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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 29, 1997
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________________ to_________________
Commission file number: 1-2207
TRIARC COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-0471180
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
280 Park Avenue, New York, New York 10017
(Address of principal executive offices) (Zip Code)
(212) 451-3000
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes (X) No ( )
There were 24,026,654 shares of the registrant's Class A Common Stock and
5,997,622 shares of the registrant's Class B Common Stock outstanding as of
August 31, 1997.
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<PAGE>
This Form 10-Q/A of Triarc Companies, Inc. ("Triarc") constitutes
Amendment No. 1 to Triarc's Quarterly Report on Form 10-Q which was filed with
the Securities and Exchange Commission on August 13, 1997. This amendment
updates the information required to be filed pursuant to Item 1 of the Form,
furnishes the information required to be filed pursuant to Item 4 of the Form
and includes for filing certain agreements and documents relating to Triarc and
its subsidiaries.
ITEM 1. LEGAL PROCEEDINGS
As reported in the 10-K and in Triarc's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 30, 1997 (the "10-Q"), on June 27, 1996, three
former directors of Triarc commenced an action against Nelson Peltz, Victor
Posner and Steven Posner. On May 20, 1997, plaintiffs filed a purported amended
complaint asserting additional claims against each of the defendants. The
amended complaint alleges, among other things, that the defendants conspired to
mislead the United States District Court for the Northern District of Ohio in
connection with the change of control of Triarc in 1993 and the termination of
the consent decree pursuant to which plaintiffs were initially named to Triarc's
Board of Directors. The amended complaint also alleges that Mr. Peltz and Steven
Posner conspired to frustrate collection of amounts owed by Steven Posner to the
United States. The amended complaint seeks, among other relief, damages against
Mr. Peltz and Steven Posner in an amount not less than $4.5 million; an order
stating that plaintiffs must be returned to Triarc's Board of Directors; and
rescission of the 1993 change of control transaction. Mr. Peltz's time to
respond to the amended complaint has not yet expired. In July 1997, plaintiffs
voluntarily dismissed their claims against Victor Posner without prejudice.
As more fully described in the 10-K, as of December 31, 1996, Triarc was
a party to three litigation proceedings involving Victor Posner ("Posner") and
entities owned or controlled by Posner (collective, the "Posner Actions"): (1)
an action commenced by Triarc in October 1995 in the Southern District of New
York against Posner and a related entity (the "New York Action"); (2) an
adversary proceeding (the "APL Litigation") brought against Triarc and
Chesapeake in connection with the bankruptcy proceeding of APL Corporation (the
"APL Bankruptcy Proceeding"); and (3) an adversary proceeding brought by Triarc
and Chesapeake in the APL Bankruptcy Proceeding against Posner and two
affiliated entities under Section 1144 of the Bankruptcy Code (the "1144
Proceeding"). In addition, Triarc and Chesapeake asserted claims against the
debtor in the APL Bankruptcy Proceeding (the "APL Bankruptcy Claims"). Triarc
had previously been a party to an action (the "Granada Action") in which Posner
had asserted certain claims against it. On June 6, 1997, Triarc entered into a
settlement agreement (the "Settlement Agreement") with Posner and two affiliated
entities (including APL). Pursuant to the Settlement Agreement, among other
things, (1) Posner and an affiliated entity paid a total of $2.5 million to
Triarc and Chesapeake; (2) the parties dismissed with prejudice each of the
Posner Actions; (3) Triarc and Chesapeake waived the APL Bankruptcy Claims; and
(4) the parties entered into releases with respect to the claims asserted in the
Posner Actions, the Granada Action, and the APL Bankruptcy Proceeding.
As reported in the 10-K and the 10-Q, in January 1997 the bankruptcy
trustee appointed in the case of Prime Capital Corporation ("Prime") (formerly
known as Intercapital Funding
<PAGE>
Resources, Inc.) commenced avoidance actions against SEPSCO and Chesapeake
Insurance Company Limited ("Chesapeake") (as well as actions against certain
current and former officers of Triarc or their spouses with respect to payments
made directly to them), claiming certain payments to them were preferences or
fraudulent transfers. Discovery is ongoing and the court has adjourned the trial
date from July 28, 1997 to October 27, 1997.
Snapple Beverage Corp. ("Snapple") and The Quaker Oats Company ("Quaker")
are defendants in a breach of contract case filed on April 16, 1997 in Rhode
Island Superior Court by Rhode Island Beverage Packing Company, L.P. ("RIB"),
prior to Triarc's acquisition of Snapple. RIB and Snapple disagree as to whether
the co-packing agreement between them had been amended to a) change the end of
the term from December 30, 1997 to December 30, 1999 and b) more than double
Snapple's take or pay obligations thereunder. RIB sets forth various causes of
action in its complaint: (1) that Snapple materially breached the agreement; (2)
that the agreement was reformed; (3) that Snapple as 50% owner of RIB had a
fiduciary duty, which it breached; (4) that the alleged amendment was relied
upon and therefore should be enforced; (5) that Snapple breached the RIB
Partnership Agreement; (6) that the defendants tortiously interfered with RIB's
contractual relation with its lender and with other prospective contractual
relations; and (7) that Quaker is liable for the actions of Snapple. RIB seeks
reformation of the contract, compliance with promises, consequential damages
including lost profits, attorney's fees and punitive damages. On June 16, 1997,
Snapple and Quaker filed an answer to the complaint in which they denied all
liability to RIB, denied the material allegations of the complaint, and raised
various affirmative defenses.
Snapple has established a reserve to cover future potential payments
relating to outstanding litigations and claims, including the RIB litigation
described above. The litigations and claims consist primarily of lawsuits filed
by distributors and co-packers and to a lesser extent, product liability,
commercial and labor related claims. It is the opinion of management of Triarc
and Snapple that the outcome of such matters will not have a material adverse
affect on Triarc's consolidated financial condition or results of operations.
On June 3, 1997, ZuZu, Inc. ("ZuZu") and its subsidiary, ZuZu Franchising
Corporation ("ZFC") commenced an action against Arby's, Inc. ("Arby's") and
Triarc in the District Court of Dallas County, Texas. Plaintiffs allege that
Arby's and Triarc conspired to steal the ZuZu Speedy Tortilla concept and
convert it to their own use. ZuZu seeks actual damages in excess of $70.0
million and punitive damages of not less than $200.0 million against Triarc for
its alleged appropriation of trade secrets, conversion and unfair competition.
Additionally, plaintiffs seek injunctive relief against Arby's and Triarc
enjoining them from disclosing or using ZuZu's trade secrets. ZFC also made a
demand for arbitration with the Dallas, Texas office of the American Arbitration
Association ("AAA") against Arby's alleging that Arby's had breached a Master
Franchise Agreement between ZFC and Arby's. Arby's and Triarc have moved to
dismiss or, in the alternative, abate the Texas court action on the ground that
a Stock Purchase Agreement between Triarc and ZuZu required that disputes be
subject to mediation in Wilmington, Delaware and that any litigation be brought
in the Delaware courts. On July 16, 1997, Arby's and Triarc commenced a
declaratory judgment action against ZuZu and ZFC in Delaware Chancery Court for
New Castle County seeking a declaration that the claims in both the litigation
and the
<PAGE>
arbitration must be subject to mediation in Wilmington, Delaware. In the
arbitration proceeding, Arby's has asserted counterclaims against ZuZu for
unjust enrichment, breach of contract and breach of the duty of good faith and
fair dealing and has successfully moved to transfer the proceeding to the
Atlanta, Georgia office of the AAA. Arby's and Triarc are vigorously contesting
plaintiffs' claims in both the litigation and the arbitration and believe that
plaintiffs' various claims are without merit.
On August 13, 1997, Ruth LeWinter and Calvin Shapiro commenced a
purported class and derivative action (the "Original LeWinter Action") against
certain current and former directors of the Company (and naming the Company as a
nominal defendant) in the United States District Court for the Southern District
of New York. The complaint alleges that the June 1994 award of stock options
(the "Performance Options") to Messrs. Peltz and May was invalid because the
shareholder approval of the awards was secured by a proxy statement which
misrepresented or omitted material facts, and that the terms of the 1994
compensation arrangements with Messrs. Peltz and May were violated by awarding
additional compensation of options and cash to Messrs. Peltz and May. The suit
also claims that members of the Board breached their duty of loyalty to Triarc
and its shareholders by acting fraudulently and/or in bad faith to deceive
Triarc shareholders into approving the 1994 grants through material
misrepresentations and omissions in the 1994 Proxy Statement and that the
directors breached their fiduciary duties by failing to disclose material facts
to the shareholders while seeking their approval. The suit further alleges that
the Board of Directors breached the fiduciary duty of care owed to the Company
and shareholders by approving the issuance of a materially false and misleading
proxy statement. In addition, the suit alleges that the Compensation Committee
of Triarc's Board of Directors (the "Compensation Committee") intentionally or
recklessly approved substantial awards of cash and options to Messrs. Peltz and
May contrary to the 1994 Proxy Statement and that the Compensation Committee had
a duty to either refrain from approving these awards or seek shareholder
approval of them, and that the failure to do so breached the duties of care,
loyalty, good faith, and fair dealing owed to the Company and its shareholders.
The complaint seeks, among other remedies, rescission of the 1994 option grants
and all grants of options made to Messrs. Peltz and May subsequent to June 9,
1994 and repayment by Messrs. Peltz and May of all cash bonuses they received
subsequent to June 9, 1994. On September 11, 1997, the plaintiffs amended their
complaint in the Original LeWinter Action to drop a current and a former
director as defendants. The amended complaint also alleges that defendants
fraudulently and in bad faith misrepresented the terms and the value of the
Performance Options, and that defendants acted improperly in awarding to Messrs.
Peltz and May certain other items of compensation. The amended complaint also
seeks additional relief, including repayment by Messrs. Peltz and May of all
compensation paid to them after June 9, 1994 and the amount by which the alleged
value of the Performance Options exceeded their value as set forth in the 1994
Proxy Statement. The defendants have not yet responded to the complaint or the
amended complaint.
Three other purported class and derivative actions have been filed in the
Delaware Court of Chancery, New Castle County, naming as defendants certain
current directors and certain former directors of the Company (and naming the
Company as a nominal defendant). The Delaware actions assert substantially
similar claims and seek substantially similar relief as the Original LeWinter
Action. Defendants have not yet responded to the Delaware complaints.
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
On June 4, 1997, Triarc held its Annual Meeting of Stockholders. At the
Annual Meeting,Nelson Peltz, Peter W. May, Hugh L. Carey, Clive Chajet, Stanley
R. Jaffe, Joseph A. Levato, David E. Schwab II, Raymond S. Troubh and Gerald
Tsai, Jr. were elected to serve as Directors. At the Annual Meeting, the
stockholders also approved proposal 2, amending Triarc's certificate of
incorporation to change the minimum number of directors to seven (7) and the
maximum number of directors to fifteen (15), and proposal 3, ratifying the
appointment of Deloitte & Touche, LLP as Triarc's independent certified public
accountants.
The voting on the above matters is set forth below:
NOMINEE VOTES FOR VOTES WITHHELD
Nelson Peltz 21,522,973 32,219
Peter W. May 21,522,973 32,219
Hugh L. Carey 21,518,033 37,159
Clive Chajet 21,523,107 32,085
Stanley R. Jaffe 21,523,107 32,085
Joseph A. Levato 21,523,107 32,085
David E. Schwab II 21,523,107 32,085
Raymond S. Troubh 21,520,407 34,785
Gerald Tsai, Jr. 21,521,607 33,585
Proposal 2 - There were 21,446,924 votes for, 83,779 votes against and 24,489
abstentions.
Proposal 3 - There were 21,528,402 votes for, 14,745 votes against and 12,045
abstentions.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
10.1 -Amended and Restated Credit Agreement dated as of August 15, 1997
among Mistic Brands, Inc., Snapple Beverage Corp. and Triarc
Beverage Holdings Corp., as the Borrowers, Various Financial
Institutions, as the Lenders, Donaldson, Lufkin & Jenrette
Securities Corporation, as the arranger for the Lenders, Morgan
Stanley Senior Funding, Inc. as co-arranger and as the
Documentation Agent for the Lenders, DLJ Capital Funding, Inc.,
as the Syndication Agent for the Lenders, and The Bank of New
York, as Administrative Agent for the Lenders.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed by the undersigned hereunto
duly authorized.
Date: September 29, 1997 TRIARC COMPANIES, INC.
By: __________________________
John L. Barnes, Jr.
Senior Vice President
and Chief Financial Officer
<PAGE>
Exhibit Index
Exhibit
No. Description Page No.
10.1 - Amended and Restated Credit Agreement dated as of August
15, 1997 among Mistic Brands, Inc., Snapple Beverage Corp.
and Triarc Beverage Holdings Corp., as the Borrowers,
Various Financial Institutions, as the Lenders, Donaldson,
Lufkin & Jenrette Securities Corporation, as the arranger for
the Lenders, Morgan Stanley Senior Funding, Inc. as co-
arranger and as the Documentation Agent for the Lenders, DLJ
Capital Funding, Inc., as the Syndication Agent for the
Lenders, and The Bank of New York, as Administrative Agent
<PAGE>
Exhibit 10.1
[EXECUTION COPY]
U.S. $380,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT,
dated as of August 15, 1997
(Amending and Restating the
Credit Agreement, dated as of May 22, 1997)
among
MISTIC BRANDS, INC.,
SNAPPLE BEVERAGE CORP. and
TRIARC BEVERAGE HOLDINGS CORP.,
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
MORGAN STANLEY SENIOR FUNDING, INC.,
as the Documentation Agent for the Lenders,
and
THE BANK OF NEW YORK,
as the Administrative Agent for the Lenders.
.
<PAGE>
ARRANGED BY
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
AND
MORGAN STANLEY SENIOR FUNDING, INC.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms....................................................
1.2. Use of Defined Terms.............................................
1.3. Cross-References.................................................
1.4. Accounting and Financial Determinations..........................
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Loans and Commitments............................................
2.1.1. Term Loans.......................................................
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.........
2.1.3. Letter of Credit Commitment......................................
2.1.4. Lenders Not Permitted or Required To Make Loans..................
2.1.5. Issuer Not Permitted or Required to Issue Letters
of Credit........................................................
2.2. Reduction of Commitment Amounts..................................
2.2.1. Optional.........................................................
2.2.2. Mandatory........................................................
2.3. Borrowing Procedures and Funding Maintenance.....................
2.3.1. Term Loans and Revolving Loans...................................
2.3.2. Swing Line Loans.................................................
2.4. Continuation and Conversion Elections............................
2.5. Funding..........................................................
2.6. Issuance Procedures..............................................
2.6.1. Other Lenders' Participation.....................................
2.6.2. Disbursements; Conversion to Revolving Loans.....................
2.6.3. Reimbursement....................................................
2.6.4. Deemed Disbursements.............................................
2.6.5. Nature of Reimbursement Obligations..............................
2.7. Notes............................................................
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application..........................
3.1.1. Repayments and Prepayments.......................................
3.1.2. Application......................................................
3.2. Interest Provisions..............................................
3.2.1. Rates............................................................
3.2.2. Post-Maturity Rates..............................................
3.2.3. Payment Dates....................................................
3.3. Fees.............................................................
3.3.1. Commitment Fee...................................................
3.3.2. Agents' and Arrangers' Fees......................................
3.3.3. Letter of Credit Fees............................................
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.......................................
4.2. Deposits Unavailable.............................................
4.3. Increased LIBO Rate Loan Costs, etc..............................
4.4. Funding Losses...................................................
4.5. Increased Capital Costs..........................................
4.6. Taxes............................................................
4.7. Payments, Computations, etc......................................
4.8. Sharing of Payments..............................................
4.9. Setoff...........................................................
4.10. Use of Proceeds..................................................
ARTICLE V
CONDITIONS PRECEDENT
5.1. Initial Credit Extension and Amendment Effective Date............
5.1.1. Resolutions, etc.................................................
5.1.2. Delivery of Notes................................................
5.1.3. Transaction Consummated..........................................
5.1.4. Closing Date Certificate.........................................
5.1.5. Transaction Documents, etc.......................................
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
5.1.6. Payment of Outstanding Indebtedness, etc.........................
5.1.7. Equity Issuance, etc.............................................
5.1.8. Guaranty.........................................................
5.1.9. Pledge Agreements................................................
5.1.10. Security Agreements..............................................
5.1.11. Financial Information, etc.......................................
5.1.12. Solvency, etc....................................................
5.1.13. Litigation.......................................................
5.1.14. Material Adverse Effect..........................................
5.1.15. Reliance Letters.................................................
5.1.16. Opinions of Counsel..............................................
5.1.17. Insurance........................................................
5.1.18. Closing Fees, Expenses, etc......................................
5.2. All Credit Extensions and the Amendment Effective Date...........
5.2.1. Compliance with Warranties, No Default, etc......................
5.2.2. Credit Extension Request.........................................
5.2.3. Satisfactory Legal Form..........................................
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc................................................
6.2. Due Authorization, Non-Contravention, etc........................
6.3. Government Approval, Regulation, etc.............................
6.4. Validity, etc....................................................
6.5. Financial Information............................................
6.6. No Material Adverse Effect.......................................
6.7. Litigation, Labor Controversies, etc.............................
6.8. Subsidiaries.....................................................
6.9. Ownership of Properties..........................................
6.10. Taxes............................................................
6.11. Pension and Welfare Plans........................................
6.12. Environmental Warranties.........................................
6.13. Regulations G, U and X...........................................
6.14. Accuracy of Information..........................................
6.15. Solvency.........................................................
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants............................................
7.1.1. Financial Information, Reports, Notices, etc.....................
7.1.2. Compliance with Laws, etc........................................
7.1.3. Maintenance of Properties........................................
7.1.4. Insurance........................................................
7.1.5. Books and Records................................................
7.1.6. Environmental Covenant...........................................
7.1.7. Future Subsidiaries..............................................
7.1.8. Future Leased Property and Future Acquisitions of
Real Property; Future Acquisition of Other Property..............
7.1.9. Use of Proceeds, etc.............................................
7.1.10. Hedging Obligations..............................................
7.2. Negative Covenants...............................................
7.2.1. Business Activities..............................................
7.2.2. Indebtedness.....................................................
7.2.3. Liens............................................................
7.2.4. Financial Covenants..............................................
7.2.5. Investments......................................................
7.2.6. Restricted Payments, etc.........................................
7.2.7. Capital Expenditures, etc........................................
7.2.8. Consolidation, Merger, etc.......................................
7.2.9. Asset Dispositions, etc..........................................
7.2.10. Modification of Certain Agreements...............................
7.2.11. Transactions with Affiliates.....................................
7.2.12. Negative Pledges, Restrictive Agreements, etc....................
7.2.13. Sale and Leaseback...............................................
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.....................................
8.1.1. Non-Payment of Obligations.......................................
8.1.2. Breach of Warranty...............................................
8.1.3. Non-Performance of Certain Covenants and
Obligations......................................................
8.1.4. Non-Performance of Other Covenants and Obligations...............
8.1.5. Default on Other Indebtedness....................................
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
8.1.6. Judgments........................................................
8.1.7. Pension Plans....................................................
8.1.8. Change in Control................................................
8.1.9. Bankruptcy, Insolvency, etc......................................
8.1.10. Impairment of Security, etc......................................
8.2. Action if Bankruptcy.............................................
8.3. Action if Other Event of Default.................................
ARTICLE IX
THE AGENTS
9.1. Actions..........................................................
9.2. Funding Reliance, etc............................................
9.3. Exculpation......................................................
9.4. Successor........................................................
9.5. Loans or Letters of Credit Issued by the Agents..................
9.6. Credit Decisions.................................................
9.7. Copies, etc......................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.........................................
10.2. Notices..........................................................
10.3. Payment of Costs and Expenses....................................
10.4. Indemnification..................................................
10.5. Survival.........................................................
10.6. Severability.....................................................
10.7. Headings.........................................................
10.8. Execution in Counterparts, Effectiveness, etc....................
10.8.1. Execution of Counterparts........................................
10.8.2. Notes............................................................
10.8.3. Receipt of Funds.................................................
10.8.4. Legal Details, etc...............................................
10.9. Governing Law; Entire Agreement..................................
10.10. Successors and Assigns...........................................
10.11. Sale and Transfer of Loans and Notes; Participation
in Loans and Notes...............................................
10.11.1. Assignments......................................................
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
10.11.2. Participations...................................................
10.12. Confidentiality..................................................
10.13. Other Transactions...............................................
10.14. Forum Selection and Consent to Jurisdiction......................
10.15. Waiver of Jury Trial.............................................
10.16. Reallocation and Assignment of Existing Loans and
Existing Revolving Loan Commitments..............................
10.16.1. Reallocation and Assignments.....................................
10.16.2. Additional Provisions for Reallocations and
Assignments......................................................
10.16.3. Lender Assignment Agreement, etc.................................
10.16.3. Obligation under Loan Documents..................................
<PAGE>
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
SCHEDULE III - Existing Loans and Existing Revolving Loan
Commitments
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT B-1 Form of Term A Note
EXHIBIT B-2 - Form of Term B Note
EXHIBIT B-3 - Form of Term C Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Issuance Request
EXHIBIT E - Form of Borrowing Base Certificate
EXHIBIT F - Form of Continuation/Conversion Notice
EXHIBIT G - Form of Closing Date Certificate
EXHIBIT H - Form of Compliance Certificate
EXHIBIT I - Form of Guaranty
EXHIBIT J-1 - Form of Triarc Pledge Agreement
EXHIBIT J-2 - Form of Snapple Pledge Agreement
EXHIBIT J-3 - Form of Parent Pledge Agreement
EXHIBIT J-4 - Form of Subsidiary Pledge Agreement
EXHIBIT K-1 - Form of Borrower Security Agreement
EXHIBIT K-2 - Form of Subsidiary Security Agreement
EXHIBIT L - Form of Solvency Certificate
EXHIBIT M-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT M-2 - Form of Opinion of Intellectual Property Counsel
to the Obligors
EXHIBIT M-3 - Form of Opinion of Local Counsel to the Obligors
EXHIBIT N - Form of Lender Assignment Agreement
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August
15, 1997, among MISTIC BRANDS, INC. ("Mistic"), a Delaware corporation, SNAPPLE
BEVERAGE CORP. ("Snapple"), a Delaware corporation, TRIARC BEVERAGE HOLDINGS
CORP. (the "Parent"), a Delaware corporation (each of Mistic, Snapple, and the
Parent, a "Borrower" and, collectively, the "Borrowers"), the various financial
institutions as are or may become parties hereto (collectively, the "Lenders"),
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION ("DLJ Securities") as the
arranger (the "Arranger") for the Lenders, MORGAN STANLEY SENIOR FUNDING, INC.
("Morgan Stanley") as the co-arranger (the "Co- Arranger") and as documentation
agent (the "Documentation Agent") for the Lenders, DLJ CAPITAL FUNDING, INC.
("DLJ"), as syndication agent (the "Syndication Agent") for the Lenders, and THE
BANK OF NEW YORK ("BNY"), as administrative agent (the "Administrative Agent")
for the Lenders.
W I T N E S S E T H:
WHEREAS, Snapple is engaged directly and through its
Subsidiaries in the business of producing, marketing and distributing beverages
and other similar or related products under the Snapple trademark and other
trademarks and trade names (the "Snapple Business"); and
WHEREAS, Mistic is engaged in the business of producing,
marketing and distributing beverages and other similar or related products under
the Mistic trademark and other trademarks and trade names (the "Mistic
Business"); and
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
March 27, 1997 (as so originally executed and delivered, the "Stock Purchase
Agreement"), between Triarc Companies, Inc., a Delaware corporation ("Triarc"),
and The Quaker Oats Company, a New Jersey corporation (the "Seller"), the Seller
sold, transferred and delivered to Triarc, and Triarc acquired (the
"Acquisition"), indirectly through the Parent, all of the issued and outstanding
shares of Capital Stock of Snapple; and
<PAGE>
WHEREAS, in connection with the Acquisition, (i) Triarc
contributed all of the issued and outstanding shares of Capital Stock of Mistic
to the Parent (the "Contribution") and (ii) Mistic refinanced existing
indebtedness of approximately $71,000,000 in aggregate principal amount (the
"Refinancing"); and
WHEREAS, in order to consummate the Acquisition and the
Refinancing, the Borrowers received a cash equity contribution in an amount
equal to $75,000,000 (the "Equity Contribution Amount") through the issuance and
sale by the Parent to Triarc of shares of the Preferred Stock (such issuance of
the Preferred Stock being herein referred to as the "Equity Issuance") (the
initial Credit Extension, the Acquisition, the Contribution, the Refinancing,
the Equity Issuance and any and all transactions related thereto are
collectively referred to as the "Transaction");
WHEREAS, in connection with the Transaction, pursuant to a
Credit Agreement, dated as of May 22, 1997 (the "Original Credit Agreement"),
among the Borrowers, the financial institutions parties thereto on the Closing
Date (the "Existing Lenders"), the Syndication Agent and the Documentation
Agent, the Existing Lenders made Term Loans (the "Existing Term Loans") and
Revolving Loans (the "Existing Revolving Loans")(the Existing Term Loans and the
Existing Revolving Loans are collectively referred to as the "Existing Loans")
and provided Revolving Loan Commitments (the "Existing Revolving Loan
Commitments") to the Borrowers, with the outstanding principal amounts of the
Existing Loans and the amounts of the Existing Revolving Loan Commitments on the
Amendment Effective Date being as set forth in Schedule III hereto; and
WHEREAS, the Existing Lenders desire to assign portions of the
Existing Loans and the Existing Revolving Loan Commitments to the Lenders; and
WHEREAS, the proceeds of the Credit Extensions are to
be used for the purposes set forth in Section 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to
the conditions hereinafter set forth (including Article V), (i) to amend and
restate in its entirety the Original Credit Agreement in accordance with the
terms hereof, (ii) to
<PAGE>
effect the assignments of Existing Loans and Existing Revolving Loan Commitments
in accordance with the terms hereof, (iii) to continue as Term Loans hereunder
the Existing Term Loans, (iv) to continue as Revolving Loans hereunder the
Existing Revolving Loans, and (v) to extend the Commitments, make Loans to the
Borrowers and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
SECTION a. Defined Terms. The following
-------------
terms (whether or not underscored)
when used in this Agreement,
including its preamble and
recitals, shall, except where the
context otherwise requires, have
the following meanings (such
meanings to be equally applicable
to the singular and plural forms
thereof):
"Account" means any account (as that term is defined in
Section 9-106 of the UCC) of the Borrowers or any of their wholly-owned U.S.
