EXHIBIT 20
NationsBank Loan Documents (Exhibits and Schedules omitted)
REDACTED
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated
January 25, 1996, made by DWG ACQUISITION GROUP, L.P., a Delaware limited
partnership (the "PLEDGOR"), in favor of NATIONSBANK, N.A., (the "BANK"),
as collateral agent for the Bank, NATIONSBANK OF FLORIDA, N.A. (the
"FLORIDA BANK") and the permitted successors and assigns of the Bank and
the Florida Bank (in such capacity, the COLLATERAL AGENT).
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇ are the
sole general partners of the Pledgor;
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
(collectively, the "▇▇▇▇▇ BORROWERS") and the Bank are parties to a
Credit Agreement dated as of January 18, 1996 (such Agreement, as
amended or otherwise modified from time to time, being hereinafter
referred to as the "▇▇▇▇▇ CREDIT AGREEMENT"), pursuant to which the Bank
has agreed to make demand loans to the ▇▇▇▇▇ Borrowers in an aggregate
principal amount at any one time outstanding not to exceed the amount of
the Commitment (as defined in the ▇▇▇▇▇ Credit Agreement)];
WHEREAS, ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ May
(collectively, the "MAY BORROWERS"; together with the ▇▇▇▇▇ Borrowers,
collectively the "BORROWERS"),) and the Bank are parties to a Credit
Agreement dated as of January 18, 1996 (such Agreement, as amended or
otherwise modified from time to time, being hereinafter referred to as
the "MAY CREDIT AGREEMENT"; together with the ▇▇▇▇▇ Credit Agreement, the
"CREDIT AGREEMENTS"), pursuant to which the Bank has agreed to make
demand loans to the May Borrowers in an aggregate principal amount at any
one time outstanding not to exceed the amount of the Commitment (as
defined in the May Credit Agreement)];
WHEREAS, the Florida Bank has made (i) a
term loan to ▇▇▇▇▇▇ ▇▇▇▇▇ in the original principal amount of
$102,000,000 pursuant to the Term Loan Agreement dated as of July 29,
1994 (such Agreement, as amended or otherwise modified from time to time,
being hereinafter referred to as the "▇▇▇▇▇ TERM AGREEMENT"), between
▇▇▇▇▇▇ ▇▇▇▇▇ and the Florida Bank, and (ii) a term loan to ▇▇▇▇▇ ▇▇▇ in
the original principal amount of $51,000,000 pursuant to the Term Loan
Agreement dated as of July 29, 1994 (such Agreement, as amended or
otherwise modified from time to time, being hereinafter referred to as
the "MAY TERM AGREEMENT"; together with the ▇▇▇▇▇ Term Agreement,
collectively the "TERM AGREEMENTS"), between ▇▇▇▇▇ ▇▇▇ and the Florida
Bank;
WHEREAS, it is a condition precedent to
the making of any demand loan by the Bank pursuant to either Credit
Agreement that, among other things, the Pledgor shall have executed and
delivered to the Collateral Agent a pledge and security agreement
providing for the pledge to the Collateral Agent of, and the grant to the
Collateral Agent of a security interest in, certain of the outstanding
shares of capital stock issued by Triarc Companies, Inc. that are owned
by the Pledgor; and
WHEREAS, the Pledgor has determined that its
execution, delivery and performance of this Pledge and Security Agreement
directly benefit, and are in the best interests of, the Pledgor;
NOW, THEREFORE, in consideration of the
premises and the agreements herein and in order to induce the Bank to
make and maintain the Demand Loans, the Pledgor hereby agrees with the
Collateral Agent as follows:
SECTION 1. DEFINITIONS. (a) Reference
is hereby made to (i) each Credit Agreement and each Term Agreement for a
statement of the respective terms thereof. All terms used in this Agreement
that are defined in a Credit Agreement, in a Term Agreement (if both Credit
Agreements have been terminated) or in Article 8 or 9 of the Uniform
Commercial Code (the "CODE") currently in effect in the State of New York
and that are not otherwise defined herein shall have the same meanings herein
as set forth therein.
(b) As used in this Agreement, the following
terms shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of the terms defined:
"DEFAULT" means the occurrence of any "Default"
(as defined in any Credit or Term Agreement).
"EVENT OF DEFAULT" means the occurrence of any
"Event of Default" (as defined in any Credit Agreement or Term Agreement).
"LOAN DOCUMENTS" means the Term Agreements, the
Credit Agreements, the "Loan Documents" (as defined in the Credit Agreements),
each "Pledge Agreement" (as defined in each Term Agreement), each Note (as
defined in each Term Agreement), this Agreement and all other instruments,
documents and other agreements executed and delivered pursuant hereto or
thereto.
"RULE 144" means Rule 144 promulgated by the
Securities and Exchange Commission under the Securities Act of 1933.
"SHARES" means shares of the common stock
of the Issuer (as defined in Section 2 hereof) of the same class as the
Pledged Shares.
SECTION 2. PLEDGE AND GRANT OF SECURITY
INTEREST. As collateral security for all of the Obligations (as defined
in Section 3 hereof), the Pledgor hereby pledges and assigns to the
Collateral Agent, for the benefit of the Collateral Agent, the Bank and
the Florida Bank, and grants to the Collateral Agent, for the benefit of
the Collateral Agent, the Bank and the Carolinas Bank, a continuing
security interest in, the following (collectively, the "PLEDGED COLLATERAL"):
(a) the shares of stock described in item 1 of Schedule I
hereto (the "PLEDGED SHARES") issued by Triarc Companies, Inc. (the
ISSUER"), the certificates representing the Pledged Shares, all
options and other rights, contractual or otherwise, in respect
thereof (including, without limitation, any registration rights,
whether under the Registration Rights Agreement dated as of April
23, 1993 (as amended or otherwise modified from time to time, the
"REGISTRATION RIGHTS AGREEMENT"), between the Issuer and the
Pledgor, or otherwise) and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
Pledged Shares; and
(b) all proceeds of any and all of the foregoing;
in each case, whether now owned or hereafter acquired by the Pledgor and
howsoever such interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest
created hereby in the Pledged Collateral constitutes continuing
collateral security for all of the following obligations, whether now
existing or hereafter incurred (the "OBLIGATIONS"):
(a) the obligation of the Borrowers to pay, as and when due
and payable (on demand, by mandatory prepayment, by scheduled maturity or
otherwise), all amounts from time to time owing by them in respect of any
Loan Document, whether for principal, interest, fees or otherwise
(including, without limitation, amounts that but for the operation of
Section 362(a) of the Bankruptcy Code would become due);
(b) the due performance and observance by the Borrowers of
all of their other obligations from time to time existing under any Loan
Document; and
(c) the due performance and observance by the Pledgor of all of
its obligations under this Agreement and any other Loan Document to which it
is or may become a party.
Without limiting the generality of the foregoing, this Agreement secures
the payment of all amounts that constitute part of the Obligations and
would be owed by a Borrower to the Bank or to the Florida Bank under a
Note (as defined in any Term Agreement or any Credit Agreement) or any of
the other Loan Documents but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving either Borrower.
SECTION 4. DELIVERY OF THE PLEDGED COLLATERAL.
(a) All certificates representing the Pledged Shares shall
be delivered to the Collateral Agent on or prior to the execution and
delivery of this Agreement. All other certificates and instruments
constituting Pledged Collateral from time to time shall be delivered to
the Collateral Agent promptly upon the receipt thereof by or on behalf of
the Pledgor. All such certificates and instruments shall be held by or
on behalf of the Collateral Agent pursuant hereto and shall be delivered
in suitable form for transfer by delivery or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Collateral Agent.
(b) If the Pledgor shall receive, by virtue of the Pledgor's
being or having been an owner of any Pledged Collateral, any (i) stock
certificate (including, without limitation, any certificate representing
a stock dividend or distribution in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale of
assets, combination of shares, stock split, spinoff or split-off),
promissory note or other instrument, (ii) option or right, whether as an
addition to, substitution for, or in exchange for, any Pledged
Collateral, or otherwise, (iii) dividends payable in cash (except such
dividends permitted to be retained by the Pledgor pursuant to Section
7(a) hereof) or in securities or other property or (iv) dividends or
other distributions in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus
or paid-in surplus, the Pledgor shall receive such stock certificate,
promissory note, instrument, option, right, payment or distribution in
trust for the benefit of the Collateral Agent, shall segregate it from
the Pledgor's other property and shall deliver it forthwith to the
Collateral Agent in the exact form received, with any necessary
indorsement and/or appropriate stock powers duly executed in blank, to be
held by the Collateral Agent as Pledged Collateral and as further
collateral security for the Obligations.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents
and warrants as follows:
(a) The Pledgor (i) is a limited partnership duly organized, validly
existing and in good standing under the laws of the state of its organization
as set forth on the first page hereof and (ii) has all requisite power and
authority to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance by the Pledgor of this
Agreement (i) have been duly authorized by all necessary partnership action,
(ii) do not and will not contravene its Partnership Agreement, any law or any
contractual restriction binding on or affecting the Pledgor or any of its
properties, and (iii) do not and will not result in or require the creation of
any lien, security interest or other charge or encumbrance upon or with respect
to any of its properties, other than in favor of the Collateral Agent. The
exercise by the Collateral Agent of its rights and remedies under this
Agreement (including, without limitation, the sale or other disposition of the
Pledged Shares) will not violate any contractual restriction binding on or
affecting the Pledgor or the Pledged Shares.
(c) This Agreement constitutes the legal, valid and binding obligation
of the Pledgor, enforceable against the Pledgor in accordance with its terms.
(d) The Pledged Shares are fully paid and nonassessable and, to the
best of the Pledgor's knowledge, have been duly authorized and validly issued.
All other shares of stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and nonassessable. The Pledgor has
legally and beneficially owned the Pledged Shares since April 23, 1993. The
information set forth in Schedule I hereto is true and correct.
(e) There is no action, suit or proceeding pending or, to the Pledgor's
knowledge, threatened or otherwise affecting the Pledgor before any court or
other governmental authority or arbitrator that is reasonably likely to
materially adversely affect the financial condition of the Pledgor or the
Pledgor's ability to perform its obligations hereunder and under the other Loan
Documents.
(f) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or other regulatory body or any
other Person is required for (i) the due execution, delivery and performance by
the Pledgor of this Agreement or the other Loan Documents to which the Pledgor
is a party, (ii) the grant by the Pledgor, or the perfection, of the security
interest purported to be created hereby in the Pledged Collateral or (iii) the
exercise by the Collateral Agent of any of its rights and remedies hereunder.
(g) The Pledgor is and will be at all times the legal and beneficial
owner of the Pledged Collateral, free and clear of any lien, security interest,
option or other charge or encumbrance except for the security interest created
by this Agreement. There is no financing statement naming the Pledgor as debtor
(or similar documents or instrument of registration under the law of any
jurisdiction) now on file or registered in any public office covering any
interest of the Pledgor in the Pledged Collateral.
(h) This Agreement creates a valid security interest in favor of the
Collateral Agent in the Pledged Collateral, as security for the Obligations.
The Collateral Agent's having possession of the Pledged Shares and all other
certificates, instruments and cash constituting Pledged Collateral from time to
time results in the perfection of such security interest. Such security
interest is, or in the case of Pledged Collateral in which the Pledgor obtains
rights after the date hereof, will be, a perfected, first priority security
interest. All action necessary or desirable to perfect and protect such
security interest has been duly taken, except for the Collateral Agent's having
possession of certificates, instruments and cash constituting Pledged
Collateral after the date hereof.
(i) The information on Exhibit A hereto (the Restricted
Securities Statement) is accurate and complete.
(j) The Pledgor has furnished the Collateral Agent with a true,
correct and complete copy of the Registration Rights Agreement and each
other registration rights and other agreement in respect of or otherwise
affecting any of the Pledged Shares in existence on the date hereof.
SECTION 6. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as
any of the Obligations shall remain outstanding or the Bank shall have
any Commitment under either Credit Agreement, unless the Collateral Agent
shall otherwise consent in writing:
(a) RECORDS. The Pledgor will keep adequate records
concerning the Pledged Collateral and permit the Collateral Agent or any
agents or representatives of the Collateral Agent at any reasonable time
and from time to time to examine and make copies of and abstracts from
such records.
(b) NOTICES. The Pledgor will, at the expense of the
Pledgor, promptly deliver to the Collateral Agent a copy of each notice
or other communication received by it from any Governmental Authority or
the Issuer in respect of the Pledged Collateral, together with a copy of
any reply by the Pledgor thereto.
(c) DEFEND TITLE. The Pledgor will (at the expense of the
Pledgor) defend its right, title and interest in and to the Pledged
Collateral against the claims of any Person.
(d) FURTHER ASSURANCES. The Pledgor will, at the Pledgor's
expense, at any time and from time to time, promptly execute and deliver
all further instruments and documents and take all further action that
may be necessary or desirable or that the Collateral Agent may reasonably
request in order (i) to perfect and protect the security interest created
or purported to be created hereby (whether pursuant to laws, rules,
regulations or general practices currently in effect or adopted
subsequent to the date hereof); (ii) to enable the Collateral Agent to
exercise and enforce its rights and remedies hereunder in respect of the
Pledged Collateral (including, without limitation, by executing one or
more Forms 144); or (iii) to otherwise effect the purposes of this
Agreement, including, without limitation: (A) at the request of the
Collateral Agent, marking conspicuously each of the records of the
Pledgor pertaining to the Pledged Collateral with a legend, in form and
substance satisfactory to the Collateral Agent, indicating that such
Pledged Collateral is subject to the security interest created hereby;
(B) if any Pledged Collateral shall be evidenced by a promissory note or
other instrument or chattel paper, delivering and pledging to the
Collateral Agent hereunder such note, instrument or chattel paper duly
indorsed and accompanied by executed instruments of transfer or
assignment, all in form and substance satisfactory to the Collateral
Agent; (C) delivering to the Collateral Agent irrevocable proxies in
respect of the Pledged Collateral and executing and filing such financing
or continuation statements, or amendments thereto, as may be necessary or
desirable or that the Collateral Agent may request in order to perfect
and preserve the security interest created or purported to be created
hereby; and (D) furnishing to the Collateral Agent from time to time
statements and schedules further identifying and describing the Pledged
Collateral and such other reports in connection with the Pledged
Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.
(e) TRANSFERS AND OTHER LIENS AND RESTRICTIONS.
(i) The Pledgor will not (i) sell, assign (by operation
of law or otherwise), exchange or otherwise dispose of any of the Pledged
Collateral (except as permitted by Section 7(a) hereof); or (ii)
(ii) The Pledgor will not sell any securities of the
same class or convertible into the same class of securities as the
Pledged Shares, whether or not such securities are pledged hereunder, and
in the event of any such sale consented to by the Collateral Agent will
furnish the Collateral Agent with a copy of any Form 144 filed in respect
of such sale. The Pledgor will cause any Person with whom it shall be
deemed one "person" for purposes of Rule 144(a)(2) (the Pledgor and all
such parties being hereinafter collectively referred to as the
"ATTRIBUTION GROUP") to refrain from selling any securities of the same
class or convertible into the same class of securities as the Pledged
Shares, whether or not such securities are pledged hereunder, and in the
event of any such sale consented to by the Collateral Agent will furnish
the Collateral Agent with a copy of any Form 144 filed in respect of such
sale.
(iii)The Pledgor will cooperate fully with the
Collateral Agent with respect to any sale by the Collateral Agent of any
of the Pledged Collateral after the occurrence and during the continuance
of an Event of Default, including full and complete compliance with all
requirements of Rule 144, and will give to the Collateral Agent all
information and will do all things necessary, including the execution of
all documents, forms, instruments and other items, to comply with Rule
144 for the complete and unrestricted sale and/or transfer of any or all
of the Pledged Collateral.
(f) LIEN. The Pledgor will not create or suffer to exist
any (i) Lien upon or with respect to any of the Pledged Collateral except
for the security interests created by this Agreement or (ii) any
contractual restriction on the transferability of any of the Pledged
Collateral (including, without limitation, any market standoff or other
"lock-up" agreement) other than the restriction in the Registration
Rights Agreement (as in effect on the date hereof), which applies only to
the Pledgor (and not to any sale or disposition of the Pledged Collateral
by the Bank).
(g) AGREEMENTS AFFECTING PLEDGED COLLATERAL. The Pledgor
will not make or consent to any amendment or other modification or waiver
with respect to any of the Pledged Collateral (including, without
limitation, to the Registration Rights Agreement), or enter into any
agreement or permit to exist any restriction with respect to any of the
Pledged Collateral other than pursuant hereto.
(h) OTHER ACTIONS. The Pledgor will not take or fail to
take any action that would in any manner impair the value or
enforceability of the Collateral Agent's security interest in the Pledged
Collateral.
SECTION 7. VOTING RIGHTS, DIVIDENDS, ETC. IN RESPECT OF THE
PLEDGED COLLATERAL; WITHDRAWAL AND SALE OF PLEDGED COLLATERAL.
(a) So long as no Event of Default or event that, with the
giving of notice or lapse of time or both, would constitute an Event of
Default shall have occurred and be continuing:
(i) the Pledgor may exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral in a
manner not inconsistent with the terms of this Agreement;
(ii) the Pledgor may receive and retain any and all
dividends, principal or interest paid in respect of the Pledged
Collateral; PROVIDED, HOWEVER, that any and all (A) dividends and
interest paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of or in exchange for, any Pledged Collateral
(including, without limitation, shares of stock or other instruments
issued in respect of any "spin-off" of any division or subsidiary of
the Issuer), (B) dividends and other distributions paid or payable
in cash in respect of any Pledged Collateral in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus, and (C)
cash paid, payable or otherwise distributed in redemption of, or in
exchange for, any Pledged Collateral, shall be, and shall forthwith
be delivered to the Collateral Agent to hold as, Pledged Collateral
and shall, if received by the Pledgor, be received in trust for the
benefit of the Collateral Agent, shall be segregated from the other
property or funds of the Pledgor, and shall be forthwith delivered
to the Collateral Agent in the exact form received with any
necessary indorsement and/or appropriate stock powers duly executed
in blank, to be held by the Collateral Agent as Pledged Collateral
and as further collateral security for the Obligations; and
(iii)the Collateral Agent will execute and deliver (or
cause to be executed and delivered) to the Pledgor all such proxies
and other instruments as the Pledgor may reasonably request for the
purpose of enabling the Pledgor to exercise the voting and other
rights that the Pledgor is entitled to exercise pursuant to
paragraph (i) of this Section 7(a) and to receive the dividends that
it is authorized to receive and retain pursuant to paragraph (ii) of
this Section 7(a).
(b) Upon the occurrence and during the continuance of any
Default or Event of Default:
(i) all rights of the Pledgor to exercise the voting
and other consensual rights that the Pledgor would otherwise be entitled
to exercise pursuant to paragraph (i) of this Section 7(a), and to
receive the dividends and interest payments and other distributions that
the Pledgor would otherwise be authorized to receive and retain pursuant
to paragraph (ii) of this Section 7(a), shall cease, and (A) all such
rights shall thereupon become vested in the Collateral Agent, which shall
thereupon have the sole right to exercise such voting and other
consensual rights and to receive and hold as Pledged Collateral such
dividends and interest payments, and (B) the Pledgor shall execute and
deliver all such proxies and other instruments as the Collateral Agent
may reasonably request for the purpose of enabling the Collateral Agent
to exercise the voting and other rights that it is entitled to exercise
pursuant to this Section 7(b)(i);
(ii) without limiting the generality of the foregoing,
the Collateral Agent may at its option exercise any and all rights of
conversion, exchange, subscription or any other rights, privileges or
options pertaining to any of the Pledged Collateral as if it were the
absolute owner thereof, including, without limitation, the right to
exchange, in its discretion, any and all of the Pledged Collateral upon
the merger, consolidation, reorganization, recapitalization or other
adjustment of any issuer of Pledged Collateral, or upon the exercise by
any issuer of Pledged Collateral of any right, privilege or option
pertaining to any Pledged Collateral, and, in connection therewith, to
deposit and deliver any and all of the Pledged Collateral with any
committee, depository, transfer agent, registrar or other designated
agent upon such terms and conditions as it may determine; and
(iii)all dividends and interest payments and other
distributions that are received by the Pledgor contrary to the provisions
of paragraph (i) of this Section 7(b) shall be received in trust for the
benefit of the Collateral Agent, shall be segregated from the other funds
of the Pledgor, and shall be forthwith paid over to the Collateral Agent
as Pledged Collateral in the exact form received with any necessary
indorsement and/or appropriate stock powers duly executed in blank, to be
held by the Collateral Agent as Pledged Collateral hereunder.
SECTION 8. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED
COLLATERAL.
(a) The Pledgor hereby authorizes the Collateral Agent to
file, without the signatures of the Pledgor where permitted by law, one
or more financing or continuation statements, and amendments thereto,
relating to the Pledged Collateral. The Collateral Agent hereby agrees
to notify the Pledgor promptly after any such filing.
(b) The Pledgor hereby irrevocably appoints the Collateral
Agent the Pledgor's attorney-in-fact and proxy, with full authority in
the place and stead of the Pledgor and in the name of the Pledgor or
otherwise, from time to time in the Collateral Agent's discretion, to
take any action and to execute any instrument (at the expense of the
Pledgor) that the Collateral Agent may reasonably deem necessary or
advisable to accomplish the purposes of this Agreement including, without
limitation, (i) at any time and from time to time, to receive, indorse
and collect all instruments made payable to the Pledgor representing any
distribution in respect of any Pledged Collateral and to give full
discharge for the same, (ii) to complete, execute and file a Form 144
with respect to any of the Pledged Collateral and (iii) to receive,
endorse and collect any drafts or other instruments, documents and
chattel paper representing any dividend or other distribution in respect
of the Pledged Collateral and, in addition to the foregoing and without
limitation: (A) to ask, demand, collect, ▇▇▇ for, recover, compound,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Pledged Collateral and to receive,
indorse, and collect any drafts or other instruments, documents and
chattel paper in connection therewith; and (B) to file any claims or take
any action or institute any proceedings that the Collateral Agent may
deem necessary or desirable for the collection of any of the Pledged
Collateral or otherwise to enforce the rights of the Collateral Agent
with respect to any of the Pledged Collateral; PROVIDED, HOWEVER, that
the Collateral Agent shall exercise such powers only during the
occurrence and continuance of an Event of Default.
(c) If the Pledgor fails to perform any agreement contained
herein, the Collateral Agent (immediately after giving notice to the
Pledgor) may itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Collateral Agent incurred in
connection therewith shall be payable by the Pledgor pursuant to Section
10 hereof, together with interest from the date such expenses are paid by
the Collateral Agent until repaid in full, at the rate for overdue
principal under either Credit Agreement (or, if each Credit Agreement has
been terminated, under either Term Agreement), all payable on demand.
(d) The powers conferred on the Collateral Agent hereunder
are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care to assure the safe custody of any Pledged
Collateral in its possession, the Collateral Agent shall have no duty or
liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Collateral upon surrendering it or
tendering surrender of it to the Pledgor. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation
of the Pledged Collateral in its possession if the Pledged Collateral is
accorded treatment substantially equal to that the Collateral Agent
accords its own property, it being understood that the Collateral Agent
shall not have responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not the Collateral
Agent has or is deemed to have knowledge of such matters, or (ii) taking
any necessary steps to preserve rights against any parties with respect
to any Pledged Collateral.
(e) The Collateral Agent may at any time in its discretion
(i) subject only to the revocable rights of the Pledgor under Section
7(a) hereof and so long as an Event of Default has occurred and is
continuing, without notice to the Pledgor, transfer or register in the
name of the Collateral Agent or any of its nominees any or all of the
Pledged Collateral, and (ii) exchange certificates or instruments
constituting Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 9. REMEDIES UPON EVENT OF DEFAULT. If any Event of
Default shall have occurred and be continuing:
(a) The Collateral Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all of the rights and remedies of a
secured party on default under the Code then in effect in the State of
New York (whether or not the Code applies to the affected Pledged
Collateral); and without limiting the generality of the foregoing, also
may (i) without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or elsewhere, at such
price or prices and on such other terms as the Collateral Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least 10 days' notice to the Pledgor
of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. The Pledgor agrees to complete and execute one or more Forms
144, and to cooperate in the completion and execution of one or more
Forms 144 if completed and executed by the Collateral Agent, to the
extent necessary or desirable to permit a sale of the Pledged Collateral
in compliance with Rule 144.
(b) The Pledgor agrees that in any sale of any Pledged
Collateral hereunder the Collateral Agent is hereby authorized to comply
with any limitation or restriction in connection with such sale as it may
be advised by counsel is necessary in order to avoid any violation of
applicable law, rule or regulation (including, without limitation,
compliance with such procedures as may restrict the number of prospective
bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective
bidders and purchases to persons who will represent and agree that they
are purchasing for their own account for investment and not with a view
to the distribution or resale of such Pledged Collateral), or in order to
obtain any required approval of the sale or of the purchasers by any
governmental regulatory authority or official, and the Pledgor further
agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable
manner, nor shall the Collateral Agent be liable or accountable to the
Pledgor for any discount allowed by reason of the fact that such Pledged
Collateral is sold in compliance with any such limitation or restriction.
(c) Notwithstanding the provisions of subsection (b) of this
Section 9, the Pledgor recognizes that the Collateral Agent may deem it
impracticable to effect a public sale of all or any part of the Pledged
Collateral and that the Collateral Agent may, therefore, determine to
make one or more private sales of any such Pledged Collateral to a
restricted group of purchasers who will be obligated to agree, among
other things, to acquire such Pledged Collateral for their own account,
for investment and not with a view to the distribution or resale thereof.
The Pledgor acknowledges that any such private sale may be at prices and
on terms less favorable to the seller than the prices and other terms
that might have been obtained at a public sale and, notwithstanding the
foregoing, agrees that such private sales shall be deemed to have been
made in a commercially reasonable manner and that the Collateral Agent
shall have no obligation to delay sale of any such securities for the
period of time necessary to permit the issuer of any securities
constituting Pledged Collateral (the "SECURITIES") to register such
Securities for public sale under the Securities Act of 1933. The Pledgor
further acknowledges and agrees that any offer to sell such Securities
that has been (i) publicly advertised on a BONA FIDE basis in a newspaper
or other publication of general circulation in the financial community of
New York, New York (to the extent that such an offer may be so advertised
without prior registration under the Securities Act of 1933) or (ii) made
privately in the manner described above to not less than fifteen BONA
FIDE offerees shall be deemed to involve a "public sale" for the purposes
of Section 9-504(3) of the UCC (or any successor or similar, applicable
statutory provision) as then in effect in the State of New York,
notwithstanding that such sale may not constitute a "public offering"
under the Securities Act of 1933, and that the Collateral Agent may, in
such event, bid for and purchase such Securities.
(d) Any cash held by the Collateral Agent as Pledged
Collateral and all cash proceeds received by the Collateral Agent in
respect of any sale of, collection from, or other realization upon, all
or any part of the Pledged Collateral may, in the discretion of the
Collateral Agent, be held by the Collateral Agent as collateral for,
and/or then or at any time thereafter applied (after payment of any
amounts payable to the Collateral Agent pursuant to Section 10 hereof) in
whole or in part by the Collateral Agent against, all or any part of the
Obligations in such order as the Collateral Agent shall elect. Any
surplus of such cash or cash proceeds held by the Collateral Agent and
remaining after payment in full of all of the Obligations after the
termination of the Commitments shall be paid over to the Pledgor or to
such Person as may be lawfully entitled to receive such surplus.
SECTION 10. INDEMNITY AND EXPENSES.
(a) The Pledgor agrees to indemnify the Collateral Agent
from and against any and all claims, losses and liabilities (including,
without limitation, the reasonable fees, client charges and other
expenses of the Collateral Agent's counsel) growing out of or resulting
from this Agreement or the enforcement of any of the terms hereof
(including, without limitation, the sale of Pledged Collateral pursuant
to a public or private offering and each and every document produced in
furtherance thereof), except claims, losses or liabilities resulting
solely and directly from the Collateral Agent's gross negligence or
willful misconduct.
(b) The Pledgor agrees to pay to the Collateral Agent on
demand the amount of any and all costs and expenses, including the
reasonable fees and other client charges of the Collateral Agent's
counsel and of any experts and agents, that the Collateral Agent may
incur in connection with (i) the administration and termination of this
Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the Pledged
Collateral (including, without limitation, fees or commissions of any
broker), (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, (iv) the failure by the Pledgor to perform or
observe any of the provisions hereof.
SECTION 11. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing and shall be mailed,
telegraphed or delivered, if to the Pledgor, to the Pledgor at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, [ REDACTED ],
with a copy to ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.; if
to the Collateral Agent, to it at its address at NationsBank, N.A., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with copies to
NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President,
[ REDACTED ], and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.;
or as to any such Person at such other address as shall be designated by
such Person in a written notice to such other Persons complying as to
delivery with the terms of this Section 11. All such notices and other
communications shall be effective (i) if mailed, when received or three
days after mailing, whichever is earlier; (ii) if telecopied, when
received; (iii) if telegraphed, when delivered to the telegraph company;
or (iv) if delivered, upon delivery.
SECTION 12. MISCELLANEOUS.
(a) No amendment of any provision of this Agreement shall be effective
unless it is in writing and signed by the Pledgor and the Collateral Agent, and
no waiver of any provision of this Agreement, and no consent to any departure
by the Pledgor therefrom, shall be effective unless it is in writing and signed
by the Collateral Agent, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(b) No failure on the part of the Collateral Agent to exercise, and no
delay in exercising, any right hereunder or under any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Collateral Agent provided
herein and in the other Loan Documents are cumulative and are in addition to,
and not exclusive of, any rights or remedies provided by law. The rights of the
Collateral Agent against the Pledgor under any Loan Document are not
conditional or contingent on any attempt by the Collateral Agent to exercise
any of its rights under any other Loan Document against the Pledgor or against
any other Person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until the
payment in full or release of the Obligations and the termination of the
Commitments, and (ii) be binding on the Pledgor and its successors and assigns
and shall inure, together with all rights and remedies of the Collateral Agent
hereunder, to the benefit of the Collateral Agent and its successors,
transferees and assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, the Bank may not assign or otherwise transfer
its interests hereunder or under any other Loan Document; PROVIDED, HOWEVER,
the Bank may assign or transfer, as collateral or otherwise, any or all of its
interest hereunder and under the other Loan Documents in accordance with the
applicable provisions of the other Loan Documents. None of the rights or
obligations of the Pledgor hereunder may be assigned or otherwise transferred
without the prior written consent of the Collateral Agent.
(e) Upon the satisfaction in full of the Obligations and the
termination of the Commitments, (i) this Agreement and the security interest
created hereby shall terminate and all rights to the Pledged Collateral shall
revert to the Pledgor, and (ii) the Collateral Agent will, upon the Pledgor's
request and at the Pledgor's expense, (A) return to the Pledgor such of the
Pledged Collateral as shall not have been sold or otherwise disposed of or
applied pursuant to the terms hereof and (B) execute and deliver to the Pledgor
such documents as the Pledgor shall reasonably request to evidence such
termination.
(f) This Agreement shall be governed by and construed in accordance
with the law of the State of New York, except as required by mandatory
provisions of law and except to the extent that the validity or perfection and
the effect of perfection or non-perfection of the security interest created
hereby, or remedies hereunder, in respect of any particular Pledged Collateral
are governed by the law of a jurisdiction other than the State of New York.
(g) NOTHING IN THIS AGREEMENT IS INTENDED TO BE AN AMENDMENT OR
MODIFICATION OF, OR LIMITATION OR RESTRICTION UPON, ANY PROVISION OF THE CREDIT
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, THE BORROWERS' OBLIGATIONS TO PAY
THE PRINCIPAL OF AND INTEREST ON THE LOANS MADE PURSUANT TO THE CREDIT
AGREEMENTS UPON DEMAND), AND THE PROVISIONS OF THE CREDIT AGREEMENTS AND
RELATED NOTES SHALL BE CONTROLLING AND FULLY EFFECTIVE REGARDLESS OF ANYTHING
HEREIN TO THE CONTRARY. THE PLEDGOR HEREBY ACKNOWLEDGES THAT THE BANK MAY, AT
ANY TIME, IN ITS SOLE AND ABSOLUTE DISCRETION, DEMAND PAYMENT OF THE
INDEBTEDNESS EVIDENCED BY THE CREDIT AGREEMENTS AND THE RELATED NOTES EVEN IF
THE PLEDGOR HAS FULLY COMPLIED WITH ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
SECTION 13. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent, all security interests and all obligations of the Pledgor hereunder
shall be absolute and unconditional irrespective of (i) any lack of validity or
enforceability of any Loan Document or any other agreement, instrument or
document relating thereto, (ii) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from any Loan
Document or any other agreement, instrument or document relating thereto, (iii)
any exchange or release of, or non-perfection of any lien on or security
interest in, any collateral for any of the Obligations, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or
any of the Obligations or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Borrower in respect
of any of their obligations under a Credit Agreement or Term Agreement, or the
Pledgor in respect of any of the Obligations.
SECTION 14. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG
THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW.
IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT
UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR
EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO
WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
THE COUNTY OF PLEDGOR'S OFFICE REFERRED TO IN SECTION 11 HEREOF AT THE
TIME OF THE EXECUTION OF THIS AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO
WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED
FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN
90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY,
UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN
THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE
COLLATERAL AGENT OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR
ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE
COLLATERAL AGENT HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT
NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF
POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE COLLATERAL AGENT MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN
SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT.
NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY
REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING
THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
SECTION 15. OTHER AGREEMENTS.THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
executed and delivered by its duly authorized partners on the date first above
written.
DWG ACQUISITION GROUP, L.P.
By:______________________
▇▇▇▇▇▇ ▇▇▇▇▇, a General Partner
By:______________________
▇▇▇▇▇ ▇▇▇, a General Partner
Acknowledged and Consented to:
NATIONSBANK, N.A., as collateral agent
for itself and for NationsBank of Florida, N.A.
____________________
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
AMENDMENT NO. 1 TO
PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 1 dated January 31, 1996, to the PLEDGE AND
SECURITY AGREEMENT, dated January 25, 1996 (the "PLEDGE AGREEMENT"), made
by DWG ACQUISITION GROUP, L.P., a Delaware limited partnership (the
"PLEDGOR"), in favor of NATIONSBANK, N.A. (the "BANK"), as collateral
agent for the Bank, NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK") and
the permitted successors and assigns of the Bank and the Florida Bank (in
such capacity, the "COLLATERAL AGENT").
The Pledgor and the Collateral Agent are parties to the Pledge
Agreement, providing for the pledge to the Collateral Agent of, and the
grant to the Collateral Agent of a security interest in, certain of the
outstanding shares of capital stock issued by Triarc Companies, Inc., a
Delaware corporation ("TRIARC"), which are owned by the Pledgor, as
collateral security for certain loans made by the Bank (the "LOANS") to
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ May and certain other
obligations. The Pledgor desires to pledge additional shares of the
common stock of Triarc as collateral for the Loans and other obligations,
and the Collateral Agent is willing to accept such pledge, subject to the
terms and conditions of the Loan Documents.
NOW, THEREFORE, in consideration of the premises and the
agreements herein and in order to induce the Bank to make and maintain
the Loans, the Pledgor hereby agrees with the Collateral Agent as
follows:
1. DEFINITIONS. All terms used herein which are defined
in the Pledge Agreement and not otherwise defined herein are used
herein as defined therein.
2. SCHEDULE. Schedule I of the Pledge Agreement is
hereby deleted in its entirety, and Annex A hereto is hereby
substituted therefor. Any and all references to Schedule I in the
Pledge Agreement shall be deemed to refer to Annex A hereto, and all
references to "Pledged Shares" in the Pledge Agreement shall mean
the shares of stock described in item 1 of Annex A hereto.
3. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby
represents and warrants to the Collateral Agent as follows:
(a) The representations and warranties made by the
Pledgor in the Pledge Agreement and in each other Loan Document to which
it is a party delivered to the Bank on or prior to the date hereof are
true and correct on and as of the date hereof as though made on and as of
the date hereof (except to the extent such representations and warranties
expressly relate to an earlier date). No Default or Event of Default has
occurred and is continuing, or would result from the execution and
delivery of this Amendment No. 1.
(b) The Pledgor (i) is a limited partnership duly
organized, validly existing and in good standing under the laws of the
state of its organization as set forth on the first page hereof and (ii)
has all requisite power and authority to execute, deliver and perform
this Amendment and to perform the Pledge Agreement, as amended hereby.
(c) The execution, delivery and performance by the
Pledgor of this Amendment, and the performance by the Pledgor of the
Pledge Agreement, as amended hereby, (i) have been duly authorized by all
necessary partnership action, (ii) do not and will not contravene its
Partnership Agreement, any law or any contractual restriction binding on
or affecting the Pledgor or any of its properties, and (iii) do not and
will not result in or require the creation of any lien, security interest
or other charge or encumbrance upon or with respect to any of its
properties, other than in favor of the Collateral Agent. The exercise by
the Collateral Agent of its rights and remedies under this Amendment or
under the Pledge Agreement, as amended hereby (including, without
limitation, the sale or other disposition of the Pledged Shares) will not
violate any contractual restriction binding on or affecting the Pledgor
or the Pledged Shares.
(d) Each of this Amendment and the Pledge Agreement, as
amended hereby, constitutes the legal, valid and binding obligation of
the Pledgor, enforceable against the Pledgor in accordance with its
terms.
4. CONTINUED EFFECTIVENESS OF THE PLEDGE AGREEMENT. Except
as otherwise expressly provided herein, the Pledge Agreement and the
other Loan Documents to which the Pledgor is a party are, and shall
continue to be, in full force and effect and are hereby ratified and
confirmed in all respects except that on and after the date hereof (i)
all references in the Pledge Agreement to "this Agreement", "hereto",
"hereof", "hereunder" or words of like import referring to the Pledge
Agreement shall mean the Pledge Agreement as amended by this Amendment,
and (ii) all references in the other Loan Documents to which the Pledgor
is a party to the "Triarc Pledge Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Pledge Agreement
shall mean the Pledge Agreement as amended by this Amendment. Except as
expressly provided herein, the execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or
remedy of the Collateral Agent under the Pledge Agreement or any other
Loan Document, nor constitute a waiver of any provision of the Pledge
Agreement.
5. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
6. HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
8. AMENDMENT AS LOAN DOCUMENT. The Pledgor hereby acknowledges
and agrees that this Amendment constitutes a "Loan Document."
Accordingly, it shall be an Event of Default under each Credit Agreement
if (i) any representation or warranty made by the Pledgor under or in
connection with this Amendment shall have been untrue, false or
misleading in any material respect when made, or (ii) the Pledgor shall
fail to perform or observe any term, covenant or agreement contained in
this Amendment.
9. EFFECTIVENESS. This Amendment shall become effective on
the date as of which the Collateral Agent shall have received this
Amendment, duly executed by the Pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above
written.
DWG ACQUISITION GROUP, L.P.
By:
▇▇▇▇▇▇ ▇▇▇▇▇, General Partner
By:
▇▇▇▇▇ ▇▇▇, General Partner
NATIONSBANK, N.A., as collateral agent
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
REDACTED
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "AGREEMENT"), dated as of January
18, 1996, is entered into by and between ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ MAY, each an
individual residing in the State of New York (the "BORROWERS"), and
NATIONSBANK, N.A. (the "BANK"), a national banking association.
RECITALS
The Borrowers have asked the Bank to make demand loans to the
Borrowers from time to time, from the date hereof through the date
preceding the second anniversary of the date of this Agreement, in an
aggregate principal amount at any one time outstanding not to exceed
$20,000,000. The Bank is willing to make such loans to the Borrowers on
the terms and conditions hereinafter set forth. Accordingly, each
Borrower and the Bank hereby agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the respective meanings indicated below,
such meanings to be applicable equally to both the singular and plural
forms of such terms:
"ADJUSTED COLLATERAL VALUE" means the Margin Call Percentage of
the Collateral Value.
