowings hereunder and Holdco and Triarc Beverage intend to use the proceeds
of the Subordinated Notes Offering (a) to refinance (the "Refinancing") certain
existing indebtedness of each of Triarc Beverage, Cable Car, Snapple and Mistic,
(b) to acquire (the "Acquisition") all of the issued and outstanding Capital
Stock of Millrose Distributors, Inc., a New Jersey corporation, for an
aggregate purchase price not to exceed $17,250,000 (subject to adjustment
pursuant to the terms of the Acquisition Agreement), (c) to make the Triarc
Dividend (as defined below) and (d) to make the RC/Arby's Notes Repayment (as
defined below) (the Subordinated Notes Offering, the Refinancing, the
Acquisition, the Triarc Dividend, the RC/Arby's Notes Repayment and each of the
other transactions relating thereto (other than Triarc's proposed going-private
transaction) are collectively referred to as the "Transaction");
WHEREAS, upon, and only upon, the consummation of the RC/Arby's
Notes Repayment, RC/Arby's and Royal Crown shall be entitled to the rights and
subject to the obligations and liabilities of a "Borrower" hereunder;
WHEREAS, to finance in part each of the Refinancing, the
Acquisition and the Triarc Dividend, and to provide for the ongoing working
capital and general corporate needs of the Borrowers and their respective
subsidiaries, the Borrowers desire to obtain the following financing facilities
from the Lenders:
(a) a Term Loan Commitment pursuant to which Borrowings of
Term Loans will be made in a maximum original principal amount of
(i) $45,000,000 (in the case of Term A Loans), (ii) $125,000,000
(in the case of Term B Loans) and (iii) $305,000,000 (in the case
of Term C Loans) to the Borrowers in a single Borrowing to occur
on the Closing Date;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant
to which Borrowings of Revolving Loans, in a maximum aggregate
principal amount (together with all Swing Line Loans and Letter
of Credit Outstandings) not to exceed the lesser of (i) the then
existing Revolving Loan Commitment Amount and (ii) the Borrowing
Base Amount, will be made to the Borrowers from time to time on
and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date;
(c) a Letter of Credit Commitment pursuant to which the
Issuer will issue Letters of Credit for the account of the
Borrowers and their respective Subsidiaries from time to time on
and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date in a maximum aggregate Stated
Amount at any one time outstanding not to exceed $25,000,000
(provided, that the aggregate outstanding principal amount of
Revolving Loans, Swing Line Loans and Letter of Credit
Outstandings at any time shall not exceed the lesser of (i) the
then existing Revolving Loan Commitment Amount and (ii) the
Borrowing Base Amount); and
(d) a Swing Line Loan Commitment pursuant to which
Borrowings of Swing Line Loans in an aggregate outstanding
principal amount not to exceed $10,000,000 will be made on and
subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date (provided, that the aggregate out-
standing principal amount of Swing Line Loans, Revolving Loans
and Letter of Credit Outstandings at any time shall not exceed
the lesser of (i) the then existing Revolving Loan Commitment
Amount and (ii) the Borrowing Base Amount);
with all the proceeds of the Credit Extensions to be used for the purposes set
forth in Section 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend the
Commitments, make Loans to the Borrowers and issue (or participate in) Letters
of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Account" means (i) any account (as that term is defined in
Section 9-106 of the UCC) of any Borrower or any of their wholly-owned U.S.
Subsidiaries arising from the sale or lease of goods or the rendering of
services, and (ii) with respect to Arby's and its wholly-owned U.S.
Subsidiaries, to the extent not otherwise included in clause (i), all royalties,
fees and other amounts due under any franchise or master development agreement
which, in accordance with GAAP, would be classified as an account receivable and
which are included on the balance sheets of Arby's and its Subsidiaries.
"Account Debtor" is defined in clause (b) of the definition of
"Eligible Accounts".
"Acquisition" is defined in the fourth recital.
"Acquisition Agreement" means, collectively, the stock purchase
agreements executed in connection with the Acquisition.
"Acquisition Escrow Account" means the escrow account established
pursuant to the Acquisition Escrow Agreement.
"Acquisition Escrow Agreement" means the escrow agreement, dated
as of the Closing Date, by and among the Borrowers and the Administrative Agent
pursuant to which Borrowings under the Term C Loans shall be deposited to be
used within 45 days thereafter to pay the purchase price in connection with the
Acquisition, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance herewith and therewith.
"Administrative Agent" is defined in the preamble and includes
each other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee
letter, dated as of February 25, 1999, among the Administrative Agent and the
Borrowers.
"Affiliate" of any Person means any other Person which, directly
or indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the Capital Stock (on a fully diluted basis) of such
Person having ordinary voting power for the election of directors or managing
general partners, or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Syn-
dication Agent and the Documentation Agent.
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Closing Date and as thereafter from time to time
amended, supplemented, amended and restated, or otherwise modified and in effect
on such date.
"Alternate Base Rate" means, on any date and with respect to all
Base Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(i) the rate of interest in effect on such day as publicly announced or
established from time to time by the Administrative Agent in New York, New York
as its "prime commercial lending rate", and (ii) the Federal Funds Rate most
recently determined by the Administrative Agent plus 1/2 of 1%. The Alternate
Base Rate is not necessarily intended to be the lowest rate of interest
determined by the Administrative Agent in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrowers
and the Lenders of changes in the Alternate Base Rate.
"Annualized" means (i) with respect to the end of the first full
Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount
for such Fiscal Quarter multiplied by four, (ii) with respect to the second
Fiscal Quarter of Holdco to occur after the Closing Date, the applicable amount
for such Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied
by two, and (iii) with respect to the third Fiscal Quarter of Holdco to occur
after the Closing Date, the applicable amount for such Fiscal Quarter and the
immediately preceding two Fiscal Quarters multiplied by 1.3333.
"Applicable Commitment Fee" means, (i) at all times from the
Closing Date through (and including) the day that is six months following the
Closing Date, a fee which shall accrue at a rate of 3/4 of 1% per annum, and
(ii) thereafter, a fee which shall accrue at a rate per annum determined by
reference to the Leverage Ratio for the Fiscal Quarter last ended and the
applicable percentage per annum set forth below under the column entitled
"Applicable Commitment Fee":
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or 0.75%
equal to 3.0:1
less than 3.0:1 0.50%
The Leverage Ratio used to compute the Applicable Commitment Fee shall be the
Leverage Ratio set forth in the Compliance Certificate most recently delivered
by or on behalf of the Borrowers to the Administrative Agent pursuant to clause
(d) of Section 7.1.1. Changes in the Applicable Commitment Fee resulting from a
change in the Leverage Ratio shall become effective upon delivery by or on
behalf of the Borrowers to the Administrative Agent of a new Compliance
Certificate pursuant to clause (d) of Section 7.1.1. If the Borrowers shall fail
to deliver a Compliance Certificate within the number of days required pursuant
to clause (d) of Section 7.1.1 (after giving effect to any grace period), the
Applicable Commitment Fee from and including the first day after the date on
which such Compliance Certificate was required to be delivered to, but not
including the date the Borrowers deliver to, the Administrative Agent an
appropriately completed Compliance Certificate shall conclusively equal the
highest Applicable Commitment Fee set forth above.
"Applicable Margin" means at all times during the applicable
periods set forth below,
(a) with respect to the unpaid principal amount of each Term
B Loan maintained as (i) a Base Rate Loan, 2.50% per annum and
(ii) a LIBO Rate Loan, 3.50% per annum;
(b) with respect to the unpaid principal amount of each Term
C Loan maintained as (i) a Base Rate Loan, 2.75% per annum and
(ii) a LIBO Rate Loan, 3.75% per annum; and
(c) with respect to the unpaid principal amount of each
Revolving Loan and each Term A Loan maintained as (i) a Base Rate
Loan, (x) from the Closing Date through (and including) the day
that is six months following the Closing Date, 2.00% per annum,
and (y) thereafter, by reference to the Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Base Rate Loans", and (ii) a LIBO
Rate Loan, (x) from the Closing Date through (and including) the
day that is six months following the Closing Date, 3.00% per
annum, and (y) thereafter, by reference to the Leverage Ratio and
at the applicable percentage per annum set forth below under the
column entitled "Applicable Margin for LIBO Rate Loans":
Applicable Margin For Revolving Loans and Term A Loans
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
greater than or equal
to 4.0:1 2.00% 3.00%
greater than or equal
to 3.5:1 and less
than 4.0:1 1.75% 2.75%
greater than or equal
to 3.0:1 and less
than 3.5:1 1.50% 2.50%
less than 3.0:1 1.25% 2.25%
The Leverage Ratio used to compute the Applicable Margin for Revolving Loans and
Term A Loans shall be the Leverage Ratio set forth in the Compliance Certificate
most recently delivered by or on behalf of the Borrowers to the Administrative
Agent pursuant to clause (d) of Section 7.1.1. Changes in the Applicable Margin
for Revolving Loans or Term A Loans resulting from a change in the Leverage
Ratio shall become effective upon delivery by or on behalf of the Borrowers to
the Administrative Agent of a new Compliance Certificate pursuant to clause (d)
of Section 7.1.1. If the Borrowers shall fail to deliver a Compliance
Certificate within the number of days required pursuant to clause (d) of Section
7.1.1 (after giving effect to any grace period), the Applicable Margin for
Revolving Loans and Term A Loans from and including the first day after the date
on which such Compliance Certificate was required to be delivered to, but not
including the date the Borrowers deliver to, the Administrative Agent an
appropriately completed Compliance Certificate shall conclusively equal the
highest Applicable Margin for Revolving Loans and Term A Loans set forth above.
"Arby's" means Arby's, Inc., a Delaware corporation, and includ-
ing any successor thereto.
"Arby's Assets" is defined in the definition of "Arby's Securiti-
zation Residual Payment".
"Arby's Securitization" means the sale, transfer and assignment
by Arby's and/or one or more of its Subsidiaries to one or more Arby's
Securitization Entities of all or a portion of the Arby's Securitization Assets,
the issuance and sale by one or more Arby's Securitization Entities of the
Arby's Securitization Notes and the Arby's Securitization Residual Notes and the
right and obligations of Arby's and/or one or more of its Subsidiaries to
provide certain servicing and other services with respect to such Arby's
Securitization Assets and one or more Arby's Securitization Entities.
"Arby's Securitization Assets" means all right, title and
interest to the trademarks "Arby's", "T.J. Cinnamons" and/or "Pasta Connection"
or any variations or successors thereto and the goodwill related to such
trademarks, all existing and future franchise, licensing and other rights to
grant to any Persons the right to use the names "Arby's", "T.J. Cinnamons"
and/or "Pasta Connection" or operate restaurants identified with the names
"Arby's", "T.J. Cinnamons" and/or "Pasta Connection" and the right to enforce
and take all other actions with respect to such agreements and collect and
receive all royalties, fees and other amounts payable under such agreements, and
all other assets of Arby's and its Subsidiaries reasonably related to any of the
foregoing.
"Arby's Securitization Entity" means any newly created direct or
indirect subsidiary of Holdco formed for the sole purpose of consummating the
Arby's Securitization.
"Arby's Securitization Excess" is defined in the definition of
"Arby's Securitization Residual Payment".
"Arby's Securitization Notes" means the notes, certificates,
participation interests or other securities to be issued by an Arby's
Securitization Entity in connection with the Arby's Securitization.
"Arby's Securitization Residual Note" means a subordinated
promissory note payable by an Arby's Securitization Entity to Arby's in
connection with the Arby's Securitization.
"Arby's Securitization Residual Payment" means, in the event that
the gross cash proceeds received from the Arby's Securitization exceed
$350,000,000 (as such amount may be increased pursuant to clause (d)(iii) of
Section 7.2.9) (with such excess being the "Arby's Securitization Excess"), the
distribution to Triarc of all of the Capital Stock of RC/Arby's, the Arby's
Securitization Entities and Subsidiaries of RC/Arby's (other than Royal Crown
and its Subsidiaries, and so long as each such Person has no assets other than
the Arby's Securitization Assets, the Arby's Securitization Excess, any Arby's
Securitization Residual Notes, the Capital Stock of any Arby's Securitization
Entity and businesses related thereto (collectively, the "Arby's Assets"));
provided, that the Capital Stock of any other Subsidiary of RC/Arby's (but not
any assets of such Person other than the Arby's Assets) that has any obligations
or liabilities, contingent or otherwise with respect to the assets transferred
pursuant to the Arby's Securitization Residual Payment are also distributed to
Triarc at such time; provided, further, that immediately after giving effect to
the Arby's Securitization Residual Payment, no Default shall have occurred and
be continuing or would result therefrom; provided, however, that,
notwithstanding any of the aforementioned, the obligations of RC/Arby's and its
Subsidiaries under Sections 4.3 through 4.6 and 10.3 (to the extent due and
owing for any period prior to the date of the Arby's Securitization Residual
Payment) and 10.4 (for any Indemnified Liabilities relating to the period prior
to the date of the Arby's Securitization Residual Payment) shall in each case
survive the transfer of the Capital Stock of RC/Arby's and its Subsidiaries
(other than Royal Crown and its Subsidiaries) and the Arby's Securitization
Assets pursuant to the Arby's Securitization Residual Payment, the termination
of this Agreement, or the occurrence of the Termination Date.
"Arby's Stock Option Plan" means a stock option plan that may be
adopted by Arby's providing for the granting of options to acquire up to 15% of
the voting Capital Stock of Arby's on a fully diluted basis, which stock option
plan shall not contain any provisions that are inconsistent with or would cause
a Default under this Agreement, as amended, supplemented, amended and restated
or otherwise modified from time to time as permitted in accordance with the
terms hereof.
"Arrangers" means, collectively, DLJ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"Assignee Lender" is defined in Section 10.11.1.
"Assumed Restricted Debt" is defined in clause (a) of
Section 7.1.7.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the Agents
and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.
"Beverage Companies" means, collectively, Snapple, Mistic, Cable
Car and Royal Crown.
"BNY" is defined in the preamble.
"Borrower" and "Borrowers" are defined in the preamble.
"Borrower Pledge Agreement" means the Pledge Agreement executed
and delivered by the Borrowers pursuant to clause (b) of Section 5.1.8,
substantially in the form of Exhibit J-2 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Borrower Security Agreement" means the Security Agreement
executed and delivered by an Authorized Officer of each of the Borrowers
pursuant to Section 5.1.9, substantially in the form of Exhibit K-1 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Borrowing" means the Loans of the same type and, in the case of
LIBO Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
"Borrowing Base Amount" means, at any time, the Net Asset Value
of all Eligible Accounts and Eligible Inventory at such time as determined in
accordance with the definition of "Net Asset Value" and as certified by each
Borrower to the Lenders in the most recently delivered Borrowing Base
Certificate, including the Borrowing Base Certificate delivered on the Closing
Date pursuant to clause (c) of Section 5.1.11.
"Borrowing Base Certificate" means a certificate duly completed
and executed by the chief accounting or chief financial Authorized Officer of
Holdco on behalf of the Borrowers, substantially in the form of Exhibit E
hereto.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of any Borrower, substantially in the form of
Exhibit C hereto.
"Business" is defined in the first recital.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be
closed in New York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Cable Car" is defined in the preamble and includes any successor
thereto.
"Capital Expenditures" means, with respect to any Person for any
applicable period, the sum (without duplication) of
(a) the aggregate amount of all expenditures of such Person
and its Subsidiaries determined on a consolidated basis for fixed
or capital assets made during such period which, in accordance
with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period;
provided that Capital Expenditures shall not include (i) any such expenditures
funded with (x) any Net Casualty Proceeds as permitted pursuant to clause (f) of
Section 3.1.1 or (y) any Net Disposition Proceeds as permitted pursuant to
clause (c) of Section 3.1.1 of any disposition of assets permitted pursuant to
clause (b) or (e) of Section 7.2.9 or (ii) (x) any Investment made pursuant to
Section 7.2.5 or (y) any purchase made pursuant to clause (b)(ii) of Section
7.2.8.
"Capital Stock" means, with respect to any Person, (i) any and
all shares, interests, participations or other equivalents of or interests in
(however designated) corporate or capital stock, including, without limitation,
shares of preferred or preference stock of such Person, (ii) all partnership
interests (whether general or limited) in such Person, (iii) all membership
interests or limited liability company or partnership interests in such Person,
and (iv) all other equity or ownership interests in such Person of any other
type.
"Capitalized Lease Liabilities" means with respect to any Person
for any applicable period, all monetary obligations of such Person and its
Subsidiaries determined on a consolidated basis under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed or insured by the
United States Government of any agency thereof, or by any state
of the United States (the securities of which state are rated
at least AA by S&P or Aa by Moody's);
(b) commercial paper, maturing not more than nine months
from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-1
by S&P or P-1 by Moody's, or
(ii) any Lender (or its holding company);
(c) any certificate of deposit, demand deposit account, time
deposit account or bankers acceptance, maturing not more than one
year after such time, which is issued by either
(i) a commercial banking institution that is a member of
the Federal Reserve System (or with respect to any Non-U.S.
Subsidiary of any Borrower, a commercial banking institution
located in the country where such Non-U.S. Subsidiary does
business) and has a combined capital and surplus and
undivided profits of not less than $500,000,000 (or the
foreign currency equivalent thereof), or
(ii) any Lender;
(d) any repurchase agreement or transaction under a master
repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in
clause (c)(i)) which
(i) is secured by a fully perfected security interest in
any obligation of the type described in any of clauses (a)
through (c), and
(ii) has a market value at the time the transaction
under such repurchase agreement is entered into of not less
than 100% of the repurchase obligation of such Lender (or
other commercial banking institution) thereunder; or
(e) money market funds having no restrictions on liquidation
rights and whose sole investments are comprised of investments
permitted under clauses (a) through (d).
"Casualty Event" means, with respect to any Person, the damage,
destruction or condemnation, as the case may be, of any property of such Person.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means
(a) any Person, or two or more Persons acting in concert,
other than the Permitted Holders, (individually or collectively)
acquiring beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Act of 1934, as amended) of 35% or
more of the outstanding shares of voting Capital Stock of Triarc
on a fully diluted basis, but only if the Permitted Holders (x)
beneficially own (as defined in this clause (a)), directly or
indirectly, in the aggregate, a lesser percentage of the
outstanding shares of voting Capital Stock of Triarc on a fully
diluted basis than such Person or Persons and (y) do not have the
right or ability by voting power, contract or otherwise to elect
or designate for election a majority of the Board of Directors of
Triarc;
(b) prior to a merger of Holdco with and into Triarc
Beverage, the failure of Triarc to own, either directly or
indirectly, free and clear of all Liens (other than as permitted
under the Loan Documents), 100% of the outstanding shares of
voting Capital Stock of Holdco on a fully diluted basis;
(c) (i) prior to a merger of Holdco with and into Triarc
Beverage, the failure of Holdco to own, either directly or
indirectly, free and clear of all Liens (other than as permitted
under the Loan Documents), 100% of the outstanding shares of
voting Capital Stock of Triarc Beverage on a fully diluted basis,
(ii) after a merger of Holdco with and into Triarc Beverage and
prior to an Initial Public Offering of Triarc Beverage, the
failure of Triarc to own, either directly or indirectly, free and
clear of all Liens (other than as permitted under the Loan
Documents), 100% of the outstanding shares of voting Capital
Stock of Triarc Beverage on a fully diluted basis, and (iii)
after an Initial Public Offering of Triarc Beverage, the failure
of Triarc to own, either directly or indirectly, free and clear
of all Liens (other than as permitted under the Loan Documents),
at least 51% of the outstanding shares of voting Capital Stock of
Triarc Beverage on a fully diluted basis; provided, however,
that, with respect to clauses (i) and (ii) above, Triarc Beverage
may issue up to 15% of its outstanding shares of voting Capital
Stock on a fully diluted basis pursuant to the Triarc Beverage
Stock Option Plan;
(d) except as otherwise permitted under the Loan Documents,
(i) prior to a merger of Holdco with and into Triarc Beverage,
the failure of Holdco to own, either directly or indirectly, free
and clear of all Liens (other than as permitted under the Loan
Documents), 100% of the outstanding shares of voting Capital
Stock of each of the Borrowers and Arby's, in each case on a
fully diluted basis (provided, however, that Triarc Beverage may
issue up to 15% of its outstanding shares of voting Capital Stock
on a fully diluted basis pursuant to the Triarc Beverage Stock
Option Plan), and (ii) after a merger of Holdco with and into
Triarc Beverage, the failure of Triarc Beverage to own, either
directly or indirectly, free and clear of all Liens (other than
as permitted under the Loan Documents), 100% of the outstanding
shares of voting Capital Stock of each of the Borrowers and
Arby's on a fully diluted basis; provided, however, that in
either case, (A) Arby's may issue up to 15% of its outstanding
shares of voting Capital Stock on a fully diluted basis pursuant
to the Arby's Stock Option Plan, and (B) the Capital Stock of
RC/Arby's and its Subsidiaries (to the extent provided in the
definition of Arby's Securitization Residual Payment) may be
transferred to Triarc in connection with the Arby's
Securitization Residual Payment;
(e) the chief executive officer of the "Triarc Beverage
Group", as of the Closing Date, shall have ceased to continue to
serve in the operational and managerial capacities in which he
now serves or in an enhanced operational or managerial capacity
with Holdco or any Borrower and a successor shall not be
appointed within 180 days thereof with the prior consent of the
Required Lenders (which consent shall not be unreasonably
withheld or delayed);
(f) during any period of 12 consecutive months, individuals
who at the beginning of such 12-month period were directors of
Holdco, Triarc Beverage or any Borrower cease for any reason to
continue to constitute a majority of the Board of Directors of
Holdco, Triarc Beverage or such Borrower unless their successors
shall have been approved by a majority of the continuing
directors;
(g) except as otherwise permitted under the Loan Documents,
the failure of each applicable Borrower to own, either directly
or indirectly, free and clear of all Liens (other than as
permitted under the Loan Documents), 100% of the outstanding
shares of voting Capital Stock of each U.S. Subsidiary of such
Borrower which is a Material Obligor on a fully diluted basis; or
(h) any "Change in Control" as defined in any document or
instrument evidencing or applicable to any Subordinated Debt.
"Closing Date" means the date on which all the conditions set
forth in Section 5.1 are satisfied or waived and the initial Credit Extension is
made hereunder.
"Closing Date Certificate" means a certificate of an Authorized
Officer of each Borrower substantially in the form of Exhibit G hereto,
delivered pursuant to Section 5.1.4.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, as the context may require, a Lender's Term
Loan Commitment, Revolving Loan Commitment, Letter of Credit Commitment or Swing
Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Letter
of Credit Commitment Amount, the Revolving Loan Commitment Amount, the Swing
Line Loan Commitment Amount, the Term A Loan Commitment Amount, the Term B Loan
Commitment Amount or the Term C Loan Commitment Amount.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.9 with respect to any Material
Obligor; or
(b) the occurrence and continuance of any other Event of
Default and either (i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or (ii) in the absence of such
declaration, the giving of notice by the Administrative Agent,
acting at the direction of the Required Lenders, to the Borrowers
that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial Authorized Officer of Holdco, on behalf of the
Borrowers, substantially in the form of Exhibit H hereto.
"Consummation Date" is defined in Section 7.1.12.
"Contingent Liability" means any agreement, undertaking or
arrangement (but not any obligation or liability arising by operation of law or
pursuant to any statutory requirement) by which any Person guarantees, endorses
or otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the indebtedness, obligation or any other liability of any other
Person (other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the shares of
Capital Stock of any other Person. The amount of any Person's obligation under
any Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation
or conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit F hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with Holdco
and the Borrowers, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.
"Copyright Security Agreement" means any Copyright Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit C to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension
of any Stated Expiry Date of any previously issued Letter of
Credit, by any Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date with respect to any Person,
without duplication, all assets (other than cash) which, in accordance with GAAP
consistently applied, would be included as current assets on a consolidated
balance sheet of such Person and its Subsidiaries at such date as current
assets.
"Current Liabilities" means, on any date with respect to any
Person, without duplication, all amounts which, in accordance with GAAP
(consistently applied), would be included as current liabilities on a
consolidated balance sheet of such Person and its Subsidiaries at such date,
excluding current maturities of Indebtedness ("Indebtedness" for purposes of
this definition includes principal and interest with respect to Revolving
Loans).
"Debt" means the outstanding principal amount of all Indebtedness
of Holdco and its Subsidiaries of the nature referred to in clauses (a), (b),
and (c) of the definition of "Indebtedness" plus (without duplication) the
aggregate amount of all Contingent Liabilities to the extent covering or
supporting the principal amount of any such Indebtedness.
"Default" means any Event of Default or any condition, occurrence
or event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or otherwise modified
from time to time by the Borrowers with the written consent of the Required
Lenders.