Subsidiaries arising from the sale or lease of goods or the rendering of
services.
"Account Debtor" is defined in clause (b) of the
definition of "Eligible Accounts".
"Accounting Adjustment" is defined in the definition
of "Net Income".
"Acquisition" is defined in the third recital.
"Administrative Agent" is defined in the preamble and includes
each other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person
which, directly or indirectly, controls, is controlled by or is
<PAGE>
under common control with such Person (excluding any trustee under, or any
committee with responsibility for administering, any Plan). A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power (i) to vote 10% or more of the Capital Stock (on a
fully diluted basis) of such Person having ordinary voting power for the
election of directors or managing general partners, or (ii)to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agents" means, collectively, the Administrative
Agent, the Syndication Agent and the Documentation Agent.
"Agreement" means, on any date, this Amended and Restated
Credit Agreement as originally in effect on the Closing Date and as thereafter
from time to time amended, supplemented, amended and restated, or otherwise
modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to
all Base Rate Loans, a fluctuating rate of interest per annum equal to the
higher of (i) the rate of interest in effect on such day as publicly announced
or established from time to time by the Administrative Agent in New York, New
York as its "prime commercial lending rate", and (ii) the Federal Funds Rate
most recently determined by the Administrative Agent plus 1/2 of 1%. The
Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Parent and the Lenders of changes in the Alternate Base Rate.
"Amendment Effective Date" means the date the conditions
precedent set forth in Sections 5.1 and 5.2 (as applicable) are satisfied and
the amendment and restatement of the Original Credit Agreement becomes effective
pursuant to Section 10.8.
"Annualized" means (i) with respect to the end of the first
full Fiscal Quarter of the Borrowers to occur after the Closing Date, the
applicable amount for such Fiscal Quarter multiplied by four, (ii) with respect
to the second Fiscal
<PAGE>
Quarter of the Borrowers to occur after the Closing Date, the applicable amount
for such Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied
by two, and (iii) with respect to the third Fiscal Quarter of the Borrowers to
occur after the Closing Date, the applicable amount for such Fiscal Quarter and
the immediately preceding two Fiscal Quarters multiplied by 1.3333.
"Applicable Commitment Fee" means, (i) at all times from the
Closing Date through (and including) the day that is 270 days following the
Closing Date, a fee which shall accrue at a rate of 1/2 of 1% per annum, and
(ii) thereafter, a fee which shall accrue at a rate per annum determined by
reference to the Leverage Ratio for the Fiscal Quarter last ended and the
applicable percentage per annum set forth below under the column entitled
"Applicable Commitment Fee":
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or
equal to 2.50:1 0.500%
less than 2.50:1 0.375%
The Leverage Ratio used to compute the Applicable Commitment Fee shall be the
Leverage Ratio set forth in the Compliance Certificate most recently delivered
by the Parent to the Administrative Agent pursuant to clause (c) of Section
7.1.1. Changes in the Applicable Commitment Fee resulting from a change in the
Leverage Ratio shall become effective upon delivery by the Parent to the
Administrative Agent of a new Compliance Certificate pursuant to clause (c) of
Section 7.1.1. If the Parent shall fail to deliver a Compliance Certificate
within the number of days required pursuant to clause (c) of Section 7.1.1
(after giving effect to any grace period), the Applicable Commitment Fee from
and including the first day after the date on which such Compliance Certificate
was required to be delivered to, but not including the date the Parent delivers
to, the Administrative Agent an appropriately completed Compliance Certificate
shall conclusively equal the highest Applicable Commitment Fee set forth above.
"Applicable Margin" means at all times during the
applicable periods set forth below,
<PAGE>
(a) with respect to the unpaid principal amount of each
Term B Loan maintained as (i) a Base Rate Loan, 2.25% per
annum and (ii) a LIBO Rate Loan, 3.00% per annum;
(b) with respect to the unpaid principal amount of each
Term C Loan maintained as (i) a Base Rate Loan, 2.50% per
annum, and (ii) a LIBO Rate Loan, 3.25% per annum; and
(c) with respect to the unpaid principal amount of each
Revolving Loan and each Term A Loan maintained as (i) a Base
Rate Loan, (x) from the Closing Date through (and including)
the day that is 270 days following the Closing Date, 1.25% per
annum, and (y) thereafter, by reference to the Leverage Ratio
and at the applicable percentage per annum set forth below
under the column entitled "Applicable Margin for Base Rate
Loans", and (ii) a LIBO Rate Loan, (x) from the Closing Date
through (and including) the day that is 270 days following the
Closing Date, 2.50% per annum, and (y) thereafter, by
reference to the Leverage Ratio and at the applicable
percentage per annum set forth below under the column entitled
"Applicable Margin for LIBO Rate Loans":
Applicable Margin For Revolving Loans and Term A Loans
Application Application
Margin For Base Margin for LIBO
Levarage Ratio Rate Loans Rate Loans
-------------- ----------------- ----------------
greater than or
equal to 3.5:1 1.25% 2.50%
less than 3.5:1
and greater than
or equal to 3.0:1 1.00% 2.25%
less than 3.0:1 and
greater than or equal
to 2.5:1 0.50% 1.75%
less than 2.5:1 0.25% 1.50%
<PAGE>
The Leverage Ratio used to compute the Applicable Margin for Revolving Loans and
Term A Loans shall be the Leverage Ratio set forth in the Compliance Certificate
most recently delivered by the Parent to the Administrative Agent pursuant to
clause (c) of Section 7.1.1. Changes in the Applicable Margin for Revolving
Loans or Term A Loans resulting from a change in the Leverage Ratio shall become
effective upon delivery by the Parent to the Administrative Agent of a new
Compliance Certificate pursuant to clause (c) of Section 7.1.1. If the Parent
shall fail to deliver a Compliance Certificate within the number of days
required pursuant to clause (c) of Section 7.1.1 (after giving effect to any
grace period), the Applicable Margin for Revolving Loans and Term A Loans from
and including the first day after the date on which such Compliance Certificate
was required to be delivered to, but not including the date the Parent delivers
to, the Administrative Agent an appropriately completed Compliance Certificate
shall conclusively equal the highest Applicable Margin for Revolving Loans and
Term A Loans set forth above.
"Arranger" means Donaldson, Lufkin & Jenrette
Securities Corporation, a Delaware corporation.
"Arrangers" means, collectively, the Arranger and the
Co-Arranger.
"Assignee Lender" is defined in Section 10.11.1.
"Assumed Restricted Debt" is defined in clause (a) of
Section 7.1.7.
"Authorized Officer" means, relative to any Obligor, those of
its officers whose signatures and incumbency shall have been certified to the
Agents and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a
fluctuating rate determined by reference to the Alternate Base Rate.
"BNY" is defined in the preamble.
"Borrower" and "Borrowers" is defined in the
preamble.
<PAGE>
"Borrower Security Agreement" means the Security Agreement
executed and delivered by an Authorized Officer of each of the Borrowers
pursuant to Section 5.1.10, substantially in the form of Exhibit K-1 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Borrowing" means the Loans of the same type and, in the case
of LIBO Rate Loans, having the same Interest Period made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Base Amount" means, at any time, the Net Asset
Value of all Eligible Accounts and Eligible Inventory at such time as determined
in accordance with the definition of "Net Asset Value" and as certified by the
Parent to the Lenders in the most recently delivered Borrowing Base Certificate,
including the Borrowing Base Certificate delivered on the Closing Date pursuant
to clause (c) of Section 5.1.11.
"Borrowing Base Certificate" means a certificate duly
completed and executed by the chief accounting or chief financial Authorized
Officer of the Parent, substantially in the form of Exhibit E hereto.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of the applicable Borrower, substantially in
the form of Exhibit C hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be
closed in New York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Capital Expenditures" means, with respect to any
Person for any applicable period, the sum (without duplication)
of
<PAGE>
(a) the aggregate amount of all expenditures of such
Person and its Subsidiaries determined on a consolidated basis
for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized
Lease Liabilities incurred during such period.
"Capital Stock" means with respect to any Person, (i) any and
all shares, interests, participations or other equivalents of or interests in
(however designated) corporate or capital stock, including, without limitation,
shares of preferred or preference stock of such Person (including, with respect
to the Parent, the Preferred Stock), (ii) all partnership interests (whether
general or limited) in such Person, (iii) all membership interests or limited
liability company or partnership interests in such Person, and (iv) all other
equity or ownership interests in such Person of any other type.
"Capitalized Lease Liabilities" means with respect to any
Person for any applicable period, all monetary obligations of such Person and
its Subsidiaries determined on a consolidated basis under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than
one year after such time, issued or guaranteed or insured by
the United States Government or any agency thereof, or by any
state of the United States (the securities of which state are
rated at least AA by S&P or Aa by Moody's);
(b) commercial paper, maturing not more than
nine months from the date of issue, which is issued
by
<PAGE>
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated
at least A-1 by S&P or P-1 by Moody's, or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is
issued by either
(i) a commercial banking institution that is a member
of the Federal Reserve System and has a combined capital
and surplus and undivided profits of not less than
$500,000,000, or
(ii) any Lender;
(d) any repurchase agreement or transaction under a
master repurchase agreement entered into with any Lender (or
other commercial banking institution of the stature referred
to in clause (c)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described
in any of clauses (a) through (c), and
(ii) has a market value at the time the
transaction under such repurchase agreement is
entered into of not less than 100% of the
repurchase obligation of such Lender (or other
commercial banking institution) thereunder; or
(e) money market funds having no restrictions on
liquidation rights and whose sole investments are comprised of
investments permitted under clauses (a) through (d).
"Casualty Event" means, with respect to any Person, the
damage, destruction or condemnation, as the case may be, of any property of such
Person.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
<PAGE>
"CERCLIS" means the Comprehensive Environmental
Response Compensation Liability Information System List.
"Change in Control" means
(a) any Person or two or more Persons acting in concert,
other than Peter W. May, Nelson Peltz or any of their
controlled Affiliates (individually or collectively) shall
acquire beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Act of 1934, as amended) of 50%
or more of the outstanding shares of voting Capital Stock of
Triarc on a fully diluted basis; or
(b) (i) prior to an Initial Public Offering of the
Parent, the failure of Triarc to own, free and clear of all
Liens or other encumbrances (other than as permitted under the
Loan Documents), 100% of the outstanding shares of voting
Capital Stock of the Parent on a fully diluted basis
(provided, however, that the Parent may issue up to 15% of its
outstanding shares of voting Capital Stock on a fully diluted
basis pursuant to the Parent Stock Option Plan) and (ii) after
an Initial Public Offering of the Parent, the failure of
Triarc to own, free and clear of all Liens or other
encumbrances (other than as permitted under the Loan
Documents), at least 51% of the outstanding shares of voting
Capital Stock of the Parent on a fully diluted basis; or
(c) (i) prior to an Initial Public Offering of Mistic,
the failure of the Parent to own, free and clear of all Liens
or other encumbrances (other than as permitted under the Loan
Documents), 100% of the outstanding shares of voting Capital
Stock of Mistic on a fully diluted basis, and (ii) after an
Initial Public Offering of Mistic, the failure of the Parent
to own, free and clear of all Liens or other encumbrances
(other than as permitted under the Loan Documents), at least
51% of the outstanding shares of voting Capital Stock of
Mistic on a fully diluted basis; or
(d) (i) prior to an Initial Public Offering of
Snapple, the failure of the Parent to own, free and
<PAGE>
clear of all Liens or other encumbrances (other than as
permitted under the Loan Documents), 100% of the outstanding
shares of voting Capital Stock of Snapple on a fully diluted
basis, and (ii) after an Initial Public Offering of Snapple,
the failure of the Parent to own, free and clear of all Liens
or other encumbrances (other than as permitted under the Loan
Documents), at least 51% of the outstanding shares of voting
Capital Stock of Snapple on a fully diluted basis; or
(e) the chief executive officer of any Borrower, as of
the Closing Date, shall have ceased to continue to serve in
the operational and managerial capacities in which he now
serves or in an enhanced operational or managerial capacity
with any Borrower and a successor shall not be appointed
within 180 days thereof with the prior consent of the Required
Lenders (which consent shall not be unreasonably withheld or
delayed); or
(f) during any period of 12 consecutive months,
individuals who at the beginning of such 12-month period were
directors of a Borrower cease for any reason to continue to
constitute a majority of the Board of Directors of such
Borrower, unless their successors shall have been approved by
a majority of the continuing directors; or
(g) except as otherwise permitted under the Loan
Documents, the failure of a Borrower to own, free and clear of
all Liens or other encumbrances (other than as permitted under
the Loan Documents), 100% of the outstanding shares of voting
Capital Stock of each Guarantor which is a Material Obligor on
a fully diluted basis.
"Closing Date" means May 22, 1997.
"Closing Date Certificate" means a certificate of an
Authorized Officer of each Borrower substantially in the form of Exhibit G
hereto, delivered pursuant to Section 5.1.4.
"Co-Arranger" means Morgan Stanley Senior Funding,
Inc., a Delaware corporation.
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, as the context may require, a
Lender's Letter of Credit Commitment, Revolving Loan Commitment
or Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the
Letter of Credit Commitment Amount, the Revolving Loan Commitment Amount, the
Swing Line Loan Commitment Amount, the Term A Loan Commitment Amount, the Term B
Loan Commitment Amount or the Term C Loan Commitment Amount.
"Commitment Termination Event" means
(a) the occurrence of any Default described in
clauses (a) through (d) of Section 8.1.9 with respect
to any Material Obligor; or
(b) the occurrence and continuance of any other Event of
Default and either (i) the declaration of the Loans to be due
and payable pursuant to Section 8.3, or (ii)in the absence of
such declaration, the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the
Parent that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed
and executed by the chief financial Authorized Officer of the Parent,
substantially in the form of Exhibit H hereto.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of Capital Stock of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or
<PAGE>
maximum principal amount, if larger) of the debt, obligation or other liability
guaranteed thereby.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by an Authorized
Officer of the applicable Borrower, substantially in the form of Exhibit F
hereto.
"Contribution" is defined in the fourth recital.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrowers, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Copyright Security Agreement" means any Copyright Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit C to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued
Letter of Credit, by any Issuer.
"Credit Extension Request" means, as the context may require,
any Borrowing Request or Issuance Request.
"Current Assets" means, on any date with respect to any
Person, without duplication, all assets (other than cash) which, in accordance
with GAAP consistently applied, would be included as current assets on a
consolidated balance sheet of such Person and its Subsidiaries at such date as
current assets.
"Current Liabilities" means, on any date with respect to any
Person, without duplication, all amounts which, in accordance with GAAP
(consistently applied), would be included as current liabilities on a
consolidated balance sheet of such Person and its Subsidiaries at such date,
excluding current
<PAGE>
maturities of Indebtedness ("Indebtedness" for purposes of this definition
includes principal and interest with respect to Revolving Loans).
"Debt" means the outstanding principal amount of all
Indebtedness of the Parent and its Subsidiaries (including Mistic and Snapple)
of the nature referred to in clauses (a), (b), and (c) of the definition of
"Indebtedness" plus (without duplication) the aggregate amount of all Contingent
Liabilities to the extent covering or supporting the principal amount of any
such Indebtedness.
"Default" means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both, would
constitute an Event of Default.
"DLJ" is defined in the preamble.
"DLJ Securities" is defined in the preamble.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or otherwise modified
from time to time by the Borrowers with the written consent of the Required
Lenders.
"Documentation Agent" means Morgan Stanley Senior
Funding, Inc., a Delaware corporation.
"Dollar" and the sign "$" mean lawful money of the
United States.
"Domestic Office" means, relative to any Lender, the office of
such Lender designated as such as set forth opposite its name on Schedule II
hereto under the applicable column heading or as set forth in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
<PAGE>
"EBITDA" means, with respect to the Parent and its
Subsidiaries (including Mistic and Snapple) for any applicable period, the sum
(without duplication), determined on a consolidated basis, of
(a) Net Income,
plus
(b) the amount deducted in determining Net
Income representing depreciation and amortization,
plus
(c) the amount deducted in determining Net Income
representing income tax expense (including (i) reserves for
deferred taxes not payable currently and (ii) payments or
accruals made pursuant to the Tax Sharing Agreement),
plus
(d) the amount deducted in determining Net
Income representing Interest Expense,
plus
(e) an amount equal to the amount of all non-
cash charges deducted in determining Net Income,
plus
(f) an amount equal to the amount of any
extraordinary charges deducted in determining Net
Income,
minus
(g) an amount equal to the amount of all non-cash
credits included in determining Net Income.
"Eligible Account" means, with respect to each
Borrower and any of its wholly-owned U.S. Subsidiaries which has
executed and delivered the Guaranty and the Subsidiary Security
Agreement, at the time of any determination thereof, any Account
<PAGE>
as to which each of the following requirements has been fulfilled
to the reasonable satisfaction of the Agents:
(a) the Borrower or such Subsidiary owns such Account
free and clear of all Liens other than any Lien in favor of
the Administrative Agent and the Lenders granted pursuant to
or in connection with this Agreement or another Loan Document;
(b) such Account is a legal, valid, binding and
enforceable obligation of the Person obligated under such
Account (the "Account Debtor");
(c) such Account is not subject to any bona fide
dispute, setoff, counterclaim or other claim (or right to
assert any such setoff right, counterclaim or other claim) or
defense on the part of the Account Debtor or any other Person
denying liability under such Account; provided, however, that
such Account shall constitute an Eligible Account to the
extent it is not subject to any such dispute, setoff,
counterclaim or other claim or defense;
(d) the Borrower or such Subsidiary has the full and
unqualified right to assign and grant a Lien in such Account
to the Administrative Agent, for its benefit and that of the
Lenders, as security for the Obligations;
(e) such Account is evidenced by an invoice rendered to
the Account Debtor (which shall include computer records) or
is reflected by computer records maintained by the Borrower or
such Subsidiary evidencing such Account and is not evidenced
by any instrument or chattel paper (as the terms "instrument"
and "chattel paper" are defined in Section 9-105 of the UCC),
unless such instrument or chattel paper has been delivered to
the Administrative Agent;
(f) such Account arose from the sale of goods or
services by the Borrower or such Subsidiary in the ordinary
course of the Borrower's or such Subsidiary's business, and
such goods or services have been shipped or delivered (in the
case of goods)
<PAGE>
or rendered in full (in the case of services) to the
Account Debtor for such Account;
(g) with respect to such Account, no Account Debtor is
(i) an Affiliate of the Borrower or any of its Subsidiaries,
other than Select, so long as (x) neither the Borrowers nor
any of their Subsidiaries own, directly or indirectly, in
excess of 25% of Select's Capital Stock in the aggregate or
possess, directly or indirectly, the power to direct or cause
the direction of the management or policies of Select, whether
by contract or otherwise, and (y) Select's Eligible Accounts
do not constitute, at any time of determination, in excess of
the lesser of (1) $10,000,000 or (2) 15% of all Eligible
Accounts, or (ii) the subject of any reorganization,
bankruptcy, receivership, custodianship, insolvency or other
condition analogous with respect to such Account Debtor to
those described in clauses (a) through (d) of Section 8.1.9;
(h) such Account is not outstanding more than 90 days
from the date of invoice giving rise to such Account (unless
such Account, by its terms, is permitted to be outstanding for
a longer period, in which case such Account shall not be
outstanding for more than such period, provided that such
period does not exceed 180 days and such Account together with
all such other Eligible Accounts outstanding in excess of 90
days do not in the aggregate exceed $5,000,000 at any time);
(i) such Account is not an Account owing by an Account
Debtor having, at the time of any determination of Eligible
Accounts, in excess of 35% of the aggregate outstanding amount
of all Accounts of such Account Debtor (other than any
Accounts which are the subject of bona fide disputes between
such Account Debtor and the Borrower or such Subsidiary, as
the case may be) outstanding more than 90 days past the date
of invoice (unless such Account, by its terms, is permitted to
be outstanding for a longer period, in which case such Account
shall not be outstanding for more than such period, provided
that such period does not exceed 180 days and such Account
<PAGE>
together with all such other Eligible Accounts outstanding in
excess of 90 days do not in the aggregate exceed $5,000,000 at
any time);
(j) with respect to the Account Debtor under such
Account, neither the Borrower nor any such Subsidiary is
indebted to such Account Debtor, unless the Borrower or such
Subsidiary and such Account Debtor have entered into an
agreement whereby the Account Debtor is prohibited from
exercising any right of setoff with respect to the Accounts of
the Borrower or such Subsidiary; provided, that in any event,
if such an agreement prohibiting setoff rights is not
delivered by the Account Debtor, then only the amount that the
Borrower or such Subsidiary is indebted to such Account Debtor
shall be excluded as an Eligible Account pursuant to this
clause; and
(k) such Account arises from a sale to an Account Debtor
located within the United States or Puerto Rico, unless the
Account Debtor's obligations (or that portion of such
obligations which is acceptable to the Agents) with respect to
a sale to an Account Debtor not located within the United
States or Puerto Rico are secured by a letter of credit,
guaranty or eligible bankers' acceptance having terms, and
from such issuers and confirmation banks, as are acceptable to
the Agents.
"Eligible Inventory" means, with respect to each Borrower and
any of its wholly-owned U.S. Subsidiaries, at the time of any determination
thereof, any Inventory arising in the ordinary course of business and as to
which each of the following requirements has been fulfilled to the reasonable
satisfaction of the Agents:
(a) such Inventory is located in the United
States or Puerto Rico;
(b) the Borrower or its wholly-owned U.S. Subsidiary
owning such Inventory, as the case may be, has full and
unqualified right to assign and grant a Lien in such Inventory
to the Administrative Agent, for its benefit and that of the
Lenders, as security for the Obligations;
<PAGE>
(c) the Borrower or one of its wholly-owned U.S.
Subsidiaries owns such Inventory free and clear of all Liens
in favor of any Person other than any Lien in favor of the
Administrative Agent and the Lenders granted pursuant to or in
connection with this Agreement or another Loan Document; and
(d) none of such Inventory is obsolete, unsalable,
damaged or otherwise unfit for sale or consumption or further
processing.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and binding
guidelines (including consent decrees and administrative orders) relating to the
protection of the environment.
"Equity Contribution Amount" is defined in the fifth
recital.
"Equity Issuance" is defined in the fifth recital.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Excess Amount" means, for purposes of determining the amount
of management fees permitted to be paid pursuant to clause (a) of Section 7.2.11
for any Fiscal Year listed in Item 7.2.11(a) ("Expected Funded Debt") of the
Disclosure Schedule, the excess (if any) of (x) the amount set forth opposite
such Fiscal Year in such Item 7.2.11(a) over (y) the actual, aggregate amount
(computed without duplication) of all Term Loans, Revolving Loans, Swing Line
Loans, Letters of Credit and Reimbursement Obligations outstanding under the
Commitments hereunder as of the last day of such Fiscal Year and as certified
pursuant to the Compliance Certificate delivered in respect of such Fiscal Year
end.
<PAGE>
"Excess Cash Flow" means, with respect to the Parent and its
Subsidiaries (including Mistic and Snapple) for any applicable period, the
excess (if any), of
(a) EBITDA for such applicable period;
over
(b) the sum, without duplication (for such
applicable period) on a consolidated basis of
(i) the cash portion of Interest Expense (net of cash
interest income) actually paid during such applicable
period;
plus
(ii) (x) scheduled payments and optional and
mandatory prepayments, to the extent actually made, of
the principal amount of the Term Loans or any other term
Debt (including Capitalized Lease Liabilities), (y) and
mandatory prepayments of the principal amount of the
Revolving Loans and Swing Line Loans pursuant to clauses
(b) or (k) of Section 3.1.1 in connection with a
reduction of the Revolving Loan Commitment Amount, in
each case for such applicable period and (z) to the
extent not deducted in the computation of EBITDA, all
cash payments in respect of other Indebtedness
(exclusive of optional prepayments of amounts
outstanding under the Revolving Loan Commitment);
plus
(iii) all federal, state and foreign income taxes
actually paid in cash (including payments made pursuant
to the Tax Sharing Agreement) during such applicable
period;
plus
(iv) Capital Expenditures actually made
during such applicable period pursuant to
<PAGE>
Section 7.2.7 (excluding Capital Expenditures
constituting Capitalized Lease Liabilities and by way of
the incurrence of Indebtedness permitted pursuant to
Section 7.2.2(f) to a vendor of any assets permitted to
be acquired pursuant to Section 7.2.7 to finance the
acquisition of such assets);
plus
(v) the amount of the net increase (or minus in the
case of a net decrease) of Current Assets over Current
Liabilities of the Parent and its Subsidiaries
(including Mistic and Snapple) for such applicable
period;
plus
(vi) the cash portion of any fees and expenses
incurred in connection with any required Hedging
Obligation.
"Existing Lenders" is defined in the sixth recital.
"Existing Loans" is defined in the sixth recital.
"Existing Revolving Loan Commitments" is defined in
the sixth recital.
"Existing Revolving Loans" is defined in the sixth
recital.
"Existing Term Loans" is defined in the sixth
recital.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New
York; or
<PAGE>
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by
it.
"Fee Letters" means, collectively, (i) the confidential fee
letter, dated April 18, 1997, among the Arranger, the Co-Arranger, the
Syndication Agent, Triarc and Mistic, and (ii) the confidential fee letter,
dated the Amendment Effective Date, among the Administrative Agent and the
Borrowers, which letters set forth certain fees to be paid in connection with
this Agreement.
"Financial Statement Indemnity Amount" is defined in
Section 3.1.1(g).
"Fiscal Quarter" means any fiscal quarter of any
Fiscal Year of the Borrowers.
"Fiscal Month" means any fiscal month of any Fiscal
Year of the Borrowers.