"ADJUSTED LIBOR" means, with respect to any Interest Period,
(i) the rate of interest per annum (rounded upward, if necessary, to the
next higher 1/16th of one percent) determined by the Bank, in accordance
with its customary general practice from time to time, to be the rate
equal to the London Interbank Offered Rate (expressed as a percentage)
for Dollar deposits as would be quoted by the Bank for 11:00 a.m. London
time, or as soon thereafter as practicable, on the second Business Day
immediately preceding the first day of such Interest Period, for a term
comparable to such Interest Period, (ii) as adjusted from time to time in
the Bank's sole discretion for then applicable reserve requirements,
deposit insurance assessment rates and other regulatory costs.
"APPLICABLE MARGIN" means [REDACTED]%.
"BASE RATE" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day, or (ii) the sum of one half of
one percent (1/2%) plus the Federal Funds Rate for such day.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, New York, or in
Charlotte, North Carolina, are authorized or required by law to close
and, if the applicable Business Day relates to any Interest Period for
which interest on a Loan is determined by reference to the Adjusted LIBOR
rate, also includes a day on which commercial banks are open for
international business in London.
"CLOSING DATE" means the date on which the initial Loan is made
hereunder after all of the conditions precedent set forth in Article III
have been satisfied.
"COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by any mortgage, deed of trust, security
agreement, pledge agreement, assignment or other security document
heretofore or hereafter executed by any Person as security for all or any
part of the Obligations.
"COLLATERAL AGENT" means the Bank, acting as collateral agent
under the Triarc Pledge Agreement.
"COLLATERAL NOTES" means the promissory notes issued by
Pechiney and payable to the order of ▇▇▇▇▇ ▇▇▇, which are further
described in the Pechiney Pledge Agreement.
"COLLATERAL VALUE" means, with respect to any Collateral
consisting of stock, the amount determined by multiplying (i) the per
share price of such stock at the most recent close of trading on a
trading exchange or stock market for such stock, times (ii) the number of
shares of such stock held by the Bank as Collateral, times (iii) the
portion of such shares allocable to ▇▇▇▇▇ ▇▇▇, which initially is one-
third.
"COMMITMENT" means the commitment of the Bank to make Loans
pursuant to Section 2.1 hereof in an aggregate principal amount not to
exceed $20,000,000 at any time outstanding, as such amount may be reduced
or terminated in accordance with the terms and conditions of this
Agreement.
"DEFAULT" means a condition or event which, after notice or
lapse of time or both, would constitute an Event of Default (including,
without limitation, the obligation to prepay the Loans or provide
additional collateral pursuant to Section 2.5(a) or (b), without regard
to whether any grace period has elapsed).
"DEFAULT RATE" has the meaning specified in Section 2.2.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as
depositary bank pursuant to the Pechiney Pledge Agreement.
"DOLLARS" and the sign "$" each mean lawful money of the United
States of America.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
"ELIGIBLE INSTITUTION" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; or (ii) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the United States or
an offshore branch outside the United States at which such bank books
loans bearing interest based on LIBOR and, in the case of a bank
described in either clause (i) or clause (ii), such bank is able to
deliver Internal Revenue Service Form 1001 or 4224 to the Bank with a
copy to the Borrowers as of the day such bank becomes an assignee or
participant.
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, PROVIDED that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (ii) if no such
rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the Bank on
such day on such transactions as determined by the Bank.
"FLORIDA AGENT" means NationsBank of Florida, N.A., acting as
collateral agent under the Pechiney Pledge Agreement.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
federal, state, city, town, municipality, county, local or other
political subdivision thereof or thereto and any department, commission,
board, bureau, instrumentality, agency or other entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government and includes, without limitation, the SEC.
"INDEBTEDNESS" means, with respect to any Person, (i) all
indebtedness or other obligations of such Person for borrowed money or
for the deferred purchase price of property or services, (ii) all
obligations of such Person under direct or indirect guaranties in respect
of, and contingent or other obligations of such Person to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect
of, indebtedness or other obligations of any other Person for borrowed
money or for the deferred purchase price of property or services, (iii)
all indebtedness or other obligations of any other Person for borrowed
money or for the deferred purchase price of property or services secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any lien, security interest or
other charge or encumbrance upon or in property owned by such Person,
(iv) all obligations of such Person to make reimbursement or payment in
respect of letters of credit and bankers' acceptances, and (v) the net
liabilities of such Person under all interest rate swap, interest rate
collar, interest rate cap, interest rate floor, forward rate agreements,
commodity swaps or other agreements or arrangements designed to protect
against fluctuations in interest rates or currency, commodity or equity
values, each calculated on a basis reasonably satisfactory to the Bank
and in accordance with accepted practice.
"INTERCREDITOR AGREEMENT" means an Intercreditor Agreement
between the Bank, individually and as collateral agent under the Triarc
Pledge Agreement, and NationsBank of Florida, N.A., individually and as
collateral agent under the Pechiney Pledge Agreement, acknowledged and
consented to by ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ May and DWG.
"INTEREST PERIOD" means each one (1)-month period during which
interest on each Loan shall be calculated by reference to Adjusted LIBOR,
determined as of the second Business Day before the commencement of that
Interest Period; PROVIDED, HOWEVER, that:
(i) each Interest Period shall commence on the first
day of a month and end on the first day in the immediately
following calendar month thereafter;
(ii) each subsequent Interest Period for a Loan shall
commence on the last day of the immediately preceding
Interest Period and end on the first day in the
immediately following calendar month thereafter; and
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination
Date.
"LETTERS OF CREDIT" means the transferable letters of credit
issued by Banque Nationale de Paris, New York Branch in favor of
NationsBank of Florida, N.A., in support of the Collateral Notes, which
are further described in the Pechiney Pledge Agreement.
"LIEN" means any lien, mortgage, pledge, security interest,
charge or similar encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and
any agreement to give any security interest).
"LOAN" means each demand loan made by the Bank to a Borrower
pursuant to Section 2.1 hereof.
"LOAN DOCUMENTS" means this Agreement, the Note, the Triarc
Pledge Agreement, the Pechiney Loan Agreement, the Pechiney Pledge
Agreement and all other instruments, agreements and other documents
executed and delivered pursuant hereto or thereto.
"LOAN PARTIES" means the Borrowers and DWG.
"MARGIN CALL PERCENTAGE" means 70%, subject to decrease in
accordance with Section 2.5(d) hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
any of (a) the business, properties or prospects of any Loan Party , (b)
the ability of any Loan Party to perform any of the obligations of such
Loan Party under this Agreement or any of the other Loan Documents, (c)
the legality, validity or enforceability of this Agreement or any of the
other Loan Documents, (d) the rights and remedies of the Bank under this
Agreement or any of the other Loan Documents, or (e) the creation,
perfection or priority of security in or lien on any of the Collateral,
securing the payment of any of the Obligations.
"NOTE" means a demand promissory note of the Borrowers,
substantially in the form of Exhibit A hereto, evidencing the
Indebtedness resulting from the making of the Loans and delivered to the
Bank pursuant to Article III hereof, as such demand promissory note may
be modified or extended from time to time, and any promissory note or
notes issued in exchange or replacement therefor.
"OBLIGATIONS" means (i) the obligation of the Borrowers to pay,
as and when due and payable (on demand, by mandatory prepayment, by
scheduled maturity or otherwise), all amounts from time to time owing by
them in respect of any Loan Document, whether for principal, interest,
fees or otherwise, and (ii) the obligations of the Borrowers to perform
or observe all of their other obligations from time to time existing
under any Loan Document.
"ORIGINAL ADVANCE PERCENTAGE" means 65%, subject to decrease in
accordance with Section 2.5(d) hereof.
"PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of DWG dated as of September 25, 1992, as amended by
Amendment No. 1 dated as of November 15, 1992, Amendment No. 2 dated as
of March 1, 1993, Amendment No. 3 dated as of April 14, 1993, and
Amendment No. 4 dated as of January 1, 1995, by and among ▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇, as general partners, and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇, as limited partners, of DWG.
"PECHINEY" means Pechiney Corporation, a Delaware corporation.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by the Pechiney Pledge Agreement.
"PECHINEY LOAN AGREEMENT" means the Term Loan Agreement dated
as of July 29, 1994, between ▇▇▇▇▇ ▇▇▇ and NationsBank of Florida, N.A.,
as amended or otherwise modified from time to time.
"PECHINEY PLEDGE AGREEMENT" means the Amended and Restated
Pledge Agreement dated July 29, 1994, as amended and restated on January
18, 1996, made ▇▇▇▇▇ ▇▇▇ as Pledgor in favor of NationsBank of Florida,
N.A., as agent for itself and the Bank, in respect of certain promissory
notes issued by Pechiney and letters of credit supporting such promissory
notes issued by Banque Nationale de Paris, New York Branch, as amended or
otherwise modified from time to time.
"PECHINEY PROCEEDS" means any principal of or interest on a
Collateral Note, any drawing on a Letter of Credit or any other proceeds
received in respect of a Collateral Note or a Letter of Credit.
"PERSON" means an individual, corporation, partnership, limited
liability company, business trust, association, joint-stock company,
trust, unincorporated organization, joint venture or Governmental
Authority or other regulatory body.
"PLEDGED SHARES" shall have the meaning assigned thereto in the
Triarc Pledge Agreement.
"PRIME RATE" means the annual rate of interest announced from
time to time as the Bank's "prime" lending rate (which the Borrowers
acknowledge does not necessarily represent the best or most favored rate
offered by the Bank to its best or any particular customers). Whenever
applicable to a Loan, the floating interest rate shall be adjusted
automatically as and when the Bank's Prime Rate shall change on any
business day(s).
"REGULATION D" means Regulation D of the Board, as in effect
from time to time, or any regulation of the Board that replaces
Regulation D.
"REGULATIONS G, T, U OR X" means Regulations G, T, U or X of
the Board as in effect from time to time, or any regulation of the Board
that replaces Regulation G, T, U or X
"RULE 144" means Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act of 1933.
"SEC" means the Securities and Exchange Commission or any
replacement national securities exchange.
"SIGNING DATE" means the date that this Agreement is executed
and delivered by the Borrowers.
"TERMINATION DATE" means January 18, 1998 or such earlier date
on which the Commitment shall be terminated pursuant to this Agreement.
"TRIARC" means Triarc Companies, Inc., a Delaware corporation.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by the Triarc Pledge Agreement.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement made by DWG in favor of the Collateral Agent, as agent for
itself and NationsBank of Florida, N.A., in respect of certain shares of
stock issued by Triarc, as amended or otherwise modified from time to
time.
Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in
the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
Section 1.3 ACCOUNTING AND OTHER TERMS. Unless otherwise
expressly stated herein, all accounting terms used in this Agreement
which are not otherwise defined herein shall be construed in accordance
with sound accounting principles applied on a basis consistent with those
used in the preparation of the financial statements referred to in
Section 4.10(a) hereof. All terms used in this Agreement which are
defined in Article 9 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein. Any
gender specific term is applicable to both genders, as the context may
require, whenever used herein.
ARTICLE II
THE LOANS
Section 2.1 MAKING THE LOANS. The Bank agrees, on the terms and
conditions hereinafter set forth, to make Loans to the Borrowers from the
Closing Date to the Termination Date in an aggregate principal amount at
any one time outstanding not to exceed the amount of the Commitment. The
Bank shall have no obligation to make a Loan if the sum of the aggregate
principal amount of the outstanding Loans plus the principal amount of
such requested Loan would exceed the amount equal to the Original Advance
Percentage of the Collateral Value. Each Loan shall be in an amount
equal to $100,000 or an integral multiple of $100,000 in excess thereof,
and shall be made on at least one Business Day prior written notice.
Each request for a Loan (a "NOTICE OF BORROWING") shall be irrevocable,
shall be signed by either Borrower (it being understood that only the
signature of one Borrower shall be required) and shall be in writing,
substantially in the form of Exhibit B hereto, specifying, INTER ALIA,
the proposed amount of such Loan and the Business Day for such Loan. On
the Business Day specified and upon fulfillment of the applicable terms
and conditions set forth in Article III hereof, the Bank will make the
proceeds of such Loan available to the Borrowers by crediting Account
Number [ REDACTED ] maintained with NationsBank of Florida, N.A., at its
office in Charlotte, North Carolina, not later than 2:00 P.M. (Charlotte
time) on such date. Within the limits of the Commitment, the Borrowers
may borrow, prepay and reborrow pursuant to this Article II until the
Termination Date.
Section 2.2 INTEREST. The outstanding principal balance of each
Loan will bear interest at a rate per annum equal at all times during
each Interest Period to the sum of the Adjusted LIBOR for such Interest
Period plus the Applicable Margin, from the date of the making of such
Loan until such Loan is paid in full, except that after the occurrence
and during the continuance of an Event of Default, each Loan shall bear
interest at a rate per annum equal to the sum of (i) the Prime Rate in
effect from time to time, plus (ii) [REDACTED]% (the "DEFAULT RATE").
Interest on each Loan shall be paid in arrears on the first day of each
month (in the absence of prior demand) and upon the repayment of any
principal amount of any Loan for any reason.
Section 2.3 REPAYMENT. The Borrowers will repay the unpaid
principal amount of and accrued interest on the Loans UPON DEMAND by the
Bank. In the absence of a prior demand (but without limiting the Bank's
right to make a demand at any time in its sole and absolute discretion)
the principal amount of and accrued interest on the Loans shall in any
event be due and payable on the Termination Date.
Section 2.4 OPTIONAL PREPAYMENT. Any Borrower may prepay any
Loan in whole at any time or in part from time to time, without penalty
or premium, each such prepayment to be accompanied by the payment of
accrued interest to the date of such prepayment on the amount prepaid,
PROVIDED that (i) each partial prepayment shall be in a principal amount
equal to $100,000 or an integral multiple thereof, (ii) a Borrower shall
give the Bank irrevocable written notice at least one Business Day prior
to the date of the prepayment of a Loan, and (iii) after giving effect to
any partial prepayment of a Loan the principal amount thereof remaining
outstanding shall not be less than $100,000 or an integral multiple
thereof. Each notice of prepayment shall be irrevocable and shall
specify the date and the amount of the prepayment and identify the Loans
to be prepaid. Any amount of principal of a Loan prepaid may be
reborrowed in accordance with Section 2.1 hereof.
Section 2.5 MANDATORY PREPAYMENT. (a) If at any time the Bank,
in its sole discretion, determines that the transactions contemplated by
this Agreement or any of the other Loan Documents violate any provision
of Regulations G, T, U or X, the Borrowers will, upon five (5) day's
written notice from the Bank, either (A) prepay the Loans by an amount
sufficient such that, after such prepayment, the transactions
contemplated by the Loan Documents will not violate any provision of
Regulations G, T, U or X (as determined by the Bank in its sole
discretion), or (B) provide for a grant to the Bank, as collateral
security for the Loans and all other Obligations, a perfected, first
priority security interest in, and lien on, additional collateral that is
in such amounts and having such market values, liquidity, volatility,
marketability and other characteristics as the Bank may in its sole
discretion determine to be sufficient to cause, after the grant of such
additional security interest, the transactions contemplated by the Loan
Documents not to violate any provision of Regulations G, T, U or X (and
in connection with such grant, the Borrowers will execute and deliver
such agreements, instruments, legal opinions and other documents as the
Bank may reasonably request).
(b) So long as any Obligation is outstanding or the Bank
shall have any Commitment hereunder, the Borrowers will, unless the Bank
shall otherwise consent in writing, maintain as collateral security for
the Obligations Triarc Collateral with an Adjusted Collateral Value in
excess of the unpaid principal balance of the Obligations. If at any
time the Bank determines that the aggregate principal amount of the
outstanding Loans equals or exceeds an amount equal to the Margin Call
Percentage of the Collateral Value of the Triarc Collateral, the
Borrowers will, upon five (5) days' written notice from the Bank, either
(i) prepay the Loans by an amount sufficient such that, after such
prepayment, the aggregate principal amount of the outstanding Loans does
not exceed the amount equal to the Original Advance Percentage of the
Collateral Value of the Triarc Collateral or (ii) provide for a grant to
the Collateral Agent, as collateral security for the Loans and all other
Obligations, a perfected, first priority security interest in, and lien
on, additional collateral that is in such amounts and having such market
values, liquidity, volatility, marketability and other characteristics as
the Bank may in its sole discretion determine to be sufficient to cause,
after the grant of such additional security interest, the aggregate
principal amount of the outstanding Loans not to exceed the amount equal
to the sum of (A) the Original Advance Percentage of the then current
Collateral Value of the Triarc Collateral, plus (B) the loan value
assigned by the Bank (in its sole discretion) to any other Collateral
provided to the Collateral Agent pursuant to clause (ii) above (and in
connection with such grant, the Borrowers will execute and deliver such
agreements, instruments, legal opinions and other documents as the Bank
may reasonably request).
(c) If on any date (i) the sum of the aggregate principal
amount of outstanding Loans exceeds (ii) the amount of the Commitment,
the Borrowers shall immediately prepay the Loans in an amount equal to
such excess. It is understood and agreed that after payment of all
obligations under the Pechiney Loan Agreement, an amount equal to any
proceeds of the Collateral Notes and Letters of Credit will be used to
satisfy, among other things, any prepayment obligation arising under this
subsection as a result of a decrease of the amount of the Original
Advance Percentage or Margin Call Percentage pursuant to Section 2.5
hereof.
(d) It is understood and agreed that upon any payment of
the principal amount of one or more Collateral Notes or the proceeds of
any drawing in respect of the Stated Amount/Principal (as defined in any
Letter of Credit) of a Letter of Credit, the Bank may at any time
thereafter decrease the Original Advance Percentage and the Margin Call
Percentage (in either case, to such percentage as the Bank may in its
sole and absolute discretion determine) by giving either Borrower notice
of such revised percentage.
(e) Each prepayment of a Loan shall be accompanied by the
payment of accrued interest to the date of such prepayment on the amount
prepaid, and shall be subject to the provisions of Section 2.12 hereof.
Section 2.6 OPTIONAL COMMITMENT REDUCTION. Either Borrower may,
upon at least two Business Days' notice to the Bank, terminate the
Commitment at any time or reduce the amount of the Commitment from time
to time during the period from the date hereof to and including the
Termination Date, PROVIDED that each such reduction shall be in an amount
equal to $100,000 or an integral multiple thereof, and the amount of the
Commitment after any reduction shall be greater than or equal to the
aggregate principal amount of all Loans then outstanding.
Section 2.7 EVIDENCE OF CREDIT EXTENSIONS. The Loans shall be
evidenced by the Note. The Bank shall record advances and principal
payments thereof on the grid attached thereto or, at its option, in its
records, and the Bank's record thereof shall be conclusive absent
demonstrable error. Notwithstanding the foregoing, the failure to make
or an error in making a notation with respect to any Loan or any payment
shall not limit or otherwise affect the Obligations of the Borrowers
hereunder or under the Note.
Section 2.8 PAYMENT. Payment of principal, interest and any
other sums due under this Agreement or under the Note shall be made
without set-off or counterclaim in dollars and in immediately available
funds on the day such payment is due not later than 12:00 Noon New York
time. All sums received after such time shall be deemed received on the
next Business Day and principal payments or sums (other than interest)
due hereunder shall bear interest for an additional day. All payments
shall be made to the Bank, if by wire transfer, to NationsBank, N.A., ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA [ REDACTED ], Credit Account:
[ REDACTED ], Re: Loan Payment for ▇▇▇▇▇ ▇▇▇, with a Loan Number to
be specified by the Bank, Special Instructions: Contact [ REDACTED
] upon receipt; if by mail, to NationsBank, N.A., ▇.▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; or to such other address as the Bank
may advise either Borrower in writing.
Section 2.9 COMPUTATIONS OF INTEREST; BUSINESS DAY.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred sixty
(360) and actual days elapsed. Interest shall accrue on each Loan
outstanding from and including the date such Loan is made by the Bank to
but excluding the date on which such Loan is repaid.
(b) Payment of all amounts due hereunder shall be made on
a Business Day. Any payment due on a day that is not a Business Day
shall be made on the next Business Day unless the next Business Day would
fall in the next calendar month, in which case such payment shall be made
on the Business Day immediately preceding the due date.
Section 2.10 INCREASED COSTS, ETC.
(a) If, after the date of this Agreement, due to either
(i) the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any (x) change in the basis of
taxation of payments to the Bank of the principal of or interest on any
Loan (excluding changes in the rate of tax payable on the Bank's overall
income and bank franchise taxes) or (y) imposition or change in any
reserve or similar requirement, and the result of any of the foregoing is
an increase in the cost to the Bank of agreeing to make or making,
funding or maintaining the Loans (which is not otherwise included
pursuant to clause (ii) of the definition of Adjusted LIBOR in its
determination of Adjusted LIBOR), then the Borrowers shall from time to
time, upon demand by the Bank, pay to the Bank an additional amount
sufficient to compensate the Bank for such increased cost. A certificate
as to the amount of such increased cost, submitted to either Borrower by
the Bank shall be conclusive and binding for all purposes, absent
demonstrable error.
(b) If the Bank determines that compliance with any law
or regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and that
the amount of such capital is increased by or based upon the existence of
the Loans or the Bank's Commitment, then the Borrowers shall, upon demand
by the Bank, pay to the Bank an additional amount sufficient to
compensate the Bank or such corporation in the light of such
circumstances, to the extent that the Bank reasonably determines such
increase in capital to be allocable to the existence of the Loans or the
Bank's Commitment. A certificate as to such amounts submitted to the
Borrowers by the Bank shall be conclusive and binding for all purposes,
absent demonstrable error.
(c) Prior to making any demand for compensation under
this Section 2.10, (i) the Bank will use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to file
any certificate or document requested by a Borrower or to change the
jurisdiction of its lending office if the making of such a filing or
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
judgment of the Bank, be otherwise disadvantageous to the Bank, and (ii)
the Bank will permit the Borrowers to prepay all or any part of the
affected Loans, together with interest to the date of payment and payment
of funding losses pursuant to Section 2.12, PROVIDED that nothing herein
shall relieve the Borrowers from their obligations to compensate the Bank
for increased costs or reduced return incurred prior to the taking of the
actions contemplated by clauses (i) and (ii) above.
Section 2.11 ILLEGALITY. If, after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in
an existing law, rule or regulation, or any change in the interpretation
or administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by the Bank with
any request or directive (whether or not having the force of law) of any
such Governmental Authority, makes it unlawful or impossible for the Bank
to make, maintain or fund any Loan at an interest rate based on Adjusted
LIBOR, the Bank shall forthwith give notice thereof to the Borrowers,
whereupon the obligation of the Bank to make Loans at a rate based on
Adjusted LIBOR shall be suspended until the Bank notifies the Borrowers
that the circumstances giving rise to such suspension no longer exist.
The Bank will use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to file any certificate or
document requested by a Borrower or to change the jurisdiction of its
lending office if the making of such a filing or change would avoid the
need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the judgment of the Bank, be
otherwise disadvantageous to the Bank. If the Bank makes a reasoned
determination that it may not lawfully continue to maintain and fund any
Loan to maturity at a rate based on Adjusted LIBOR and so specifies in
such notice, then effective on the date specified in such notice each
affected Loan shall bear interest at the Base Rate in effect from time
to time, payable monthly in arrears (in the absence of prior demand).
Section 2.12 FUNDING LOSSES. The Borrowers agree to reimburse
the Bank and to hold the Bank harmless from any loss or expense which the
Bank may sustain or incur as a consequence of:
(a) the failure of the Borrowers to make any payment or
required prepayment of principal of any Loan (including
payments made after any acceleration thereof);
(b) the failure of the Borrowers to make any prepayment
permitted hereunder after giving notice thereof;
(c) the repayment of a Loan on a day which is not the
last day of an Interest Period (whether due to acceleration,
DEMAND, or otherwise); or
(d) the failure for any reason (other than a wrongful
default by the Bank) of a Borrower to borrow any Loan after
notice has been given to the Bank in accordance with Section
2.1 hereof (whether or not such notice is withdrawn);
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain the Loans hereunder at a
rate based on LIBOR or from fees payable to terminate the deposits from
which such funds were obtained. Solely for purposes of calculating
amounts payable by the Borrowers to the Bank under this section, each
Loan bearing interest at a rate based on LIBOR (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to
have been funded by a matching deposit in Dollars in the interbank
eurodollar market for a comparable amount and for the respective Interest
Period, whether or not such Loan was in fact so funded.
Section 2.13 UNAVAILABILITY. If the Bank determines that for
any reason adequate and reasonable means do not exist for ascertaining
LIBOR for any Interest Period, the Bank will forthwith give notice of
such determination to the Borrowers. Commencing at the end of each
Interest Period then in effect, the respective Loan shall bear interest
at the Base Rate (rather than at a rate based on LIBOR) until the Bank
revokes such notice in writing.
Section 2.14 SPECIAL PREPAYMENT. The provisions of Sections
2.10, 2.11 and 2.12 shall also apply to any assignee permitted pursuant
to Section 7.7 and shall apply to any unassigned portion of the Loans
retained by the Bank (regardless of whether the Bank may have sold a
participation interest in such retained portion to a participant
permitted pursuant to Section 7.7). If demand for payment is made
pursuant to Section 2.10 or 2.12 or if notice of illegality is given
pursuant to Section 2.11, whether by any such permitted assignee or by
the Bank on behalf of any such permitted participant, then the Borrowers
may prepay in full (but not in part) such assignee's or participant's
interest in the Loans on the last day of the Interest Period during which
such demand for additional amounts was made or during which such notice
of illegality was given. Any principal amount, interest or increased
costs received by any such assignee or participant pursuant to this
Section 2.14 shall not be required to be shared with the Bank and any
other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS TO INITIAL LOAN. The obligation of the
Bank to make the initial Loan is subject to the condition precedent that
the Bank shall have received on or prior to the Closing Date the
following, each in form and substance satisfactory to the Bank and its
counsel and, unless indicated otherwise, dated the Closing Date:
(a) AGREEMENT. A copy of this Agreement, duly executed
by the Borrowers and dated as of the Signing Date.
(b) NOTE. The Note, duly executed by the Borrowers and
dated the Signing Date.
(c) TRIARC PLEDGE AGREEMENT. The Triarc Pledge
Agreement, duly executed by DWG and dated the Closing Date.
(d) PECHINEY PLEDGE AGREEMENT. The Pechiney Pledge
Agreement, duly executed by ▇▇▇▇▇ ▇▇▇ and dated the Signing
Date.
(e) STOCK CERTIFICATES, ETC. (i) Original stock
certificates representing the shares of stock pledged to the
Bank pursuant to the Triarc Pledge Agreement, together with an
undated stock power for each such certificate, duly executed in
blank by an authorized representative of DWG, with signature
medallion guaranteed (or, if any such shares are
uncertificated, confirmation and evidence that appropriate book
entries have been made in the relevant books and records of the
issuer of such uncertificated shares or a financial
intermediary, as the case may be, under applicable law), (ii)
such opinion of counsel and such approving certificate of the
issuer of such shares as the Bank may reasonably request in
respect of complying with any legend on any such certificate or
any other matter relating to such shares, and (iii) any
registration rights agreement, shareholders' agreement or other
agreement, instrument or document affecting any of the shares
of stock pledged to the Bank pursuant to the Triarc Pledge
Agreement.
(f) SEC FORM 144. Ten copies of SEC Form 144, undated
and duly executed in blank by DWG.
(g) FORM U-1. Federal Reserve Forms U-1 provided for in
Regulation U issued by the Board, the statements made in which
shall be such, in the opinion of the Bank, as to permit the
transactions contemplated hereby and by the Pechiney Loan
Agreement in accordance with such Regulation, dated the Closing
Date.
(h) RESTRICTED SECURITIES STATEMENT. A Restricted
Securities Statement covering each Pledged Share, substantially
in the form attached to the Triarc Pledge Agreement, duly
executed by DWG and dated the Signing Date.
(i) REGISTRATION RIGHTS AGREEMENT. A copy of the
Registration Rights Agreement, dated as of April 23, 1993, as
amended, between Triarc and DWG, as amended to modify the
holdback provision in Section 2.4(d)(i) thereof, certified as
of the Signing Date by ▇▇▇▇▇ ▇▇▇.
(j) DWG PARTNERSHIP AGREEMENT. A copy of the
Partnership Agreement, duly certified as of the Signing Date by
a partner of DWG.
(k) DWG FINANCIAL STATEMENTS. A copy of the balance
sheet of DWG as at December 31, 1994, duly certified as of the
Signing Date by a partner of DWG.
(l) AMENDMENT. An amendment dated the Signing Date to
the Term Loan Agreement dated as of July 29, 1994, between
▇▇▇▇▇ ▇▇▇ and NationsBank of Florida, N.A. providing, among
other things, that any Event of Default under this Agreement
shall constitute an "Event of Default" under such Term Loan
Agreement.
(m) PECHINEY COLLATERAL. Such notices and other
documents as the Bank may reasonably require in connection with
the securing of the Obligations under this Agreement with the
Pechiney Collateral (including, without limitation, note powers
(undated and in blank) in respect of the Collateral Notes,
notices to Pechiney with respect to the Pechiney Pledge
Agreement and the payment of principal of the Collateral Notes,
and the Escrow Agreement (as defined in each Letter of Credit).
(n) FEES PAYABLE AT CLOSING. The Borrowers shall pay
to the Bank (i) an arrangement fee equal to $[REDACTED], and (ii)
the reasonable legal fees and other client charges and expenses
of such counsel (including, without limitation, photocopying,
travel and word processing charges) incurred by the Bank in
connection with its review of the Triarc Collateral and the
Pechiney Collateral and with the preparation of this Agreement,
the Note and the other Loan Documents, negotiations in
connection therewith, and research and other related expenses.
(o) FINANCING STATEMENTS. Acknowledgment copies of
appropriate financing statements on Form UCC-1, duly executed
by the Borrowers and DWG and duly filed in such office or
offices as may be necessary or, in the opinion of the Bank,
desirable to perfect the security interests purported to be
created by the Pechiney Pledge Agreement and the Triarc Pledge
Agreement.
(p) LIEN REPORTS. Certified copies of requests for copies
or information on Form UCC-11, listing all effective financing
statements which name either Borrower or DWG as debtor and
which are filed in the offices referred to in paragraph (o)
above, together with copies of such financing statements, none
of which, except as otherwise agreed to in writing by the Bank,
shall cover any of the Collateral.
(q) INTERCREDITOR AGREEMENT. The Intercreditor
Agreement between the Bank and NationsBank of Florida, N.A.,
acknowledged and consented to by ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ May and DWG
and dated the Signing Date.
(r) RESOLUTION AGREEMENT. A copy of the Resolution
Agreement, dated as of May 1, 1992, as amended, among ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and Pechiney, as amended, certified as of the
Signing Date by ▇▇▇▇▇ ▇▇▇.
(s) ESCROW AGREEMENT. A copy of the Escrow Agreement,
dated as of December 22, 1988, as amended, among Pechiney
Corporation, Banque Nationale de Paris, New York Branch, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and Bank of the West, as escrow agent,
certified as of the Signing Date by ▇▇▇▇▇ ▇▇▇.
(t) OPINION OF COUNSEL TO BORROWERS. An opinion, dated
the Closing Date, of the law firm of ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Borrowers and DWG, in the
form of Exhibit C hereto.
Section 3.2 CONDITIONS TO ALL LOANS. The obligation of the Bank
to make any Loan is subject to the conditions precedent that:
(a) The following statements shall be true, and the
acceptance of the proceeds of such Loan by a Borrower shall be
deemed to be a representation and warranty of each Borrower on
the date of such Loan that, (i) the representations and
warranties contained in Article IV of this Agreement and in
each other Loan Document and certificate or other writing
delivered to the Bank pursuant hereto on or prior to the date
for such Loan are true and correct on and as of such date as
though made on and as of such date; (ii) no Event of Default or
Default has occurred and is continuing or would result from the
making of such Loan to be made on such date; and (iii) no
material adverse change in the financial condition, properties
or prospects of any Loan Party shall have occurred and be
continuing on the date of each request for a Loan; and
(b) The Bank shall have received a Notice of Borrowing
in accordance with Section 2.1 hereof with respect to such
Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Bank that:
Section 4.1 GOOD TITLE TO DWG INTEREST. ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇ are the sole general partners of DWG, which interests are owned free
and clear of any Lien. Schedule 4.1 hereto sets forth the name and
interest of each other partner of DWG.
Section 4.2 NO INSOLVENCY PROCEEDINGS. The Borrowers have no
knowledge of any insolvency proceeding of any type instituted with
respect to DWG, Triarc or Pechiney.
Section 4.3 NO DEFAULT. No Default or Event of Default has
occurred and is continuing.
Section 4.4 ENFORCEABLE OBLIGATIONS. The Borrowers have the
legal capacity and right to execute, deliver and perform this Agreement,
the Note and the other Loan Documents. This Agreement, the Note and the
other Loan Documents constitute legal, valid and binding obligations of
the Borrowers, enforceable against each Borrower that is a party thereto
in accordance with their respective terms.
Section 4.5 NO LEGAL BAR. The execution, delivery and
performance of this Agreement, the Note and the other Loan Documents, and
the borrowings hereunder, will not violate any law or regulation
(including, without limitation, Regulations G, T, U or X) or any
contractual obligation of either Borrower and will not result in the
creation or imposition of a Lien on any property of a Borrower, other
than security interests created by the Loan Documents.
Section 4.6 NO LITIGATION. Except as disclosed on Schedule 4.6,
there is no litigation or proceeding of or before any arbitrator or
Governmental Authority pending or threatened against any Loan Party (as
to which either Borrower has received notice in writing) (a) with respect
to this Agreement, any Loan, the use of the proceeds thereof, the Triarc
Collateral or the Pechiney Collateral, or (b) which could reasonably be
expected to have a Material Adverse Effect.
Section 4.7 TAXES. The Borrowers have filed or caused to be
filed all tax returns which are required to be filed and have paid all
taxes shown to be due and payable on such returns or on any assessments
made against them or any of their property by any Governmental Authority
except to the extent any such taxes are being contested in good faith and
any exceptions thereto are set forth on Schedule 4.7. No tax Lien has
been filed with respect to any material tax liability against either
Borrower, and, to the Borrowers' knowledge, no tax assessment is pending
against either Borrower, except as set forth on Schedule 4.7.
Section 4.8 PARTNERSHIP AGREEMENT. The Borrowers have delivered
to the Bank a true and correct copy of the Partnership Agreement, as in
effect on the date hereof.
Section 4.9 APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required
for the due execution, delivery and performance by either Borrower of any
Loan Document to which such Person is a party.
Section 4.10 FINANCIAL CONDITION. (a) The personal financial
statements (including the notes relating thereto) of the Borrowers dated
September 30, 1995, copies of which have been previously delivered to the
Bank, fairly present the financial condition of the Borrowers as at the
date thereof, and since such date there has been no material adverse
change in the financial condition, properties or prospects of either
Borrower.
(b) The balance sheet of DWG as at December 31, 1994, copies
of which have been previously delivered to the Bank, fairly presents the
financial condition of DWG as at such date, all in accordance with sound
accounting principles consistently applied, and since December 31, 1994
there has been no material adverse change in the financial condition,
properties or prospects of DWG (it being understood that any decrease in
the per share price of common stock of Triarc shall not constitute a
material adverse change for purposes of this paragraph).
Section 4.11 REGULATION U. Such Borrower is not and will not be
engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by
the Board), and no proceeds of any Loan will be used for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying
margin stock, or to refinance any loan or other Indebtedness the proceeds
of which were used to purchase or carry, any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
Section 4.12 PURPOSE OF LOAN. The proceeds of each Loan will be
used only for specific investment purposes, but in no event shall such
proceeds be used for any investment purpose inconsistent with Section
4.11 hereof, or to repay any Indebtedness incurred to repay Indebtedness
owed to any prior pledgee of the Triarc Shares that was secured (directly
or indirectly) by shares of stock of Triarc.
Section 4.13 FULL DISCLOSURE. No Loan Document or schedule or
exhibit thereto, and no certificate, report, statement or other document
or information furnished to the Bank in connection herewith or with the
consummation of the transactions contemplated hereby, contains any
material misstatement of fact or omits to state a material fact or any
fact necessary to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made.
There is no fact known to any Borrower (other than public information as
to matters of a general economic nature) that materially adversely
affects the financial condition of a Borrower or DWG the value of any of
the Collateral that has not been disclosed to the Bank in writing prior
to the Signing Date.
ARTICLE V
COVENANTS
So long as any Obligation is outstanding or the Bank shall have
any Commitment hereunder, the Borrowers will, unless the Bank shall
otherwise consent in writing:
Section 5.1 FINANCIAL STATEMENTS. Deliver to the Bank in form
and detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60)
days after the end of each calendar quarter and for that
portion of the calendar year ending with such quarter, a
statement of assets and liabilities (including, without
limitation, contingent liabilities) of the Borrowers as of the
close of such quarter, certified by the Borrowers to the best
of their knowledge as being true and complete in all material
respects;
(b) together with each statement of assets and
liabilities,
(i) a letter showing which assets each
Borrower owns individually, which assets are owned by
the other Borrower individually and which assets are
owned jointly by the Borrowers. Such assets shall be
valued on a basis consistent with that used in the
preparation of the September 30, 1995 statement of
assets and liabilities, except as explained in any
notes to the quarterly statement which such letter
accompanies; and
(ii) an update on the status of the audit
by the Internal Revenue Service of the Borrower's
federal tax returns (which update may be included
in the footnotes to such statement of assets and
liabilities; the level of disclosure for such
updates will be sufficient if the same as for previous
updates included in such footnotes); and
(c) as soon as available and in any event not more than
90 days after the end of each calendar year, (i) a statement of
personal cash flow of the Borrowers for the year then ended and
projected cash flow of the Borrowers for the following year,
certified by the Borrowers to the best of their knowledge as
being true and complete in all material respects, and (ii) a
balance sheet of DWG, showing the financial condition of DWG as
of the close of such year and prepared in accordance with sound
accounting principles consistently applied, all certified by
its partners as fairly presenting the financial condition of
DWG; and
(d) promptly upon request, such other information
concerning the operations, condition (financial or otherwise),
business, assets or prospects of any Loan Party as the Bank
from time to time may reasonably request.
Section 5.2 NOTICES. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any
default under, any contractual obligation of any Loan Party
which could have a Material Adverse Effect; and (ii) any
action, suit, litigation or proceeding which may exist at any
time which could reasonably be expected to have a Material
Adverse Effect;
(c) the commencement of, or any material development
in, any litigation or proceeding affecting any Loan Party (i)
which could reasonably be expected to have a Material Adverse
Effect, (ii) in which the relief sought is an injunction or
other stay of the performance of this Agreement, the Note or
any other Loan Document or (iii) any litigation involving any
of the Collateral; and
(d) any Material Adverse Effect subsequent to the date
of the most recent statement of assets and liabilities of the
Borrowers delivered to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a written
statement signed by the Borrowers, setting forth details of the
occurrence referred to therein, and stating what action the Borrowers
propose to take with respect thereto and at what time. Each notice under
Section 5.2(a) shall describe with particularity the provisions of this
Agreement, the Note or other Loan Document that have been breached.
Section 5.3 PAYMENT OF OBLIGATIONS. Pay all taxes, assessments,
governmental charges and other obligations when due, except as may be
contested in good faith or those as to which a bona fide dispute may
exist.
Section 5.4 FURTHER ASSURANCES. Execute and deliver to the Bank
such further instruments and do such other further acts as the Bank may
reasonably request to carry out more effectively the purposes of this
Agreement, the other Loan Documents and any agreements and instruments
referred to herein.
Section 5.5 DWG. Not permit DWG to (i) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage
in, any transaction, business or operation other than the ownership of
the Pledged Shares, (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or obligations, except obligations
owing by it under the Loan Documents to which it is a party, (iii) create
or suffer to exist any Lien upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign any right
to receive income , except for any Lien in favor of the Bank, (iv)
liquidate, dissolve, merge or consolidate with, or sell, assign, lease or
otherwise dispose of (whether in one transaction or in a series of
transaction), any of its assets (whether now owned or hereafter acquired)
to any Person, (v) own, lease, manage or otherwise operate any properties
or assets other than the ownership of the Pledged Shares, or (vi) make
any payment other than in accordance with the provisions of the Loan
Documents.