"DLJ" is defined in the preamble.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of
such Lender designated as such as set forth opposite its name on Schedule II
hereto under the applicable column heading or as set forth in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"EBITDA" means, with respect to Holdco and its Subsidiaries
(including each of the Borrowers) for any applicable period, the sum (without
duplication), determined on a consolidated basis, of
(a) Net Income,
plus
----
(b) the amount deducted in determining Net Income
representing depreciation and amortization,
plus
----
(c) the amount deducted in determining Net Income
representing federal, state, local and foreign income and
franchise tax expense (including (i) reserves for deferred taxes
not payable currently and (ii) payments or accruals made pursuant
to the Tax Sharing Agreement),
plus
----
(d) the amount deducted in determining Net Income
representing Interest Expense,
plus
----
(e) an amount equal to the amount of all non-cash charges
deducted in determining Net Income,
plus
----
(f) an amount equal to the amount of any extraordinary
charges deducted in determining Net Income,
plus
----
(g) an amount equal to the amount of all non-recurring fees
and expenses incurred in connection with the Transaction and
deducted in determining Net Income,
minus
----
(h) an amount equal to the amount of all non-cash credits
included in determining Net Income.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Account" means, with respect to each Borrower and any
of its wholly-owned U.S. Subsidiaries which are Subsidiary Guarantors, at the
time of any determination thereof, any Account as to which each of the following
requirements has been fulfilled to the reasonable satisfaction of the Agents:
(a) such Borrower or such Subsidiary owns such Account free
and clear of all Liens other than any Lien in favor of the
Administrative Agent and the Lenders granted pursuant to or in
connection with this Agreement or another Loan Document;
(b) such Account is a legal, valid, binding and enforceable
obligation of the Person obligated under such Account (the
"Account Debtor");
(c) such Account is not subject to any bona fide dispute,
setoff, counterclaim or other claim (or right to assert any such
setoff right, counterclaim or other claim) or defense on the part
of the Account Debtor or any other Person denying liability under
such Account; provided, however, that such Account shall
constitute an Eligible Account to the extent it is not subject to
any such dispute, setoff, counterclaim or other claim or defense;
(d) such Borrower or such Subsidiary has the full and
unqualified right to assign and ▇▇▇▇▇ ▇ ▇▇▇▇ in such Account to
the Administrative Agent, for its benefit and that of the
Lenders, as security for the Obligations;
(e) such Account is evidenced by an invoice rendered to the
Account Debtor (which shall include computer records) or is
reflected by computer records maintained by such Borrower or such
Subsidiary evidencing such Account and is not evidenced by any
instrument or chattel paper (as the terms "instrument" and
"chattel paper" are defined in Section 9-105 of the UCC), unless
such instrument or chattel paper has been delivered to the
Administrative Agent;
(f) such Account arose from the sale of goods or services by
such Borrower or such Subsidiary or pursuant to a franchise or
master development agreement in the ordinary course of such
Borrower's or such Subsidiary's business, and such goods or
services have been shipped or delivered (in the case of goods) or
rendered in full (in the case of services) to the Account Debtor
for such Account;
(g) with respect to such Account, no Account Debtor is (i)
an Affiliate of such Borrower or any of its Subsidiaries or (ii)
the subject of any of the conditions described in clauses (a)
through (d) of Section 8.1.9 unless the payment of Accounts from
such Account Debtor is secured by a letter of credit from an
issuer and in a manner satisfactory to the Agents;
(h) such Account is not outstanding more than 90 days from
the date of invoice giving rise to such Account (unless such
Account, by its terms, is permitted to be outstanding for a
longer period, in which case such Account shall not be
outstanding for more than such period, provided that such period
does not exceed 180 days and such Account together with all such
other Eligible Accounts outstanding in excess of 90 days do not
in the aggregate exceed $5,000,000 at any time);
(i) such Account is not an Account owing by an Account
Debtor having, at the time of any determination of Eligible
Accounts, in excess of 35% of the aggregate outstanding amount of
all Accounts of such Account Debtor (other than any Accounts
which are the subject of bona fide disputes between such Account
Debtor and such Borrower or such Subsidiary, as the case may be)
outstanding more than 90 days past the date of invoice (unless
such Account, by its terms, is permitted to be outstanding for a
longer period, in which case such Account shall not be
outstanding for more than such period, provided that such period
does not exceed 180 days and such Account together with all such
other Eligible Accounts outstanding in excess of 90 days do not
in the aggregate exceed $5,000,000 at any time);
(j) with respect to the Account Debtor under such Account,
neither such Borrower nor any such Subsidiary is indebted to such
Account Debtor, unless such Borrower or such Subsidiary and such
Account Debtor have entered into an agreement whereby the Account
Debtor is prohibited from exercising any right of setoff with
respect to the Accounts of such Borrower or such Subsidiary;
provided, that in any event, if such an agreement prohibiting
setoff rights is not delivered by the Account Debtor, then only
the amount that such Borrower or such Subsidiary is indebted to
such Account Debtor shall be excluded as an Eligible Account
pursuant to this clause; and
(k) such Account arises from a sale to an Account Debtor, or
pursuant to a franchise or master development agreement with a
franchisee, located within the United States, Canada (to the
extent such Account is owed to a Borrower or any U.S. Subsidiary
of any Borrower) or Puerto Rico, unless the Account Debtor's
obligations (or that portion of such obligations which is
acceptable to the Agents) with respect to a sale to an Account
Debtor not located within the United States, Canada (to the
extent provided above) or Puerto Rico are secured by a letter of
credit, guaranty or eligible bankers' acceptance having terms,
and from such issuers and confirmation banks, as are acceptable
to the Agents.
"Eligible Inventory" means, with respect to each Borrower and any
of its wholly-owned U.S. Subsidiaries which are Subsidiary Guarantors, at the
time of any determination thereof, any Inventory arising in the ordinary course
of business and as to which each of the following requirements has been
fulfilled to the reasonable satisfaction of the Agents:
(a) such Inventory is located in the United States or
Puerto Rico;
(b) such Borrower or its wholly-owned U.S. Subsidiary owning
such Inventory, as the case may be, has full and unqualified
right to assign and ▇▇▇▇▇ ▇ ▇▇▇▇ in such Inventory to the
Administrative Agent, for its benefit and that of the Lenders, as
security for the Obligations;
(c) such Borrower or one of its wholly-owned U.S.
Subsidiaries owns such Inventory free and clear of all Liens in
favor of any Person other than any Lien in favor of the
Administrative Agent and the Lenders granted pursuant to or in
connection with this Agreement or another Loan Document; and
(d) none of such Inventory is obsolete, unsalable, damaged
or otherwise unfit for sale or consumption or further processing.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and binding guidelines
(including consent decrees and administrative orders) relating to the protection
of the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Excess Amount" is defined in Section 3.1.3.
"Excess Cash Flow" means, with respect to Holdco and its Subsid-
iaries for any applicable period, the excess (if any) of
(a) EBITDA for such applicable period;
over
----
(b) the sum, without duplication (for such applicable
period) on a consolidated basis of
(i) the cash portion of Interest Expense (net of cash
interest income) actually paid during such applicable
period;
plus
----
(ii) (x) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other term Debt (including
Capitalized Lease Liabilities), (y) mandatory prepayments of
the principal amount of the Revolving Loans and Swing Line
Loans pursuant to clauses (b) or (k) of Section 3.1.1 in
connection with a reduction of the Revolving Loan Commitment
Amount, in each case for such applicable period and (z) to
the extent not deducted in the computation of EBITDA, all
cash payments in respect of other Indebtedness (exclusive of
optional prepayments of amounts outstanding under the
Revolving Loan Commitment);
plus
----
(iii) all federal, state, local and foreign income and
franchise taxes actually paid in cash (including payments
made pursuant to the Tax Sharing Agreement) during such
applicable period, net of any refunds of such taxes received
during such applicable period;
plus
----
(iv) Capital Expenditures actually made during such
applicable period pursuant to Section 7.2.7 (excluding
Capital Expenditures constituting Capitalized Lease
Liabilities and by way of the incurrence of Indebtedness
permitted pursuant to clause (g) of Section 7.2.2 to a
vendor of any assets permitted to be acquired pursuant to
Section 7.2.7 to finance the acquisition of such assets);
plus
----
(v) the amount of the net increase (or minus in the case
of a net decrease) of Current Assets over Current
Liabilities of Holdco and its Subsidiaries for such
applicable period (or, with respect to the period ending
January 2, 2000, for the full Fiscal Year ending January 2,
2000);
plus
----
(vi) the cash portion of any fees and expenses incurred
in connection with any required Hedging Obligation.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Fee Letters" means, collectively, (i) the confidential fee
letter, dated January 27, 1999, among the Arrangers and Triarc, and (ii) the
Administrative Agent's Fee Letter.
"Filing Agent" is defined in Section 5.1.10.
"Filing Statements" is defined in Section 5.1.10.
"Fiscal Month" means any fiscal month of any Fiscal Year of
Holdco.
"Fiscal Quarter" means any fiscal quarter of any Fiscal Year of
Holdco.
"Fiscal Year" means any fiscal year of Holdco; provided that, as
of the Closing Date, Holdco's Fiscal Year shall end on the Sunday occurring
closest to December 31 of each year, including December 31; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., "1999 Fiscal
Year") refer to the Fiscal Year ending on the Sunday occurring closest to
December 31 of such calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters (provided that for the first
three Fiscal Quarters after the Closing Date, the amounts determined in clauses
(b)(ii), (b)(iii) and (b)(v) below shall be determined on an Annualized basis)
of
(a) EBITDA for all such Fiscal Quarters, plus the aggregate
amount of all management fees permitted and paid during such
Fiscal Quarters pursuant to clause (a) of Section 7.2.11, to the
extent deducted in computing EBITDA;
to
--
(b) the sum (without duplication) of
(i) Capital Expenditures actually made during all such
Fiscal Quarters pursuant to Section 7.2.7;
plus
----
(ii) the cash portion of Interest Expense (net of cash
interest or investment income) for all such Fiscal Quarters;
plus
----
(iii) all scheduled payments of principal, to the extent
actually made, of the Term Loans and other term Debt
(including the principal portion of any Capitalized Lease
Liabilities) during all such Fiscal Quarters;
plus
----
(iv) all federal, state, local and foreign income and
franchise taxes actually paid in cash (including payments
made pursuant to the Tax Sharing Agreement) during all such
Fiscal Quarters, net of any refunds of such taxes received
during such applicable period;
plus
----
(v) all payments of management fees permitted and paid
during all such Fiscal Quarters pursuant to clause (a) of
Section 7.2.11;
plus
----
(vi) all payments permitted and paid during such Fiscal
Quarters pursuant to clause (d) of Section 7.2.6.
"F.R.S. Board" means the Board of Governors of the Federal Re-
serve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended or hereafter
amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or such other Loan
Document.
"Holdco" is defined in the second recital and includes any suc-
cessor thereto.
"Holdco/Triarc Beverage Guaranty and Pledge Agreement" means the
Guaranty and Pledge Agreement executed and delivered by Holdco and Triarc
Beverage pursuant to clause (a) of Section 5.1.8, substantially in the form of
Exhibit J-1 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of
which would be to cause such Obligor to be in default of any of
its obligations under Section 7.2.4.
"including" means including without limiting the generality of
any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn,
and banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded
as Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, (i) all obligations of such Person to pay the deferred
purchase price of property or services (but not including
liabilities incurred in connection with any employment severance
arrangements), (ii) liabilities (but only to the extent required
by GAAP to be reflected on the balance sheet of such Person) in
connection with take-or-pay contracts, and (iii) indebtedness
(excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse
(provided, however, that, to the extent such Indebtedness is
limited in recourse to the assets securing such Indebtedness, the
amount of such Indebtedness shall be limited to the fair market
value of such assets); and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer to the extent such Person is liable for such
Indebtedness.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Indenture" means the Indenture, dated as of February 25, 1999,
among Holdco, Triarc Beverage, the guarantors party thereto and The Bank of New
York, as trustee, as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with Section 7.2.10.
"Initial Public Offering" means a primary underwritten public
offering of the voting Capital Stock of Holdco or Triarc Beverage, other than
any public offering or sale pursuant to a registration statement on Form S-8 or
a comparable form.
"Interest Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter and
each of the three immediately prior Fiscal Quarters (provided, that, for the
first three Fiscal Quarters after the Closing Date, the amount determined in
clause (b) below shall be determined on an Annualized basis) of:
(a) EBITDA for all such Fiscal Quarters;
to
--
(b) the cash portion of Interest Expense for all such Fiscal
Quarters.
"Interest Expense" means, for any applicable period, the
aggregate consolidated interest expense of Holdco and its Subsidiaries
(including the Borrowers) for such applicable period, as determined in
accordance with GAAP, including the portion of any payments made in respect of
Capitalized Lease Liabilities allocable to interest expense, but excluding (to
the extent included in interest expense) (i) the amortization of fees and
expenses incurred in connection with the Transaction and (ii) any fees and
expenses incurred in connection with any required Hedging Obligation.
"Interest Period" means, relative to any LIBO Rate Loans, the
period beginning on (and including) the date on which such LIBO Rate Loan is
made or continued as, or converted into, a LIBO Rate Loan pursuant to Section
2.3 or 2.4 and ending on (but excluding) the day which numerically corresponds
to such date one, two, three or six months (or, if available to each applicable
Lender, nine or twelve months) thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), in each case as the
applicable Borrower may select in its relevant notice pursuant to Section 2.3 or
2.4; provided, however, that
(a) no more than 10 Interest Periods shall be in effect at
any one time;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same
duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on
the next following Business Day (unless such next following
Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the Business Day
next preceding such numerically corresponding day); and
(d) no Interest Period for any Loan may extend beyond the
Stated Maturity Date for such Loan.
"Inventory" means any "inventory" (as that term is defined in
Section 9-109(4) of the UCC) of any Borrower or any of its wholly-owned U.S.
Subsidiaries.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding (i) payroll, commission, travel and similar
advances to officers and employees made in the ordinary course of
business or (ii) ordinary trade debt (in the nature of open
accounts payable) extended in the ordinary course of business on
customary terms);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon, whether by means of
dividend, distribution or otherwise (and without adjustment by reason of the
financial condition of such other Person), and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
"Issuance Request" means a Letter of Credit request and
certificate duly executed by an Authorized Officer of the applicable Borrower,
substantially in the form of Exhibit D hereto.
"Issuer" means, collectively, BNY, in its individual capacity
hereunder as the issuer of the Letters of Credit, and such other Lender or
Lenders as may be designated from time to time by the Syndication Agent (and
agreed to by the Borrowers and each such Lender), in its individual capacity
hereunder as the issuer of any Letter of Credit.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit L hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in clause (a) of Section 2.1.3.
"Letter of Credit Commitment" means, with respect to each Issuer,
such Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3
and, with respect to each of the other Lenders that has a Revolving Loan
Commitment, the obligation of such Lender to participate in such Letters of
Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a
maximum amount of $25,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount
equal to the sum of
(a) the aggregate Stated Amount at such time of all Letters
of Credit then outstanding and undrawn (as such aggregate Stated
Amount shall be adjusted, from time to time, as a result of
drawings, the issuance of Letters of Credit, or otherwise),
plus
----
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Leverage Ratio" means, at the end of any Fiscal Quarter, the
ratio of
(a) total Debt;
to
(b) EBITDA for the period of four consecutive Fiscal
Quarters most recently ended on or prior to such date;
provided, however, that during each of the first two Fiscal Quarters of each
Fiscal Year, the amount determined in clause (a) above shall be reduced by the
Seasonal Working Capital Amount.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest per annum determined by the Administrative Agent to
be the arithmetic mean (rounded upward to the next 1/32 of 1%) of the rates of
interest per annum at which dollar deposits in the approximate amount of the
amount of the Loan to be made or continued as, or converted into, a LIBO Rate
Loan by the Administrative Agent and having a maturity comparable to such
Interest Period would be offered to the Administrative Agent in the London
interbank market at its request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the rate of interest per annum (rounded upwards to the next
1/32 of 1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
--------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be adjusted automatically as to all LIBO Rate Loans then
outstanding as of the effective date of any change in the LIBOR Reserve
Percentage.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such as set forth opposite its name on Schedule II hereto
under the applicable column heading or as set forth in the Lender Assignment
Agreement or such other office of a Lender (or any successor or assign of such
Lender) as designated from time to time by notice from such Lender to the
Borrowers and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period
for LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan, a
Swing Line Loan or a Term Loan of any type.
"Loan Document" means this Agreement, the Notes, the Letters of
Credit, each Borrowing Base Certificate, the Administrative Agent's Fee Letter,
each Pledge Agreement, the Subsidiary Guaranty, each Mortgage (if any), each
Security Agreement, each Copyright Security Agreement, each Patent Security
Agreement, each Trademark Security Agreement, each Rate Protection Agreement and
each other material agreement, document or instrument delivered in connection
with this Agreement or any other Loan Document, whether or not specifically
mentioned herein.
"Material Adverse Effect" means (i) a material adverse effect on
the financial condition, operations, assets, business, properties or prospects
of (A) Holdco and its Subsidiaries, taken as a whole; or (B) the Beverage
Companies and their Subsidiaries, taken as a whole; (ii) a material impairment
of the ability of any Borrower or any other Material Obligor to perform its
respective material obligations under the Loan Documents to which it is or will
be a party; or (iii) an impairment of the validity or enforceability of, or a
material impairment of the rights, remedies or benefits available to each
Issuer, the Agents or the Lenders under this Agreement or any other Loan
Document.
"Material Obligor" means, at any time of determination, (i) any
Borrower, (ii) Holdco, (iii) Triarc Beverage or (iv) any Material Subsidiary.
"Material Subsidiary" means each direct and indirect Subsidiary
of Holdco (other than Triarc Beverage or any Borrower) that (a) accounted for 5%
or more of the EBITDA of Holdco and its Subsidiaries on a consolidated basis for
the most recently completed Fiscal Quarter with respect to which, pursuant to
Section 7.1.1, financial statements have been, or are required to have been,
delivered by the Borrowers on or before the date as of which any such
determination is made, as reflected in such financial statements; or (b) has
assets which represent 5% or more of the consolidated gross assets of Holdco and
its Subsidiaries as of the last day of the most recently completed Fiscal
Quarter with respect to which, pursuant to Section 7.1.1, financial statements
have been, or are required to have been, delivered by the Borrowers on or before
the date as of which any such determination is made, as reflected in such
financial statements.
"Mistic" is defined in the preamble and includes any successor
thereto.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
thereto.
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇" is defined in the preamble.
"Mortgage" means, collectively, each mortgage or deed of trust or
leasehold mortgage that may be executed and delivered pursuant to Section
7.1.7(a), Section 7.1.8(b) or Section 7.1.13 in form and substance reasonably
satisfactory to the Agents, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Net Asset Value" means, at any time of any determination, (i)
with respect to Eligible Accounts, 80% of an amount equal to the book value of
all Eligible Accounts as reflected on the books of the Borrowers and their
applicable U.S. Subsidiaries, determined on a consolidated basis and valued in
accordance with GAAP, net of all credits, discounts and allowances in respect of
such Eligible Accounts and (ii) with respect to Eligible Inventory, an amount
equal to 50% of the lesser of the market value and the cost of goods of all
Eligible Inventory as reflected on the books of the Borrowers and their
applicable U.S. Subsidiaries, determined on a consolidated basis and valued in
accordance with GAAP.
"Net Casualty Proceeds" means, with respect to any Casualty
Event, the excess of:
(a) the gross amount of all insurance proceeds or
condemnation awards received by the Person suffering such
Casualty Event as a result of such Casualty Event,
over
----
(b) the sum (without duplication) of (i) the reasonable and
customary legal and other professional fees and expenses actually
incurred in connection with the receipt of such proceeds or
awards and (ii) all taxes (including any payments made or to be
made pursuant to the Tax Sharing Agreement) and other
governmental costs and expenses actually paid or estimated by any
Borrower or any of its Subsidiaries (in good faith) to be payable
in cash in connection with the receipt of such proceeds or
awards;
provided, however, that if, after the payment of all taxes and other
governmental costs and expenses (including payments payable pursuant to the Tax
Sharing Agreement) with respect to such proceeds, the amount of estimated taxes
and other governmental costs and expenses, if any, pursuant to clause (b)(ii)
above exceeded the amount actually paid in cash in respect of such proceeds, the
aggregate amount of such excess shall, within two (2) Business Days thereafter,
be payable, pursuant to clause (f) of Section 3.1.1, as Net Casualty Proceeds.
"Net Debt Proceeds" means, with respect to the incurrence, sale
or issuance by Holdco or any of its Subsidiaries of any Debt (other than Debt
permitted by Section 7.2.2), the excess of:
(a) the gross cash proceeds received by such Person from
such incurrence, sale or issuance,
over
----
(b) all reasonable and customary underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case
actually incurred in connection with such incurrence, sale or
issuance, including any reasonable up-front fees and expenses
incurred in connection with any required Hedging Obligation;
provided such Hedging Obligation relates solely to the new Debt
incurred pursuant to such incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale,
transfer or other disposition of any assets of Holdco or any of its Subsidiaries
(other than (i) as permitted pursuant to clause (a), (c), (e) (to the extent
provided therein) or (f)(i) of Section 7.2.9 or (ii) between Holdco and Triarc
Beverage) or from the Arby's Securitization, the excess of:
(a) the gross cash proceeds received by such Person from any
such sale, transfer, other disposition or the Arby's
Securitization, and any cash payments received in respect of
promissory notes or other non-cash consideration delivered to
such Person in respect thereof,
over
----
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment
banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such sale, transfer, other disposition or the
Arby's Securitization, (ii) all taxes (including any payments
made or to be made pursuant to the Tax Sharing Agreement) and
other governmental costs and expenses actually paid or estimated
by Holdco or any of its Subsidiaries (in good faith) to be
payable in cash in connection with such sale, transfer, other
disposition or the Arby's Securitization (including any costs and
expenses actually paid or incurred relating to compliance with
Environmental Laws), (iii) payments made by Holdco or any of its
Subsidiaries to retire Indebtedness (other than the Loans) of
such Person where payment of such Indebtedness is required in
connection with such sale, transfer, other disposition or the
Arby's Securitization and (iv) reasonable amounts to be provided
by Holdco or any of its Subsidiaries, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities
associated with such sale, transfer, other disposition or the
Arby's Securitization and retained by Holdco or such Subsidiary,
as the case may be;
provided, however, that if, after the payment of all taxes and other
governmental costs and expenses (including payments payable pursuant to the Tax
Sharing Agreement) with respect to such sale, transfer, other disposition or the
Arby's Securitization, the amount of estimated taxes and other governmental
costs and expenses, if any, pursuant to clause (b)(ii) above exceeded the amount
actually paid in cash in respect of such sale, transfer, other disposition or
the Arby's Securitization, or if any amounts reserved pursuant to clause (b)(iv)
shall be released or reversed, the aggregate amount of such excess or released
or reversed reserve amount shall, within two (2) Business Days thereafter, be
payable, pursuant to clause (c) of Section 3.1.1, as Net Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or issuance
by Holdco or any of its Subsidiaries to any Person (other than Holdco or any of
its wholly-owned U.S. Subsidiaries) of any of its Capital Stock or any warrants
or options with respect to its Capital Stock or the exercise of any such
warrants or options after the Closing Date (other than pursuant to any
subscription agreement, incentive plan or similar arrangement with any officer,
employee or director of Holdco or any of its Subsidiaries, including without
limitation the Triarc Beverage Stock Option Plan and the Arby's Stock Option
Plan) the excess of:
(a) the gross cash proceeds received from such sale, exer-
cise or issuance,
over
----
(b) all reasonable and customary underwriting commissions
and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case
actually incurred in connection with such sale or issuance.
"Net Income" means, for any period, without duplication, the sum
of the aggregate of all amounts which, in accordance with GAAP, would be
included as net income of Holdco and its Subsidiaries (including each of the
Borrowers) for such period on a consolidated basis, excluding extraordinary
gains.
"Net Worth" means the consolidated net worth of Holdco and its
Subsidiaries (including each of the Borrowers), determined in accordance with
GAAP.
"Non-U.S. Subsidiary" means any Subsidiary other than a U.S. Sub-
sidiary.
"Note" means, as the context may require, a Revolving Note, a
Swing Line Note, a Term A Note, a Term B Note or a Term C Note.
"Obligations" means all obligations (monetary or otherwise) of
each Borrower and each other Obligor arising under or in connection with this
Agreement and each other Loan Document.
"Obligor" means any Borrower, Holdco, Triarc Beverage, any
Subsidiary Guarantor or any Affiliate thereof obligated under, or otherwise a
party to, any Loan Document.
"Organic Document" means, relative to any Obligor, as applicable,
its certificate of incorporation, by-laws, certificate of partnership,
partnership agreement, certificate of formation, limited liability agreement and
all shareholder agreements, voting trusts and similar arrangements applicable to
any of such Obligor's partnership interests, limited liability company interests
or authorized shares of Capital Stock.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit A to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which
Holdco or any of its Subsidiaries or any corporation, trade or business that is,
along with Holdco or any of its Subsidiaries, a member of a Controlled Group,
may have liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable
percentage relating to Term A Loans, Term B Loans, Term C Loans or Revolving
Loans, as the case may be, set forth opposite its name on Schedule II hereto
under the applicable column heading or set forth in the Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to any
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 10.11. A Lender shall not have any
Commitment to make Revolving Loans if its percentage under the respective column
heading is zero. Each Lender's Percentage of Swing Line Loans and Letters of
Credit shall be equal to such Lender's Percentage of Revolving Loans.
"Permitted Holders" means, collectively, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇.
May and/or their respective affiliates (including members of their immediate
families) and any trusts and estates of which any of them are primary
beneficiaries and any entities of which any of them hold a majority of the
equity securities.
"Person" means any natural person, corporation, partnership,
limited liability company, partnership, joint venture, association, trust,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the
Holdco/Triarc Beverage Guaranty and Pledge Agreement, the Borrower Pledge
Agreement and/or the Subsidiary Pledge Agreement.
"Pro Forma Balance Sheet" is defined in clause (b) of
Section 5.1.11.
"Quarterly Payment Date" means June 15, 1999 and, thereafter, the
fifteenth day of each March, June, September and December or, if such day is not
a Business Day, the next succeeding Business Day.
"Rate Protection Agreement" means, collectively, any interest
rate swap, cap, collar or similar agreement entered into by any Borrower or any
of its Subsidiaries in respect of the Loans pursuant to the terms of this
Agreement under which the counterparty to such agreement is (or at the time such
Rate Protection Agreement was entered into, was) a Lender, an Agent or an
Affiliate of a Lender or an Agent.
"RC/Arby's" is defined in the preamble and includes any successor
thereto.
"RC/Arby's Notes" means the $275,000,000 principal amount of
9.75% Senior Secured Notes due August 2000 issued by RC/Arby's pursuant to an
Indenture, dated as of August 1, 1993, among RC/Arby's, Royal Crown, Arby's and
The Bank of New York, as trustee.
"RC/Arby's Notes Repayment" means the redemption of the RC/Arby's
Notes on a date that is no more than 35 days after the Closing Date for an
amount not to exceed the aggregate principal amount thereof plus the applicable
premium of 2.786%, plus accrued interest and related fees and expenses through
the date of redemption.
"RC/Arby's Notes Repayment Pledge Account" means the account
established pursuant to the RC/Arby's Notes Repayment Pledge Agreement pursuant
to which Holdco and Triarc Beverage will deposit into a pledge account funds to
be used to consummate the RC/Arby's Notes Repayment.
"RC/Arby's Notes Repayment Pledge Agreement" means the pledge
agreement, dated as of the Closing Date, by and among Holdco and Triarc
Beverage, as pledgors, The Bank of New York, as securities intermediary, and the
Administrative Agent pursuant to which Holdco and Triarc Beverage will grant the
Administrative Agent a security interest in the funds to be used in connection
with the RC/Arby's Notes Repayment, as amended, supplemented, amended and
restated or otherwise modified from time to time in accordance herewith and
therewith.
"Rebuilding and Replacement Work" is defined in clause (f) of
Section 3.1.1.
"Refinancing" is defined in the fourth recital.
"Refunded Swing Line Loans" is defined in Section 2.3.2(b).