"Fiscal Year" means any fiscal year of the Borrowers; provided
that, as of the date of the initial Credit Extension, each Borrower's Fiscal
Year shall end on the Sunday occurring closest to December 31 of each year,
including December 31.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters (provided that for the first
three Fiscal Quarters after the Closing Date the components of the Fixed Charge
Coverage Ratio shall be determined on an Annualized basis) of
(a) EBITDA for all such Fiscal Quarters, plus the
aggregate amount of all management fees permitted and paid
during such Fiscal Quarters pursuant to clause (a) of Section
7.2.11, to the extent deducted in computing EBITDA;
to
<PAGE>
(b) the sum (without duplication) of
(i) Capital Expenditures actually made during
all such Fiscal Quarters pursuant to
Section 7.2.7;
plus
(ii) the cash portion of Interest Expense
(net of cash interest or investment income) for
all such Fiscal Quarters;
plus
(iii) all scheduled payments of principal, to the
extent actually made, of the Term Loans and other term
Debt (including the principal portion of any Capitalized
Lease Liabilities) during all such Fiscal Quarters;
plus
(iv) all federal, state and foreign income taxes
actually paid in cash (including payments made pursuant
to the Tax Sharing Agreement) during all such Fiscal
Quarters;
plus
(v) all payments of management fees permitted and
paid during all such Fiscal Quarters pursuant to clause
(a) of Section 7.2.11.
"F.R.S. Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Guarantor" means, on the Closing Date, each Borrower and each
U.S. Subsidiary of any Borrower and, thereafter, each Subsidiary of any Borrower
that is required, pursuant to clause (a) of Section 7.1.7, to execute and
deliver a supplement to the Guaranty.
<PAGE>
"Guaranty" means the Guaranty executed and delivered by each
Guarantor pursuant to Section 5.1.8 or clause (a) of Section 7.1.7,
substantially in the form of Exhibit I hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Hazardous Material" means
(a) any "hazardous substance", as defined by
CERCLA;
(b) any "hazardous waste", as defined by the
Resource Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of
any other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, all as amended or
hereafter amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or such other Loan
Document.
"Impermissible Qualification" means, relative to the opinion
or certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such opinion or
certification
<PAGE>
(a) which is of a "going concern" or similar
nature;
(b) which relates to the limited scope of
examination of matters relevant to such financial
statement; or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a condition
to its removal, would require an adjustment to such item the
effect of which would be to cause such Obligor to be in
default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of
any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without
duplication
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative
to the face amount of all letters of credit, whether or not
drawn, and banker's acceptances issued for the account of such
Person;
(c) all obligations of such Person as lessee under
leases which have been or should be, in accordance with GAAP,
recorded as Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the
balance sheet of such Person as of the date at which
Indebtedness is to be
<PAGE>
determined, except for deferred income and franchise
taxes;
(e) net liabilities of such Person under all
Hedging Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services (but not
including liabilities incurred in connection with any
employment severance arrangements), and indebtedness
(excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse;
and
(g) all Contingent Liabilities of such Person
in respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer to the extent such Person is liable for such
Indebtedness.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Public Offering" means a primary underwritten public
offering of the voting Capital Stock of the Parent, Mistic or Snapple (as
applicable), other than any public offering or sale pursuant to a registration
statement on Form S-8 or a comparable form.
"Interest Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter and
each of the three immediately prior Fiscal Quarters (provided that for the first
three Fiscal Quarters after the Closing Date the components of the Interest
Coverage Ratio shall be determined on an Annualized basis) of:
<PAGE>
(a) EBITDA for all such Fiscal Quarters;
to
(b) the cash portion of Interest Expense for
all such Fiscal Quarters.
"Interest Expense" means, for any applicable period, the
aggregate consolidated interest expense of the Parent and its Subsidiaries
(including Mistic and Snapple) for such applicable period, as determined in
accordance with GAAP, including the portion of any payments made in respect of
Capitalized Lease Liabilities allocable to interest expense, but excluding (to
the extent included in interest expense) (i) the amortization of fees and
expenses incurred in connection with the Transaction and (ii) any fees and
expenses incurred in connection with any required Hedging Obligation.
"Interest Period" means, relative to any LIBO Rate Loans, the
period beginning on (and including) the date on which such LIBO Rate Loan is
made or continued as, or converted into, a LIBO Rate Loan pursuant to Section
2.3 or 2.4 and ending on (but excluding) the day which numerically corresponds
to such date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), in each
case as the applicable Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; provided, however, that
(a) no more than 10 Interest Periods shall be
in effect at any one time;
(b) Interest Periods commencing on the same
date for Loans comprising part of the same Borrowing
shall be of the same duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on
the next following Business Day (unless such next following
Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the Business Day
next preceding such numerically corresponding day); and
<PAGE>
(d) no Interest Period for any Loan may extend beyond
the Stated Maturity Date for such Loan.
"Inventory" means any "inventory" (as that term is
defined in Section 9-109(4) of the UCC) of the Borrowers or any
of their wholly-owned U.S. Subsidiaries.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding (i) commission, travel and similar advances
to officers and employees made in the ordinary course of
business or (ii) ordinary trade debt (in the nature of open
accounts payable) extended in the ordinary course of business
on customary terms);
(b) any Contingent Liability of such Person;
and
(c) any ownership or similar interest held by
such Person in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon, whether by means of
dividend, distribution or otherwise (and without adjustment by reason of the
financial condition of such other Person), and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
"Issuance Request" means a Letter of Credit request and
certificate duly executed by an Authorized Officer of the applicable Borrower,
substantially in the form of Exhibit D hereto.
"Issuer" means, collectively, The Bank of New York, in its
individual capacity hereunder as the issuer of the Letters of Credit, and such
other Lender or Lenders as may be designated from time to time by the
Syndication Agent (and agreed to by the Parent and each such Lender), in its
individual capacity hereunder as the issuer of any Letter of Credit.
<PAGE>
"Lender Assignment Agreement" means a Lender Assignment
Agreement substantially in the form of Exhibit N hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to each
Issuer, such Issuer's obligation to issue Letters of Credit pursuant to Section
2.1.3 and, with respect to each of the other Lenders that has a Revolving Loan
Commitment, the obligation of such Lender to participate in such Letters of
Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a
maximum amount of $25,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date,
an amount equal to the sum of
(a) the aggregate Stated Amount at such time of all
Letters of Credit then outstanding and undrawn (as such
aggregate Stated Amount shall be adjusted, from time to time,
as a result of drawings, the issuance of Letters of Credit, or
otherwise),
plus
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
"Leverage Ratio" means, at the end of any Fiscal
Quarter, the ratio of
(a) subject to the proviso below, total Debt;
to
(b) EBITDA for the period of four consecutive Fiscal
Quarters most recently ended on or prior to such date;
provided that for the first three Fiscal Quarters after the
Closing Date EBITDA shall be determined on an Annualized
basis;
<PAGE>
provided, however, that during each of the first two Fiscal Quarters of each
Fiscal Year the amount determined in clause (a) above shall be reduced by the
Seasonal Working Capital Amount.
"LIBO Rate" means, relative to any Interest Period for LIBO
Rate Loans, the rate of interest per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upward to the next 1/32 of 1%) of the
rates of interest per annum at which dollar deposits in the approximate amount
of the amount of the Loan to be made or continued as, or converted into, a LIBO
Rate Loan by the Administrative Agent and having a maturity comparable to such
Interest Period would be offered to the Administrative Agent in the London
interbank market at its request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to
be made, continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the rate of interest per annum (rounded upwards to the next
1/32 of 1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve
Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for
LIBO Rate Loans will be adjusted automatically as to all LIBO Rate Loans then
outstanding as of the effective date of any change in the LIBOR Reserve
Percentage.
"LIBOR Office" means, relative to any Lender, the office of
such Lender designated as such as set forth opposite its name on Schedule II
hereto under the applicable column heading or as set forth in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) as designated from time to time by notice from such
Lender to the Parent and the Administrative Agent, whether or not
<PAGE>
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest
Period for LIBO Rate Loans, the percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Lender) under regulations issued from time to time by the
F.R.S. Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan, a
Swing Line Loan, a Term A Loan, a Term B Loan or a Term C Loan, of any type.
"Loan Document" means this Agreement, the Notes, the Letters
of Credit, each Borrowing Base Certificate, the Fee Letters, each Pledge
Agreement, the Guaranty, each Mortgage (if any), each Security Agreement, each
Copyright Security Agreement, each Patent Security Agreement, each Trademark
Security Agreement, each Rate Protection Agreement and each other material
agreement, document or instrument delivered in connection with this Agreement or
any other Loan Document, whether or not specifically mentioned herein.
"Material Adverse Effect" means (a) a material adverse effect
on the financial condition, operations, assets, business, properties or
prospects of the Parent and its Subsidiaries (including Mistic and Snapple),
taken as a whole, (b) a material impairment of the ability of any Borrower or
any other Material Obligor to perform its respective material obligations under
the Loan Documents to which it is or will be a party, or (c) an impairment of
the validity or enforceability of, or a material impairment of the rights,
remedies or benefits available to each Issuer, the Agents or the Lenders under
this Agreement or any other Loan Document.
<PAGE>
"Material Obligor" means, at any time of determination, (x)
any Borrower, or (y) any Subsidiary of any Borrower owning 5% or more of the
total assets of the Parent and its Subsidiaries on a consolidated basis or
contributing 5% or more of the EBITDA of the Parent and its Subsidiaries on a
consolidated basis.
"Mistic" is defined in the preamble.
"Mistic Business" is defined in the second recital.
"Moody's" means Moody's Investors Service, Inc. or
any successor thereto.
"Morgan Stanley" is defined in the preamble.
"Mortgage" means, collectively, each mortgage or deed of trust
or leasehold mortgage that may be executed and delivered pursuant to Section
7.1.7, in form and substance reasonably satisfactory to the Agents, in each case
as amended, supplemented, amended and restated or otherwise modified from time
to time.
"Net Asset Value" means, at any time of any determination, (i)
with respect to Eligible Accounts, 80% of an amount equal to (x) the book value
of all Eligible Accounts as reflected on the books of the Borrowers and their
applicable U.S. Subsidiaries, determined on a consolidated basis and valued in
accordance with GAAP, net of (y) all credits, discounts and allowances in
respect of such Eligible Accounts and (ii) with respect to Eligible Inventory,
an amount equal to 50% of the lesser of the market value and the cost of goods
of all Eligible Inventory as reflected on the books of the Borrowers and their
applicable U.S. Subsidiaries, determined on a consolidated basis and valued in
accordance with GAAP.
"Net Casualty Proceeds" means, with respect to any
Casualty Event, the excess of:
(a) the gross amount of all insurance proceeds or
condemnation awards received by the Person suffering such
Casualty Event as a result of such Casualty Event,
over
<PAGE>
(b) the sum (without duplication) of (i) the reasonable
and customary legal and other professional fees and expenses
actually incurred in connection with the receipt of such
proceeds or awards and (ii) all taxes (including any payments
made pursuant to the Tax Sharing Agreement) and other
governmental costs and expenses actually paid or estimated by
the Parent or any of its Subsidiaries (in good faith) to be
payable in cash in connection with the receipt of such
proceeds or awards.
"Net Debt Proceeds" means, with respect to the incurrence,
sale or issuance by the Parent or any of its Subsidiaries (including Mistic and
Snapple) of any Debt (other than Debt permitted by Section 7.2.2), the excess
of:
(a) the gross cash proceeds received by such
Person from such incurrence, sale or issuance,
over
(b) all reasonable and customary underwriting
commissions and legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with
such incurrence, sale or issuance, including any reasonable
up-front fees and expenses incurred in connection with any
required Hedging Obligation; provided such Hedging Obligation
relates solely to the new Debt incurred pursuant to such
incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale,
transfer or other disposition of any assets of the Parent or any of its
Subsidiaries (including Mistic and Snapple) (other than as permitted pursuant to
clause (a) or (c) of Section 7.2.9, the excess of:
(a) the gross cash proceeds received by such Person from
any such sale, transfer or other disposition and any cash
payments received in respect of promissory notes or other
non-cash consideration delivered to such Person in respect
thereof,
<PAGE>
over
(b) the sum (without duplication) of (i) all reasonable
and customary fees and expenses with respect to legal,
investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case
actually incurred in connection with such sale, transfer or
other disposition, (ii) all taxes (including any payments made
pursuant to the Tax Sharing Agreement) and other governmental
costs and expenses actually paid or estimated by the Parent or
any of its Subsidiaries (in good faith) to be payable in cash
in connection with such sale, transfer or other disposition
(including any costs and expenses actually paid or incurred
relating to compliance with Environmental Laws), and (iii)
payments made by the Parent or any of its Subsidiaries
(including Mistic and Snapple) to retire Indebtedness (other
than the Loans) of such Person where payment of such
Indebtedness is required in connection with such sale,
transfer or other disposition;
provided, however, that if, after the payment of all taxes (including payments
payable pursuant to the Tax Sharing Agreement) with respect to such sale,
transfer or other disposition, the amount of estimated taxes, if any, pursuant
to clause (b)(ii) above exceeded the tax amount actually paid in cash in respect
of such sale, transfer or other disposition, the aggregate amount of such excess
shall be immediately payable, pursuant to clause (c) of Section 3.1.1, as Net
Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or
issuance by the Parent or any of its Subsidiaries (including Mistic and Snapple)
to any Person of any of its Capital Stock or any warrants or options with
respect to its Capital Stock or the exercise of any such warrants or options
after the Closing Date (other than pursuant to any subscription agreement,
incentive plan or similar arrangement with any officer, employee or director of
the Parent or any of its Subsidiaries, including without limitation the Parent
Stock Option Plan) the excess of:
<PAGE>
(a) the gross cash proceeds received from such
sale, exercise or issuance,
over
(b) all reasonable and customary underwriting
commissions and legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with
such sale or issuance.
"Net Income" means, for any period, without duplication, the
sum of (i) the aggregate of all amounts which, in accordance with GAAP, would be
included as net income of the Parent and its Subsidiaries (including Mistic and
Snapple) for such period on a consolidated basis, excluding extraordinary gains,
and (ii) the amount of the after tax effect on such net income resulting from
(x) purchase accounting adjustments charged to earnings, if any, in an aggregate
amount not to exceed $11,000,000, in respect of Accounts, Inventory or property,
plant or equipment, (y) expenses that would have been offset against liabilities
designated as "copacker reserve", "take or pay penalties" and "dispute
resolution reserve" on the Pro Forma Balance Sheet, except for the fact that
such liabilities were reduced by an audit of the opening consolidated balance
sheet of the Parent and its Subsidiaries, or (z) transaction-related expenses
and transition services costs, if any, in an aggregate amount not to exceed
$4,000,000 (the items set forth in this clause (ii) are collectively referred to
as the "Accounting Adjustment").
"Net Worth" means the consolidated net worth of the Parent and
its Subsidiaries (including Mistic and Snapple), determined in accordance with
GAAP, plus the Accounting Adjustment.
"Non-U.S. Subsidiary" means any Subsidiary other than
a U.S. Subsidiary.
"Note" means, as the context may require, a Revolving Note, a
Swing Line Note, a Term A Note, a Term B Note or a Term C Note.
<PAGE>
"Obligations" means all obligations (monetary or otherwise) of
the Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes and each other Loan Document.
"Obligor" means any Borrower, any Guarantor or any other
Person (other than any Agent, any Issuer, any Arranger or any Lender) obligated
under, or otherwise a party to, any Loan Document.
"Organic Document" means, relative to any Obligor, its
certificate of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its authorized shares of
Capital Stock.
"Original Credit Agreement" is defined in the sixth
recital.
"Parent" is defined in the preamble.
"Parent Pledge Agreement" means the Pledge Agreement executed
and delivered by the Parent pursuant to clause (b) of Section 5.1.9,
substantially in the form of Exhibit J-3 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Parent Stock Option Plan" means any stock option plan of the
Parent providing for the granting of options to acquire shares of the Capital
Stock of the Parent; provided, however, that no Parent Stock Option Plan shall
contain any provisions that would result in or could reasonably be expected to
result in a Default under the provisions of this Agreement or any other Loan
Document, including, without limitation, clause (f) of Section 7.2.6 hereof.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit A to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
<PAGE>
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined
in section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which the
Parent or any of its Subsidiaries or any corporation, trade or business that is,
along with the Parent or any of its Subsidiaries, a member of a Controlled
Group, may have liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable
percentage relating to Term A Loans, Term B Loans, Term C Loans or Revolving
Loans, as the case may be, set forth opposite its name on Schedule II hereto
under the applicable column heading or set forth in the Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 10.11. A Lender shall not have any
Commitment to make Revolving Loans if its percentage under the respective column
heading is zero. Each Lender's Percentage of Swing Line Loans and Letters of
Credit shall be equal to such Lender's Percentage of Revolving Loans.
"Permitted Senior Subordinated Debt" means an offering of
Subordinated Debt by any Borrower completed on or prior to November 15, 1997
resulting in the receipt by such Borrower of minimum gross cash proceeds of
$100,000,000, on terms and conditions (including without limitation with respect
to covenants, maturity, subordination provisions and events of default) in all
respects reasonably satisfactory to the Agents and the Required Lenders.
"Person" means any natural person, corporation, partnership,
limited liability company, firm, association, trust, government, governmental
agency or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
<PAGE>
"Pledge Agreement" means, as the context may require, the
Triarc Pledge Agreement, the Snapple Pledge Agreement, the Parent Pledge
Agreement and/or the Subsidiary Pledge Agreement.
"Preferred Stock" means the 10% Cumulative Convertible
Preferred Stock, par value $1.00 per share, issued on the Closing Date by the
Parent to Triarc in connection with the Equity Contribution.
"Pro Forma Balance Sheet" is defined in clause (b) of
Section 5.1.11.
"Quarterly Payment Date" means September 1, 1997 and the first
day of each December, March, June and September occurring thereafter, or, if
such day is not a Business Day, the next succeeding Business Day.
"Rate Protection Agreement" means, collectively, any interest
rate swap, cap, collar or similar agreement entered into by the Parent or any of
its Subsidiaries (including Mistic and Snapple) in respect of the Loans pursuant
to the terms of this Agreement under which the counterparty to such agreement is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate of a Lender.
"Rebuilding and Replacement Work" is defined in
Section 3.1.1(f).
"Refinancing" is defined in the fourth recital.
"Refinancing Documents" means each agreement, document or
instrument delivered in connection with the Refinancing.
"Refunded Swing Line Loans" is defined in Section
2.3.2(b).
"Reimbursement Obligation" is defined in
Section 2.6.3.
"Release" means a "release", as such term is defined
in CERCLA.
"Required Lenders" means, at any time, Lenders holding at
least 51% of the Total Exposure Amount.
<PAGE>
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Loan Commitment" means, relative to any Lender,
such Lender's obligation to make Revolving Loans pursuant to Section 2.1.2 and
to issue (in the case of an Issuer) or participate in (in the case of all
Lenders) Letters of Credit pursuant to Section 2.1.3.
"Revolving Loan Commitment Amount" means, on any date,
$80,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Revolving Loan Commitment Termination Date" means
the earliest of
(a) June 1, 2003;
(b) the date on which the Revolving Loan
Commitment Amount is terminated in full or reduced to
zero pursuant to Section 2.2; and
(c) the date on which any Commitment
Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a joint and several promissory note of
the Borrowers payable to the order of any Lender, in the form of Exhibit A-1
hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Borrowers to
such Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"S&P" means Standard & Poor's Ratings Group, a
division of McGraw Hill, Inc. or any successor thereto.
<PAGE>
"Seasonal Working Capital Amount" means, as of any time of
determination, the lesser of (x) $40,000,000 and (y) the aggregate amount
outstanding under the Revolving Loan Commitments, whether in respect of Loans,
Letters of Credit, Reimbursement Obligations or otherwise.
"Secured Parties" means, collectively, the Lenders, the Agents
and all Affiliates of the Lenders which may be party to any Loan Document
(including any Rate Protection Agreement).
"Security Agreement" means, as the context may require, the
Borrower Security Agreement, and/or the Subsidiary Security Agreement.
"Select" means Select Beverages, Inc.
"Seller" is defined in the third recital.
"Snapple" is defined in the preamble.
"Snapple Business" is defined in the first recital.
"Snapple Financial Statements" means the Statement of Assets
and Liabilities of Snapple and its Subsidiaries as of December 31, 1996, and
Financial Summary - Direct Contribution of Snapple and its Subsidiaries, for the
Fiscal Years ended December
31, 1995 and December 31, 1996.
"Snapple Pledge Agreement" means the Pledge Agreement executed
and delivered by an Authorized Officer of Snapple pursuant to clause (c) of
Section 5.1.9, substantially in the form of Exhibit J-2 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Solvency Certificate" means a certificate duly executed by
the president, the chief executive or the chief financial Authorized Officer of
each of the Borrowers substantially in the form of Exhibit L hereto, delivered
pursuant to clause (b) of Section 5.1.12.
"Solvent" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person, (b) the present fair salable value of the assets of such Person
<PAGE>
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in business or a transaction, and
such person is not about to engage in business or a transaction, for which such
Person's property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total
amount available to be drawn under such Letter of Credit upon the issuance
thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, Swing
Line Loan or Term A Loan, June 1, 2003;
(b) in the case of any Term B Loan, June 1,
2004; and
(c) in the case of any Term C Loan, June 1,
2005.
"Stock Purchase Agreement" is defined in the third
recital.
"Subordinated Debt" means all unsecured Indebtedness for money
borrowed which is subordinated, upon terms satisfactory to the Agents and the
Required Lenders, in right of payment to the payment in full in cash of all
Obligations, including without limitation the Permitted Senior Subordinated
Debt.
"Subsidiary" means, with respect to any Person, any
corporation of which more than 50% of the outstanding Capital Stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time Capital Stock of any other
class or classes of such
<PAGE>
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Subsidiary Pledge Agreement" means the Pledge Agreement
executed and delivered by each Guarantor pursuant to clause (d) of Section 5.1.9
or clause (b) of Section 7.1.7, substantially in the form of Exhibit J-4 hereto,
in each case as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Subsidiary Security Agreement" means the Security Agreement
executed and delivered by each Guarantor pursuant to Section 5.1.10 or clause
(a) of Section 7.1.7, substantially in the form of Exhibit K-2 hereto, in each
case as amended, supplemented, amended and restated or otherwise modified from
time to time.
"Swing Line Lender" means The Bank of New York (or another
Lender designated by the Syndication Agent with the consent of the Parent, if
such Lender agrees to be the Swing Line Lender hereunder), in such Person's
capacity as the maker of Swing Line Loans.
"Swing Line Loan" is defined in clause (b) of
Section 2.1.2.
"Swing Line Loan Commitment" means, with respect to the Swing
Line Lender, the Swing Line Lender's obligation pursuant to clause (b) of
Section 2.1.2 to make Swing Line Loans and, with respect to each Lender with a
Commitment to make Revolving Loans (other than the Swing Line Lender), such
Lender's obligation to participate in Swing Line Loans pursuant to Section
2.3.2.
"Swing Line Loan Commitment Amount" means
$10,000,000.
"Swing Line Note" means a joint and several promissory note of
the Borrowers payable to the Swing Line Lender, in the form of Exhibit A-2
hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Borrowers to
<PAGE>
the Swing Line Lender resulting from outstanding Swing Line Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
"Tax Sharing Agreement" means the Tax Sharing Agreement, dated
as of May 22, 1997, among the Borrowers and Triarc, in form and substance
reasonably satisfactory to the Agents, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Term A Loan" is defined in clause (a) of
Section 2.1.1.
"Term A Loan Commitment Amount" means $100,000,000.
"Term A Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term A Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term B Loan" is defined in clause (b) of
Section 2.1.1.
"Term B Loan Commitment Amount" means $100,000,000.
"Term B Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-2 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term B Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term C Loan" is defined in clause (c) of
Section 2.1.1.
<PAGE>
"Term C Loan Commitment Amount" means $100,000,000.
"Term C Note" means a joint and several promissory note of the
Borrowers payable to the order of any Lender, in the form of Exhibit B-3 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrowers to such
Lender resulting from outstanding Term C Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term Loans" means, collectively, the Term A Loans, the Term B
Loans and the Term C Loans.
"Total Exposure Amount" means, on any date of determination,
the then outstanding principal amount of all Term Loans and the then effective
Revolving Loan Commitment Amount.
"Trademark Security Agreement" means any Trademark Security
Agreement executed and delivered by an Obligor in substantially the form of
Exhibit B to any Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the Term A Loans,
the Term B Loans, the Term C Loans or the Revolving Loan Commitments.
"Transaction" is defined in the fifth recital.
"Transaction Documents" means each of the Stock Purchase
Agreement, the Refinancing Documents, the Tax Sharing Agreement and all other
material agreements, documents, instruments, certificates, filings, consents,
approvals, board of directors resolutions and opinions furnished to or in
connection with the Acquisition, the Equity Issuance, the Refinancing and the
Contribution and the transactions contemplated thereby and hereby, each as
amended, supplemented, amended and restated or otherwise modified from time to
time as permitted in accordance with the terms hereof or any other Loan
Document.
"Triarc" is defined in the third recital.
"Triarc Pledge Agreement" means the Pledge Agreement
executed and delivered by Triarc pursuant to clause (a) of
<PAGE>
Section 5.1.9, substantially in the form of Exhibit J-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"type" means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of New York.
"United States" or "U.S." means the United States of America,
its fifty States and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary of any
Borrower organized under the laws of the United States or any
state, possession or commonwealth thereof.
"Waiver" means any agreement in favor of the Administrative
Agent for the benefit of the Lenders and each Issuer in form and substance
reasonably satisfactory to the Administrative Agent.
"Welfare Plan" means a "welfare plan", as such term is defined
in section 3(1) of ERISA (other than a multi-employer plan as defined in Section
4001 (a)(3) of ERISA).
"wholly-owned Subsidiary" means, with respect to any Person,
any Subsidiary of such Person all of the Capital Stock (including all rights and
options to purchase such Capital Stock) of which, other than directors'
qualifying shares, are owned, beneficially and of record, by such Person and/or
one or more wholly-owned Subsidiaries of such Person.