Section 5.6 CHANGE IN STATE OF RESIDENCE. Not change the state
of their principal place of residence (which is currently New York)
without (a) notifying the Bank in writing prior to such change, (b)
designating in writing an agent for service of process in the State of
New York and notifying the Bank of same and (c) delivering to the Bank
the written acceptance of such agent.
Section 5.7 DWG PARTNERSHIP AGREEMENT. Not amend, modify,
alter, terminate or waive any provision of the Partnership Agreement.
Section 5.8 NET WORTH. Maintain at all times a minimum Net
Worth of $[REDACTED]. As used herein, "Net Worth" means the total assets
of the Borrowers minus the total liabilities of the Borrowers, all
determined in accordance with sound accounting principles.
Section 5.9 RULE 144 COVENANTS. (a) Not sell any securities of the
same class or convertible into the same class of securities as the Triarc
Collateral, whether or not such securities are pledged hereunder, from the date
hereof until the Obligations have been paid in full, and in the event of any
such sale consented to by the Bank will furnish the Bank with a copy of any
Form 144 filed in respect of such sale. The Borrowers will cause any Person
with whom it shall be deemed one "person" for purposes of Rule 144(a)(2) to
refrain from selling any securities of the same class or convertible into the
same class of securities as the Triarc Collateral, whether or not such
securities are pledged hereunder, from the date hereof until the Obligations
have been paid in full and the Commitment terminated, and in the event of any
such sale consented to by the Bank will furnish the Bank with a copy of any
Form 144 filed in respect of such sale.
(b) Cooperate fully with the Bank with respect to any
sale by the Bank of any of the Triarc Collateral, including
full and complete compliance with all requirements of Rule
144, and will give to the Bank all information and will do
all things necessary, including the execution of all
documents, forms, instruments and other items, to comply with
Rule 144 for the complete and unrestricted sale and/or
transfer of the Rule 144 Securities.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 EVENT OF DEFAULT. Any of the following shall
constitute an "EVENT OF DEFAULT":
(a) NONPAYMENT. Either (i) THE BANK SHALL DEMAND
PAYMENT ON THE NOTE (AT ANY TIME IN ITS SOLE AND ABSOLUTE
DISCRETION, AND REGARDLESS OF WHETHER ANY OTHER DEFAULT OR
EVENT OF DEFAULT SHALL HAVE OCCURRED), or (ii) either Borrower
shall fail to pay any principal of a Loan or the Note when due
(whether by scheduled maturity, mandatory prepayment,
acceleration, demand or otherwise), or (iii) either Borrower
shall fail to pay any interest on a Loan or the Note or any
other amount payable hereunder and such failure shall continue
for 3 Business Days; or
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by any Loan Party made or deemed made herein, in any
other Loan Document or in any certificate, document or
financial or other statement furnished by a Loan Party pursuant
to a Loan Document shall have been incorrect or misleading in
any material respect on or as of the date made or deemed made;
or
(c) OTHER DEFAULT. (i) A Borrower shall fail to perform
or observe any term or covenant in Section 2.5 hereof after any
applicable notice and cure period expressly set forth therein,
or (ii) a Borrower shall fail to perform or observe any term or
covenant in Section 5.1 or 5.2 hereof after any applicable
notice and cure period expressly set forth therein (if any), or
(iii) any Loan Party shall fail to perform or observe any other
material term or covenant contained in this Agreement or any
other Loan Document, and not referred to in another subsection
of this Section 6.1, and such default continues unremedied for
a period of 20 days or (iv) a Loan Party shall fail to perform
or observe any other term or covenant contained in this
Agreement or any other Loan Document, and not referred to in
clauses (i), (ii) or (iii) of this subsection (c) or in any
other subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days after the Bank
gives notice to either Borrower of same; or
(d) CROSS-DEFAULT. Any Loan Party (i) shall fail to
make any required payment when due in respect of any
Indebtedness having a principal or face amount of [ REDACTED ]
or more when due (whether at scheduled maturity or required
prepayment or by acceleration, demand, or otherwise); or (ii)
shall fail to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such
Indebtedness, and such failure continues after the applicable
grace or notice period, if any, specified in the document
relating thereto, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of
such indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its
stated maturity, or such contingent obligation to become
payable or cash collateral in respect thereof to be demanded;
or
(e) VOLUNTARY PROCEEDINGS. Any Loan Party (i) becomes
insolvent, or generally fails to pay, or admits in writing the
inability to pay such Loan Party's debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences a proceeding under the
bankruptcy laws of any state or of the United States with
respect to such Loan Party; or (iii) takes any action to
effectuate or authorize any of the foregoing; or
(f) INVOLUNTARY PROCEEDINGS. (i) Any involuntary
bankruptcy proceeding is commenced or filed against any Loan
Party or any writ, judgment, warrant of attachment, execution
or similar process, is issued or levied against a substantial
part of any Loan Party's properties, and any such proceeding or
petition is not dismissed, or such writ, judgment, warrant of
attachment, execution or similar process is not released,
vacated or fully bonded within 90 days after commencement,
filing or levy; (ii) any Loan Party admits the material
allegations of a petition against such Loan Party in any
insolvency proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any insolvency proceeding; or
(iii) any Loan Party acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar
person for a substantial portion of such Loan Party's property
or business; or
(g) MONETARY JUDGMENTS; LIENS. One or more final
(non-interlocutory) judgments, orders or decrees is entered
against any Loan Party or a Lien is filed against property of
any Loan Party (other than as contemplated hereby) involving in
the aggregate liability (not fully covered by independent
third-party insurance) as to any single or related series of
transactions, incidents or conditions, of [ REDACTED ]or more,
and the same remains unvacated and unstayed pending appeal (if
a judgment) or unbonded (if a Lien) for a period of 10 days
after the entry thereof; or
(h) TRIARC PLEDGE AGREEMENT. Any provision of the
Triarc Pledge Agreement ceases to be valid and binding on or
enforceable against DWG, the Triarc Pledge Agreement ceases to
create a valid security interest in the collateral purported to
be covered thereby or such security interest ceases for any
reason to be a perfected and first priority security interest;
or
(i) PECHINEY PLEDGE AGREEMENT. Any provision of the
Pechiney Pledge Agreement ceases to be valid and binding on or
enforceable against ▇▇▇▇▇ ▇▇▇, the Pechiney Pledge Agreement
ceases to create a valid security interest in the collateral
purported to be covered thereby or such security interest
ceases for any reason to be a perfected and first priority
security interest; or
(j) TERM LOAN AGREEMENT. An "Event of Default" shall
occur under the Term Loan Agreement dated as of July 29, 1994,
as amended or otherwise modified from time to time, between
▇▇▇▇▇ ▇▇▇ and NationsBank of Florida, N.A.; or
(k) PUBLIC INFORMATION. Triarc shall at any time cease
to satisfy either of the conditions set forth in paragraph (c)
of Rule 144 (unless at such time pursuant to paragraph (k) of
Rule 144 the Bank can sell all of the Triarc Class A Common
Stock pledged to the Bank); or shares of the Triarc Class A
Common Stock shall cease to be listed on the New York Stock
Exchange or the American Stock Exchange or included for trading
on the NASDAQ Stock Market/National Market System; or
(l) DWG CONTROL. ▇▇▇▇▇ ▇▇▇ shall cease to own
directly, beneficially and of record, 33-1/3% of the
partnership interests in DWG, or ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇
shall cease collectively to own directly, beneficially and of
record, 100% of the partnership interests in DWG (except for
the limited partnership interest of ▇▇▇▇ ▇▇▇▇▇▇▇▇); or
(m) DEATH OR INCAPACITY. ▇▇▇▇▇ ▇▇▇ shall die or shall
cease to have legal capacity.
Section 6.2 REMEDIES. If any Event of Default occurs, the Bank
may:
(a) declare the aggregate principal amount of the
outstanding Loans, all interest accrued and unpaid thereon, and
all other Obligations to be immediately due and payable,
whereupon such Loans, all interest accrued and unpaid thereon,
and all other Obligations shall become and be forthwith due and
payable without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the
Borrowers;
(b) exercise all rights and remedies available to it
hereunder, under the Note, any other Loan Document or
applicable law;
(c) declare the Commitment to be terminated, whereupon
the Commitment shall forthwith terminate; and
(d) enforce, as Collateral Agent, and direct the
Florida Agent to enforce (subject to Section 8 of the
Intercreditor Agreement), all of the Liens and security
interests created pursuant to the Loan Documents;
PROVIDED, HOWEVER, that (i) upon the occurrence of any event specified in
paragraph (c)(i), (f) or (g) of Section 6.1 above (in the case of clause
(i) of paragraph (f), after the 90-day period expressly set forth
therein), the Commitment shall automatically terminate and the aggregate
principal amount of the outstanding Loans, all interest accrued and
unpaid thereon, and all other Obligations shall automatically become due
and payable, without presentment, demand, protest or further notice of
any kind, all of which are hereby expressly waived by the Borrowers, and
(ii) in the case of any event specified in paragraph (c)(i) of Section
6.1 above (after the five-day period expressly set forth in Section
2.5(b) hereof), and notwithstanding any notice provisions in any other
Loan Document, (A) the Collateral Agent may sell all or any part of the
Triarc Collateral and (B) the Florida Agent may (subject to Section 8 of
the Intercreditor Agreement) sell all or any part of the Pechiney
Collateral, and in each case the Bank may apply the proceeds of such
Collateral to the payment of the Obligations.
Section 6.3 RIGHTS NOT EXCLUSIVE. The rights provided in this
Agreement, the Note and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement now existing
or hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 AMENDMENT AND WAIVER. No modification, consent,
amendment or waiver of any provision of this Agreement, nor consent to
any departure by either Borrower therefrom, shall be effective unless the
same shall be in writing and signed by a Vice President or higher level
officer of the Bank, and then shall be effective only in the specific
instance and for the purpose for which given.
Section 7.2 COSTS AND EXPENSES. The Borrowers shall:
(a) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank,
including, without limitation, the reasonable fees and
disbursements of counsel and paralegals, in connection with the
development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or
modification to, this Agreement, the Note or any of the other
Loan Documents, the review of the Collateral and the
consummation of the transactions contemplated hereby;
(b) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by it,
including, without limitation, the fees and disbursements of
counsel and paralegals, in connection with the enforcement,
attempted enforcement, or preservation of any rights or
remedies (including in connection with any "workout" or
restructuring regarding any of the Loans and any insolvency
proceeding or appellate proceeding) under this Agreement, the
Note or any other Loan Document or in respect of any of the
Collateral; and
(c) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank in
connection with litigation involving the Triarc Collateral,
whether related to enforcement thereof or otherwise.
Section 7.3 JOINT AND SEVERAL OBLIGATIONS. All of the
Obligations of the Borrowers hereunder and under the Note and the other
Loan Documents are joint and several. The Bank may, in its sole and
absolute discretion, enforce the provisions hereof against either of the
Borrowers and shall not be required to proceed against both Borrowers
jointly or seek payment from the Borrowers ratably. In addition, the
Bank may, in its sole and absolute discretion, select the Collateral of
any one or more of the Loan Parties for sale or application to the
Obligations, without regard to the ownership of such Collateral, and
shall not be required to make such selection ratably from the Collateral
owned by the Loan Parties (it being understood that any sale or
disposition of the Pechiney Collateral shall be subject to Section 8 of
the Intercreditor Agreement). It is understood and agreed that ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇ have agreed between themselves that ▇▇▇▇▇▇ ▇▇▇▇▇
shall have a two-thirds interest, and ▇▇▇▇▇ ▇▇▇ shall have a one-third
interest, in DWG and its assets, and the Bank hereby agrees that in the
event the Bank shall sell or otherwise dispose of any of the Triarc
Collateral, the Bank shall apply one third of the proceeds of such Triarc
Collateral to the Obligations.
Section 7.4 DEMAND OBLIGATION. Nothing in this Agreement or
in any other Loan Document is intended to be an amendment or modification
of, or limitation or restriction upon, any provision of the Note
(including, without limitation, the Borrower's obligation under the Note
to pay principal and interest ON DEMAND), and the provisions of the Note
shall be controlling and fully effective regardless of anything herein to
the contrary. The Borrowers hereby acknowledge that the Bank may at any
time, in its sole and absolute discretion, demand payment of the Note,
even if the Borrowers have fully complied with all of the terms and
conditions of this Agreement and the other Loan Documents. This
Agreement, the Note and the other Loan Documents constitute the entire
agreement among the parties with respect to the borrowings contemplated
hereunder and supersede all prior agreements, written or oral, with
respect to the borrowings contemplated hereunder. THE NOTE AND THE
BORROWERS' OBLIGATIONS ARE PAYABLE UPON DEMAND BY THE BANK (IN ITS SOLE
AND ABSOLUTE DISCRETION).
Section 7.5 SET-OFF. If an Event of Default exists, the Bank is
authorized to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing to, the Bank to or for the credit or the
account of any Borrower against any and all Obligations owing to the
Bank, now or hereafter existing, whether or not the Bank has made demand
under this Agreement, the Note or any other Loan Document and although
such Obligations may be contingent or unmatured. The Borrowers hereby
waive prior notice of such action. The Bank, however, agrees promptly to
notify the Borrowers after any such set-off; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such
set-off. The rights of the Bank under this Section 7.5 are in addition
to the other rights and remedies (including other rights of set-off)
which the Bank may have.
Section 7.6 WAIVER. No failure or delay on the part of the Bank
or the Borrowers in exercising any right, power or privilege under this
Agreement and no course of dealing between the Borrowers or any other
person and the Bank or any other person shall operate as a waiver hereof
or thereof.
Section 7.7 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to
the benefit of each party hereto and its successors and
assigns, except that the Borrowers shall not be entitled to
assign or transfer all or any of their rights, benefits or
obligations hereunder, except for their death or mental
incapacity.
(b) The Bank may not assign or otherwise transfer any
of its rights or obligations under this Agreement except as
provided in this Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein
or selling a participation in its rights and obligations under
this Agreement, the Bank shall discuss with a Borrower the
names of such potential participants or assignees. The Bank
shall not assign or sell a participation in its rights and
obligations under this Agreement to any person unless a
Borrower shall have consented thereto (which consent shall not
be unreasonably withheld).
(ii) The Borrowers shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or sell
a participation in, the outstanding Loans and the
Commitment in an amount less than 15% of the Commitment;
(B) it will at all times retain not less
than 15% of the outstanding Loans and the Commitment;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation
or assign any portion of its interest in outstanding Loans
and the Commitment if, after giving effect to such
participation or assignment, such participant or assignee would
hold less than 15% of the outstanding Loans and the Commitment;
(D) the Bank will not assign an interest or sell
a participation in any Loan or the Commitment to any
assignee or participant who would be entitled to receive
additional compensation under Section 2.10 at the time of such
assignment or sale by the Bank, nor to any assignee or participant
who would find it unlawful or impossible to make, maintain or fund
its assigned interest or participation in the Loan at a rate based
on Adjusted LIBOR as provided in Section 2.11, at the time of such
assignment or sale by the Bank;
(E) with respect to any matter on which the Bank
and any assignee or participant is required to vote or
is solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all
assignees or participants, financial institutions holding
51% of the outstanding Loans shall decide the issue, provided
that such 51% includes the Bank; and
(F) in any participation agreement or assignment
agreement with any participant or assignee, as the case
may be, the Bank will:
(x) require that any bank organized outside
the United States will deliver to the Bank with a copy
to either Borrower Internal Revenue Service Form 4224 or 1001,
duly completed and signed; and
(y) provide that each participant or assignee,
as the case may be, will agree to be bound by all
the terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the Borrowers
furnished to the Bank by or on behalf of the Borrowers;
PROVIDED, that prior to any such disclosure, the proposed
participant or assignee shall agree in writing to preserve the
confidentiality of any confidential information relating to the
Borrowers received by it from the Bank to the same extent
as is required of the Bank.
(v) The Bank shall act as agent in connection with any
transfer permitted hereunder and the administration of
the Loans, and shall remain the holder of the Triarc Collateral
and act as collateral agent of the Triarc Collateral
holding the same for its benefit and the benefit of the permitted
assignees and participants hereunder. The Borrowers
shall not be required to deal with any participant or assignee
in connection with the administration of the Loans, and
each assignment agreement or participation agreement shall
provide that each such assignee or participant shall deal
solely with the Bank as agent and not directly with the Borrowers.
Section 7.8 CONFIDENTIALITY. The Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" by the
Borrowers and provided to it by the Borrowers in connection with this
Agreement, and it shall not use any such information for any purpose or
in any manner other than pursuant to the terms contemplated by this
Agreement; except to the extent such information (i) was or becomes
generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis
from a source other than the Borrowers, provided that such source is not
bound by a confidentiality agreement with the Borrowers known to the
Bank; PROVIDED FURTHER, HOWEVER, that the Bank may disclose such
information: (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with
an examination of the Bank by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable requirement of law; (D) to the
Bank's independent auditors and other professional advisors, all of whom
shall have been advised of the confidential nature of such information;
and (E) to proposed assignees or participants in accordance with Section
7.8(b)(iv). It is understood that the financial information to be
delivered pursuant to Section 5.1 or any similar financial information
delivered prior to the Closing Date shall be deemed to have been
identified as confidential by the Borrowers.
Section 7.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
Section 7.10 SEVERABILITY. Any provision of this Agreement
which is illegal, invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without invalidating the remaining
provisions hereof or affecting the legality, validity or enforceability
of such provision in any other jurisdiction.
Section 7.11 NOTICES. Unless otherwise expressly provided
herein, all notices and other communications provided for hereunder shall
be in writing and shall be mailed, telegraphed, telecopied or delivered,
if to the Borrowers, to c/o Triarc Companies, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy No. [ REDACTED ],
Telephone No.: [ REDACTED ], with a copy to ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Telecopier No.: [ REDACTED ], Telephone
No.: [ REDACTED ]; if to the Bank, to it at its address at NationsBank,
N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
copies to NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President,
Telecopier No. [ REDACTED ], Telephone No. [ REDACTED ], and ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Telecopier No. [ REDACTED ], Telephone
No.[ REDACTED ]; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party complying
as to delivery with the terms of this Section 7.11. Any notice to the
Bank by any Borrower or Borrowers shall be binding on all of the
Borrowers. The Bank may, and is hereby authorized, in its sole
discretion, to act in accordance with the terms hereof upon receipt of
any notice, including, without limitation, a Notice of Borrowing, by any
Borrower or Borrowers as though such notice had been signed by both of
the Borrowers, and all of the rights and remedies of the Bank, and
Obligations of the Borrowers, shall be in full force and effect
notwithstanding that any Borrower did not execute or consent to such
Notice of Borrowing or other notice. All such notices and other
communications shall be effective (i) if mailed, when deposited in the
mails, (ii) if telegraphed, when delivered to the telegraph company,
(iii) if telecopied, upon receipt, or (iv) if delivered, upon delivery,
except that notices to the Bank pursuant to Article II hereof shall not
be effective until received by the Bank.
Section 7.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
Section 7.13 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS
OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE
FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW),
THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND
THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY,
THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY
BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT
MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED
IN THE COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME OF THE
EXECUTION OF THIS AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL
APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED
FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO
EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY
WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR
(II) BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III)
LIMIT THE RIGHT OF THE BANK HERETO (A) TO EXERCISE SELF HELP
REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT
LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. NEITHER
THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY
REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS
OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
Section 7.14 THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
-----------------------------
▇▇▇▇▇ ▇▇▇
-----------------------------
▇▇▇▇ MAY
NATIONSBANK, N.A.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, S.V.P.
---------------------------
Title: AUTHORIZED SIGNATORY
REDACTED
TERM LOAN AGREEMENT
dated as of July 29, 1994
between
▇▇▇▇▇ ▇. MAY
and
NATIONSBANK OF FLORIDA, N.A.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...............1
Section 1.1 Certain Defined Terms.......................1
ARTICLE IITHE LOAN.......................................6
Section 2.1 Amount of the Loan..........................6
Section 2.2 Interest....................................6
Section 2.3 Payment Under Collateral Notes and
Letters of Credit...........................7
Section 2.4 Payment of Principal........................8
Section 2.5 Optional Prepayment.........................8
Section 2.6 Mandatory Prepayment........................8
Section 2.7 Evidence of Credit Extensions...............8
Section 2.8 Payment.....................................8
Section 2.9 Computations of Interest; Business
Day.........................................8
Section 2.10 Increased Costs, Etc.......................9
Section 2.11 Illegality................................10
Section 2.12 Funding Losses............................11
Section 2.13 Unavailability............................11
Section 2.14 Special Prepayment........................11
ARTICLE III CONDITIONS PRECEDENT........................12
Section 3.1 Deliveries.................................12
Section 3.2 Representations Correct....................13
Section 3.3 Release of Credit Suisse Lien..............13
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............13
Section 4.1 Good Title to Collateral...................13
Section 4.2 Enforceable Collateral Notes;
No Default...............................14
Section 4.3 No Defense to or Prepayment of
Collateral Notes...........................14
Section 4.4 No Misrepresentation.......................14
Section 4.5 No Insolvency Proceedings..................14
Section 4.6 No Default.................................14
Section 4.7 Enforceable Obligations....................14
Section 4.8 No Legal Bar...............................14
Section 4.9 No Litigation..............................15
Section 4.10 Taxes.....................................15
Section 4.11 Margin Stock..............................15
Section 4.12 Purpose of Loan...........................15
Section 4.13 Pledge Agreement..........................15
Section 4.14 Escrow Agreement..........................15
ARTICLE V COVENANTS.....................................16
Section 5.1 Financial Statements.......................16
Section 5.2 Notices....................................17
Section 5.3 Payment of Obligations.....................17
Section 5.4 Further Assurances.........................17
Section 5.5 Notice to Pechiney and Escrow Agent........18
Section 5.6 Amendments to Escrow Agreement.............18
Section 5.7 Change in State of Residence...............18
ARTICLE VI EVENTS OF DEFAULT............................18
Section 6.1 Event of Default...........................18
(a) Non-Payment...................................18
(b) Representation or Warranty....................19
(c) Other Default.................................19
(d) Cross-Default.................................19
(e) Material Adverse Change.......................20
(f) Insolvent Voluntary Proceedings...............20
(g) Involuntary Proceedings.......................20
(h) Monetary Judgments; Liens.....................20
(i) Pledge Agreement..............................20
Section 6.2 Remedies...................................21
Section 6.3 Rights Not Exclusive.......................21
ARTICLE VII MISCELLANEOUS...............................21
Section 7.1 Amendment and Waiver.......................21
Section 7.2 Costs and Expenses.........................22
Section 7.3 Indemnification............................22
Section 7.4 GOVERNING LAW AND SUBMISSION TO
JURISDICTION...............................23
Section 7.5 Set-Off....................................23
Section 7.6 Waiver.....................................24
Section 7.7 Successors and Assigns.....................24
Section 7.8 Confidentiality............................26
Section 7.9 Counterparts...............................27
Section 7.10 Severability..............................27
Section 7.11 Notices...................................27
Section 7.12 Document Stamp Taxes......................27
Section 7.13 WAIVER OF JURY TRIAL......................27
SCHEDULES
Schedule 2.2- Interest Payment Dates
Schedule 4.9- Litigation, Tax Audits
Schedule 4.10- Tax Assessments
EXHIBITS
Exhibit A- Note
Exhibit B - Pledge Agreement
Exhibit C - Direction to Demand Payment, Accelerate or Draw
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (the "Agreement"), dated as of July
29,1994, is entered into by and between ▇▇▇▇▇ ▇. MAY (the "Borrower"), an
individual residing in the State of New York, and NATIONSBANK OF FLORIDA,
N.A. (the "Bank"), a national banking association.
RECITALS
The Borrower has requested that the Bank make a term loan (the
"Loan") available to the Borrower in an amount not in excess of Fifty-One
Million Dollars ($51,000,000), which Loan is to be secured by the pledge
to the Bank by the Borrower of promissory notes (the "Collateral Notes")
issued by Pechiney Corporation, a Delaware corporation ("Pechiney"),
payable to the Borrower in an aggregate principal amount of $60,000,000.
Payment of the Collateral Notes is supported by transfer letters of
credit issued by Banque Nationale de Paris, New York Branch, which, on
the Closing Date, will issue new letters of credit naming the Bank as
beneficiary. The Bank will hold such letters of credit for itself and as
collateral agent for any Eligible Institution (as defined herein) to
which the Bank sells a participation in the Loan or to which the Bank
assigns a portion of its interest therein.
The Bank has agreed to make the loan to the Borrower on the
terms set forth herein.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings:
"Adjusted LIBOR" means, with respect to any Interest Period, a
rate per annum (rounded upward, if necessary, to the nearest 1/100th of
one percent), determined pursuant to the following formula:
LIBOR
1.00 minus the Eurodollar Reserve Percentage
"Applicable Margin" means:
(i) prior to a Rating Change, [REDACTED]%; and
(ii) after a Rating Change and during the continuance
thereof, [REDACTED]%.
Any change in the Applicable Margin shall take effect on the date of any
Rating Change.
"Base Rate" means, for any day, a simple rate per annum equal
to the higher of (i) the Prime Rate for such day, or (ii) the sum of one
half of one percent ( 1/2 %) plus the Federal Funds Rate for such day.
"BNP" means Banque Nationale de Paris, New York Branch.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close and, if the applicable Business Day relates to
any Interest Period for which interest on the Loan is determined by
reference to the Adjusted LIBOR rate, also includes a day on which
commercial banks are open for international business in London.
"Closing Date" means July 29, 1994.
"Collateral Notes" has the meaning assigned to it in the
Recitals.
"Default" means a condition or event which, after notice or
lapse of time or both, would constitute an Event of Default.
"Default Rate" has the meaning specified in Section 2.2.
"Direction to Demand Payment, Accelerate or Draw" means a
direction, in the form attached hereto as Exhibit C, dated and signed by
the Borrower.
"Dollars" and the sign "$" each mean lawful money of the United
States of America.
"Eligible Institution" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; or (ii) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the United States or
an offshore branch outside the United States at which such bank books
loans bearing interest based on LIBOR and, in the case of a bank
described in either clause (i) or clause (ii), such bank is able to
deliver Internal Revenue Service Form 1001 or 4224 to the Bank with a
copy to the Borrower as of the day such bank becomes an assignee or
participant.
"Escrow Agreement" means that certain Escrow Agreement, dated
as of December 22, 1988, among Pechiney, BNP, the Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇
and Bank of the West as Escrow Agent, as amended from time to time.
"Eurodollar Reserve Percentage" means, with respect to each
Interest Period, the maximum reserve percentage (expressed as a decimal
fraction), in effect on the date LIBOR for such Interest Period is
determined (whether or not applicable to the Bank), prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining reserve requirements generally applicable to financial
institutions regulated by the Board of Governors of the Federal Reserve
System (including without limitation any basic, emergency, supplemental
or other marginal reserve requirements) with respect to Eurocurrency
liabilities pursuant to Regulation D or any other then applicable
regulation of the Board of Governors of the Federal Reserve System which
prescribes reserve requirements applicable to "Eurocurrency liabilities"
as presently defined in Regulation D (or any other category of
liabilities which includes deposits by reference to which the interest
rate is determined or any category or extension of credit which includes
loans by a non-United States office of the Bank to United States
residents). Each determination by the Bank of the Eurodollar Reserve
Percentage shall, in the absence of demonstrable error, be binding and
conclusive.
"Event of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (ii) if no such
rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the Bank on
such day on such transactions as determined by the Bank.
"Interest Period" means each three (3) month period during
which interest on the Loan shall be calculated by reference to Adjusted
LIBOR determined as of the second Business Day before the commencement of
that Interest Period; provided, however, that:
(i) if any Interest Period would end on a day not a
Business Day, it shall end on the next Business Day
unless the next Business Day would fall in the next
calendar month, in which case the Interest Period
shall end on the Business Day immediately preceding
the last day of such Interest Period but for such
change;
(ii) if any Interest Period would end on a day for which
there is no corresponding day in such month, it shall
end on the immediately preceding Business Day;
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the
Termination Date; and
(iv) the first Interest Period shall commence on the
Closing Date and shall be a period of more or less
than three (3) months so that it may end on a date
set forth on Schedule 2.2 for an interest payment by
the Borrower; thereafter, each Interest Period shall
commence upon the expiration of the preceding
Interest Period.
"Letters of Credit" means (i) when used with respect to the
letters of credit issued by BNP naming the Bank as beneficiary in its
capacity as collateral agent, such letters of credit and (ii) when used
with respect to letters of credit supporting payment of the Collateral
Notes prior to the Closing Date, such letters of credit.
"LIBOR" means, for each Interest Period, the interest rate per
annum displayed on Telerate page 3750 (or such other page as may replace
such page on that service for the purpose of displaying interest rates at
which Dollar deposits are offered by prime banks in the London interbank
market), as of 11:00 a.m., London, England time, on the day which is two
(2) Business Days prior to the first day of the applicable Interest
Period, rounded to the nearest .0625 of one percent. If Telerate ceases
to quote LIBOR at any time during the term of this Agreement, then LIBOR
shall mean the rate of interest per annum at which deposits in U.S.
Dollars are offered to the Bank by prime banks in the London interbank
market at approximately 11:00 a.m. London time two (2) Business Days
before the first day of such Interest Period for amounts approximately
equal to the outstanding principal amount of the Loan, and for a period
comparable to the applicable Interest Period. LIBOR shall be adjusted
from time to time for the aggregate reserve requirements (including,
without limitation, all basic, supplemental, marginal and other reserve
requirements and taking into account any transitional adjustments or
other scheduled changes in reserve requirements during any Interest
Period) specified in Regulation D of the Board of Governors of the
Federal Reserve System, or any subsequent regulations of similar effect,
as applicable to "Eurocurrency liabilities" (as presently defined in
Regulation D) of the Bank to the extent actually complied with by same.
"Loan" has the meaning specified in the Recitals.
"Lien" means any lien, mortgage, pledge, security interest,
charge or similar encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and
any agreement to give any security interest).
"Material Adverse Effect" means that the Net Worth of the
Borrower is less than $[REDACTED].
"Missed Interest Payment" has the meaning specified in Section
6.1(a).
"Net Worth" means, at any time of determination thereof, when
used with respect to the Borrower, the net worth of the Borrower as
reflected on the quarterly statement of assets and liabilities of the
Borrower prepared on a basis consistent with that used in the preparation
of the Borrower's March 31, 1994 statement of assets and liabilities
(except as explained in any notes to such quarterly statement).
"Note" means a promissory note in the form attached hereto as
Exhibit A, as such note may be modified, amended, supplemented or
restated from time to time.
"Pledge Agreement" means a pledge agreement in the form
attached hereto as Exhibit B, as such agreement may be amended, modified,
restated or supplemented from time to time.
"Prime Rate" means the annual rate of interest announced from
time to time during the term of the Loan as the Bank's "prime" lending
rate (which the Borrower acknowledges does not necessarily represent the
best or most favored rate offered by the Bank to its best or any
particular customers). Whenever applicable to the Loan, the floating
interest rate shall be adjusted automatically as and when the Bank's
Prime Rate shall change on any business day(s) during the term of the
Loan.
"Rating Change" means that either Standard & Poor's Corporation
or ▇▇▇▇▇'▇ Investors Service, Inc. has rated the long-term senior debt of
BNP below investment grade or has withdrawn its rating.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Reinstatement Event of Default" means that on three successive
interest payment dates under the Collateral Notes an event of default
under the Collateral Notes has occurred as a result of the failure of BNP
to reinstate any interest amount drawn under the Letters of Credit within
five Business Days after such drawing.
"Termination Date" means the earliest to occur of
(i) January 4, 1999
(ii) the date on which, prior to the date set forth in
clause (i) above, the Loan is accelerated pursuant to
Article VI, and
(iii) the date on which prior to the dates set forth in
clauses (i) or (ii) above, the Loan is prepaid by the
Borrower in accordance with a notice to that effect
given to the Bank by the Borrower pursuant to Section
2.5.
ARTICLE II
THE LOAN
Section 2.1 Amount of the Loan. On the Closing Date, the
Bank, on the terms and conditions hereinafter set forth, will (a) make a
Loan to the Borrower in an amount not in excess of Fifty-One Million
Dollars ($51,000,000) and (b) deliver to the Borrower Internal Revenue
Form 1001 or 4224 duly completed (if applicable).
Section 2.2 Interest. The outstanding principal balance of
the Loan will bear interest at a rate per annum equal to Adjusted LIBOR
plus the Applicable Margin from the date of the making of the Loan until
the Loan is paid in full, except that after the occurrence of an Event of
Default, the Loan shall bear interest at a rate per annum equal A to the
sum of (i) Adjusted LIBOR, (ii) the Applicable Margin and (iii) [REDACTED]
%(the "Default Rate"). Interest on the Loan shall be paid in arrears on
each date set forth on Schedule 2.2. Interest will continue to accrue on
the Loan until all interest then due is paid even though the Bank may have
drawn under the Letter of Credit for an interest payment and shall accrue
thereon at the Default Rate if interest is not paid within three Business
Days after the due date therefor, whether or not a drawing has been made
under the Letter of Credit.
Section 2.3 Payment Under Collateral Notes and Letters of
Credit. If an event of default occurs under a Collateral Note and the
Borrower desires that the Bank demand payment under the Collateral Notes,
accelerate the Collateral Notes or draw under one or more Letters of
Credit as a result of such event of default, the Borrower shall promptly
notify the Bank of same, and the Borrower shall direct the Bank to take
such action by delivering to the Bank a Direction to Demand Payment,
Accelerate or Draw, specifying the event which caused such event of
default, the date of the occurrence thereof (if known) and, if the date
of such occurrence is not known, the date on which the Borrower obtained
knowledge of such occurrence as well as the action the Borrower desires
that the Bank take upon receipt of such Direction to Demand Payment,
Accelerate or Draw, the Bank shall forthwith take the requested action.
If the Bank is not paid by Pechiney or BNP, if the Bank is not paid the
full amount for which it draws under the Letters of Credit or if the
amount drawn is withheld and placed in escrow, then the Bank shall notify
the Borrower of same. The proceeds of any funds received directly from
Pechiney after a demand by the Bank under the Collateral Notes or as
proceeds following a drawing under the Letters of Credit shall be used by
the Bank to pay any sums then due and unpaid under this Agreement and the
Note. If, at the time the Bank receives such payment from either
Pechiney or BNP, or the Borrower makes any payment to the Bank, there is
then no other Default or Event of Default under this Agreement, any
excess proceeds shall be remitted to the Borrower within one Business Day
after applying such payments.
Any action taken by the Bank pursuant to a Direction to Demand
Payment, Accelerate or Draw shall not affect or impair the Borrower's
obligation hereunder or under the Note to pay the amounts due hereunder.
The Bank may draw under the Letters of Credit even though it has not
received a Direction to Demand Payment, Accelerate or Draw, except that
the Bank shall not accelerate the Collateral Notes or make a drawing
under the Letters of Credit for the principal amount due under the
Collateral Notes as a result solely of a Missed Interest Payment unless a
Reinstatement Event of Default has occurred and is continuing.
Section 2.4 Payment of Principal. The Borrower shall repay
the principal amount outstanding under the Note on January 4, 1999,
together with all accrued and unpaid interest thereon and all fees and
other amounts owing hereunder and under the Pledge Agreement and the
Note.
Section 2.5 Optional Prepayment. At any time and from time to
time, the Borrower may, subject to Section 2.12, prepay all or any part
of the Loan together with interest to date of payment, except that if the
Loan is prepaid in full during the twelve-month period commencing on the
Closing Date, the Borrower shall also pay to the Bank on the date of
prepayment a cancellation fee of $100,000.
Section 2.6 Mandatory Prepayment. If, as a result of
acceleration, voluntary prepayment or otherwise in respect of the
Collateral Notes, the Borrower receives any payment of the principal
amount of one or more Collateral Notes prior to January 4, 1999, the
Borrower shall immediately prepay the principal amount of the Note in the
principal amount prepaid on the Collateral Notes.
Section 2.7 Evidence of Credit Extensions. The Loan shall be
evidenced by the Note, executed by the Borrower, payable to the order of
the Bank and dated the Closing Date. The Bank shall record advances and
principal payments thereof on the grid attached thereto or, at its
option, in its records, and the Bank's record thereof shall be conclusive
absent demonstrable error. Notwithstanding the foregoing, the failure to
make or an error in making a notation with respect to any payment shall
not limit or otherwise affect the obligations of the Borrower hereunder
or under the Note.
Section 2.8 Payment. Payment of principal, interest and any
other sums due under this Agreement or under the Note shall be made
without set-off or counterclaim in dollars in immediately available funds
on the day such payment is due not later than 12:00 Noon New York time.
All sums received after such time shall be deemed received on the next
Business Day and principal payments or sums (other than interest) due
hereunder shall bear interest for an additional day. All payments shall
be made to the Bank at the address set forth beneath its name on the
signature pages hereof or to such other address as the Bank may advise
the Borrower in writing.
Section 2.9 Computations of Interest; Business Day.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred
sixty (360) and actual days elapsed. Interest shall accrue on
the principal balance outstanding, under the Note from and
including the Closing Date to but excluding the date on which
such principal balance is repaid.
(b) Payment of all amounts due hereunder shall be made on
a Business Day. Any payment due on a day that is not a
Business Day shall be made on the next Business Day unless the
next Business Day would fall in the next calendar month, in
which case such payment shall be made on the Business Day
immediately preceding the due date.
Section 2.10 Increased Costs, Etc.
(a) If, after the date of this Agreement, due to either
(i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other
governmental authority (whether or not having the force of
law), there shall be any (x) change in the basis of taxation of
payments to the Bank of the principal of or interest on the
Loan (excluding changes in the rate of tax payable on the
Bank's overall income and bank franchise taxes) or (y)
imposition or change in any reserve or similar requirement, and
the result of any of the foregoing is an increase in the cost
to the Bank of agreeing to make or making, funding or
maintaining the Loan (other than the Eurodollar Reserve
Percentage), then the Borrower shall from time to time, upon
demand by the Bank and within 15 days thereof, pay to the Bank
an additional amount sufficient to compensate the Bank for such
increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower by the Bank, shall be
conclusive and binding for all purposes, absent demonstrable
error.
(b) If the Bank determines that compliance with any law
or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by the Bank or any
corporation controlling the Bank and that the amount of such
capital is increased by or based upon the existence of the Loan
or the Bank's commitment to lend hereunder, then the Borrower
shall, within fifteen (15) days after demand by the Bank, pay
to the Bank an additional amount sufficient to compensate the
Bank or such corporation in the light of such circumstances, to
the extent that the Bank reasonably determines such increase in
capital to be allocable to the existence of the Loan or the
Bank's commitment to lend hereunder. A certificate as to such
amounts submitted to the Borrower by the Bank shall be
conclusive and binding for all purposes, absent demonstrable
error.
(c) Prior to making any demand for compensation under
this Section 2.10, unless such action would be economically or
legally disadvantageous to the Bank in the reasoned opinion of
its tax or regulatory advisors, the Bank will (i) designate a
different lending office if such designation will avoid the
need for, or reduce the amount of, such compensation to which
the Bank is entitled pursuant to this Section 2.10 and (ii)
permit the Borrower to prepay all or any part of the Loan
together with interest to the date of payment, subject to
payment of the cancellation fee in Section 2.5 (if applicable)
and payment of funding losses pursuant to Section 2.12.
Section 2.11 Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in an existing law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance
by the Bank with any request or directive (whether or not having the
force of law) of any such governmental authority, makes it unlawful or
impossible for the Bank in the reasoned opinion of its legal or
regulatory advisors to make, maintain or fund the Loan at an interest
rate based on LIBOR, the Bank shall forthwith give notice thereof to the
Borrower, whereupon the obligation of the Bank to make the Loan at a rate
based on LIBOR shall be suspended until the Bank notifies the Borrower
that the circumstances giving rise to such suspension no longer exist.