"Register" is defined in clause (b)(i) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Funds" is defined in clause (b) of Section 10.11.1.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time, Lenders holding more than
50% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Revolving Loans" is defined in clause (a) of Section 2.1.2.
"Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation to make Revolving Loans pursuant to Section 2.1.2 and to
issue (in the case of an Issuer) or participate in (in the case of all Lenders)
Letters of Credit pursuant to Section 2.1.3.
"Revolving Loan Commitment Amount" means, on any date,
$60,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Revolving Loan Commitment Termination Date" means the earliest
of
(a) March 1, 2005;
(b) the date on which the Revolving Loan Commitment Amount
is terminated in full or reduced to zero pursuant to Section 2.2;
and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit A-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to
such Lender resulting from outstanding Revolving Loans, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"Royal Crown" is defined in the preamble and includes any suc-
cessor thereto.
"Royal Crown Disposition" means the sale of the Capital Stock of,
or all or substantially all of the assets comprising the soft drink concentrates
business of, Royal Crown and its Subsidiaries to a third Person pursuant to
clause (f)(ii) of Section 7.2.9.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc. or any successor thereto.
"Seasonal Working Capital Amount" means, as of any time of
determination, the lesser of (x) $40,000,000 and (y) the aggregate amount
outstanding under the Revolving Loan Commitments, whether in respect of Loans,
Letters of Credit, Reimbursement Obligations or otherwise.
"Secured Parties" means, collectively, (i) the Lenders and the
Agents, and (ii) any Lender, Agent or Affiliate of any Lender or Agent which may
be party to any Rate Protection Agreement.
"Security Agreement" means, as the context may require, the
Borrower Security Agreement and/or the Subsidiary Security Agreement.
"Snapple" is defined in the preamble and includes any successor
thereto.
"Solvency Certificate" means the solvency certificate delivered
pursuant to clause (b) of Section 5.1.12, substantially in the form of Exhibit M
hereto.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such Person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, Swing Line Loan or
Term A Loan, March 1, 2005;
(b) in the case of any Term B Loan, March 1, 2006; and
(c) in the case of any Term C Loan, March 1, 2007.
"Subject Lender" is defined in Section 4.11.
"Subordinated Debt" means all unsecured Indebtedness for money
borrowed which is subordinated in right of payment to the payment in full in
cash of all Obligations, including the Subordinated Notes, but not including
intercompany Indebtedness permitted pursuant to clause (i) of Section 7.2.2.
"Subordinated Notes Offering" is defined in the third recital.
"Subordinated Notes" means the 10.25% senior subordinated notes
due 2009 of Holdco and Triarc Beverage issued pursuant to the Subordinated Notes
Offering and the Indenture, including any senior subordinated notes of Holdco
and Triarc Beverage with substantially identical terms exchanged therefor
pursuant to a registration statement under the Securities Act of 1933, as
amended.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50% of
the outstanding Capital Stock having ordinary voting power to elect a majority
of the board of directors, managers or other voting members of the governing
body of such corporation, limited liability company, partnership or other entity
(irrespective of whether at the time Capital Stock of any other class or classes
of such corporation, limited liability company, partnership or other entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned or controlled by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person; provided that the term "Subsidiary" shall not
include any Arby's Securitization Entity.
"Subsidiary Guarantor" means, on the Closing Date, each direct
and indirect U.S. Subsidiary of each Borrower (except as otherwise provided
herein) and, thereafter, each other direct and indirect Subsidiary of any such
Borrower that is required, pursuant either to clause (a) of Section 7.1.7 or
clause (b) of Section 7.1.11, to execute and deliver a supplement to the
Subsidiary Guaranty.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by each Subsidiary Guarantor pursuant to Section 5.1.7, clause (a) of
Section 7.1.7 or clause (b) of Section 7.1.11, substantially in the form of
Exhibit I hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Subsidiary Pledge Agreement" means the Pledge Agreement executed
and delivered by each Subsidiary Guarantor pursuant to clause (c) of Section
5.1.8, clause (b) of Section 7.1.7 or clause (b) of Section 7.1.11,
substantially in the form of Exhibit J-3 hereto, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Subsidiary Security Agreement" means the Security Agreement
executed and delivered by each Subsidiary Guarantor pursuant to Section 5.1.9,
clause (a) of Section 7.1.7 or clause (b) of Section 7.1.11, substantially in
the form of Exhibit K-2 hereto, in each case as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Swing Line Lender" means BNY (or another Lender designated by
the Syndication Agent with the consent of the Borrowers, if such Lender agrees
to be the Swing Line Lender hereunder), in such Person's capacity as the maker
of Swing Line Loans.
"Swing Line Loans" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" means, with respect to the Swing
Line Lender, the Swing Line Lender's obligation pursuant to clause (b) of
Section 2.1.2 to make Swing Line Loans and, with respect to each Lender with a
Commitment to make Revolving Loans (other than the Swing Line Lender), such
Lender's obligation to participate in Swing Line Loans pursuant to Section
2.3.2.
"Swing Line Loan Commitment Amount" means $10,000,000.
"Swing Line Note" means a joint and several promissory note of
the Borrowers payable to the Swing Line Lender, in the form of Exhibit A-2
hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Borrowers to
the Swing Line Lender resulting from outstanding Swing Line Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Tax Sharing Agreement" means, collectively, (i) the Tax Sharing
Agreement, dated as of February 25, 1999, among the Borrowers, certain
Subsidiaries of RC/Arby's, Holdco, Triarc Beverage and Triarc, as amended,
supplemented, amended and restated or otherwise modified from time to time, and
(ii) any other tax sharing agreement, in form and substance reasonably
satisfactory to the Arrangers, among Triarc, Holdco, the Borrowers and/or any of
their Subsidiaries containing terms no less favorable to the Borrowers and their
Subsidiaries than the tax sharing agreement referred to in clause (i).
"Taxes" is defined in Section 4.6.
"Term A Loan" is defined in clause (a) of Section 2.1.1.
"Term A Loan Commitment Amount" means $45,000,000.
"Term A Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term A Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term B Loan" is defined in clause (b) of Section 2.1.1.
"Term B Loan Commitment Amount" means $125,000,000.
"Term B Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-2 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term B Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term C Loan" is defined in clause (c) of Section 2.1.1.
"Term C Loan Commitment Amount" means $305,000,000.
"Term C Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-3 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term C Loans, and also means all other promis-
sory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term Loans" means, collectively, the Term A Loans, the Term B
Loans and the Term C Loans.
"Term Loan Commitment" means, relative to any Lender, such
Lender's obligation to make Term Loans pursuant to Section 2.1.1.
"Termination Date" means the date on which all of the following
shall have occurred on or before such date: (a) all monetary Obligations have
been paid in full in cash, other than (i) indemnification obligations under
Section 10.4 so long as no actions, causes of action or suits are pending or
threatened against any Indemnified Party asserting any Indemnified Liabilities
and (ii) any Letter of Credit Outstandings that have been terminated, expired or
cash collateralized on terms reasonably satisfactory to the Agents, and (b) all
Commitments and all Rate Protection Agreements have been terminated.
"Total Exposure Amount" means, on any date of determination, the
then outstanding principal amount of all Term Loans and the then effective
Revolving Loan Commitment Amount.
"Trademark Security Agreement" means any Trademark Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit B to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the Term A Loans,
the Term B Loans, the Term C Loans or the Revolving Loan Commitments.
"Transaction" is defined in the fourth recital.
"Transaction Documents" means each of the Acquisition Agreement,
the Indenture, the Acquisition Escrow Agreement, the RC/Arby's Notes Repayment
Pledge Agreement and all other material agreements, documents, instruments,
certificates, filings, consents, approvals, resolutions and opinions furnished
to or in connection with the Subordinated Notes, the Triarc Dividend, the
Refinancing, the Acquisition, the RC/Arby's Notes Repayment and the transactions
contemplated thereby, each as amended, supplemented, amended and restated or
otherwise modified from time to time as permitted in accordance with the terms
hereof or any other Loan Document, but shall not include any of the foregoing
entered into in connection with Triarc's proposed going-private transaction.
"Triarc" is defined in the second recital and includes any suc-
cessor thereto.
"Triarc Beverage" is defined in the third recital and includes
any successor thereto.
"Triarc Beverage Stock Option Plan" means the Triarc Beverage
Holdings Corp. 1997 Stock Option Plan providing for the granting of options to
acquire shares of the Capital Stock of Triarc Beverage, as amended,
supplemented, amended and restated or otherwise modified from time to time as
permitted in accordance with the terms hereof.
"Triarc Dividend" means the distributions by Holdco and Triarc
Beverage to Triarc of (i) a portion of the gross proceeds of the Subordinated
Notes Offering and (ii) all of Holdco's and its Subsidiaries' cash equivalents
and cash on hand on the Closing Date in excess of $2,000,000 plus the amount
held in escrow referenced in Item 7.2.3(b) ("Ongoing Liens") of the Disclosure
Schedule (after the payment or accrual of all costs and expenses to be borne by
Holdco and its Subsidiaries in connection with the Transaction; provided that
any amount in excess of the amount so accrued may be distributed by Holdco and
Triarc Beverage to Triarc, and such excess amount shall be deemed to constitute
a portion of the Triarc Dividend and such distributions may be made, in whole or
in part, at any time, including, without limitation, subsequent to the date of
the RC/Arby's Notes Repayment), which distributions may be made, in whole or in
part, at any time and from time to time, on or prior to the date of the
RC/Arby's Notes Repayment.
"type" means, relative to any Loan, the portion thereof, if any,
being maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York or, with respect to Filing Statements, the Uniform
Commercial Code as in effect from time to time in each applicable jurisdiction
of the United States.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary of any Borrower organized
under the laws of the United States or any state, possession or commonwealth
thereof.
"Waiver" means any agreement in favor of the Administrative Agent
for the benefit of the Lenders and each Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA (other than a multi-employer plan as defined in Section
4001 (a)(3) of ERISA).
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (including all rights and
options to purchase such Capital Stock) of which, other than directors' quali-
fying shares (as applicable), are owned, beneficially and of record, by
such Person and/or one or more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or
the context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Borrowing Request, Issuance Request, Continuation/Conversion Notice, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any Article or
Section are references to such Article or Section of this Agreement or such
other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, those generally accepted accounting principles
("GAAP") as in effect on the Closing Date.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Loans and Commitments. On the terms and subject to
the conditions of this Agreement (including Articles II and V), each Lender
severally agrees as otherwise provided in this Section 2.1:
SECTION 2.1.1. Term Loans. On the Closing Date, each Lender
(a) will make loans (relative to such Lender, its "Term A
Loans") to each applicable Borrower, on a joint and several basis
for all the Borrowers, in an amount equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings
of Term A Loans requested by such Borrower to be made on the
Closing Date;
(b) will make loans (relative to such Lender, its "Term B
Loans") to each applicable Borrower, on a joint and several basis
for all the Borrowers, in an amount equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings
of Term B Loans requested by such Borrower to be made on the
Closing Date; and
(c) will make loans (relative to such Lender, its "Term C
Loans") to each applicable Borrower, on a joint and several basis
for all the Borrowers, in an amount equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings
of Term C Loans requested by such Borrower to be made on the
Closing Date.
No amounts paid or prepaid with respect to Term A Loans, Term B Loans or Term C
Loans may be reborrowed.
In connection with the foregoing, on the Closing Date, Snapple will borrow
$36,543,793.05 in aggregate principal amount of Term A Loans, $101,501,536.31 in
aggregate principal amount of Term B Loans and $247,685,708.49 in aggregate
principal amount of Term C Loans, of which $9,123,157.89 in aggregate principal
amount of Term A Loans, $25,342,105.26 in aggregate principal amount of Term B
Loans and $61,834,736.84 in aggregate principal amount of Term C Loans shall be
deemed to have been borrowed on behalf of Royal Crown. Upon the consummation of
the RC/Arby's Notes Repayment, the amounts of such Term Loans shall be allocated
to Royal Crown's account as if Royal Crown had borrowed such amounts directly.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan
Commitment.
(a) From time to time on any Business Day occurring prior
to the Revolving Loan Commitment Termination Date, each Lender
will make loans (relative to such Lender, its "Revolving Loans")
to each applicable Borrower, on a joint and several basis for all
the Borrowers, equal to such Lender's Percentage of the aggregate
amount of the Borrowing of Revolving Loans requested by such
Borrower to be made on such day. On the terms and subject to the
conditions hereof, the Borrowers may from time to time borrow,
prepay and reborrow Revolving Loans; and
(b) From time to time on any Business Day occurring prior to
the Revolving Loan Commitment Termination Date, the Swing Line
Lender will make Loans (relative to the Swing Line Lender, its
"Swing Line Loans") to each applicable Borrower, on a joint and
several basis for all the Borrowers, equal to the principal
amount of the Swing Line Loans requested by such Borrower to be
made on such day. On the terms and subject to the conditions
hereof, the Borrowers may from time to time borrow, prepay and
reborrow such Swing Line Loans.
SECTION 2.1.3. Letter of Credit Commitment. From time to time
on any Business Day occurring prior to the Revolving Loan Commitment Termination
Date, each Issuer will
(a) issue one or more standby or documentary letters of
credit (each referred to as a "Letter of Credit") for the account
of each applicable Borrower, on a joint and several basis for all
Borrowers, in the Stated Amount requested by such Borrower on
such day; or
(b) extend the Stated Expiry Date of an existing Letter of
Credit previously issued hereunder to a date that is not later
than the earlier of (x) five Business Days prior to the Revolving
Loan Commitment Termination Date and (y) one year from the date
of such extension.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans.
No Lender shall be permitted or required to, and the Borrowers shall not request
that any Lender, make
(a) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all the Revolving Loans
(i) of all the Lenders with Revolving Loan Commitments and the
outstanding principal amount of all Swing Line Loans, together
with the Letter of Credit Outstandings, would exceed the lesser
of (x) the then existing Revolving Loan Commitment Amount and (y)
the then existing Borrowing Base Amount, or (ii) of such Lender
with a Revolving Loan Commitment, together with such Lender's
Percentage of the Letter of Credit Outstandings and its
Percentage of the outstanding principal amount of all Swing Line
Loans, would exceed such Lender's Percentage of the lesser of (x)
the then existing Revolving Loan Commitment Amount and (y) the
then existing Borrowing Base Amount; or
(b) any Swing Line Loan (i) if, after giving effect thereto,
(x) the aggregate outstanding principal amount of all Swing Line
Loans would exceed the then existing Swing Line Loan Commitment
Amount, or (y) the sum of the Letter of Credit Outstandings plus
the aggregate principal amount of all Swing Line Loans and
Revolving Loans then outstanding would exceed the lesser of (A)
the then existing Revolving Loan Commitment Amount and (B) the
then existing Borrowing Base Amount, or (ii) unless otherwise
agreed to by the Swing Line Lender, in its sole discretion, if
the sum of all Swing Line Loans and Revolving Loans made by the
Swing Line Lender plus the Swing Line Lender's Percentage of the
Letter of Credit Outstandings would exceed the Swing Line
Lender's Percentage of the lesser of (x) the then existing
Revolving Loan Commitment Amount and (y) the then existing
Borrowing Base Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters
of Credit. No Issuer shall be permitted or required to issue any Letter of
Credit if, after giving effect thereto, (i) the aggregate amount of all Letter
of Credit Outstandings would exceed the Letter of Credit Commitment Amount or
(ii) the sum of the Letter of Credit Outstandings plus the aggregate principal
amount of all Swing Line Loans and Revolving Loans then outstanding would exceed
the lesser of (x) the then existing Revolving Loan Commitment Amount and (y) the
then existing Borrowing Base Amount.
SECTION 2.1.6. RC/Arby's and Royal Crown. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
(a) RC/Arby's and Royal Crown shall not become "Borrowers" hereunder or under
any other Loan Document and the Subsidiaries of RC/Arby's and Royal Crown that
are expected to be Subsidiary Guarantors shall not become Subsidiary Guarantors
hereunder, under the Subsidiary Guaranty or under any other Loan Document, with
corresponding liabilities and entitlements pursuant hereto and thereto, until
the consummation of the RC/Arby's Notes Repayment, (b) RC/Arby's shall be
released as a Borrower and the Subsidiaries of RC/Arby's (to the extent provided
in the definition of Arby's Securitization Residual Payment) shall be released
as Subsidiary Guarantors in connection with the Arby's Securitization Residual
Payment and (c) Royal Crown shall be released as a Borrower and the Subsidiaries
of Royal Crown shall be released as Subsidiary Guarantors in connection with the
Royal Crown Disposition.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrowers may, from time to time on
any Business Day, voluntarily reduce the amount of the Swing Line Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount; provided, however, that all such reductions (i) shall be
permanent and (ii) to the extent such reduction in the Commitment Amount
requires a mandatory prepayment of Revolving Loans or Swing Line Loans pursuant
to clause (k) of Section 3.1.1 (x) in the case of prepayments of Base Rate Loans
(other than Swing Line Loans) shall require at least one Business Day's prior
notice to the Administrative Agent, and any partial reduction of any Commitment
Amount shall be in a minimum amount of $1,000,000 and in an integral multiple of
$500,000 or (y) in the case of prepayments of LIBO Rate Loans, shall require at
least three Business Days' prior notice to the Administrative Agent, and any
partial reduction of any Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any reduction of the
Revolving Loan Commitment Amount which reduces the Revolving Loan Commitment
Amount below (i) the Swing Line Loan Commitment Amount or (ii) the Letter of
Credit Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Letter of Credit
Commitment Amount (as directed by the Borrowers in a notice to the
Administrative Agent delivered together with the notice of such voluntary
reduction in the Revolving Loan Commitment Amount) to an aggregate amount not in
excess of the Revolving Loan Commitment Amount, as so reduced, without any
further action on the part of the Swing Line Lender or any Issuer.
SECTION 2.2.2. Mandatory. The Revolving Loan Commitment Amount,
the Swing Line Loan Commitment Amount and the Letter of Credit Commitment Amount
shall be reduced as set forth below.
(a) Following the prepayment or repayment in full of the
Term Loans, the Revolving Loan Commitment Amount shall, without
any further action, automatically and permanently be reduced on
the date and in the amount the Term Loans, if then outstanding,
would otherwise have been required to be prepaid with any Net
Debt Proceeds, Net Disposition Proceeds, Net Casualty Proceeds,
Net Equity Proceeds or Excess Cash Flow.
(b) Any reduction of the Revolving Loan Commitment Amount
which reduces the Revolving Loan Commitment Amount below (i) the
Swing Line Loan Commitment Amount or (ii) the Letter of Credit
Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Letter
of Credit Commitment Amount (as directed by the Borrowers in a
notice to the Administrative Agent) to an aggregate amount not in
excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Swing Line Lender
or any Issuer.
SECTION 2.3. Borrowing Procedures and Funding Maintenance.
Loans shall be made by the Lenders in accordance with this Section.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a
Borrowing Request to the Administrative Agent on or before 11:00 a.m., New York
time, on a Business Day, any Borrower may from time to time irrevocably request,
on not less than one (in the case of Base Rate Loans) or three (in the case of
LIBO Rate Loans) nor more than five (in each case) Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, and in the case of Base Rate
Loans, in a minimum amount of $1,000,000 and an integral multiple of $500,000,
or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 1:00 p.m., New York time, on such
Business Day each Lender shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
immediately available to the Borrower requesting the Loan by wire transfer or
otherwise to the accounts such Borrower shall have specified in its Borrowing
Request. No Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan. The Borrowing Request for the initial Credit
Extension hereunder may be delivered prior to the Closing Date.
SECTION 2.3.2. Swing Line Loans.
(a) By telephonic notice, promptly followed (within three
Business Days) by the facsimile delivery of a confirming
Borrowing Request, to the Swing Line Lender on or before 11:00
a.m., New York time, on a Business Day, any Borrower may from
time to time irrevocably request that Swing Line Loans be made by
the Swing Line Lender in an aggregate minimum principal amount of
$500,000 and an integral multiple of $100,000. Each request by
any Borrower for a Swing Line Loan shall constitute a
representation and warranty by the Borrowers that on the date of
such request and (if different) the date of the making of the
Swing Line Loan, both immediately before and after giving effect
to such Swing Line Loan and the application of the proceeds
thereof, the statements made in Section 5.2.1 are true and
correct. All Swing Line Loans shall be made as Base Rate Loans
and shall not be entitled to be converted into LIBO Rate Loans.
The proceeds of each Swing Line Loan shall be made available by
the Swing Line Lender, by its close of business, on the Business
Day telephonic notice is received by it as provided in the
preceding sentences in immediately available funds, to the
Borrower requesting the Loan by wire transfer or otherwise to the
accounts such Borrower shall have specified in its notice
therefor.
(b) The Swing Line Lender, at any time in its sole and
absolute discretion, may request each Lender that has a Revolving
Loan Commitment, and each such Lender, including the Swing Line
Lender hereby agrees, to make a Revolving Loan (which shall
always be initially funded as a Base Rate Loan) in an amount
equal to such Lender's Percentage of the amount of the Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date
such notice is given. On or before 11:00 a.m. (New York time) on
the first Business Day following receipt by each Lender of a
request to make Revolving Loans as provided in the preceding
sentence, each such Lender (other than the Swing Line Lender)
shall deposit in an account specified by the Administrative Agent
to the Lenders from time to time the amount so requested in same
day funds, whereupon such funds shall be immediately delivered to
the Swing Line Lender (and not a Borrower) and applied to repay
the Refunded Swing Line Loans. On the day such Revolving Loans
are made, the Swing Line Lender's Percentage of the Refunded
Swing Line Loans shall be deemed to be paid. Upon the making of
any Revolving Loan pursuant to this clause, the amount so funded
shall become due under such Lender's Revolving Note and shall no
longer be owed under the Swing Line Note. Each Lender's
obligation to make the Revolving Loans referred to in this clause
shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, any Borrower or
any other Person for any reason whatsoever; (ii) the occurrence
or continuance of any Default; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower or any other
Obligor, including a reduction in the Borrowing Base Amount
subsequent to the date of the making of any Swing Line Loan; (iv)
the acceleration or maturity of any Loans or the termination of
the Revolving Loan Commitment after the making of any Swing Line
Loan; (v) any breach of this Agreement by any Borrower or any
other Lender; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(c) In the event that (i) any of the Borrowers or any of
their respective Subsidiaries are subject to any bankruptcy or
insolvency proceedings as provided in Section 8.1.9 or (ii) the
Swing Line Lender otherwise requests, each Lender with a
Revolving Loan Commitment shall acquire without recourse or
warranty an undivided participation interest equal to such
Lender's Percentage of any Swing Line Loan otherwise required to
be repaid by such Lender pursuant to the preceding clause by
paying to the Swing Line Lender on the date on which such Lender
would otherwise have been required to make a Revolving Loan in
respect of such Swing Line Loan pursuant to the preceding clause,
in same day funds, an amount equal to such Lender's Percentage of
such Swing Line Loan, and no Revolving Loans shall be made by
such Lender pursuant to the preceding clause. From and after the
date on which any Lender purchases an undivided participation
interest in a Swing Line Loan pursuant to this clause, the Swing
Line Lender shall distribute to such Lender (appropriately
adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participation interest is
outstanding and funded) its ratable amount of all payments of
principal and interest in respect of such Swing Line Loan in like
funds as received; provided, however, that in the event such
payment received by the Swing Line Lender is required to be
returned to any Borrower, such Lender shall return to the Swing
Line Lender the portion of any amounts which such Lender had
received from the Swing Line Lender in like funds.
(d) Notwithstanding anything herein to the contrary, the
Swing Line Lender shall not be obligated to make any Swing Line
Loans if it has elected after the occurrence of a Default not to
make Swing Line Loans and has notified the Borrowers in writing
or by facsimile delivery of such election. The Swing Line Lender
shall promptly give notice to the Lenders of such election not to
make Swing Line Loans.