SECTION b. Use of Defined Terms. Unless
--------------------
otherwise defined or the context
otherwise requires, terms for which
meanings are provided in this
Agreement shall have such meanings
when used in the Disclosure
Schedule and in each Note,
Borrowing Request, Issuance
Request, Continuation/Conversion
Notice, Loan Document, notice and
other communication delivered from
<PAGE>
time to time in connection with
this Agreement or any other Loan
Document.
SECTION c. Cross-References. Unless
----------------
otherwise specified, references in
this Agreement and in each other
Loan Document to any Article or
Section are references to such
Article or Section of this
Agreement or such other Loan
Document, as the case may be, and,
unless otherwise specified,
references in any Article, Section
or definition to any clause are
references to such clause of such
Article, Section or definition.
SECTION d. Accounting and Financial
------------------------
Determinations. Unless otherwise
--------------
specified, all accounting terms
used herein or in any other Loan
Document shall be interpreted, all
accounting determinations and
computations hereunder or
thereunder (including under
Section 7.2.4) shall be made, and
-------------
all financial statements required
to be delivered hereunder or
thereunder shall be prepared in
accordance with, those generally
accepted accounting principles
("GAAP") applied in the preparation
----
of the financial statements
referred to in Section 6.5.
-----------
ARTICLE 2.
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION a. Loans and Commitments. On the
---------------------
terms and subject to the conditions
of the Original Credit Agreement,
the Existing Lenders made the Loans
described in Section 2.1.1, and on
-------------
<PAGE>
the terms and subject to the
conditions of this Agreement
(including Articles II and V), each
Lender severally agrees as otherwise
provided in this Section 2.1:
SECTION i. Term Loans. On the Closing
Date, each Existing Lender
(a) made Loans ("Term A Loans") to each applicable
Borrower, on a joint and several basis for all the Borrowers,
equal to such Lender's Percentage of the aggregate amount of
the Borrowing or Borrowings of Term A Loans requested by such
Borrower to be made on the Closing Date;
(b) made Loans ("Term B Loans") to each applicable
Borrower, on a joint and several basis for all the Borrowers,
equal to such Lender's Percentage of the aggregate amount of
the Borrowing or Borrowings of Term B Loans requested by such
Borrower to be made on the Closing Date; and
(c) made Loans ("Term C Loans") to each applicable
Borrower, on a joint and several basis for all the Borrowers,
equal to such Lender's Percentage of the aggregate amount of
the Borrowing or Borrowings of Term C Loans requested by such
Borrower to be made on the Closing Date.
In connection with the foregoing, Mistic borrowed $25,000,000 in aggregate
principal amount of Term A Loans, $25,000,000 in aggregate principal amount of
Term B Loans, and $25,000,000 in aggregate principal amount of Term C Loans, and
(y) Snapple borrowed $75,000,000 in aggregate principal amount of Term A Loans,
$75,000,000 in aggregate principal amount of Term B Loans, and $75,000,000 in
aggregate principal amount of Term C Loans. No amounts paid or prepaid with
respect to Term A Loans, Term B Loans or Term C Loans may be reborrowed.
<PAGE>
SECTION ii. Revolving Loan Commitment
and Swing Line Loan
Commitment.
(1) From time to time on any Business Day
occurring prior to the Revolving Loan
Commitment Termination Date, each Lender
will make Loans (relative to such Lender,
its "Revolving Loans") to each applicable
Borrower, on a joint and several basis for
all the Borrowers, equal to such Lender's
Percentage of the aggregate amount of the
Borrowing of Revolving Loans requested by
such Borrower to be made on such day. On the
terms and subject to the conditions hereof,
the Borrowers may from time to time borrow,
prepay and reborrow Revolving Loans.
(2) From time to time on any Business Day
occurring prior to the Revolving Loan
Commitment Termination Date, the Swing Line
Lender will make Loans (relative to the
Swing Line Lender, its "Swing Line Loans")
to each applicable Borrower, on a joint and
several basis for all the Borrowers, equal
to the principal amount of the Swing Line
Loans requested by the Borrower to be made
on such day. On the terms and subject to the
conditions hereof, the Borrower may from
time to time borrow, prepay and reborrow
such Swing Line Loans.
SECTION iii. Letter of Credit Commitment.
---------------------------
From time to time on any
Business Day occurring prior
to the Revolving Loan
Commitment Termination Date,
each Issuer will
(1) issue one or more standby or
documentary letters of credit (each
referred to as a "Letter of Credit") for
<PAGE>
the account of each applicable Borrower, on
a joint and several basis for all Borrowers,
in the Stated Amount requested by such
Borrower on such day; or
(2) extend the Stated Expiry Date of an existing
Letter of Credit previously issued hereunder
to a date that is not later than the earlier
of (x) five Business Days prior to the
Revolving Loan Commitment Termination Date
and (y) one year from the date of such
extension.
SECTION iv. Lenders Not Permitted or
------------------------
Required To Make Loans. No
----------------------
Lender shall be permitted or
required to, and the Borrowers
shall not request that any
Lender, make
(a) any Revolving Loan if, after giving effect thereto,
the aggregate outstanding principal amount of all the
Revolving Loans (i) of all the Lenders with Revolving Loan
Commitments and the outstanding principal amount of all Swing
Line Loans, together with the Letter of Credit Outstandings,
would exceed the lesser of (x) the then existing Revolving
Loan Commitment Amount and (y) the then existing Borrowing
Base Amount, or (ii) of such Lender with a Revolving Loan
Commitment, together with such Lender's Percentage of the
Letter of Credit Outstandings and its Percentage of the
outstanding principal amount of all Swing Line Loans, would
exceed such Lender's Percentage of the lesser of (x) the then
existing Revolving Loan Commitment Amount and (y) the then
existing Borrowing Base Amount; or
(b) any Swing Line Loan (i) if, after giving effect
thereto, (x) the aggregate outstanding principal amount of all
Swing Line Loans would exceed the then existing Swing Line
Loan Commitment Amount, or (y) the sum of the Letter of Credit
Outstandings plus the aggregate principal amount of all Swing
Line
<PAGE>
Loans and Revolving Loans then outstanding would exceed the
lesser of (A) the then existing Revolving Loan Commitment
Amount and (B) the then existing Borrowing Base Amount, or
(ii) unless otherwise agreed to by the Swing Line Lender, in
its sole discretion, if the sum of all Swing Line Loans and
Revolving Loans made by the Swing Line Lender plus the Swing
Line Lender's Percentage of the Letter of Credit Outstandings
would exceed the Swing Line Lender's Percentage of the lesser
of (x) the then existing Revolving Loan Commitment Amount and
(y) the then existing Borrowing Base Amount.
SECTION v. Issuer Not Permitted or
-----------------------
Required to Issue Letters of
----------------------------
Credit. No Issuer shall be
------
permitted or required to issue
any Letter of Credit if, after
giving effect thereto, (i) the
aggregate amount of all Letter
of Credit Outstandings would
exceed the Letter of Credit
Commitment Amount or (ii) the
sum of the Letter of Credit
Outstandings plus the
aggregate principal amount of
all Swing Line Loans and
Revolving Loans then
outstanding would exceed the
lesser of (x) then existing
the Revolving Loan Commitment
Amount and (y) the then
existing Borrowing Base
Amount.
SECTION b. Reduction of Commitment Amounts.
The Commitment Amounts are subject
to reduction from time to time
pursuant to this Section 2.2.
SECTION i. Optional. The Borrowers
may, from time to time on any
Business Day, voluntarily
reduce the amount of the
Swing Line Loan Commitment
Amount,
<PAGE>
the Revolving Loan Commitment
Amount or the Letter of
Credit Commitment Amount;
provided, however, that all
such reductions (i) shall be
permanent and (ii) to the
extent such reduction in the
Commitment Amount requires a
mandatory prepayment of
Revolving Loans or Swing Line
Loans pursuant to clause (k)
of Section 3.1.1 (x) in the
case of prepayments of Base
Rate Loans (other than Swing
Line Loans) shall require at
least one Business Day's
prior notice to the
Administrative Agent, and any
partial reduction of any
Commitment Amount shall be in
a minimum amount of
$1,000,000 and in an integral
multiple of $500,000 or (y)
in the case of prepayments of
LIBO Rate Loans, shall
require at least three
Business Days' prior notice
to the Administrative Agent,
and any partial reduction of
any Commitment Amount shall
be in a minimum amount of
$5,000,000 and in an integral
multiple of $1,000,000. Any
reduction of the Revolving
Loan Commitment Amount which
reduces the Revolving Loan
Commitment Amount below (i)
the Swing Line Loan
Commitment Amount or (ii) the
Letter of Credit Commitment
Amount shall result in an
automatic and corresponding
reduction of the Swing Line
Loan Commitment Amount and/or
Letter of Credit Commitment
Amount (as directed
<PAGE>
by the Parent in a notice to
the Administrative Agent
delivered together with the
notice of such voluntary
reduction in the Revolving
Loan Commitment Amount) to an
aggregate amount not in
excess of the Revolving Loan
Commitment Amount, as so
reduced, without any further
action on the part of the
Swing Line Lender or any
Issuer.
SECTION ii. Mandatory. The Revolving
---------
Loan Commitment Amount, the
Swing Line Loan Commitment
Amount and the Letter of
Credit Commitment Amount shall
be reduced as set forth below.
(1) Following the prepayment or repayment in
full of the Term Loans, the Revolving Loan
Commitment Amount shall, without any further
action, automatically and permanently be
reduced on the date and in the amount the
Term Loans, if then outstanding, would
otherwise have been required to be prepaid
with any Net Debt Proceeds, Net Disposition
Proceeds, Net Casualty Proceeds, Net Equity
Proceeds, the Financial Statement Indemnity
Amount or Excess Cash Flow.
(2) Any reduction of the Revolving Loan
Commitment Amount which reduces the
Revolving Loan Commitment Amount below (i)
the Swing Line Loan Commitment Amount or
(ii) the Letter of Credit Commitment Amount
shall result in an automatic and
corresponding reduction of the Swing Line
Loan Commitment Amount and/or Letter of
Credit Commitment Amount (as directed by the
Parent in a notice to the Administrative
Agent) to
<PAGE>
an aggregate amount not in excess of the
Revolving Loan Commitment Amount, as so
reduced, without any further action on the
part of the Swing Line Lender or any
Issuer.
SECTION c. Borrowing Procedures and Funding
Maintenance. Loans shall be made
by the Lenders in accordance with
this Section.
SECTION i. Term Loans and Revolving
------------------------
Loans. By delivering a
-----
Borrowing Request to the
Administrative Agent on or
before 11:00 a.m., New York
time, on a Business Day, any
Borrower may from time to time
irrevocably request, on not
less than one (in the case of
Base Rate Loans) or three (in
the case of LIBO Rate Loans)
nor more than (in each case)
five Business Days' notice,
that a Borrowing be made, in
the case of LIBO Rate Loans,
in a minimum amount of
$5,000,000 and an integral
multiple of $1,000,000, and in
the case of Base Rate Loans,
in a minimum amount of
$1,000,000 and an integral
multiple of $500,000, or, in
either case, in the unused
amount of the applicable
Commitment. On the terms and
subject to the conditions of
this Agreement, each Borrowing
shall be comprised of the type
of Loans, and shall be made on
the Business Day, specified in
such Borrowing Request. On or
before 1:00 p.m., New York
time, on such Business Day
each Lender shall deposit with
<PAGE>
the Administrative Agent same
day funds in an amount equal
to such Lender's Percentage
of the requested Borrowing.
Such deposit will be made to
an account which the
Administrative Agent shall
specify from time to time by
notice to the Lenders. To the
extent funds are received
from the Lenders, the
Administrative Agent shall
make such funds immediately
available to the Borrower
requesting the Loan by wire
transfer or otherwise to the
accounts such Borrower shall
have specified in its
Borrowing Request. No
Lender's obligation to make
any Loan shall be affected by
any other Lender's failure to
make any Loan. The Borrowing
Request for the initial
Credit Extension hereunder
may be delivered prior to the
Closing Date.
SECTION ii. Swing Line Loans.
(1) By telephonic notice, promptly followed
(within three Business Days) by the
facsimile delivery of a confirming Borrowing
Request, to the Swing Line Lender on or
before 11:00 a.m., New York time, on a
Business Day, any Borrower may from time to
time irrevocably request that Swing Line
Loans be made by the Swing Line Lender in an
aggregate minimum principal amount of
$500,000 and an integral multiple of
$100,000. Each request by any Borrower for a
Swing Line Loan shall constitute a
representation and warranty by the Borrowers
that on the date of such request and (if
<PAGE>
different) the date of the making of the
Swing Line Loan, both immediately before and
after giving effect to such Swing Line Loan
and the application of the proceeds thereof,
the statements made in Section 5.2.1 are
true and correct. All Swing Line Loans shall
be made as Base Rate Loans and shall not be
entitled to be converted into LIBO Rate
Loans. The proceeds of each Swing Line Loan
shall be made available by the Swing Line
Lender, by its close of business on the
Business Day telephonic notice is received
by it as provided in the preceding sentences
in immediately available funds, to the
Borrower requesting the Loan by wire
transfer or otherwise to and accounts such
Borrower shall have specified in its notice
therefor.
(2) The Swing Line Lender, at any time in its
sole and absolute discretion, may request
each Lender that has a Revolving Loan
Commitment, and each such Lender, including
the Swing Line Lender hereby agrees, to make
a Revolving Loan (which shall always be
initially funded as a Base Rate Loan) in an
amount equal to such Lender's Percentage of
the amount of the Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on
the date such notice is given. On or before
11:00 a.m. (New York time) on the first
Business Day following receipt by each
Lender of a request to make Revolving Loans
as provided in the preceding sentence, each
such Lender (other than the Swing Line
Lender) shall deposit in an account
specified by the Administrative Agent to the
Lenders from time to time the amount so
requested in same day funds, whereupon such
funds shall be immediately delivered to the
Swing Line Lender (and not a Borrower)
<PAGE>
and applied to repay the Refunded Swing Line
Loans. On the day such Revolving Loans are
made, the Swing Line Lender's Percentage of
the Refunded Swing Line Loans shall be
deemed to be paid. Upon the making of any
Revolving Loan pursuant to this clause, the
amount so funded shall become due under such
Lender's Revolving Note and shall no longer
be owed under the Swing Line Note. Each
Lender's obligation to make the Revolving
Loans referred to in this clause shall be
absolute and unconditional and shall not be
affected by any circumstance, including,
without limitation, (i) any set-off,
counterclaim, recoupment, defense or other
right which such Lender may have against the
Swing Line Lender, any Borrower or any other
Person for any reason whatsoever; (ii) the
occurrence or continuance of any Default;
(iii) any adverse change in the condition
(financial or otherwise) of any Borrower or
any other Obligor, including a reduction in
the Borrowing Base Amount subsequent to the
date of the making of any Swing Line Loan;
(iv) the acceleration or maturity of any
Loans or the termination of the Revolving
Loan Commitment after the making of any
Swing Line Loan; (v) any breach of this
Agreement by any Borrower or any other
Lender; or (vi) any other circumstance,
happening or event whatsoever, whether or
not similar to any of the foregoing.
(3) In the event that (i) any of the Borrowers
or any of their Subsidiaries is subject to
any bankruptcy or insolvency proceedings as
provided in Section 8.1.9 or (ii) the Swing
Line Lender otherwise requests, each Lender
with a Revolving Loan Commitment shall
acquire without recourse or warranty an
<PAGE>
undivided participation interest equal to
such Lender's Percentage of any Swing Line
Loan otherwise required to be repaid by such
Lender pursuant to the preceding clause by
paying to the Swing Line Lender on the date
on which such Lender would otherwise have
been required to make a Revolving Loan in
respect of such Swing Line Loan pursuant to
the preceding clause, in same day funds, an
amount equal to such Lender's Percentage of
such Swing Line Loan, and no Revolving Loans
shall be made by such Lender pursuant to the
preceding clause. From and after the date on
which any Lender purchases an undivided
participation interest in a Swing Line Loan
pursuant to this clause, the Swing Line
Lender shall distribute to such Lender
(appropriately adjusted, in the case of
interest payments, to reflect the period of
time during which such Lender's
participation interest is outstanding and
funded) its ratable amount of all payments
of principal and interest in respect of such
Swing Line Loan in like funds as received;
provided, however, that in the event such
payment received by the Swing Line Lender is
required to be returned to any Borrower,
such Lender shall return to the Swing Line
Lender the portion of any amounts which such
Lender had received from the Swing Line
Lender in like funds.
(4) Notwithstanding anything herein to the
contrary, the Swing Line Lender shall not be
obligated to make any Swing Line Loans if it
has elected after the occurrence of a
Default not to make Swing Line Loans and has
notified the Parent in writing or by
facsimile delivery of such election. The
Swing Line Lender shall promptly give notice
<PAGE>
to the Lenders of such election not to
make Swing Line Loans.
SECTION d. Continuation and Conversion
---------------------------
Elections. By delivering a
---------
Continuation/Conversion Notice to
the Administrative Agent on or
before 12:00 noon, New York time,
on a Business Day, any Borrower may
from time to time irrevocably
elect, on not less than one (in the
case of a conversion of LIBO Rate
Loans to Base Rate Loans) and three
(in the case of a continuation of
LIBO Rate Loans or a conversion of
Base Rate Loans into LIBO Rate
Loans) nor more than (in each case)
five Business Days' notice that
all, or any portion in an aggregate
minimum amount of $5,000,000 and an
integral multiple of $1,000,000, in
the case of the continuation of, or
conversion into, LIBO Rate Loans,
or an aggregate minimum amount of
$1,000,000 and an integral multiple
of $500,000 in the case of the
conversion into Base Rate Loans,
(other than Swing Line Loans as
provided in clause (a) of
----------
Section 2.3.2) be, in the case of
-------------
Base Rate Loans, converted into
LIBO Rate Loans or, in the case of
LIBO Rate Loans, be converted into
a Base Rate Loan or continued as a
LIBO Rate Loan (in the absence of
delivery of a Continuation/
Conversion Notice with respect to
any LIBO Rate Loan at least three
Business Days before the last day
of the then current Interest Period
with respect thereto, such LIBO
Rate Loan shall, on such last day,
automatically convert to a Base
Rate Loan); provided, however, that
-------- -------
(x) each such conversion or
<PAGE>
continuation shall be pro rated
among the applicable outstanding
Loans of the relevant Lenders, and
(y) no portion of the outstanding
principal amount of any Loans may be
continued as, or be converted into,
LIBO Rate Loans when any Default has
occurred and is continuing.
SECTION e. Funding. Each Lender may, if it
-------
so elects, fulfill its obligation
to make, continue or convert LIBO
Rate Loans hereunder by causing one
of its foreign branches or
Affiliates (or an international
banking facility created by such
Lender) to make or maintain such
LIBO Rate Loan, so long as such
action does not result in increased
costs to the Borrowers; provided,
--------
however, that such LIBO Rate Loan
-------
shall nonetheless be deemed to have
been made and to be held by such
Lender, and the obligation of the
Borrowers to repay such LIBO Rate
Loan shall nevertheless be to such
Lender for the account of such
foreign branch, Affiliate or
international banking facility. In
addition, the Borrowers hereby
consent and agree that, for
purposes of any determination to be
made for purposes of Section 4.1,
-----------
4.2, 4.3 or 4.4, it shall be
--- --- ---
conclusively assumed that each
Lender elected to fund all LIBO
Rate Loans by purchasing Dollar
deposits in its LIBOR Office's
interbank eurodollar market.
SECTION f. Issuance Procedures. By
delivering to the Administrative
Agent an Issuance Request on or
before 12:00 noon, New York time,
<PAGE>
on a Business Day, any Borrower may,
from time to time irrevocably
request, on not less than three nor
more than ten Business Days' notice
(or such other notice period as may
be acceptable to the Issuer in its
sole discretion), in the case of an
initial issuance of a Letter of
Credit, and not less than three nor
more than ten Business Days' notice
prior to the then existing Stated
Expiry Date of a Letter of Credit
(or such other notice period as may
be acceptable to the Issuer in its
sole discretion), in the case of a
request for the extension of the
Stated Expiry Date of a Letter of
Credit, that the Issuer issue, or
extend the Stated Expiry Date of, or
amend, as the case may be, an
irrevocable Letter of Credit for
such Borrower's account or for the
account of any wholly-owned U.S.
Subsidiary of such Borrower that is
a signatory to the Guaranty and the
Subsidiary Security Agreement and
whose outstanding Capital Stock is
pledged to the Administrative Agent
for the benefit of the Lenders
pursuant to a Pledge Agreement, in
each case on a joint and several
basis for all Borrowers, in such
form as may be requested by such
Borrower and approved by the Issuer,
solely for the purposes described in
Section 7.1.7. Notwithstanding
anything to the contrary contained
herein or in any separate
application for any Letter of
Credit, the Borrowers hereby
acknowledge and agree that each of
them shall be obligated, jointly and
severally, to reimburse the Issuer
upon each Disbursement of any Letter
of Credit, and they
<PAGE>
shall all be deemed to be obligors
for purposes of each such Letter of
Credit issued hereunder (whether the
account party on such Letter of
Credit is a Borrower or a
wholly-owned U.S. Subsidiary of a
Borrower). Upon receipt of an
Issuance Request, the Administrative
Agent shall promptly notify the
Issuer and each Lender thereof and
the Issuer shall, subject to the
terms and conditions hereof,
including Article V, promptly (but
in no event later than three
Business Days after such
notification) issue a Letter of
Credit. Each Letter of Credit shall
by its terms be stated to expire on
a date (its "Stated Expiry Date") no
later than the earlier to occur of
(i) five Business Days prior to the
Revolving Loan Commitment
Termination Date and (ii) one year
from the date of its issuance. The
Issuer will make available to the
beneficiary thereof the original of
each Letter of Credit which it
issues hereunder.
SECTION i. Other Lenders'
--------------
Participation. Upon the
-------------
issuance of each Letter of
Credit issued by the Issuer
pursuant hereto, and without
further action, each Lender
(other than the Issuer) that
has a Revolving Loan
Commitment shall be deemed to
have irrevocably purchased
from the Issuer, to the extent
of its Percentage to make
Revolving Loans, and the
Issuer shall be deemed to have
irrevocably granted and sold
<PAGE>
to such Lender a
participation interest in
such Letter of Credit
(including the Contingent
Liability and any
Reimbursement Obligation and
all rights with respect
thereto), and such Lender
shall, to the extent of its
Revolving Loan Commitment
Percentage, be responsible
for reimbursing promptly (and
in any event within one
Business Day) the Issuer for
Reimbursement Obligations
which have not been
reimbursed by the Borrowers
in accordance with Section
2.6.3. In addition, such
Lender shall, to the extent
of its Percentage to make
Revolving Loans, be entitled
to receive a ratable portion
of the Letter of Credit fees
payable pursuant to Section
3.3.3 with respect to each
Letter of Credit and of
interest payable pursuant to
Section 3.2 with respect to
any Reimbursement Obligation.
To the extent that any Lender
has reimbursed the Issuer for
a Disbursement as required by
this Section, such Lender
shall be entitled to receive
its ratable portion of any
amounts subsequently received
(from the Borrowers or
otherwise) in respect of such
Disbursement.
SECTION ii. Disbursements; Conversion to
----------------------------
Revolving Loans. The Issuer
---------------
will notify the Parent and the
Administrative Agent promptly
of the presentment for payment
of any Letter of Credit issued
<PAGE>
by the Issuer, together with
notice of the date (the
"Disbursement Date") such
payment shall be made (each
such payment, a
"Disbursement"). Subject to
the terms and provisions of
such Letter of Credit and
this Agreement, the Issuer
shall make such payment to
the beneficiary (or its
designee) of such Letter of
Credit. Prior to 12:00 noon,
New York time, on the first
Business Day following the
Disbursement Date (the
"Disbursement Due Date"), the
Borrowers shall be obligated,
on a joint and several basis,
to reimburse the
Administrative Agent, for the
account of the Issuer, for
all amounts which the Issuer
has disbursed under such
Letter of Credit, together
with interest thereon at the
rate per annum otherwise
applicable to Revolving Loans
(made as Base Rate Loans)
from and including the
Disbursement Date to but
excluding the Disbursement
Due Date and, thereafter
(unless such Disbursement is
converted into a Base Rate
Loan on the Disbursement Due
Date), at a rate per annum
equal to the rate per annum
then in effect with respect
to overdue Revolving Loans
(made as Base Rate Loans)
pursuant to Section 3.2.2 for
the period from and including
the Disbursement Due Date to
but excluding the date of
such reimbursement; provided,
<PAGE>
however, that, if no Default
shall have then occurred and
be continuing, unless the
Borrowers have notified the
Administrative Agent no later
than one Business Day prior
to the Disbursement Due Date
that it will reimburse the
Issuer for the applicable
Disbursement, then the amount
of the Disbursement shall be
deemed to be a Revolving Loan
constituting a Base Rate Loan
and following the giving of
notice thereof by the
Administrative Agent to the
Lenders, each Lender with a
commitment to make Revolving
Loans (other than the Issuer)
will deliver to the Issuer on
the Disbursement Due Date
immediately available funds
in an amount equal to such
Lender's Percentage of such
Revolving Loan. Each
conversion of Disbursement
amounts into Revolving Loans
shall constitute a
representation and warranty
by the Borrowers that on the
date of the making of such
Revolving Loan all of the
statements set forth in
Section 5.2.1 are true and
correct.