Before giving any notice to the Borrower pursuant to this section, the
Bank shall designate a different lending office if such designation will
avoid the need for giving such notice (unless such action would be
economically or legally disadvantageous to the Bank in the reasoned
opinion of its tax or regulatory advisors). If the Bank makes a reasoned
determination that it may not lawfully continue to maintain and fund any
of the Loan to maturity at a rate based on LIBOR and so specifies in such
notice, the Bank shall immediately convert the Loan into a loan bearing
interest at the Base Rate in an equal principal amount.
Section 2.12 Funding Losses. The Borrower agrees to reimburse
the Bank and to hold the Bank harmless from any loss or expense which the
Bank may sustain or incur as a consequence of:
(a) the failure of the Borrower to make any payment or
required prepayment of principal of the Loan (including
payments made after any acceleration thereof);
(b) the failure of the Borrower to make any prepayment
permitted hereunder after giving notice thereof, or
(c) the repayment of the Loan on a day which is not the
last day of an Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain the Loan hereunder at a
rate based on LIBOR or from fees payable to terminate the deposits from
which such funds were obtained. Solely for purposes of calculating
amounts payable by the Borrower to the Bank under this section, the Loan
bearing interest at a rate based on LIBOR (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to
have been funded by a matching deposit in Dollars in the interbank
eurodollar market for a comparable amount and for the respective Interest
Period, whether or not the Loan was in fact so funded.
Section 2.13 Unavailability. If the Bank determines that for
any reason adequate and reasonable means do not exist for ascertaining
LIBOR for any Interest Period, the Bank will forthwith give notice of
such determination to the Borrower. Commencing at the end of the
Interest Period then in effect, the Loan shall bear interest at the Base
Rate (rather than at a rate based on LIBOR) until the Bank revokes such
notice in writing.
Section 2.14 Special Prepayment. The provisions of Sections
2.10, 2.11, and 2.12 shall also apply to any assignee permitted pursuant
to Section 7.7 and shall apply to any unassigned portion of the Loan
retained by the Bank (regardless of whether the Bank may have sold a
participation interest in such retained portion to a participant
permitted pursuant to Section 7.7). If demand for payment is made
pursuant to Section 2.10 or 2.12 or if notice of illegality is given
pursuant to Section 2.11, whether by any such permitted assignment or by
the Bank on behalf of any such permitted participant, then the Borrower
may prepay in full (but not in part) such assignee's or participant's
interest in the Loan on the last day of the Interest Period during which
such demand for additional amounts was made or during which such notice
of illegality was given. Any principal amount, interest or increased
costs received by any such assignee or participant pursuant to this
Section 2.14 shall not be required to be shared with the Bank and any
other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Deliveries. The obligation of the Bank to make
the Loan is subject to the condition precedent that on the Closing Date
the following items shall have been delivered to the Bank in form and
substance satisfactory to the Bank and its counsel:
(a) Agreement. A copy of this Agreement duly executed by
the Borrower.
(b) Note. The Note, duly executed by the Borrower.
(c) Pledge Agreement. The Pledge Agreement, duly
executed by the Borrower.
(d) Pechiney Resolutions, etc. Copies of (i) resolutions
of the Board of Directors of Pechiney,
authorizing the issuance of the Collateral Notes and the
agreement to provide the Letters of Credit and the other
related documents; and (ii) a certificate of incumbency for
Pechiney, certified as true and correct by the Secretary or an
Assistant Secretary of Pechiney; all of which were delivered to
the Borrower by Pechiney in connection with the delivery to the
Borrower of the Collateral Notes (or any predecessor note which
the Borrower exchanged for the Collateral Notes).
(e) Collateral Notes. The Collateral Notes in a
principal amount of at least [REDACTED ], indorsed in blank by
the Borrower on note allonges relating thereto.
(f) Letters of Credit. The Letters of Credit issued to
the Bank as the beneficiary thereof in its capacity as
collateral agent.
(g) Fees Payable at Closing. The legal fees and expenses
(including, without limitation, photocopying, travel and word
processing charges) incurred by the Bank in connection with its
review of the Collateral Notes and the Letters of Credit and
with its preparation of this Agreement, the Note and the Pledge
Agreement, negotiations in connection therewith, and research
and other related expenses.
(h) Funding Instructions. At least one Business Day prior
to the Closing Date, the Borrower shall have delivered written
instructions to the Bank directing the manner of the payment of
funds, and setting forth (1) the name of the transferee bank or
banks, (2) each such transferee bank's ABA number, (3) the
account names and numbers into which such amount is to be
deposited, and (4) the names and telephone numbers of the
account representative responsible for verifying receipt of
such funds.
(i) Opinion of Counsel. An opinion, dated the Closing
Date, of the law firm of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the Borrower, in form and content
reasonably satisfactory to the Bank and its counsel.
Section 3.2 Representations Correct. The obligation of the
Bank to make the Loan is subject to the condition precedent that on the
Closing Date the representations and warranties contained in Article IV
shall be true and correct in all material respects.
Section 3.3 Release of Credit Suisse Lien. The obligation of
the Bank to make the Loan is subject to the condition precedent that on
the Closing Date the Bank shall have received evidence in form and
substance satisfactory to it and its counsel that Credit Suisse shall
have unconditionally released all the Liens in favor of it encumbering
the Collateral Notes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower warrants that:
Section 4.1 Good Title to Collateral. He has good title to
and is the sole owner of the Collateral Notes, free and clear of any
lien, and the pledge of the Collateral Notes by the Borrower to the Bank
is not prohibited in any manner by, and does not require the consent of
any party under, any other agreement, subject in each case to the Lien in
favor of Credit Suisse encumbering the Collateral Notes, which Lien is
being terminated simultaneously with the consummation of the transactions
contemplated hereby.
Section 4.2 Enforceable Collateral Notes; No Default. Except
for an amendment to the Collateral Notes dated as of July 29, 1994 and
attached to each original Collateral Note delivered to the Bank by the
Borrower, there has been no modification of the terms that appear on the
face of the Collateral Notes, and the Collateral Notes are enforceable
against Pechiney in accordance with their terms. To the best of the
Borrower's knowledge, there is no uncured default under the Collateral
Notes.
Section 4.3 No Defense to or Prepayment of Collateral Notes.
There is no defense, right of offset or counterclaim of Pechiney
affecting the enforceability of the Collateral Notes. There has been no
prepayment of principal under any of the Collateral Notes, and the
principal amount outstanding under each Collateral Note is the full
original principal sum stated on the face of such Collateral Note.
Pechiney has paid and the Borrower has collected all payments of interest
heretofore coming due under the Collateral Notes, and no such interest
payments hereafter coming due under the Collateral Notes have been
prepaid by Pechiney or collected by the Borrower.
Section 4.4 No Misrepresentation. The Borrower has not made
any misrepresentation to Pechiney which has resulted in or may result in
any defense, or the assertion of any defense, by Pechiney with respect to
its obligations to pay under the Collateral Notes.
Section 4.5 No Insolvency Proceedings. The Borrower has no
knowledge of any insolvency proceeding of any type instituted with
respect to Pechiney.
Section 4.6 No Default. No Default or Event of Default has
occurred and is continuing.
Section 4.7 Enforceable Obligations. The Borrower has the
legal right to execute, deliver and perform this Agreement, the Note and
the Pledge Agreement. No consent or authorization of, filing with or act
by or in respect of any other person is required in connection with the
borrowings hereunder or with the execution, delivery or performance of
this Agreement, the Note or the Pledge Agreement. This Agreement, the
Note and the Pledge Agreement constitute legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
Section 4.8 No Legal Bar. The execution, delivery and
performance of this Agreement, the Note and the Pledge Agreement, and the
borrowing hereunder, will not violate any contractual obligation of the
Borrower and will not result in the creation or imposition of a Lien on
any of the Borrower's property (other than the Lien created by the Pledge
Agreement).
Section 4.9 No Litigation. Except as disclosed on Schedule
4.9, there is no litigation or proceeding of or before any arbitrator or
governmental authority pending against the Borrower (as to which the
Borrower has received notice in writing) (a) with respect to this
Agreement, the Loan, the use of the proceeds thereof, the Collateral
Notes or the Letters of Credit or (b) which could reasonably be expected
to (i) affect the legality, validity or enforceability of this Agreement,
the Collateral Notes or the Letters of Credit, or (ii) otherwise have a
Material Adverse Effect.
Section 4.10 Taxes. The Borrower has filed or caused to be
filed all tax returns which are required to be filed and has paid all
taxes shown to be due and payable on such returns or on any assessments
made against it or any of its property by any governmental authority
except to the extent any such taxes are being contested in good faith and
any exceptions thereto are set forth on Schedule 4.10. No tax Lien has
been filed with respect to any material tax liability against the
Borrower, and, to the Borrower's knowledge, no tax assessment is pending
against the Borrower, except as set forth on Schedule 4.10.
Section 4.11 Margin Stock. No part of the proceeds of the
Loan will be used for "purchasing" or "carrying" any "margin stock"
within the meaning of such terms under Regulation U of the Board of
Governors of the Federal Reserve System.
Section 4.12 Purpose of Loan. The proceeds of the Loan will
be used to refund indebtedness of the Borrower to Credit Suisse, to
obtain a release of the lien in favor of Credit Suisse against the
Collateral Notes, and to fund business and investment purposes of the
Borrower.
Section 4.13 Pledge Agreement. The Pledge Agreement is
effective to create in favor of the Bank a legal, valid and enforceable
security interest in the Collateral Notes. The execution and delivery by
the Borrower of the Pledge Agreement and the delivery to the Bank of the
Collateral Notes shall together constitute a fully perfected first
priority Lien on all right, title and interest of the Borrower in the
Collateral Notes and the proceeds thereof prior and superior in right to
any other person.
Section 4.14 Escrow Agreement. The Borrower has delivered to
the Bank on or prior to the Closing Date a true and correct copy of the
Escrow Agreement. No modification has been made to the Escrow Agreement
since the date of the last modification, a copy of which was delivered by
the Borrower to the Bank.
ARTICLE V
COVENANTS
So long as any amount is outstanding under this Agreement and
the Note, the Borrower shall:
Section 5.1 Financial Statements. Deliver to the Bank in form
and detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60)
days after the end of each calendar quarter and for that
portion of the calendar year ending with such quarter, a
statement of assets and liabilities of the Borrower as of the
close of such quarter, certified by the Borrower to the best of
his knowledge as being true and complete in all material
respects; and
(b) together with each statement of assets and
liabilities,
(i) a letter showing which assets he owns
individually, which assets his wife owns
individually and which assets he owns jointly
with his wife. Such assets shall be valued on a
basis consistent with that used in the
preparation of his March 31, 1994 statement of
assets and liabilities, except as explained in
any notes to the quarterly statement which such
letter accompanies; and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's
federal tax returns (which update may be
included in the footnotes to such statement of
assets and liabilities; the level of disclosure
for such updates will be sufficient if the same
as for previous updates included in such
footnotes).
Section 5.2 Notices. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of the Borrower which could
result in a Material Adverse Effect; and (ii) any litigation or
proceeding which may exist at any time between the Borrower and
any governmental authority which could result in a Material
Adverse Effect;
(c) the commencement of, or any material development in,
any litigation or proceeding affecting the Borrower (i) which
could reasonably be expected to have a Material Adverse Effect,
(ii) in which the relief sought is an injunction or other stay
of the performance of this Agreement, the Note or the Pledge
Agreement or (iii) any litigation involving any of the
Collateral Notes or any of the Letters of Credit (or other
promissory notes or Letters of Credit issued in the same
transaction in which the Borrower acquired the Collateral Notes
and the Letters of Credit; and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the
Borrower delivered to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a
written statement signed by the Borrower, setting forth details of the
occurrence referred to therein, and stating what action the Borrower
proposes to take with respect thereto and at what time. Each notice
under subsection 5.2(a) shall describe with particularity the provisions
of this Agreement, the Note or the Pledge Agreement that have been
breached.
Section 5.3 Payment of Obligations. Pay all taxes,
assessments, governmental charges and other obligations when due, except
as may be contested in good faith or those as to which a bona fide
dispute may exist.
Section 5.4 Further Assurances. Execute and deliver to the
Bank such further instruments and do such other further acts as the Bank
may reasonably request to carry out more effectively the purposes of this
Agreement and any agreements and instruments referred to herein.
Section 5.5 Notice to Pechiney and Escrow Agent. Deliver to
the Bank within ten (10) Business Days after the Closing Date evidence
satisfactory to the Bank that the Borrower has notified Pechiney that the
Collateral Notes have been pledged to the Bank as collateral and that the
Bank is holding the Collateral Notes on its own behalf and as collateral
agent for any assignees permitted under this Agreement.
Section 5.6 Amendments to Escrow Agreement. Not amend the
Escrow Agreement in any manner that would change the terms of the
Collateral Notes pledged to the Bank under the Pledge Agreement and,
promptly after each amendment to the Escrow Agreement, deliver to the
Bank a copy of each such amendment.
Section 5.7 Change in State of Residence. Not change the
state of his principal place of residence without (a) notifying the Bank
in writing prior to such change, (b) designating in writing an agent for
service of process in the State of New York and notifying the Bank of
same and (c) delivering to the Bank the written acceptance of such agent.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. (i) The Borrower fails to pay any
amount of principal of the Loan when due, whether at maturity,
as a result of acceleration or otherwise, including any
mandatory prepayment; or (ii) the Borrower fails to pay, within
3 Business Days after the same is due, any interest, or other
amount payable hereunder, under the Note or under the Pledge
Agreement; provided, however, that it shall not be an Event of
Default under clause (ii) of this subsection (a) if (w) the
failure to pay interest under the Note or hereunder results
from a failure of Pechiney to pay interest owed to the Borrower
under one or more Collateral Notes (a "Missed Interest
Payment"), (x) the Borrower notifies the Bank of same pursuant
to Section 2.3 hereof and directs the Bank to demand payment
under the Collateral Notes and/or to draw under the Letters of
Credit for the Missed Interest Payment, (y) the Bank takes such
action and receives the requested payment from Pechiney or is
paid the amount of the drawing by BNP and (z) such amount,
together with any amount paid by the Borrower in respect of
interest then due hereunder, is equal to or greater than the
amount then owed to the Bank as interest hereunder; or
(b) Representation or Warranty. Any representation or
warranty by the Borrower made or deemed made herein or in the
Pledge Agreement, or which is contained in any certificate,
document or financial or other statement furnished by the
Borrower, at any time under this Agreement or the Pledge
Agreement, proves to have been incorrect or misleading in any
material respect on or as of the date made or deemed made; or
(c) Other Default. The Borrower (i) fails to perform or
observe Section 5.1 or 5.2, or (ii) fails to perform or observe
any other material term or covenant contained in this
Agreement, and not referred to in another subsection of this
Section 6.1, and such default continues unremedied for a period
of 20 days or (iii) fails to perform or observe any other term
or covenant contained in this Agreement, and not referred to in
clauses (i) or (ii) of this subsection (c) or in any other
subsection of this Section 6.1, and such default continues
unremedied for a period of 20 days after the Bank gives notice
to the Borrower of same; or
(d) Cross-Default. The Borrower (i) fails to make any
required payment when due in respect of any indebtedness or
contingent obligation having a principal or face amount of
[ REDACTED] or more when due (whether at scheduled maturity or
required prepayment or by acceleration, demand, or otherwise);
or (ii) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such
indebtedness or contingent obligation, and such failure
continues after the applicable grace or notice period, if any,
specified in the document relating thereto, if the effect of
such failure, event or condition is to cause, or to permit the
holder or holders of such indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or
beneficiaries) to cause such indebtedness to be declared to be
due and payable prior to its stated maturity, or such
contingent obligation to become payable or cash collateral in
respect thereof to be demanded; or
(e) Material Adverse Change. A Material Adverse Effect
occurs; or
(f) Insolvent Voluntary Proceedings. The Borrower (i)
becomes insolvent, or generally fails to pay, or admits in
writing his inability to pay, his debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences a proceeding under the
bankruptcy laws of any state or of the United States with
respect to himself; or (iii) takes any action to effectuate or
authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
bankruptcy proceeding is commenced or filed against the
Borrower or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a
substantial part of the Borrower's properties, and any such
proceeding or petition is not dismissed, or such writ,
judgment, warrant of attachment, execution or similar process
is not released, vacated or fully bonded within 90 days after
commencement, filing or levy; (ii) the Borrower admits the
material allegations of a petition against him in any
insolvency proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any insolvency proceeding; or
(iii) the Borrower acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar person for a
substantial portion of his property or business; or
(h) Monetary Judgments; Liens. One or more final (non-
interlocutory) judgments, orders or decrees is entered against
the Borrower or a Lien is filed against property of the
Borrower involving in the aggregate a liability (not fully
covered by independent third-party insurance) as to any single
or related series of transactions, incidents or conditions, of
[ REDACTED ] or more, and the same remains unvacated and
unstayed pending appeal (if a judgment) or unbonded (if a Lien)
for a period of 10 days after the entry thereof, or
(i) Pledge Agreement. Any provision of the Pledge
Agreement ceases to be valid and binding on or enforceable
against the Borrower, or the Pledge Agreement ceases to create
a valid security interest in the Collateral Notes or such
security interest ceases for any reason to be a perfected and
first priority security interest, except if the Bank fails to
take any action exclusively in its control.
Section 6.2 Remedies. If any Event of Default occurs, the
Bank may:
(a) declare the unpaid principal amount of the Loan, all
interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under the Note and the Pledge
Agreement to be immediately due and payable without
presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower; and
(b) exercise all rights and remedies available to it
hereunder, under the Note and under the Pledge Agreement or
applicable law;
provided, however, that upon the occurrence of any event specified in
paragraph (f) or (g) of Section 6.1 above (in the case of clause (i) of
paragraph (g) upon the expiration of the 90-day period mentioned
therein), the obligation of the Bank to extend credit to the Borrower
shall automatically terminate without notice to the Borrower and the
unpaid principal amount of the Loan and all interest and other amounts
due under this Agreement shall automatically become due and payable
without further act of the Bank and without notice to the Borrower; and
provided, further, that the Bank will not accelerate the Collateral Notes
or draw under the Letters of Credit for the principal amount owed under
the Collateral Notes as a result solely of a Missed Interest Payment
unless a Reinstatement Event of Default then exists.
Section 6.3 Rights Not Exclusive. The rights provided in this
Agreement, the Note and the Pledge Agreement are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by
law or in equity, or under any other instrument, document or agreement
now existing or hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment and Waiver. This Agreement may be
amended, changed, waived, discharged or terminated only by an instrument
in writing signed by the parties hereto.
Section 7.2 Costs and Expenses. The Borrower shall:
(a) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank,
including, without limitation, the fees and disbursements of
counsel and paralegals, in connection with the development,
preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to, this
Agreement, the Note and the Pledge Agreement, the review of the
Collateral Notes and Letters of Credit and any amendment
thereof, the transfer of the Letters of Credit to the Bank as
beneficiary and the consummation of the transactions
contemplated hereby;
(b) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by it,
including, without limitation, the fees and disbursements of
counsel and paralegals, in connection with the enforcement,
attempted enforcement or preservation of any rights or remedies
(including in connection with any "workout," or restructuring
regarding the Loan and any insolvency proceeding or appellate
proceeding) under this Agreement, the Note or the Pledge
Agreement or in respect of the Collateral Notes or the Letters
of Credit; and
(c) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank in
connection with litigation involving the Collateral Notes or
the Letters of Credit, whether related to enforcement thereof
or otherwise.
Section 7.3 Indemnification. The Borrower shall pay, defend,
indemnify and hold the Bank and its officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, costs, charges, expenses or
disbursements of any kind or nature arising out of a drawing by the Bank
under a Letter of Credit after receiving a Direction to Demand Payment,
Accelerate or Draw (all of the foregoing, collectively, the "Indemnified
Liabilities"); provided that the Borrower shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities arising from the gross negligence or willful misconduct of
such Indemnified Person. The obligations in this Section 7.3 shall
survive payment and cancellation of all other obligations hereunder. At
the election of any Indemnified Person, the Borrower shall defend such
Indemnified Person using legal counsel satisfactory to such Indemnified
Person in such person's sole discretion and at the sole cost and expense
of the Borrower. All amounts owing under this Section 7.3 shall be paid
within 15 days after demand therefor.
Section 7.4 GOVERNING LAW AND SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. THE BORROWER AND THE BANK EACH HEREBY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF (i) ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ SITTING IN NEW YORK CITY AND (ii) THE UNITED STATES COURTS
SITTING IN NEW YORK CITY, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST HIM
OR IT HEREUNDER UNDER THE NOTE OR UNDER THE PLEDGE AGREEMENT. IN
CONNECTION THEREWITH, THE BORROWER AND THE BANK EACH WAIVES (A) ALL
OBJECTIONS TO VENUE IN THE COURTS DESCRIBED IN CLAUSES (i) AND (ii) OR
THE PRECEDING SENTENCE AND (B) ANY ARGUMENT THAT SUCH A FORUM IS
INCONVENIENT. SERVICE OF SUMMONS OR OTHER LEGAL PROCESS MAY BE MADE BY
MAILING A COPY OF ANY SUMMONS OR OTHER LEGAL PROCESS IN ANY SUCH ACTION
OR PROCEEDING TO THE BORROWER OR THE BANK IN ANY SUCH ACTION OR
PROCEEDING TO THE BORROWER OR THE BANK (AS THE CASE MAY BE) BY CERTIFIED
MAIL. THE MAILING, AS HEREIN PROVIDED, OF SUCH SUMMONS OR OTHER LEGAL
PROCESS IN ANY SUCH ACTION OR PROCEEDING SHALL BE DEEMED PERSONAL SERVICE
AND ACCEPTED BY THE BORROWER OR THE BANK (AS THE CASE MAY BE) FOR ALL
PURPOSES OF ANY SUCH ACTION OR PROCEEDING. FINAL JUDGMENT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT, AND A CERTIFIED OR EXEMPLIFIED COPY OF A FINAL JUDGMENT SHALL
BE CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF ANY INDEBTEDNESS
OF THE BORROWER OR THE BANK (AS THE CASE MAY BE) IN ANY SUCH ACTION OR
PROCEEDING. THE BORROWER AND THE BANK EACH AGREES TO BRING ANY ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, OR ANY RELATED
DOCUMENTS EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES FEDERAL COURTS SITTING IN NEW YORK, NEW YORK.
Section 7.5 Set-Off. If an Event of Default exists, the Bank
is authorized to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and
other indebtedness at any time owing to, the Bank to or for the credit or
the account of the Borrower against any and all obligations owing to the
Bank, now or hereafter existing, whether or not the Bank has made demand
under this Agreement, the Note or the Pledge Agreement and although such
obligations may be contingent or unmatured. The Borrower hereby waives
prior notice of such action. The Bank, however, agrees promptly to
notify the Borrower after any such set-off, provided, however, that the
failure to give such notice shall not affect the validity of such set-
off. The rights of the Bank under this Section 7.5 are in addition to
the other rights and remedies (including other rights of set-off) which
the Bank may have.
Section 7.6 Waiver. No failure or delay on the part of the
Bank or the Borrower in exercising any right, power or privilege under
this Agreement and no course of dealing between the Borrower or any other
person and the Bank or any other person shall operate as a waiver hereof
or thereof.
Section 7.7 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns,
except that the Borrower shall not be entitled to assign or
transfer all or any of his rights, benefits or obligations
hereunder, except for his death or mental incapacity.
(b) The Bank may not assign or otherwise transfer any of
its rights or obligations under this Agreement except as
provided in this Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein
or selling a participation in its rights and obligations under
this Agreement, the Bank shall discuss with the Borrower the
names of such potential participants or assignees. The Bank
shall not assign or sell a participation in its rights and
obligations under this Agreement to any person unless the
Borrower shall have consented thereto (which consent shall not
be unreasonably withheld).
(ii) The Borrower shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or sell
a participation in, the Loan in an amount less than
$15,000,000;
(B) it will at all times retain not less than
$15,000,000 of the Loan;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in the Loan if, after giving
effect to such participation or assignment, such participant or
assignee would hold less than $15,000,000 of the Loan;
(D) the Bank will not assign an interest or
sell a participation in the Loan to any assignee or participant
who would be entitled to receive additional compensation under
Section 2.10 at the time of such assignment or sale by the
Bank, nor to any assignee or participant who would find it
unlawful or impossible to make, maintain or fund its assigned
interest or participation in the Loan at a rate based on LIBOR
as provided in Section 2.11, at the time of such assignment or
sale by the Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided
is one that does not require the unanimous consent of all
assignees or participants, financial institutions holding 51%
of the outstanding Loan shall decide the issue, provided that
such 51% includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized outside
the United States will deliver to the Bank with a copy to
the Borrower Internal Revenue Service Form 4224 or 1001,
duly completed and signed; and
(y) provide that each participant or assignee,
as the case may be, will agree to be bound by all the
terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the
Borrower furnished to the Bank by or on behalf of the Borrower;
provided, that prior to any such disclosure, the proposed
participant or assignee shall agree in writing to preserve the
confidentiality of any confidential information relating to the
Borrower received by it from the Bank to the same extent as is
required of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the
Loan and shall remain the holder of the Collateral Notes and
act as collateral agent of the Collateral Notes holding the
same for its benefit and the benefit of the permitted assignees
and participants hereunder. The Borrower shall not be required
to deal with any participant or assignee in connection with the
administration of the Loan, and each assignment agreement or
participation agreement shall provide that each such assignee
or participant shall deal solely with the Bank as agent and not
directly with the Borrower.
Section 7.8 Confidentiality. The Bank agrees to take normal
and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" by the
Borrower and provided to it by the Borrower in connection with this
Agreement, and it shall not use any such information for any purpose or
in any manner other than pursuant to the terms contemplated by this
Agreement; except to the extent such information (i) was or becomes
generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis
from a source other than the Borrower, provided that such source is not
bound by a confidentiality agreement with the Borrower known to the Bank;
provided further, however, that the Bank may disclose such information:
(A) at the request or pursuant to any requirement of any governmental
authority to which the Bank is subject or in connection with an
examination of the Bank by any such authority; (B) pursuant to subpoena
or other court process; (C) when required to do so in accordance with the
provisions of any applicable requirement of law; (D) to the Bank's
independent auditors and other professional advisors, all of whom shall
have been advised of the confidential nature of such information; and (E)
to proposed assignees or participants in accordance with
Subsection 7.7(b)(iv). It is understood that the financial information
to be delivered pursuant to Section 5.1 or any similar financial
information delivered prior to the Closing Date shall be deemed to have
been identified as confidential by the Borrower.
Section 7.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
Section 7.10 Severability. Any provision of this Agreement
which is illegal, invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without invalidating the remaining
provisions hereof or affecting the legality, validity or enforceability
of such provision in any other jurisdiction.
Section 7.11 Notices. Unless specifically indicated otherwise
herein, all notices, requests and other communications provided for
hereunder shall be in writing (including, without limitation, by
facsimile transmission) and shall be sent to the parties hereto at the
address for notice specified beneath their names on the signature pages
hereof or to such other address as may be designated by a party in a
written notice to the other party.
Any notice or other communication hereunder shall be deemed
given when delivered to the addressee in writing or when given by
telephone immediately confirmed in writing by tested telex, facsimile
(electronic answer back received) or other telecommunication device.
Section 7.12 Document Stamp Taxes. The Borrower represents
and warrants to the Bank that this Agreement has been executed and
delivered by the Borrower to the Bank outside of the State of Florida,
and that the Note and the Pledge Agreement have been or shall be executed
and delivered by the Borrower to the Bank outside of the State of
Florida. The Borrower agrees to indemnify, defend and hold the Bank
harmless against any Florida documentary stamp taxes that may be assessed
or asserted against this Agreement, the Note, the Pledge Agreement, the
Loan, or any such security therefor, or any renewal, modification or
amendment thereof, or any renewal, modification or amendment thereof from
time to time, and against any and all liability, costs, attorneys' fees,
penalties, interest or expenses relating to any such Florida documentary
stamp taxes, as and when the same may be assessed or asserted.
Section 7.13 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS (i) UNDER THIS AGREEMENT, THE NOTE OR THE
PLEDGE AGREEMENT OR (ii) ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, the parties hereto have caused the
Agreement to be executed and delivered as of the date first above
______________________________
▇▇▇▇▇ ▇. MAY
Address for Notices:
c/o Triarc Companies, Inc
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
with a copy to
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NATIONSBANK OF FLORIDA, N.A.
By:___________________________
Title: Authorized Signatory
Address for Notices:
NationsBank of Florida, N.A.
Private Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Addresses for Payment:
NationsBank of Florida, N.A.
Private Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
ABA #: [ REDACTED ]
Account No.: [ REDACTED ]
Re: ▇▇▇▇▇ ▇. May Loan
# [ REDACTED ], Note # [ REDACTED ]
AMENDMENT NO. 1 TO
TERM LOAN AGREEMENT
AMENDMENT NO. 1 dated January 18, 1996, to the TERM LOAN
AGREEMENT dated as of July 29, 1994 (the "LOAN AGREEMENT"), by and
between ▇▇▇▇▇ ▇▇▇ (the "BORROWER") and NATIONSBANK OF FLORIDA, N.A. (the
"BANK").
The Borrower and the Bank are parties to the Loan Agreement,
pursuant to which the Bank made a term loan to the Borrower in the
original principal amount of $51,000,000. The Borrower has requested
that NationsBank, N.A., an affiliate of the Bank (the "CAROLINA BANK"),
provide a revolving credit facility to the Borrower and ▇▇▇▇ May. In
accordance with such request, the Borrower and ▇▇▇▇ May and the Carolina
Bank are entering into a Credit Agreement dated as of January 18, 1996
(such Agreement, as amended or otherwise modified from time to time,
being hereinafter referred to as the "CREDIT AGREEMENT"), pursuant to
which the Carolina Bank has agreed to make loans (the "DEMAND LOANS"), to
the Borrower and ▇▇▇▇ May in an aggregate principal amount at any one
time outstanding not to exceed the amount of the Commitment (as defined
in the Credit Agreement). It is a condition precedent to the making of
any Demand Loan by the Carolina Bank that, among other things, the Loan
Agreement be amended to provide that any "Event of Default" under the
Credit Agreement shall constitute an Event of Default under the Loan
Agreement and to amend certain other provisions of the Loan Agreement as
hereinafter set forth. Accordingly, the Borrower and the Bank hereby
agree as follows:
1. DEFINITIONS. All terms used herein which are defined in
the Loan Agreement and not otherwise defined herein are used herein as
defined therein.
2. ADDITIONAL DEFINITIONS. Section 1.1 of the Credit
Agreement is hereby amended by adding the following definitions (in
appropriate alphabetical order):
""CAROLINAS AGENT" means NationsBank, N.A., acting as
collateral agent under the Triarc Pledge Agreement.
"COLLATERAL AGENT" means the Bank, acting as collateral agent
under the Pledge Agreement.
"DEMAND LOANS" means the loans made by NationsBank, N.A.
pursuant to the Triarc Credit Agreement.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as
depositary bank pursuant to the Pledge Agreement.
"DWG" means DWG Acquisition Group, L.P., a Delaware
limited partnership.
"PECHINEY" means Pechiney Corporation, a Delaware
corporation.
"PECHINEY PROCEEDS" means any principal of or interest
on a Collateral Note, any drawing on a Letter of Credit or any
other proceeds received in respect of a Collateral Note or a
Letter of Credit.
"TRIARC CREDIT AGREEMENT" means the Credit Agreement
dated as of January 18, 1996, by and among ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇
May and NationsBank, N.A., as amended or otherwise modified
from time to time.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement made by DWG in favor of NationsBank, N.A., as
collateral agent for itself and for NationsBank of Florida,
N.A., in respect of certain shares of stock issued by Triarc
Companies, Inc., as amended or otherwise modified from time to
time."
3. PAYMENT UNDER COLLATERAL NOTES AND LETTERS OF CREDIT. The
last two sentences of the first paragraph of Section 2.3 are hereby
deleted in their entirety, and the following hereby substituted therefor:
"The parties hereby confirm that pursuant to the Pledge Agreement,
(i) the Borrower shall receive all payments by Pechiney of
interest on the Collateral Notes, subject to the provisions of
Section 6 of the Pledge Agreement, Section 6.1(a) hereof and
the other provisions of this Section 2.3, (ii) the Depositary
Bank shall receive all payments by Pechiney of principal of the
Collateral Notes, and (iii) the Collateral Agent shall receive
the proceeds of all drawings on the Letters of Credit.
Pechiney Proceeds in respect of interest shall be applied in
accordance with Sections 6 and 11(d) of the Pledge Agreement
and Sections 2.6 and 6.2 hereof. Pechiney Proceeds in respect
of principal shall be applied in accordance with Sections 2.6
(b) and (c) and 6.2 hereof, Sections 6 and 11(d) of the Pledge
Agreement and Sections 2.5 and 6.2 of the Triarc Credit
Agreement."
4. AMENDMENT TO MANDATORY PREPAYMENT. Section 2.6 of the Loan
Agreement is hereby amended by deleting it in its entirety and by
substituting therefor the following:
"Section 2.6 MANDATORY PREPAYMENT. (a) If, as a result of
acceleration, voluntary prepayment, scheduled payment or
otherwise in respect of the Collateral Notes, Pechiney at any
time or from time to time makes any payment of principal of a
Collateral Note (each a "PRINCIPAL PAYMENT"), the Borrower
shall immediately prepay the principal amount of the Note.
Such prepayment shall be equal to 85% of such Principal
Payment, and, provided that no Default (under either this
Agreement or under the Triarc Credit Agreement) or Event of
Default has occurred and is continuing (and the Borrower shall
immediately provide to the Bank a certificate confirming that
no Default or Event of Default has occurred and is continuing),
promptly and in any event within three Business Days an amount
(the "EXCESS PORTION") equal to 15% of such Principal Payment
shall be paid to the Borrower. The Bank agrees to direct the
Depositary Bank and the Collateral Agent to pay the Excess
Portion of the Principal Payment to the Borrower in accordance
with, but subject to, the foregoing sentence. It is understood
and agreed that if the amount equal to 85% of the Principal
Payment exceeds the outstanding principal amount of the Note,
an amount equal to such excess shall be paid by the Borrower to
NationsBank, N.A. for application against the aggregate
principal amount of the Demand Loans outstanding and other
obligations under the Triarc Credit Agreement.
.
(b) If any Default or Event of Default has occurred and
is continuing when any Pechiney Proceeds are received or
otherwise being held by the Depositary Bank, the Collateral
Agent or the Bank, the entire amount of such Pechiney Proceeds
shall be paid to the Bank and applied by the Bank as a payment
of principal of the Note or applied by the Bank as a payment of
interest on the Note or other obligations of the Borrower
hereunder, as the Bank in its sole discretion shall determine
(it being understood that the Borrower shall have no right
whatsoever to receive any portion of such proceeds, except
pursuant to Section 15 of the Pledge Agreement). If the
Pechiney Proceeds exceed the principal of and interest on the
Note and the other obligations of the Borrower hereunder, the
Borrower shall pay an amount equal to such excess to
NationsBank, N.A. for application against the aggregate
principal amount of Demand Loans and other obligations
outstanding under the Triarc Credit Agreement. It is also
understood that upon the payment of any Pechiney Proceeds in
respect of the principal of the Collateral Notes, NationsBank,
N.A. may at any time thereafter decrease the Original Advance
Percentage (as defined in the Triarc Credit Agreement) and the
Margin Call Percentage (as defined in the Triarc Credit
Agreement)(in either case, to such percentage as the Bank may
in its sole and absolute discretion determine) by giving either
Borrower thereunder notice of such revised percentage. If such
a decrease results in a "Default" under the Triarc Credit
Agreement, then (i) the decrease will constitute a Default
hereunder, (ii) so long as any such "Default", or any other
Default or Event of Default, shall occur and be continuing, the
Borrower shall no right to receive any portion of the Pechiney
Proceeds, (iii) if any "Event of Default" (as defined in the
Triarc Credit Agreement), or any other Event of Default shall
occur and be continuing, such Pechiney Proceeds may be applied
to the payment of the Borrower's obligations hereunder or to
the obligations under the Triarc Credit Agreement, and (iv) if
such "Default" under the Triarc Credit Agreement is cured or
waived, and no other Default, Event of Default or "Event of
Default" (as defined in the Triarc Credit Agreement) has
occurred and is continuing, the Bank will upon request promptly
and in any event within three Business Days return to the
Borrower the Excess Portion of such Principal Payment, to the
extent not applied to the Borrower's obligations hereunder or
under the Triarc Credit Agreement in accordance with clause
(iii) hereof (and the Bank agrees to direct the Depositary Bank
and the Collateral Agent to pay the Excess Portion of the
Principal Payment to the Borrower in accordance with, but
subject to, this clause (iv)).
(c) Each prepayment shall be accompanied by the payment of
accrued interest to the date of such prepayment on the amount
prepaid, and shall be subject to the provisions of Section 2.12
hereof."
5. AMENDMENT TO REPRESENTATION EVENT OF DEFAULT. Subsection
(b) of Section 6.1 of the Loan Agreement is hereby amended by deleting it
in its entirety and by substituting therefor the following:
"(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by the Borrower made or deemed made herein or in the
Pledge Agreement, or by DWG made or deemed made in the Triarc
Pledge Agreement, or which is contained in any certificate,
document or financial or other statement furnished by the
Borrower or DWG at any time under this Agreement, the Pledge
Agreement or the Triarc Pledge Agreement, proves to have been
incorrect or misleading in any material respect on or as of the
date made or deemed made; or"
6. AMENDMENT TO COVENANT EVENT OF DEFAULT. Subsection (c) of
Section 6.1 of the Loan Agreement is hereby amended by deleting it in its
entirety and by substituting therefor the following:
"(c) OTHER DEFAULT. (i) The Borrower fails to
perform or observe Section 5.1 or 5.2, or (ii) the
Borrower fails to perform or observe any other material
term or covenant contained in this Agreement, and not
referred to in another subsection of this Section 6.1,
and such default continues unremedied for a period of 20
days, or (iii) the Borrower fails to perform or observe
any other term or covenant contained in this Agreement or
in the Pledge Agreement and not referred to in clauses
(i) or (ii) of this subsection (c) or in any other
subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days after the
Bank gives notice to the Borrower of same, or (iv) DWG
fails to perform or observe any term or covenant
contained in the Triarc Pledge Agreement and such default
continues unremedied for a period of 20 days after the
Bank gives notice to DWG of same; or"
7. ADDITIONAL EVENTS OF DEFAULT. Section 6.1 of the Loan
Agreement is hereby amended (a) by deleting the period at the end of
subsection (i), and by substituting "; or" in lieu thereof, and (b) by
inserting immediately after subsection (i) of Section 6.1 of the Loan
Agreement the following:
"(j) TRIARC PLEDGE AGREEMENT. Any provision of the
Triarc Pledge Agreement ceases to be valid and binding on or
enforceable against DWG, the Triarc Pledge Agreement ceases to
create a valid security interest in the collateral purported to
be covered thereby or such security interest ceases for any
reason to be a perfected and first priority security interest,
except if the Bank fails to take any action exclusively within
its control; or
(k) TRIARC CREDIT AGREEMENT. An "Event of Default"
shall occur under the Credit Agreement dated as of January 18,
1996, as amended or otherwise modified from time to time,
between ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ May and NationsBank, N.A."
8. ADDITIONAL REMEDIES. Section 6.2 of the Loan Agreement is
hereby amended (a) by adding the word "and" at the end of subsection (b)
thereof, and (b) by inserting immediately after subsection (b) of Section
6.2 of the Loan Agreement and before the proviso the following:
"(c) enforce, as Collateral Agent, and direct the
Carolinas Agent to enforce, all of the Liens and security
interests pursuant to the Pledge Agreement and the other
Loan Documents (as defined in the Triarc Credit
Agreement);"
9. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Bank as follows:
(a) The representations and warranties made by the
Borrower in Article IV of the Loan Agreement, the Pledge Agreement and in
each other related document, certificate and other writing delivered to
the Bank on or prior to the date hereof are true and correct on and as of
the date hereof as though made on and as of the date hereof (except to
the extent such representations and warranties expressly relate to an
earlier date). No Default or Event of Default has occurred and is
continuing, or would result from the execution and delivery of this
Amendment No. 1.