SECTION 2.4. Continuation and Conversion Elections. By deliver-
ing a Continuation/Conversion Notice to the Administrative Agent on or before
12:00 noon, New York time, on a Business Day, any Borrower may from time to time
irrevocably elect, on not less than one (in the case of a conversion of LIBO
Rate Loans to Base Rate Loans) and three (in the case of a continuation of
LIBO Rate Loans or a conversion of Base Rate Loans into LIBO Rate Loans) nor
more than five (in each case) Business Days' notice that all, or any portion
in an aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of the continuation of, or conversion into, LIBO Rate
Loans, or an aggregate minimum amount of $1,000,000 and an integral multiple
of $500,000 in the case of the conversion into Base Rate Loans (other than Swing
Line Loans as provided in clause (a) of Section 2.3.2) be, in the case of Base
Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans,
converted into a Base Rate Loan or continued as a LIBO Rate Loan (in the
absence of delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall,
on such last day, automatically convert to a Base Rate Loan); provided, how-
ever, that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of the relevant Lenders, and (y) no portion of the
outstanding principal amount of anyLoans may be continued as, or be converted
into, LIBO Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill
its obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrowers; provided, however,
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrowers to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility. In addition, the Borrowers
hereby consent and agree that, for purposes of any determination to be made for
purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that
each Lender elected to fund all LIBO Rate Loans by purchasing Dollar deposits in
its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the
Administrative Agent an Issuance Request on or before 12:00 noon, New York time,
on a Business Day, any Borrower may from time to time irrevocably request, on
not less than three nor more than ten Business Days' notice (or such other
notice period as may be acceptable to the Issuer in its sole discretion), in the
case of an initial issuance of a Letter of Credit, and not less than three nor
more than ten Business Days' notice prior to the then existing Stated Expiry
Date of a Letter of Credit (or such other notice period as may be acceptable to
the Issuer in its sole discretion), in the case of a request for the extension
of the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or
extend the Stated Expiry Date of, or amend, as the case may be, an irrevocable
Letter of Credit for such Borrower's account or for the account of any
wholly-owned U.S. Subsidiary of such Borrower that is a signatory to the
Subsidiary Guaranty and the Subsidiary Security Agreement and whose outstanding
Capital Stock is pledged to the Administrative Agent for the benefit of the
Lenders pursuant to the Subsidiary Pledge Agreement, in each case on a joint and
several basis for all Borrowers, in such form as may be requested by such Bor-
rower and approved by the Issuer, solely for the purposes described in Section
7.1.9. Notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrowers hereby acknowledge
and agree that each of them shall be obligated, jointly and severally, to ▇▇▇▇-
▇▇▇▇▇ the Issuer upon each Disbursement of any Letter of Credit, and they shall
all be deemed to be Obligors for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is a Borrower or a
wholly-owned U.S. Subsidiary of a Borrower). Upon receipt of an Issuance
Request, the Administrative Agent shall promptly notify the Issuer and each
Lender thereof and the Issuer shall, subject to the terms and conditions hereof,
including Article V, promptly (but in no event later than three Business Days
after such notification) issue a Letter of Credit. Each Letter of Credit shall
by its terms be stated to expire on a date (its "Stated Expiry Date") no later
than the earlier to occur of (i) five Business Days prior to the Revolving Loan
Commitment Termination Date and (ii) one year from the date of its issuance. The
Issuer will make available to the beneficiary thereof the original of each
Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of
each Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage to make Revolving Loans, and the Issuer shall be deemed to have
irrevocably granted and sold to such Lender a participation interest in such
Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Revolving Loan Commitment Percentage, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrowers in
accordance with Section 2.6.3. In addition, such Lender shall, to the extent of
its Percentage to make Revolving Loans, be entitled to receive a ratable portion
of the Letter of Credit fees payable pursuant to Section 3.3.3 with respect to
each Letter of Credit and of interest payable pursuant to Section 3.2 with
respect to any Reimbursement Obligation. To the extent that any Lender has
reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrowers or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The
Issuer will notify the Borrowers and the Administrative Agent promptly of the
presentment for payment of any Letter of Credit issued by the Issuer, together
with notice of the date (the "Disbursement Date") such payment shall be made
(each such payment, a "Disbursement"). Subject to the terms and provisions of
such Letter of Credit and this Agreement, the Issuer shall make such payment to
the beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon,
New York time, on the first Business Day following the Disbursement Date (the
"Disbursement Due Date"), the Borrowers shall be obligated, on a joint and
several basis, to reimburse the Administrative Agent, for the account of the
Issuer, for all amounts which the Issuer has disbursed under such Letter of
Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the Disbursement
Due Date), at a rate per annum equal to the rate per annum then in effect
with respect to overdue Revolving Loans (made as Base Rate Loans) pursuant
to Section 3.2.2 for the period from and including the Disbursement Due Date to
but excluding the date of such reimbursement; provided, however, that, if no
Default shall have then occurred and be continuing, unless any Borrower has
notified the Administrative Agent no later than one Business Day prior to the
Disbursement Due Date that it will reimburse the Issuer for the applicable Dis-
bursement, then the amount of the Disbursement shall be deemed to be a Revolving
Loan constituting a Base Rate Loan and following the giving of notice thereof by
the Administrative Agent to the Lenders, each Lender with a Revolving Loan
Commitment (other than the Issuer) will deliver to the Issuer on the Disburse-
ment Due Date immediately available funds in an amount equal to such Lender's
Percentage of such Revolving Loan. Each conversion of Disbursement amounts
into Revolving Loans shall constitute a representation and warranty by the
Borrowers that on the date of the making of such Revolving Loan all of the
statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrowers under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Base Rate Loan pursuant to Section 2.6.2, and, upon the failure of the Borrowers
to reimburse the Issuer and the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan
Commitment) obligation under Section 2.6.1 to reimburse the Issuer or fund its
Percentage of any Disbursement converted into a Base Rate Loan, shall be
absolute and uncondi tional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrowers or such
Lender, as the case may be, may have or have had against the Issuer or any such
Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the Issuer's
good faith opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; provided, however, that after paying in full its Reimbursement
Obligation hereunder, nothing herein shall adversely affect the right of the
Borrowers or such Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and
during the continuation of any Event of Default of the type described in Section
8.1.9 or, with notice from the Administrative Agent acting at the direction of
the Required Lenders, upon the occurrence and during the continuation of any
other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is
undrawn and available under all Letters of Credit issued and
outstanding shall, without demand upon or notice to the Borrowers
or any other Person, be deemed to have been paid or disbursed by
the Issuer under such Letters of Credit (notwithstanding that
such amount may not in fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
Borrowers of the obligations of the Borrowers under this Section,
the Borrowers shall be immediately obligated, jointly and
severally, to reimburse the Issuer for the amount deemed to have
been so paid or disbursed by the Issuer.
Any amounts so payable by the Borrowers pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrowers all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest at
the Federal Funds Rate, which have not been applied to the satisfaction of such
Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrowers
and, to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any Letter of Credit or any document submitted
by any party in connection with the application for and issuance
of a Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent
or forged;
(b) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or the proceeds thereof in whole or in
part, which may prove to be invalid or ineffective for any
reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter of
Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of
any document or draft required in order to make a Disbursement
under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrowers, each Obligor and each such
Lender, and shall not put the Issuer under any resulting liability to the
Borrowers, any Obligor or any such Lender, as the case may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of
the Borrowers to such Lender resulting from each Loan made by
such Lender to each such Borrower, including the amounts of
principal and interest payable and paid to such Lender from time
to time hereunder. In the case of a Lender that does not request,
pursuant to clause (b)(ii) below, execution and delivery of a
Note evidencing the Loans made by such Lender to each such
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent
in the Register (as defined below), be conclusive and binding on
the Borrowers absent demonstrable error; provided, however, that
the failure of any Lender to maintain such account or accounts
shall not limit or otherwise affect any Obligations of any
Borrower or any other Obligor.
(b) (i) Each Borrower hereby designates the Administrative
Agent to serve as its agent, solely for the purpose of this
clause (b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the
Loans made by each Lender to each Borrower and each repayment in
respect of the principal amount of the Loans of each Lender to
each Borrower and annexed to which the Administrative Agent shall
retain a copy of each Lender Assignment Agreement delivered to
the Administrative Agent pursuant to Section 10.11.1. Failure to
make any recordation, or any error in such recordation, shall not
affect the Borrowers' obligations in respect of such Loans. The
entries in the Register shall be conclusive, in the absence of
demonstrable error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and
as provided in clause (ii) the Note evidencing such Loan, if any)
is registered as the owner thereof for all purposes of this
Agreement, notwithstanding notice or any provision herein to the
contrary. A Lender's Commitment and the Loans made pursuant
thereto may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Lender's Commitment or
the Loans made pursuant thereto shall be registered in the
Register only upon delivery to the Administrative Agent of a
Lender Assignment Agreement duly executed by the Assignor there-
of. No assignment or transfer of a Lender's Commitment or
the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in
the Register by the Administrative Agent as provided in this
Section 2.7.
(ii) The Borrowers agree that, upon the request to the
Administrative Agent by any Lender, the Borrowers will execute
and deliver to such Lender, as applicable, a Note evidencing the
Loans made by such Lender. The Borrowers hereby irrevocably
authorize each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any
continuation of such grid), which notations, if made, shall
evidence, inter alia, the Borrower that has requested the Loan,
the date of, the outstanding principal amount of, and the
interest rate and Interest Period applicable to the Loans
evidenced thereby. Such notations shall, to the extent not
inconsistent with the notations made by the Administrative Agent
in the Register, be conclusive and binding on the Borrowers
absent demonstrable error; provided, however, that the failure of
any Lender to make any such notations shall not limit or
otherwise affect any Obligations of the Borrowers or any other
Obligor. The Loans evidenced by any such Note and interest
thereon shall at all times (including after assignment pursuant
to Section 10.11.1) be payable to the order of the payee named
therein and its registered assigns. Subject to the provisions of
Section 10.11.1, a Note and the obligation evidenced thereby may
be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the
obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part
of an obligation evidenced by a Note shall be registered in the
Register only upon surrender for registration of assignment or
transfer of the Note evidencing such obligation, accompanied by a
Lender Assignment Agreement duly executed by the parties thereto
and the compliance by the parties thereto with the other
requirements of Section 10.11.1, and thereupon, if requested by
the assignee, one or more new Notes shall be issued to the
designated assignee and the old Note shall be returned by the
Administrative Agent to the Borrowers marked "exchanged". No
assignment of a Note and the obligation evidenced thereby shall
be effective unless it shall have been recorded in the Register
by the Administrative Agent as provided in this Section.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrowers shall be
jointly and severally obligated to repay in full the unpaid principal amount of
each Loan upon the Stated Maturity Date therefor. Prior thereto, the Borrowers
jointly and severally acknowledge, covenant and agree that any Borrower:
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any
(i) Loans (other than Swing Line Loans); provided, how-
ever, that
(A) (1) subject to clause (b) of Section 3.1.2,
any such prepayment of Term A Loans, Term B Loans or
Term C Loans shall be made pro rata, based on
outstanding principal amount, among Term A Loans, Term B
Loans and Term C Loans, as applicable, of the same type
and, if applicable, having the same Interest Period of
all Lenders that have made such Term A Loans, Term B
Loans or Term C Loans, and (2) any such prepayment of
Revolving Loans shall be made pro rata among the
Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that have
made such Revolving Loans;
(B) with respect to Term B Loans and Term C Loans,
there shall be a prepayment fee on the principal amount
of Loans so prepaid,
(1) with respect to Term B Loans, of (x)
2.0% of the principal amount of such Loans prepaid
for any prepayment of such Loans made on or prior
to the first anniversary of the Closing Date, (y)
1.0% of the principal amount of such Loans prepaid
for any prepayment of such Loans made after the
first anniversary but on or prior to the second
anniversary of the Closing Date, and (z) 0%
thereafter; and
(2) with respect to Term C Loans, of (x)
3.0% of the principal amount of such Loans prepaid
for any prepayment of such Loans made on or prior
to the first anniversary of the Closing Date, (y)
1.5% of the principal amount of such Loans prepaid
for any prepayment of such Loans made after the
first anniversary but on or prior to the second
anniversary of the Closing Date, and (z) 0%
thereafter;
(C) the Borrowers shall comply with Section 4.4 in
the event that any LIBO Rate Loan is prepaid on any day
other than the last day of the Interest Period for such
Loan;
(D) all such voluntary prepayments of LIBO Rate
Loans shall require prior written notice to the
Administrative Agent by 11:00 a.m. (New York Time) at
least three Business Days prior to such prepayment;
(E) all such voluntary prepayments of Base Rate
Loans shall require (i) in the case of Term Loans at
least two but no more than five Business Days' prior
written notice to the Administrative Agent or (ii) in
the case of Revolving Loans at least one but no more
than five Business Days' prior written notice to the
Administrative Agent; and
(F) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate
minimum amount of $5,000,000 and an integral multiple of
$1,000,000 and, in the case of Base Rate Loans, in an
aggregate minimum amount of $1,000,000 and an integral
multiple of $500,000; or
(ii) Swing Line Loans, provided that (x) all such
voluntary prepayments shall require prior telephonic notice
to the Swing Line Lender on or before 1:00 p.m., New York
time, on the day of such prepayment (such notice to be
confirmed in writing within 24 hours thereafter) and (y) all
such voluntary prepayments shall be in an aggregate minimum
amount of $250,000 and an integral multiple of $100,000;
(b) shall, on each date when any reduction in the then
existing Borrowing Base Amount shall become effective, make a
mandatory prepayment of Revolving Loans and (if necessary) Swing
Line Loans and (if necessary) deposit with the Administrative
Agent cash collateral for Letter of Credit Outstandings, in an
aggregate amount equal to the excess, if any, of the aggregate,
outstanding principal amount of all Revolving Loans, Swing Line
Loans and Letter of Credit Outstandings over the then existing
Borrowing Base Amount, to be applied as set forth in Section
3.1.2;
(c) shall, no later than three Business Days following the
receipt of any Net Disposition Proceeds or Net Debt Proceeds by
Holdco or any of its Subsidiaries, deliver to the Administrative
Agent a calculation of the amount of such Net Disposition
Proceeds or Net Debt Proceeds, as the case may be, and make a
mandatory prepayment of the Term Loans in an amount equal to 100%
of such Net Disposition Proceeds or Net Debt Proceeds, as the
case may be, to be applied as set forth in Section 3.1.2;
provided, that no such mandatory prepayment of Net Disposition
Proceeds received in connection with clauses (b) or (e) of
Section 7.2.9 shall be required under this clause (c) if (i) such
Person notifies the Agents no later than 15 days following the
execution and delivery of a definitive agreement for the sale,
transfer or other disposition of such assets that it is such
Person's good faith intention to apply such Net Disposition
Proceeds toward the acquisition of replacement assets or other
assets or property used in the Business or the Capital Stock of a
Person that becomes a Subsidiary and is engaged in the Business
and (ii) such Person in fact so uses such Net Disposition
Proceeds within 180 days following the receipt by such Person of
Net Disposition Proceeds, or such Person executes and delivers a
definitive agreement within such 180-day period to use such Net
Disposition Proceeds within 270 days following the receipt by
such Person of Net Disposition Proceeds, to acquire such
replacement assets or other assets or property, or such Capital
Stock, with the amount of Net Disposition Proceeds unused after
such 180-day or 270-day period, as the case may be, being applied
to prepay the Loans pursuant to Section 3.1.2; provided, however,
that only the Net Disposition Proceeds from the first
$350,000,000 (as such amount may be increased pursuant to clause
(d)(iii) of Section 7.2.9) of gross cash proceeds received in
connection with the Arby's Securitization shall be applied as a
mandatory prepayment of the Term Loans, to be applied as set
forth in Section 3.1.2;
(d) shall, no later than five Business Days following the
delivery of the annual audited financial reports required
pursuant to clause (c) of Section 7.1.1 (beginning with the
financial reports delivered in respect of the 1999 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess
Cash Flow for the prior Fiscal Year and, no later than five
Business Days following the delivery of such calculation, make a
mandatory prepayment of the Term Loans in an amount equal to 75%
of Excess Cash Flow (if any) for such Fiscal Year (or in the case
of the 1999 Fiscal Year, the portion of such Fiscal Year
following the Closing Date, as determined in good faith by the
chief financial officer of Holdco) to be applied as set forth in
Section 3.1.2; provided, however, that the amount of such
prepayment shall be reduced to 50% of Excess Cash Flow if the
Leverage Ratio on the last day of such Fiscal Year is less than
4.0:1;
(e) shall, concurrently with the receipt of any Net Equity
Proceeds by Holdco or any of its Subsidiaries, deliver to the
Administrative Agent a calculation of the amount of such Net
Equity Proceeds, and no later than five Business Days following
the delivery of such calculation, make a mandatory prepayment of
the Term Loans in an amount equal to 50% of such Net Equity
Proceeds, to be applied as set forth in Section 3.1.2;
(f) shall, within 60 days following the receipt by Holdco or
any of its Subsidiaries of any Net Casualty Proceeds in excess of
$500,000 (individually or in the aggregate over the course of a
Fiscal Year), make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Casualty Proceeds, to be applied
as set forth in Section 3.1.2; provided, that no mandatory
prepayment of Net Casualty Proceeds shall be required under this
clause (f) (i) if such Person notifies the Agents no later than
60 days following the receipt of such Net Casualty Proceeds of
such Person's good faith intention to apply such Net Casualty
Proceeds to the rebuilding or replacement of such damaged,
destroyed or condemned assets or property and (ii) to the extent
such Person in fact uses such Net Casualty Proceeds to begin
rebuilding or replacing the damaged, destroyed or condemned
assets or property within 180 days following the receipt of such
Net Casualty Proceeds and continues diligently to complete such
rebuilding or replacement of such damaged, destroyed or condemned
assets or property within the time reasonably required therefore
(the "Rebuilding and Replacement Work"), with the amount of Net
Casualty Proceeds unused after the completion of such Rebuilding
and Replacement Work being applied to the Loans pursuant to
Section 3.1.2;
(g) shall, to the extent the Acquisition shall not have been
consummated on or prior to the Consummation Date, not later than
one Business Day after the Consummation Date, use the cash
proceeds that have been deposited in the Acquisition Escrow
Account to make a mandatory prepayment of the Term C Loans in an
amount equal to the amount of the cash proceeds deposited in the
Acquisition Escrow Account, to be applied as set forth in clause
(c) of Section 3.1.2;
(h) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term A Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such
period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Term A Principal
Quarterly Payment Date Repayment
---------------------- ---------
June 15, 1999 to March 15, 2000 $562,500
June 15, 2000 to March 15, 2001 $1,125,000
June 15, 2001 to March 15, 2002 $1,687,500
June 15, 2002 to March 15, 2003 $2,250,000
June 15, 2003 to Stated Maturity Date $2,812,500
TOTAL: $45,000,000
(i) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term B Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such
period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Term B Principal
Quarterly Payment Date Repayment
---------------------- ---------
June 15, 1999 to March 15, 2005 $312,500
June 15, 2005 to Stated Maturity Date $29,375,000
TOTAL: $125,000,000
(j) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term C Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such
period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Term C Principal
Quarterly Payment Date Repayment
---------------------- ---------
June 15, 1999 to March 15, 2006 $762,500
June 15, 2006 to Stated Maturity Date $70,912,500
TOTAL $305,000,000
(k) shall, on each date when a reduction in the Revolving
Loan Commitment Amount or the Swing Line Loan Commitment Amount
shall become effective pursuant to Section 2.2, make a mandatory
prepayment of Revolving Loans or Swing Line Loans (as the case
may be) and (if necessary) deposit with the Administrative Agent
cash collateral for Letter of Credit Outstandings in an aggregate
amount equal to the excess, if any, of the aggregate outstanding
principal amount of all Revolving Loans, Swing Line Loans and
Letter of Credit Outstandings over the Revolving Loan Commitment
Amount or Swing Line Loan Commitment Amount as so reduced; and
(l) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans or Obligations pursuant to Section 8.2
or Section 8.3, repay all Loans and provide the Administrative
Agent with cash collateral in an amount equal to the Letter of
Credit Outstandings, unless, pursuant to Section 8.3, only a
portion of all Loans and Obligations are so accelerated (in which
case the portion so accelerated shall be so prepaid or cash
collateralized with the Administrative Agent).
Each prepayment of any Loans made pursuant to this Section shall
be without premium or penalty, except as may be required by clause (a)(i)(B) of
this Section or Section 4.4.
SECTION 3.1.2. Application.
(a) Subject to clauses (b) and (c) below, each prepayment or
repayment of the principal of the Loans shall be applied, to the
extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second,
to the principal amount thereof being maintained as LIBO Rate
Loans.
(b) (i) Each voluntary prepayment of Term Loans and each
mandatory prepayment of Term Loans made pursuant to clauses (c)
(other than with respect to any prepayment resulting from the
Arby's Securitization or the Royal Crown Disposition), (d), (e),
and (f) of Section 3.1.1 shall be applied pro rata to the
prepayment of the outstanding principal amount of all
Term Loans, until paid in full, and (ii) each mandatory
prepayment of Term Loans made pursuant to clause (c) of Section
3.1.1 with respect to the Arby's Securitization or the Royal
Crown Disposition shall be applied to the prepayment of the
outstanding principal amount of all Term A Loans, until paid in
full, then applied pro rata to the mandatory prepayment of the
outstanding principal amount of all Term B Loans and Term C
Loans, with, in the case of each of clauses (i) and (ii), the
amount of such prepayment of the Term Loans being applied to the
applicable remaining Term Loan amortization payments required
pursuant to clauses (h), (i) and (j) of Section 3.1.1, in each
case pro rata in accordance with the amount of each such
remaining Term Loan amortization payment, until all such Term
Loans have been paid in full; provided, however, that (A) during
the first two years following the Closing Date, voluntary
prepayments of Term Loans may, at the Borrowers' discretion, be
applied to the outstanding principal amount of Term A Loans only,
and (B) with respect to any mandatory prepayment of Term Loans
made pursuant to clauses (c) (other than with respect to any
prepayment resulting from the Arby's Securitization or the Royal
Crown Disposition), (d), (e), and (f) of Section 3.1.1, any
Lender that has Term B Loans or Term C Loans outstanding may, by
delivering a notice to the Administrative Agent by 11:00 a.m.
(New York time), at least three Business Days prior to the date
that such mandatory prepayment is to be made in the case of Term
B Loans or Term C Loans that are LIBO Rate Loans or at least two
Business Days prior to the date that such mandatory prepayment is
to be made in the case of Term B Loans or Term C Loans that are
Base Rate Loans, elect not to have its pro rata share of such
Term Loans prepaid, and upon any such election the Administrative
Agent shall apply the amount that otherwise would have prepaid
such Lender's Term Loans to the prepayment of Term A Loans, until
paid in full, and then to the prepayment of outstanding Revolving
Loans, if any (without any corresponding reduction of the
Revolving Loan Commitment Amount), and then return any unused
amounts to the Borrowers. The Administrative Agent shall, no
later than two Business Days prior to the prepayment of a Term B
Loan or Term C Loan that is a LIBO Rate Loan or one Business Day
prior to the prepayment of a Term B Loan or Term C Loan that is a
Base Rate Loan, send a notice to each Lender detailing the
amounts each Lender is to receive on the date of such prepayment
and to which Loans such amounts shall apply.
(c) The prepayment of Term C Loans made pursuant to clause
(g) of Section 3.1.1 shall be applied to a mandatory prepayment
of the outstanding principal amount of all Term C Loans (with the
amount of such prepayment of the Term C Loans being applied to
the remaining Term C Loan amortization payments required pursuant
to clause (j) of Section 3.1.1, pro rata in accordance with the
amount of each such remaining Term C Loan amortization payment).
SECTION 3.1.3. Cash Collateral. In the event the amount of any
prepayment of Loans required to be made under clauses (c), (d), (e) or (f) of
Section 3.1.1 shall exceed the aggregate principal amount of such Loans which
are Base Rate Loans (the amount of any such excess being called the "Excess
Amount"), the Borrowers shall have the right, in lieu of making such prepayment
in full, to prepay all such outstanding Base Rate Loans when due and to deposit
on the date of the required prepayment an amount equal to the Excess Amount with
the Administrative Agent in a cash collateral account maintained by and in the
sole dominion and control of the Administrative Agent. Any amounts so deposited
shall be held by the Administrative Agent as collateral security for the
Obligations and applied to the prepayment of the applicable LIBO Rate Loans on
the earlier of 45 days from such deposit and the end of the current Interest
Periods applicable thereto. On any Business Day on which (a) collected amounts
remain on deposit in or to the credit of such cash collateral account after
giving effect to the payments made on such day pursuant to this Section 3.1.3
and (b) the Borrowers shall have delivered to the Administrative Agent a written
request or a telephonic request (which shall be promptly confirmed in writing)
that such remaining collected amounts be invested in the Cash Equivalent
Investments specified in such request, the Administrative Agent shall invest
such remaining collected amounts in such Cash Equivalent Investments on an
overnight basis; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrowers may elect
that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time
to time in effect plus the Applicable Margin for Base Rate Loans;
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin for LIBO Rate Loans; and
(c) with respect to Swing Line Loans, equal to the sum of
the Alternate Base Rate from time to time in effect plus the
Applicable Margin for Revolving Loans.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation (other than
overdue Reimbursement Obligations, which shall bear interest as provided in
Section 2.6.2) of the Borrowers shall have become due and payable, the Borrowers
shall be obligated, on a joint and several basis, to pay, but only to the extent
permitted by law, interest (after as well as before judgment) on such amounts at
a rate per annum equal to the Alternate Base Rate plus a margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan
shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial Borrowing
hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall
exceed three months, on the third month anniversary of such
Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion;
and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers, jointly and severally, agree
to pay the fees set forth in this Section 3.3. All such fees shall be non-
refundable.
SECTION 3.3.1. Commitment Fee. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent for the account of each
Lender that has a Revolving Loan Commitment, for the period (including any
portion thereof when any of its Commitments are suspended by reason of the
Borrowers' inability to satisfy any condition of Article V) commencing
on the Closing Date and continuing through the Revolving Loan
Commitment Termination Date, a commitment fee at the rate of the Applicable
Commitment Fee on such Lender's Percentage of the sum of the average daily
unused portion of the Revolving Loan Commitment Amount, whether or not then
available. Such commitment fees shall be payable in arrears on each Quarterly
Payment Date and on the Revolving Loan Commitment Termination Date. The making
of Swing Line Loans by the Swing Line Lender shall not constitute usage under
the Revolving Loan Commitment for the purpose of calculation of the commitment
fees to be paid by the Borrowers to the Lenders pursuant to this Section 3.3.1.
SECTION 3.3.2. Agents' and Arrangers' Fees. The Borrowers,
jointly and severally, agree to pay to each of the Agents and each Arranger for
their own respective accounts, the non-refundable fees in the amounts and on the
dates set forth in the Fee Letters.
SECTION 3.3.3. Letter of Credit Fees. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent, for the pro rata account of
the Issuer and each Lender that has a Revolving Loan Commitment, a Letter of
Credit fee for each day on which there shall be any Letters of Credit
outstanding on the aggregate undrawn amount of all Letters of Credit outstanding
on such day, at a rate per annum equal to the Applicable Margin for such day for
Revolving Loans that are maintained as LIBO Rate Loans. The Borrowers further,
jointly and severally, agree to pay to the Issuer for its own account, for each
day on which there shall be any Letters of Credit outstanding, an issuance fee
in an amount equal to 1/4 of 1% per annum of the Stated Amount of such Letters
of Credit. All such fees shall be payable in arrears on each Quarterly Payment
Date and on the Revolving Loan Commitment Termination Date for any period then
ending for which such fee shall not theretofore have been paid, commencing on
the first such date after the issuance of such Letter of Credit.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall in
good faith determine (which determination shall, upon notice thereof to the
Borrowers and the Lenders, be conclusive and binding on the Borrowers) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan of a certain type, the obligation of
such Lender to make, continue, maintain or convert into any such Loans shall,
upon such determination, forthwith be suspended until such Lender shall notify
the Administrative Agent that the circumstances causing such suspension no
longer exist, and all LIBO Rate Loans of such type shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent
shall have reasonably determined that
(a) Dollar certificates of deposit or Dollar deposits, as
the case may be, in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in
its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO Rate
Loans of such type,
then, upon notice from the Administrative Agent to the Borrowers and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans of
such type shall forthwith be suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist. The Administrative Agent agrees to withdraw any such
notice as soon as reasonably practicable after there is a change in
circumstances which makes such notice inapplicable.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrowers,
jointly and severally, agree to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans as, or of converting (or of
its obligation to convert) any Loans into, LIBO Rate Loans. Such Lender shall
promptly notify the Administrative Agent and the Borrowers in writing of the
occurrence of any such event, such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
Lender for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrowers, and the Borrowers hereby acknowledge and agree that
they are jointly and severally liable to pay such additional amounts, directly
to such Lender within five days of its receipt of such notice, and such notice
shall, in the absence of demonstrable error, be conclusive and binding on the
Borrowers.