SECTION iii. Reimbursement. The
-------------
obligation (a "Reimbursement
-------------
Obligation") of the Borrowers
----------
under Section 2.6.2 to
-------------
reimburse the Issuer with
respect to each Disbursement
(including interest thereon)
not converted into a Base Rate
Loan pursuant to
<PAGE>
Section 2.6.2, and, upon the
failure of the Borrowers to
reimburse the Issuer and the
giving of notice thereof by
the Administrative Agent to
the Lenders, each Lender's
(to the extent it has a
Revolving Loan Commitment)
obligation under Section
2.6.1 to reimburse the Issuer
or fund its Percentage of any
Disbursement converted into a
Base Rate Loan, shall be
absolute and unconditional
under any and all
circumstances and
irrespective of any setoff,
counterclaim or defense to
payment which the Borrowers
or such Lender, as the case
may be, may have or have had
against the Issuer or any
such Lender, including any
defense based upon the
failure of any Disbursement
to conform to the terms of
the applicable Letter of
Credit (if, in the Issuer's
good faith opinion, such
Disbursement is determined to
be appropriate) or any
non-application or
misapplication by the
beneficiary of the proceeds
of such Letter of Credit;
provided, however, that after
paying in full its
Reimbursement Obligation
hereunder, nothing herein
shall adversely affect the
right of the Borrowers or
such Lender, as the case may
be, to commence any
proceeding against the Issuer
for any wrongful Disbursement
made by the Issuer under a
Letter of Credit as a result
of acts or
<PAGE>
omissions constituting gross
negligence or willful
misconduct on the part of the
Issuer.
SECTION iv. Deemed Disbursements. Upon
--------------------
the occurrence and during the
continuation of any Event of
Default of the type described
in Section 8.1.9 or, with
-------------
notice from the Administrative
Agent acting at the direction
of the Required Lenders, upon
the occurrence and during the
continuation of any other
Event of Default,
(1) an amount equal to that portion of all
Letter of Credit Outstandings attributable
to the then aggregate amount which is
undrawn and available under all Letters of
Credit issued and outstanding shall, without
demand upon or notice to the Borrowers or
any other Person, be deemed to have been
paid or disbursed by the Issuer under such
Letters of Credit (notwithstanding that such
amount may not in fact have been so paid or
disbursed); and
(2) upon notification by the Administrative
Agent to the Parent of the obligations of
the Borrowers under this Section, the
Borrowers shall be immediately obligated,
jointly and severally, to reimburse the
Issuer for the amount deemed to have been so
paid or disbursed by the Issuer.
Any amounts so payable by the Borrowers pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
<PAGE>
Agent shall return to the Borrowers all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest at
the Federal Funds Rate, which have not been applied to the satisfaction of such
Obligations.
SECTION v. Nature of Reimbursement
-----------------------
Obligations. The Borrowers
-----------
and, to the extent set forth
in Section 2.6.1, each Lender
-------------
with a Revolving Loan
Commitment, shall assume all
risks of the acts, omissions
or misuse of any Letter of
Credit by the beneficiary
thereof. The Issuer (except
to the extent of its own gross
negligence or willful
misconduct) shall not be
responsible for:
(1) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of
Credit or any document submitted by any
party in connection with the application for
and issuance of a Letter of Credit, even if
it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate,
fraudulent or forged;
(2) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any
instrument transferring or assigning or
purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part,
which may prove to be invalid or ineffective
for any reason;
(3) failure of the beneficiary to comply
fully with conditions required in order
to demand payment under a Letter of
Credit;
<PAGE>
(4) errors, omissions, interruptions or
delays in transmission or delivery of
any messages, by mail, cable, telegraph,
telex or otherwise; or
(5) any loss or delay in the transmission or
otherwise of any document or draft required
in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding (jointly and severally) upon the Borrowers, each
Obligor and each such Lender, and shall not put the Issuer under any resulting
liability to the Borrowers, any Obligor or any such Lender, as the case may be.
SECTION g. Notes. Each Lender's Loans shall
-----
be evidenced by a Note payable to
the order of such Lender in a
maximum principal amount equal to
such Lender's Percentage of the
applicable Commitment Amount. All
Swing Line Loans made by the Swing
Line Lender shall be evidenced by a
Swing Line Note payable to the
order of the Swing Line Lender in a
maximum principal amount equal to
the Swing Line Loan Commitment
Amount. The Borrowers hereby
irrevocably authorize each Lender
to make (or cause to be made)
appropriate notations on the grid
attached to such Lender's Notes (or
on any continuation of such grid),
which notations, if made, shall
evidence, inter alia, the Borrower
----- ----
that has requested the Loan, the
date of, the outstanding principal
amount of, and the interest rate
and Interest Period applicable to
<PAGE>
the Loans evidenced thereby. Such
notations shall be conclusive and
binding on the Borrowers absent
demonstrable error; provided,
however, that the failure of any
Lender to make any such notations
shall not limit or otherwise affect
any Obligations of the Borrowers or
any other Obligor.
ARTICLE 3.
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION a. Repayments and Prepayments;
Application.
SECTION i. Repayments and Prepayments.
--------------------------
The Borrowers shall be jointly
and severally obligated to
repay in full the unpaid
principal amount of each Loan
upon the Stated Maturity Date
therefor. Prior thereto, the
Borrowers jointly and
severally acknowledge,
covenant and agree that any
Borrower
(1) may, from time to time on any Business
Day, make a voluntary prepayment, in
whole or in part, of the outstanding
principal amount of any
(a) Loans (other than Swing Line
Loans); provided, however, that
(i) (x) subject to clause (b) of
Section 3.1.2, any such
prepayment of Term A Loans,
Term B Loans or Term C Loans
shall be made pro rata among
Term A Loans, Term B Loans
and Term C Loans, as
applicable,
<PAGE>
of the same type and, if
applicable, having the same
Interest Period of all
Lenders that have made such
Term A Loans, Term B Loans or
Term C Loans, and (y) any
such prepayment of Revolving
Loans shall be made pro rata
among the Revolving Loans of
the same type and, if
applicable, having the same
Interest Period of all
Lenders that have made such
Revolving Loans;
(ii) each Borrower shall comply
with Section 4.4 in the event
that any LIBO Rate Loan is
prepaid on any day other than
the last day of the Interest
Period for such Loan;
(iii) all such voluntary
prepayments of LIBO
Rate Loans shall
require at least three
but no more than five
Business Days' prior
written notice to the
Administrative Agent;
(iv) all such voluntary
prepayments of Base Rate
Loans shall require at least
one but no more than five
Business Days' prior written
notice to the Administrative
Agent; and
(v) all such voluntary partial
prepayments shall be, in the
case of LIBO Rate Loans, in
an aggregate minimum amount
of $5,000,000 and an integral
multiple of $1,000,000 and,
in the case of Base Rate
Loans,
<PAGE>
in an aggregate minimum amount
of $1,000,000 and an integral
multiple of $500,000; or
(b) Swing Line Loans, provided that
--------
(x) all such voluntary prepayments
shall require prior telephonic
notice to the Swing Line Lender on
or before 1:00 p.m., New York time,
on the day of such prepayment (such
notice to be confirmed in writing
within 24 hours thereafter) and (y)
all such voluntary prepayments
shall be in an aggregate minimum
amount of $250,000 and an integral
multiple of $100,000;
(2) shall, on each date when any reduction in
the then existing Borrowing Base Amount
shall become effective, make a mandatory
prepayment of Revolving Loans and (if
necessary) Swing Line Loans and (if
necessary) deposit with the Administrative
Agent cash collateral for Letter of Credit
Outstandings, in an aggregate amount equal
to the excess, if any, of the aggregate,
outstanding principal amount of all
Revolving Loans, Swing Line Loans and Letter
of Credit Outstandings over the then
existing Borrowing Base Amount, to be
applied as set forth in Section 3.1.2;
(3) shall, no later than one Business Day
following the receipt of any Net Disposition
Proceeds or Net Debt Proceeds by the Parent
or any of its Subsidiaries (including Mistic
and Snapple), deliver to the Administrative
Agent a calculation of the amount of such
Net Disposition Proceeds or Net Debt
Proceeds, as the case may be, and make a
mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Disposition
Proceeds or Net Debt
<PAGE>
Proceeds, as the case may be, to be applied
as set forth in Section 3.1.2; provided,
that no such mandatory prepayment of Net
Disposition Proceeds shall be required under
this clause (c) if (i) the Parent notifies
the Agents no later than 15 days following
the execution and delivery of a definitive
agreement for the sale, transfer or other
disposition of such assets that it is such
Person's good faith intention to apply such
Net Disposition Proceeds toward the
acquisition of replacement assets and (ii)
such Person in fact so uses such Net
Disposition Proceeds within 180 days
following the receipt by such Person of Net
Disposition Proceeds, or such Person
executes and delivers a definitive agreement
within such 180-day period to use such Net
Disposition Proceeds within 270 days
following the receipt by such Person of Net
Disposition Proceeds, to acquire such
replacement assets, with the amount of Net
Disposition Proceeds unused after such 180
day or 270 day period, as the case may be,
being applied to prepay the Loans pursuant
to Section 3.1.2; and provided further, that
up to $25,000,000 of Net Debt Proceeds from
the issuance and sale of Permitted Senior
Subordinated Debt may be applied to redeem
Capital Stock issued in connection with the
Equity Issuance;
(4) shall, no later than five Business Days
following the delivery of the annual audited
financial reports required pursuant to
clause (b) of Section 7.1.1 (beginning with
the financial reports delivered in respect
of the 1997 Fiscal Year), deliver to the
Administrative Agent a calculation of the
Excess Cash Flow for the prior Fiscal Year
and, no later than five
<PAGE>
Business Days following the delivery of such
calculation, make a mandatory prepayment of
the Term Loans in an amount equal to 75% of
Excess Cash Flow (if any) for such Fiscal
Year (or in the case of the 1997 Fiscal
Year, the portion of such Fiscal Year
following the Closing Date), to be applied
as set forth in Section 3.1.2;
(5) shall, concurrently with the receipt of any
Net Equity Proceeds by the Parent or any of
its Subsidiaries (including Mistic and
Snapple), deliver to the Administrative
Agent a calculation of the amount of such
Net Equity Proceeds, and no later than five
Business Days following the delivery of such
calculation, make a mandatory prepayment of
the Term Loans in an amount equal to 50% of
such Net Equity Proceeds, to be applied as
set forth in Section 3.1.2;
(6) shall, within 60 days following the receipt
of any Net Casualty Proceeds in excess of
$500,000 (individually or in the aggregate
over the course of a Fiscal Year), make a
mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Casualty
Proceeds, to be applied as set forth in
Section 3.1.2; provided, that no mandatory
prepayment of Net Casualty Proceeds shall be
required under this clause (f) if (i) the
Parent notifies the Agents no later than 60
days following the receipt of such Net
Casualty Proceeds of its or its Subsidiary's
good faith intention to apply such Net
Casualty Proceeds to the rebuilding or
replacement of such damaged, destroyed or
condemned assets or property and (ii) the
Parent or such Subsidiary in fact uses such
Net Casualty Proceeds to begin rebuilding or
<PAGE>
replacing the damaged, destroyed or
condemned assets or property within 180 days
following the receipt of such Net Casualty
Proceeds and continues diligently to
complete such rebuilding or replacement of
such damaged, destroyed or condemned assets
or property within the time reasonably
required therefore (the "Rebuilding and
Replacement Work"), with the amount of Net
Casualty Proceeds unused after the
completion of such Rebuilding and
Replacement Work being applied to the Loans
pursuant to Section 3.1.2;
(7) shall, concurrently with the receipt by
Triarc or any other Person of any amounts
paid by the Seller pursuant to Section 7.3
of the Stock Purchase Agreement as a result
of a breach by the Seller of its
representations and warranties contained in
Section 3.7 of the Stock Purchase Agreement
(the "Financial Statement Indemnity
Amount"), deliver to the Administrative
Agent a calculation of the amount of such
Financial Statement Indemnity Amount, and no
later than five Business Days following the
delivery of such calculation, make a
mandatory prepayment of the Term Loans in an
amount equal to 100% of such Financial
Statement Indemnity Amount, to be applied as
set forth in Section 3.1.2;
(8) shall, on the Stated Maturity Date and on
each Quarterly Payment Date set forth below,
make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all
Term A Loans in an amount equal to the
amount set forth below opposite the Stated
Maturity Date or such Quarterly Payment
Date, as applicable (as such amounts may
have
<PAGE>
otherwise been reduced pursuant to this
Agreement):
SCHEDULED
TERM A PRINCIPAL
QUARTERLY PAYMENT DATE REPAYMENT
September 1, 1997 $1,250,000
December 1, 1997 $1,250,000
March 1, 1998 $1,250,000
June 1, 1998 $1,250,000
September 1, 1998 $2,500,000
December 1, 1998 $2,500,000
March 1, 1999 $2,500,000
June 1, 1999 $2,500,000
September 1, 1999 $3,750,000
December 1, 1999 $3,750,000
March 1, 2000 $3,750,000
June 1, 2000 $3,750,000
September 1, 2000 $5,000,000
December 1, 2000 $5,000,000
March 1, 2001 $5,000,000
June 1, 2001 $5,000,000
September 1, 2001 $6,250,000
December 1, 2001 $6,250,000
March 1, 2002 $6,250,000
June 1, 2002 $6,250,000
September 1, 2002 $6,250,000
December 1, 2002 $6,250,000
March 1, 2003 $6,250,000
Stated Maturity Date $6,250,000
TOTAL: $100,000,000
(9) shall, on the Stated Maturity Date and on
each Quarterly Payment Date set forth below,
make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all
Term B Loans in an amount equal to the
amount set forth below
<PAGE>
opposite the Stated Maturity Date or such
Quarterly Payment Date, as applicable (as
such amounts may have otherwise been reduced
pursuant to this Agreement):
SCHEDULED
TERM B PRINCIPAL
QUARTERLY PAYMENT DATE REPAYMENT
September 1, 1997 $250,000
December 1, 1997 $250,000
March 1, 1998 $250,000
June 1, 1998 $250,000
September 1, 1998 $250,000
December 1, 1998 $250,000
March 1, 1999 $250,000
June 1, 1999 $250,000
September 1, 1999 $250,000
December 1, 1999 $250,000
March 1, 2000 $250,000
June 1, 2000 $250,000
September 1, 2000 $250,000
December 1, 2000 $250,000
March 1, 2001 $250,000
June 1, 2001 $250,000
September 1, 2001 $6,250,000
December 1, 2001 $250,000
March 1, 2002 $250,000
June 1, 2002 $250,000
September 1, 2002 $250,000
December 1, 2002 $250,000
March 1, 2003 $250,000
June 1, 2003 $250,000
September 1, 2003 $23,500,000
December 1, 2003 $23,500,000
March 1, 2004 $23,500,000
<PAGE>
Stated Maturity Date $23,500,000
TOTAL:$100,000,000
(10) shall, on the Stated Maturity Date and on
each Quarterly Payment Date set forth below,
make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all
Term C Loans in an amount equal to the
amount set forth below opposite the Stated
Maturity Date or such Quarterly Payment
Date, as applicable (as such amounts may
have otherwise been reduced pursuant to this
Agreement):
SCHEDULED
TERM C PRINCIPAL
QUARTERLY PAYMENT DATE REPAYMENT
September 1, 1997 $250,000
December 1, 1997 $250,000
March 1, 1998 $250,000
June 1, 1998 $250,000
September 1, 1998 $250,000
December 1, 1998 $250,000
March 1, 1999 $250,000
June 1, 1999 $250,000
September 1, 1999 $250,000
December 1, 1999 $250,000
March 1, 2000 $250,000
June 1, 2000 $250,000
September 1, 2000 $250,000
December 1, 2000 $250,000
March 1, 2001 $250,000
June 1, 200 $250,000
September 1, 2001 $250,000
December 1, 2001 $250,000
March 1, 2002 $250,000
June 1, 2002 $250,000
September 1, 2002 $250,000
<PAGE>
December 1, 2002 $250,000
March 1, 2003 $250,000
June 1, 2003 $250,000
September 1, 2003 $250,000
December 1, 2003 $250,000
March 1, 2004 $250,000
June 1, 2004 $250,000
September 1, 2004 $23,250,000
December 1, 2004 $23,250,000
March 1, 2005 $23,250,000
Stated Maturity Date $23,250,000
TOTAL: $100,000,000
(k) shall, on each date when a reduction in the
Revolving Loan Commitment Amount or the Swing Line Loan
Commitment Amount shall become effective pursuant to Section
2.2, make a mandatory prepayment of Revolving Loans or Swing
Line Loans (as the case may be) and (if necessary) deposit
with the Administrative Agent cash collateral for Letter of
Credit Outstandings in an aggregate amount equal to the
excess, if any, of the aggregate outstanding principal amount
of all Revolving Loans, Swing Line Loans and Letter of Credit
Outstandings over the Revolving Loan Commitment Amount as so
reduced; and
(l) shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans or Obligations pursuant to
Section 8.2 or Section 8.3, repay all Loans and provide the
Administrative Agent with cash collateral in an amount equal
to the Letter of Credit Outstandings, unless, pursuant to
Section 8.3, only a portion of all Loans and Obligations are
so accelerated (in which case the portion so accelerated shall
be so prepaid or cash collateralized with the Administrative
Agent).
SECTION ii. Application. (a) Subject
-----------
to clause (b) below, each
----------
prepayment or repayment of the
principal of the Loans shall
be applied, to the extent of
such prepayment or repayment,
<PAGE>
first, to the principal
amount thereof being
maintained as Base Rate
Loans, and second, to the
principal amount thereof
being maintained as LIBO Rate
Loans.
(b) Each voluntary prepayment of Term Loans and each
prepayment of Term Loans made pursuant to clauses (c), (d), (e), (f) and (g) of
Section 3.1.1 shall be applied pro rata to a mandatory prepayment of the
outstanding principal amount of all Term A Loans, Term B Loans and Term C Loans
(with the amount of such prepayment of the Term A Loans, Term B Loans and the
Term C Loans being applied to the remaining Term A Loans, Term B Loan or Term C
Loan amortization payments required pursuant to clauses (h), (i) and (j) of
Section 3.1.1, in each case pro rata in accordance with the amount of each such
remaining Term Loan amortization payment), until all such Term A Loans, Term B
Loans and Term C Loans have been paid in full; provided, however, that (i) any
Lender that has Term B Loans or Term C Loans outstanding may, by delivering a
notice to the Administrative Agent at least one Business Day prior to the date
that such prepayment is to be made, elect not to have its pro rata share of Term
Loans prepaid, and upon any such election the Administrative Agent shall apply
the amount that otherwise would have prepaid such Lender's Term Loans to the
prepayment of Term A Loans, until paid in full, and then to the prepayment of
outstanding Revolving Loans and (ii) no such prepayment of outstanding Revolving
Loans pursuant to clause (i) of this proviso shall result in a reduction of the
Revolving Loan Commitment Amount.
SECTION b. Interest Provisions. Interest on the
outstanding principal amount of Loans shall
accrue and be payable in accordance with this
Section 3.2.
SECTION i. Rates. Pursuant to an appropriately
-----
delivered Borrowing Request or
Continuation/Conversion Notice, the
Borrowers may elect that Loans
comprising a Borrowing accrue interest
at a rate per annum:
(1) on that portion maintained from time to
time as a Base Rate Loan, equal to the sum of
<PAGE>
the Alternate Base Rate from time to time in
effect plus the Applicable Margin for Base
Rate Loans;
(2) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate (Reserve
Adjusted) for such Interest Period plus the
Applicable Margin for LIBO Rate Loans; and
(3) with respect to Swing Line Loans, equal to the sum
of the Alternate Base Rate from time to time in
effect plus the Applicable Margin for Revolving
Loans.
SECTION ii. Post-Maturity Rates. After the date
-------------------
any principal amount of any Loan is due
and payable (whether on the Stated
Maturity Date, upon acceleration or
otherwise), or after any other monetary
Obligation (other than overdue
Reimbursement Obligations, which shall
bear interest as provided in
Section 2.6.2) of the Borrowers shall
-------------
have become due and payable, the
Borrowers shall be obligated, on a joint
and several basis, to pay, but only to
the extent permitted by law, interest
(after as well as before judgment) on
such amounts at a rate per annum equal
to the Alternate Base Rate plus a margin
of 2%.
SECTION iii. Payment Dates. Interest accrued on
each Loan shall be payable, without
duplication:
(1) on the Stated Maturity Date therefor;
(2) on the date of any payment or prepayment,
in whole or in part, of principal outstanding
on such Loan;
<PAGE>
(3) with respect to Base Rate Loans, on each
Quarterly Payment Date occurring after the
date of the initial Borrowing hereunder;
(4) with respect to LIBO Rate Loans, on the last day of
each applicable Interest Period (and, if such
Interest Period shall exceed three months, on the
third month anniversary of such Interest Period);
(5) with respect to any Base Rate Loans converted into
LIBO Rate Loans on a day when interest would not
otherwise have been payable pursuant to clause (c),
on the date of such conversion; and
(6) on that portion of any Loans the Stated Maturity
Date of which is accelerated pursuant to Section
8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION c. Fees. The Borrowers, jointly and
severally, agree to pay the fees set forth in
this Section 3.3. All such fees shall be
non-refundable.
SECTION i. Commitment Fee. The Borrowers,
--------------
jointly and severally, agree to pay to
the Administrative Agent for the account
of each Lender that has a Revolving Loan
Commitment, for the period (including
any portion thereof when any of its
Commitments are suspended by reason of
the Borrowers' inability to satisfy any
condition of Article V) commencing on
---------
the Closing Date and continuing through
the Revolving Loan Commitment
Termination Date, a commitment fee at
the rate of the Applicable Commitment
<PAGE>
Fee on such Lender's Percentage of the sum
of the average daily unused portion of the
Revolving Loan Commitment Amount, whether or
not then available. Such commitment fees
shall be payable in arrears on each
Quarterly Payment Date and on the Revolving
Loan Commitment Termination Date. The making
of Swing Line Loans by the Swing Line Lender
shall not constitute usage under the
Revolving Loan Commitment for the purpose of
calculation of the commitment fees to be
paid by the Borrowers to the Lenders
pursuant to this Section 3.3.1.
SECTION ii. Agents' and Arrangers' Fees. The
---------------------------
Borrowers, jointly and severally, agree
to pay to each of the Agents, the
Arranger and the Co-Arranger, for their
own respective accounts, the non-
refundable fees in the amounts and on
the dates set forth in the Fee Letters.
SECTION iii. Letter of Credit Fees. The Borrowers,
---------------------
jointly and severally, agree to pay to
the Administrative Agent, for the pro
---
rata account of the Issuer and each
----
Lender that has a Revolving Loan
Commitment, a Letter of Credit fee for
each day on which there shall be any
Letters of Credit outstanding on the
aggregate undrawn amount of all Letters
of Credit outstanding on such day, at a
rate per annum equal to the Applicable
Margin for such day for Revolving Loans
that are maintained as LIBO Rate Loans.
The Borrowers further, jointly and
severally, agree to pay to the Issuer
for its own account, for each day on
which there shall be any Letters of
Credit outstanding, an issuance fee in
an amount equal to 1/4 of 1% per annum
of the Stated Amount of such Letters of
Credit. All such fees shall be payable
in arrears on each Quarterly Payment
<PAGE>
Date and on the Revolving Loan Commitment
Termination Date for any period then ending
for which such fee shall not theretofore
have been paid, commencing on the first such
date after the issuance of such Letter of
Credit.
ARTICLE 4.
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION a. LIBO Rate Lending Unlawful. If any Lender
--------------------------
shall determine (which determination shall,
upon notice thereof to the Parent and the
Lenders, be conclusive and binding on the
Borrowers) that the introduction of or any
change in or in the interpretation of any law
makes it unlawful, or any central bank or
other governmental authority asserts that it
is unlawful, for such Lender to make,
continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan of a
certain type, the obligations of all Lenders
to make, continue, maintain or convert into
any such Loans shall, upon such
determination, forthwith be suspended until
such Lender shall notify the Administrative
Agent that the circumstances causing such
suspension no longer exist, and all LIBO Rate
Loans of such type shall automatically
convert into Base Rate Loans at the end of
the then current Interest Periods with
respect thereto or sooner, if required by
such law or assertion.
SECTION b. Deposits Unavailable. If the
Administrative Agent shall have reasonably
determined that
(1) Dollar certificates of deposit or Dollar deposits,
as the case may be, in the relevant amount and for
the relevant Interest Period are not available to
the Administrative Agent in its relevant market; or
<PAGE>
(2) by reason of circumstances affecting the
Administrative Agent's relevant market, adequate
means do not exist for ascertaining the interest
rate applicable hereunder to LIBO Rate Loans of
such type,
then, upon notice from the Administrative Agent to the Parent and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans of such
type shall forthwith be suspended until the Administrative Agent shall notify
the Parent and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION c. Increased LIBO Rate Loan Costs, etc. The
-----------------------------------
Borrowers, jointly and severally, agree to
reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in
the amount of any sum receivable by such
Lender in respect of, making, continuing or
maintaining (or of its obligation to make,
continue or maintain) any Loans as, or of
converting (or of its obligation to convert)
any Loans into, LIBO Rate Loans. Such Lender
shall promptly notify the Administrative
Agent and the Parent in writing of the
occurrence of any such event, such notice to
state, in reasonable detail, the reasons
therefor and the additional amount required
fully to compensate such Lender for such
increased cost or reduced amount. Such
additional amounts shall be payable by the
Borrowers, and the Borrowers hereby
acknowledge and agree that they are jointly
and severally liable to pay such additional
amounts, directly to such Lender within five
days of its receipt of such notice, and such
notice shall, in the absence of demonstrable
error, be conclusive and binding on the
Borrowers.
SECTION d. Funding Losses. In the event any Lender
shall incur any loss or expense (including
any loss or expense incurred by reason of the
<PAGE>
liquidation or reemployment of deposits or other
funds acquired by such Lender to make, continue or
maintain any portion of the principal amount of any
Loan as, or to convert any portion of the principal
amount of any Loan into, a LIBO Rate Loan) as a
result of
(1) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date
other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(2) any Loans not being made as LIBO Rate Loans
in accordance with the Borrowing Request
therefor; or
(3) any Loans not being continued as, or
converted into, LIBO Rate Loans in accordance
with the Continuation/ Conversion Notice
therefor,
then, upon the written notice of such Lender to the Parent (with a copy to the
Administrative Agent), the Borrowers shall, and the Borrowers hereby acknowledge
and agree that they are jointly and severally liable to pay, within five days of
its receipt thereof, directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of demonstrable error, be conclusive and binding
on the Borrowers.