(b) The Borrower has the legal capacity to execute,
deliver and perform this Amendment, and to perform the Loan Agreement, as
amended hereby.
(c) The execution, delivery and performance by the
Borrower of, and the consummation of each transaction contemplated by,
this Amendment and the Loan Agreement, as amended hereby, (i) require no
governmental authority or other regulatory body approval or action by or
in respect of any governmental authority or other regulatory body and
(ii) do not (A) contravene, or constitute a default under, any provision
of any applicable law or regulation, or any agreement, indenture,
judgment, order, decree or other instrument binding upon the Borrower or
his properties, or (B) result in the creation or imposition of any Lien
on any asset of the Borrower.
(d) This Amendment has been duly executed and delivered
by the Borrower. Each of this Amendment and the Loan Agreement, as
amended hereby, constitutes the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its
terms.
10. EXPENSES. The Borrower will pay on demand all fees, costs
and expenses of the Bank in connection with the preparation, execution
and delivery of this Amendment and all other agreements, instruments and
other documents related to the foregoing, including, without limitation,
the reasonable fees, client charges and other expenses of counsel to the
Bank.
11. INDEMNIFICATION. It is understood and agreed that Section
7.3 of the Loan Agreement shall benefit both the Bank and the Collateral
Agent, and every reference therein to "Bank" shall be deemed to include
"the Collateral Agent."
12. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF THE LOAN AGREEMENT.
Except as otherwise expressly provided herein, the Loan Agreement and the
other related agreements, instruments and documents (the "LOAN
DOCUMENTS") are, and shall continue to be, in full force and effect and
are hereby ratified and confirmed in all respects except that on and
after the date hereof (i) all references in the Loan Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as amended
by this Amendment, and (ii) all references in the other Loan Documents to
which the Borrower is a party to the "Loan Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Amendment.
Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any
right, power or remedy of the Bank under the Loan Agreement or any other
Loan Document, nor constitute a waiver of any provision of the Loan
Agreement.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the law of the State of New York.
(e) EFFECTIVENESS. This Amendment shall become effective
on the date as of which the Bank shall have received this Amendment, duly
executed by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above
written.
▇▇▇▇▇ ▇▇▇
NATIONSBANK OF FLORIDA, N.A.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇, S.V.P.
Title: Vice President
REDACTED
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated January 25, 1996, by and between
NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK"), NATIONSBANK OF
FLORIDA, N.A., as agent for NationsBank, N.A. and NationsBank of Florida,
N.A. (the "FLORIDA AGENT"), NATIONSBANK, N.A. (the "CAROLINAS BANK";
together with the Florida Bank, the "BANKS") and NATIONSBANK, N.A., as
agent for NationsBank of Florida, N.A. and NationsBank, N.A. (the
"CAROLINAS AGENT"; together with the Florida Agent, the "AGENTS").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ May (collectively, the "BORROWERS")
and the Carolinas Bank are parties to the Credit Agreement dated as of
January 18, 1996 (such Agreement, as amended or otherwise modified from
time to time, being hereinafter referred to as the "REVOLVING CREDIT
AGREEMENT"), pursuant to which the Carolinas Bank has agreed to make
loans (the "DEMAND LOANS") to the Borrowers in an aggregate principal
amount at any one time outstanding not to exceed the amount of the
Commitment (as defined in the Credit Agreement), which Demand Loans will
be evidenced by a demand promissory note dated the date hereof (as such
demand promissory note may be modified or extended from time to time, and
any promissory note or notes issued in exchange or replacement therefor,
the "DEMAND NOTE"), made by the Borrowers to the order of the Carolinas
Bank and in the original principal amount of the Commitment;
WHEREAS, ▇▇▇▇▇ ▇▇▇ and the Florida Bank are parties to the Term
Loan Agreement dated as of July 29, 1994 (such Agreement, as amended or
otherwise modified from time to time, being hereinafter referred to as
the "TERM AGREEMENT"; together with the Revolving Credit Agreement, the
"CREDIT AGREEMENTS"), pursuant to which the Florida Bank made a term loan
(the "TERM LOAN") to ▇▇▇▇▇ ▇▇▇ in the original principal amount of
$60,000,000, which Term Loan is evidenced by a term promissory note dated
June 29, 1994 (as such term promissory note may be modified or extended
from time to time, and any promissory note or notes issued in exchange or
replacement therefor, the "TERM NOTE"), made by ▇▇▇▇▇ ▇▇▇ to the order of
the Florida Bank and in the original principal amount of the Term Loan;
WHEREAS, it is a condition precedent to the making of any Demand
Loan pursuant to the Revolving Credit Agreement that (i) DWG Acquisition
Group, L.P., a Delaware limited partnership, shall have executed and
delivered to the Carolinas Agent a pledge and security agreement (as
amended or otherwise modified from time to time, the "TRIARC PLEDGE
AGREEMENT"), providing for the assignment to the Carolinas Agent, for the
benefit of the Carolinas Bank and the Florida Bank, and the grant to the
Carolinas Agent, for the benefit of the Carolinas Bank and the Florida
Bank, of a security interest in, certain of the outstanding shares of
capital stock issued by Triarc Companies, Inc., and (ii) ▇▇▇▇▇ ▇▇▇ shall
have executed and delivered to the Florida Agent an Amended and Restated
Pledge Agreement dated July 29, 1994, as amended and restated on the date
hereof (as so amended, and as hereafter amended or otherwise modified
from time to time, the "PECHINEY PLEDGE AGREEMENT"; together with the
Triarc Pledge Agreement, the "PLEDGE AGREEMENTS"), made by ▇▇▇▇▇ ▇▇▇ in
favor of the Florida Agent, providing for the pledge to the Florida
Agent, for the benefit of the Carolinas Bank and the Florida Bank, and
the grant to the Florida Agent, for the benefit of the Carolinas Bank and
the Florida Bank, of a security interest in, certain debt issued by
Pechiney Corporation and the related letters of credit;
WHEREAS, the Banks and the Agents wish to set forth their
agreement as to the exercise of certain of their respective rights and
obligations with respect to the Credit Agreements, the Pledge Agreements
and the Collateral (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1.DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of such terms:
"COLLATERAL" means the Triarc Collateral and the Pechiney
Collateral.
"FINANCING DOCUMENTS" means the Security Documents and the
Loan Documents.
"LOAN DOCUMENTS" means the Credit Agreements, the Notes and
all other instruments, agreements and documents executed and delivered
pursuant to any of the foregoing.
"NOTES" means the Demand Note and the Term Note.
"OBLIGATIONS" means (i) the obligations of the Borrowers and
DWG to pay, as and when due and payable (on demand, by mandatory
prepayment, by scheduled maturity or otherwise), all amounts from time to
time owing by them in respect of any Financing Document to which such
person or entity is a party, whether for principal, interest, fees or
otherwise, and (ii) the obligations of the Borrowers and DWG to perform
or observe all of their other obligations from time to time existing
under any Financing Document to which such person or entity is a party.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
created by the Pechiney Pledge Agreement.
"SECURITY DOCUMENTS" means the Triarc Pledge Agreement, the
Pechiney Pledge Agreement, and all other instruments, agreements or
documents executed and delivered pursuant to either Pledge Agreement.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
created by the Triarc Pledge Agreement.
2. NOTIFICATION AND ACKNOWLEDGMENT OF SECURITY INTEREST, ETC.
Pursuant to Sections 8-313 and 9-305 of the New York Uniform Commercial
Code:
(a) Each Bank hereby confirms, and notifies the Carolinas
Agent, that DWG has granted to the Carolinas Agent a lien on,
and security interest in, the Triarc Collateral, as collateral
security for all obligations now or hereafter existing under
the Credit Agreements, the Notes and the other Financing
Documents. The Carolinas Agent hereby (i) acknowledges that
from and after the date hereof, it shall, pursuant to Sections
8-313 and 9-305 of the New York Uniform Commercial Code, hold
all Collateral now or hereafter in its possession as Agent
under the Triarc Pledge Agreement for the benefit of each Bank,
and (ii) agrees, promptly upon the satisfaction in full of the
Obligations owing to the Carolinas Bank and the Carolinas Agent
after the termination of the Commitment, to deliver to the
Florida Bank upon request such of the proceeds of the Triarc
Collateral as shall not have been applied pursuant to the terms
of the Triarc Pledge Agreement or this Agreement to the payment
of any Obligations of the Borrowers.
(b) Each Bank hereby confirms, and notifies the Florida
Agent, that ▇▇▇▇▇ ▇▇▇ has granted to the Florida Agent a lien
on, and security interest in, the Pechiney Collateral, as
collateral security for all obligations now or hereafter
existing under the Credit Agreements, the Notes and the other
Financing Documents. The Florida Agent hereby (i) acknowledges
that from and after the date hereof, it shall, pursuant to
Sections 8-313 and 9-305 of the New York Uniform Commercial
Code, hold all Collateral now or hereafter in its possession as
Agent under the Pechiney Pledge Agreement for the benefit of
each Bank, and (ii) agrees, promptly upon the satisfaction in
full of the Obligations owing to the Florida Bank and the
Florida Agent, to deliver to the Carolinas Bank upon request
such of the proceeds of the Collateral as shall not have been
applied pursuant to the terms of the Pechiney Pledge Agreement
or this Agreement to the payment of any Obligations of ▇▇▇▇▇
▇▇▇.
3. ENFORCEMENT. Each Agent agrees to make such demands and give such
notices under the Security Documents as a Bank may request, and to take
such action to enforce the terms and conditions of such Security Document
and to foreclose upon, collect and dispose of the Collateral or any
portion thereof as may be directed by such Bank; PROVIDED, HOWEVER, that
(i) neither Agent shall be required to take any action that is in its
opinion contrary to law or to the terms of this Agreement, any Credit
Agreement or any other Financing Document, or which would in its opinion
subject it or any of its officers, employees or directors to liability,
and (ii) neither Agent shall be required to take any action under this
Agreement or any Security Document unless and until such Agent shall be
indemnified to its satisfaction by the requesting Bank against any and
all loss, cost, expense or liability in connection therewith.
4. APPLICATION OF PROCEEDS AND PAYMENTS. Anything in any Financing
Document to the contrary notwithstanding, all cash and other payments
received by an Agent pursuant to a Pledge Agreement shall be applied
based on the mutual agreement of the Banks and, after the payment in full
of all Obligations and, in the case of the Triarc Pledge Agreement, the
termination of the Commitment, any surplus proceeds and Collateral will
be distributed pursuant to the terms and conditions of the related Pledge
Agreement.
5. THE AGENTS. Each Bank agrees with each Agent as follows:
(a) The Carolinas Bank is hereby appointed Agent hereunder and under
the Triarc Pledge Agreement, and the Florida Bank is hereby appointed
Agent hereunder and under the Pechiney Pledge Agreement. Each of the
Banks irrevocably authorizes the Agents to act as the agent of such Bank
for the purposes of enforcing the rights and remedies of the Banks in
respect of the Collateral and the Security Documents. Each Agent agrees
to act as such upon the express conditions contained in this Section.
(b) Each Agent shall have and may exercise such powers hereunder as
are specifically delegated to such Agent by the terms hereof and the
applicable Security Document, together with such powers as are reasonably
incidental thereto. The Agents shall have no implied duties to the Banks
or any other person or entity, or any obligation to take any action
hereunder or under any other Financing Document, except any action
specifically provided by this Agreement and the Security Documents to be
taken by such Agent.
(c) The Banks agree to reimburse and indemnify each Agent ratably in
proportion to the Obligations owed under the Credit Agreements (i) for
any amounts not reimbursed by a Borrower for which an Agent is entitled
to reimbursement by a Borrower under any Financing Document, (ii) for any
other expenses incurred by an Agent on behalf of the Banks, in connection
with the preparation, execution, delivery, administration and enforcement
of this Agreement or any Security Document, and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against an Agent in any
way relating to or arising out of a Security Document, this Agreement or
any other or the transactions contemplated hereby or the enforcement of
any of the terms hereof or of any such other documents, PROVIDED that no
Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of either Agent.
(d) Either Agent may resign at any time by giving written notice
thereof to the Banks and the Borrowers. Upon any such resignation, the
Banks shall have the right to appoint, on behalf of the Banks, a
successor Agent. Such successor Agent shall be an affiliate of a Bank or
an Eligible Institution (as defined in each Credit Agreement) that owns
all or part of the Obligations. Upon the acceptance of any appointment
as an Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations hereunder and under the
applicable Security Documents. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section shall continue in
effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as an Agent hereunder.
7. NO THIRD PARTY BENEFICIARY. This Agreement is intended to
establish the relative rights and obligations of the Banks and the Agents
with respect to the subject matter hereof and, except as otherwise
expressly provided in Section 8 hereof, shall not be deemed to create any
rights or priorities in any other individual or entity.
8. DISPOSITION OF COLLATERAL. (a) It is the intention of the
Carolinas Bank and the Borrowers that if the Carolinas Bank wishes
to sell or otherwise dispose of Collateral during the occurrence and
continuance of an Event of Default (as defined in the Revolving
Credit Agreement), the Carolinas Bank will sell or otherwise dispose
of, or cause the Carolinas Agent to sell or otherwise dispose of,
the Triarc Collateral (the "RELATED TRIARC COLLATERAL") allocable
to the Borrowers (each a "DISPOSITION"), prior to the sale or other
disposition of, or prior to causing the Florida Agent to sell or
otherwise dispose of, the Pechiney Collateral.
(b) Notwithstanding anything in subsection 8(a) to the
contrary, the Carolinas Bank will have no obligation under subsection
8(a) whatsoever, and the Carolinas Bank may sell or otherwise dispose of,
or direct the sale or other disposition of, any of the Collateral in such
order as the Carolinas Bank may determine (in its sole and absolute
discretion) if the Carolinas Bank determines (which determination shall
be conclusive) that: (i) the prompt Disposition of the Related Triarc
Collateral may contravene any law, rule or regulation of any Governmental
Authority (as defined in the Revolving Credit Agreement), including,
without limitation, by reason of (A) the bankruptcy, insolvency,
reorganization or other event described in Section 6.1(e) or (f) of the
Revolving Credit Agreement (without regard to whether the grace period
referred to in Section 6.1(f) thereof has elapsed) with respect to DWG
Acquisition Group, L.P., (B) the commencement of any legal action or
proceeding that stays or enjoins, or seeks to stay or enjoin, the
Disposition of any of the Related Triarc Collateral, or (C) a possible
violation of the securities laws; (ii) the Disposition of any of the
Related Triarc Collateral (at such time as the Carolinas Bank may elect)
may subject it, the Carolinas Agent, any affiliate, or any officer,
employee or director of the foregoing, to liability; (iii) the value of
any of the Pechiney Collateral threatens to decline rapidly in value;
(iv) there is a reasonable good-faith basis to conclude that delaying the
sale or other disposition of the Pechiney Collateral until after the
Disposition of the Related Triarc Collateral may adversely affect the
ability of the Carolinas Bank to receive payment in full of the principal
of, and interest on, the Demand Loans and all of the related Obligations;
(v) either Borrower, DWG Acquisition Group, L.P. or any affiliate has
taken any action, or has failed to take any action requested by the
Carolinas Bank, that the Carolinas Bank reasonably believes may prevent,
delay, impede or materially and adversely affect the ability of the
Carolinas Bank or the Carolinas Agent to sell or otherwise dispose of the
Triarc Collateral; or (vi) the Carolinas Bank or the Carolinas Agent is
unable to sell the Triarc Collateral within a 90-day period, during which
the Carolinas Bank or the Carolinas Agent exercises reasonable, good
faith efforts to so sell the Triarc Collateral.
(c) It is understood and agreed that nothing in this Section 8
shall affect any of the other rights, remedies, powers and privileges of
the Florida Agent and Florida Bank with respect to the Pechiney
Collateral (including, without limitation, (i) to collect the interest on
the Collateral Notes (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (ii) to maintain its security interest in the Collateral
Account (as defined in the Pechiney Pledge Agreement), (iii) to draw on
the Letters of Credit (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (iv) to sell or otherwise dispose of any of the Pechiney
Collateral upon the occurrence and continuance of an Event of Default
under the Term Agreement, and (v) to take any action and to execute such
other instrument as the Florida Agent may deem necessary or advisable to
accomplish the purposes of the Pechiney Pledge Agreement).
9. MISCELLANEOUS.
(a) No amendment, waiver or other modification of any provision of
this Agreement shall be effective unless it is in writing and signed by
each Bank and Agent. No waiver or approval by any Bank or Agent under
this Agreement shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions.
(b) No failure or delay on the part of any Bank or Agent in exercising
any power or right under this Agreement 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.
(c) All notices and other communications provided for hereunder shall
be in writing and shall be mailed, telecopied, telegraphed or delivered
to it at its address set forth on the signature pages of this Agreement;
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties complying as to
delivery with the terms of this subsection. All such notices and other
communications shall be effective (i) if mailed, three days after being
deposited in the mails, (ii) if telegraphed when delivered to the
telegraph company, or (iii) if telecopied, telexed or delivered, upon
delivery.
(d) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(e) Each Bank and Agent agrees to cooperate fully with each other
party hereto, to effect the intent and provisions of this Agreement and,
from time to time, to execute and deliver any and all other agreements,
documents or instruments, and to take such other actions, as may be
reasonably necessary or desirable to effectuate the intent and provisions
of this Agreement.
(f) The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof.
(g) This Agreement may be executed by the parties hereto in several
counterparts, and each such counterpart shall be deemed to be an original
and all of which shall constitute together but one and the same
agreement.
(h) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors and assigns.
(i) This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.
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.
NATIONSBANK, N.A., individually and as agent
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
----------------------------
All notices and other communications to:
NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, with copies to NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior
Vice President, Telecopier No. [ REDACTED ].
NATIONSBANK OF FLORIDA, N.A., individually and as
agent
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
----------------------------
All notices and other communications to:
NationsBank of Florida, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with copies to NationsBank of Florida, N.A., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President, Telecopier No. [ REDACTED ].
CONSENT
The undersigned hereby consents and agrees to the terms of the
Intercreditor Agreement to which this Consent is attached.
Date: January 25, 1996
▇▇▇▇▇ ▇▇▇
▇▇▇▇ May
DWG ACQUISITION GROUP, L.P.
By:___________________________
By:___________________________
REDACTED
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "AGREEMENT"), dated as of January
18, 1996, is entered into by and between ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇,
each an individual residing in the State of New York (the "BORROWERS"),
and NATIONSBANK, N.A. (the "BANK"), a national banking association.
RECITALS
The Borrowers have asked the Bank to make demand loans to the
Borrowers from time to time, from the date hereof through the date
preceding the second anniversary of the date of this Agreement, in an
aggregate principal amount at any one time outstanding not to exceed
$40,000,000. The Bank is willing to make such loans to the Borrowers on
the terms and conditions hereinafter set forth. Accordingly, each
Borrower and the Bank hereby agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the respective meanings indicated below,
such meanings to be applicable equally to both the singular and plural
forms of such terms:
"ADJUSTED COLLATERAL VALUE" means the Margin Call Percentage of
the Collateral Value.
"ADJUSTED LIBOR" means, with respect to any Interest Period,
(i) the rate of interest per annum (rounded upward, if necessary, to the
next higher 1/16th of one percent) determined by the Bank, in accordance
with its customary general practice from time to time, to be the rate
equal to the London Interbank Offered Rate (expressed as a percentage)
for Dollar deposits as would be quoted by the Bank for 11:00 a.m. London
time, or as soon thereafter as practicable, on the second Business Day
immediately preceding the first day of such Interest Period, for a term
comparable to such Interest Period, (ii) as adjusted from time to time in
the Bank's sole discretion for then applicable reserve requirements,
deposit insurance assessment rates and other regulatory costs.
"APPLICABLE MARGIN" means [ REDACTED ]%.
"BASE RATE" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day, or (ii) the sum of one half of
one percent (1/2%) plus the Federal Funds Rate for such day.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, New York, or in
Charlotte, North Carolina, are authorized or required by law to close
and, if the applicable Business Day relates to any Interest Period for
which interest on a Loan is determined by reference to the Adjusted LIBOR
rate, also includes a day on which commercial banks are open for
international business in London.
"CLOSING DATE" means the date on which the initial Loan is made
hereunder after all of the conditions precedent set forth in Article III
have been satisfied.
"COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by any mortgage, deed of trust, security
agreement, pledge agreement, assignment or other security document
heretofore or hereafter executed by any Person as security for all or any
part of the Obligations.
"COLLATERAL AGENT" means the Bank, acting as collateral agent
under the Triarc Pledge Agreement.
"COLLATERAL NOTES" means the promissory notes issued by
Pechiney and payable to the order of ▇▇▇▇▇▇ ▇▇▇▇▇, which are further
described in the Pechiney Pledge Agreement.
"COLLATERAL VALUE" means, with respect to any Collateral
consisting of stock, the amount determined by multiplying (i) the per
share price of such stock at the most recent close of trading on a
trading exchange or stock market for such stock, times (ii) the number of
shares of such stock held by the Bank as Collateral, times (iii) the
portion of such shares allocable to ▇▇▇▇▇▇ ▇▇▇▇▇, which initially is two-
thirds.
"COMMITMENT" means the commitment of the Bank to make Loans
pursuant to Section 2.1 hereof in an aggregate principal amount not to
exceed $40,000,000 at any time outstanding, as such amount may be reduced
or terminated in accordance with the terms and conditions of this
Agreement.
"DEFAULT" means a condition or event which, after notice or
lapse of time or both, would constitute an Event of Default (including,
without limitation, the obligation to prepay the Loans or provide
additional collateral pursuant to Section 2.5(a) or (b), without regard
to whether any grace period has elapsed).
"DEFAULT RATE" has the meaning specified in Section 2.2.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as
depositary bank pursuant to the Pechiney Pledge Agreement.
"DOLLARS" and the sign "$" each mean lawful money of the United
States of America.
"DWG" means DWG Acquisition Group, L.P., a Delaware limited
partnership.
"ELIGIBLE INSTITUTION" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; or (ii) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the United States or
an offshore branch outside the United States at which such bank books
loans bearing interest based on LIBOR and, in the case of a bank
described in either clause (i) or clause (ii), such bank is able to
deliver Internal Revenue Service Form 1001 or 4224 to the Bank with a
copy to the Borrowers as of the day such bank becomes an assignee or
participant.
"EVENT OF DEFAULT" has the meaning specified in Section 6.1.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, PROVIDED that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (ii) if no such
rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the Bank on
such day on such transactions as determined by the Bank.
"FLORIDA AGENT" means NationsBank of Florida, N.A., acting as
collateral agent under the Pechiney Pledge Agreement.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
federal, state, city, town, municipality, county, local or other
political subdivision thereof or thereto and any department, commission,
board, bureau, instrumentality, agency or other entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government and includes, without limitation, the SEC.
"INDEBTEDNESS" means, with respect to any Person, (i) all
indebtedness or other obligations of such Person for borrowed money or
for the deferred purchase price of property or services, (ii) all
obligations of such Person under direct or indirect guaranties in respect
of, and contingent or other obligations of such Person to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect
of, indebtedness or other obligations of any other Person for borrowed
money or for the deferred purchase price of property or services, (iii)
all indebtedness or other obligations of any other Person for borrowed
money or for the deferred purchase price of property or services secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any lien, security interest or
other charge or encumbrance upon or in property owned by such Person,
(iv) all obligations of such Person to make reimbursement or payment in
respect of letters of credit and bankers' acceptances, and (v) the net
liabilities of such Person under all interest rate swap, interest rate
collar, interest rate cap, interest rate floor, forward rate agreements,
commodity swaps or other agreements or arrangements designed to protect
against fluctuations in interest rates or currency, commodity or equity
values, each calculated on a basis reasonably satisfactory to the Bank
and in accordance with accepted practice.
"INTERCREDITOR AGREEMENT" means an Intercreditor Agreement
between the Bank, individually and as collateral agent under the Triarc
Pledge Agreement, and NationsBank of Florida, N.A., individually and as
collateral agent under the Pechiney Pledge Agreement, acknowledged and
consented to by ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and DWG.
"INTEREST PERIOD" means each one (1)-month period during which
interest on each Loan shall be calculated by reference to Adjusted LIBOR,
determined as of the second Business Day before the commencement of that
Interest Period; PROVIDED, HOWEVER, that:
(i) each Interest Period shall commence on the first
day of a month and end on the first day in the immediately
following calendar month thereafter;
(ii) each subsequent Interest Period for a Loan shall
commence on the last day of the immediately preceding
Interest Period and end on the first day in the
immediately following calendar month thereafter; and
(iii)any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination
Date.
"LETTERS OF CREDIT" means the transferable letters of credit
issued by Banque Nationale de Paris, New York Branch in favor of
NationsBank of Florida, N.A., in support of the Collateral Notes, which
are further described in the Pechiney Pledge Agreement.
"LIEN" means any lien, mortgage, pledge, security interest,
charge or similar encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and
any agreement to give any security interest).
"LOAN" means each demand loan made by the Bank to a Borrower
pursuant to Section 2.1 hereof.
"LOAN DOCUMENTS" means this Agreement, the Note, the Triarc
Pledge Agreement, the Pechiney Loan Agreement, the Pechiney Pledge
Agreement and all other instruments, agreements and other documents
executed and delivered pursuant hereto or thereto.
"LOAN PARTIES" means the Borrowers and DWG.
"MARGIN CALL PERCENTAGE" means 70%, subject to decrease in
accordance with Section 2.5(d) hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
any of (a) the business, properties or prospects of any Loan Party , (b)
the ability of any Loan Party to perform any of the obligations of such
Loan Party under this Agreement or any of the other Loan Documents, (c)
the legality, validity or enforceability of this Agreement or any of the
other Loan Documents, (d) the rights and remedies of the Bank under this
Agreement or any of the other Loan Documents, or (e) the creation,
perfection or priority of security in or lien on any of the Collateral,
securing the payment of any of the Obligations.
"NOTE" means a demand promissory note of the Borrowers,
substantially in the form of Exhibit A hereto, evidencing the
Indebtedness resulting from the making of the Loans and delivered to the
Bank pursuant to Article III hereof, as such demand promissory note may
be modified or extended from time to time, and any promissory note or
notes issued in exchange or replacement therefor.
"OBLIGATIONS" means (i) the obligation of the Borrowers to pay,
as and when due and payable (on demand, by mandatory prepayment, by
scheduled maturity or otherwise), all amounts from time to time owing by
them in respect of any Loan Document, whether for principal, interest,
fees or otherwise, and (ii) the obligations of the Borrowers to perform
or observe all of their other obligations from time to time existing
under any Loan Document.
"ORIGINAL ADVANCE PERCENTAGE" means 65%, subject to decrease in
accordance with Section 2.5(d) hereof.
"PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of DWG dated as of September 25, 1992, as amended by
Amendment No. 1 dated as of November 15, 1992, Amendment No. 2 dated as
of March 1, 1993, Amendment No. 3 dated as of April 14, 1993, and
Amendment No. 4 dated as of January 1, 1995, by and among ▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇, as general partners, and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇, as limited partners, of DWG.
"PECHINEY" means Pechiney Corporation, a Delaware corporation.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by the Pechiney Pledge Agreement.
"PECHINEY LOAN AGREEMENT" means the Term Loan Agreement dated
as of July 29, 1994, between ▇▇▇▇▇▇ ▇▇▇▇▇ and NationsBank of Florida,
N.A., as amended or otherwise modified from time to time.
"PECHINEY PLEDGE AGREEMENT" means the Amended and Restated
Pledge Agreement dated July 29, 1994, as amended and restated on January
18, 1996, made by ▇▇▇▇▇▇ ▇▇▇▇▇ as Pledgor in favor of NationsBank of
Florida, N.A., as agent for itself and the Bank, in respect of certain
promissory notes issued by Pechiney and letters of credit supporting such
promissory notes issued by Banque Nationale de Paris, New York Branch, as
amended or otherwise modified from time to time.
"PECHINEY PROCEEDS" means any principal of or interest on a
Collateral Note, any drawing on a Letter of Credit or any other proceeds
received in respect of a Collateral Note or a Letter of Credit.
"PERSON" means an individual, corporation, partnership, limited
liability company, business trust, association, joint-stock company,
trust, unincorporated organization, joint venture or Governmental
Authority or other regulatory body.
"PLEDGED SHARES" shall have the meaning assigned thereto in the
Triarc Pledge Agreement.
"PRIME RATE" means the annual rate of interest announced from
time to time as the Bank's "prime" lending rate (which the Borrowers
acknowledge does not necessarily represent the best or most favored rate
offered by the Bank to its best or any particular customers). Whenever
applicable to a Loan, the floating interest rate shall be adjusted
automatically as and when the Bank's Prime Rate shall change on any
business day(s).
"REGULATION D" means Regulation D of the Board, as in effect
from time to time, or any regulation of the Board that replaces
Regulation D.
"REGULATIONS G, T, U OR X" means Regulations G, T, U or X of
the Board as in effect from time to time, or any regulation of the Board
that replaces Regulation G, T, U or X
"RULE 144" means Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act of 1933.
"SEC" means the Securities and Exchange Commission or any
replacement national securities exchange.
"SIGNING DATE" means the date that this Agreement is executed
and delivered by the Borrowers.
"TERMINATION DATE" means January 18, 1998 or such earlier date
on which the Commitment shall be terminated pursuant to this Agreement.
"TRIARC" means Triarc Companies, Inc., a Delaware corporation.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
purported to be created by the Triarc Pledge Agreement.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement made by DWG in favor of the Collateral Agent, as agent for
itself and NationsBank of Florida, N.A., in respect of certain shares of
stock issued by Triarc, as amended or otherwise modified from time to
time.
Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in
the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
Section 1.3 ACCOUNTING AND OTHER TERMS. Unless otherwise
expressly stated herein, all accounting terms used in this Agreement
which are not otherwise defined herein shall be construed in accordance
with sound accounting principles applied on a basis consistent with those
used in the preparation of the financial statements referred to in
Section 4.10(a) hereof. All terms used in this Agreement which are
defined in Article 9 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein. Any
gender specific term is applicable to both genders, as the context may
require, whenever used herein.
ARTICLE II
THE LOANS
Section 2.1 MAKING THE LOANS. The Bank agrees, on the terms and
conditions hereinafter set forth, to make Loans to the Borrowers from the
Closing Date to the Termination Date in an aggregate principal amount at
any one time outstanding not to exceed the amount of the Commitment. The
Bank shall have no obligation to make a Loan if the sum of the aggregate
principal amount of the outstanding Loans plus the principal amount of
such requested Loan would exceed the amount equal to the Original Advance
Percentage of the Collateral Value. Each Loan shall be in an amount
equal to $100,000 or an integral multiple of $100,000 in excess thereof,
and shall be made on at least one Business Day's prior written notice.
Each request for a Loan (a "NOTICE OF BORROWING") shall be irrevocable,
shall be signed by either Borrower (it being understood that only the
signature of one Borrower shall be required) and shall be in writing,
substantially in the form of Exhibit B hereto, specifying, INTER ALIA,
the proposed amount of such Loan and the Business Day for such Loan. On
the Business Day specified and upon fulfillment of the applicable terms
and conditions set forth in Article III hereof, the Bank will make the
proceeds of such Loan available to the Borrowers by crediting Account
Number [ REDACTED ] maintained with NationsBank of Florida, N.A., at its
office in Charlotte, North Carolina, not later than 2:00 P.M. (Charlotte
time) on such date. Within the limits of the Commitment, the Borrowers
may borrow, prepay and reborrow pursuant to this Article II until the
Termination Date.
Section 2.2 INTEREST. The outstanding principal balance of each
Loan will bear interest at a rate per annum equal at all times during
each Interest Period to the sum of the Adjusted LIBOR for such Interest
Period plus the Applicable Margin, from the date of the making of such
Loan until such Loan is paid in full, except that after the occurrence
and during the continuance of an Event of Default, each Loan shall bear
interest at a rate per annum equal to the sum of (i) the Prime Rate in
effect from time to time, plus (ii) [ REDACTED ]% (the "DEFAULT RATE").
Interest on each Loan shall be paid in arrears on the first day of each
month (in the absence of prior demand) and upon the repayment of any
principal amount of any Loan for any reason.
Section 2.3 REPAYMENT. The Borrowers will repay the unpaid
principal amount of and accrued interest on the Loans UPON DEMAND by the
Bank. In the absence of a prior demand (but without limiting the Bank's
right to make a demand at any time in its sole and absolute discretion)
the principal amount of and accrued interest on the Loans shall in any
event be due and payable on the Termination Date.
Section 2.4 OPTIONAL PREPAYMENT. Any Borrower may prepay any
Loan in whole at any time or in part from time to time, without penalty
or premium, each such prepayment to be accompanied by the payment of
accrued interest to the date of such prepayment on the amount prepaid,
PROVIDED that (i) each partial prepayment shall be in a principal amount
equal to $100,000 or an integral multiple thereof, (ii) a Borrower shall
give the Bank irrevocable written notice at least one Business Day prior
to the date of the prepayment of a Loan, and (iii) after giving effect to
any partial prepayment of a Loan the principal amount thereof remaining
outstanding shall not be less than $100,000 or an integral multiple
thereof. Each notice of prepayment shall be irrevocable and shall
specify the date and the amount of the prepayment and identify the Loans
to be prepaid. Any amount of principal of a Loan prepaid may be
reborrowed in accordance with Section 2.1 hereof.
Section 2.5 MANDATORY PREPAYMENT. (a)If at any time the Bank,
in its sole discretion, determines that the transactions contemplated by
this Agreement or any of the other Loan Documents violate any provision
of Regulations G, T, U or X, the Borrowers will, upon five (5) day's
written notice from the Bank, either (A) prepay the Loans by an amount
sufficient such that, after such prepayment, the transactions
contemplated by the Loan Documents will not violate any provision of
Regulations G, T, U or X (as determined by the Bank in its sole
discretion), or (B) provide for a grant to the Bank, as collateral
security for the Loans and all other Obligations, a perfected, first
priority security interest in, and lien on, additional collateral that is
in such amounts and having such market values, liquidity, volatility,
marketability and other characteristics as the Bank may in its sole
discretion determine to be sufficient to cause, after the grant of such
additional security interest, the transactions contemplated by the Loan
Documents not to violate any provision of Regulations G, T, U or X (and
in connection with such grant, the Borrowers will execute and deliver
such agreements, instruments, legal opinions and other documents as the
Bank may reasonably request).
(b) So long as any Obligation is outstanding or the Bank
shall have any Commitment hereunder, the Borrowers will, unless the Bank
shall otherwise consent in writing, maintain as collateral security for
the Obligations Triarc Collateral with an Adjusted Collateral Value in
excess of the unpaid principal balance of the Obligations. If at any
time the Bank determines that the aggregate principal amount of the
outstanding Loans equals or exceeds an amount equal to the Margin Call
Percentage of the Collateral Value of the Triarc Collateral, the
Borrowers will, upon five (5) days' written notice from the Bank, either
(i) prepay the Loans by an amount sufficient such that, after such
prepayment, the aggregate principal amount of the outstanding Loans does
not exceed the amount equal to the Original Advance Percentage of the
Collateral Value of the Triarc Collateral or (ii) provide for a grant to
the Collateral Agent, as collateral security for the Loans and all other
Obligations, a perfected, first priority security interest in, and lien
on, additional collateral that is in such amounts and having such market
values, liquidity, volatility, marketability and other characteristics as
the Bank may in its sole discretion determine to be sufficient to cause,
after the grant of such additional security interest, the aggregate
principal amount of the outstanding Loans not to exceed the amount equal
to the sum of (A) the Original Advance Percentage of the then current
Collateral Value of the Triarc Collateral, plus (B) the loan value
assigned by the Bank (in its sole discretion) to any other Collateral
provided to the Collateral Agent pursuant to clause (ii) above (and in
connection with such grant, the Borrowers will execute and deliver such
agreements, instruments, legal opinions and other documents as the Bank
may reasonably request).
(c) If on any date (i) the sum of the aggregate principal
amount of outstanding Loans exceeds (ii) the amount of the Commitment,
the Borrowers shall immediately prepay the Loans in an amount equal to
such excess. It is understood and agreed that after payment of all
obligations under the Pechiney Loan Agreement, an amount equal to any
proceeds of the Collateral Notes and Letters of Credit will be used to
satisfy, among other things, any prepayment obligation arising under this
subsection as a result of a decrease of the amount of the Original
Advance Percentage or Margin Call Percentage pursuant to Section 2.5
hereof.
(d) It is understood and agreed that upon any payment of
the principal amount of one or more Collateral Notes or the proceeds of
any drawing in respect of the Stated Amount/Principal (as defined in any
Letter of Credit) of a Letter of Credit, the Bank may at any time
thereafter decrease the Original Advance Percentage and the Margin Call
Percentage (in either case, to such percentage as the Bank may in its
sole and absolute discretion determine) by giving either Borrower notice
of such revised percentage.
(e) Each prepayment of a Loan shall be accompanied by the
payment of accrued interest to the date of such prepayment on the amount
prepaid, and shall be subject to the provisions of Section 2.12 hereof.
Section 2.6 OPTIONAL COMMITMENT REDUCTION. Either Borrower may,
upon at least two Business Days' notice to the Bank, terminate the
Commitment at any time or reduce the amount of the Commitment from time
to time during the period from the date hereof to and including the
Termination Date, PROVIDED that each such reduction shall be in an amount
equal to $100,000 or an integral multiple thereof, and the amount of the
Commitment after any reduction shall be greater than or equal to the
aggregate principal amount of all Loans then outstanding.
Section 2.7 EVIDENCE OF CREDIT EXTENSIONS. The Loans shall be
evidenced by the Note. The Bank shall record advances and principal
payments thereof on the grid attached thereto or, at its option, in its
records, and the Bank's record thereof shall be conclusive absent
demonstrable error. Notwithstanding the foregoing, the failure to make
or an error in making a notation with respect to any Loan or any payment
shall not limit or otherwise affect the Obligations of the Borrowers
hereunder or under the Note.
Section 2.8 PAYMENT. Payment of principal, interest and any
other sums due under this Agreement or under the Note shall be made
without set-off or counterclaim in dollars and in immediately available
funds on the day such payment is due not later than 12:00 Noon New York
time. All sums received after such time shall be deemed received on the
next Business Day and principal payments or sums (other than interest)
due hereunder shall bear interest for an additional day. All payments
shall be made to the Bank, if by wire transfer, to NationsBank, N.A., ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA #[ REDACTED ], Credit Account:
[ REDACTED ], Re: Loan Payment for ▇▇▇▇▇▇ ▇▇▇▇▇, with a Loan Number
to be specified by the Bank, Special Instructions: Contact [ REDACTED ]
upon receipt; if by mail, to NationsBank, N.A., ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇; or to such other address as the Bank may advise either
Borrower in writing.
Section 2.9 COMPUTATIONS OF INTEREST; BUSINESS DAY.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred sixty
(360) and actual days elapsed. Interest shall accrue on each Loan
outstanding from and including the date such Loan is made by the Bank to
but excluding the date on which such Loan is repaid.
(b) Payment of all amounts due hereunder shall be made on
a Business Day. Any payment due on a day that is not a Business Day
shall be made on the next Business Day unless the next Business Day would
fall in the next calendar month, in which case such payment shall be made
on the Business Day immediately preceding the due date.
Section 2.10 INCREASED COSTS, ETC.
(a) If, after the date of this Agreement, due to either
(i) the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any (x) change in the basis of
taxation of payments to the Bank of the principal of or interest on any
Loan (excluding changes in the rate of tax payable on the Bank's overall
income and bank franchise taxes) or (y) imposition or change in any
reserve or similar requirement, and the result of any of the foregoing is
an increase in the cost to the Bank of agreeing to make or making,
funding or maintaining the Loans (which is not otherwise included
pursuant to clause (ii) of the definition of Adjusted LIBOR in its
determination of Adjusted LIBOR), then the Borrowers shall from time to
time, upon demand by the Bank, pay to the Bank an additional amount
sufficient to compensate the Bank for such increased cost. A certificate
as to the amount of such increased cost, submitted to either Borrower by
the Bank shall be conclusive and binding for all purposes, absent
demonstrable error.