SECTION 4.4. Funding Losses. In the event any Lender shall incur
any loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
LIBO Rate Loans in accordance with the Continuation/Conversion
Notice therefor,
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers shall, and the Borrowers hereby
acknowledge and agree that they are jointly and severally liable to pay, within
five days of its receipt thereof, directly to such Lender such amount as will
(in the reasonable determination of such Lender) reimburse such Lender for such
loss or expense. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of demonstrable error, be conclusive
and binding on the Borrowers.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender (including as Issuer) or any
Person controlling such Lender, and such Lender determines (in its reasonable
business judgement) that the rate of return on its or such controlling Person's
capital as a consequence of its Commitments, issuance of or participation in
Letters of Credit or the Loans made by such Lender is reduced to a level below
that which such Lender or such controlling Person could have achieved but for
the occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender to the Borrowers, the Borrowers shall be jointly and
severally obligated to immediately pay directly to such Lender additional
amounts sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of demonstrable error, be conclusive and binding
on the Borrowers. In determining such amount, such Lender may use any method of
averaging and attribution that it (in its reasonable business judgement) shall
deem applicable.
SECTION 4.6. Taxes.
(a) All payments by a Borrower of principal of, and interest
on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding
franchise taxes and taxes imposed on or measured by any Lender's
net income or receipts, in the case of each such exclusion as a
result of a connection between such Lender and the relevant
taxing jurisdiction other than solely by reason of such Lender
having performed its obligations under this Agreement or any Note
(not including by having a lending or similar office in the rele-
vant taxing jurisdiction) (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any
payment to be made by a Borrower hereunder is required in respect
of any Taxes pursuant to any applicable law, rule or regulation,
then the Borrowers shall be jointly and severally obligated to
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such
authority; and
(iii) pay to the Administrative Agent for the account of
the Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by
each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against any Agent or any Lender
with respect to any payment received by any such Agent or such Lender hereunder,
such Agent or such Lender may pay such Taxes and the Borrowers shall be jointly
and severally obligated to promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such Person would have received
had not such Taxes been asserted.
(b) Notwithstanding any other provision of this Section 4.6,
(i) the Borrowers shall not be required to pay any amounts
pursuant to this Section 4.6 in respect of U.S. federal
withholding taxes (other than to the extent imposed as a result
of a change in law enacted after the date hereof) and (ii) the
Borrowers shall have no obligation to make any greater payment
under this Section 4.6 to or with respect to any Assignee Lender
than the Borrowers would have been obligated to make to or with
respect to the relevant assignor or transferor Lender with
respect to the rights assigned or transferred (other than as a
result of a change in law enacted after the time of the
assignment or transfer).
(c) If any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of the respective Lenders,
the required receipts or other required documentary evidence, the
Borrowers shall, jointly and severally, indemnify the Lenders for
any incremental Taxes, interest or penalties that may become
payable by any Lender as a result of any such failure. For
purposes of this Section 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrowers.
(d) Each Lender shall, prior to the due date of any payments
in respect of the Loans, execute and deliver to the Borrowers and
the Administrative Agent, one or more (as the Borrowers or the
Administrative Agent may reasonably request) (i) either (x) if
such Lender is organized under the laws of a jurisdiction other
than the United States or a State thereof, then (x) if such
Lender is a "bank" within the meaning of Section 881(c)(3)(A) of
the Code, (A) United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and (B)
United States Internal Revenue Service Form W-8, or successor
applicable form, as the case may be or, if such Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and
is claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Lender delivers a
Form W-8, a certificate representing that such Lender is not a
bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of any Borrower and is not a controlled
foreign corporation related to any Borrower (within the meaning
of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Lender claiming complete exemption from, or a
reduced rate of, U.S. Federal withholding tax on payments of
interest by any Borrower under this Agreement and the other Loan
Documents; or (y) if such Lender is organized under the laws of
the United States or a State thereof, then United States Internal
Revenue Service Form W-9, or successor applicable form, as the
case may be, and (ii) copies of replacements of any such forms on
or before the date that any such forms expire or after the
occurrence of any event requiring a change in the most recent
form previously delivered by it hereunder. Each Person that shall
become a Lender shall, upon the effectiveness of the related
transfer, be required to provide all of the forms required
pursuant to this Section 4.6.
(e) To the extent that any Borrower pays any indemnity
payment or additional amount pursuant to Section 4.6(a) and any
Lender receives a refund of the Tax that such Lender determines,
in its good faith judgment, is allocable to any or all such sums,
then such Lender shall promptly pay over all such refunded sums
to such Borrower. Nothing in this Section 4.6 shall require a
Lender to disclose or detail the basis of its determination of
the amount of any such refund that is allocable to an indemnity
payment or additional amount paid by any Borrower hereunder, or
otherwise to disclose to any Borrower its tax returns or other
confidential or proprietary fiscal information.
(f) Any Lender claiming any indemnity payment or additional
amounts payable pursuant to this Section 4.6 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to
file any certificate or document reasonably requested in writing
by the Borrowers or to change the jurisdiction of its applicable
lending office if the making of such a filing or change would
avoid the need for or reduce the amount of any such indemnity
payment or additional amounts that may thereafter accrue and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 4.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments by or on behalf of each Borrower pursuant to
this Agreement or any other Loan Document shall be made by such Borrower to the
Administrative Agent for the pro rata account of the Lenders entitled to receive
such payment. All such payments required to be made to the Administrative Agent
shall be made, without setoff, deduction or counterclaim, not later than 11:00
a.m., New York time, on the date due, in same day or immediately available
funds, to such account as the Administrative Agent shall specify from time to
time by notice to the Borrowers. Funds received after that time shall be deemed
to have been received by the Administrative Agent on the next succeeding
Business Day. The Administrative Agent shall promptly remit in same day funds to
each Lender its share, if any, of such payments received by the Administrative
Agent for the account of such Lender. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in the case of interest on a Base
Rate Loan (other than when calculated with respect to the Federal Funds Rate),
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms of
Sections 4.3, 4.4 and 4.5) or Letter of Credit in excess of its pro rata share
of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participation in Loans made by them and/or
Letters of Credit as shall be necessary to cause such purchasing Lender to share
the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment
to the purchasing Lender
to
--
(b) the total amount so recovered from the purchasing
Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of
any Default described in clauses (a) through (d) of Section 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence and during the continuation
of any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), and (as
security for such Obligations) such Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of each Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrowers and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. Change of Lending Office. Each Lender agrees that,
if it makes any demand for payment under Section 4.3, 4.4, 4.5 or 4.6, or if any
adoption or change of the type described in Section 4.1 shall occur with respect
to it, it will, if requested by the Borrowers, use its reasonable efforts
(consistent with its internal policy and economic, legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce the need for the Borrowers to make
payments under Section 4.3, 4.4, 4.5 or 4.6, or would eliminate or reduce the
effect of any adoption or change of the type described in Section 4.1.
SECTION 4.11. Replacement of Lenders. If any Lender (a "Subject
Lender") makes demand upon the Borrowers for (or if the Borrowers are otherwise
required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice
pursuant to Section 4.1 requiring conversion of such Subject Lender's LIBO Rate
Loans to Base Rate Loans or suspending such Subject Lender's obligation to make
Loans as, or to convert Loans into, LIBO Rate Loans, the Borrowers may, within
30 days of receipt by the Borrowers of such demand or notice (or the occurrence
of such other event causing the Borrowers to be required to pay such
compensation), as the case may be, give notice (a "Replacement Notice") in
writing to the Agents and such Subject Lender of its intention to replace such
Subject Lender with a financial institution (a "Replacement Lender") designated
in such Replacement Notice. If the Agents shall, in the exercise of their
reasonable discretion and within 30 days of their receipt of such Replacement
Notice, notify the Borrowers and such Subject Lender in writing that the
Replacement Lender is satisfactory to the Agents (such consent not being
required where the Replacement Lender is already a Lender), then such Subject
Lender shall, subject to the payment of any amounts due pursuant to Section 4.4,
assign, in accordance with Section 10.11.1, all of its Commitments, Loans, Notes
and other rights and obligations under this Agreement and all other Loan
Documents (including, without limitation, Reimbursement Obligations) to such
Replacement Lender; provided, however, that (i) such assignment shall be without
recourse, representation or warranty and shall be on terms and conditions
reasonably satisfactory to such Subject Lender and such Replacement Lender and
(ii) the purchase price paid by such Replacement Lender shall be in the amount
of such Subject Lender's Loans and its Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (including the amounts demanded and unreimbursed
under Section 4.3, 4.5 and 4.6), owing to such Subject Lender hereunder. Upon
the effective date of an assignment described above, the Borrowers shall issue
replacement Note(s) (to the extent such Replacement Lender shall have requested
replacement Note(s) pursuant to Sections 2.7 and 10.11.1) to such Replacement
Lender and such institution shall become a "Lender" for all purposes under this
Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1. Initial Credit Extension. The obligations of the
Lenders to make the initial Credit Extension shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Arrangers shall have
received from each Obligor (other than RC/Arby's and its Subsidiaries) a
certificate, dated the Closing Date, of its Secretary, Assistant Secretary,
general partner or member or manager, as applicable, as to (i) resolutions of
its board of directors (or other managing body, in the case of an entity other
than a corporation) or committee of such board of directors or managing body
then in full force and effect authorizing the execution, delivery and per-
formance of this Agreement and each other Loan Document to be executed by it,
and (ii) the incumbency and signatures of those of its officers or members
authorized to act with respect to this Agreement and each other Loan
Document executed by it, upon which certificate each Arranger, each Agent,
each Lender and each Issuer may conclusively rely until it shall have received
a further certificate of the Secretary, Assistant Secretary, general partner,
member or manager, as applicable, of an Obligor canceling or amending such
prior certificate with respect to such Obligor.
SECTION 5.1.2. Delivery of Notes. The Arrangers shall have
received, for the account of each Lender that shall have requested a Note or
Notes not less than three Business Days prior to the Closing Date, such Lender's
Notes duly executed and delivered by the Borrowers.
SECTION 5.1.3. Transaction Consummated. The Arrangers shall have
received evidence satisfactory to each of them that all actions necessary to (i)
consummate the Refinancing, (ii) establish and fund, in full, the RC/Arby's
Notes Repayment Pledge Account and the Acquisition Escrow Account, (iii)
consummate the Subordinated Notes Offering from which Holdco and Triarc Beverage
shall receive gross proceeds of at least $300,000,000 and (iv) make the Triarc
Dividend (to the extent to be made on the Closing Date) shall have been taken or
completed in accordance with applicable law and the applicable Transaction
Documents.
SECTION 5.1.4. Closing Date Certificate. The Arrangers shall have
received, with counterparts for each Lender, the Closing Date Certificate, dated
the Closing Date and duly executed and delivered by the president, the chief
executive, financial or accounting (or equivalent) Authorized Officer of each
Borrower, in which certificate each Borrower shall agree and acknowledge that
the statements made therein shall be deemed to be true and correct
representations and warranties of the Borrowers made as of such date, and, at
the time of delivery of such certificate, such statements shall in fact be true
and correct in all material respects, together with all documents required to be
attached thereto.
SECTION 5.1.5. Transaction Documents, etc. The Arrangers shall
have received fully executed copies of the Transaction Documents executed before
or as of the Closing Date and drafts of the Transaction Documents to be executed
after the Closing Date (together with certified executed copies as soon as
available, which shall in each case not be materially different than such
drafts), and, with respect to executed Transaction Documents, certified to be
true and complete by an Authorized Officer of each Borrower. As of the Closing
Date, the executed Transaction Documents shall have been in full force and
effect and shall not have been modified or waived in any material respect, nor
shall there have been any forbearance to exercise any material rights with
respect to any of the terms or provisions relating to the conditions to the
consummation of the Transaction set forth in the Transaction Documents unless
otherwise agreed to by the Arrangers.
SECTION 5.1.6. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Credit
Extension); and all Liens securing payment of any such Indebtedness have been
released and the Arrangers shall have received all UCC Form UCC-3 termination
statements or other instruments as may be suitable or appropriate in connection
therewith.
SECTION 5.1.7. Subsidiary Guaranty. The Arrangers shall have
received executed counterparts of the Subsidiary Guaranty, dated as of the
Closing Date, duly executed by an Authorized Officer of each Subsidiary
Guarantor (other than Subsidiaries of RC/Arby's) in existence on the Closing
Date (after giving effect to the Transaction).
SECTION 5.1.8. Pledge Agreements. The Arrangers shall have re-
ceived executed counterparts of
(a) the Holdco/Triarc Beverage Guaranty and Pledge
Agreement, dated as of the Closing Date, duly executed by an
Authorized Officer of each of Holdco and Triarc Beverage,
together with
(i) certificates evidencing all of the issued and
outstanding shares of Capital Stock of Triarc Beverage,
Snapple, Mistic and Cable Car, which certificates shall in
each case be accompanied by undated stock powers duly
executed in blank; and
(ii) all Pledged Notes (as defined in such Pledge
Agreement), if any, evidencing Indebtedness payable to
Holdco and Triarc Beverage, accompanied by undated note
powers duly executed in blank, together with UCC financing
statements (Form UCC-1) (or similar instruments) in respect
of such Pledged Notes executed by each payee of a Pledged
Note to be filed in such jurisdictions as the Agents may
reasonably request;
(b) the Borrower Pledge Agreement, dated as of the Closing
Date, duly executed by an Authorized Officer of each Borrower,
together with
(i) certificates evidencing (A) all of the issued and
outstanding shares of Capital Stock of each direct U.S.
Subsidiary of each Borrower (other than Subsidiaries of
RC/Arby's) and (B) 65% of the total combined voting power of
all classes of Capital Stock entitled to vote of each direct
non-U.S. Subsidiary of each Borrower, in each case
accompanied by undated stock powers duly executed in blank;
and
(ii) all Pledged Notes (as defined in such Pledge
Agreement), if any, evidencing Indebtedness payable to the
Borrowers, accompanied by undated note powers duly executed
in blank, together with UCC financing statements (Form
UCC-1) (or similar instruments) in respect of such Pledged
Notes executed by each payee of a Pledged Note to be filed
in such jurisdictions as the Agents may reasonably request;
(c) the Subsidiary Pledge Agreement, dated as of the Closing
Date, duly executed by an Authorized Officer of each Subsidiary
Guarantor (other than Subsidiaries of RC/Arby's) in existence on
the Closing Date (after giving effect to the Transaction) which
in turn has any Subsidiary or Subsidiaries, together with
(i) certificates evidencing (A) all of the issued and
outstanding shares of Capital Stock of each direct U.S.
Subsidiary of each Subsidiary Guarantor and (B) 65% of the
total combined voting power of all classes of Capital Stock
entitled to vote of each direct non-U.S. Subsidiary of each
Subsidiary Guarantor, in each case accompanied by undated
stock powers duly executed in blank; and
(ii) all Pledged Notes (as defined in such Pledge
Agreement), if any, evidencing Indebtedness payable to such
Subsidiary Guarantors, accompanied by undated note powers
duly executed in blank, together with UCC financing
statements (Form UCC-1) (or similar instruments) in respect
of such Pledged Notes executed by each payee of a Pledged
Note to be filed in such jurisdictions as the Agents may
reasonably request;
provided, however, that if any securities pledged pursuant to a Pledge Agreement
are uncertificated securities, the Arrangers shall have received confirmation
and evidence satisfactory to each of them that appropriate book entries have
been made in the relevant books or records of a financial intermediary or the
issuer of such securities, as the case may be, or other appropriate steps have
been taken under applicable law resulting in the perfection of the security
interest granted in favor of the Administrative Agent in such securities
pursuant to the terms of the applicable Pledge Agreement.
SECTION 5.1.9. Security Agreements. The Arrangers shall have
received executed counterparts of the Borrower Security Agreement and the Sub-
sidiary Security Agreement, each dated as of the Closing Date, duly executed by
the applicable Obligors, together with
(a) acknowledgment copies of properly filed UCC financing
statements (Form UCC-1) or such other evidence of filing as may
be acceptable to the Arrangers, naming such Obligors as the
debtors and the Administrative Agent (on behalf of the Secured
Parties) as the secured party, or other similar instruments or
documents, filed under the UCC of all jurisdictions as may be
necessary or, in the opinion of the Arrangers, desirable to
perfect the security interest of the Administrative Agent
pursuant to the Security Agreements;
(b) executed copies of proper UCC termination statements
(Form UCC-3), if any, necessary to release all Liens (other than
Liens permitted to exist under the Loan Documents) of any Person
(i) in any collateral described in the Security Agree-
ments previously granted by any Person, and
(ii) securing any of the Indebtedness identified in Item
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure
Schedule,
together with such other UCC termination statements (Form UCC-3)
as the Arrangers may reasonably request from such Obligors; and
(c) certified copies of UCC Requests for Information or
Copies (Form UCC-11), or a similar search report certified by a
party acceptable to the Arrangers, dated a date reasonably near
to the Closing Date, listing all effective financing statements
which name such Obligors (under their present names and any
previous names) as the debtors and which are filed in the
jurisdictions in which filings were made pursuant to clause (a)
above, together with copies of such financing statements.
SECTION 5.1.10. UCC Filing Service. All UCC financing statements
(Form UCC-1), termination statements (Form UCC-3) or other similar financing
statements required pursuant to the Loan Documents (collectively, the "Filing
Statements") shall have been delivered to CT Corporation System or another
similar filing service company reasonably acceptable to the Arrangers (the
"Filing Agent"). The Filing Agent shall have acknowledged in writing reasonably
satisfactory to the Arrangers and their counsel (i) the Filing Agent's receipt
of all such Filing Statements, (ii) that such Filing Statements have either been
submitted for filing with appropriate filing offices therefor or will be
submitted for filing in such appropriate offices within 10 days of the Closing
Date and (iii) that the Filing Agent will notify the Arrangers and their counsel
of the result of such submissions within 30 days of the Closing Date.
SECTION 5.1.11. Financial Information, etc. The Arrangers shall
have received, with counterparts for each Lender,
(a) (i) the audited consolidated income and cash flow
statements and balance sheets of RC/Arby's for the fiscal years
ended December 31, 1995 (with respect to the income and cash flow
statements only), December 31, 1996 and December 28, 1997, and of
Triarc Beverage for the fiscal year ended December 28, 1997;
(ii) the audited combined income and cash flow statements and
balance sheets of Holdco, RC/Arby's, Triarc Beverage and Cable
Car and their respective Subsidiaries for the fiscal years ended
December 31, 1995 (with respect to the income and cash flow
statements only), December 31, 1996 and December 28, 1997;
(iii) the unaudited combined income and cash flow statements
and balance sheet of Holdco, RC/Arby's, Triarc Beverage and
Cable Car and their respective Subsidiaries for the nine month
period ended September 27, 1998; (iv) the unaudited consolidated
income and cash flow statements and balance sheets of each of
RC/Arby's, Triarc Beverage and Cable Car for the nine month
period ended September 27, 1998; and (v) the unaudited internal
consolidated income statements and balance sheets of each of
Arby's and Royal Crown for the nine month period ended September
27, 1998;
(b) a pro forma combined balance sheet of Holdco and its
Subsidiaries as of November 22, 1998 (the "Pro Forma Balance
Sheet"), certified by the chief financial Authorized Officer of
Holdco, giving effect to the consummation of the Transaction and
reflecting the proposed legal and capital structures of Holdco
and its Subsidiaries, which legal and capital structures shall be
satisfactory in all respects to the Arrangers; and
(c) a Borrowing Base Certificate calculated as of January
31, 1999.
SECTION 5.1.12. Solvency, etc. The Arrangers shall have received
(a) an opinion letter from Valuation Research Corporation or
another independent valuation firm reasonably satisfactory to the
Arrangers, addressed to the Arrangers, the Agents and the Lenders
and dated the Closing Date, as to the solvency of each of Holdco
and its Subsidiaries, taken as a whole, and the Beverage
Companies and their respective Subsidiaries, taken as a whole,
immediately after giving effect to the Transaction and the
initial Credit Extension, which opinion letter shall be in form,
substance and scope reasonably satisfactory to the Arrangers; and
(b) a Solvency Certificate, dated the Closing Date, in form
and substance reasonably satisfactory to the Arrangers, duly
executed by the president, the chief executive or the chief
financial Authorized Officer of Holdco.
SECTION 5.1.13. Opinions of Counsel. The Arrangers shall have
received opinions, addressed to the Arrangers, the Agents and the Lenders, from
(a) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Obligors, in form and substance reasonably satisfactory to the
Arrangers;
(b) Fish & Neave, intellectual property counsel to the
Obligors, in form and substance reasonably satisfactory to the
Arrangers; and
(c) Sonnenschein, Nath & ▇▇▇▇▇▇▇▇▇, California counsel to
the Obligors, in form and substance reasonably satisfactory to
the Arrangers;
(d) Holland & Knight, Florida counsel to the Obligors, in
form and substance reasonably satisfactory to the Arrangers;
(e) Piper & Marbury, Maryland counsel to the Obligors, in
form and substance reasonably satisfactory to the Arrangers;
(f) Kirkpatrick, Lockhart, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇,
Pennsylvania counsel to the Obligors, in form and substance
reasonably satisfactory to the Arrangers;
(g) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Michigan counsel to the
Obligors, in form and substance reasonably satisfactory to the
Arrangers;
(h) ▇▇▇▇▇, Danzig, Scherer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New
Jersey counsel to the Obligors, in form and substance reasonably
satisfactory to the Arrangers; and
(i) ▇▇▇▇ ▇▇▇▇▇, General Counsel to certain of the Obligors,
in form and substance reasonably satisfactory to the Arrangers.
SECTION 5.1.14. Reliance Letters. The Arrangers shall have
received reliance letters, each dated the Closing Date and addressed to the
Arrangers, the Agents and the Lenders, in respect of each of the legal opinions
delivered by issuers' counsel in connection with the Subordinated Notes
Offering.
SECTION 5.1.15. Insurance. The Arrangers shall have received
evidence satisfactory to each of them of the existence of insurance maintained
in compliance with Section 7.1.4 (including all endorsements included therein),
and the Administrative Agent shall be named additional insured or loss payee, on
behalf of the Secured Parties, in respect of all proceeds payable in respect of
such insurance, pursuant to documentation reasonably satisfactory to the
Arrangers.
SECTION 5.1.16. RC/Arby's Notes Repayment. The Arrangers shall
have received evidence satisfactory to each of them that, in connection with the
RC/Arby's Notes Repayment, (i) notice thereof has been properly delivered to the
trustee on behalf of the holders of the RC/Arby's Notes, (ii) sufficient funds
therefor have been placed in the RC/Arby's Notes Repayment Pledge Account in
accordance with the terms of the RC/Arby's Notes Repayment Pledge Agreement,
(iii) the date of the RC/Arby's Notes Repayment in such notice is a date
occurring no later than 35 days subsequent to the Closing Date, and (iv) the
Administrative Agent, on behalf of the Secured Parties, shall have received a
first priority, perfected security interest in the amounts held in the RC/Arby's
Notes Repayment Pledge Account.
SECTION 5.1.17. Closing Fees, Expenses, etc. The Arrangers shall
have received for their own accounts, or for the account of each Lender, as the
case may be, all fees, costs and expenses due and payable under the Fee Letters
or pursuant to Sections 3.3 and 10.3, if then invoiced.
SECTION 5.2. All Credit Extensions. The obligation of each Lender
to make any Credit Extension (including the initial Credit Extension) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension, the following statements
shall be true and correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.7) and in
each other Loan Document shall be true and correct in all
material respects with the same effect as if then made (unless
stated to relate solely to an early date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) (i) except as disclosed by the Borrowers to the Agents
and the Lenders pursuant to Section 6.7(i), no labor controversy,
litigation, arbitration, action or governmental investigation or
proceeding shall be pending or, to the knowledge of any Borrower,
overtly threatened against any Borrower or any of its
Subsidiaries, or any of their respective properties, which could
reasonably be expected to have a Material Adverse Effect, and
(ii) no development shall have occurred in any labor controversy,
litigation, arbitration, action or governmental investigation or
proceeding disclosed pursuant to Section 6.7 which could
reasonably be expected to have a Material Adverse Effect;
(c) the sum of (x) the aggregate outstanding principal
amount of all Revolving Loans and Swing Line Loans and (y) the
Letter of Credit Outstandings does not exceed the lesser of the
Revolving Loan Commitment Amount (as then in effect) or the then
existing Borrowing Base Amount; and
(d) no Default shall have then occurred and be continuing,
and no Borrower or any other Material Obligor is in material
violation of any material law or governmental regulation or court
order or decree.
SECTION 5.2.2. Credit Extension Request. The Administrative Agent
shall have received a Borrowing Request or an Issuance Request, as the case may
be, for such Credit Extension. Each of the delivery of a Borrowing Request or an
Issuance Request and the acceptance by the applicable Borrower of the proceeds
of the Borrowing or the issuance of the Letter of Credit, as applicable, shall
constitute a representation and warranty by the Borrowers that on the date of
such Borrowing (both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) or the issuance of the
Letter of Credit, as applicable, the statements made in Section 5.2.1 are true
and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrowers or any of their
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Arrangers and their counsel; and the Arrangers and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Arrangers or their counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuers and the Agents to
enter into this Agreement and to make Loans and issue Letters of Credit
hereunder, the Borrowers jointly and severally represent and warrant unto the
Agents, each Issuer, and each Lender as set forth in this Article VI.
SECTION 6.1. Organization, etc. Each Borrower and each of its
Subsidiaries is validly organized and existing and in good standing under the
laws of the jurisdiction of its organization (except no representation is made
as to the good standing of any Subsidiary organized under the laws of any
jurisdiction in which there is no concept of good standing), is duly qualified
to do business and is in good standing as a foreign entity in each jurisdiction
where the nature of its business requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect, and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its
Obligations under this Agreement and each other Loan Document to which it is a
party and to own and hold under lease its property and to conduct its business
substantially as currently conducted by it, except where the failure to hold
such governmental licenses, permits and approvals could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Borrower of this Agreement and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it and each such other Obligor's participation in the
consummation of the Transaction are within each such Borrower's and each such
Obligor's powers, have been duly authorized by all necessary corporate or
limited liability company action, and do not
(a) contravene such Borrower's or any such Obligor's Or-
ganic Documents;
(b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting such Borrower or any such Obligor; or
(c) result in, or require the creation or imposition of, any
Lien (other than Liens permitted under the Loan Documents) on any
of such Borrower's or any other Obligor's properties.