SECTION e. Increased Capital Costs. If any change in,
-----------------------
or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in
of, any law or regulation, directive,
guideline, decision or request (whether or
not having the force of law) of any court,
central bank, regulator or other governmental
authority affects or would affect the amount
of capital required or expected to be
maintained by any Lender (including as
Issuer) or any Person controlling such
<PAGE>
Lender, and such Lender determines (in its
reasonable business judgement) that the rate of
return on its or such controlling Person's capital
as a consequence of its Commitments, issuance of or
participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below
that which such Lender or such controlling Person
could have achieved but for the occurrence of any
such circumstance, then, in any such case upon
notice from time to time by such Lender to the
Parent, the Borrowers shall be jointly and
severally obligated to immediately pay directly to
such Lender additional amounts sufficient to
compensate such Lender or such controlling Person
for such reduction in rate of return. A statement
of such Lender as to any such additional amount or
amounts (including calculations thereof in
reasonable detail) shall, in the absence of
demonstrable error, be conclusive and binding on
the Borrowers. In determining such amount, such
Lender may use any method of averaging and
attribution that it (in its reasonable business
judgement) shall deem applicable.
SECTION f. Taxes. (a) All payments by a Borrower
-----
of principal of, and interest on, the
Loans and all other amounts payable
hereunder shall be made free and clear
of and without deduction for any present
or future income, excise, stamp or
franchise taxes and other taxes, fees,
duties, withholdings or other charges of
any nature whatsoever imposed by any
taxing authority, but excluding
franchise taxes and taxes imposed on or
measured by any Lender's net income or
receipts, in the case of each such
exclusion as a result of a connection
between such Lender and the relevant
taxing jurisdiction other than solely by
reason of such Lender having performed
its obligations under this Agreement or
any Note (not including by having a
<PAGE>
lending or similar office in the relevant
taxing jurisdiction) (such non- excluded
items being called "Taxes"). In the event
that any withholding or deduction from any
payment to be made by a Borrower hereunder
is required in respect of any Taxes pursuant
to any applicable law, rule or regulation,
then the Borrowers shall be jointly and
severally obligated to
(a) pay directly to the relevant authority
the full amount required to be so
withheld or deducted;
(b) promptly forward to the Administrative
Agent an official receipt or other
documentation satisfactory to the
Administrative Agent evidencing such
payment to such authority; and
(c) pay to the Administrative Agent for
the account of the Lenders such
additional amount or amounts as is
necessary to ensure that the net amount
actually received by each Lender will
equal the full amount such Lender would
have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against any Agent or any Lender
with respect to any payment received by any such Agent or such Lender hereunder,
such Agent or such Lender may pay such Taxes and the Borrowers shall be jointly
and severally obligated to promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted. (b) Notwithstanding any other provision of
this Section 4.6, (i) the Borrowers shall not be required to pay any amounts
pursuant to this Section 4.6 in respect of U.S. federal withholding taxes (other
than to the extent imposed as a result of a change in law enacted after the date
hereof) and (ii) the Borrowers shall have no obligation to make any greater
payment
<PAGE>
under this Section 4.6 to or with respect to any Assignee Lender than the
Borrowers would have been obligated to make to or with respect to the relevant
assignor or transferor Lender with respect to the rights assigned or transferred
(other than as a result of a change in law enacted after the time of the
assignment or transfer).
(c) If any Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrowers shall, jointly and severally, indemnify the Lenders for
any incremental Taxes, interest or penalties that may become payable by any
Lender as a result of any such failure. For purposes of this Section 4.6, a
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrowers.
(d) Each Lender shall, prior to the due date of any payments under the
Notes, execute and deliver to the Parent and the Administrative Agent, one or
more (as the Parent or the Administrative Agent may reasonably request)(i)
either (x) if such Lender is organized under the laws of a jurisdiction other
than the United States or a State thereof, then (x) if such Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (A) United States
Internal Revenue Service Form 1001 or 4224, or successor applicable form, as the
case may be, and (B) United States Internal Revenue Service Form W-8, or
successor applicable form, as the case may be or, if such Lender is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and is claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Lender delivers a Form W-8,
a certificate representing that such Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10- percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Lender
claiming complete exemption from, or a reduced rate of, U.S. Federal withholding
tax on payments of interest by the Borrower under this Agreement and the other
Loan Documents; or (y) if such Lender is organized under the laws of the United
States or a State thereof, then United States Internal
<PAGE>
Revenue Service Form W-9, or successor applicable form, as the case may be, and
(ii) copies of replacements of any such forms on or before the date that any
such forms expire or after the occurrence of any event requiring a change in the
most recent form previously delivered by it hereunder. Each Person that shall
become a Lender shall, upon the effectiveness of the related transfer, be
required to provide all of the forms required pursuant to this Section 4.6.
(e) To the extent that any Borrower pays any indemnity payment or
additional amount pursuant to Section 4.6(a) and any Lender receives a refund of
the Tax that such Lender determines, in its good faith judgment, is allocable to
any or all such sums, then such Lender shall promptly pay over all such refunded
sums to such Borrower. Nothing in this Section 4.6 shall require a Lender to
disclose or detail the basis of its determination of the amount of any such
refund that is allocable to an indemnity payment or additional amount paid by
any Borrower hereunder, or otherwise to disclose to any Borrower its tax returns
or other confidential or proprietary fiscal information.
(f) Any Lender claiming any indemnity payment or additional amounts
payable pursuant to this Section 4.6 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
reasonably requested in writing by the Parent or to change the jurisdiction of
its applicable lending office if the making of such a filing or change would
avoid the need for or reduce the amount of any such indemnity payment or
additional amounts that may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender.
SECTION g. Payments, Computations, etc. Unless
---------------------------
otherwise expressly provided, all payments by
or on behalf of each Borrower pursuant to
this Agreement, the Notes or any other Loan
Document shall be made by such Borrower to
the Administrative Agent for the pro rata
--- ----
account of the Lenders entitled to receive
such payment. All such payments required to
be made to the Administrative Agent shall be
made, without setoff, deduction or
counterclaim, not later than 11:00 a.m., New
York time, on the date due, in same day or
immediately available funds, to such account
<PAGE>
as the Administrative Agent shall specify from time
to time by notice to the Parent. Funds received
after that time shall be deemed to have been
received by the Administrative Agent on the next
succeeding Business Day. The Administrative Agent
shall promptly remit in same day funds to each
Lender its share, if any, of such payments received
by the Administrative Agent for the account of such
Lender. All interest and fees shall be computed on
the basis of the actual number of days (including
the first day but excluding the last day) occurring
during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in
the case of interest on a Base Rate Loan (other
than when calculated with respect to the Federal
Funds Rate), 365 days or, if appropriate, 366
days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business
Day, such payment shall (except as otherwise
required by clause (c) of the definition of the
term "Interest Period") be made on the next
succeeding Business Day and such extension of time
shall be included in computing interest and fees,
if any, in connection with such payment.
SECTION h. Sharing of Payments. If any Lender shall
-------------------
obtain any payment or other recovery (whether
voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan
(other than pursuant to the terms of Sections
--------
4.3, 4.4 and 4.5) or Letter of Credit in
--- --- ---
excess of its pro rata share of payments then
--- ----
or therewith obtained by all Lenders, such
Lender shall purchase from the other Lenders
such participation in Loans made by them
and/or Letters of Credit as shall be
necessary to cause such purchasing Lender to
share the excess payment or other recovery
ratably with each of them; provided, however,
-------- -------
that if all or any portion of the excess
payment or other recovery is thereafter
<PAGE>
recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a
participation to the purchasing Lender shall repay
to the purchasing Lender the purchase price to the
ratable extent of such recovery together with an
amount equal to such selling Lender's ratable share
(according to the proportion of
(1) the amount of such selling Lender's
required repayment to the purchasing Lender
to
(2) the total amount so recovered from the
purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION i. Setoff. Each Lender shall, upon the
------
occurrence of any Default described in
clauses (a) through (d) of Section 8.1.9 or,
----------- --- -------------
with the consent of the Required Lenders,
upon the occurrence of any other Event of
Default, have the right to appropriate and
apply to the payment of the Obligations owing
to it (whether or not then due), and (as
security for such Obligations) such Borrower
hereby grants to each Lender a continuing
security interest in, any and all balances,
credits, deposits, accounts or moneys of each
<PAGE>
Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however,
that any such appropriation and application shall
be subject to the provisions of Section 4.8. Each
Lender agrees promptly to notify the Parent and the
Administrative Agent after any such setoff and
application made by such Lender; provided, however,
that the failure to give such notice shall not
affect the validity of such setoff and application.
The rights of each Lender under this Section are in
addition to other rights and remedies (including
other rights of setoff under applicable law or
otherwise) which such Lender may have.
SECTION j. Use of Proceeds. The Borrowers shall apply
---------------
the proceeds of each Borrowing in accordance
with Section 7.1.9; without limiting the
-------------
foregoing, no proceeds of any Loan will be
used to acquire any equity security of a
class which is registered pursuant to
Section 12 of the Securities Exchange Act of
1934 or any "margin stock", as defined in
F.R.S. Board Regulation U.
ARTICLE 5.
CONDITIONS PRECEDENT
SECTION a. Initial Credit Extension and Amendment
--------------------------------------
Effective Date. The obligations of the
--------------
Existing Lenders to make the initial Credit
Extension were, and the Amendment Effective
Date shall be, subject to the prior or
concurrent satisfaction of each of the
conditions precedent set forth in this
Section 5.1.
-----------
SECTION i. Resolutions, etc. The Syndication
Agent and the Documentation Agent shall have
received from each Obligor a certificate,
dated the date of the
<PAGE>
initial Credit Extension, of its Secretary
or Assistant Secretary as to (i) resolutions
of its Board of Directors then in full force
and effect authorizing the execution,
delivery and performance of this Agreement,
the Notes and each other Loan Document to be
executed by it, and (ii) the incumbency and
signatures of those of its officers
authorized to act with respect to this
Agreement, the Notes and each other Loan
Document executed by it, upon which
certificate each Agent, each Lender and each
Issuer may conclusively rely until it shall
have received a further certificate of the
Secretary or Assistant Secretary of an
Obligor canceling or amending such prior
certificate with respect to such Obligor.
SECTION ii. Delivery of Notes. The Syndication
Agent shall have received, for the
account of each Lender, the Notes duly
executed and delivered by the Borrowers.
SECTION iii. Transaction Consummated. The
-----------------------
Syndication Agent and the Documentation
Agent shall have received evidence
satisfactory to each of them that all
actions necessary to consummate the
Transaction were taken or completed in
accordance with law and the Transaction
Documents, and that the Transaction
shall be consummated for an aggregate
amount not in excess of $415,100,000
(including all amounts necessary to pay
related reasonable fees and expenses,
which shall not exceed $23,000,000).
SECTION iv. Closing Date Certificate. The
Syndication Agent and the Documentation
Agent shall have received, with
counterparts for each Lender, the
<PAGE>
Closing Date Certificate, substantially in
the form of Exhibit G hereto, dated the date
of the initial Credit Extension and duly
executed and delivered by the president, the
chief executive, financial or accounting (or
equivalent) Authorized Officer of each
Borrower, in which certificate each Borrower
shall agree and acknowledge that the
statements made therein shall be deemed to
be true and correct representations and
warranties of the Borrowers made as of such
date under this Agreement, and, at the time
of delivery of such certificate, such
statements shall in fact be true and correct
in all material respects.
SECTION v. Transaction Documents, etc. The
--------------------------
Syndication Agent and the Documentation
Agent shall have received copies of
fully executed copies of the Transaction
Documents, certified to be true and
complete copies thereof by an Authorized
Officer of each Borrower. As of the
time of delivery the Transactions
Documents shall have been, and shall
continue to be, in full force and effect
and shall not have been modified or
waived in any material respect, nor
shall there have been any forbearance to
exercise any material rights with
respect to any of the terms or
provisions relating to the conditions to
the consummation of the Transaction set
forth in the Transaction Documents
unless otherwise agreed to by the
Required Lenders.
SECTION vi. Payment of Outstanding Indebtedness,
------------------------------------
etc. All Indebtedness identified in
---
Item 7.2.2(b) ("Indebtedness to be
-------------
Paid") of the Disclosure Schedule,
together with all interest, all
prepayment premiums and other amounts
<PAGE>
due and payable with respect thereto, shall
have been paid in full (including, to the
extent necessary, from proceeds of the
initial Credit Extension); and all Liens
securing payment of any such Indebtedness
have been released and the Syndication Agent
and the Documentation Agent shall have
received all Uniform Commercial Code Form
UCC-3 termination statements or other
instruments as may be suitable or
appropriate in connection therewith.
SECTION vii. Equity Issuance, etc. The Syndication
--------------------
Agent and the Documentation Agent shall
have received evidence satisfactory to
each of them that (i) the Equity
Issuance was consummated and (ii) the
Borrowers received gross cash proceeds
from the Equity Issuance in an amount
not less than the Equity Contribution
Amount, in each case on terms
satisfactory to such Agents as of the
Closing Date.
SECTION viii. Guaranty. The Agents shall have
--------
received the Guaranty, duly
executed by an Authorized Officer
of each Borrower and each U.S.
Subsidiary of each Borrower in
existence on the date of the
initial Credit Extension (after
giving effect to the Transaction).
SECTION ix. Pledge Agreements. The Agents shall
have received executed counterparts of
(1) the Triarc Pledge Agreement, duly executed by an
Authorized Officer of Triarc, together with the
certificates evidencing all of the issued and
outstanding shares of Capital Stock of the Parent
pledged pursuant to the Triarc Pledge Agreement,
which certificates shall in each case be
accompanied by undated stock powers duly executed
in blank;
<PAGE>
(2) the Parent Pledge Agreement, duly executed by an
Authorized Officer of the Parent, together with the
certificates evidencing all of the issued and
outstanding shares of Capital Stock of Mistic and
Snapple pledged pursuant to the Parent Pledge
Agreement, which certificates shall in each case be
accompanied by undated stock powers duly executed
in blank;
(3) the Snapple Pledge Agreement, duly executed by an
Authorized Officer of each Borrower, together with
the certificates evidencing all of the issued and
outstanding shares of Capital Stock of each
Subsidiary of Snapple pledged pursuant to the
Snapple Pledge Agreement, which certificates shall
in each case be accompanied by undated stock powers
duly executed in blank; and
(d) the Subsidiary Pledge Agreement, duly executed by an
Authorized Officer of each Subsidiary of each Borrower (after giving
effect to the Transaction) which in turn has any Subsidiary or
Subsidiaries, together with the certificates evidencing all of the
issued and outstanding shares of Capital Stock of each such indirect
Subsidiary of such Borrower which shall be pledged pursuant to such
Subsidiary Pledge Agreement, which certificates shall in each case be
accompanied by undated stock powers duly executed in blank;
provided, however, that none of the Borrowers nor any of their Subsidiaries
shall be required to pledge in excess of 65% of the outstanding voting stock of
any Non-U.S. Subsidiary. If any securities pledged pursuant to a Pledge
Agreement are uncertificated securities, the Syndication Agent and the
Documentation Agent shall have received confirmation and evidence satisfactory
to each of them that appropriate book entries have been made in the relevant
books or records of a financial intermediary or the issuer of such securities,
as the case may be, or other appropriate steps have been taken under applicable
law resulting in the perfection of the security interest granted in favor of the
Administrative Agent in such securities pursuant to the terms of the applicable
Pledge Agreement.
<PAGE>
SECTION x. Security Agreements. The Agents shall
-------------------
have received executed counterparts of
the Borrower Security Agreement and the
Subsidiary Security Agreement, duly
executed by the Parent, Mistic, Snapple
or their respective U.S. Subsidiaries
(after giving effect to the
Transaction), together with
(1) acknowledgment copies of properly filed Uniform
Commercial Code financing statements (Form UCC-1)
or such other evidence of filing as may be
acceptable to the Agents, naming the Parent,
Mistic, Snapple and such Subsidiaries as the
debtors and the Administrative Agent (on behalf of
the Lenders) as the secured party, or other similar
instruments or documents, filed under the Uniform
Commercial Code of all jurisdictions as may be
necessary or, in the opinion of the Agents,
desirable to perfect the security interest of the
Administrative Agent pursuant to the Security
Agreements;
(2) executed copies of proper Uniform Commercial Code
Form UCC-3 termination statements, if any,
necessary to release all Liens (other than Liens
permitted to exist under the Loan Documents) and
other rights of any Person
(a) in any collateral described in the
Security Agreements previously granted
by any Person, and
(b) securing any of the Indebtedness
identified in Item 7.2.2(b)
("Indebtedness to be Paid") of the
Disclosure Schedule,
together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Agents may reasonably request from such Obligors; and
<PAGE>
(3) certified copies of Uniform Commercial Code
Requests for Information or Copies (Form UCC-11),
or a similar search report certified by a party
acceptable to the Agents, dated a date reasonably
near to the date of the initial Credit Extension,
listing all effective financing statements which
name the Parent, Mistic, Snapple and such
Subsidiaries (under their present names and any
previous names) as the debtors and which are filed
in the jurisdictions in which filings were made
pursuant to clause (a) above, together with copies
of such financing statements.
SECTION xi. Financial Information, etc. The
Syndication Agent and the Documentation
Agent shall have received, with
counterparts for each Lender,
(1) (i) the audited consolidated income and cash flow
statements and balance sheets of Mistic and its
Subsidiaries for the Fiscal Year ended December 31,
1994, for the six months ended June 30, 1995, for
the fiscal period commencing August 9, 1995 and
ended December 31, 1995 and for the 1996 Fiscal
Year; (ii) the Snapple Financial Statements; (iii)
the unaudited consolidated income and cash flow
statements and balance sheet of Mistic and its
Subsidiaries for the first Fiscal Quarter of 1997;
(iv) the audited combined statements of certain
revenues and operating expenses of Snapple and its
Subsidiaries for the fiscal periods ended December
6, 1994 and December 31, 1994 and for the Fiscal
Years ended December 31, 1995 and December 31, 1996
and the audited combined statement of assets
acquired and liabilities assumed of Snapple and its
Subsidiaries as of December 31, 1996 certified
(without any Impermissible Qualification other than
as described in clause (b) of the definition of
"Impermissible Qualification") in a manner
acceptable to the Agents and the Required
<PAGE>
Lenders by Arthur Andersen LLP; and (v) the
unaudited combined statements of certain revenues
and operating expenses and combined statement of
assets acquired and liabilities assumed of Snapple
and its Subsidiaries for the three months ended
March 31, 1997;
(2) a pro forma opening consolidated balance sheet of
the Parent and its Subsidiaries (including Mistic
and Snapple) as of the Closing Date (the "Pro Forma
Balance Sheet"), certified by the chief financial
Authorized Officer of each Borrower, giving effect
to the consummation of the Transaction contemplated
by this Agreement and reflecting the proposed legal
and capital structure of the Borrowers, which legal
and capital structure shall be satisfactory in all
respects to such Agents; and
(3) a Borrowing Base Certificate calculated as
of the date of the initial Credit Extension.
SECTION xii. Solvency, etc. The Syndication Agent
and the Documentation Agent shall have
received
(a) an opinion letter from Valuation Research Corporation,
addressed to such Agents and each Lender and dated the date of the
initial Credit Extension, as to the solvency of each Borrower
immediately after giving effect to the Transaction and the initial
Credit Extension, which opinion letter was in form, substance and scope
satisfactory to such Agents; and
(b) a Solvency Certificate in substantially the form of Exhibit
L, duly executed by the president, the chief executive or the chief
financial Authorized Officer of each Borrower, dated the date of the
initial Credit Extension.
SECTION xiii. Litigation. There shall exist no
pending or, to the knowledge of any
Borrower, overtly threatened
material litigation, proceedings or
<PAGE>
investigations which (x) would
contest the consummation of the
Transaction or (y) could reasonably
be expected to have a Material
Adverse Effect.
SECTION xiv. Material Adverse Effect. Since
-----------------------
December 31, 1996, there shall not have
been any event, circumstance or
condition which could reasonably be
expected to have a Material Adverse
Effect; provided, however, that any
-------- -------
change or effect existing at the Closing
Date due to an adverse trend disclosed
to the Syndication Agent and the
Documentation Agent prior to the Closing
Date shall not be considered to be a
"Material Adverse Effect".
SECTION xv. Reliance Letters. The Syndication
----------------
Agent and the Documentation Agent shall
have received reliance letters, dated
the date of the initial Credit Extension
and addressed to each Lender and each
such Agent, in respect of each of the
legal opinions delivered in connection
with the Transaction.
SECTION xvi. Opinions of Counsel. The Syndication
-------------------
Agent and the Documentation Agent shall
have received opinions, addressed to
such Agents and all Lenders, from (a)
Paul, Weiss, Rifkind, Wharton &
Garrison, counsel to the Obligors
substantially in the form of Exhibit M-1
-----------
hereto, (b) Fish & Neave, intellectual
property counsel to the Obligors,
substantially in the form of Exhibit M-2
-----------
hereto, and (c) Holland & Knight,
Kirkpatrick & Lockhart LLP, Piper &
Marbury, Snell & Wilmer L.L.P. and
Sonnenschein Nath & Rosenthal, local
counsel to the Obligors, substantially
in the form of Exhibit M-3 hereto.
-----------
<PAGE>
SECTION xvii. Insurance. The Agents shall have
---------
received satisfactory evidence of
the existence of insurance in
compliance with Section 7.1.4
-------------
(including all endorsements
included therein), and the
Administrative Agent shall be named
additional insured or loss payee,
on behalf of the Lenders, in
respect of all proceeds payable in
respect of such insurance, pursuant
to documentation reasonably
satisfactory to such Agents.
SECTION xviii. Closing Fees, Expenses, etc. The
---------------------------
Agents and the Arrangers shall
have received for their own
accounts, or for the account of
each Lender, as the case may be,
all fees, costs and expenses due
and payable under the Fee Letters
or pursuant to Sections 3.3 and
------------
10.3, if then invoiced.
----
SECTION b. All Credit Extensions and the Amendment
---------------------------------------
Effective Date. The obligation of each
--------------
Lender to make any Credit Extension
(including the initial Credit Extension) and
the Amendment Effective Date shall be subject
to the satisfaction of each of the conditions
precedent set forth in this Section 5.2
-----------
(other than Section 5.2.2, in the case of the
-------------
Amendment Effective Date).
SECTION i. Compliance with Warranties, No
------------------------------
Default, etc. Both before and after
------------
giving effect to the Amendment Effective
Date or any Credit Extension, the
following statements shall be true and
correct
(1) the representations and warranties set
forth in Article VI (excluding, however,
those contained in Section 6.7) and in each
<PAGE>
other Loan Document shall be true and correct in
all material respects with the same effect as if
then made (unless stated to relate solely to an
early date, in which case such representations and
warranties shall be true and correct as of such
earlier date);
(2) except as disclosed by the Borrowers to the Agents
and the Lenders pursuant to Section 6.7 no labor
controversy, litigation, arbitration or
governmental investigation or proceeding shall be
pending or, to the knowledge of any Borrower,
overtly threatened against any Borrower or any of
its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect, and no
development shall have occurred in any labor
controversy, litigation, arbitration or
governmental investigation or proceeding disclosed
pursuant to Section 6.7 which could reasonably be
expected to have a Material Adverse Effect;
(c) the sum of (x) the aggregate outstanding principal amount of
all Revolving Loans and Swing Line Loans and (y) the Letter of Credit
Outstandings does not exceed the lesser of the Revolving Loan Commitment
Amount (as then in effect) or the then existing Borrowing Base Amount;
and
(d) no Default shall have then occurred and be continuing, and
neither the Borrowers nor any other Material Obligor are in material
violation of any material law or governmental regulation or court order
or decree.
SECTION ii. Credit Extension Request. The
------------------------
Administrative Agent shall have
received a Borrowing Request or an
Issuance Request, as the case may be,
for such Credit Extension. Each of the
delivery of a Borrowing Request or an
Issuance Request and the acceptance by
the applicable Borrower of the proceeds
of the Borrowing or the issuance of the
Letter of Credit, as applicable, shall
constitute a representation and warranty
<PAGE>
by the Borrowers that on the date of such
Borrowing (both immediately before and after
giving effect to such Borrowing and the
application of the proceeds thereof) or the
issuance of the Letter of Credit, as
applicable, the statements made in Section
5.2.1 are true and correct.
SECTION iii. Satisfactory Legal Form. All
-----------------------
documents executed or submitted pursuant
hereto by or on behalf of the Borrowers
or any of their Subsidiaries or any
other Obligors shall be satisfactory in
form and substance to the Agents and
their counsel; and the Agents and their
counsel shall have received all
information, approvals, opinions,
documents or instruments as the Agents
or their counsel may reasonably request.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Agents to enter into
this Agreement and to make Loans and issue Letters of Credit hereunder, the
Borrowers jointly and severally represent and warrant unto the Agents, each
Issuer, and each Lender as set forth in this Article VI.
SECTION a. Organization, etc. Each Borrower and each
-----------------
of its Subsidiaries is a corporation validly
organized and existing and in good standing
under the laws of the State of its
incorporation, is duly qualified to do
business and is in good standing as a foreign
corporation in each jurisdiction where the
nature of its business requires such
qualification, except where the failure to be
so qualified could not reasonably be expected
to have a Material Adverse Effect, and has
full power and authority and holds all
requisite governmental licenses, permits and
<PAGE>
other approvals to enter into and perform its
Obligations under this Agreement, the Notes and
each other Loan Document to which it is a party and
to own and hold under lease its property and to
conduct its business substantially as currently
conducted by it, except where the failure to hold
such governmental licenses, permits and approvals
could not reasonably be expected to have a Material
Adverse Effect.
SECTION b. Due Authorization, Non-Contravention, etc.
-----------------------------------------
The execution, delivery and performance by
each Borrower of this Agreement, the Notes
and each other Loan Document executed or to
be executed by it, and the execution,
delivery and performance by each other
Obligor of each Loan Document executed or to
be executed by it and each such other
Obligor's participation in the consummation
of the Transaction are within each such
Borrower's and each such Obligor's corporate
powers, have been duly authorized by all
necessary corporate action, and do not
(1) contravene such Borrower's or any such
Obligor's Organic Documents;
(2) contravene any material contractual
restriction, law or governmental regulation
or court decree or order binding on or
affecting such Borrower or any such Obligor;
or
(3) result in, or require the creation or imposition
of, any Lien (other than Liens permitted under the
Loan Documents) on any of such Borrower's or any
other Obligor's
properties.