(b) If the Bank determines that compliance with any law
or regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and that
the amount of such capital is increased by or based upon the existence of
the Loans or the Bank's Commitment, then the Borrowers shall, upon demand
by the Bank, pay to the Bank an additional amount sufficient to
compensate the Bank or such corporation in the light of such
circumstances, to the extent that the Bank reasonably determines such
increase in capital to be allocable to the existence of the Loans or the
Bank's Commitment. A certificate as to such amounts submitted to the
Borrowers by the Bank shall be conclusive and binding for all purposes,
absent demonstrable error.
(c) Prior to making any demand for compensation under
this Section 2.10, (i) the Bank will use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to file
any certificate or document requested by a Borrower or to change the
jurisdiction of its lending office if the making of such a filing or
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
judgment of the Bank, be otherwise disadvantageous to the Bank, and (ii)
the Bank will permit the Borrowers to prepay all or any part of the
affected Loans, together with interest to the date of payment and payment
of funding losses pursuant to Section 2.12, PROVIDED that nothing herein
shall relieve the Borrowers from their obligations to compensate the Bank
for increased costs or reduced return incurred prior to the taking of the
actions contemplated by clauses (i) and (ii) above.
Section 2.11 ILLEGALITY. If, after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in
an existing law, rule or regulation, or any change in the interpretation
or administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by the Bank with
any request or directive (whether or not having the force of law) of any
such Governmental Authority, makes it unlawful or impossible for the Bank
to make, maintain or fund any Loan at an interest rate based on Adjusted
LIBOR, the Bank shall forthwith give notice thereof to the Borrowers,
whereupon the obligation of the Bank to make Loans at a rate based on
Adjusted LIBOR shall be suspended until the Bank notifies the Borrowers
that the circumstances giving rise to such suspension no longer exist.
The Bank will use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to file any certificate or
document requested by a Borrower or to change the jurisdiction of its
lending office if the making of such a filing or change would avoid the
need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the judgment of the Bank, be
otherwise disadvantageous to the Bank. If the Bank makes a reasoned
determination that it may not lawfully continue to maintain and fund any
Loan to maturity at a rate based on Adjusted LIBOR and so specifies in
such notice, then effective on the date specified in such notice each
affected Loan shall bear interest at the Base Rate in effect from time
to time, payable monthly in arrears (in the absence of prior demand).
Section 2.12FUNDING LOSSES. The Borrowers agree to reimburse
the Bank and to hold the Bank harmless from any loss or expense which the
Bank may sustain or incur as a consequence of:
(a) the failure of the Borrowers to make any payment or
required prepayment of principal of any Loan (including
payments made after any acceleration thereof);
(b) the failure of the Borrowers to make any prepayment
permitted hereunder after giving notice thereof;
(c) the repayment of a Loan on a day which is not the
last day of an Interest Period (whether due to acceleration,
DEMAND, or otherwise); or
(d) the failure for any reason (other than a wrongful
default by the Bank) of a Borrower to borrow any Loan after
notice has been given to the Bank in accordance with Section
2.1 hereof (whether or not such notice is withdrawn);
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain the Loans hereunder at a
rate based on LIBOR or from fees payable to terminate the deposits from
which such funds were obtained. Solely for purposes of calculating
amounts payable by the Borrowers to the Bank under this section, each
Loan bearing interest at a rate based on LIBOR (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to
have been funded by a matching deposit in Dollars in the interbank
eurodollar market for a comparable amount and for the respective Interest
Period, whether or not such Loan was in fact so funded.
Section 2.13UNAVAILABILITY. If the Bank determines that for
any reason adequate and reasonable means do not exist for ascertaining
LIBOR for any Interest Period, the Bank will forthwith give notice of
such determination to the Borrowers. Commencing at the end of each
Interest Period then in effect, the respective Loan shall bear interest
at the Base Rate (rather than at a rate based on LIBOR) until the Bank
revokes such notice in writing.
Section 2.14SPECIAL PREPAYMENT. The provisions of Sections
2.10, 2.11 and 2.12 shall also apply to any assignee permitted pursuant
to Section 7.7 and shall apply to any unassigned portion of the Loans
retained by the Bank (regardless of whether the Bank may have sold a
participation interest in such retained portion to a participant
permitted pursuant to Section 7.7). If demand for payment is made
pursuant to Section 2.10 or 2.12 or if notice of illegality is given
pursuant to Section 2.11, whether by any such permitted assignee or by
the Bank on behalf of any such permitted participant, then the Borrowers
may prepay in full (but not in part) such assignee's or participant's
interest in the Loans on the last day of the Interest Period during which
such demand for additional amounts was made or during which such notice
of illegality was given. Any principal amount, interest or increased
costs received by any such assignee or participant pursuant to this
Section 2.14 shall not be required to be shared with the Bank and any
other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1CONDITIONS TO INITIAL LOAN. The obligation of the
Bank to make the initial Loan is subject to the condition precedent that
the Bank shall have received on or prior to the Closing Date the
following, each in form and substance satisfactory to the Bank and its
counsel and, unless indicated otherwise, dated the Closing Date:
(a) AGREEMENT. A copy of this Agreement, duly executed
by the Borrowers and dated as of the Signing Date.
(b) NOTE. The Note, duly executed by the Borrowers and
dated the Signing Date.
(c) TRIARC PLEDGE AGREEMENT. The Triarc Pledge
Agreement, duly executed by DWG and dated the Closing Date.
(d) PECHINEY PLEDGE AGREEMENT. The Pechiney Pledge
Agreement, duly executed by ▇▇▇▇▇▇ ▇▇▇▇▇ and dated the Signing
Date.
(e) STOCK CERTIFICATES, ETC. (i) Original stock
certificates representing the shares of stock pledged to the
Bank pursuant to the Triarc Pledge Agreement, together with an
undated stock power for each such certificate, duly executed in
blank by an authorized representative of DWG, with signature
medallion guaranteed (or, if any such shares are
uncertificated, confirmation and evidence that appropriate book
entries have been made in the relevant books and records of the
issuer of such uncertificated shares or a financial
intermediary, as the case may be, under applicable law), (ii)
such opinion of counsel and such approving certificate of the
issuer of such shares as the Bank may reasonably request in
respect of complying with any legend on any such certificate or
any other matter relating to such shares, and (iii) any
registration rights agreement, shareholders' agreement or other
agreement, instrument or document affecting any of the shares
of stock pledged to the Bank pursuant to the Triarc Pledge
Agreement.
(f) SEC FORM 144. Ten copies of SEC Form 144, undated
and duly executed in blank by DWG.
(g) FORM U-1. Federal Reserve Forms U-1 provided for in
Regulation U issued by the Board, the statements made in which
shall be such, in the opinion of the Bank, as to permit the
transactions contemplated hereby and by the Pechiney Loan
Agreement in accordance with such Regulation, dated the Closing
Date.
(h) RESTRICTED SECURITIES STATEMENT. A Restricted
Securities Statement covering each Pledged Share, substantially
in the form attached to the Triarc Pledge Agreement, duly
executed by DWG and dated the Signing Date.
(i) REGISTRATION RIGHTS AGREEMENT. A copy of the
Registration Rights Agreement, dated as of April 23, 1993, as
amended, between Triarc and DWG, as amended to modify the
holdback provision in Section 2.4(d)(i) thereof, certified as
of the Signing Date by ▇▇▇▇▇▇ ▇▇▇▇▇.
(j) DWG PARTNERSHIP AGREEMENT. A copy of the
Partnership Agreement, duly certified as of the Signing Date by
a partner of DWG.
(k) DWG FINANCIAL STATEMENTS. A copy of the balance
sheet of DWG as at December 31, 1994, duly certified as of the
Signing Date by a partner of DWG.
(l) AMENDMENT. An amendment dated the Signing Date to
the Term Loan Agreement dated as of July 29, 1994, between
▇▇▇▇▇▇ ▇▇▇▇▇ and NationsBank of Florida, N.A. providing, among
other things, that any Event of Default under this Agreement
shall constitute an "Event of Default" under such Term Loan
Agreement.
(m) PECHINEY COLLATERAL. Such notices and other
documents as the Bank may reasonably require in connection with
the securing of the Obligations under this Agreement with the
Pechiney Collateral (including, without limitation, note powers
(undated and in blank) in respect of the Collateral Notes,
notices to Pechiney with respect to the Pechiney Pledge
Agreement and the payment of principal of the Collateral Notes,
and the Escrow Agreement (as defined in each Letter of Credit).
(n) FEES PAYABLE AT CLOSING. The Borrowers shall pay
to the Bank (i) an arrangement fee equal to [ REDACTED ], and (ii)
the reasonable legal fees and other client charges and expenses
of such counsel (including, without limitation, photocopying,
travel and word processing charges) incurred by the Bank in
connection with its review of the Triarc Collateral and the
Pechiney Collateral and with the preparation of this Agreement,
the Note and the other Loan Documents, negotiations in
connection therewith, and research and other related expenses.
(o) FINANCING STATEMENTS. Acknowledgment copies of
appropriate financing statements on Form UCC-1, duly executed
by the Borrowers and DWG and duly filed in such office or
offices as may be necessary or, in the opinion of the Bank,
desirable to perfect the security interests purported to be
created by the Pechiney Pledge Agreement and the Triarc Pledge
Agreement.
(p) LIEN REPORTS. Certified copies of requests for copies
or information on Form UCC-11, listing all effective financing
statements which name either Borrower or DWG as debtor and
which are filed in the offices referred to in paragraph (o)
above, together with copies of such financing statements, none
of which, except as otherwise agreed to in writing by the Bank,
shall cover any of the Collateral.
(q) INTERCREDITOR AGREEMENT. The Intercreditor
Agreement between the Bank and NationsBank of Florida, N.A.,
acknowledged and consented to by ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and DWG and dated the Signing Date.
(r) RESOLUTION AGREEMENT. A copy of the Resolution
Agreement, dated as of May 1, 1992, as amended, among ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and Pechiney, as amended, certified as of the
Signing Date by ▇▇▇▇▇▇ ▇▇▇▇▇.
(s) ESCROW AGREEMENT. A copy of the Escrow Agreement,
dated as of December 22, 1988, as amended, among Pechiney
Corporation, Banque Nationale de Paris, New York Branch, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and Bank of the West, as escrow agent,
certified as of the Signing Date by ▇▇▇▇▇▇ ▇▇▇▇▇.
(t) OPINION OF COUNSEL TO BORROWERS. An opinion, dated
the Closing Date, of the law firm of ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Borrowers and DWG, in the
form of Exhibit C hereto.
Section 3.2CONDITIONS TO ALL LOANS. The obligation of the Bank
to make any Loan is subject to the conditions precedent that:
(a) The following statements shall be true, and the
acceptance of the proceeds of such Loan by a Borrower shall be
deemed to be a representation and warranty of each Borrower on
the date of such Loan that, (i) the representations and
warranties contained in Article IV of this Agreement and in
each other Loan Document and certificate or other writing
delivered to the Bank pursuant hereto on or prior to the date
for such Loan are true and correct on and as of such date as
though made on and as of such date; (ii) no Event of Default or
Default has occurred and is continuing or would result from the
making of such Loan to be made on such date; and (iii) no
material adverse change in the financial condition, properties
or prospects of any Loan Party shall have occurred and be
continuing on the date of each request for a Loan; and
(b) The Bank shall have received a Notice of Borrowing
in accordance with Section 2.1 hereof with respect to such
Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Bank that:
Section 4.1GOOD TITLE TO DWG INTEREST. ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇ are the sole general partners of DWG, which interests are owned free
and clear of any Lien. Schedule 4.1 hereto sets forth the name and
interest of each other partner of DWG.
Section 4.2NO INSOLVENCY PROCEEDINGS. The Borrowers have no
knowledge of any insolvency proceeding of any type instituted with
respect to DWG, Triarc or Pechiney.
Section 4.3NO DEFAULT. No Default or Event of Default has
occurred and is continuing.
Section 4.4ENFORCEABLE OBLIGATIONS. The Borrowers have the
legal capacity and right to execute, deliver and perform this Agreement,
the Note and the other Loan Documents. This Agreement, the Note and the
other Loan Documents constitute legal, valid and binding obligations of
the Borrowers, enforceable against each Borrower that is a party thereto
in accordance with their respective terms.
Section 4.5NO LEGAL BAR. The execution, delivery and
performance of this Agreement, the Note and the other Loan Documents, and
the borrowings hereunder, will not violate any law or regulation
(including, without limitation, Regulations G, T, U or X) or any
contractual obligation of either Borrower and will not result in the
creation or imposition of a Lien on any property of a Borrower, other
than security interests created by the Loan Documents.
Section 4.6NO LITIGATION. Except as disclosed on Schedule 4.6,
there is no litigation or proceeding of or before any arbitrator or
Governmental Authority pending or threatened against any Loan Party (as
to which either Borrower has received notice in writing) (a) with respect
to this Agreement, any Loan, the use of the proceeds thereof, the Triarc
Collateral or the Pechiney Collateral, or (b) which could reasonably be
expected to have a Material Adverse Effect.
Section 4.7TAXES. The Borrowers have filed or caused to be
filed all tax returns which are required to be filed and have paid all
taxes shown to be due and payable on such returns or on any assessments
made against them or any of their property by any Governmental Authority
except to the extent any such taxes are being contested in good faith and
any exceptions thereto are set forth on Schedule 4.7. No tax Lien has
been filed with respect to any material tax liability against either
Borrower, and, to the Borrowers' knowledge, no tax assessment is pending
against either Borrower, except as set forth on Schedule 4.7.
Section 4.8PARTNERSHIP AGREEMENT. The Borrowers have delivered
to the Bank a true and correct copy of the Partnership Agreement, as in
effect on the date hereof.
Section 4.9APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or
other regulatory body, and no consent of any other Person, is required
for the due execution, delivery and performance by either Borrower of any
Loan Document to which such Person is a party.
Section 4.10FINANCIAL CONDITION. (a) The personal financial
statements (including the notes relating thereto) of the Borrowers dated
September 30, 1995, copies of which have been previously delivered to the
Bank, fairly present the financial condition of the Borrowers as at the
date thereof, and since such date there has been no material adverse
change in the financial condition, properties or prospects of either
Borrower.
(b) The balance sheet of DWG as at December 31, 1994, copies
of which have been previously delivered to the Bank, fairly presents the
financial condition of DWG as at such date, all in accordance with sound
accounting principles consistently applied, and since December 31, 1994
there has been no material adverse change in the financial condition,
properties or prospects of DWG (it being understood that any decrease in
the per share price of common stock of Triarc shall not constitute a
material adverse change for purposes of this paragraph).
Section 4.11REGULATION U. Such Borrower is not and will not be
engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by
the Board), and no proceeds of any Loan will be used for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying
margin stock, or to refinance any loan or other Indebtedness the proceeds
of which were used to purchase or carry, any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
Section 4.12PURPOSE OF LOAN. The proceeds of each Loan will be
used only for specific investment purposes, but in no event shall such
proceeds be used for any investment purpose inconsistent with Section
4.11 hereof, or to repay any Indebtedness incurred to repay Indebtedness
owed to any prior pledgee of the Triarc Shares that was secured (directly
or indirectly) by shares of stock of Triarc.
Section 4.13FULL DISCLOSURE. No Loan Document or schedule or
exhibit thereto, and no certificate, report, statement or other document
or information furnished to the Bank in connection herewith or with the
consummation of the transactions contemplated hereby, contains any
material misstatement of fact or omits to state a material fact or any
fact necessary to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made.
There is no fact known to any Borrower (other than public information as
to matters of a general economic nature) that materially adversely
affects the financial condition of a Borrower or DWG the value of any of
the Collateral that has not been disclosed to the Bank in writing prior
to the Signing Date.
ARTICLE V
COVENANTS
So long as any Obligation is outstanding or the Bank shall have
any Commitment hereunder, the Borrowers will, unless the Bank shall
otherwise consent in writing:
Section 5.1FINANCIAL STATEMENTS. Deliver to the Bank in form
and detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60)
days after the end of each calendar quarter and for that
portion of the calendar year ending with such quarter, a
statement of assets and liabilities (including, without
limitation, contingent liabilities) of the Borrowers as of the
close of such quarter, certified by the Borrowers to the best
of their knowledge as being true and complete in all material
respects;
(b) together with each statement of assets and
liabilities,
(i) a letter showing which assets each
Borrower owns individually, which assets are owned by
the other Borrower individually and which assets are
owned jointly by the Borrowers. Such assets shall be
valued on a basis consistent with that used in the
preparation of the September 30, 1995 statement of
assets and liabilities, except as explained in any
notes to the quarterly statement which such letter
accompanies; and
(ii) an update on the status of the audit
by the Internal Revenue Service of the Borrower's
federal tax returns (which update may be included
in the footnotes to such statement of assets and
liabilities; the level of disclosure for such
updates will be sufficient if the same as for previous
updates included in such footnotes); and
(c) as soon as available and in any event not more than
90 days after the end of each calendar year, (i) a statement of
personal cash flow of the Borrowers for the year then ended and
projected cash flow of the Borrowers for the following year,
certified by the Borrowers to the best of their knowledge as
being true and complete in all material respects, and (ii) a
balance sheet of DWG, showing the financial condition of DWG as
of the close of such year and prepared in accordance with sound
accounting principles consistently applied, all certified by
its partners as fairly presenting the financial condition of
DWG; and
(d) promptly upon request, such other information
concerning the operations, condition (financial or otherwise),
business, assets or prospects of any Loan Party as the Bank
from time to time may reasonably request.
Section 5.2 NOTICES. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any
default under, any contractual obligation of any Loan Party
which could have a Material Adverse Effect; and (ii) any
action, suit, litigation or proceeding which may exist at any
time which could reasonably be expected to have a Material
Adverse Effect;
(c) the commencement of, or any material development
in, any litigation or proceeding affecting any Loan Party (i)
which could reasonably be expected to have a Material Adverse
Effect, (ii) in which the relief sought is an injunction or
other stay of the performance of this Agreement, the Note or
any other Loan Document or (iii) any litigation involving any
of the Collateral; and
(d) any Material Adverse Effect subsequent to the date
of the most recent statement of assets and liabilities of the
Borrowers delivered to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a written
statement signed by the Borrowers, setting forth details of the
occurrence referred to therein, and stating what action the Borrowers
propose to take with respect thereto and at what time. Each notice under
Section 5.2(a) shall describe with particularity the provisions of this
Agreement, the Note or other Loan Document that have been breached.
Section 5.3 PAYMENT OF OBLIGATIONS. Pay all taxes, assessments,
governmental charges and other obligations when due, except as may be
contested in good faith or those as to which a bona fide dispute may
exist.
Section 5.4 FURTHER ASSURANCES. Execute and deliver to the Bank
such further instruments and do such other further acts as the Bank may
reasonably request to carry out more effectively the purposes of this
Agreement, the other Loan Documents and any agreements and instruments
referred to herein.
Section 5.5 DWG. Not permit DWG to (i) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage
in, any transaction, business or operation other than the ownership of
the Pledged Shares, (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or obligations, except obligations
owing by it under the Loan Documents to which it is a party, (iii) create
or suffer to exist any Lien upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign any right
to receive income , except for any Lien in favor of the Bank, (iv)
liquidate, dissolve, merge or consolidate with, or sell, assign, lease or
otherwise dispose of (whether in one transaction or in a series of
transaction), any of its assets (whether now owned or hereafter acquired)
to any Person, (v) own, lease, manage or otherwise operate any properties
or assets other than the ownership of the Pledged Shares, or (vi) make
any payment other than in accordance with the provisions of the Loan
Documents.
Section 5.6 CHANGE IN STATE OF RESIDENCE. Not change the state
of their principal place of residence (which is currently New York)
without (a) notifying the Bank in writing prior to such change, (b)
designating in writing an agent for service of process in the State of
New York and notifying the Bank of same and (c) delivering to the Bank
the written acceptance of such agent.
Section 5.7 DWG PARTNERSHIP AGREEMENT. Not amend, modify,
alter, terminate or waive any provision of the Partnership Agreement.
Section 5.8 NET WORTH. Maintain at all times a minimum Net
Worth of $[REDACTED]. As used herein, "Net Worth" means the total assets
of the Borrowers minus the total liabilities of the Borrowers, all
determined in accordance with sound accounting principles.
Section 5.9 RULE 144 COVENANTS. (a) Not sell any securities of the
same class or convertible into the same class of securities as the Triarc
Collateral, whether or not such securities are pledged hereunder, from the date
hereof until the Obligations have been paid in full, and in the event of any
such sale consented to by the Bank will furnish the Bank with a copy of any
Form 144 filed in respect of such sale. The Borrowers will cause any Person
with whom it shall be deemed one "person" for purposes of Rule 144(a)(2) to
refrain from selling any securities of the same class or convertible into the
same class of securities as the Triarc Collateral, whether or not such
securities are pledged hereunder, from the date hereof until the Obligations
have been paid in full and the Commitment terminated, and in the event of any
such sale consented to by the Bank will furnish the Bank with a copy of any
Form 144 filed in respect of such sale.
(b) Cooperate fully with the Bank with respect to any
sale by the Bank of any of the Triarc Collateral, including
full and complete compliance with all requirements of Rule
144, and will give to the Bank all information and will do
all things necessary, including the execution of all
documents, forms, instruments and other items, to comply with
Rule 144 for the complete and unrestricted sale and/or
transfer of the Rule 144 Securities.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 EVENT OF DEFAULT. Any of the following shall
constitute an "EVENT OF DEFAULT":
(a) NONPAYMENT. Either (i) THE BANK SHALL DEMAND
PAYMENT ON THE NOTE (AT ANY TIME IN ITS SOLE AND ABSOLUTE
DISCRETION, AND REGARDLESS OF WHETHER ANY OTHER DEFAULT OR
EVENT OF DEFAULT SHALL HAVE OCCURRED), or (ii) either Borrower
shall fail to pay any principal of a Loan or the Note when due
(whether by scheduled maturity, mandatory prepayment,
acceleration, demand or otherwise), or (iii) either Borrower
shall fail to pay any interest on a Loan or the Note or any
other amount payable hereunder and such failure shall continue
for 3 Business Days; or
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by any Loan Party made or deemed made herein, in any
other Loan Document or in any certificate, document or
financial or other statement furnished by a Loan Party pursuant
to a Loan Document shall have been incorrect or misleading in
any material respect on or as of the date made or deemed made;
or
(c) OTHER DEFAULT. (i) A Borrower shall fail to perform
or observe any term or covenant in Section 2.5 hereof after any
applicable notice and cure period expressly set forth therein,
or (ii) a Borrower shall fail to perform or observe any term or
covenant in Section 5.1 or 5.2 hereof after any applicable
notice and cure period expressly set forth therein (if any), or
(iii) any Loan Party shall fail to perform or observe any other
material term or covenant contained in this Agreement or any
other Loan Document, and not referred to in another subsection
of this Section 6.1, and such default continues unremedied for
a period of 20 days or (iv) a Loan Party shall fail to perform
or observe any other term or covenant contained in this
Agreement or any other Loan Document, and not referred to in
clauses (i), (ii) or (iii) of this subsection (c) or in any
other subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days after the Bank
gives notice to either Borrower of same; or
(d) CROSS-DEFAULT. Any Loan Party (i) shall fail to
make any required payment when due in respect of any
Indebtedness having a principal or face amount of [ REDACTED ]
or more when due (whether at scheduled maturity or required
prepayment or by acceleration, demand, or otherwise); or (ii)
shall fail to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such
Indebtedness, and such failure continues after the applicable
grace or notice period, if any, specified in the document
relating thereto, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of
such indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its
stated maturity, or such contingent obligation to become
payable or cash collateral in respect thereof to be demanded;
or
(e) VOLUNTARY PROCEEDINGS. Any Loan Party (i) becomes
insolvent, or generally fails to pay, or admits in writing the
inability to pay such Loan Party's debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences a proceeding under the
bankruptcy laws of any state or of the United States with
respect to such Loan Party; or (iii) takes any action to
effectuate or authorize any of the foregoing; or
(f) INVOLUNTARY PROCEEDINGS. (i) Any involuntary
bankruptcy proceeding is commenced or filed against any Loan
Party or any writ, judgment, warrant of attachment, execution
or similar process, is issued or levied against a substantial
part of any Loan Party's properties, and any such proceeding or
petition is not dismissed, or such writ, judgment, warrant of
attachment, execution or similar process is not released,
vacated or fully bonded within 90 days after commencement,
filing or levy; (ii) any Loan Party admits the material
allegations of a petition against such Loan Party in any
insolvency proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any insolvency proceeding; or
(iii) any Loan Party acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar
person for a substantial portion of such Loan Party's property
or business; or
(g) MONETARY JUDGMENTS; LIENS. One or more final
(non-interlocutory) judgments, orders or decrees is entered
against any Loan Party or a Lien is filed against property of
any Loan Party (other than as contemplated hereby) involving in
the aggregate liability (not fully covered by independent
third-party insurance) as to any single or related series of
transactions, incidents or conditions, of [ REDACTED ] or more,
and the same remains unvacated and unstayed pending appeal (if
a judgment) or unbonded (if a Lien) for a period of 10 days
after the entry thereof; or
(h) TRIARC PLEDGE AGREEMENT. Any provision of the
Triarc Pledge Agreement ceases to be valid and binding on or
enforceable against DWG, the Triarc Pledge Agreement ceases to
create a valid security interest in the collateral purported to
be covered thereby or such security interest ceases for any
reason to be a perfected and first priority security interest;
or
(i) PECHINEY PLEDGE AGREEMENT. Any provision of the
Pechiney Pledge Agreement ceases to be valid and binding on or
enforceable against ▇▇▇▇▇▇ ▇▇▇▇▇, the Pechiney Pledge Agreement
ceases to create a valid security interest in the collateral
purported to be covered thereby or such security interest
ceases for any reason to be a perfected and first priority
security interest; or
(j) TERM LOAN AGREEMENT. An "Event of Default" shall
occur under the Term Loan Agreement dated as of July 29, 1994,
as amended or otherwise modified from time to time, between
▇▇▇▇▇▇ ▇▇▇▇▇ and NationsBank of Florida, N.A.; or
(k) PUBLIC INFORMATION. Triarc shall at any time cease
to satisfy either of the conditions set forth in paragraph (c)
of Rule 144 (unless at such time pursuant to paragraph (k) of
Rule 144 the Bank can sell all of the Triarc Class A Common
Stock pledged to the Bank); or shares of the Triarc Class A
Common Stock shall cease to be listed on the New York Stock
Exchange or the American Stock Exchange or included for trading
on the NASDAQ Stock Market/National Market System; or
(l) DWG CONTROL. ▇▇▇▇▇▇ ▇▇▇▇▇ shall cease to own
directly, beneficially and of record, 66-2/3% of the
partnership interests in DWG, or ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇
shall cease collectively to own directly, beneficially and of
record, 100% of the partnership interests in DWG (except for
the limited partnership interest of ▇▇▇▇ ▇▇▇▇▇▇▇▇); or
(m) DEATH OR INCAPACITY. ▇▇▇▇▇▇ ▇▇▇▇▇ shall die or
shall cease to have legal capacity.
Section 6.2 REMEDIES. If any Event of Default occurs, the Bank
may:
(a) declare the aggregate principal amount of the
outstanding Loans, all interest accrued and unpaid thereon, and
all other Obligations to be immediately due and payable,
whereupon such Loans, all interest accrued and unpaid thereon,
and all other Obligations shall become and be forthwith due and
payable without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the
Borrowers;
(b) exercise all rights and remedies available to it
hereunder, under the Note, any other Loan Document or
applicable law;
(c) declare the Commitment to be terminated, whereupon
the Commitment shall forthwith terminate; and
(d) enforce, as Collateral Agent, and direct the
Florida Agent to enforce (subject to Section 8 of the
Intercreditor Agreement), all of the Liens and security
interests created pursuant to the Loan Documents;
PROVIDED, HOWEVER, that (i) upon the occurrence of any event specified in
paragraph (c)(i), (f) or (g) of Section 6.1 above (in the case of clause
(i) of paragraph (f), after the 90-day period expressly set forth
therein), the Commitment shall automatically terminate and the aggregate
principal amount of the outstanding Loans, all interest accrued and
unpaid thereon, and all other Obligations shall automatically become due
and payable, without presentment, demand, protest or further notice of
any kind, all of which are hereby expressly waived by the Borrowers, and
(ii) in the case of any event specified in paragraph (c)(i) of Section
6.1 above (after the five-day period expressly set forth in Section
2.5(b) hereof), and notwithstanding any notice provisions in any other
Loan Document, (A) the Collateral Agent may sell all or any part of the
Triarc Collateral and (B) the Florida Agent may (subject to Section 8 of
the Intercreditor Agreement) sell all or any part of the Pechiney
Collateral, and in each case the Bank may apply the proceeds of such
Collateral to the payment of the Obligations.
Section 6.3 RIGHTS NOT EXCLUSIVE. The rights provided in this
Agreement, the Note and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement now existing
or hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 AMENDMENT AND WAIVER. No modification, consent,
amendment or waiver of any provision of this Agreement, nor consent to
any departure by either Borrower therefrom, shall be effective unless the
same shall be in writing and signed by a Vice President or higher level
officer of the Bank, and then shall be effective only in the specific
instance and for the purpose for which given.
Section 7.2 COSTS AND EXPENSES. The Borrowers shall:
(a) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank,
including, without limitation, the reasonable fees and
disbursements of counsel and paralegals, in connection with the
development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or
modification to, this Agreement, the Note or any of the other
Loan Documents, the review of the Collateral and the
consummation of the transactions contemplated hereby;
(b) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by it,
including, without limitation, the fees and disbursements of
counsel and paralegals, in connection with the enforcement,
attempted enforcement, or preservation of any rights or
remedies (including in connection with any "workout" or
restructuring regarding any of the Loans and any insolvency
proceeding or appellate proceeding) under this Agreement, the
Note or any other Loan Document or in respect of any of the
Collateral; and
(c) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank in
connection with litigation involving the Triarc Collateral,
whether related to enforcement thereof or otherwise.
Section 7.3 JOINT AND SEVERAL OBLIGATIONS. All of the
Obligations of the Borrowers hereunder and under the Note and the other
Loan Documents are joint and several. The Bank may, in its sole and
absolute discretion, enforce the provisions hereof against either of the
Borrowers and shall not be required to proceed against both Borrowers
jointly or seek payment from the Borrowers ratably. In addition, the
Bank may, in its sole and absolute discretion, select the Collateral of
any one or more of the Loan Parties for sale or application to the
Obligations, without regard to the ownership of such Collateral, and
shall not be required to make such selection ratably from the Collateral
owned by the Loan Parties (it being understood that any sale or
disposition of the Pechiney Collateral shall be subject to Section 8 of
the Intercreditor Agreement). It is understood and agreed that ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇ have agreed between themselves that ▇▇▇▇▇▇ ▇▇▇▇▇
shall have a two-thirds interest, and ▇▇▇▇▇ ▇▇▇ shall have a one-third
interest, in DWG and its assets, and the Bank hereby agrees that in the
event the Bank shall sell or otherwise dispose of any of the Triarc
Collateral, the Bank shall apply two-thirds of the proceeds of such
Triarc Collateral to the Obligations.
Section 7.4 DEMAND OBLIGATION. Nothing in this Agreement or
in any other Loan Document is intended to be an amendment or modification
of, or limitation or restriction upon, any provision of the Note
(including, without limitation, the Borrower's obligation under the Note
to pay principal and interest ON DEMAND), and the provisions of the Note
shall be controlling and fully effective regardless of anything herein to
the contrary. The Borrowers hereby acknowledge that the Bank may at any
time, in its sole and absolute discretion, demand payment of the Note,
even if the Borrowers have fully complied with all of the terms and
conditions of this Agreement and the other Loan Documents. This
Agreement, the Note and the other Loan Documents constitute the entire
agreement among the parties with respect to the borrowings contemplated
hereunder and supersede all prior agreements, written or oral, with
respect to the borrowings contemplated hereunder. THE NOTE AND THE
BORROWERS' OBLIGATIONS ARE PAYABLE UPON DEMAND BY THE BANK (IN ITS SOLE
AND ABSOLUTE DISCRETION).
Section 7.5 SET-OFF. If an Event of Default exists, the Bank is
authorized to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing to, the Bank to or for the credit or the
account of any Borrower against any and all Obligations owing to the
Bank, now or hereafter existing, whether or not the Bank has made demand
under this Agreement, the Note or any other Loan Document and although
such Obligations may be contingent or unmatured. The Borrowers hereby
waive prior notice of such action. The Bank, however, agrees promptly to
notify the Borrowers after any such set-off; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such
set-off. The rights of the Bank under this Section 7.5 are in addition
to the other rights and remedies (including other rights of set-off)
which the Bank may have.
Section 7.6 WAIVER. No failure or delay on the part of the Bank
or the Borrowers in exercising any right, power or privilege under this
Agreement and no course of dealing between the Borrowers or any other
person and the Bank or any other person shall operate as a waiver hereof
or thereof.
Section 7.7 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to
the benefit of each party hereto and its successors and
assigns, except that the Borrowers shall not be entitled to
assign or transfer all or any of their rights, benefits or
obligations hereunder, except for their death or mental
incapacity.
(b) The Bank may not assign or otherwise transfer any
of its rights or obligations under this Agreement except as
provided in this Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein
or selling a participation in its rights and obligations under
this Agreement, the Bank shall discuss with a Borrower the
names of such potential participants or assignees. The Bank
shall not assign or sell a participation in its rights and
obligations under this Agreement to any person unless a
Borrower shall have consented thereto (which consent shall not
be unreasonably withheld).
(ii) The Borrowers shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or sell a
participation in, the outstanding Loans and the
Commitment in an amount less than 15% of the Commitment;
(B) it will at all times retain not less than 15%
of the outstanding Loans and the Commitment;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation
or assign any portion of its interest in outstanding Loans
and the Commitment if, after giving effect to such participation
or assignment, such participant or assignee would hold
less than 15% of the outstanding Loans and the Commitment;
(D) the Bank will not assign an interest or
sell a participation in any Loan or the Commitment to any
assignee or participant who would be entitled to receive
additional compensation under Section 2.10 at the time of such
assignment or sale by the Bank, nor to any assignee or
participant who would find it unlawful or impossible to make,
maintain or fund its assigned interest or participation in the
Loan at a rate based on Adjusted LIBOR as provided in
Section 2.11, at the time of such assignment or sale by the Bank;
(E) with respect to any matter on which the Bank
and any assignee or participant is required to vote or
is solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided is
one that does not require the unanimous consent of all
assignees or participants, financial institutions holding 51% of
the outstanding Loans shall decide the issue, provided
that such 51% includes the Bank; and
(F) in any participation agreement or assignment
agreement with any participant or assignee, as the case
may be, the Bank will:
(x) require that any bank organized outside
the United States will deliver to the Bank with a copy
to either Borrower Internal Revenue Service Form 4224 or 1001,
duly completed and signed; and
(y) provide that each participant or assignee,
as the case may be, will agree to be bound by all
the terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the Borrowers
furnished to the Bank by or on behalf of the Borrowers;
PROVIDED, that prior to any such disclosure, the proposed
participant or assignee shall agree in writing to preserve the
confidentiality of any confidential information relating to the
Borrowers received by it from the Bank to the same extent
as is required of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of
the Loans, and shall remain the holder of the Triarc Collateral
and act as collateral agent of the Triarc Collateral
holding the same for its benefit and the benefit of the permitted
assignees and participants hereunder. The Borrowers
shall not be required to deal with any participant or assignee in
connection with the administration of the Loans, and
each assignment agreement or participation agreement shall
provide that each such assignee or participant shall deal
solely with the Bank as agent and not directly with the Borrowers.
Section 7.8 CONFIDENTIALITY. The Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" by the
Borrowers and provided to it by the Borrowers in connection with this
Agreement, and it shall not use any such information for any purpose or
in any manner other than pursuant to the terms contemplated by this
Agreement; except to the extent such information (i) was or becomes
generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis
from a source other than the Borrowers, provided that such source is not
bound by a confidentiality agreement with the Borrowers known to the
Bank; PROVIDED FURTHER, HOWEVER, that the Bank may disclose such
information: (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with
an examination of the Bank by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable requirement of law; (D) to the
Bank's independent auditors and other professional advisors, all of whom
shall have been advised of the confidential nature of such information;
and (E) to proposed assignees or participants in accordance with Section
7.8(b)(iv). It is understood that the financial information to be
delivered pursuant to Section 5.1 or any similar financial information
delivered prior to the Closing Date shall be deemed to have been
identified as confidential by the Borrowers.
Section 7.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
Section 7.10 SEVERABILITY. Any provision of this Agreement
which is illegal, invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without invalidating the remaining
provisions hereof or affecting the legality, validity or enforceability
of such provision in any other jurisdiction.
Section 7.11 NOTICES. Unless otherwise expressly provided
herein, all notices and other communications provided for hereunder shall
be in writing and shall be mailed, telegraphed, telecopied or delivered,
if to the Borrowers, to c/o Triarc Companies, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy No. [ REDACTED ],
Telephone No.: [ REDACTED ], with a copy to ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Telecopier No.: [ REDACTED ], Telephone
No.: [ REDACTED ]; if to the Bank, to it at its address at NationsBank,
N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
copies to NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President,
Telecopier No. [ REDACTED ], Telephone No. [ REDACTED ], and ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Telecopier No. [ REDACTED ], Telephone
No.[ REDACTED ]; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party complying
as to delivery with the terms of this Section 7.11. Any notice to the
Bank by any Borrower or Borrowers shall be binding on all of the
Borrowers. The Bank may, and is hereby authorized, in its sole
discretion, to act in accordance with the terms hereof upon receipt of
any notice, including, without limitation, a Notice of Borrowing, by any
Borrower or Borrowers as though such notice had been signed by both of
the Borrowers, and all of the rights and remedies of the Bank, and
Obligations of the Borrowers, shall be in full force and effect
notwithstanding that any Borrower did not execute or consent to such
Notice of Borrowing or other notice. All such notices and other
communications shall be effective (i) if mailed, when deposited in the
mails, (ii) if telegraphed, when delivered to the telegraph company,
(iii) if telecopied, upon receipt, or (iv) if delivered, upon delivery,
except that notices to the Bank pursuant to Article II hereof shall not
be effective until received by the Bank.
Section 7.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
Section 7.13 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS
OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE
FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW),
THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND
THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY,
THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY
BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT
MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED
IN THE COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME OF THE
EXECUTION OF THIS AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL
APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED
FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO
EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY
WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT, OR DOCUMENT; OR
(II) BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III)
LIMIT THE RIGHT OF THE BANK HERETO (A) TO EXERCISE SELF HELP
REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT
LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. NEITHER
THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY
REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS
OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
Section 7.14 THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
NATIONSBANK, N.A.