SECTION 6.3. Government Approval, Regulation, etc. No material
authorization or approval or other action by, and no material notice to or
filing with, any governmental authority or regulatory body or other Person is
required for the due execution, delivery or performance by any Borrower or any
other Obligor of this Agreement or any other Loan Document to which it is a
party, or for such Borrower's and each such other Obligor's participation in the
consummation of the Transaction (and, on the Closing Date, only with respect to
the parts of the Transaction to be completed on or prior to the Closing Date),
except as have been duly obtained or made and are in full force and effect. None
of the Borrowers nor any of their Subsidiaries is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and each
Loan Document executed by each Borrower will, on the due execution and delivery
thereof, constitute the legal, valid and binding obligations of such Borrower
enforceable in accordance with their respective terms; and each Loan Document
executed pursuant hereto by each other Obligor will, on the due execution and
delivery thereof by such Obligor, be the legal, valid and binding obligation of
such Obligor enforceable in accordance with its terms, in each case subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
SECTION 6.5. Financial Information. Each of the financial
statements delivered pursuant to clauses (a) and (b) of Section 5.1.11 has been
prepared in accordance with GAAP consistently applied (other than clause (a)(v)
of Section 5.1.11), and presents fairly the consolidated financial condition of
the Persons covered thereby as at the date thereof or the results of their
operations for the periods then ended, subject in the case of interim financial
statements to the lack of footnotes and to normal year end audit adjustments.
SECTION 6.6. No Material Adverse Effect. Since December 31, 1997,
there has been no event, circumstance or condition which could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of any Borrower, overtly threatened labor
controversy, litigation, arbitration, action or governmental investigation or
proceeding affecting any Borrower or any of its Subsidiaries, or any of their
respective properties, businesses, assets or revenues which (i) would contest
the consummation of the Transaction or (ii) could reasonably be expected to have
a Material Adverse Effect, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule. No materially adverse development has occurred in any labor
controversy, litigation, arbitration, action or governmental investigation or
proceeding disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrowers have no Subsidiaries,
except those Subsidiaries (i) which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule, or (ii) which are created or
permitted to have been acquired in accordance with Section 7.2.5.
SECTION 6.9. Ownership of Properties. Each Borrower and each of
its Subsidiaries owns good and marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like) other than any Lien,
charge or claim (i) which is permitted under Section 7.2.3 or (ii) which
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.10. Taxes. Each Borrower and each of its Subsidiaries
has filed all material tax returns and reports required by law to have been
filed by it and has paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. Except as disclosed in
Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, during
the twelve-consecutive-month period prior to the date of the execution
and delivery of this Agreement, no steps have been taken to terminate
any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which might result in the incurrence by any Borrower
or any member of the Controlled Group of any liability, fine or penalty which
could reasonably be expected to have a Material Adverse Effect. Except as
disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule,
neither the Borrowers nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement medical benefits under a Welfare
Plan, other than liability for continuation coverage described in Part 6 of
Subtitle B of Title I of ERISA or other applicable continuation of coverage
laws.
SECTION 6.12. Environmental Warranties. Except as set forth in
Item 6.12 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by any Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased by
such Borrower or its Subsidiaries in material compliance with all
Environmental Laws;
(b) there have been no past, and there are no pending or, to
the knowledge of any Borrower, threatened (i) claims, complaints,
notices or requests for information received by any Borrower or
any of its Subsidiaries with respect to any alleged material
violation of any Environmental Law, or (ii) complaints, notices
or inquiries to any Borrower or any of its Subsidiaries regarding
potential material liability under any Environmental Law, in each
case which have not been disclosed in writing and in reasonable
detail to the Arrangers;
(c) there have been no Releases of Hazardous Materials at,
on or under any property now or previously owned or leased by any
Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect;
(d) the Borrowers and their Subsidiaries have been issued
and are in material compliance with all material permits,
certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary for their
businesses;
(e) no property now or previously owned or leased by any
Borrower or any of its Subsidiaries is listed or proposed for
listing (with respect to owned property only) on (x) the National
Priorities List pursuant to CERCLA, or (y) on the CERCLIS or on
any similar state list of sites requiring investigation or
clean-up to the extent, in the case of this clause (y), such
listing or proposed listing could reasonably be expected to have
a Material Adverse Effect;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any
property now or previously owned or leased by any Borrower or any
of its Subsidiaries that, singly or in the aggregate, have, or
may reasonably be expected to have, a Material Adverse Effect;
(g) no Subsidiary of any Borrower has directly transported
or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing
on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other
investigations which may lead to material claims against such
Borrower or such Subsidiary thereof for any remedial work, damage
to natural resources or personal injury, including claims under
CERCLA;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or
leased by any Borrower or any Subsidiary of any Borrower that,
singly or in the aggregate, have, or may reasonably be expected
to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by any Borrower or any of its
Subsidiaries which, with the passage of time, or the giving of
notice or both, would give rise to liability under any
Environmental Law which, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect.
SECTION 6.13. Regulations U and X. None of the Borrowers is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Loans will be used for a purpose
which violates, or would be inconsistent with, F.R.S. Board Regulation U or X.
Terms for which meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of any Borrower in
writing to the Arrangers or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby or with respect to the
Transaction is, and all other such factual information hereafter furnished by or
on behalf of any Borrower to the Arrangers or any Lender will be true and
accurate in every material respect on the date as of which such information is
dated or certified, and such information is not, or shall not be, as the case
may be, incomplete by omitting to state any material fact necessary to make
such information in light of the circumstances when made not materially mislead-
ing.
SECTION 6.15. Solvency. The Transaction (including the incurrence
of the initial Credit Extension hereunder, the execution and delivery by the
Subsidiary Guarantors of the Subsidiary Guaranty and the application of the
proceeds of the Credit Extensions), will not involve or result in any fraudulent
transfer or fraudulent conveyance under the provisions of Section 548 of the
Bankruptcy Code (11 U.S.C. ss. 101 et seq., as from time to time hereafter
amended, and any successor or similar statute) or any applicable state law
respecting fraudulent transfers or fraudulent conveyances. On the Closing Date,
after giving effect to the Transaction, each Borrower and each Subsidiary
Guarantor is Solvent.
SECTION 6.16. Year 2000. Each Borrower has reviewed the areas
within its business and operations which could be adversely affected by, and has
developed or is developing a program (which program is expected to be completed
and in place by January 1, 2000) to address on a timely basis, the "Year 2000
Problem" (that is, the risk that computer applications used by such Borrower or
its Subsidiaries may be unable to recognize and properly perform date-sensitive
functions involving certain dates prior to and any date after December 31,
1999). Based on such review and program, the Year 2000 Problem could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrowers jointly and
severally agree with each of the Agents, each Arranger, each Issuer and each
Lender that, until all Commitments have terminated and all Obligations have been
paid and performed in full, each Borrower will perform the obligations set forth
in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrowers will furnish, or will cause to be furnished, to each Lender and the
Agents copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 20 days
after the end of each Fiscal Month of each Fiscal Year of Holdco,
(i) with respect to each of the Beverage Companies, case sales
and revenues for such Fiscal Month, and (ii) with respect to
Arby's and its Subsidiaries, revenues and total units open
(including the number of units opened and closed for each brand)
for such Fiscal Month, in each case certified by the chief
financial or chief accounting Authorized Officer of Holdco;
(b) as soon as available and in any event within 55 days
after the end of the first three Fiscal Quarters of each Fiscal
Year of Holdco, consolidated (and consolidating, but only with
respect to (i) Triarc Beverage, Snapple, Mistic, Cable Car and
each of their Subsidiaries, taken as a whole, (ii) Royal Crown
and its Subsidiaries, taken as a whole, and (iii) Arby's and its
Subsidiaries, taken as a whole) balance sheets of Holdco and its
Subsidiaries as at the end of such Fiscal Quarter and
consolidated (and consolidating, but only with respect to (i)
Triarc Beverage, Snapple, Mistic, Cable Car and each of their
Subsidiaries, taken as a whole, (ii) Royal Crown and its
Subsidiaries, taken as a whole, and (iii) Arby's and its
Subsidiaries, taken as a whole) statements of earnings and cash
flow of Holdco and its Subsidiaries for such Fiscal Quarter and
for the period commencing at the end of the previous Fiscal Year
and ending with the end of such Fiscal Quarter, certified by the
chief financial or chief accounting Authorized Officer of Holdco;
(c) as soon as available and in any event within 110 days
after the end of each Fiscal Year of Holdco, a copy of the annual
audit report for such Fiscal Year for Holdco and its
Subsidiaries, including therein consolidated balance sheets of
Holdco and its Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings and cash flow of Holdco and
its Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification) in a manner reasonably
acceptable to the Arrangers and the Required Lenders by Deloitte
& Touche LLP or other independent public accountants reasonably
acceptable to the Arrangers and the Required Lenders, together
with a report from such accountants containing a computation of,
and showing compliance with, each of the financial ratios and
restrictions contained in Section 7.2.4 and to the effect that,
in making the examination necessary for the signing of such
annual report by such accountants, they have not become aware of
any Default that has occurred and is continuing, or, if they have
become aware of such Default, describing such Default and the
steps, if any, being taken to cure it, together with copies of
unaudited consolidating balance sheets and consolidating
statements of earnings and cash flows for such Fiscal Year of (i)
Triarc Beverage, Snapple, Mistic, Cable Car and each of their
Subsidiaries, taken as a whole, (ii) Royal Crown and its
Subsidiaries, taken as a whole, and (iii) Arby's and its
Subsidiaries, taken as a whole;
(d) together with the delivery of the financial information
required pursuant to clause (b) or clause (c), a Compliance
Certificate, executed by the chief financial or chief accounting
Authorized Officer of Holdco, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Arrangers) compliance with the financial
covenants set forth in Section 7.2.4;
(e) as soon as possible and in any event within three
Business Days after any Borrower has knowledge (or could
reasonably be expected to have knowledge) of the occurrence of
any Default, a statement of the chief financial Authorized
Officer of such Borrower setting forth details of such Default
and the action which such Borrower has taken and proposes to take
with respect thereto;
(f) as soon as possible and in any event within three
Business Days after (x) the occurrence of any materially adverse
development with respect to any litigation, action, proceeding,
or labor controversy described in Section 6.7 or (y) the
commencement of any labor controversy, litigation, action or
proceeding of the type described in Section 6.7, notice thereof
and copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of
all reports which any Borrower, Triarc Beverage or Holdco sends
to any of the holders of any class of its debt securities or
public equity securities, and all reports and registration
statements which any Borrower, Triarc Beverage or Holdco or any
of their respective Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(h) promptly upon becoming aware of the institution of any
steps by any Borrower, Triarc Beverage, Holdco or any other
Person to terminate any Pension Plan, or the failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA,
or the taking of any action with respect to a Pension Plan which
could reasonably be expected to result in the requirement that
any Borrower, Triarc Beverage or Holdco furnish a bond or other
security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan which could reasonably
be expected to result in the incurrence by any Borrower, Triarc
Beverage or Holdco of any material liability, fine or penalty, or
any material increase in the contingent liability of any
Borrower, Triarc Beverage or Holdco with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies
of all documentation relating thereto;
(i) promptly when available and in any event within 60 days
following the last day of each Fiscal Year of Holdco, quarterly
financial projections for Holdco and its Subsidiaries (including
case sales for each of the Beverage Companies), on a consolidated
(and consolidating, but only with respect to (i) Triarc Beverage,
Snapple, Mistic, Cable Car and each of their Subsidiaries, taken
as a whole, (ii) Royal Crown and its Subsidiaries, taken as a
whole, and (iii) Arby's and its Subsidiaries, taken as a whole)
basis (including an operating budget), for the current Fiscal
Year, prepared in reasonable detail by the chief accounting,
financial or operating officer of Holdco;
(j) within 20 days after the end of each Fiscal Month, a
Borrowing Base Certificate that is calculated as of the last day
of such Fiscal Month; and
(k) such other information respecting the condition or
operations, financial or otherwise, of Holdco, Triarc Beverage,
any Borrower or any of its Subsidiaries as any Lender through any
Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. Each Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation) (i) the maintenance and preservation of its legal existence
and qualification as a foreign entity, except where the failure to so qualify
could not reasonably be expected to have a Material Adverse Effect, and (ii) the
payment, before the same become delinquent, of all taxes, assessments and
governmental charges imposed upon it or upon its property except to the extent
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 7.1.3. Maintenance of Properties. Each Borrower will, and
will cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties necessary and useful in the conduct of its business in good repair,
working order and condition (subject to normal wear and tear), and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times unless
such Borrower determines in good faith that the continued maintenance of any of
its properties is no longer economically desirable, except when the failure to
maintain, preserve, protect and keep its properties could not reasonably be
expected to have a Material Adverse Effect.
SECTION 7.1.4. Insurance. Each Borrower will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and will, upon written request
of the Agents, furnish to each Lender at reasonable intervals a certificate of
an Authorized Officer of such Borrower setting forth the nature and extent of
all insurance maintained by such Borrower and its Subsidiaries in accordance
with this Section.
SECTION 7.1.5. Books and Records. Each Borrower will, and will
cause each of its Subsidiaries to, keep books and records which accurately
reflect in all material respects all of its business affairs and transactions
and permit the Agents and each Lender or any of their respective
representatives, at reasonable times and intervals, during normal business hours
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and each Borrower hereby authorizes such in-
dependent public accountant, upon the occurrence and during the continuance
of any Default or Event of Default, to discuss such Borrower's financial matters
with each Lender or its representatives whether or not any representative of
such Borrower is present, and if no Default or Event of Default has occurred
and is continuing, only if a representative of such Borrower is present) and to
examine (and, at the expense of such Borrower, photocopy extracts from) any of
its books or other records. The Borrowers shall pay any fees of such indepen-
dent public accountant incurred in connection with any Agent's or any Lender's
exercise of its rights pursuant to this Section. The Agents and the Lenders
agree that they shall use reasonable efforts to minimize interference with the
business of any Borrower or any of its Subsidiaries.
SECTION 7.1.6. Environmental Covenant. Each Borrower will, and
will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Agents and provide copies upon
receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or
compliance with Environmental Laws which could reasonably be
expected to have a Material Adverse Effect; and
(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence
compliance with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming,
after the Closing Date, a Subsidiary of any Borrower or Triarc Beverage, or upon
any Obligor acquiring additional Capital Stock of any existing Subsidiary of any
Borrower or Triarc Beverage, the Borrowers shall notify the Agents of such
acquisition, and
(a) the Borrowers shall promptly cause such Subsidiary to
execute and deliver to the Agents, with counterparts for each
Lender, a supplement to the Subsidiary Guaranty and a supplement
to the Subsidiary Security Agreement (and, if such Subsidiary
owns any real property with a fair market value in excess of
$1,500,000, a Mortgage), together with acknowledgment copies of
UCC financing statements (Form UCC-1) executed and delivered by
the Subsidiary naming the Subsidiary as the debtor and the
Administrative Agent as the secured party, or other similar
instruments or documents, filed under the UCC and any
other applicable recording statutes, in the case of
real property, of all jurisdictions as may be necessary or, in
the reasonable opinion of the Agents, desirable to perfect the
security interest of the Administrative Agent pursuant to the
Subsidiary Security Agreement or a Mortgage, as the case may be
(other than the perfection of security interests in motor
vehicles owned as of the date such entity becomes a Subsidiary);
provided, however, that, subject to clause (l) of Section 7.2.2,
in the event that any newly-acquired Subsidiary has any
outstanding Indebtedness which is secured by a Lien or is subject
to a negative pledge ("Assumed Restricted Debt") which
Indebtedness, Lien or negative pledge, as the case may be, was in
existence prior to the time such Person became a Subsidiary (and
which was not created in contemplation of this Section), no such
security interest or other Lien shall be required hereunder in
respect of such Subsidiary's assets subject to such negative
pledge; and
(b) the Borrowers shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Pledge Agreement
(or a supplement thereto) certificates (if any) representing all
of the issued and outstanding shares of Capital Stock of such
Subsidiary owned by Holdco, Triarc Beverage, such Borrower or any
Subsidiary of Holdco, as the case may be, along with undated
stock powers for such certificates, executed in blank, or, if any
securities subject thereto are uncertificated securities,
confirmation and evidence satisfactory to the Agents that
appropriate book entries have been made in the relevant books or
records of a financial intermediary or the issuer of such
securities, as the case may be, or other appropriate steps shall
have been taken under applicable law resulting in the perfection
of the security interest granted in favor of the Administrative
Agent pursuant to the terms of a Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel reasonably satisfactory to the Agents, as the Agents may reasonably
require; provided, however, that notwithstanding the foregoing, no Non-U.S.
Subsidiary shall be required to execute and deliver a Mortgage, a supplement to
the Subsidiary Guaranty or a supplement to the Subsidiary Security Agreement,
nor will Holdco, Triarc Beverage, such Borrower or any Subsidiary of Holdco be
required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of
the total combined voting power of all classes of Capital Stock of a first tier
Non-U.S. Subsidiary entitled to vote.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of
Real Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease (as lessee) of real
property or renewing any existing lease as lessee of real
property following the Closing Date, each Borrower shall, and
shall cause each of its U.S. Subsidiaries to, use
all commercially reasonable efforts (which shall not require the
expenditure of cash or the making of any material concessions
under the relevant lease) to deliver to the Administrative Agent
a Waiver executed by the lessor of any real property that is to
be leased by such Borrower or such U.S. Subsidiary for a term in
excess of one year in any state which by statute grants such
lessor a "landlord's" (or similar) Lien which is superior to the
Administrative Agent's, to the extent the value of any personal
property of such Borrower or its U.S. Subsidiaries to be held at
such leased property exceeds (or it is anticipated that the value
of such personal property will, at any point in time during the
term of such leasehold term, exceed) $1,500,000.
(b) In the event that any Borrower or any of their U.S.
Subsidiaries shall acquire any real property having a value as
determined in good faith by the Agents in excess of $1,500,000 in
the aggregate, such Borrower or the applicable U.S. Subsidiary
shall, promptly after such acquisition, execute a Mortgage and
provide the Agents with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and
filings of such Mortgage as may be necessary or, in the
reasonable opinion of the Agents, desirable effectively to
create a valid, perfected first priority Lien, subject to
Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor of
the Administrative Agent and the Lenders in amounts and in
form and substance and issued by insurers, reasonably
satisfactory to the Agents, with respect to the property
purported to be covered by such Mortgage, insuring that
title to such property is marketable and that the interests
created by the Mortgage constitute valid first Liens thereon
free and clear of all defects and encumbrances other than as
permitted under Section 7.2.3 or as approved by the Agents,
and such policies shall also include a revolving credit
endorsement and such other endorsements as the Agents shall
request and shall be accompanied by evidence of the payment
in full of all premiums thereon; and
(iii) such other approvals, opinions, or documents as
the Agents may reasonably request; and
(c) In accordance with the terms and provisions of this
Agreement and the other Loan Documents, provide the Agents with
evidence of all recordings and filings as may be necessary or, in
the reasonable opinion of the Agents, desirable to create a
valid, perfected first priority Lien, subject to the Liens
permitted by Section 7.2.3, against all property acquired after
the Closing Date (including motor vehicles but excluding leases
of real property).
SECTION 7.1.9. Use of Proceeds, etc. The Borrowers shall apply
the proceeds of
(a) the Term Loans
(i) in connection with the Refinancing and concurrently
with the initial Credit Extension hereunder, to make
payment, together with the funds made available from the
proceeds of the Subordinated Notes Offering, in full of all
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to
be Paid") of the Disclosure Schedule;
(ii) in connection with the Acquisition, to make payment
in full of the Borrowers' obligations under the Acquisition
Agreement; provided, however, that, to the extent the
Acquisition is not consummated on or prior to the Closing
Date, a portion (which shall not exceed $17,250,000) of the
Term C Loans otherwise allocable to the Borrowers for use in
connection with the Acquisition shall be funded into the
Acquisition Escrow Account to be used by the Borrowers in
accordance with Section 7.1.12;
(iii) to fund a portion of the Triarc Dividend;
(iv) in connection with the RC/Arby's Notes Repayment,
together with funds made available from the proceeds of the
Subordinated Notes Offering, to fund the RC/Arby's Notes
Repayment Pledge Account to be used to redeem the RC/Arby's
Notes;
(v) to pay reasonable costs, fees and expenses related
to the Transaction (provided, that the aggregate amount of
such costs, fees and expenses shall not exceed $35,000,000);
and
(b) the Revolving Loans, Swing Line Loans, Letters of Credit
and any immaterial excess proceeds of the Term Loans not
otherwise used in accordance with clause (a) above, for general
corporate and working capital purposes of the Borrowers and their
Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within six months following
the Closing Date, the Borrowers shall provide the Arrangers with evidence
reasonably satisfactory to them that the Borrowers have entered into interest
rate swap, cap, collar or similar arrangements designed to protect such
Borrowers against fluctuations in interest rates with respect to at least
50% of the then outstanding aggregate principal amount of the Term Loans for a
minimum period of three years with terms reasonably satisfactory to such
Borrowers and the Arrangers.
SECTION 7.1.11. RC/Arby's Notes Repayment; Execution and De-
livery of Loan Documents. (a) Within 35 days of the Closing Date, the Borrowers
shall consummate the RC/Arby's Notes Repayment.
(b) Upon the consummation of the RC/Arby's Notes Repayment, each
Borrower shall, and shall cause RC/Arby's and each of its Subsidiaries to, (i)
execute and deliver all appropriate Loan Documents and (ii) take all other
necessary and appropriate actions, in each case in accordance with Sections
7.1.7 and 7.1.8, as if RC/Arby's and each such Subsidiary were a newly-acquired
Subsidiary, including the delivery of legal opinions in form and substance
reasonably satisfactory to the Arrangers.
SECTION 7.1.12. Consummation of Acquisition; Prepayment of Term C
Loans. If the Acquisition is not completed on or prior to the Closing Date,
within 45 days of the Closing Date (the "Consummation Date"), the Borrowers
shall, in accordance with the terms hereof and of the Acquisition Agreement and
the Acquisition Escrow Agreement, use the amounts deposited in the Acquisition
Escrow Account to consummate the Acquisition; provided, however, that, to the
extent the Borrowers shall not have consummated the Acquisition on or prior to
the Consummation Date, the Borrowers shall use the amounts deposited in the
Acquisition Escrow Account to prepay the Term C Loans pursuant to clause (g) of
Section 3.1.1.
SECTION 7.1.13. Additional Post-Closing Items. Within 45 days of
the Closing Date, the Borrowers shall deliver or shall caused to be delivered to
the Agents a Mortgage on the concentrate manufacturing facility owned by Royal
Crown located in Columbus, Georgia, together with legal opinions and other
documentation reasonably requested by the Agents in connection therewith.
SECTION 7.2. Negative Covenants. The Borrowers jointly and
severally agree with each of the Agents, each Arranger, each Issuer and each
Lender that, until all Commitments have terminated and all Obligations have been
paid and performed in full, each of Borrowers will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrowers will not, and
will not permit any of their Subsidiaries to, engage in any business activity,
except for the Business.
SECTION 7.2.2. Indebtedness. The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obliga-
tions;
(b) until the Closing Date, Indebtedness identified in Item
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule;
(c) Indebtedness existing as of the Closing Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the
Disclosure Schedule;
(d) Indebtedness existing as of the Closing Date arising
pursuant to the take-or-pay contracts identified in Item 7.2.2(d)
("Take-or-Pay Liabilities") of the Disclosure Schedule and
arising from future take-or-pay contracts; provided that the
aggregate amount in respect of such Indebtedness at any time
outstanding shall not exceed $5,000,000;
(e) Indebtedness in respect of (i) the senior subordinated
guarantees provided in connection with the Subordinated Notes;
provided that the aggregate principal amount in respect of such
Indebtedness at any time outstanding shall not exceed
$300,000,000 and (ii) subordinated intercompany loans made by
Holdco and Triarc Beverage in an aggregate principal amount not
to exceed the gross proceeds of the Subordinated Notes;
(f) Hedging Obligations of the Borrowers or any of their
Subsidiaries in respect of the Loans;
(g) Indebtedness in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding which is incurred by
the Borrowers or any of their Subsidiaries (i) to finance the
acquisition of any assets permitted to be acquired pursuant to
Section 7.2.7, (ii) in respect of Capitalized Lease Liabilities
(but only to the extent otherwise permitted by Section 7.2.7) or
(iii) in respect of purchase money obligations;
(h) unsecured Indebtedness incurred in the ordinary course
of business (including open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and
services, but excluding Indebtedness incurred through the
borrowing of money or Contingent Liabilities);
(i) unsecured intercompany Indebtedness of any Borrower
owing to any other Borrower or to any Subsidiary Guarantor, or
Indebtedness of any wholly-owned U.S. Subsidiary of any Borrower
or, so long as the Arby's Securitization Residual Payment has not
been made, Arby's or any of its wholly-owned U.S. Subsidiaries,
owing to any Borrower or any Subsidiary Guarantor; provided, that
any Indebtedness of Arby's and its Subsidiaries or Royal Crown
and its Subsidiaries, as the case may be, to any Borrower or any
such Subsidiary Guarantor incurred after the Closing Date shall,
upon consummation of the Arby's Securitization Residual Payment
or the Royal Crown Disposition, as applicable, be either (x) re-
paid in full or (y) to the extent not so repaid be deemed an In-
vestment in such entities if such Investment would be permit-
▇▇▇ under Section 7.2.5;
(j) other Indebtedness of the Borrowers and their
Subsidiaries in an aggregate amount at any time outstanding not
to exceed (x) $15,000,000 during the first four full Fiscal
Quarters following the Closing Date and (y) without duplication,
$30,000,000 thereafter;
(k) unsecured obligations of Arby's in respect of amounts
due and owing from Arby's to holders of stock options issued
pursuant to the Arby's Stock Option Plan; and
(l) Indebtedness representing Assumed Restricted Debt and
assumed unsecured Indebtedness of a newly-acquired Subsidiary
that was in existence prior to the time such Person became a
Subsidiary; provided that the aggregate principal amount in
respect of such Indebtedness at any time outstanding shall not
exceed $10,000,000;
provided, however, that in any such case (i) no Indebtedness otherwise permitted
by clauses (g), (h), (i), (j) or (l) shall be permitted if, after giving effect
to the incurrence thereof, any Default shall have occurred and be continuing and
(ii) any Indebtedness permitted by clauses (c) and (e) may be refinanced,
refunded, renewed or extended, provided that, in either such case, (A) the
principal amount of outstanding Indebtedness is not increased, (B) neither the
tenor nor the average life thereof is reduced, (C) the respective primary
obligor(s) shall be the same on the refinancing Indebtedness as on the
Indebtedness being refinanced, (D) the security, if any, for the refinancing
Indebtedness shall be the same as that for the Indebtedness being refinanced
(except to the extent that less security is granted to holders of such
refinancing Indebtedness), (E) the refinancing Indebtedness is subordinated to
the same degree (including any defaults or conditions to an event of default
relating to any subordination provisions therein), if any, as the Indebtedness
being refinanced and (F) the holders of such refinancing Indebtedness are not
afforded other covenants, defaults, rights or remedies, taken as a whole, more
burdensome to the obligor or obligors than those contained in the Indebtedness
being refinanced.