SECTION c. Government Approval, Regulation, etc. No
material authorization or approval or other
action by, and no material notice to or
filing with, any governmental authority or
regulatory body or other Person is required
<PAGE>
for the due execution, delivery or
performance by any Borrower or any other Obligor of
this Agreement, the Notes or any other Loan
Document to which it is a party, or for such
Borrower's and each such other Obligor's
participation in the consummation of the
Transaction, except as have been duly obtained or
made and are in full force and effect. None of the
Borrowers nor any of their Subsidiaries is an
"investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION d. Validity, etc. This Agreement constitutes,
-------------
and the Notes and each other Loan Document
executed by each Borrower will, on the due
execution and delivery thereof, constitute,
the legal, valid and binding obligations of
such Borrower enforceable in accordance with
their respective terms; and each Loan
Document executed pursuant hereto by each
other Obligor will, on the due execution and
delivery thereof by such Obligor, be the
legal, valid and binding obligation of such
Obligor enforceable in accordance with its
terms, in each case subject to the effects of
bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and
other similar laws relating to or affecting
creditors' rights generally, general
principles (whether considered in a
proceeding in equity or at law) and an
implied covenant of good faith and fair
dealing.
SECTION e. Financial Information. Each of the
financial statements delivered pursuant to
clauses (a)(i), (a)(iii), (a)(iv) and (a)(v)
of Section 5.1.11 has been prepared in
<PAGE>
accordance with GAAP consistently applied, and
present fairly the consolidated financial condition
of the corporations covered thereby as at the date
thereof or the results of their operations for the
periods then ended, subject in the case of interim
financial statements to the lack of footnotes and
to normal year end audit adjustments.
SECTION f. No Material Adverse Effect. Since December
--------------------------
31, 1996, there has been no event,
circumstance or condition which could
reasonably be expected to have a Material
Adverse Effect; provided, however, that any
-------- -------
change or effect existing at the Closing Date
due to an adverse trend disclosed to the
Syndication Agent and the Documentation Agent
prior to the Closing Date shall not be
considered to be a "Material Adverse Effect".
SECTION g. Litigation, Labor Controversies, etc.
------------------------------------
There is no pending or, to the knowledge of
any Borrower, overtly threatened litigation,
action, proceeding, or labor controversy
affecting any Borrower or any of its
Subsidiaries, or any of their respective
properties, businesses, assets or revenues
which (i) would contest the consummation of
the Transaction or (ii) could reasonably be
expected to have a Material Adverse Effect,
except as disclosed in Item 6.7
--------
("Litigation") of the Disclosure Schedule.
No materially adverse development has
occurred in any litigation, action, labor
controversy, arbitration or governmental
investigation or other proceeding disclosed
in Item 6.7 ("Litigation") of the Disclosure
--------
Schedule.
SECTION h. Subsidiaries. The Borrowers have no
Subsidiaries, except those Subsidiaries (i)
which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule, or
(ii) which are permitted to have been
acquired in accordance with Section 7.2.5.
<PAGE>
SECTION i. Ownership of Properties. Each Borrower and
-----------------------
each of its Subsidiaries owns good and
marketable title to all of its properties and
assets, real and personal, tangible and
intangible, of any nature whatsoever
(including patents, trademarks, trade names,
service marks and copyrights), free and clear
of all Liens, charges or claims (including
infringement claims with respect to patents,
trademarks, copyrights and the like) other
than any Lien, charge or claim (i) which is
permitted under Section 7.2.3 or (ii) which
-------------
individually or in the aggregate, could not
reasonably be expected to have a Material
Adverse Effect.
SECTION j. Taxes. Each Borrower and each of its
-----
Subsidiaries has filed all material tax
returns and reports required by law to have
been filed by it and has paid all taxes and
governmental charges thereby shown to be
owing, except any such taxes or charges which
are being diligently contested in good faith
by appropriate proceedings and for which
adequate reserves in accordance with GAAP
shall have been set aside on its books.
SECTION k. Pension and Welfare Plans. Except as
-------------------------
disclosed in Item 6.11 ("Employee Benefit
---------
Plans") of the Disclosure Schedule, during
the twelve-consecutive-month period prior to
the date of the execution and delivery of
this Agreement, no steps have been taken to
terminate any Pension Plan, and no
contribution failure has occurred with
respect to any Pension Plan sufficient to
give rise to a Lien under section 302(f) of
ERISA. No condition exists or event or
transaction has occurred with respect to any
Pension Plan which might result in the
incurrence by any Borrower or any member of
the Controlled Group of any liability, fine
or penalty which could reasonably be expected
to have a Material Adverse Effect. Except as
<PAGE>
disclosed in Item 6.11 ("Employee Benefit Plans")
of the Disclosure Schedule, neither the Borrowers
nor any member of the Controlled Group has any
contingent liability with respect to any
post-retirement medical benefits under a Welfare
Plan, other than liability for continuation
coverage described in Part 6 of Subtitle B of Title
I of ERISA or other applicable continuation of
coverage laws.
SECTION l. Environmental Warranties. Except as set
forth in Item 6.12 ("Environmental Matters")
of the Disclosure Schedule:
(1) all facilities and property (including underlying
groundwater) owned or leased by any Borrower or any
of its Subsidiaries have been, and continue to be,
owned or leased by such Borrower or its
Subsidiaries in material compliance with all
Environmental Laws;
(2) there have been no past, and there are no pending
or, to the knowledge of any Borrower, threatened
claims, complaints, notices or requests for
information received by any Borrower or any of its
Subsidiaries with respect to any alleged material
violation of any Environmental Law, or complaints,
notices or inquiries to any Borrower or any of its
Subsidiaries regarding potential material liability
under any Environmental Law, in each case which
have not been disclosed in writing and in
reasonable detail to the Agents;
(3) there have been no Releases of Hazardous Materials
at, on or under any property now or previously
owned or leased by any Borrower or any of its
Subsidiaries that, singly or in the aggregate,
have, or may reasonably be expected to have, a
Material Adverse Effect;
(4) the Borrowers and their Subsidiaries have
been issued and are in material compliance
<PAGE>
with all material permits, certificates, approvals,
licenses and other authorizations relating to
environmental matters and necessary for their
businesses;
(5) no property now or previously owned or leased by
any Borrower or any of its Subsidiaries is listed
or proposed for listing (with respect to owned
property only) on (x) the National Priorities List
pursuant to CERCLA, or (y) on the CERCLIS or on any
similar state list of sites requiring investigation
or clean-up to the extent, in the case of this
clause (y), such listing or proposed listing could
reasonably be expected to have a Material Adverse
Effect;
(6) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or
under any property now or previously owned or
leased by any Borrower or any of its Subsidiaries
that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse
Effect;
(7) no Borrower nor any Subsidiary of any Borrower has
directly transported or directly arranged for the
transportation of any Hazardous Material to any
location which is listed or proposed for listing on
the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list or which
is the subject of federal, state or local
enforcement actions or other investigations which
may lead to material claims against such Borrower
or such Subsidiary thereof for any remedial work,
damage to natural resources or personal injury,
including claims under CERCLA;
(8) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously
owned or leased by any Borrower or any Subsidiary
of any Borrower that, singly or in the aggregate,
have, or may
<PAGE>
reasonably be expected to have, a Material
Adverse Effect; and
(9) no conditions exist at, on or under any property
now or previously owned or leased by any Borrower
or any of its Subsidiaries which, with the passage
of time, or the giving of notice or both, would
give rise to liability under any Environmental Law
which, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse
Effect.
SECTION m. Regulations G, U and X. None of the
----------------------
Borrowers is engaged in the business of
extending credit for the purpose of
purchasing or carrying margin stock, and no
proceeds of any Loans will be used for a
purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation G,
U or X. Terms for which meanings are
provided in F.R.S. Board Regulation G, U or X
or any regulations substituted therefor, as
from time to time in effect, are used in this
Section with such meanings.
SECTION n. Accuracy of Information. All factual
-----------------------
information heretofore or contemporaneously
furnished by or on behalf of any Borrower in
writing to the Agents, the Arranger, the Co-
Arranger or any Lender for purposes of or in
connection with this Agreement or any
transaction contemplated hereby or with
respect to the Transaction is, and all other
such factual information hereafter furnished
by or on behalf of any Borrower to the
Agents, the Arranger, the Co-Arranger or any
Lender will be, true and accurate in every
material respect on the date as of which such
information is dated or certified, the
Arrangers and such Lender, and such
information is not, or shall not be, as the
case may be, incomplete by omitting to state
any material fact necessary to make such
<PAGE>
information in light of the circumstances
when made not materially misleading.
SECTION o. Solvency. The Transaction (including the
--------
incurrence of the initial Credit Extension
hereunder, the execution and delivery by the
Guarantors of the Guaranty and the
application of the proceeds of the Credit
Extensions), will not involve or result in
any fraudulent transfer or fraudulent
conveyance under the provisions of Section
548 of the Bankruptcy Code (11 U.S.C.ss. 101
et seq., as from time to time hereafter
-- ---
amended, and any successor or similar
statute) or any applicable state law
respecting fraudulent transfers or fraudulent
conveyances. On the Closing Date, after
giving effect to the Transaction, each
Borrower and each Guarantor is Solvent.
ARTICLE 7.
COVENANTS
SECTION a. Affirmative Covenants. The Borrowers jointly and
severally agree with each of the Agents, each
Issuer and each Lender that, until all Commitments
have terminated and all Obligations have been paid
and performed in full, each Borrower will perform
the obligations set forth in this Section 7.1.
SECTION i. Financial Information, Reports,
-------------------------------
Notices, etc. The Borrowers will
------------
furnish, or will cause to be furnished,
to each Lender and the Agents copies of
the following financial statements,
reports, notices and information:
(1) as soon as available and in any event within 55
days after the end of each of the first three
Fiscal Quarters of each Fiscal Year of the Parent,
consolidated balance sheets of the Parent and its
Subsidiaries
<PAGE>
(including Mistic and Snapple) as of the end of
such Fiscal Quarter and consolidated statements of
earnings and cash flow of the Parent and its
Subsidiaries (including Mistic and Snapple) for
such Fiscal Quarter and for the period commencing
at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, certified by
the chief financial or chief accounting Authorized
Officer of the Parent;
(2) as soon as available and in any event within 110
days after the end of each Fiscal Year of the
Parent, a copy of the annual audit report for such
Fiscal Year for the Parent and its Subsidiaries,
including therein consolidated balance sheets of
the Parent and its Subsidiaries as of the end of
such Fiscal Year and consolidated statements of
earnings and cash flow of the Parent and its
Subsidiaries for such Fiscal Year, in each case
certified (without any Impermissible Qualification)
in a manner acceptable to the Agents and the
Required Lenders by Deloitte & Touche LLP or other
independent public accountants reasonably
acceptable to the Agents and the Required Lenders,
together with a report from such accountants
containing a computation of, and showing compliance
with, each of the financial ratios and restrictions
contained in Section 7.2.4 and to the effect that,
in making the examination necessary for the signing
of such annual report by such accountants, they
have not become aware of any Default that has
occurred and is continuing, or, if they have become
aware of such Default, describing such Default and
the steps, if any, being taken to cure it;
(3) together with the delivery of the financial
information required pursuant to clause (a) or
clause (b), a Compliance Certificate, executed by
the chief financial or chief accounting Authorized
Officer of each
<PAGE>
Borrower, showing (in reasonable detail and with
appropriate calculations and computations in all
respects satisfactory to the Agents) compliance
with the financial covenants set forth in Section
7.2.4;
(4) as soon as possible and in any event within three
Business Days after any Borrower has knowledge (or
could reasonably be expected to have knowledge) of
the occurrence of any Default, a statement of the
chief financial Authorized Officer of the Parent
setting forth details of such Default and the
action which the applicable Borrower has taken and
proposes to take with respect thereto;
(5) as soon as possible and in any event within three
Business Days after (x) the occurrence of any
materially adverse development with respect to any
litigation, action, proceeding, or labor
controversy described in Section 6.7 or (y) the
commencement of any labor controversy, litigation,
action, proceeding of the type described in Section
6.7, notice thereof and copies of all documentation
relating thereto;
(6) promptly after the sending or filing thereof,
copies of all reports which any Borrower sends to
any of its security holders, and all reports and
registration statements which any Borrower or any
of its Subsidiaries files with the Securities and
Exchange Commission or any national securities
exchange;
(7) promptly upon becoming aware of the institution of
any steps by any Borrower or any other Person to
terminate any Pension Plan, or the failure to make
a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under
section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could
reasonably be expected to result
<PAGE>
in the requirement that any Borrower furnish a bond
or other security to the PBGC or such Pension Plan,
or the occurrence of any event with respect to any
Pension Plan which could reasonably be expected to
result in the incurrence by any Borrower of any
material liability, fine or penalty, or any
material increase in the contingent liability of
any Borrower with respect to any post-retirement
Welfare Plan benefit, notice thereof and copies of
all documentation relating thereto;
(h) promptly when available and in any event within 60 days
following the last day of each Fiscal Year of the Borrower, financial
projections for the Parent and its Subsidiaries, on a consolidated basis
(including an operating budget), for the current Fiscal Year, prepared
in reasonable detail by the chief accounting, financial or operating
officer of the Parent;
(i) within 20 days after the end of each Fiscal Month, a
Borrowing Base Certificate that is calculated as of the last day of such
Fiscal Month; and
(j) such other information respecting the condition or
operations, financial or otherwise, of any Borrower or any of its
Subsidiaries as any Lender through any Agent may from time to time
reasonably request.
SECTION ii. Compliance with Laws, etc. Each
-------------------------
Borrower will, and will cause each of
its Subsidiaries to, comply in all
material respects with all applicable
laws, rules, regulations and orders,
such compliance to include (without
limitation) (i) the maintenance and
preservation of its corporate existence
and qualification as a foreign
corporation, except where the failure to
so qualify could not reasonably be
expected to have a Material Adverse
Effect, and (ii) the payment, before the
same become delinquent, of all taxes,
assessments and governmental charges
<PAGE>
imposed upon it or upon its property except
to the extent being diligently contested in
good faith by appropriate proceedings and
for which adequate reserves in accordance
with GAAP shall have been set aside on its
books.
SECTION iii. Maintenance of Properties. Each
-------------------------
Borrower will, and will cause each of
its Subsidiaries to, maintain, preserve,
protect and keep its properties
necessary and useful in the conduct of
its business in good repair, working
order and condition (subject to normal
wear and tear), and make necessary and
proper repairs, renewals and
replacements so that its business
carried on in connection therewith may
be properly conducted at all times
unless such Borrower determines in good
faith that the continued maintenance of
any of its properties is no longer
economically desirable, except when the
failure to maintain, preserve, protect
and keep its properties could not
reasonably be expected to have a
Material Adverse Effect.
SECTION iv. Insurance. Each Borrower will, and
---------
will cause each of its Subsidiaries to,
maintain or cause to be maintained with
responsible insurance companies
insurance with respect to its properties
and business against such casualties and
contingencies and of such types and in
such amounts as is customary in the case
of similar businesses and will, upon
written request of the Agents, furnish
to each Lender at reasonable intervals a
certificate of an Authorized Officer of
such Borrower setting forth the nature
and extent of all insurance maintained
by such Borrower and its Subsidiaries in
accordance with this Section.
<PAGE>
SECTION v. Books and Records. Each Borrower
-----------------
will, and will cause each of its
Subsidiaries to, keep books and records
which accurately reflect in all material
respects all of its business affairs and
transactions and permit the Agents and
each Lender or any of their respective
representatives, at reasonable times and
intervals, during normal business hours
to visit all of its offices, to discuss
its financial matters with its officers
and independent public accountant (and
each Borrower hereby authorizes such
independent public accountant, upon the
occurrence and during the continuance of
any Default or Event of Default, to
discuss such Borrower's financial
matters with each Lender or its
representatives whether or not any
representative of such Borrower is
present, and if no Default or Event of
Default has occurred and is continuing,
only if a representative of such
Borrower is present) and to examine
(and, at the expense of such Borrower,
photocopy extracts from) any of its
books or other corporate records. The
Borrowers shall pay any fees of such
independent public accountant incurred
in connection with any Agent's or any
Lender's exercise of its rights pursuant
to this Section. The Agents and the
Lenders agree that they shall use
reasonable efforts to minimize
interference with the business of any
Borrower or any of its Subsidiaries.
SECTION vi. Environmental Covenant. Each Borrower
will, and will cause each of its
Subsidiaries to,
(1) use and operate all of its facilities and
properties in material compliance with all
Environmental Laws, keep all necessary
permits, approvals, certificates, licenses
<PAGE>
and other authorizations relating to environmental
matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in
material compliance with all applicable
Environmental Laws;
(2) promptly notify the Agents and provide copies upon
receipt of all written claims, complaints, notices
or inquiries relating to the condition of its
facilities and properties or compliance with
Environmental Laws which could reasonably be
expected to have a Material Adverse Effect; and
(3) provide such information and certifications which
the Agents may reasonably request from time to time
to evidence compliance with this Section 7.1.6.
SECTION vii. Future Subsidiaries. Upon any Person
-------------------
becoming, after the Closing Date, a
Subsidiary of any Borrower, or upon any
Borrower or any Subsidiary of any
Borrower acquiring additional Capital
Stock of any existing Subsidiary, the
Parent shall notify the Agents of such
acquisition, and
(1) such Borrower shall promptly cause such Subsidiary
to execute and deliver to the Agents, with
counterparts for each Lender, a supplement to the
Guaranty and a supplement to the Subsidiary
Security Agreement (and, if such Subsidiary owns
any real property with a fair market value in
excess of $1,000,000, a Mortgage), together with
acknowledgment copies of Uniform Commercial Code
financing statements (Form UCC-1) executed and
delivered by the Subsidiary naming the Subsidiary
as the debtor and the Administrative Agent as the
secured party, or other similar instruments or
documents, filed under the Uniform Commercial Code
and any other applicable recording statutes, in the
case of real property, of all jurisdictions
<PAGE>
as may be necessary or, in the reasonable opinion
of the Agents, desirable to perfect the security
interest of the Administrative Agent pursuant to
the Subsidiary Security Agreement or a Mortgage, as
the case may be (other than the perfection of
security interests in motor vehicles owned as of
the date such entity becomes a Subsidiary);
provided, however, that in the event that any
newly-acquired Subsidiary has any outstanding
Indebtedness which is secured by a Lien or is
subject to a negative pledge ("Assumed Restricted
Debt") which Indebtedness, Lien or negative pledge,
as the case may be, was in existence prior to the
time such Person became a Subsidiary (and which was
not created in contemplation of this Section), no
such security interest or other Lien shall be
required hereunder in respect of such Subsidiary's
assets subject to such negative pledge; provided,
further, however, that Assumed Restricted Debt
shall not exceed, at any time outstanding,
$5,000,000 in aggregate principal amount; and
(2) such Borrower shall promptly deliver, or cause to
be delivered, to the Administrative Agent under a
Pledge Agreement (or a supplement thereto)
certificates (if any) representing all of the
issued and outstanding shares of Capital Stock of
such Subsidiary owned by such Borrower or any
Subsidiary of such Borrower, as the case may be,
along with undated stock powers for such
certificates, executed in blank, or, if any
securities subject thereto are uncertificated
securities, confirmation and evidence satisfactory
to the Agents that appropriate book entries have
been made in the relevant books or records of a
financial intermediary or the issuer of such
securities, as the case may be, or other
appropriate steps shall have been taken under
applicable law resulting in the perfection of the
security interest
<PAGE>
granted in favor of the Administrative Agent
pursuant to the terms of a Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel reasonably satisfactory to the Agents, as the Agents may reasonably
require; provided, however, that notwithstanding the foregoing, no Non-U.S.
Subsidiary shall be required to execute and deliver a Mortgage, a supplement to
the Guaranty or a supplement to the Security Agreement, nor will such Borrower
or any Subsidiary of such Borrower be required to deliver in pledge pursuant to
a Pledge Agreement in excess of 65% of the total combined voting power of all
classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote.
SECTION viii. Future Leased Property and Future
---------------------------------
Acquisitions of Real Property;
------------------------------
Future Acquisition of Other
---------------------------
Property. Prior to entering into
--------
any new lease of real property or
renewing any existing lease of real
property following the Closing
Date, each Borrower shall, and
shall cause each of its U.S.
Subsidiaries to, use all
commercially reasonable efforts
(which shall not require the
expenditure of cash or the making
of any material concessions under
the relevant lease) to deliver to
the Administrative Agent a Waiver
executed by the lessor of any real
property that is to be leased by
such Borrower or such U.S.
Subsidiary for a term in excess of
one year in any state which by
statute grants such lessor a
"landlord's" (or similar) Lien
which is superior to the
Administrative Agent's, to the
extent the value of any personal
property of such Borrower or its
U.S. Subsidiaries to be held at
such leased property exceeds (or it
is anticipated that the value of
such personal property will, at any
<PAGE>
point in time during the term of
such leasehold term, exceed)
$1,000,000.
(1) In the event that such Borrower or any of its U.S.
Subsidiaries shall acquire any real property having
a value as determined in good faith by the Agents
in excess of $1,000,000 in the aggregate, such
Borrower or the applicable U.S. Subsidiary shall,
promptly after such acquisition, execute a Mortgage
and provide the Agents with
(a) evidence of the completion (or
satisfactory arrangements for the
completion) of all recordings and
filings of such Mortgage as may be
necessary or, in the reasonable opinion
of the Agents, desirable effectively to
create a valid, perfected first priority
Lien, subject to Liens permitted by
Section 7.2.3, against the properties
-------------
purported to be covered thereby;
(b) mortgagee's title insurance policies
in favor of the Administrative Agent and
the Lenders in amounts and in form and
substance and issued by insurers,
reasonably satisfactory to the Agents,
with respect to the property purported
to be covered by such Mortgage, insuring
that title to such property is
marketable and that the interests
created by the Mortgage constitute valid
first Liens thereon free and clear of
all defects and encumbrances other than
as permitted under Section 7.2.3 or as
-------------
approved by the Agents, and such
policies shall also include a revolving
credit endorsement and such other
endorsements as the Agents shall request
and shall be accompanied by evidence of
the payment in full of all premiums
thereon; and
<PAGE>
(c) such other approvals, opinions, or
documents as the Agents may reasonably
request; and
(2) In accordance with the terms and provisions of this
Agreement and the other Loan Documents, provide the
Agents with evidence of all recordings and filings
as may be necessary or, in the reasonable opinion
of the Agents, desirable to create a valid,
perfected first priority Lien, subject to the Liens
permitted by Section 7.2.3, against all property
acquired after the Closing Date (including motor
vehicles but excluding leases of real property).
SECTION ix. Use of Proceeds, etc. Each Borrower
shall apply the proceeds of the Loans
(a) to make payment, together with funds made available from the
proceeds of the Equity Issuance, in full of Triarc's (or the Parent's)
obligations under the Stock Purchase Agreement;
(b) to make payment in full, in connection with the Refinancing,
concurrently with the initial Credit Extension hereunder, of all
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of
the Disclosure Schedule;
(c) for general corporate purposes and working capital
purposes of the Borrowers and their Subsidiaries; and
(d) to pay the reasonable transaction costs and expenses of the
Transaction (provided, that the aggregate amount of such costs and
expenses shall not exceed $23,000,000.
SECTION x. Hedging Obligations. Within six
-------------------
months following the Closing Date, the
Agents shall have received evidence
reasonably satisfactory to them that
Mistic and Snapple have entered into
interest rate swap, cap, collar or
similar arrangements designed to protect
such Borrowers against fluctuations in
<PAGE>
interest rates with respect to at least 50%
of the then outstanding aggregate principal
amount of the Term Loans for a minimum
period of three years with terms reasonably
satisfactory to such Borrowers and the
Agents.
SECTION b. Negative Covenants. The Borrowers jointly and
severally agree with each of the Agents, the Issuer
and each Lender that, until all Commitments have
terminated and all Obligations have been paid and
performed in full, each of the Borrowers will
perform the obligations set forth in this Section
7.2.
SECTION i. Business Activities. (x) Mistic will
-------------------
not, and will not permit any of its
Subsidiaries to, engage in any business
activity, except for the Mistic Business
and such activities as may be incidental
or related thereto, (y) Snapple will
not, and will not permit any of its
Subsidiaries to, engage in any business
activity, except for the Snapple
Business and such activities as may be
incidental or related thereto, and (z)
the Parent will not engage in any
business activity, except for the
ownership of (and activities incidental
to the ownership of) the Capital Stock
of Mistic, Snapple or any other Person
engaged directly or through its
Subsidiaries in the business of
producing, marketing and distributing
beverages or other similar related
products.
SECTION ii. Indebtedness. The Borrowers will not,
------------
and will not permit any of their
Subsidiaries to, create, incur, assume
or suffer to exist or otherwise become
or be liable in respect of any
Indebtedness, other than, without
duplication, the following:
<PAGE>
(1) Indebtedness in respect of the Loans and
other Obligations;
(2) until the date of the initial Credit
Extension, Indebtedness identified in Item
7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule;
(c) Indebtedness existing as of the Closing Date which
is identified in Item 7.2.2(c) ("Ongoing Indebtedness") of
the Disclosure Schedule;
(d) Indebtedness existing as of the Closing Date arising pursuant
to the take-or-pay contracts identified in Item 7.2.2(d) ("Take-or-Pay
Liabilities") of the Disclosure
Schedule;
(e) Indebtedness in respect of the Permitted Senior Subordinated
Debt; provided that the aggregate principal amount in respect of such
Indebtedness at any time outstanding shall not exceed $100,000,000;
(f) Hedging Obligations of the Borrowers or any of
their Subsidiaries in respect of the Loans;
(g) Indebtedness in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding which is incurred by the Borrowers or
any of their Subsidiaries (i) to a vendor of any assets permitted to be
acquired pursuant to Section 7.2.7 to finance its acquisition of such
assets or (ii) in respect of Capitalized Lease Liabilities (but only to
the extent otherwise permitted by Section 7.2.7);
(h) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, but excluding
Indebtedness incurred through the borrowing of money or Contingent
Liabilities);
(i) Indebtedness of any Borrower to any wholly-owned
U.S. Subsidiary, or Indebtedness of any wholly-owned U.S.