By:
Title: AUTHORIZED SIGNATORY
REDACTED
TERM LOAN AGREEMENT
dated as of July 29, 1994
between
▇▇▇▇▇▇ ▇▇▇▇▇
and
NATIONSBANK OF FLORIDA, N.A.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..............1
Section 1.1 Certain Defined Terms..................1
ARTICLE II THE LOAN......................................6
Section 2.1 Amount of the Loan.....................6
Section 2.2 Interest...............................6
Section 2.3 Payment Under Collateral Notes
and Letters of Credit..................7
Section 2.4 Payment of Principal...................8
Section 2.5 Optional Prepayment....................8
Section 2.6 Mandatory Prepayment...................8
Section 2.7 Evidence of Credit Extensions..........8
Section 2.8 Payment................................8
Section 2.9 Computations of Interest;
Business Day...........................8
Section 2.10 Increased Costs, Etc...................9
Section 2.11 Illegality............................10
Section 2.12 Funding Losses........................11
Section 2.13 Unavailability........................11
Section 2.14 Special Prepayment....................11
ARTICLE III CONDITIONS PRECEDENT.........................12
Section 3.1 Deliveries............................12
Section 3.2 Representations Correct...............13
Section 3.3 Release of Credit Suisse Lien.........13
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............13
Section 4.1 Good Title to Collateral..............13
Section 4.2 Enforceable Collateral Notes;
No Default............................14
Section 4.3 No Defense to or Prepayment of
Collateral Notes......................14
Section 4.4 No Misrepresentation..................14
Section 4.5 No Insolvency Proceedings.............14
Section 4.6 No Default............................14
Section 4.7 Enforceable Obligations...............14
Section 4.8 No Legal Bar..........................14
Section 4.9 No Litigation.........................15
Section 4.10 Taxes.................................15
Section 4.11 Margin Stock..........................15
Section 4.12 Purpose of Loan.......................15
Section 4.13 Pledge Agreement......................15
Section 4.14 Escrow Agreement......................15
ARTICLE V COVENANTS....................................16
Section 5.1 Financial Statements..................16
Section 5.2 Notices...............................16
Section 5.3 Payment of Obligations................17
Section 5.4 Further Assurances....................17
Section 5.5 Notice to Pechiney and Escrow Agent...17
Section 5.6 Amendments to Escrow Agreement........18
Section 5.7 Change in State of Residence..........18
ARTICLE VI EVENTS OF DEFAULT............................18
Section 6.1 Event of Default......................18
(a) Non-Payment...........................18
(b) Representation or Warranty............19
(c) Other Default.........................19
(d) Cross-Default.........................19
(e) Material Adverse Change...............20
(f) Insolvent Voluntary Proceedings.......20
(g) Involuntary Proceedings...............20
(h) Monetary Judgements; Liens............20
(i) Pledge Agreement......................20
Section 6.2 Remedies..............................21
Section 6.3 Rights Not Exclusive..................21
ARTICLE VII MISCELLANEOUS................................21
Section 7.1 Amendment and Waiver..................21
Section 7.2 Costs and Expenses....................22
Section 7.3 Indemnification.......................22
Section 7.4 GOVERNING LAW AND SUBMISSION
TO JURISDICTION........................23
Section 7.5 Set-Off...............................23
Section 7.6 Waiver................................24
Section 7.7 Successors and Assigns................24
Section 7.8 Confidentiality.......................26
Section 7.9 Counterparts..........................27
Section 7.10 Severability..........................27
Section 7.11 Notices...............................27
Section 7.12 Document Stamp Taxes..................27
Section 7.13 WAIVER OF JURY TRIAL..................27
SCHEDULES
Schedule 2.2 - Interest Payment Dates
Schedule 4.9 - Litigation, Tax Audits
Schedule 4.10 - Tax Assessments
EXHIBITS
Exhibit A - Note
Exhibit B - Pledge Agreement
Exhibit C - Direction to Demand Payment, Accelerate or Draw
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (the "Agreement"), dated as of July
29,1994, is entered into by and between ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower"), an
individual residing in the State of New York, and NATIONSBANK OF FLORIDA,
N.A. (the "Bank"), a national banking association.
RECITALS
The Borrower has requested that the Bank make a term loan (the
"Loan") available to the Borrower in an amount not in excess of One
Hundred Two Million Dollars ($102,000,000), which Loan is to be secured
by the pledge to the Bank by the Borrower of promissory notes (the
"Collateral Notes") issued by Pechiney Corporation, a Delaware
corporation ("Pechiney"), payable to the Borrower in an aggregate
principal amount of $120,000,000. Payment of the Collateral Notes is
supported by transfer letters of credit issued by Banque Nationale de
Paris, New York Branch, which, on the Closing Date, will issue new
letters of credit naming the Bank as beneficiary. The Bank will hold
such letters of credit for itself and as collateral agent for any
Eligible Institution (as defined herein) to which the Bank sells a
participation in the Loan or to which the Bank assigns a portion of its
interest therein.
The Bank has agreed to make the loan to the Borrower on the
terms set forth herein.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings:
"Adjusted LIBOR" means, with respect to any Interest Period, a
rate per annum (rounded upward, if necessary, to the nearest 1/100th of
one percent), determined pursuant to the following formula:
LIBOR
1.00 minus the Eurodollar Reserve Percentage
"Applicable Margin" means:
(i) prior to a Rating Change, [ REDACTED ]%; and
(ii) after a Rating Change and during the continuance
thereof, [ REDACTED ]%.
Any change in the Applicable Margin shall take effect on the date of any
Rating Change.
"Base Rate" means, for any day, a simple rate per annum equal
to the higher of (i) the Prime Rate for such day, or (ii) the sum of one
half of one percent ( 1/2 %) plus the Federal Funds Rate for such day.
"BNP" means Banque Nationale de Paris, New York Branch.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close and, if the applicable Business Day relates to
any Interest Period for which interest on the Loan is determined by
reference to the Adjusted LIBOR rate, also includes a day on which
commercial banks are open for international business in London.
"Closing Date" means July 29, 1994.
"Collateral Notes" has the meaning assigned to it in the
Recitals.
"Default" means a condition or event which, after notice or
lapse of time or both, would constitute an Event of Default.
"Default Rate" has the meaning specified in Section 2.2.
"Direction to Demand Payment, Accelerate or Draw" means a
direction, in the form attached hereto as Exhibit C, dated and signed by
the Borrower.
"Dollars" and the sign "$" each mean lawful money of the United
States of America.
"Eligible Institution" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; or (ii) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the United States or
an offshore branch outside the United States at which such bank books
loans bearing interest based on LIBOR and, in the case of a bank
described in either clause (i) or clause (ii), such bank is able to
deliver Internal Revenue Service Form 1001 or 4224 to the Bank with a
copy to the Borrower as of the day such bank becomes an assignee or
participant.
"Escrow Agreement" means that certain Escrow Agreement, dated
as of December 22, 1988, among Pechiney, BNP, the Borrower, ▇▇▇▇▇ ▇. May
and Bank of the West as Escrow Agent, as amended from time to time.
"Eurodollar Reserve Percentage" means, with respect to each
Interest Period, the maximum reserve percentage (expressed as a decimal
fraction), in effect on the date LIBOR for such Interest Period is
determined (whether or not applicable to the Bank), prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining reserve requirements generally applicable to financial
institutions regulated by the Board of Governors of the Federal Reserve
System (including without limitation any basic, emergency, supplemental
or other marginal reserve requirements) with respect to Eurocurrency
liabilities pursuant to Regulation D or any other then applicable
regulation of the Board of Governors of the Federal Reserve System which
prescribes reserve requirements applicable to "Eurocurrency liabilities"
as presently defined in Regulation D (or any other category of
liabilities which includes deposits by reference to which the interest
rate is determined or any category or extension of credit which includes
loans by a non-United States office of the Bank to United States
residents). Each determination by the Bank of the Eurodollar Reserve
Percentage shall, in the absence of demonstrable error, be binding and
conclusive.
"Event of Default" has the meaning specified in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (ii) if no such
rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the Bank on
such day on such transactions as determined by the Bank.
"Interest Period" means each three (3) month period during
which interest on the Loan shall be calculated by reference to Adjusted
LIBOR determined as of the second Business Day before the commencement of
that Interest Period; provided, however, that:
(i) if any Interest Period would end on a day not a
Business Day, it shall end on the next Business Day
unless the next Business Day would fall in the next
calendar month, in which case the Interest Period
shall end on the Business Day immediately preceding
the last day of such Interest Period but for such
change;
(ii) if any Interest Period would end on a day for which
there is no corresponding day in such month, it shall
end on the immediately preceding Business Day;
(iii) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the
Termination Date; and
(iv) the first Interest Period shall commence on the
Closing Date and shall be a period of more or less
than three (3) months so that it may end on a date
set forth on Schedule 2.2 for an interest payment by
the Borrower; thereafter, each Interest Period shall
commence upon the expiration of the preceding
Interest Period.
"Letters of Credit" means (i) when used with respect to the
letters of credit issued by BNP naming the Bank as beneficiary in its
capacity as collateral agent, such letters of credit and (ii) when used
with respect to letters of credit supporting payment of the Collateral
Notes prior to the Closing Date, such letters of credit.
"LIBOR" means, for each Interest Period, the interest rate per
annum displayed on Telerate page 3750 (or such other page as may replace
such page on that service for the purpose of displaying interest rates at
which Dollar deposits are offered by prime banks in the London interbank
market), as of 11:00 a.m., London, England time, on the day which is two
(2) Business Days prior to the first day of the applicable Interest
Period, rounded to the nearest .0625 of one percent. If Telerate ceases
to quote LIBOR at any time during the term of this Agreement, then LIBOR
shall mean the rate of interest per annum at which deposits in U.S.
Dollars are offered to the Bank by prime banks in the London interbank
market at approximately 11:00 a.m. London time two (2) Business Days
before the first day of such Interest Period for amounts approximately
equal to the outstanding principal amount of the Loan, and for a period
comparable to the applicable Interest Period. LIBOR shall be adjusted
from time to time for the aggregate reserve requirements (including,
without limitation, all basic, supplemental, marginal and other reserve
requirements and taking into account any transitional adjustments or
other scheduled changes in reserve requirements during any Interest
Period) specified in Regulation D of the Board of Governors of the
Federal Reserve System, or any subsequent regulations of similar effect,
as applicable to "Eurocurrency liabilities" (as presently defined in
Regulation D) of the Bank to the extent actually complied with by same.
"Loan" has the meaning specified in the Recitals.
"Lien" means any lien, mortgage, pledge, security interest,
charge or similar encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and
any agreement to give any security interest).
"Material Adverse Effect" means that the Net Worth of the
Borrower is less than $[ REDACTED ].
"Missed Interest Payment" has the meaning specified in Section
6.1(a).
"Net Worth" means, at any time of determination thereof, when
used with respect to the Borrower, the net worth of the Borrower as
reflected on the quarterly statement of assets and liabilities of the
Borrower prepared on a basis consistent with that used in the preparation
of the Borrower's March 31, 1994 statement of assets and liabilities
(except as explained in any notes to such quarterly statement).
"Note" means a promissory note in the form attached hereto as
Exhibit A, as such note may be modified, amended, supplemented or
restated from time to time.
"Pledge Agreement" means a pledge agreement in the form
attached hereto as Exhibit B, as such agreement may be amended, modified,
restated or supplemented from time to time.
"Prime Rate" means the annual rate of interest announced from
time to time during the term of the Loan as the Bank's "prime" lending
rate (which the Borrower acknowledges does not necessarily represent the
best or most favored rate offered by the Bank to its best or any
particular customers). Whenever applicable to the Loan, the floating
interest rate shall be adjusted automatically as and when the Bank's
Prime Rate shall change on any business day(s) during the term of the
Loan.
"Rating Change" means that either Standard & Poor's Corporation
or ▇▇▇▇▇'▇ Investors Service, Inc. has rated the long-term senior debt of
BNP below investment grade or has withdrawn its rating.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Reinstatement Event of Default" means that on three successive
interest payment dates under the Collateral Notes an event of default
under the Collateral Notes has occurred as a result of the failure of BNP
to reinstate any interest amount drawn under the Letters of Credit within
five Business Days after such drawing.
"Termination Date" means the earliest to occur of
(i) January 4, 1999
(ii) the date on which, prior to the date set forth in
clause (i) above, the Loan is accelerated pursuant to
Article VI, and
(iii) the date on which prior to the dates set forth in
clauses (i) or (ii) above, the Loan is prepaid by the
Borrower in accordance with a notice to that effect
given to the Bank by the Borrower pursuant to Section
2.5.
ARTICLE II
THE LOAN
Section 2.1 Amount of the Loan. On the Closing Date, the
Bank, on the terms and conditions hereinafter set forth, will (a) make a
Loan to the Borrower in an amount not in excess of One Hundred Two
Million Dollars ($102,000,000) and (b) deliver to the Borrower Internal
Revenue Form 1001 or 4224 duly completed (if applicable).
Section 2.2 Interest. The outstanding principal balance of
the Loan will bear interest at a rate per annum equal to Adjusted LIBOR
plus the Applicable Margin from the date of the making of the Loan until
the Loan is paid in full, except that after the occurrence of an Event of
Default, the Loan shall bear interest at a rate per annum equal A to the
sum of (i) Adjusted LIBOR, (ii) the Applicable Margin and (iii)[REDACTED]%
(the "Default Rate"). Interest on the Loan shall be paid in arrears on each
date set forth on Schedule 2.2. Interest will continue to accrue on the
Loan until all interest then due is paid even though the Bank may have
drawn under the Letter of Credit for an interest payment and shall accrue
thereon at the Default Rate if interest is not paid within three Business
Days after the due date therefor, whether or not a drawing has been made
under the Letter of Credit.
Section 2.3 Payment Under Collateral Notes and Letters of
Credit. If an event of default occurs under a Collateral Note and the
Borrower desires that the Bank demand payment under the Collateral Notes,
accelerate the Collateral Notes or draw under one or more Letters of
Credit as a result of such event of default, the Borrower shall promptly
notify the Bank of same, and the Borrower shall direct the Bank to take
such action by delivering to the Bank a Direction to Demand Payment,
Accelerate or Draw, specifying the event which caused such event of
default, the date of the occurrence thereof (if known) and, if the date
of such occurrence is not known, the date on which the Borrower obtained
knowledge of such occurrence as well as the action the Borrower desires
that the Bank take upon receipt of such Direction to Demand Payment,
Accelerate or Draw, the Bank shall forthwith take the requested action.
If the Bank is not paid by Pechiney or BNP, if the Bank is not paid the
full amount for which it draws under the Letters of Credit or if the
amount drawn is withheld and placed in escrow, then the Bank shall notify
the Borrower of same. The proceeds of any funds received directly from
Pechiney after a demand by the Bank under the Collateral Notes or as
proceeds following a drawing under the Letters of Credit shall be used by
the Bank to pay any sums then due and unpaid under this Agreement and the
Note. If, at the time the Bank receives such payment from either
Pechiney or BNP, or the Borrower makes any payment to the Bank, there is
then no other Default or Event of Default under this Agreement, any
excess proceeds shall be remitted to the Borrower within one Business Day
after applying such payments.
Any action taken by the Bank pursuant to a Direction to Demand
Payment, Accelerate or Draw shall not affect or impair the Borrower's
obligation hereunder or under the Note to pay the amounts due hereunder.
The Bank may draw under the Letters of Credit even though it has not
received a Direction to Demand Payment, Accelerate or Draw, except that
the Bank shall not accelerate the Collateral Notes or make a drawing
under the Letters of Credit for the principal amount due under the
Collateral Notes as a result solely of a Missed Interest Payment unless a
Reinstatement Event of Default has occurred and is continuing.
Section 2.4 Payment of Principal. The Borrower shall repay
the principal amount outstanding under the Note on January 4, 1999,
together with all accrued and unpaid interest thereon and all fees and
other amounts owing hereunder and under the Pledge Agreement and the
Note.
Section 2.5 Optional Prepayment. At any time and from time to
time, the Borrower may, subject to Section 2.12, prepay all or any part
of the Loan together with interest to date of payment, except that if the
Loan is prepaid in full during the twelve-month period commencing on the
Closing Date, the Borrower shall also pay to the Bank on the date of
prepayment a cancellation fee of $100,000.
Section 2.6 Mandatory Prepayment. If, as a result of
acceleration, voluntary prepayment or otherwise in respect of the
Collateral Notes, the Borrower receives any payment of the principal
amount of one or more Collateral Notes prior to January 4, 1999, the
Borrower shall immediately prepay the principal amount of the Note in the
principal amount prepaid on the Collateral Notes.
Section 2.7 Evidence of Credit Extensions. The Loan shall be
evidenced by the Note, executed by the Borrower, payable to the order of
the Bank and dated the Closing Date. The Bank shall record advances and
principal payments thereof on the grid attached thereto or, at its
option, in its records, and the Bank's record thereof shall be conclusive
absent demonstrable error. Notwithstanding the foregoing, the failure to
make or an error in making a notation with respect to any payment shall
not limit or otherwise affect the obligations of the Borrower hereunder
or under the Note.
Section 2.8 Payment. Payment of principal, interest and any
other sums due under this Agreement or under the Note shall be made
without set-off or counterclaim in dollars in immediately available funds
on the day such payment is due not later than 12:00 Noon New York time.
All sums received after such time shall be deemed received on the next
Business Day and principal payments or sums (other than interest) due
hereunder shall bear interest for an additional day. All payments shall
be made to the Bank at the address set forth beneath its name on the
signature pages hereof or to such other address as the Bank may advise
the Borrower in writing.
Section 2.9 Computations of Interest; Business Day.
(a) All computations of interest under this Agreement and
the Note shall be made on the basis of a year of three hundred
sixty (360) and actual days elapsed. Interest shall accrue on
the principal balance outstanding, under the Note from and
including the Closing Date to but excluding the date on which
such principal balance is repaid.
(b) Payment of all amounts due hereunder shall be made on
a Business Day. Any payment due on a day that is not a
Business Day shall be made on the next Business Day unless the
next Business Day would fall in the next calendar month, in
which case such payment shall be made on the Business Day
immediately preceding the due date.
Section 2.10 Increased Costs, Etc.
(a) If, after the date of this Agreement, due to either
(i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other
governmental authority (whether or not having the force of
law), there shall be any (x) change in the basis of taxation of
payments to the Bank of the principal of or interest on the
Loan (excluding changes in the rate of tax payable on the
Bank's overall income and bank franchise taxes) or (y)
imposition or change in any reserve or similar requirement, and
the result of any of the foregoing is an increase in the cost
to the Bank of agreeing to make or making, funding or
maintaining the Loan (other than the Eurodollar Reserve
Percentage), then the Borrower shall from time to time, upon
demand by the Bank and within 15 days thereof, pay to the Bank
an additional amount sufficient to compensate the Bank for such
increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower by the Bank, shall be
conclusive and binding for all purposes, absent demonstrable
error.
(b) If the Bank determines that compliance with any law
or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by the Bank or any
corporation controlling the Bank and that the amount of such
capital is increased by or based upon the existence of the Loan
or the Bank's commitment to lend hereunder, then the Borrower
shall, within fifteen (15) days after demand by the Bank, pay
to the Bank an additional amount sufficient to compensate the
Bank or such corporation in the light of such circumstances, to
the extent that the Bank reasonably determines such increase in
capital to be allocable to the existence of the Loan or the
Bank's commitment to lend hereunder. A certificate as to such
amounts submitted to the Borrower by the Bank shall be
conclusive and binding for all purposes, absent demonstrable
error.
(c) Prior to making any demand for compensation under
this Section 2.10, unless such action would be economically or
legally disadvantageous to the Bank in the reasoned opinion of
its tax or regulatory advisors, the Bank will (i) designate a
different lending office if such designation will avoid the
need for, or reduce the amount of, such compensation to which
the Bank is entitled pursuant to this Section 2.10 and (ii)
permit the Borrower to prepay all or any part of the Loan
together with interest to the date of payment, subject to
payment of the cancellation fee in Section 2.5 (if applicable)
and payment of funding losses pursuant to Section 2.12.
Section 2.11 Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in an existing law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance
by the Bank with any request or directive (whether or not having the
force of law) of any such governmental authority, makes it unlawful or
impossible for the Bank in the reasoned opinion of its legal or
regulatory advisors to make, maintain or fund the Loan at an interest
rate based on LIBOR, the Bank shall forthwith give notice thereof to the
Borrower, whereupon the obligation of the Bank to make the Loan at a rate
based on LIBOR shall be suspended until the Bank notifies the Borrower
that the circumstances giving rise to such suspension no longer exist.
Before giving any notice to the Borrower pursuant to this section, the
Bank shall designate a different lending office if such designation will
avoid the need for giving such notice (unless such action would be
economically or legally disadvantageous to the Bank in the reasoned
opinion of its tax or regulatory advisors). If the Bank makes a reasoned
determination that it may not lawfully continue to maintain and fund any
of the Loan to maturity at a rate based on LIBOR and so specifies in such
notice, the Bank shall immediately convert the Loan into a loan bearing
interest at the Base Rate in an equal principal amount.
Section 2.12 Funding Losses. The Borrower agrees to reimburse
the Bank and to hold the Bank harmless from any loss or expense which the
Bank may sustain or incur as a consequence of:
(a) the failure of the Borrower to make any payment or
required prepayment of principal of the Loan (including
payments made after any acceleration thereof);
(b) the failure of the Borrower to make any prepayment
permitted hereunder after giving notice thereof, or
(c) the repayment of the Loan on a day which is not the
last day of an Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain the Loan hereunder at a
rate based on LIBOR or from fees payable to terminate the deposits from
which such funds were obtained. Solely for purposes of calculating
amounts payable by the Borrower to the Bank under this section, the Loan
bearing interest at a rate based on LIBOR (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to
have been funded by a matching deposit in Dollars in the interbank
eurodollar market for a comparable amount and for the respective Interest
Period, whether or not the Loan was in fact so funded.
Section 2.13 Unavailability. If the Bank determines that for
any reason adequate and reasonable means do not exist for ascertaining
LIBOR for any Interest Period, the Bank will forthwith give notice of
such determination to the Borrower. Commencing at the end of the
Interest Period then in effect, the Loan shall bear interest at the Base
Rate (rather than at a rate based on LIBOR) until the Bank revokes such
notice in writing.
Section 2.14 Special Prepayment. The provisions of Sections
2.10, 2.11, and 2.12 shall also apply to any assignee permitted pursuant
to Section 7.7 and shall apply to any unassigned portion of the Loan
retained by the Bank (regardless of whether the Bank may have sold a
participation interest in such retained portion to a participant
permitted pursuant to Section 7.7). If demand for payment is made
pursuant to Section 2.10 or 2.12 or if notice of illegality is given
pursuant to Section 2.11, whether by any such permitted assignment or by
the Bank on behalf of any such permitted participant, then the Borrower
may prepay in full (but not in part) such assignee's or participant's
interest in the Loan on the last day of the Interest Period during which
such demand for additional amounts was made or during which such notice
of illegality was given. Any principal amount, interest or increased
costs received by any such assignee or participant pursuant to this
Section 2.14 shall not be required to be shared with the Bank and any
other assignees or participants.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Deliveries. The obligation of the Bank to make
the Loan is subject to the condition precedent that on the Closing Date
the following items shall have been delivered to the Bank in form and
substance satisfactory to the Bank and its counsel:
(a) Agreement. A copy of this Agreement duly executed by
the Borrower.
(b) Note. The Note, duly executed by the Borrower.
(c) Pledge Agreement. The Pledge Agreement, duly
executed by the Borrower.
(d) Pechiney Resolutions, etc. Copies of (i) resolutions
of the Board of Directors of Pechiney,
authorizing the issuance of the Collateral Notes and the
agreement to provide the Letters of Credit and the other
related documents; and (ii) a certificate of incumbency for
Pechiney, certified as true and correct by the Secretary or an
Assistant Secretary of Pechiney; all of which were delivered to
the Borrower by Pechiney in connection with the delivery to the
Borrower of the Collateral Notes (or any predecessor note which
the Borrower exchanged for the Collateral Notes).
(e) Collateral Notes. The Collateral Notes in a
principal amount of at least [ REDACTED ], indorsed in blank by
the Borrower on note allonges relating thereto.
(f) Letters of Credit. The Letters of Credit issued to
the Bank as the beneficiary thereof in its capacity as
collateral agent.
(g) Fees Payable at Closing. The legal fees and expenses
(including, without limitation, photocopying, travel and word
processing charges) incurred by the Bank in connection with its
review of the Collateral Notes and the Letters of Credit and
with its preparation of this Agreement, the Note and the Pledge
Agreement, negotiations in connection therewith, and research
and other related expenses.
(h) Funding Instructions. At least one Business Day prior
to the Closing Date, the Borrower shall have delivered written
instructions to the Bank directing the manner of the payment of
funds, and setting forth (1) the name of the transferee bank or
banks, (2) each such transferee bank's ABA number, (3) the
account names and numbers into which such amount is to be
deposited, and (4) the names and telephone numbers of the
account representative responsible for verifying receipt of
such funds.
(i) Opinion of Counsel. An opinion, dated the Closing
Date, of the law firm of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the Borrower, in form and content
reasonably satisfactory to the Bank and its counsel.
Section 3.2 Representations Correct. The obligation of the
Bank to make the Loan is subject to the condition precedent that on the
Closing Date the representations and warranties contained in Article IV
shall be true and correct in all material respects.
Section 3.3 Release of Credit Suisse Lien. The obligation of
the Bank to make the Loan is subject to the condition precedent that on
the Closing Date the Bank shall have received evidence in form and
substance satisfactory to it and its counsel that Credit Suisse shall
have unconditionally released all the Liens in favor of it encumbering
the Collateral Notes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower warrants that:
Section 4.1 Good Title to Collateral. He has good title to
and is the sole owner of the Collateral Notes, free and clear of any
lien, and the pledge of the Collateral Notes by the Borrower to the Bank
is not prohibited in any manner by, and does not require the consent of
any party under, any other agreement, subject in each case to the Lien in
favor of Credit Suisse encumbering the Collateral Notes, which Lien is
being terminated simultaneously with the consummation of the transactions
contemplated hereby.
Section 4.2 Enforceable Collateral Notes; No Default. Except
for an amendment to the Collateral Notes dated as of July 29, 1994 and
attached to each original Collateral Note delivered to the Bank by the
Borrower, there has been no modification of the terms that appear on the
face of the Collateral Notes, and the Collateral Notes are enforceable
against Pechiney in accordance with their terms. To the best of the
Borrower's knowledge, there is no uncured default under the Collateral
Notes.
Section 4.3 No Defense to or Prepayment of Collateral Notes.
There is no defense, right of offset or counterclaim of Pechiney
affecting the enforceability of the Collateral Notes. There has been no
prepayment of principal under any of the Collateral Notes, and the
principal amount outstanding under each Collateral Note is the full
original principal sum stated on the face of such Collateral Note.
Pechiney has paid and the Borrower has collected all payments of interest
heretofore coming due under the Collateral Notes, and no such interest
payments hereafter coming due under the Collateral Notes have been
prepaid by Pechiney or collected by the Borrower.
Section 4.4 No Misrepresentation. The Borrower has not made
any misrepresentation to Pechiney which has resulted in or may result in
any defense, or the assertion of any defense, by Pechiney with respect to
its obligations to pay under the Collateral Notes.
Section 4.5 No Insolvency Proceedings. The Borrower has no
knowledge of any insolvency proceeding of any type instituted with
respect to Pechiney.
Section 4.6 No Default. No Default or Event of Default has
occurred and is continuing.
Section 4.7 Enforceable Obligations. The Borrower has the
legal right to execute, deliver and perform this Agreement, the Note and
the Pledge Agreement. No consent or authorization of, filing with or act
by or in respect of any other person is required in connection with the
borrowings hereunder or with the execution, delivery or performance of
this Agreement, the Note or the Pledge Agreement. This Agreement, the
Note and the Pledge Agreement constitute legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
Section 4.8 No Legal Bar. The execution, delivery and
performance of this Agreement, the Note and the Pledge Agreement, and the
borrowing hereunder, will not violate any contractual obligation of the
Borrower and will not result in the creation or imposition of a Lien on
any of the Borrower's property (other than the Lien created by the Pledge
Agreement).
Section 4.9 No Litigation. Except as disclosed on Schedule
4.9, there is no litigation or proceeding of or before any arbitrator or
governmental authority pending against the Borrower (as to which the
Borrower has received notice in writing) (a) with respect to this
Agreement, the Loan, the use of the proceeds thereof, the Collateral
Notes or the Letters of Credit or (b) which could reasonably be expected
to (i) affect the legality, validity or enforceability of this Agreement,
the Collateral Notes or the Letters of Credit, or (ii) otherwise have a
Material Adverse Effect.
Section 4.10 Taxes. The Borrower has filed or caused to be
filed all tax returns which are required to be filed and has paid all
taxes shown to be due and payable on such returns or on any assessments
made against it or any of its property by any governmental authority
except to the extent any such taxes are being contested in good faith and
any exceptions thereto are set forth on Schedule 4.10. No tax Lien has
been filed with respect to any material tax liability against the
Borrower, and, to the Borrower's knowledge, no tax assessment is pending
against the Borrower, except as set forth on Schedule 4.10.
Section 4.11 Margin Stock. No part of the proceeds of the
Loan will be used for "purchasing" or "carrying" any "margin stock"
within the meaning of such terms under Regulation U of the Board of
Governors of the Federal Reserve System.
Section 4.12 Purpose of Loan. The proceeds of the Loan will
be used to refund indebtedness of the Borrower to Credit Suisse, to
obtain a release of the lien in favor of Credit Suisse against the
Collateral Notes, and to fund business and investment purposes of the
Borrower.
Section 4.13 Pledge Agreement. The Pledge Agreement is
effective to create in favor of the Bank a legal, valid and enforceable
security interest in the Collateral Notes. The execution and delivery by
the Borrower of the Pledge Agreement and the delivery to the Bank of the
Collateral Notes shall together constitute a fully perfected first
priority Lien on all right, title and interest of the Borrower in the
Collateral Notes and the proceeds thereof prior and superior in right to
any other person.
Section 4.14 Escrow Agreement. The Borrower has delivered to
the Bank on or prior to the Closing Date a true and correct copy of the
Escrow Agreement. No modification has been made to the Escrow Agreement
since the date of the last modification, a copy of which was delivered by
the Borrower to the Bank.
ARTICLE V
COVENANTS
So long as any amount is outstanding under this Agreement and
the Note, the Borrower shall:
Section 5.1 Financial Statements. Deliver to the Bank in form
and detail satisfactory to the Bank:
(a) as soon as available, but not later than sixty (60)
days after the end of each calendar quarter and for that
portion of the calendar year ending with such quarter, a
statement of assets and liabilities of the Borrower as of the
close of such quarter, certified by the Borrower to the best of
his knowledge as being true and complete in all material
respects; and
(b) together with each statement of assets and
liabilities,
(i) a letter showing which assets he owns
individually, which assets his wife owns
individually and which assets he owns jointly
with his wife. Such assets shall be valued on a
basis consistent with that used in the
preparation of his March 31, 1994 statement of
assets and liabilities, except as explained in
any notes to the quarterly statement which such
letter accompanies; and
(ii) an update on the status of the audit by the
Internal Revenue Service of the Borrower's
federal tax returns (which update may be
included in the footnotes to such statement of
assets and liabilities; the level of disclosure
for such updates will be sufficient if the same
as for previous updates included in such
footnotes).
Section 5.2 Notices. Promptly notify the Bank of:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default
under, any contractual obligation of the Borrower which could
result in a Material Adverse Effect; and (ii) any litigation or
proceeding which may exist at any time between the Borrower and
any governmental authority which could result in a Material
Adverse Effect;
(c) the commencement of, or any material development in,
any litigation or proceeding affecting the Borrower (i) which
could reasonably be expected to have a Material Adverse Effect,
(ii) in which the relief sought is an injunction or other stay
of the performance of this Agreement, the Note or the Pledge
Agreement or (iii) any litigation involving any of the
Collateral Notes or any of the Letters of Credit (or other
promissory notes or Letters of Credit issued in the same
transaction in which the Borrower acquired the Collateral Notes
and the Letters of Credit; and
(d) any Material Adverse Effect subsequent to the date of
the most recent statement of assets and liabilities of the
Borrower delivered to the Bank pursuant to Section 5.1.
Each notice pursuant to this section shall be accompanied by a
written statement signed by the Borrower, setting forth details of the
occurrence referred to therein, and stating what action the Borrower
proposes to take with respect thereto and at what time. Each notice
under subsection 5.2(a) shall describe with particularity the provisions
of this Agreement, the Note or the Pledge Agreement that have been
breached.
Section 5.3 Payment of Obligations. Pay all taxes,
assessments, governmental charges and other obligations when due, except
as may be contested in good faith or those as to which a bona fide
dispute may exist.
Section 5.4 Further Assurances. Execute and deliver to the
Bank such further instruments and do such other further acts as the Bank
may reasonably request to carry out more effectively the purposes of this
Agreement and any agreements and instruments referred to herein.
Section 5.5 Notice to Pechiney and Escrow Agent. Deliver to
the Bank within ten (10) Business Days after the Closing Date evidence
satisfactory to the Bank that the Borrower has notified Pechiney that the
Collateral Notes have been pledged to the Bank as collateral and that the
Bank is holding the Collateral Notes on its own behalf and as collateral
agent for any assignees permitted under this Agreement.
Section 5.6 Amendments to Escrow Agreement. Not amend the
Escrow Agreement in any manner that would change the terms of the
Collateral Notes pledged to the Bank under the Pledge Agreement and,
promptly after each amendment to the Escrow Agreement, deliver to the
Bank a copy of each such amendment.
Section 5.7 Change in State of Residence. Not change the
state of his principal place of residence without (a) notifying the Bank
in writing prior to such change, (b) designating in writing an agent for
service of process in the State of New York and notifying the Bank of
same and (c) delivering to the Bank the written acceptance of such agent.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. (i) The Borrower fails to pay any
amount of principal of the Loan when due, whether at maturity,
as a result of acceleration or otherwise, including any
mandatory prepayment; or (ii) the Borrower fails to pay, within
3 Business Days after the same is due, any interest, or other
amount payable hereunder, under the Note or under the Pledge
Agreement; provided, however, that it shall not be an Event of
Default under clause (ii) of this subsection (a) if (w) the
failure to pay interest under the Note or hereunder results
from a failure of Pechiney to pay interest owed to the Borrower
under one or more Collateral Notes (a "Missed Interest
Payment"), (x) the Borrower notifies the Bank of same pursuant
to Section 2.3 hereof and directs the Bank to demand payment
under the Collateral Notes and/or to draw under the Letters of
Credit for the Missed Interest Payment, (y) the Bank takes such
action and receives the requested payment from Pechiney or is
paid the amount of the drawing by BNP and (z) such amount,
together with any amount paid by the Borrower in respect of
interest then due hereunder, is equal to or greater than the
amount then owed to the Bank as interest hereunder; or
(b) Representation or Warranty. Any representation or
warranty by the Borrower made or deemed made herein or in the
Pledge Agreement, or which is contained in any certificate,
document or financial or other statement furnished by the
Borrower, at any time under this Agreement or the Pledge
Agreement, proves to have been incorrect or misleading in any
material respect on or as of the date made or deemed made; or
(c) Other Default. The Borrower (i) fails to perform or
observe Section 5.1 or 5.2, or (ii) fails to perform or observe
any other material term or covenant contained in this
Agreement, and not referred to in another subsection of this
Section 6.1, and such default continues unremedied for a period
of 20 days or (iii) fails to perform or observe any other term
or covenant contained in this Agreement, and not referred to in
clauses (i) or (ii) of this subsection (c) or in any other
subsection of this Section 6.1, and such default continues
unremedied for a period of 20 days after the Bank gives notice
to the Borrower of same; or
(d) Cross-Default. The Borrower (i) fails to make any
required payment when due in respect of any indebtedness or
contingent obligation having a principal or face amount of
[REDACTED ] or more when due (whether at scheduled maturity or
required prepayment or by acceleration, demand, or otherwise);
or (ii) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such
indebtedness or contingent obligation, and such failure
continues after the applicable grace or notice period, if any,
specified in the document relating thereto, if the effect of
such failure, event or condition is to cause, or to permit the
holder or holders of such indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or
beneficiaries) to cause such indebtedness to be declared to be
due and payable prior to its stated maturity, or such
contingent obligation to become payable or cash collateral in
respect thereof to be demanded; or
(e) Material Adverse Change. A Material Adverse Effect
occurs; or
(f) Insolvent Voluntary Proceedings. The Borrower (i)
becomes insolvent, or generally fails to pay, or admits in
writing his inability to pay, his debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences a proceeding under the
bankruptcy laws of any state or of the United States with
respect to himself; or (iii) takes any action to effectuate or
authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
bankruptcy proceeding is commenced or filed against the
Borrower or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a
substantial part of the Borrower's properties, and any such
proceeding or petition is not dismissed, or such writ,
judgment, warrant of attachment, execution or similar process
is not released, vacated or fully bonded within 90 days after
commencement, filing or levy; (ii) the Borrower admits the
material allegations of a petition against him in any
insolvency proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any insolvency proceeding; or
(iii) the Borrower acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar person for a
substantial portion of his property or business; or
(h) Monetary Judgments; Liens. One or more final (non-
interlocutory) judgments, orders or decrees is entered against
the Borrower or a Lien is filed against property of the
Borrower involving in the aggregate a liability (not fully
covered by independent third-party insurance) as to any single
or related series of transactions, incidents or conditions, of
[ REDACTED ] or more, and the same remains unvacated and
unstayed pending appeal (if a judgment) or unbonded (if a Lien)
for a period of 10 days after the entry thereof, or
(i) Pledge Agreement. Any provision of the Pledge
Agreement ceases to be valid and binding on or enforceable
against the Borrower, or the Pledge Agreement ceases to create
a valid security interest in the Collateral Notes or such
security interest ceases for any reason to be a perfected and
first priority security interest, except if the Bank fails to
take any action exclusively in its control.
Section 6.2 Remedies. If any Event of Default occurs, the
Bank may:
(a) declare the unpaid principal amount of the Loan, all
interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under the Note and the Pledge
Agreement to be immediately due and payable without
presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower; and
(b) exercise all rights and remedies available to it
hereunder, under the Note and under the Pledge Agreement or
applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in
paragraph (f) or (g) of Section 6.1 above (in the case of clause (i) of
paragraph (g) upon the expiration of the 90-day period mentioned
therein), the obligation of the Bank to extend credit to the Borrower
shall automatically terminate without notice to the Borrower and the
unpaid principal amount of the Loan and all interest and other amounts
due under this Agreement shall automatically become due and payable
without further act of the Bank and without notice to the Borrower; and
provided, further, that the Bank will not accelerate the Collateral Notes
or draw under the Letters of Credit for the principal amount owed under
the Collateral Notes as a result solely of a Missed Interest Payment
unless a Reinstatement Event of Default then exists.
Section 6.3 Rights Not Exclusive. The rights provided in this
Agreement, the Note and the Pledge Agreement are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by
law or in equity, or under any other instrument, document or agreement
now existing or hereafter arising.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment and Waiver. This Agreement may be
amended, changed, waived, discharged or terminated only by an instrument
in writing signed by the parties hereto.
Section 7.2 Costs and Expenses. The Borrower shall:
(a) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank,
including, without limitation, the fees and disbursements of
counsel and paralegals, in connection with the development,
preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to, this
Agreement, the Note and the Pledge Agreement, the review of the
Collateral Notes and Letters of Credit and any amendment
thereof, the transfer of the Letters of Credit to the Bank as
beneficiary and the consummation of the transactions
contemplated hereby;
(b) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by it,
including, without limitation, the fees and disbursements of
counsel and paralegals, in connection with the enforcement,
attempted enforcement or preservation of any rights or remedies
(including in connection with any "workout," or restructuring
regarding the Loan and any insolvency proceeding or appellate
proceeding) under this Agreement, the Note or the Pledge
Agreement or in respect of the Collateral Notes or the Letters
of Credit; and
(c) reimburse the Bank within five (5) Business Days
after demand for all costs and expenses incurred by the Bank in
connection with litigation involving the Collateral Notes or
the Letters of Credit, whether related to enforcement thereof
or otherwise.
Section 7.3 Indemnification. The Borrower shall pay, defend,
indemnify and hold the Bank and its officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, costs, charges, expenses or
disbursements of any kind or nature arising out of a drawing by the Bank
under a Letter of Credit after receiving a Direction to Demand Payment,
Accelerate or Draw (all of the foregoing, collectively, the "Indemnified
Liabilities"); PROVIDED that the Borrower shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities arising from the gross negligence or willful misconduct of
such Indemnified Person. The obligations in this Section 7.3 shall
survive payment and cancellation of all other obligations hereunder. At
the election of any Indemnified Person, the Borrower shall defend such
Indemnified Person using legal counsel satisfactory to such Indemnified
Person in such person's sole discretion and at the sole cost and expense
of the Borrower. All amounts owing under this Section 7.3 shall be paid
within 15 days after demand therefor.