SECTION 7.2.3. Liens. The Borrowers will not, and will not permit
any of their Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except for the following:
(a) Liens securing payment of the Obligations or any Hedging
Obligations in respect of the Loans owed to any Lender or any
Affiliate of any Lender, granted pursuant to any Loan Document;
(b) (i) until the Closing Date, Liens securing payment of
Indebtedness of the type permitted and described in clause (b) of
Section 7.2.2, and (ii) Liens existing as of the Closing Date
which are identified in Item 7.2.3(b) ("Ongoing Liens") of the
Disclosure Schedule;
(c) Liens securing payment of Indebtedness of the type
permitted and described in clause (c) of Section 7.2.2 and
identified in Item 7.2.3(c) ("Additional Liens") of the
Disclosure Schedule, and replacement Liens securing any
Indebtedness refinanced as permitted by clause (ii) of the
proviso to Section 7.2.2 (provided that no such replacement Lien
shall cover any property in addition to the property covered by
the original Lien);
(d) Liens granted to secure payment of Indebtedness of the
type permitted and described in clause (g) of Section 7.2.2 and
covering only those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on the books of
such Person;
(f) Liens of suppliers, carriers, warehousemen, mechanics,
materialmen, repairmen and landlords incurred in the ordinary
course of business for sums not overdue for more than 30 days or
being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on the books of such Person;
(g) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and
contracts (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety or
appeal bonds;
(h) attachment or judgment Liens in existence less than 15
days after the entry thereof or with respect to which execution
has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained with
responsible insurance companies;
(i) Liens with respect to leases, subleases, easements,
rights-of-way, restrictions and other similar encumbrances which,
individually or in the aggregate, do not materially interfere
with the occupation, use and enjoyment by any Borrower or any of
its Subsidiaries of the properties encumbered thereby in the or-
dinary course of their business; and
(j) Liens in respect of any Assumed Restricted Debt
permitted pursuant to clause (l) of Section 7.2.2.
SECTION 7.2.4. Financial Covenants.
(a) Minimum Net Worth. The Borrowers will not permit Net
Worth at any time to be less than an aggregate amount equal to
negative $189,000,000, plus an amount equal to 50% of cumulative
Net Income from the Closing Date to the date of determination,
less the amount by which stockholders equity of Holdco is reduced
in accordance with GAAP as a result of the Arby's Securitization
Residual Payment, if made.
(b) Leverage Ratio. The Borrowers will not permit the
Leverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be greater than the ratio
set forth opposite such period:
Period Leverage Ratio
------ --------------
1st Fiscal Quarter of
1999 Fiscal Year 6.00:1
2nd Fiscal Quarter
of 5.85:1
1999 Fiscal Year
3rd Fiscal Quarter
of 5.75:1
1999 Fiscal Year
4th Fiscal Quarter of
1999 Fiscal Year
through
3rd Fiscal Quarter 5.60:1
of
2000 Fiscal Year
4th Fiscal Quarter of
2000 Fiscal Year
through
5.00:1
3rd Fiscal Quarter
of
2001 Fiscal Year
4th Fiscal Quarter of
2001 Fiscal Year
through
3rd Fiscal Quarter 4.25:1
of
2002 Fiscal Year
4th Fiscal Quarter of
2002 Fiscal Year
through
3rd Fiscal Quarter 3.75:1
of
2003 Fiscal Year
4th Fiscal Quarter of
2003 Fiscal Year
through
3rd Fiscal Quarter 3.25:1
of
2004 Fiscal Year
4th Fiscal Quarter of
2004 Fiscal Year
and each 3.00:1
Fiscal Quarter
thereafter
(c) Interest Coverage Ratio. The Borrowers will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
Interest Coverage
Period Ratio
------ -----------------
1st Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
1999 Fiscal Year 1.80:1
4th Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
2000 Fiscal Year 1.85:1
4th Fiscal Quarter of 2000
Fiscal Year through
3rd Fiscal Quarter of
2001 Fiscal Year 2.10:1
4th Fiscal Quarter of
2001 Fiscal Year through
3rd Fiscal Quarter of
2002 Fiscal Year 2.40:1
4th Fiscal Quarter of
2002 Fiscal Year through
3rd Fiscal Quarter of
2003 Fiscal Year 2.75:1
4th Fiscal Quarter of
2003 Fiscal Year through
3rd Fiscal Quarter of
2004 Fiscal Year 3.25:1
4th Fiscal Quarter of
2004 Fiscal Year and each
Fiscal Quarter thereafter 3.50:1
(d) Fixed Charge Coverage Ratio. The Borrowers will not permit the
Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
Fixed Charge Coverage
Period Ratio
------ ---------------------
1st Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
1999 Fiscal Year 1.00:1
4th Fiscal Quarter of
1999 Fiscal Year through
3rd Fiscal Quarter of
2000 Fiscal Year 1.05:1
4th Fiscal Quarter of
2000 Fiscal Year through
3rd Fiscal Quarter of
2001 Fiscal Year 1.10:1
4th Fiscal Quarter of
2001 Fiscal Year and each
Fiscal Quarter thereafter 1.15:1
SECTION 7.2.5. Investments. The Borrowers will not, and will not permit
any of their Subsidiaries to, make, incur, assume or suffer to exist any Invest-
ment in any other Person, except:
(a) Investments existing on the Closing Date and identified in Item
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments by any Borrower in any other Borrower, in any
wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's
Securitization Residual Payment has not been made, in Arby's or any of its
wholly-owned U.S. Subsidiaries, or by any Subsidiary Guarantor in any
Borrower or in any wholly-owned U.S. Subsidiary of any Borrower
(including, in each case, Investments made for purposes of creating newly
formed wholly-owned U.S. Subsidiaries); provided, that any Investments in
Arby's and its Subsidiaries or Royal Crown and its Subsidiaries incurred
after the Closing Date shall, upon consummation of the Arby's
Securitization Residual Payment or the Royal Crown Disposition, as
applicable, be either (x) repaid in full or (y) to the extent not so
repaid be deemed an Investment in such entities if such Investment would
be otherwise permitted under this Section 7.2.5;
(d) other Investments, together with the amount of any purchases
made pursuant to clause (b)(ii) of Section 7.2.8, in an aggregate
principal amount not to exceed $20,000,000 at any time outstanding;
(e) Investments in the form of advances or loans to employees in an
aggregate principal amount not to exceed $2,000,000 at any time
outstanding;
(f) the Acquisition;
(g) (i) Investments by Arby's or any of its Subsidiaries in one or
more Arby's Securitization Entities (including the creation of such Arby's
Securitization Entities) on or prior to the consummation of the Arby's
Securitization in an amount that, together with all other Investments made
pursuant to this clause (g)(i) from the Effective Date, does not exceed
$15,000,000 in the aggregate; and (ii) non-cash Investments by Arby's or
any of its Subsidiaries in any Arby's Securitization Residual Note and any
contribution by Arby's or any of its Subsidiaries of Arby's Securitization
Assets to any Arby's Securitization Entity;
(h) Investments in any Person with any Net Disposition Proceeds
permitted to be so invested pursuant to clause (c) of Section 3.1.1 and
Investments in any Person with any Net Casualty Proceeds permitted to be
so invested pursuant to clause (f) of Section 3.1.1;
(i) stock, obligations or securities received in settlement of
Indebtedness created in the ordinary course of business of up to $500,000
in aggregate principal amount in any Fiscal Year and owing to a Borrower
or any Subsidiary of any Borrower or in satisfaction of judgments relating
to such Indebtedness;
(j) Investments in any Person to the extent such Investment
represents the non-cash portion of the consideration received pursuant to
clause (b) of Section 7.2.9;
provided, however, that (i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment" may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements, and (ii) no Investment otherwise
permitted by clause (c), (d), (e), (g), (h), (i) or (j) shall be permitted to be
made if, immediately before or after giving effect thereto, any Default shall
have occurred and be continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) no Borrower will declare, pay or make any payment, dividend or
distribution (in cash, property or obligations) on any shares of any class
of its Capital Stock (now or hereafter outstanding) or on or in respect of
any warrants, options or other rights with respect to any shares of any
class of its Capital Stock (now or hereafter outstanding) (other than
dividends or distributions (i) payable in its Capital Stock or warrants to
purchase its Capital Stock or splitups or reclassifications of its Capital
Stock into additional or other shares of its Capital Stock or (ii)
declared, payable or made to another Borrower) or apply, or permit any of
its Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or
permit any of its Subsidiaries to purchase or redeem, any shares of any
class of its Capital Stock (now or hereafter outstanding), or warrants,
options or other rights with respect to any shares of any class of its
Capital Stock (now or hereafter outstanding);
(b) no Borrowers will, nor will it permit any of its Subsidiaries
to, (i) make any payment or prepayment of principal of, or make any
payment of interest on, any Subordinated Debt on any day other than the
stated, scheduled date for such payment or prepayment set forth in the
documents and instruments memorializing such Subordinated Debt, or which
would violate the subordination provisions of such Subordinated Debt, or
(ii) redeem, purchase or defease, any Subordinated Debt; and
(c) no Borrower will, nor will it permit any of its Subsidiaries to,
make any deposit for any of the foregoing purposes;
provided, however, that notwithstanding the foregoing,
(d) (x) the Borrowers may make payments to Triarc Beverage to allow
Triarc Beverage to make payments in respect of stock options or in respect
of the Capital Stock of Triarc Beverage issued upon the exercise of such
stock options to the holders thereof pursuant to the Triarc Beverage Stock
Option Plan and (y) Arby's may make payments in respect of stock options
or in respect of the Capital Stock of Arby's issued upon the exercise of
such stock options to the holders thereof pursuant to the Arby's Stock
Option Plan, in each case if (i) the aggregate amount of all payments made
pursuant to this clause (d) would not exceed (A) $5,000,000 in the twelve
month period beginning on the Closing Date, (B) $7,500,000 in the twelve
month period beginning on the first anniversary of the Closing Date and
(C) $10,000,000 in each twelve month period beginning on the second
anniversary of the Closing Date and each anniversary of the Closing Date
thereafter; provided, however, that the aggregate amount of all such
payments on and after the Closing Date shall not exceed $25,000,000 plus
an amount equal to the net proceeds received by Triarc Beverage or Arby's
after the Closing Date from the sale of Capital Stock (other than
disqualified stock) pursuant to the Arby's Stock Option Plan or the Triarc
Beverage Stock Option Plan; and (ii) no Default has occurred and is
continuing or would occur as a result of any such payment;
(e) the Borrowers may make payments to Triarc directly, or through
Holdco and/or Triarc Beverage, which will forward such payments to Triarc,
in such amounts as may be required pursuant to the Tax Sharing Agreement;
(f) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrowers may make the Arby's
Securitization Residual Payment to Triarc;
(g) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrowers may declare and pay cash
dividends to (i) Holdco and/or Triarc Beverage to the extent necessary to
allow Holdco and/or Triarc Beverage to make scheduled interest payments on
the Subordinated Notes (provided that any portion of the amounts required
to pay such scheduled interest payments may be paid by the
Borrowers to Holdco and/or Triarc Beverage as payments of interest on
subordinated intercompany Indebtedness owed to Holdco and/or Triarc
Beverage permitted pursuant to clause (e)(ii) of Section 7.2.2; and
provided, further, that Holdco and/or Triarc Beverage promptly (and in any
event within three Business Days following the payment of such cash
dividend) applies any such cash dividend to such scheduled interest
payment on the Subordinated Notes), and (ii) Holdco and Triarc Beverage,
in an amount not to exceed $250,000 in any Fiscal Year, to the extent
necessary to allow Holdco and Triarc Beverage to pay accounting and audit
expenses, franchise taxes and other expenses (provided that any portion of
the amount required to pay such expenses may be paid by the Borrowers to
Holdco and/or Triarc Beverage on or prior to the date of such payment as
payments of interest on subordinated intercompany Indebtedness owed to
Holdco and/or Triarc Beverage);
(h) so long as no Default has occurred or is continuing or would
occur after giving effect thereto, the Borrowers and their Subsidiaries
may make any and all payments, dividends or distributions contemplated in
the Transaction including, without limitation, to Holdco (through Triarc
Beverage if necessary) to allow Holdco to make the Triarc Dividend; and
(i) Arby's may make non-cash repurchases of Capital Stock under the
Arby's Stock Option Plan deemed to occur upon exercise of stock options
under the Arby's Stock Option Plan to the extent that such Capital Stock
represents a portion of the exercise price of such options.
SECTION 7.2.7. Capital Expenditures, etc. The Borrowers will not, and will
not permit any of their Subsidiaries to, make or commit to make Capital
Expenditures in any fiscal period set forth below, except Capital Expenditures
which do not aggregate in excess of the amount set forth below opposite such
fiscal period:
Closing Date
through 1999 Fiscal Year $9,500,000
2000 Fiscal Year
through 2001 Fiscal Year $10,000,000 ($9,500,000 if the
Arby's Securitization Residual
Payment has been made)
2002 Fiscal Year and each
Fiscal Year thereafter $11,000,000 ($10,500,000 if the
Arby's Securitization Residual
Payment has been made);
provided, however, that to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to this Section exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year,
such excess amount (up to 50% of the total amount of Capital Expenditures
permitted to be made in such Fiscal Year, without giving effect to any
carry-forward) may be carried forward to (but only to) the next succeeding
Fiscal Year (any such amount to be certified by the Borrowers to the Agents in
the Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal
Year, and any such amount carried forward to a succeeding Fiscal Year shall be
deemed to be used prior to the Borrowers and their Subsidiaries using the amount
of Capital Expenditures permitted by this Section in such succeeding Fiscal Year
without giving effect to such carry-forward).
SECTION 7.2.8. Consolidation, Merger, Acquisitions, etc. The Borrowers
will not, and will not permit any of their Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person, or purchase
or otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except
(a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may consolidate with or merge with and into, any Borrower, any
wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's
Securitization Residual Payment has not been made, Arby's or any of its
wholly-owned U.S. Subsidiaries, and the assets or stock of any such
Subsidiary may be purchased or otherwise acquired by any Borrower, any
wholly-owned U.S. Subsidiary of any Borrower or, so long as the Arby's
Securitization Residual Payment has not been made, Arby's or any of its
wholly-owned U.S. Subsidiaries;
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrowers or any of their
Subsidiaries may purchase all or substantially all of the assets of any
Person, or acquire such Person by merger, if (i) permitted (without
duplication) by Section 7.2.7 to be made as a Capital Expenditure, or if
permitted (without duplication) by Section 7.2.5 to be made as an
Investment, (ii) such purchase, together with any Investments made
pursuant to clause (d) of Section 7.2.5, shall not at any one time
outstanding exceed $20,000,000, or (iii) such purchase is made with Net
Disposition Proceeds permitted pursuant to clause (c) of Section 3.1.1 or
Net Casualty Proceeds permitted pursuant to clause (f) of Section 3.1.1;
and
(c) as permitted pursuant to Section 7.2.9.
SECTION 7.2.9. Asset Dispositions, etc. The Borrowers will not, and will
not permit any of their Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
any of their assets (including accounts receivable and Capital Stock of
Subsidiaries (other than directors' qualifying shares)) to any Person, except
for any such sale, transfer, lease, contribution or conveyance that is:
(a) (i) in the ordinary course of its business, (ii) of obsolete or
worn-out property, (iii) permitted by Section 7.2.8 or (iv) to another
Borrower or a wholly-owned U.S.
Subsidiary of any Borrower;
(b) for fair market value and the consideration consists of no less
than 80% in cash, cash equivalents or the assumption by the purchaser of
Indebtedness of such Borrower or Subsidiary; provided that (i) the net
book value of such assets, together with the net book value of all other
assets sold, transferred, leased, contributed or conveyed pursuant to this
clause (b) does not exceed (individually or in the aggregate) $30,000,000
over the term of this Agreement and (ii) the Net Disposition Proceeds
generated from such sale, transfer, lease, contribution or conveyance are
applied as a mandatory prepayment of the Loans to the extent required
pursuant to clause (c) of Section 3.1.1;
(c) (i) the issuance of Capital Stock and options pursuant to the
Arby's Stock Option Plan or (ii) a payment on or in respect of stock
options issued pursuant to the Arby's Stock Option Plan and is of the type
described in clause (k) of Section 7.2.2 or is permitted pursuant to
clause (d) of Section 7.2.6;
(d) so long as no Default has occurred or is continuing or would
occur after giving effect thereto, in connection with the consummation of
the Arby's Securitization; provided that (i) the Arby's Securitization is
consummated within nine months of the Closing Date; (ii) the Borrowers
receive Net Disposition Proceeds of at least $300,000,000 (provided that
such amount shall be increased, Dollar for Dollar, by the amount of
Investments in excess of $5,000,000 made pursuant to clause (g)(i) of
Section 7.2.5), by from the Arby's Securitization; (iii) all Net
Disposition Proceeds from the first $350,000,000 (provided that such
amount shall be increased, Dollar for Dollar, by the amount of Investments
in excess of $5,000,000 made pursuant to clause (g)(i) of Section 7.2.5)
of gross cash proceeds from the Arby's Securitization are applied as a
mandatory prepayment of the Loans pursuant to clause (c) of Section 3.1.1;
(iv) after giving effect to the Arby's Securitization including the use of
proceeds thereunder, the Borrowers shall be in pro forma compliance with
the covenants set forth in Section 7.2.4 for the most recent full Fiscal
Quarter immediately preceding the date of the consummation of the Arby's
Securitization for which the relevant financial information has been
delivered pursuant to clause (b) or clause (c) of Section 7.1.1; (v) an
Authorized Officer of Holdco shall have delivered a certificate to the
Agents in form and substance satisfactory to the Agents (including a
calculation of the Borrowers' compliance with the covenants set forth in
Section 7.2.4 in reasonable detail) certifying as to the accuracy of
clause (iv) above; (vi) the aggregate consideration received in such sale
is at least equal to the aggregate fair market value of the assets sold,
as determined by Holdco's board of directors in good faith; (vii) (A)
neither Holdco nor any Subsidiary of Holdco retains any obligation
(contingent or otherwise) (x) with respect to the assets so sold, (y) for
the Indebtedness or other liabilities (contingent or otherwise) of any
Arby's Securitization Entity purchasing such assets or (z) to subscribe
for additional shares of Capital Stock or make any addi-
tional capital contribution or similar payment or transfer to any
Arby's Securitization Entity or any other Person purchasing such assets or
to maintain or preserve the solvency, financial condition, level of income
or results of operations thereof and (B) no property of Holdco or any
Subsidiary of Holdco is subject, directly or indirectly, to the
satisfaction therefor (other than any such obligations or subjecting of
property of Arby's or any Subsidiary of Arby's pursuant to customary
representations, warranties and covenants made in connection with the sale
of such assets and other than obligations to service such assets); and
(viii) if the Arby's Securitization Residual Payment is not made, Arby's
shall retain the right to license, on a non-exclusive royalty free basis,
the trademarks included in the Arby's Securitization Assets, together with
all rights listed in the definition of "Arby's Securitization Assets" with
respect to such trademarks (other than ownership of such trademarks) in
connection with franchise agreements not owned by any Arby's
Securitization Entity;
(e) of any of the assets identified in Item 7.2.9(e) ("Specified
Assets") of the Disclosure Schedule for fair market value; provided,
however, that if the Net Disposition Proceeds generated from the sale,
transfer, lease, contribution or conveyance of any individual asset
identified therein does not exceed $250,000, such Net Disposition Proceeds
shall not be applied as a mandatory prepayment of the Loans pursuant to
clause (c) of Section 3.1.1; or
(f) so long as no Default has occurred or is continuing or would
occur after giving effect thereto, (i) of the Capital Stock of Royal Crown
to Triarc Beverage or (ii) the Royal Crown Disposition; provided that, in
the case of this clause (ii), (A) the Net Disposition Proceeds generated
thereby exceed $120,000,000 and such Net Disposition Proceeds are applied
as a mandatory prepayment of the Loans to the extent required pursuant to
clause (c) of Section 3.1.1, (B) after giving effect thereto, the
Borrowers shall be in pro forma compliance with the covenants set forth in
Section 7.2.4 for the most recent full Fiscal Quarter immediately
preceding the date thereof for which the relevant financial information
has been delivered pursuant to clause (b) or clause (c) of Section 7.1.1,
(C) an Authorized Officer of Holdco shall have delivered a certificate to
the Agents in form and substance satisfactory to the Agents (including a
calculation of the Borrowers' compliance with the covenants set forth in
Section 7.2.4 in reasonable detail) certifying as to the accuracy of
clause (B) above, (D) the aggregate consideration received in such sale is
at least equal to the aggregate fair market value of the Capital Stock or
assets sold, as determined by Holdco's board of directors in good faith,
(E) (1) neither Holdco nor any Subsidiary of Holdco retains any obligation
(contingent or otherwise) (x) with respect to the assets so sold or (y)
for the Indebtedness or other liabilities (contingent or otherwise) of any
Person purchasing such assets and (2) no property of Holdco or any
Subsidiary of Holdco is subject, directly or indirectly, to the
satisfaction therefor (other than, in each case, any such obligations or
subjecting of property of Holdco or any Subsidiary of Holdco (x) pursuant
to customary representations, warranties, covenants and indemnities made
in connection with the sale of such assets and (y) arising by operation
of law or pursuant to any statutory requirements).
SECTION 7.2.10. Modification of Certain Agreements. The Borrowers will
not, and will not permit any of their Subsidiaries to, consent to any amendment,
supplement, amendment and restatement, waiver or other modification of any of
the terms or provisions contained in, or applicable to, any of the Transaction
Documents, the Tax Sharing Agreement, the Arby's Stock Option Plan, the Triarc
Beverage Stock Option Plan or any document or instrument evidencing or
applicable to any Subordinated Debt, in each case which would (a) materially
adversely affect the rights or remedies of the Secured Parties, or materially
increase the financial obligations of Holdco or any of its Subsidiaries
thereunder, or any other Obligor's ability to perform its obligations hereunder
or under any Loan Document, or (b) with respect to any Subordinated Debt, (i)
increase the principal amount thereof, or increase the interest rate on, or add
or increase any fee with respect thereto, (ii) reduce either the tenor or the
average life thereof, (iii) change the respective primary obligor(s) thereto,
(iv) change the security, if any, therefor (except to the extent that less
security is granted to holders of such Subordinated Debt), (v) modify the
subordination provisions, if any, thereof (including any defaults or conditions
to an event of default relating thereto) in such a manner that, after giving
effect to any such modification, such Subordinated Debt would not be
subordinated to the same degree as it was prior to any such modifications, or
(vi) modify any of the covenants, defaults, rights or remedies contained therein
which would make such covenants, defaults, rights or remedies, taken as a whole,
more burdensome to the obligor or obligors thereto.
SECTION 7.2.11. Transactions with Affiliates. The Borrowers will not, and
will not permit any of their Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of their Affiliates (other
than any Borrower or any Subsidiary Guarantor) unless such arrangement or
contract is fair and equitable to such Borrower or such Subsidiary and is an
arrangement or contract of the kind which would be entered into by a prudent
Person in the position of such Borrower or such Subsidiary with a Person which
is not one of its Affiliates; provided, however, that
(a) as to the first three Fiscal Quarters of any Fiscal Year, after
delivery of the financial statements and Compliance Certificate for the
end of any Fiscal Quarter pursuant to Section 7.1.1 and, as to the fourth
Fiscal Quarter of any Fiscal Year, after delivery of a certificate of the
chief financial Authorized Officer of Holdco certifying that no Default or
Event of Default has occurred or is continuing or would result from the
making of such payment, together with a draft of the Compliance
Certificate to be delivered with respect to such Fiscal Quarter, the
Borrowers may pay management fees to Triarc for management services
rendered during such Fiscal Quarter in an amount, subject to the provisos
below, not in excess of (i) $1,125,000 for the first Fiscal Quarter of the
1999 Fiscal Year and (ii) $2,625,000 for any Fiscal Quarter thereafter
(provided that if the Arby's Securitization Residual Payment has been
made, such management fees shall not exceed $1,675,000 for any such Fiscal
Quarter thereafter); provided that to the extent the amount
of management fees permitted to be paid in any Fiscal
Quarter pursuant to this clause (a) exceeds the aggregate amount of
management fees actually paid during such Fiscal Quarter, such excess
amount may be carried forward to (but only to) the next succeeding Fiscal
Quarter (any such amount carried forward to a succeeding Fiscal Quarter
shall be deemed to be paid to Triarc prior to the Borrowers paying the
amount of management fees permitted by this clause (a) in such succeeding
Fiscal Quarter without giving effect to such carry-forward), in each case
as such amounts may be increased, but not decreased, to account for
increases in the Consumer Price Index; provided, further, that (x) no
Default shall have occurred and be continuing on the date any such payment
is made or would result from the making of any such payment, (y) after
giving effect to any such payment the Borrowers would be in pro forma
compliance with the covenants set forth in Section 7.2.4 for the most
recent full Fiscal Quarter immediately preceding the date of such payment,
and (z) an Authorized Officer of each Borrower shall have delivered a
certificate to the Agents in form and substance satisfactory to the Agents
(including a calculation of the compliance with the covenants set forth in
Section 7.2.4) certifying as to the accuracy of clauses (x) and (y) above;
provided, further, that. with respect to any management fees paid for the
fourth Fiscal Quarter of any Fiscal Year, if the Compliance Certificate
delivered in respect of such Fiscal Quarter reflects any Default of any of
the covenants set forth in Section 7.2.4 that were not reflected on the
draft Compliance Certificate delivered in respect of such Fiscal Quarter,
such management fees shall be refunded to the Borrowers;
(b) the Borrowers and their Subsidiaries may make any payments or
distributions permitted under Section 7.2.6 and in connection with the Tax
Sharing Agreement; and
(c) in any event, (i) the issuance of Capital Stock and options
pursuant to the Arby's Stock Option Plan, (ii) the Transaction and (iii)
the Arby's Securitization made on the terms set forth in this Agreement
shall each be permitted.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Borrowers will not, and will not permit any of their Subsidiaries to, enter into
any agreement (excluding this Agreement, any other Loan Document, the Indenture,
any agreement governing any Indebtedness permitted by clause (c) of Section
7.2.2 as in effect on the Closing Date or by clause (g) of Section 7.2.2 as to
the assets financed with the proceeds of such Indebtedness and any agreement in
respect of any Assumed Restricted Debt permitted pursuant to clause (l) of
Section 7.2.2) prohibiting (i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired, or the
ability of any Borrower or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document, or (ii) the ability of any Subsidiary to
make any payments, directly or indirectly, to any Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any payment, directly or indirectly, to any
Borrower.