Section 7.4 GOVERNING LAW AND SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. THE BORROWER AND THE BANK EACH HEREBY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF (i) ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ SITTING IN NEW YORK CITY AND (ii) THE UNITED STATES COURTS
SITTING IN NEW YORK CITY, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST HIM
OR IT HEREUNDER UNDER THE NOTE OR UNDER THE PLEDGE AGREEMENT. IN
CONNECTION THEREWITH, THE BORROWER AND THE BANK EACH WAIVES (A) ALL
OBJECTIONS TO VENUE IN THE COURTS DESCRIBED IN CLAUSES (i) AND (ii) OR
THE PRECEDING SENTENCE AND (B) ANY ARGUMENT THAT SUCH A FORUM IS
INCONVENIENT. SERVICE OF SUMMONS OR OTHER LEGAL PROCESS MAY BE MADE BY
MAILING A COPY OF ANY SUMMONS OR OTHER LEGAL PROCESS IN ANY SUCH ACTION
OR PROCEEDING TO THE BORROWER OR THE BANK IN ANY SUCH ACTION OR
PROCEEDING TO THE BORROWER OR THE BANK (AS THE CASE MAY BE) BY CERTIFIED
MAIL. THE MAILING, AS HEREIN PROVIDED, OF SUCH SUMMONS OR OTHER LEGAL
PROCESS IN ANY SUCH ACTION OR PROCEEDING SHALL BE DEEMED PERSONAL SERVICE
AND ACCEPTED BY THE BORROWER OR THE BANK (AS THE CASE MAY BE) FOR ALL
PURPOSES OF ANY SUCH ACTION OR PROCEEDING. FINAL JUDGMENT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT, AND A CERTIFIED OR EXEMPLIFIED COPY OF A FINAL JUDGMENT SHALL
BE CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF ANY INDEBTEDNESS
OF THE BORROWER OR THE BANK (AS THE CASE MAY BE) IN ANY SUCH ACTION OR
PROCEEDING. THE BORROWER AND THE BANK EACH AGREES TO BRING ANY ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, OR ANY RELATED
DOCUMENTS EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES FEDERAL COURTS SITTING IN NEW YORK, NEW YORK.
Section 7.5 Set-Off. If an Event of Default exists, the Bank
is authorized to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and
other indebtedness at any time owing to, the Bank to or for the credit or
the account of the Borrower against any and all obligations owing to the
Bank, now or hereafter existing, whether or not the Bank has made demand
under this Agreement, the Note or the Pledge Agreement and although such
obligations may be contingent or unmatured. The Borrower hereby waives
prior notice of such action. The Bank, however, agrees promptly to
notify the Borrower after any such set-off, provided, however, that the
failure to give such notice shall not affect the validity of such set-
off. The rights of the Bank under this Section 7.5 are in addition to
the other rights and remedies (including other rights of set-off) which
the Bank may have.
Section 7.6 Waiver. No failure or delay on the part of the
Bank or the Borrower in exercising any right, power or privilege under
this Agreement and no course of dealing between the Borrower or any other
person and the Bank or any other person shall operate as a waiver hereof
or thereof.
Section 7.7 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns,
except that the Borrower shall not be entitled to assign or
transfer all or any of his rights, benefits or obligations
hereunder, except for his death or mental incapacity.
(b) The Bank may not assign or otherwise transfer any of
its rights or obligations under this Agreement except as
provided in this Section 7.7(b):
(i) Prior to approaching any Eligible Institution
for the purpose of assigning a portion of its interest herein
or selling a participation in its rights and obligations under
this Agreement, the Bank shall discuss with the Borrower the
names of such potential participants or assignees. The Bank
shall not assign or sell a participation in its rights and
obligations under this Agreement to any person unless the
Borrower shall have consented thereto (which consent shall not
be unreasonably withheld).
(ii) The Borrower shall be given prompt written
notice of any grant of any such participation or assignment,
which notice shall include (x) the name and jurisdiction of
organization of the participant and (y) the amount of such
participation or assignment.
(iii) The Bank agrees that:
(A) it will not assign an interest in, or sell
a participation in, the Loan in an amount less than
$15,000,000;
(B) it will at all times retain not less than
$15,000,000 of the Loan;
(C) it will provide in any assignment or
participation agreement with any assignee or participant that
such assignee or participant may not make a subparticipation or
assign any portion of its interest in the Loan if, after giving
effect to such participation or assignment, such participant or
assignee would hold less than $15,000,000 of the Loan;
(D) the Bank will not assign an interest or
sell a participation in the Loan to any assignee or participant
who would be entitled to receive additional compensation under
Section 2.10 at the time of such assignment or sale by the
Bank, nor to any assignee or participant who would find it
unlawful or impossible to make, maintain or fund its assigned
interest or participation in the Loan at a rate based on LIBOR
as provided in Section 2.11, at the time of such assignment or
sale by the Bank;
(E) with respect to any matter on which the
Bank and any assignee or participant is required to vote or is
solicited to consent pursuant to the terms of a participation
agreement or an assignment agreement, as the case may be,
between the Bank and such person, if the matter to be decided
is one that does not require the unanimous consent of all
assignees or participants, financial institutions holding 51%
of the outstanding Loan shall decide the issue, provided that
such 51% includes the Bank; and
(F) in any participation agreement or
assignment agreement with any participant or assignee, as the
case may be, the Bank will:
(x) require that any bank organized outside
the United States will deliver to the Bank with a copy to
the Borrower Internal Revenue Service Form 4224 or 1001,
duly completed and signed; and
(y) provide that each participant or assignee,
as the case may be, will agree to be bound by all the
terms of this Agreement as if it were a signatory hereto.
(iv) The Bank may, in connection with any proposed
participation or assignment, disclose to the proposed
participant or assignee any information relating to the
Borrower furnished to the Bank by or on behalf of the Borrower;
PROVIDED, that prior to any such disclosure, the proposed
participant or assignee shall agree in writing to preserve the
confidentiality of any confidential information relating to the
Borrower received by it from the Bank to the same extent as is
required of the Bank.
(v) The Bank shall act as agent in connection with
any transfer permitted hereunder and the administration of the
Loan and shall remain the holder of the Collateral Notes and
act as collateral agent of the Collateral Notes holding the
same for its benefit and the benefit of the permitted assignees
and participants hereunder. The Borrower shall not be required
to deal with any participant or assignee in connection with the
administration of the Loan, and each assignment agreement or
participation agreement shall provide that each such assignee
or participant shall deal solely with the Bank as agent and not
directly with the Borrower.
Section 7.8 Confidentiality. The Bank agrees to take normal
and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" by the
Borrower and provided to it by the Borrower in connection with this
Agreement, and it shall not use any such information for any purpose or
in any manner other than pursuant to the terms contemplated by this
Agreement; except to the extent such information (i) was or becomes
generally available to the public other than as a result of a disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis
from a source other than the Borrower, PROVIDED that such source is not
bound by a confidentiality agreement with the Borrower known to the Bank;
PROVIDED FURTHER, HOWEVER, that the Bank may disclose such information:
(A) at the request or pursuant to any requirement of any governmental
authority to which the Bank is subject or in connection with an
examination of the Bank by any such authority; (B) pursuant to subpoena
or other court process; (C) when required to do so in accordance with the
provisions of any applicable requirement of law; (D) to the Bank's
independent auditors and other professional advisors, all of whom shall
have been advised of the confidential nature of such information; and (E)
to proposed assignees or participants in accordance with
Subsection 7.7(b)(iv). It is understood that the financial information
to be delivered pursuant to Section 5.1 or any similar financial
information delivered prior to the Closing Date shall be deemed to have
been identified as confidential by the Borrower.
Section 7.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
Section 7.10 Severability. Any provision of this Agreement
which is illegal, invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without invalidating the remaining
provisions hereof or affecting the legality, validity or enforceability
of such provision in any other jurisdiction.
Section 7.11 Notices. Unless specifically indicated otherwise
herein, all notices, requests and other communications provided for
hereunder shall be in writing (including, without limitation, by
facsimile transmission) and shall be sent to the parties hereto at the
address for notice specified beneath their names on the signature pages
hereof or to such other address as may be designated by a party in a
written notice to the other party.
Any notice or other communication hereunder shall be deemed
given when delivered to the addressee in writing or when given by
telephone immediately confirmed in writing by tested telex, facsimile
(electronic answer back received) or other telecommunication device.
Section 7.12 Document Stamp Taxes. The Borrower represents
and warrants to the Bank that this Agreement has been executed and
delivered by the Borrower to the Bank outside of the State of Florida,
and that the Note and the Pledge Agreement have been or shall be executed
and delivered by the Borrower to the Bank outside of the State of
Florida. The Borrower agrees to indemnify, defend and hold the Bank
harmless against any Florida documentary stamp taxes that may be assessed
or asserted against this Agreement, the Note, the Pledge Agreement, the
Loan, or any such security therefor, or any renewal, modification or
amendment thereof, or any renewal, modification or amendment thereof from
time to time, and against any and all liability, costs, attorneys' fees,
penalties, interest or expenses relating to any such Florida documentary
stamp taxes, as and when the same may be assessed or asserted.
Section 7.13 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS (i) UNDER THIS AGREEMENT, THE NOTE OR THE
PLEDGE AGREEMENT OR (ii) ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, the parties hereto have caused the
Agreement to be executed and delivered as of the date first above
▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
c/o Triarc Companies, Inc
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
with a copy to
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NATIONSBANK OF FLORIDA, N.A.
By:
Title: Authorized Signatory
Address for Notices:
NationsBank of Florida, N.A.
Private Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Addresses for Payment:
NationsBank of Florida, N.A.
Private Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: [ REDACTED ]
Telecopier No.: [ REDACTED ]
ABA #: [ REDACTED ]
Account No.: [ REDACTED ]
Re: ▇▇▇▇▇▇ ▇▇▇▇▇ Loan
# [ REDACTED ], Note # [ REDACTED ]
AMENDMENT NO. 1 TO
TERM LOAN AGREEMENT
AMENDMENT NO. 1 dated January 18, 1996, to the TERM LOAN
AGREEMENT dated as of July 29, 1994 (the "LOAN AGREEMENT"), by and
between ▇▇▇▇▇▇ ▇▇▇▇▇ (the "BORROWER") and NATIONSBANK OF FLORIDA, N.A.
(the "BANK").
The Borrower and the Bank are parties to the Loan Agreement,
pursuant to which the Bank made a term loan to the Borrower in the
original principal amount of $102,000,000. The Borrower has requested
that NationsBank, N.A., an affiliate of the Bank (the "CAROLINA BANK"),
provide a revolving credit facility to the Borrower and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
+In accordance with such request, the Borrower and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Carolina Bank are entering into a Credit Agreement dated as of January
18, 1996 (such Agreement, as amended or otherwise modified from time to
time, being hereinafter referred to as the "CREDIT AGREEMENT"), pursuant
to which the Carolina Bank has agreed to make loans (the "DEMAND LOANS"),
to the Borrower and ▇▇▇▇▇▇▇ ▇▇▇▇▇ in an aggregate principal amount at any
one time outstanding not to exceed the amount of the Commitment (as
defined in the Credit Agreement). It is a condition precedent to the
making of any Demand Loan by the Carolina Bank that, among other things,
the Loan Agreement be amended to provide that any "Event of Default"
under the Credit Agreement shall constitute an Event of Default under the
Loan Agreement and to amend certain other provisions of the Loan
Agreement as hereinafter set forth. Accordingly, the Borrower and the
Bank hereby agree as follows:
1. DEFINITIONS. All terms used herein which are defined in
the Loan Agreement and not otherwise defined herein are used herein as
defined therein.
2. ADDITIONAL DEFINITIONS. Section 1.1 of the Credit
Agreement is hereby amended by adding the following definitions (in
appropriate alphabetical order):
""CAROLINAS AGENT" means NationsBank, N.A., acting as
collateral agent under the Triarc Pledge Agreement.
"COLLATERAL AGENT" means the Bank, acting as collateral agent
under the Pledge Agreement.
"DEMAND LOANS" means the loans made by NationsBank, N.A.
pursuant to the Triarc Credit Agreement.
"DEPOSITARY BANK" means NationsBank of Texas, N.A., as
depositary bank pursuant to the Pledge Agreement.
"DWG" means DWG Acquisition Group, L.P., a Delaware
limited partnership.
"PECHINEY" means Pechiney Corporation, a Delaware
corporation.
"PECHINEY PROCEEDS" means any principal of or interest
on a Collateral Note, any drawing on a Letter of Credit or any
other proceeds received in respect of a Collateral Note or a
Letter of Credit.
"TRIARC CREDIT AGREEMENT" means the Credit Agreement
dated as of January 18, 1996, by and among ▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ and NationsBank, N.A., as amended or otherwise
modified from time to time.
"TRIARC PLEDGE AGREEMENT" means the Pledge and Security
Agreement made by DWG in favor of NationsBank, N.A., as
collateral agent for itself and for NationsBank of Florida,
N.A., in respect of certain shares of stock issued by Triarc
Companies, Inc., as amended or otherwise modified from time to
time."
3. PAYMENT UNDER COLLATERAL NOTES AND LETTERS OF CREDIT. The
last two sentences of the first paragraph of Section 2.3 are hereby
deleted in their entirety, and the following hereby substituted therefor:
"The parties hereby confirm that pursuant to the Pledge Agreement,
(i) the Borrower shall receive all payments by Pechiney of
interest on the Collateral Notes, subject to the provisions of
Section 6 of the Pledge Agreement, Section 6.1(a) hereof and
the other provisions of this Section 2.3, (ii) the Depositary
Bank shall receive all payments by Pechiney of principal of the
Collateral Notes, and (iii) the Collateral Agent shall receive
the proceeds of all drawings on the Letters of Credit.
Pechiney Proceeds in respect of interest shall be applied in
accordance with Sections 6 and 11(d) of the Pledge Agreement
and Sections 2.6 and 6.2 hereof. Pechiney Proceeds in respect
of principal shall be applied in accordance with Sections 2.6
(b) and (c) and 6.2 hereof, Sections 6 and 11(d) of the Pledge
Agreement and Sections 2.5 and 6.2 of the Triarc Credit
Agreement."
4. AMENDMENT TO MANDATORY PREPAYMENT. Section 2.6 of the Loan
Agreement is hereby amended by deleting it in its entirety and by
substituting therefor the following:
"Section 2.6MANDATORY PREPAYMENT. (a) If, as a result of
acceleration, voluntary prepayment, scheduled payment or
otherwise in respect of the Collateral Notes, Pechiney at any
time or from time to time makes any payment of principal of a
Collateral Note (each a "PRINCIPAL PAYMENT"), the Borrower
shall immediately prepay the principal amount of the Note.
Such prepayment shall be equal to 85% of such Principal
Payment, and, provided that no Default (under either this
Agreement or under the Triarc Credit Agreement) or Event of
Default has occurred and is continuing (and the Borrower shall
immediately provide to the Bank a certificate confirming that
no Default or Event of Default has occurred and is continuing),
promptly and in any event within three Business Days an amount
(the "EXCESS PORTION") equal to 15% of such Principal Payment
shall be paid to the Borrower. The Bank agrees to direct the
Depositary Bank and the Collateral Agent to pay the Excess
Portion of the Principal Payment to the Borrower in accordance
with, but subject to, the foregoing sentence. It is understood
and agreed that if the amount equal to 85% of the Principal
Payment exceeds the outstanding principal amount of the Note,
an amount equal to such excess shall be paid by the Borrower to
NationsBank, N.A. for application against the aggregate
principal amount of the Demand Loans outstanding and other
obligations under the Triarc Credit Agreement.
.
(b) If any Default or Event of Default has occurred and
is continuing when any Pechiney Proceeds are received or
otherwise being held by the Depositary Bank, the Collateral
Agent or the Bank, the entire amount of such Pechiney Proceeds
shall be paid to the Bank and applied by the Bank as a payment
of principal of the Note or applied by the Bank as a payment of
interest on the Note or other obligations of the Borrower
hereunder, as the Bank in its sole discretion shall determine
(it being understood that the Borrower shall have no right
whatsoever to receive any portion of such proceeds, except
pursuant to Section 15 of the Pledge Agreement). If the
Pechiney Proceeds exceed the principal of and interest on the
Note and the other obligations of the Borrower hereunder, the
Borrower shall pay an amount equal to such excess to
NationsBank, N.A. for application against the aggregate
principal amount of Demand Loans and other obligations
outstanding under the Triarc Credit Agreement. It is also
understood that upon the payment of any Pechiney Proceeds in
respect of the principal of the Collateral Notes, NationsBank,
N.A. may at any time thereafter decrease the Original Advance
Percentage (as defined in the Triarc Credit Agreement) and the
Margin Call Percentage (as defined in the Triarc Credit
Agreement)(in either case, to such percentage as the Bank may
in its sole and absolute discretion determine) by giving either
Borrower thereunder notice of such revised percentage. If such
a decrease results in a "Default" under the Triarc Credit
Agreement, then (i) the decrease will constitute a Default
hereunder, (ii) so long as any such "Default", or any other
Default or Event of Default, shall occur and be continuing, the
Borrower shall no right to receive any portion of the Pechiney
Proceeds, (iii) if any "Event of Default" (as defined in the
Triarc Credit Agreement), or any other Event of Default shall
occur and be continuing, such Pechiney Proceeds may be applied
to the payment of the Borrower's obligations hereunder or to
the obligations under the Triarc Credit Agreement, and (iv) if
such "Default" under the Triarc Credit Agreement is cured or
waived, and no other Default, Event of Default or "Event of
Default" (as defined in the Triarc Credit Agreement) has
occurred and is continuing, the Bank will upon request promptly
and in any event within three Business Days return to the
Borrower the Excess Portion of such Principal Payment, to the
extent not applied to the Borrower's obligations hereunder or
under the Triarc Credit Agreement in accordance with clause
(iii) hereof (and the Bank agrees to direct the Depositary Bank
and the Collateral Agent to pay the Excess Portion of the
Principal Payment to the Borrower in accordance with, but
subject to, this clause (iv)).
(c) Each prepayment shall be accompanied by the payment of
accrued interest to the date of such prepayment on the amount
prepaid, and shall be subject to the provisions of Section 2.12
hereof."
5. AMENDMENT TO REPRESENTATION EVENT OF DEFAULT. Subsection
(b) of Section 6.1 of the Loan Agreement is hereby amended by deleting it
in its entirety and by substituting therefor the following:
"(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by the Borrower made or deemed made herein or in the
Pledge Agreement, or by DWG made or deemed made in the Triarc
Pledge Agreement, or which is contained in any certificate,
document or financial or other statement furnished by the
Borrower or DWG at any time under this Agreement, the Pledge
Agreement or the Triarc Pledge Agreement, proves to have been
incorrect or misleading in any material respect on or as of the
date made or deemed made; or"
6. AMENDMENT TO COVENANT EVENT OF DEFAULT. Subsection (c) of
Section 6.1 of the Loan Agreement is hereby amended by deleting it in its
entirety and by substituting therefor the following:
"(c) OTHER DEFAULT. (i) The Borrower fails to
perform or observe Section 5.1 or 5.2, or (ii) the
Borrower fails to perform or observe any other material
term or covenant contained in this Agreement, and not
referred to in another subsection of this Section 6.1,
and such default continues unremedied for a period of 20
days, or (iii) the Borrower fails to perform or observe
any other term or covenant contained in this Agreement or
in the Pledge Agreement and not referred to in clauses
(i) or (ii) of this subsection (c) or in any other
subsection of this Section 6.1, and such default
continues unremedied for a period of 20 days after the
Bank gives notice to the Borrower of same, or (iv) DWG
fails to perform or observe any term or covenant
contained in the Triarc Pledge Agreement and such default
continues unremedied for a period of 20 days after the
Bank gives notice to DWG of same; or"
7. ADDITIONAL EVENTS OF DEFAULT. Section 6.1 of the Loan
Agreement is hereby amended (a) by deleting the period at the end of
subsection (i), and by substituting "; or" in lieu thereof, and (b) by
inserting immediately after subsection (i) of Section 6.1 of the Loan
Agreement the following:
"(j) TRIARC PLEDGE AGREEMENT. Any provision of the
Triarc Pledge Agreement ceases to be valid and binding on or
enforceable against DWG, the Triarc Pledge Agreement ceases to
create a valid security interest in the collateral purported to
be covered thereby or such security interest ceases for any
reason to be a perfected and first priority security interest,
except if the Bank fails to take any action exclusively within
its control; or
(k) TRIARC CREDIT AGREEMENT. An "Event of Default"
shall occur under the Credit Agreement dated as of January 18,
1996, as amended or otherwise modified from time to time,
between ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and NationsBank, N.A."
8. ADDITIONAL REMEDIES. Section 6.2 of the Loan Agreement is
hereby amended (a) by adding the word "and" at the end of subsection (b)
thereof, and (b) by inserting immediately after subsection (b) of Section
6.2 of the Loan Agreement and before the proviso the following:
"(c) enforce, as Collateral Agent, and direct the
Carolinas Agent to enforce, all of the Liens and security
interests pursuant to the Pledge Agreement and the other
Loan Documents (as defined in the Triarc Credit
Agreement);"
9. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Bank as follows:
(a) The representations and warranties made by the
Borrower in Article IV of the Loan Agreement, the Pledge Agreement and in
each other related document, certificate and other writing delivered to
the Bank on or prior to the date hereof are true and correct on and as of
the date hereof as though made on and as of the date hereof (except to
the extent such representations and warranties expressly relate to an
earlier date). No Default or Event of Default has occurred and is
continuing, or would result from the execution and delivery of this
Amendment No. 1.
(b) The Borrower has the legal capacity to execute,
deliver and perform this Amendment, and to perform the Loan Agreement, as
amended hereby.
(c) The execution, delivery and performance by the
Borrower of, and the consummation of each transaction contemplated by,
this Amendment and the Loan Agreement, as amended hereby, (i) require no
governmental authority or other regulatory body approval or action by or
in respect of any governmental authority or other regulatory body and
(ii) do not (A) contravene, or constitute a default under, any provision
of any applicable law or regulation, or any agreement, indenture,
judgment, order, decree or other instrument binding upon the Borrower or
his properties, or (B) result in the creation or imposition of any Lien
on any asset of the Borrower.
(d) This Amendment has been duly executed and delivered
by the Borrower. Each of this Amendment and the Loan Agreement, as
amended hereby, constitutes the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its
terms.
10. EXPENSES. The Borrower will pay on demand all fees, costs
and expenses of the Bank in connection with the preparation, execution
and delivery of this Amendment and all other agreements, instruments and
other documents related to the foregoing, including, without limitation,
the reasonable fees, client charges and other expenses of counsel to the
Bank.
11. INDEMNIFICATION. It is understood and agreed that Section
7.3 of the Loan Agreement shall benefit both the Bank and the Collateral
Agent, and every reference therein to "Bank" shall be deemed to include
"the Collateral Agent."
12. MISCELLANEOUS.
(a) CONTINUED EFFECTIVENESS OF THE LOAN AGREEMENT.
Except as otherwise expressly provided herein, the Loan Agreement and the
other related agreements, instruments and documents (the "LOAN
DOCUMENTS") are, and shall continue to be, in full force and effect and
are hereby ratified and confirmed in all respects except that on and
after the date hereof (i) all references in the Loan Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as amended
by this Amendment, and (ii) all references in the other Loan Documents to
which the Borrower is a party to the "Loan Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Amendment.
Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any
right, power or remedy of the Bank under the Loan Agreement or any other
Loan Document, nor constitute a waiver of any provision of the Loan
Agreement.
(b) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(c) HEADINGS. Section headings herein are included for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the law of the State of New York.
(e) EFFECTIVENESS. This Amendment shall become effective
on the date as of which the Bank shall have received this Amendment, duly
executed by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above
written.
▇▇▇▇▇▇ ▇▇▇▇▇
NATIONSBANK OF FLORIDA, N.A.
By:
Title: Vice President
REDACTED
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated January 25, 1996, by and between
NATIONSBANK OF FLORIDA, N.A. (the "FLORIDA BANK"), NATIONSBANK OF
FLORIDA, N.A., as agent for NationsBank, N.A. and NationsBank of Florida,
N.A. (the "FLORIDA AGENT"), NATIONSBANK, N.A. (the "CAROLINAS BANK";
together with the Florida Bank, the "BANKS") and NATIONSBANK, N.A., as
agent for NationsBank of Florida, N.A. and NationsBank, N.A. (the
"CAROLINAS AGENT"; together with the Florida Agent, the "AGENTS").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, the
"BORROWERS") and the Carolinas Bank are parties to the Credit Agreement
dated as of January 18, 1996 (such Agreement, as amended or otherwise
modified from time to time, being hereinafter referred to as the
"REVOLVING CREDIT AGREEMENT"), pursuant to which the Carolinas Bank has
agreed to make loans (the "DEMAND LOANS") to the Borrowers in an
aggregate principal amount at any one time outstanding not to exceed the
amount of the Commitment (as defined in the Credit Agreement), which
Demand Loans will be evidenced by a demand promissory note dated the date
hereof (as such demand promissory note may be modified or extended from
time to time, and any promissory note or notes issued in exchange or
replacement therefor, the "DEMAND NOTE"), made by the Borrowers to the
order of the Carolinas Bank and in the original principal amount of the
Commitment;
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇ and the Florida Bank are parties to the
Term Loan Agreement dated as of July 29, 1994 (such Agreement, as amended
or otherwise modified from time to time, being hereinafter referred to as
the "TERM AGREEMENT"; together with the Revolving Credit Agreement, the
"CREDIT AGREEMENTS"), pursuant to which the Florida Bank made a term loan
(the "TERM LOAN") to ▇▇▇▇▇▇ ▇▇▇▇▇ in the original principal amount of
$102,000,000, which Term Loan is evidenced by a term promissory note
dated June 29, 1994 (as such term promissory note may be modified or
extended from time to time, and any promissory note or notes issued in
exchange or replacement therefor, the "TERM NOTE"), made by ▇▇▇▇▇▇ ▇▇▇▇▇
to the order of the Florida Bank and in the original principal amount of
the Term Loan;
WHEREAS, it is a condition precedent to the making of any Demand
Loan pursuant to the Revolving Credit Agreement that (i) DWG Acquisition
Group, L.P., a Delaware limited partnership, shall have executed and
delivered to the Carolinas Agent a pledge and security agreement (as
amended or otherwise modified from time to time, the "TRIARC PLEDGE
AGREEMENT"), providing for the assignment to the Carolinas Agent, for the
benefit of the Carolinas Bank and the Florida Bank, and the grant to the
Carolinas Agent, for the benefit of the Carolinas Bank and the Florida
Bank, of a security interest in, certain of the outstanding shares of
capital stock issued by Triarc Companies, Inc., and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇
shall have executed and delivered to the Florida Agent an Amended and
Restated Pledge Agreement dated July 29, 1994, as amended and restated on
the date hereof (as so amended, and as hereafter amended or otherwise
modified from time to time, the "PECHINEY PLEDGE AGREEMENT"; together
with the Triarc Pledge Agreement, the "PLEDGE AGREEMENTS"), made by
▇▇▇▇▇▇ ▇▇▇▇▇ in favor of the Florida Agent, providing for the pledge to
the Florida Agent, for the benefit of the Carolinas Bank and the Florida
Bank, and the grant to the Florida Agent, for the benefit of the
Carolinas Bank and the Florida Bank, of a security interest in, certain
debt issued by Pechiney Corporation and the related letters of credit;
WHEREAS, the Banks and the Agents wish to set forth their
agreement as to the exercise of certain of their respective rights and
obligations with respect to the Credit Agreements, the Pledge Agreements
and the Collateral (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and plural forms of such terms:
"COLLATERAL" means the Triarc Collateral and the Pechiney
Collateral.
"FINANCING DOCUMENTS" means the Security Documents and the
Loan Documents.
"LOAN DOCUMENTS" means the Credit Agreements, the Notes and
all other instruments, agreements and documents executed and delivered
pursuant to any of the foregoing.
"NOTES" means the Demand Note and the Term Note.
"OBLIGATIONS" means (i) the obligations of the Borrowers and
DWG to pay, as and when due and payable (on demand, by mandatory
prepayment, by scheduled maturity or otherwise), all amounts from time to
time owing by them in respect of any Financing Document to which such
person or entity is a party, whether for principal, interest, fees or
otherwise, and (ii) the obligations of the Borrowers and DWG to perform
or observe all of their other obligations from time to time existing
under any Financing Document to which such person or entity is a party.
"PECHINEY COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
created by the Pechiney Pledge Agreement.
"SECURITY DOCUMENTS" means the Triarc Pledge Agreement, the
Pechiney Pledge Agreement, and all other instruments, agreements or
documents executed and delivered pursuant to either Pledge Agreement.
"TRIARC COLLATERAL" means all of the property (tangible and
intangible) purported to be subject to the lien or security interest
created by the Triarc Pledge Agreement.
2. NOTIFICATION AND ACKNOWLEDGMENT OF SECURITY INTEREST, ETC.
Pursuant to Sections 8-313 and 9-305 of the New York Uniform Commercial
Code:
(a) Each Bank hereby confirms, and notifies the Carolinas
Agent, that DWG has granted to the Carolinas Agent a lien on,
and security interest in, the Triarc Collateral, as collateral
security for all obligations now or hereafter existing under
the Credit Agreements, the Notes and the other Financing
Documents. The Carolinas Agent hereby (i) acknowledges that
from and after the date hereof, it shall, pursuant to Sections
8-313 and 9-305 of the New York Uniform Commercial Code, hold
all Collateral now or hereafter in its possession as Agent
under the Triarc Pledge Agreement for the benefit of each Bank,
and (ii) agrees, promptly upon the satisfaction in full of the
Obligations owing to the Carolinas Bank and the Carolinas Agent
after the termination of the Commitment, to deliver to the
Florida Bank upon request such of the proceeds of the Triarc
Collateral as shall not have been applied pursuant to the terms
of the Triarc Pledge Agreement or this Agreement to the payment
of any Obligations of the Borrowers.
(b) Each Bank hereby confirms, and notifies the Florida
Agent, that ▇▇▇▇▇▇ ▇▇▇▇▇ has granted to the Florida Agent a
lien on, and security interest in, the Pechiney Collateral, as
collateral security for all obligations now or hereafter
existing under the Credit Agreements, the Notes and the other
Financing Documents. The Florida Agent hereby (i) acknowledges
that from and after the date hereof, it shall, pursuant to
Sections 8-313 and 9-305 of the New York Uniform Commercial
Code, hold all Collateral now or hereafter in its possession as
Agent under the Pechiney Pledge Agreement for the benefit of
each Bank, and (ii) agrees, promptly upon the satisfaction in
full of the Obligations owing to the Florida Bank and the
Florida Agent, to deliver to the Carolinas Bank upon request
such of the proceeds of the Collateral as shall not have been
applied pursuant to the terms of the Pechiney Pledge Agreement
or this Agreement to the payment of any Obligations of ▇▇▇▇▇▇
▇▇▇▇▇.
3. ENFORCEMENT.Each Agent agrees to make such demands and give such
notices under the Security Documents as a Bank may request, and to take
such action to enforce the terms and conditions of such Security Document
and to foreclose upon, collect and dispose of the Collateral or any
portion thereof as may be directed by such Bank; PROVIDED, HOWEVER, that
(i) neither Agent shall be required to take any action that is in its
opinion contrary to law or to the terms of this Agreement, any Credit
Agreement or any other Financing Document, or which would in its opinion
subject it or any of its officers, employees or directors to liability,
and (ii) neither Agent shall be required to take any action under this
Agreement or any Security Document unless and until such Agent shall be
indemnified to its satisfaction by the requesting Bank against any and
all loss, cost, expense or liability in connection therewith.
4. APPLICATION OF PROCEEDS AND PAYMENTS. Anything in any Financing
Document to the contrary notwithstanding, all cash and other payments
received by an Agent pursuant to a Pledge Agreement shall be applied
based on the mutual agreement of the Banks and, after the payment in full
of all Obligations and, in the case of the Triarc Pledge Agreement, the
termination of the Commitment, any surplus proceeds and Collateral will
be distributed pursuant to the terms and conditions of the related Pledge
Agreement.
5. THE AGENTS. Each Bank agrees with each Agent as follows:
(a) The Carolinas Bank is hereby appointed Agent hereunder and under
the Triarc Pledge Agreement, and the Florida Bank is hereby appointed
Agent hereunder and under the Pechiney Pledge Agreement. Each of the
Banks irrevocably authorizes the Agents to act as the agent of such Bank
for the purposes of enforcing the rights and remedies of the Banks in
respect of the Collateral and the Security Documents. Each Agent agrees
to act as such upon the express conditions contained in this Section.
(b) Each Agent shall have and may exercise such powers hereunder as
are specifically delegated to such Agent by the terms hereof and the
applicable Security Document, together with such powers as are reasonably
incidental thereto. The Agents shall have no implied duties to the Banks
or any other person or entity, or any obligation to take any action
hereunder or under any other Financing Document, except any action
specifically provided by this Agreement and the Security Documents to be
taken by such Agent.
(c) The Banks agree to reimburse and indemnify each Agent ratably in
proportion to the Obligations owed under the Credit Agreements (i) for
any amounts not reimbursed by a Borrower for which an Agent is entitled
to reimbursement by a Borrower under any Financing Document, (ii) for any
other expenses incurred by an Agent on behalf of the Banks, in connection
with the preparation, execution, delivery, administration and enforcement
of this Agreement or any Security Document, and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against an Agent in any
way relating to or arising out of a Security Document, this Agreement or
any other or the transactions contemplated hereby or the enforcement of
any of the terms hereof or of any such other documents, PROVIDED that no
Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of either Agent.
(d) Either Agent may resign at any time by giving written notice
thereof to the Banks and the Borrowers. Upon any such resignation, the
Banks shall have the right to appoint, on behalf of the Banks, a
successor Agent. Such successor Agent shall be an affiliate of a Bank or
an Eligible Institution (as defined in each Credit Agreement) that owns
all or part of the Obligations. Upon the acceptance of any appointment
as an Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations hereunder and under the
applicable Security Documents. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section shall continue in
effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as an Agent hereunder.
7. NO THIRD PARTY BENEFICIARY. This Agreement is intended to
establish the relative rights and obligations of the Banks and the Agents
with respect to the subject matter hereof and, except as otherwise
expressly provided in Section 8 hereof, shall not be deemed to create any
rights or priorities in any other individual or entity.
8.DISPOSITION OF COLLATERAL. (a) It is the intention of the
Carolinas Bank and the Borrowers that if the Carolinas Bank wishes
to sell or otherwise dispose of Collateral during the occurrence and
continuance of an Event of Default (as defined in the Revolving
Credit Agreement), the Carolinas Bank will sell or otherwise dispose
of, or cause the Carolinas Agent to sell or otherwise dispose of,
the Triarc Collateral (the "RELATED TRIARC COLLATERAL") allocable
to the Borrowers (each a "DISPOSITION"), prior to the sale or other
disposition of, or prior to causing the Florida Agent to sell or
otherwise dispose of, the Pechiney Collateral.
(b) Notwithstanding anything in subsection 8(a) to the
contrary, the Carolinas Bank will have no obligation under subsection
8(a) whatsoever, and the Carolinas Bank may sell or otherwise dispose of,
or direct the sale or other disposition of, any of the Collateral in such
order as the Carolinas Bank may determine (in its sole and absolute
discretion) if the Carolinas Bank determines (which determination shall
be conclusive) that: (i) the prompt Disposition of the Related Triarc
Collateral may contravene any law, rule or regulation of any Governmental
Authority (as defined in the Revolving Credit Agreement), including,
without limitation, by reason of (A) the bankruptcy, insolvency,
reorganization or other event described in Section 6.1(e) or (f) of the
Revolving Credit Agreement (without regard to whether the grace period
referred to in Section 6.1(f) thereof has elapsed) with respect to DWG
Acquisition Group, L.P., (B) the commencement of any legal action or
proceeding that stays or enjoins, or seeks to stay or enjoin, the
Disposition of any of the Related Triarc Collateral, or (C) a possible
violation of the securities laws; (ii) the Disposition of any of the
Related Triarc Collateral (at such time as the Carolinas Bank may elect)
may subject it, the Carolinas Agent, any affiliate, or any officer,
employee or director of the foregoing, to liability; (iii) the value of
any of the Pechiney Collateral threatens to decline rapidly in value;
(iv) there is a reasonable good-faith basis to conclude that delaying the
sale or other disposition of the Pechiney Collateral until after the
Disposition of the Related Triarc Collateral may adversely affect the
ability of the Carolinas Bank to receive payment in full of the principal
of, and interest on, the Demand Loans and all of the related Obligations;
(v) either Borrower, DWG Acquisition Group, L.P. or any affiliate has
taken any action, or has failed to take any action requested by the
Carolinas Bank, that the Carolinas Bank reasonably believes may prevent,
delay, impede or materially and adversely affect the ability of the
Carolinas Bank or the Carolinas Agent to sell or otherwise dispose of the
Triarc Collateral; or (vi) the Carolinas Bank or the Carolinas Agent is
unable to sell the Triarc Collateral within a 90-day period, during which
the Carolinas Bank or the Carolinas Agent exercises reasonable, good
faith efforts to so sell the Triarc Collateral.
(c) It is understood and agreed that nothing in this Section 8
shall affect any of the other rights, remedies, powers and privileges of
the Florida Agent and Florida Bank with respect to the Pechiney
Collateral (including, without limitation, (i) to collect the interest on
the Collateral Notes (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (ii) to maintain its security interest in the Collateral
Account (as defined in the Pechiney Pledge Agreement), (iii) to draw on
the Letters of Credit (as defined in each Term Agreement), under the
circumstances provided in the Term Agreement or the Pechiney Pledge
Agreement, (iv) to sell or otherwise dispose of any of the Pechiney
Collateral upon the occurrence and continuance of an Event of Default
under the Term Agreement, and (v) to take any action and to execute such
other instrument as the Florida Agent may deem necessary or advisable to
accomplish the purposes of the Pechiney Pledge Agreement).
9. MISCELLANEOUS.
(a) No amendment, waiver or other modification of any provision of
this Agreement shall be effective unless it is in writing and signed by
each Bank and Agent. No waiver or approval by any Bank or Agent under
this Agreement shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions.
(b) No failure or delay on the part of any Bank or Agent in exercising
any power or right under this Agreement 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.
(c) All notices and other communications provided for hereunder shall
be in writing and shall be mailed, telecopied, telegraphed or delivered
to it at its address set forth on the signature pages of this Agreement;
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties complying as to
delivery with the terms of this subsection. All such notices and other
communications shall be effective (i) if mailed, three days after being
deposited in the mails, (ii) if telegraphed when delivered to the
telegraph company, or (iii) if telecopied, telexed or delivered, upon
delivery.
(d) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(e) Each Bank and Agent agrees to cooperate fully with each other
party hereto, to effect the intent and provisions of this Agreement and,
from time to time, to execute and deliver any and all other agreements,
documents or instruments, and to take such other actions, as may be
reasonably necessary or desirable to effectuate the intent and provisions
of this Agreement.
(f) The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof.
(g) This Agreement may be executed by the parties hereto in several
counterparts, and each such counterpart shall be deemed to be an original
and all of which shall constitute together but one and the same
agreement.
(h) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors and assigns.
(i) This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.
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.
NATIONSBANK, N.A., individually and as agent
By: ____________________________
Name: __________________________
Title: _________________________
All notices and other communications to:
NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, with copies to NationsBank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior
Vice President, Telecopier No. [ REDACTED ].
NATIONSBANK OF FLORIDA, N.A., individually and as
agent
By: ____________________________
Name: __________________________
Title: _________________________
All notices and other communications to:
NationsBank of Florida, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with copies to NationsBank of Florida, N.A., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President, Telecopier No. [ REDACTED ].
CONSENT
The undersigned hereby consents and agrees to the terms of the
Intercreditor Agreement to which this Consent is attached.
Date: January 25, 1996
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
DWG ACQUISITION GROUP, L.P.
By:___________________________
By:___________________________