SECTION 7.2.13. Sale and Leaseback. The Borrowers will not, and will not
permit any of their Subsidiaries to, enter into any agreement or arrangement
with any other Person providing for the leasing by any Borrower or any of its
Subsidiaries of real or personal property having a fair market value of more
than $7,500,000 in the aggregate at any time outstanding which has been or is to
be sold or transferred by any Borrower or any of its Subsidiaries to such other
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of any
Borrower or any of its Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of De-
fault".
SECTION 8.1.1. Non-Payment of Obligations. (a) Any Borrower shall default
in the payment or prepayment when due of any principal of any Loan, (b) any
Borrower shall default (and such default shall continue unremedied for a period
of five days) in the payment when due of any interest on any Loan, (c) any
Borrower shall default in the payment when due of any Reimbursement Obligation,
or (d) any Borrower shall default (and such default shall continue unremedied
for a period of five days) in the payment when due of any fee or the payment of
any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of any Borrower or any other Obligor to the Agents or any Lender
for the purposes of or in connection with this Agreement or any such other Loan
Document (including any certificates delivered pursuant to Article V) is or
shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. Any
Borrower shall default in the due performance and observance of any of its
obligations under Sections 7.1.1, 7.1.9, 7.1.11, 7.1.12, 7.1.13 or 7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to any Borrower by the
Administrative Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any Indebtedbess
(other than Indebtedness described in Section 8.1.1) of any
Borrower or any of its Subsidiaries or any other Obligor having a principal
amount, individually or in the aggregate, in excess of $10,000,000, or a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
in excess of $7,500,000 shall be rendered against any Borrower or any of its
Subsidiaries or any other Obligor and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order, or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan: (i) the institution of any steps by any Borrower,
any member of its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, such Borrower or any such member could
reasonably be expected to be required to make a contribution to such Pension
Plan, or could reasonably expect to incur a liability or obligation to such
Pension Plan, in excess of $7,500,000, or (ii) a contribution failure with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Material Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for such Material
Obligor any property of any thereof, or make a general assignment for the
benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Material Obligor or for a
substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within
60 days, provided that each Material Obligor hereby expressly authorizes
the Administrative Agent and each Lender to appear in any court conducting
any relevant proceeding during such 60- day period to preserve, protect
and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of such Material Obligor, and, if any
such case or proceeding is not commenced by such Material Obligor, such
case or proceeding shall be consented to or acquiesced in by such Person
or shall result in the entry of an order for relief or shall remain for 60
days undismissed, provided that each Material Obligor hereby expressly
authorizes the Administrative Agent and each Lender to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing;
provided, however, that for purposes of this Section 8.1.9 only, Material
Obligor shall also include direct and indirect Subsidiaries of Holdco that are
not otherwise Material Obligors which, in the aggregate, (a) accounted for 15%
or more of the EBITDA of Holdco and its Subsidiaries on a consolidated basis or
(b) have assets which represent 15% or more of the consolidated gross assets of
Holdco and its Subsidiaries, in each case as determined in accordance with the
definition of "Material Subsidiary".
SECTION 8.1.10. Impairment of Security, etc. (a) Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; (b) any
Borrower, any other Obligor or any other party shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or (c) any Lien securing any Obligation shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to those
exceptions expressly permitted by this Agreement or such Loan Document.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrowers declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable, require the Borrowers to provide cash collateral to be deposited with
the Administrative Agent in an amount equal to the Letter of Credit Outstandings
and/or declare the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, the Borrowers shall deposit
with the Administrative Agent cash collateral in an amount equal to the Letter
of Credit Outstandings and/or, as the case may be, the Commitments shall ter-
minate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its Syndication
Agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as its Documentation Agent and BNY as its Administrative
Agent under and for purposes of this Agreement and each other Loan Document.
Each Lender authorizes the Agents to act on behalf of such Lender under this
Agreement and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agents
(with respect to which each of the Agents agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agents by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. The Agents shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and except as otherwise specifically
provided herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Lenders. No Agent nor any of its directors,
officers, employees or agents shall have any responsibility to the Borrowers on
account of the failure of or delay in performance or breach by any other Agent
or any Lender of any of its obligations hereunder or to any Lender on account of
the failure of or delay in performance or breach by any Lender, any other Agent
or any Borrower of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Agents, pro rata according to such Lender's percentage of the Total Exposure
Amount, from and against any and all liabilities, obligations, losses, damages,
claims, costs or expenses of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against, any of the Agents in any way
relating to or arising out of this Agreement and any other Loan Document,
including reasonable attorneys' fees, and as to which any Agent is not
reimbursed by the Borrowers; provided, however, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses to the extent determined by a court of
competent jurisdiction in a final proceeding to have resulted solely from such
Agent's gross negligence or wilful misconduct. The Agents shall not be required
to take any action hereunder or under any other Loan Document, or to prosecute
or defend any suit in respect of this Agreement or any other Loan Document,
unless each Agent is indemnified hereunder to its satisfaction. If any indemnity
in favor of any of the Agents shall be or become, in such Agent's determination,
inadequate, such Agent may call for additional indemnification from the Lenders
and cease to do the acts indemnified against hereunder until such additional
indemnity is given. Each Agent may execute any and all duties
hereunder by or through agents, attorneys-in-fact or employees
and shall be entitled to rely upon the advice of legal counsel,
accountants or experts selected by each of them in good faith and with
reasonable care with respect to all matters arising hereunder. The Lenders and
the Agents hereby acknowledge that no Agent shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement unless it shall be requested in writing to do so by the Required
Lenders. The Issuer shall act on behalf of the Secured Parties with respect to
all Letters of Credit and the documents associated therewith until such time and
except for so long as the Administrative Agent may agree at the request of the
Lenders to act for the Issuer with respect thereto.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and each Borrower
severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrowers to the date
such amount is repaid to the Administrative Agent, (i) if from a Lender, at the
Federal Funds Rate for the first three days and thereafter at the Alternate Base
Rate, and (ii) if from the Borrowers, at the interest rate applicable at the
time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Agents, the Arrangers nor any of
their respective directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this Agreement or
any other Loan Document, or in connection herewith or therewith, except for its
own wilful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Borrowers or any Obligor of its obligations
hereunder or under any other Loan Document. Any such inquiry which may be made
by any Agent shall not obligate it to make any further inquiry or to take any
action. The Issuer shall have all the benefits and immunities (i) provided to
the Agents in this Article IX with respect to any acts taken or omissions
suffered by the Issuer in connection with Letters of Credit issued or proposed
to be issued by it and the Letter of Credit applications and related documents
as fully as if the term "Agents", as used in this Article IX, included the
Issuer with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuer. The Agents shall be entitled to
rely upon advice of counsel concerning legal matters and upon any notice, con-
sent, certificate, statement or writing which each Agent believes to be
genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon one
Business Day's notice to the Borrowers and the Administrative Agent. The
Documentation Agent may resign as such upon one Business Day's notice to the
Borrowers, the Syndication Agent and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrowers, the Syndication Agent, the Documentation Agent and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may, with the prior consent of the Borrowers (which consent shall not be
unreasonably withheld or delayed), appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed,
and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Secured Parties, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as an Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this
Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its
benefit.
SECTION 9.5. Loans or Letters of Credit Issued by the Agents. Each Agent
shall have the same rights and powers with respect to (x) the Loans made by it
or any of its Affiliates, (y) the Notes held by it or any of its Affiliates, and
(z) its participating interests in the Letters of Credit as any other Lender and
may exercise the same as if it were not an Agent. Each Agent and each of their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrowers or any Subsidiary or Affiliate
of the Borrowers as if such Agent were not an Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agents, the Arrangers and each other Lender, and based on
such Lender's review of the financial information of Holdco and each of the
Borrowers, this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other docu-
ments, information and investigations as such Lender has deemed appropriate,
made its own credit decision to extend its Commitments. Each Lender also
acknowledges that it will, independently of the Agents, the Arrangers and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrowers pursuant to the terms of this
Agreement (unless concurrently required to be delivered to the Lenders by the
Borrowers). The Administrative Agent will distribute to each Lender each
document or instrument received for its account and copies of all other
communications received by the Administrative Agent from the Borrowers for
distribution to the Lenders by the Administrative Agent in accordance with the
terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; provided, however, that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 10.1, change the definition of "Required
Lenders", increase any Commitment Amount or the Percentage of any Lender,
reduce any fees described in Article III other than in Section 3.3.2,
release Holdco, Triarc Beverage or any Subsidiary Guarantor from its
guaranty obligations under any Loan Document or release all or
substantially all of the collateral security, except as otherwise
specifically provided in this Agreement or in any other Loan Document (it
being understood that no consent of any Lender shall be required in
connection with the release of any Subsidiary Guarantor from its
obligations under the Subsidiary Guaranty or any release of any collateral
security, in each case, in connection with the Arby's Securitization, the
Arby's Securitization Residual Payment and the Royal Crown Disposition),
or extend the Revolving Loan Commitment Termination Date shall be made
without the consent of each Lender adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on any Loan or any
Reimbursement Obligation (or reduce the principal amount of or rate of
interest on any Loan or any Reimbursement Obligation) shall be made
without the consent of the holder of such Loan or, in the case of a
Reimbursement Obligation, the Issuer owed, and those Lenders participating
in, such Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of the
Issuer qua the Issuer shall be made without the consent of the Issuer;
(e) affect adversely the interests, rights or obligations of any
Agent or Arranger (in its capacity as such) shall be made without consent
of such Agent or such Arranger, as the case may be;
(f) (i) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 or (ii) by its terms,
adversely affect the rights of Lenders participating in any Tranche
differently from those of Lenders participating in other Tranches, in
either case shall be made without the consent of Lenders holding more than
50% of the aggregate amount of Loans outstanding under the Tranche or
Tranches affected by such modification, or, in the case of a modification
affecting the Revolving Loan Commitment Amount, the Lenders holding more
than 50% of the Revolving Loan Commitments;
(g) (i) change the definition of "Borrowing Base Amount", "Eligible
Account", "Eligible Inventory" or "Net Asset Value", in each case if
the effect of such change would be to require a Lender to make or
participate in a Credit Extension in an amount that is greater than
such Lender would have had to make or participate in immediately
prior to such change, shall be made without the consent of Lenders
holding more than 50% of the Revolving Loan Commitments;
(ii) waive any Default that has occurred and is continuing
shall be made without the consent of Lenders holding more than 50%
of the Revolving Loan Commitments;
(iii) amend, modify or waive any of the provisions of Section
7.2.4 in any manner shall be made without the consent of Lenders
holding more than 50% of the Revolving Loan Commitments unless each
of the following conditions is satisfied: (A) immediately prior to
the effective date of such amendment, modification or waiver, no
Default shall have occurred and be continuing and (B) the effect of
any such amendment, modification or waiver does not by itself enable
the Borrowers to satisfy the conditions precedent set forth in
Section 5.2.1 to the making of a Revolving Loan or the issuance of a
Letter of Credit either immediately or at any time within three
months following the earlier of (x) three weeks from the date the
request for such amendment, modification or waiver is delivered
to the Administrative Agent and (y) the effective date of such
amendment, modification or waiver; or
(iv) amend, modify or waive any of the provisions of Section
7.2.4 to permit the Borrowers to take (or cause to be taken) any
action (including, without limitation, any acquisition or
disposition of any Person or any properties or assets) which is
reasonably expected to result in the Borrowers' failure to comply
with any provision of Section 7.2.4 (a "Contemplated Transaction")
shall be made without the consent of Lenders holding more than 50%
of the Revolving Loan Commitments unless each of the following
conditions is satisfied: (A) immediately prior to the effective date
of any such amendment, modification or waiver, no Default shall have
occurred and be continuing and (B) the Contemplated Transaction is
to be consummated after three months following the earlier of (x)
three weeks from the date the request for such amendment,
modification or waiver is delivered to the Administrative Agent and
(y) the effective date of such amendment, modification or waiver.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on any Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
For purposes of this Section 10.1, the Syndication Agent, in coordination
with the Administrative Agent, shall have primary responsibility, together with
the Borrowers, in the negotiation, preparation, and documentation relating to
any amendment, modification or waiver of this Agreement, any other Loan Document
or any other agreement or document related hereto or thereto contemplated
pursuant to this Section.
SECTION 10.2. Notices. All notices and other communications provided to
any party under this Agreement or any other Loan Document shall be in writing or
by facsimile and addressed, delivered or transmitted to such party (a) in the
case of any Lender, at its address or facsimile number set forth opposite its
name on Schedule II hereto under the applicable column heading or as set forth
in the Lender Assignment Agreement, (b) in the case of any Agent, at its address
or facsimile number set forth below its signature hereto, and (c) in the case of
Holdco, Triarc Beverage, any Borrower or any other Subsidiary of Holdco, to such
Person in care of Triarc Companies, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or, in
any case, at such address or facsimile number as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmit-
▇▇▇ by facsimile, shall be deemed given when transmitted (receipt acknowledged).
SECTION 10.3. Payment of Costs and Expenses. The Borrowers hereby jointly
and severally agree to pay on demand all expenses of each of the Agents (includ-
ing the reasonable fees and out-of-pocket expenses of counsel to the Agents) in
connection with
(a) the syndication by the Syndication Agent, the Arrangers of the
Loans, the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each Mortgage,
each Pledge Agreement and each Security Agreement and/or any UCC financing
statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or of any Mortgage, Pledge
Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save the Agents
and the Lenders harmless from all liability for, any stamp or other taxes which
may be payable in connection with the execution or delivery of this Agreement,
the Borrowings hereunder, the issuance of the Notes, the issuance of the Letters
of Credit, or any other Loan Documents. The Borrowers jointly and severally
agree to reimburse each Agent and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by such Agent or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby jointly and severally indemnify, exonerate and hold each
Agent, the Arrangers, the Issuer and each Lender and each of their respective
partners, trustees, officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of
them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan or the use of any
Letter of Credit;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not such Agent, such Arranger, the Issuer or such Lender is
party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by any Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by any Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control
of, such Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. Each Obligor and its permitted successors and
assigns hereby waive, release and agree not to make any claim, or bring any cost
recovery action against, any Agent, any Arranger or any Lender under CERCLA or
any state equivalent, or any similar law now existing or hereafter enacted,
except to the extent arising out of the gross negligence or wilful misconduct of
any Indemnified Party. It is expressly understood and agreed that to the extent
that any of such Persons is strictly liable under any Environmental Laws, such
Obligor's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of such Obligor, to the extent permitted
under applicable law, with respect to the violation or condition which results
in liability of such Person. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, such Obligor hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 4.6, Section 4.8, Section 9.1 and Section 10.12, shall in each case
survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by each Borrower and each other Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrowers and each Lender (or
notice thereof satisfactory to the Agents) shall have been received by the
Syndication Agent and notice thereof shall have been given by the Administrative
Agent to the Borrowers and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement and the
other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) no Borrower may assign or transfer its rights or obligations
hereunder without the prior written consent of the Agents and all Lenders,
except as otherwise specifically provided in this Agreement or in any
other Loan Document; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participation in
Loans and Notes. Each Lender may assign, or sell participation in, its Loans and
Commitments to one or more other Persons in accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the prior written consents of the Borrowers, the Agents and
(in the case of any assignment of participations in Letters of Credit or
Revolving Loan Commitments) each Issuer (which consents shall not be
unreasonably delayed or withheld and which consents of the Agents and each
Issuer shall not be required in the case of assignments made by or to DLJ,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the Administrative Agent or any of their Affiliates and
which consent of the Borrowers shall not be required if an Event of
Default under Section 8.1.1 or Section 8.1.9 shall have occurred and be
continuing) may at any time assign and delegate to one or more commercial
banks, other financial institutions, or funds which are primarily engaged
in making, purchasing or investing in loans of the type made pursuant to
this Agreement, and
(b) with notice to the Borrowers, the Agents and (in the case of any
assignment of participations in Letters of Credit or Revolving Loan
Commitments) each Issuer, but without the consent of the Borrowers, the
Agents or any Issuer, may assign and delegate to any of its Affiliates or
to any other Lender or to any Person whose investment manager or
investment advisor is the investment manager or investment advisor of such
Lender (a "Related Fund")
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans and participations in Letters
of Credit, of a constant, and not a varying, percentage), in a minimum aggregate
amount of (i) $1,000,000 (if such assignment and delegation is to a then
existing Lender or Affiliate or Related Fund of any Lender) and (ii) $2,000,000
(if such assignment and delegation is to a Person not then a Lender or Affiliate
or Related Fund of any Lender) or the then remaining amount of a Lender's Loans
and Commitments; provided, however, that any such Assignee Lender will comply,
if applicable, with the provisions contained in Section 4.6; provided, further,
however, that concurrent assignments to a Person and one or more of its
Affiliates or Related Funds shall be treated as one assignment for purposes of
the minimum aggregate amount set forth in clause (ii) above; and provided,
further, however, that the Borrowers, each other Obligor and the Agents shall be
entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the
Borrowers and the Agents by such Lender and such Assignee Lender,
(ii) such Assignee Lender shall have executed and delivered to
the Borrowers and the Agents a Lender Assignment Agreement, accepted
by the Agents (if required),
(iii) the processing fees described below shall have been paid
(if required), and
(iv) such assignment and delegation shall have been delivered
to the Administrative Agent for registration in the Register
pursuant to clause (b) of Section 2.7.
From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
clause (b) of Section 2.7, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Any assignor Lender that shall have previously requested and
received any Note or Notes to which such assignment applies shall, upon accep-
tance by the Administrative Agent of the applicable Lender Assignment Agreement,
▇▇▇▇ such predecessor Note or Notes "exchanged" and deliver them to the Borrow-
ers (against, if the assignor Lender has retained Loans or Commitments and has
requested replacement Notes pursuant to clause (b)(ii) of Section 2.7, its re-
ceipt of replacement Notes in the principal amount of the Loans and Commitments
retained by it). The Borrowers shall execute and deliver to the Administrative
Agent (for delivery to the relevant Assignee Lender) new Notes evidencing such
Assignee Lender's assigned Loans and Commitments and, if the assignor Lender
has retained Loans and Commitments hereunder, replacement Notes in the principal
amount of the Loans and Commitments retained by the assignor Lender hereunder
(such Notes to be in exchange for, but not in payment of, those Notes then held
by such assignor Lender). Each such Note shall be dated the date of the prede-
cessor Notes. Accrued interest on that part of the predecessor Notes evidenced
by the new Notes, and accrued fees, shall be paid as provided in the Lender
Assignment Agreement. Accrued interest on that part of the predecessor Notes
evidenced by the replacement Notes shall be paid to the assignor Lender. Ac-
crued interest and accrued fees shall be paid at the same time or times provided
provided in the predecessor Notes and in this Agreement. Such assignor Lender or
such Assignee Lender must also pay a processing fee to the Administrative Agent
upon delivery of any Lender Assignment Agreement in the amount of $3,500, unless
such assignment and delegation by such assignor Lender is to its Affiliate or
Related Fund or if such assignment and delegation consists of a pledge by such
assignor Lender to a Federal Reserve Bank (or, in the case of an assignor Lender
who is an investment fund, to the trustee under the indenture to which such fund
is a party), as provided below or as otherwise consented to by the Administra-
tive Agent. Any attempted assignment and delegation not made in accordance with
this Section 10.11.1 shall be null and void. Nothing contained in this
Section 10.11.1 shall prevent or prohibit any Lender from pledging its rights
(but not its obligations to make Loans) under this Agreement and/or its Loans
and/or its Notes hereunder (i) to a Federal Reserve Bank in support of borrow-
ings made by such Lender from such Federal Reserve Bank or (ii) in the case of a
Lender that is an investment fund, to the trustee under the indenture to which
such fund is a party in support of its obligations to such trustee, in either
case without notice to or consent of the Borrowers or the Agents; provided, how-
ever, that (A) such Lender shall remain a "Lender" under this Agreement and
shall continue to be bound by the terms and conditions set forth in this Agree-
ment and the other Loan Documents, and (B) any assignment by such trustee shall
be subject to the provisions of clause (a) of this Section 10.11.1. In the event
that S&P, ▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇▇'▇ BankWatch (or InsuranceWatch Ratings Service,
in the case of Lenders that are insurance companies (or Best's Insurance
Watch Ratings Service)) shall, after the date that any Lender with a Com-
mitment to make Revolving Loans or participate in Letters of Credit becomes a
Lender, downgrade the long-term certificate of deposit rating or long-term
senior unsecured debt rating of such Lender, and the resulting rating shall be
below BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance company
(or B, in the case of an insurance company not rated by InsuranceWatch Ratings
Service)), then the Issuer shall have the right, but not the obligation, upon
notice to such Lender and the Administrative Agent, to replace such Lender with
an Assignee Lender in accordance with and subject to the restrictions contained
in this Section, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
this Section) all its interests, rights and obligations in respect of its
Revolving Loan Commitment under this Agreement to such Assignee Lender; pro-
vided, however, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any governmental authority and (ii) such Assignee
Lender shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest and fees (if any) accrued to the
date of payment on the Loans made, and Letters of Credit participated in, by
such Lender hereunder and all other amounts accrued for such Lender's account
or owed to it hereunder.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks, other financial institutions or funds which are primarily
engaged in making, purchasing or investing in loans of the type made pursuant to
this Agreement (each of such commercial banks, financial institutions or funds
being herein called a "Participant") participating interests (or a
sub-participating interest, in the case of a Lender's participating interest in
a Letter of Credit) in any of the Loans, Commitments, or other interests of such
Lender hereunder; provided, however, that
(a) no participation or sub-participation contemplated in this
Section 10.11.2 shall relieve such Lender from its Commitments or its
other obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations,
(c) the Borrowers and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and each of the
other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate or
Related Fund of such Lender, or is itself a Lender, shall be entitled to
require such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's consent,
agree to (i) any reduction in the interest rate or in the amount of fees
that such Participant is otherwise entitled to, (ii) a decrease in the
principal amount, or an extension of the Stated Maturity Date, of any Loan
in which such Participant has purchased a participating interest or (iii)
release all or substantially all of the collateral security under the Loan
Documents or any Guarantor from its obligations under its Guaranty, in
each case except as otherwise specifically provided in a Loan Document,
and
(e) no Borrower shall be required to pay any amount under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the amount which it
would have been required to pay had no participating interest been sold.
The Borrowers acknowledge and agree, subject to clause (e) above, that each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3, 10.4
and 10.12, shall be considered a Lender.
SECTION 10.12. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking or investment
practices (as applicable) and in any event may make disclosure to any of their
examiners, Affiliates, outside auditors, counsel and other professional advisors
in connection with this Agreement or as reasonably required by any bona fide
transferee, participant or assignee or to any direct or indirect contractual
counterparties in swap agreements or such contractual counterparties'
professional advisors provided that such transferee, participant, assignee,
contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, or as required or requested by any
governmental agency, bank regulator or insurance company regulator or
representative thereof or pursuant to legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court order,
each Lender shall notify the Borrowers of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of such Lender by such governmental agency)
for disclosure of any such non-public information prior to disclosure of
such information;
(b) prior to any such disclosure pursuant to this Section 10.12,
each Lender shall require any such bona fide transferee, participant and
assignee receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this Section 10.12; and
(ii) to require such Person to require any other Person to
whom such Person discloses such non-public information to be
similarly bound by this Section 10.12; and
(c) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the Borrowers
or any Subsidiary.
SECTION 10.13. Other Transactions. Nothing contained herein shall preclude
the Agents, the Arrangers or any other Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY LITIGA-
TION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREE-
MENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUER, THE
ARRANGERS, THE LENDERS OR THE BORROWERS SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DIS-
TRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWERS HEREBY EX-
PRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IR-
REVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. THE BORROWERS FURTHER IRREVOCABLY CONSENT TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AND EXPRESSLY AND IRREVOCABLY APPOINT
TRIARC AS THEIR AGENT FOR SERVICE OF PROCESS FOR PURPOSES OF ANY ACTION AS TO
WHICH THEY HAVE SUBMITTED TO JURISDICTION AS SET FORTH IN THIS SECTION 10.14,
AND AGREE THAT SERVICE UPON SUCH AUTHORIZED AGENT SHALL BE DEEMED IN EVERY
RESPECT SERVICE OF PROCESS UPON THE BORROWERS OR THEIR SUCCESSORS AND ASSIGNS,
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHALL BE TAKEN
AND HELD TO BE VALID PERSONAL SERVICE UPON THEM. THE BORROWERS
HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE ISSUER, THE
ARRANGERS, THE LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
ISSUER, THE ARRANGERS, THE LENDERS OR THE BORROWERS. THE BORROWERS ACKNOWLEDGE
AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH ANY
BORROWER IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENTS, THE ISSUER, THE ARRANGERS AND THE LENDERS ENTERING INTO THIS AGREEMENT
AND EACH SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
MISTIC BRANDS, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
SNAPPLE BEVERAGE CORP.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
CABLE CAR BEVERAGE CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
RC/ARBY'S CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Secretary
ROYAL CROWN COMPANY, INC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent and as a Lender
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR
FUNDING, INC.,
as Documentation Agent and as a Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Principal
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
THE BANK OF NEW YORK,
as Administrative Agent, as Issuer
and as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
List of Omitted Schedules and Exhibits
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT B-1 - Form of Term A Note
EXHIBIT B-2 - Form of Term B Note
EXHIBIT B-3 - Form of Term C Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Issuance Request
EXHIBIT E - Form of Borrowing Base Certificate
EXHIBIT F - Form of Continuation/Conversion Notice
EXHIBIT G - Form of Closing Date Certificate
EXHIBIT H - Form of Compliance Certificate
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J-1 - Form of Holdco/Triarc Beverage Guaranty and Pledge Agreement
EXHIBIT J-2 - Form of Borrower Pledge Agreement
EXHIBIT J-3 - Form of Subsidiary Pledge Agreement
EXHIBIT K-1 - Form of Borrower Security Agreement
EXHIBIT K-2 - Form of Subsidiary Security Agreement
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of Solvency Certificate
The Registrant hereby agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon its request.