Subsidiary of any Borrower to any Borrower or any other
wholly-owned U.S. Subsidiary of any Borrower;
<PAGE>
(j) other Indebtedness of the Borrowers and their Subsidiaries in
an aggregate amount at any time outstanding not to exceed (x)
$10,000,000 during the first four full Fiscal Quarters following the
Closing Date and (y) without duplication, $20,000,000 thereafter; and
(k) unsecured obligations of the Parent in respect of amounts due
and owing from the Parent to holders of stock options issued pursuant to
the Parent Stock Option Plan;
provided, however, that no Indebtedness otherwise permitted by clauses (g), (h),
(i), or (j) shall be permitted if, after giving effect to the incurrence
thereof, any Default shall have occurred and be continuing.
SECTION iii. Liens. The Borrowers will not, and
-----
will not permit any of their
Subsidiaries to, create, incur, assume
or suffer to exist any Lien upon any of
its property, revenues or assets,
whether now owned or hereafter acquired,
except for the following:
(1) Liens securing payment of the Obligations
or any Hedging Obligations in respect of the
Loans owed to any Lender or any Affiliate of
any Lender, granted pursuant to any Loan
Document;
(2) until the date of the initial Credit
Extension, Liens securing payment of
Indebtedness of the type permitted and
described in clause (b) of Section 7.2.2;
(3) Liens securing payment of Indebtedness of
the type permitted and described in
clause (c) of Section 7.2.2;
(d) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (f) of Section 7.2.2 and covering only
those assets acquired with the proceeds of such Indebtedness;
(e) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
<PAGE>
payable without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on the books of such Person;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not
overdue for more than 30 days or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on the books of such
Person;
(g) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance of
tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies;
(i) Liens with respect to easements, rights-of-way, restrictions
and other similar encumbrances which, individually or in the aggregate,
do not materially interfere with the occupation, use and enjoyment by
any Borrower or any of its Subsidiaries of the properties encumbered
thereby in the ordinary course of their business; and
(j) Liens in respect of any Assumed Restricted Debt, provided
that the principal amount of such Indebtedness secured thereby does not
exceed $5,000,000 in the aggregate at any time outstanding.
SECTION iv. Financial Covenants.
(1) Minimum Net Worth The Borrowers will not permit Net
Worth at any time to be less than an aggregate
amount equal to $85,000,000
<PAGE>
plus an amount equal to 50% of cumulative Net
Income from the Closing Date to the date of
determination.
(b) Leverage Ratio. The Borrowers will not permit
the Leverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be greater than the ratio
set forth opposite such period:
Interest Coverage
Period Leverage Ratio
--------- ------------------
3rd Fiscal Quarter of
Fiscal Year 1997
through the 1st
Fiscal Quarter of
Fiscal Year 1998 5.00:1
2d Fiscal Quarter of
Fiscal Year 1998
through the 3rd
Fiscal Quarter of
Fiscal Year 1998 4.75:1
4th Fiscal Quarter of
Fiscal Year 1998
through the 3rd
Fiscal Quarter of
Fiscal Year 1999 4.00:1
4th Fiscal Quarter of
Fiscal Year 1999
through the 3rd
Fiscal Quarter of
Fiscal Year 2000 3.00:1
4th Fiscal Quarter of
Fiscal Year 2000
through the 3rd
Fiscal Quarter of
Fiscal Year 2001 2.50:1
Each Fiscal Quarter
thereafter 2.00:1
<PAGE>
(c) Interest Coverage Ratio. The Borrowers will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter occurring during any
period set forth below to be less than the ratio set forth opposite such period:
Interest Coverage
Period Leverage Ratio
--------- ------------------
3rd Fiscal Quarter of
Fiscal Year 1997
through the 2d
Fiscal Quarter of
Fiscal Year 1998 2.00:1
3rd Fiscal Quarter of
Fiscal Year 1998 2.25:1
4th Fiscal Quarter of
Fiscal Year 1998
through the 3rd
Fiscal Quarter of
Fiscal Year 1999 2.50:1
4th Fiscal Quarter of
Fiscal Year 1999
through the 3rd
Fiscal Quarter of
Fiscal Year 2000 3.00:1
4th Fiscal Quarter of
Fiscal Year 2000
through the 3rd
Fiscal Quarter of
Fiscal Year 2001 3.50:1
Each Fiscal Quarter
thereafter 4.00:1
(d) Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed
Charge Coverage Ratio as of the end of any Fiscal Quarter (commencing with the
third Fiscal Quarter of 1997) to be less than the ratio of 1.20:1.
<PAGE>
SECTION v. Investments. The Borrowers will not,
and will not permit any of their
Subsidiaries to, make, incur, assume or
suffer to exist any Investment in any other
Person, except:
(1) Investments existing on the Closing Date
and identified in Item 7.2.5(a) ("Ongoing
Investments") of the Disclosure Schedule;
(2) Cash Equivalent Investments;
(3) Investments by any Borrower in any of its
wholly-owned U.S. Subsidiaries (including
Investments made for purposes of creating
newly formed wholly-owned U.S. Subsidiaries),
or by any such wholly-owned U.S. Subsidiary
in any of its wholly-owned U.S. Subsidiaries
or in any Borrower;
(4) other Investments in an aggregate amount at any one
time not to exceed (x) $10,000,000 or (y) if the
Leverage Ratio (determined on a pro forma basis by
giving effect to such Investment as if consummated
as of the beginning of the period for which the
Leverage Ratio is being computed) is less than
3.50:1 for the two consecutive Fiscal Quarters
immediately preceding any such Investment,
$20,000,000; provided that all amounts permitted
pursuant to this clause (d) shall be reduced,
dollar for dollar, by the aggregate amount of
payments made pursuant to clause (f) of Section
7.2.6; and
(5) Investments in the form of advances or loans to
employees in an aggregate principal amount not to
exceed $1,500,000 at any time outstanding during
the first four full Fiscal Quarters following the
Closing Date and, thereafter, in an aggregate
principal amount not to exceed $1,000,000 at any
time outstanding;
provided, however, that (i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment" may
continue to be held
<PAGE>
notwithstanding that such Investment if made thereafter would not comply with
such requirements, and (ii) no Investment otherwise permitted by clause (c), (d)
or (e) shall be permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be continuing.
SECTION vi. Restricted Payments, etc. On and at
all times after the Closing Date:
(1) the Borrowers will not declare, pay or make any
payment, dividend or distribution (in cash,
property or obligations) on any shares of any class
of Capital Stock (now or hereafter outstanding) of
any Borrower or on or in respect of any warrants,
options or other rights with respect to any shares
of any class of Capital Stock (now or hereafter
outstanding) of any Borrower (other than dividends
or distributions payable in its Capital Stock or
warrants to purchase its Capital Stock or splitups
or reclassifications of its Capital Stock into
additional or other shares of its Capital Stock) or
apply, or permit any of their Subsidiaries to
apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other
retirement of, or agree or permit any of their
Subsidiaries to purchase or redeem, any shares of
any class of Capital Stock (now or hereafter
outstanding) of any Borrower, or warrants, options
or other rights with respect to any shares of any
class of Capital Stock (now or hereafter
outstanding) of any Borrower;
(2) the Borrowers will not, and will not permit any of
their Subsidiaries to (i) make any payment or
prepayment of principal of, or make any payment of
interest on, any Subordinated Debt on any day other
than the stated, scheduled date for such payment or
prepayment set forth in the documents and
instruments memorializing such Subordinated Debt,
or which would violate the subordination provisions
of such Subordinated
<PAGE>
Debt, or (ii) redeem, purchase or defease,
any Subordinated Debt; and
(3) the Borrowers will not, and will not permit
any Subsidiary to, make any deposit for any
of the foregoing purposes;
provided, however, that,
(d) notwithstanding clause (a) above, the Parent shall be
permitted to make payments to purchase, redeem, acquire or otherwise
retire for value shares of the Preferred Stock issued in connection with
the Equity Issuance with Net Debt Proceeds of the Permitted Senior
Subordinated Debt in an aggregate amount not to exceed $25,000,000, so
long as (i) no Default shall have occurred and be continuing on the date
such payment is made or would result from the making of such payment,
(ii) after giving effect to such payment the Borrowers would be in pro
forma compliance with the covenants set forth in Section 7.2.4 for the
most recent full Fiscal Quarter immediately preceding the date of such
payment, and (iii) an Authorized Officer of each Borrower shall have
delivered a certificate to the Agents in form and substance satisfactory
to the Agents (including a calculation of the compliance with the
covenants set forth in Section 7.2.4) certifying as to accuracy of
clauses (d)(i) and (d)(ii) above;
(e) notwithstanding clause (a) above, upon the consummation of an
Initial Public Offering by the Parent, and after giving effect to the
application of the Net Equity Proceeds received therefrom in accordance
with clause (e) of Section 3.1.1, if the Leverage Ratio is less than
2.50:1 and no Defaults have occurred and are continuing or would occur
after giving effect to this clause (e), the Parent may use any remaining
Net Equity Proceeds from such Initial Public Offering to repurchase its
outstanding Preferred Stock;
(f) notwithstanding clause (a) above, payments may be made by the
Parent in respect of stock options or in respect of the Capital Stock of
the Parent issued upon the exercise of such stock options to the holders
thereof pursuant to the Parent Stock Option Plan if (i) the Leverage
Ratio for each of the two full Fiscal Quarters immediately preceding any
such payment was less than 3.50:1, (ii) the aggregate amount of all
payments made since the Closing Date pursuant to this clause (f) would
not exceed $10,000,000 and (iii) no
<PAGE>
Defaults have occurred and are continuing or would occur as
a result of any such payment; and
(g) the Borrowers and their Subsidiaries shall be permitted to
make payments to Triarc pursuant to the Tax Sharing Agreement (provided
that the Tax Sharing Agreement provides for payments to Triarc by the
Borrowers and/or their Subsidiaries during each taxable year in respect
of the tax liabilities of the Parent and its Subsidiaries in amounts
determined, in a manner substantially similar to the method provided in
the Tax Sharing Agreement in effect on the date hereof, as if the Parent
and its Subsidiaries were a separate affiliated group (within the
meaning of section 1504(a)(1) of the Code) that filed a separate
consolidated federal income tax return and, if applicable, consolidated
or combined tax returns under state and/or local law).
SECTION vii. Capital Expenditures, etc. The
-------------------------
Borrowers will not, and will not permit
any of their Subsidiaries to, make or
commit to make Capital Expenditures in
any fiscal period set forth below,
except Capital Expenditures which do not
aggregate in excess of the amount set
forth below opposite such fiscal period:
Closing Date
through 1997 Fiscal Year end $5,000,000
1998 Fiscal Year $8,000,000
1999 Fiscal Year $9,000,000
2000 Fiscal Year and each
Fiscal Year thereafter $10,000,000;
provided, however, that to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to this Section exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year,
such excess amount (up to 50% of the total amount of Capital Expenditures
permitted to be made in such Fiscal Year, without giving effect to any carry-
forward) may be carried forward to (but only to) the next succeeding Fiscal Year
(any such amount to be certified by the Borrowers to the Agents in the
Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal
Year, and any such amount carried forward to a succeeding Fiscal Year shall be
<PAGE>
deemed to be used prior to the Borrowers and their Subsidiaries using the amount
of Capital Expenditures permitted by this Section in such succeeding Fiscal Year
without giving effect to such carry-forward).
SECTION viii. Consolidation, Merger, etc. The
--------------------------
Borrowers will not, and will not
permit any of their Subsidiaries
which are Material Obligors to,
liquidate or dissolve, consolidate
with, or merge into or with, any
other corporation, or purchase or
otherwise acquire all or
substantially all of the assets of
any Person (or of any division
thereof) except
(1) any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the
Parent, Mistic, Snapple or any wholly-owned U.S.
Subsidiary of any Borrower, and the assets or stock
of any such Subsidiary may be purchased or
otherwise acquired by the Parent, Mistic, Snapple
or any other wholly-owned U.S. Subsidiary of any
Borrower; and
(2) so long as no Default has occurred and is
continuing or would occur after giving effect
thereto, the Borrowers or any of their Subsidiaries
may purchase all or substantially all of the assets
of any Person, or acquire such Person by merger, if
permitted (without duplication) by Section 7.2.7 to
be made as a Capital Expenditure, or if permitted
(without duplication) by Section 7.2.5 to be made
as an Investment.
SECTION ix. Asset Dispositions, etc. The
-----------------------
Borrowers will not, and will not permit
any of their Subsidiaries to, sell,
transfer, lease, contribute or otherwise
convey, or grant options, warrants or
other rights with respect to, all or any
substantial part of its assets
(including accounts receivable and
<PAGE>
Capital Stock of Subsidiaries) to any
Person, except as described below:
(1) such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its
business or is permitted by Section 7.2.8;
(2) (i) such sale, transfer, lease, contribution or
conveyance of such assets is for fair market value
and (other than in connection with a sale,
transfer, lease, contribution or conveyance of
Snapple's interest in Select) the consideration
consists of no less than 80% in cash, (ii) the net
book value of such assets, together with the net
book value of all other assets sold, transferred,
leased, contributed or conveyed pursuant to this
clause (b) since the Closing Date, does not exceed
(individually or in the aggregate) $30,000,000 over
the term of this Agreement and (iii) the Net
Disposition Proceeds generated from such sale,
transfer, lease, contribution or conveyance are
applied as Net Disposition Proceeds to prepay the
Loans pursuant to the terms of clause (c) of
Section 3.1.1 and Section 3.1.2; or
(c) such sale, transfer, lease, contribution or conveyance is a
payment on or in respect of stock options issued pursuant to the Parent
Stock Option Plan and is of the type described in clause (k) of Section
7.2.2 or is permitted pursuant to clause (f) of Section 7.2.6.
SECTION x. Modification of Certain Agreements.
----------------------------------
The Borrowers will not consent to any
amendment, supplement or other
modification of any of the terms or
provisions contained in, or applicable
to, any of the Stock Purchase Agreement,
the Refinancing Documents, the Tax
Sharing Agreement or any document or
instrument evidencing or applicable to
any Subordinated Debt, other than any
amendment, supplement or other
modification which extends the date or
<PAGE>
reduces the amount of any required
repayment or redemption.
SECTION xi. Transactions with Affiliates. The
----------------------------
Borrowers will not, and will not permit
any of their Subsidiaries to, enter
into, or cause, suffer or permit to
exist any arrangement or contract with
any of its other Affiliates unless such
arrangement or contract is fair and
equitable to such Borrower or such
Subsidiary and is an arrangement or
contract of the kind which would be
entered into by a prudent Person in the
position of such Borrower or such
Subsidiary with a Person which is not
one of its Affiliates; provided,
however, that
(a) within 180 days of the end of each Fiscal Year, the Borrowers
shall be permitted to pay management fees to Triarc for management
services rendered during such Fiscal Year then ended; provided, that,
with respect to any such Fiscal Year, management fees paid pursuant to
this clause (a) shall not exceed the lesser of (i) $6,000,000 and (ii)
the sum of (x) $3,000,000 plus (y) the Excess Amount;
(b) the Borrowers and their Subsidiaries shall be permitted to
enter into and to make payments pursuant to the Tax Sharing Agreement as
and to the extent permitted under Section 7.2.6; and
(c) the Borrowers shall be permitted to enter into one or more
agreements with Royal Crown Company, Inc. pursuant to which one or more
Borrowers shall provide management services to, and receive payments
from, Royal Crown Company, Inc.;
so long as, in the case of clause (a), (x) no Default shall have occurred and be
continuing on the date any such payment is made or would result from the making
of any such payment, (y) after giving effect to any such payment the Borrowers
would be in pro forma compliance with the covenants set forth in Section 7.2.4
for the most recent full Fiscal Quarter immediately preceding the date of such
payment, and (z) an Authorized Officer of each Borrower shall have delivered a
certificate to the Agents in form and substance satisfactory to the Agents
(including a calculation
<PAGE>
of the compliance with the covenants set forth in Section 7.2.4) certifying as
to accuracy of clauses (x) and (y) above.
SECTION xii. Negative Pledges, Restrictive
-----------------------------
Agreements, etc. The Borrowers will
---------------
not, and will not permit any of their
Subsidiaries to, enter into any
agreement (excluding this Agreement, any
other Loan Document, any agreement
governing any Indebtedness permitted by
clauses (b) and (c) of Section 7.2.2 as
----------- --- -------------
in effect on the Closing Date or by
clause (f) of Section 7.2.2 as to the
---------- -------------
assets financed with the proceeds of
such Indebtedness and any agreement in
respect of any Assumed Restricted Debt
provided such Indebtedness does not
exceed $5,000,000 in aggregate principal
amount at any time outstanding)
prohibiting (i) the creation or
assumption of any Lien upon its
properties, revenues or assets, whether
now owned or hereafter acquired, or the
ability of any Borrower or any other
Obligor to amend or otherwise modify
this Agreement or any other Loan
Document, or (ii) the ability of any
Subsidiary to make any payments,
directly or indirectly, to any Borrower
by way of dividends, advances,
repayments of loans or advances,
reimbursements of management and other
intercompany charges, expenses and
accruals or other returns on
investments, or any other agreement or
arrangement which restricts the ability
of any such Subsidiary to make any
payment, directly or indirectly, to any
Borrower.
<PAGE>
SECTION xiii. Sale and Leaseback. The
------------------
Borrowers will not, and will not
permit any of their Subsidiaries
to, enter into any agreement or
arrangement with any other Person
providing for the leasing by any
Borrower or any of its Subsidiaries
of real or personal property having
a fair market value of more than
$5,000,000 in the aggregate at any
time outstanding which has been or
is to be sold or transferred by any
Borrower or any of its Subsidiaries
to such other Person or to any
other Person to whom funds have
been or are to be advanced by such
Person on the security of such
property or rental obligations of
any Borrower or any of its
Subsidiaries.
ARTICLE 8.
EVENTS OF DEFAULT
SECTION a. Listing of Events of Default. Each of the
following events or occurrences described in
this Section 8.1 shall constitute an "Event
of Default".
SECTION i. Non-Payment of Obligations. (a) Any
--------------------------
Borrower shall default in the payment or
prepayment when due of any principal of
any Loan, (b) any Borrower shall default
(and such default shall continue
unremedied for a period of five days) in
the payment when due of any interest on
any Loan, (c) any Borrower shall default
in the payment when due of any
Reimbursement Obligation, or (d) any
Borrower shall default (and such default
shall continue unremedied for a period
of five days) in the payment when due of
any fee or the payment of any other
Obligation.
<PAGE>
SECTION ii. Breach of Warranty. Any
------------------
representation or warranty of any
Borrower or any other Obligor made or
deemed to be made hereunder or in any
other Loan Document executed by it or
any other writing or certificate
furnished by or on behalf of any
Borrower or any other Obligor to the
Agents or any Lender for the purposes of
or in connection with this Agreement or
any such other Loan Document (including
any certificates delivered pursuant to
Article V) is or shall be incorrect when
made in any material respect.
SECTION iii. Non-Performance of Certain Covenants
and Obligations. Any Borrower shall
default in the due performance and
observance of any of its obligations
under Section 7.1.1, Section 7.1.9 or
Section 7.2.
SECTION iv. Non-Performance of Other Covenants and
--------------------------------------
Obligations. Any Borrower or any other
-----------
Obligor shall default in the due
performance and observance of any other
agreement contained herein or in any
other Loan Document executed by it, and
such default shall continue unremedied
for a period of 30 days after notice
thereof shall have been given to the
Borrower by the Administrative Agent or
any Lender.
SECTION v. Default on Other Indebtedness. A
-----------------------------
default shall occur in the payment when
due (subject to any applicable grace
period), whether by acceleration or
otherwise, of any Indebtedness (other
than Indebtedness described in
Section 8.1.1) of any Borrower or any of
-------------
its Subsidiaries or any other Obligor
having a principal amount, individually
or in the aggregate, in excess of
$5,000,000, or a default shall occur in
the performance or observance of any
obligation or condition with respect to
<PAGE>
such Indebtedness if the effect of such
default is to accelerate the maturity of any
such Indebtedness or such default shall
continue unremedied for any applicable
period of time sufficient to permit the
holder or holders of such Indebtedness, or
any trustee or agent for such holders, to
cause such Indebtedness to become due and
payable prior to its expressed maturity.
SECTION vi. Judgments. Any judgment or order for
---------
the payment of money in excess of
$5,000,000 shall be rendered against any
Borrower or any of its Subsidiaries or
any other Obligor and either (i)
enforcement proceedings shall have been
commenced by any creditor upon such
judgment or order, or (i) there shall be
any period of 30 consecutive days during
which a stay of enforcement of such
judgment or order, by reason of a
pending appeal or otherwise, shall not
be in effect.
SECTION vii. Pension Plans. Any of the following
-------------
events shall occur with respect to any
Pension Plan (i) the institution of any
steps by such Borrower, any member of
its Controlled Group or any other Person
to terminate a Pension Plan if, as a
result of such termination, such
Borrower or any such member could
reasonably be expected to be required to
make a contribution to such Pension
Plan, or could reasonably expect to
incur a liability or obligation to such
Pension Plan, in excess of $5,000,000,
or (ii) a contribution failure occurs
with respect to any Pension Plan
sufficient to give rise to a Lien under
Section 302(f) of ERISA.
SECTION viii. Change in Control. Any Change in
Control shall occur.
<PAGE>
SECTION ix. Bankruptcy, Insolvency, etc. Any
Borrower, any of its U.S. Subsidiaries
or any other Subsidiary that is a
Material Obligor of any Borrower shall
(1) become insolvent or generally fail to pay,
or admit in writing its inability or
unwillingness to pay, debts as they become
due;
(2) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or
other custodian for any Borrower or any such
Subsidiary or any property of any thereof, or make
a general assignment for the benefit of creditors;
(3) in the absence of such application, consent or
acquiescence, permit or suffer to exist the
appointment of a trustee, receiver, sequestrator or
other custodian for any Borrower or any such
Subsidiary or for a substantial part of the
property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not
be discharged within 60 days, provided that each
Borrower and each such Subsidiary hereby expressly
authorizes the Administrative Agent and each Lender
to appear in any court conducting any relevant
proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan
Documents;
(4) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or
other case or proceeding under any bankruptcy or
insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of any Borrower
or any such Subsidiary, and, if any such case or
proceeding is not commenced by a Borrower or such
Subsidiary, such case or proceeding shall be
consented to or acquiesced in by such Person or
shall result in the entry of an order for relief or
shall remain for 60 days undismissed, provided that
each Borrower and each such Subsidiary hereby
expressly
<PAGE>
authorizes the Administrative Agent and each Lender
to appear in any court conducting any such case or
proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan
Documents; or
(5) take any action authorizing, or in
furtherance of, any of the foregoing.
SECTION x. Impairment of Security, etc. (a) Any
---------------------------
Loan Document, or any Lien granted
thereunder, shall (except in accordance
with its terms), in whole or in part,
terminate, cease to be effective or
cease to be the legally valid, binding
and enforceable obligation of any
Obligor party thereto; (b) any Borrower,
any other Obligor or any other party
shall, directly or indirectly, contest
in any manner such effectiveness,
validity, binding nature or
enforceability; or (c) any Lien securing
any Obligation shall, in whole or in
part, cease to be a perfected first
priority Lien, subject only to those
exceptions expressly permitted by such
Loan Document.
SECTION b. Action if Bankruptcy. If any Event of
--------------------
Default described in clauses (a) through (d)
----------- ---
of Section 8.1.9 shall occur, the Commitments
-------------
(if not theretofore terminated) shall
automatically terminate and the outstanding
principal amount of all outstanding Loans and
all other Obligations shall automatically be
and become immediately due and payable,
without notice or demand.
SECTION c. Action if Other Event of Default. If any
--------------------------------
Event of Default (other than any Event of
Default described in clauses (a) through (d)
----------- ---
of Section 8.1.9) shall occur for any reason,
-------------
whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon
the direction of the Required Lenders, shall
by notice to the Parent declare all or any
portion of the outstanding principal amount
<PAGE>
of the Loans and other Obligations to be due and
payable, require the Borrowers to provide cash
collateral to be deposited with the Administrative
Agent in an amount equal to the Letter of Credit
Outstandings and/or declare the Commitments (if not
theretofore terminated) to be terminated, whereupon
the full unpaid amount of such Loans and other
Obligations which shall be so declared due and
payable shall be and become immediately due and
payable, without further notice, demand or
presentment, the Borrowers shall deposit with the
Administrative Agent cash collateral in an amount
equal to the Letter of Credit Outstandings and/or,
as the case may be, the Commitments shall
terminate.
ARTICLE 9.
THE AGENTS
SECTION a. Actions. Each Lender hereby appoints DLJ
-------
as its Syndication Agent, Morgan Stanley as
its Documentation Agent and BNY as its
Administrative Agent under and for purposes
of this Agreement, the Notes and each other
Loan Document. Each Lender authorizes the
Agents to act on behalf of such Lender under
this Agreement, the Notes and each other Loan
Document and, in the absence of other written
instructions from the Required Lenders
received from time to time by the Agents
(with respect to which each of the Agents
agrees that it will comply, except as
otherwise provided in this Section or as
otherwise advised by counsel), to exercise
such powers hereunder and thereunder as are
specifically delegated to or required of the
Agents by the terms hereof and thereof,
together with such powers as may be
reasonably incidental thereto. The Agents
shall in all cases be fully protected in
acting, or refraining from acting, in
accordance with written instructions signed
by the Required Lenders and except as
otherwise specifically provided herein, such
<PAGE>
instructions and any action or inaction pursuant
thereto shall be binding on all the Lenders. No
Agent nor any of its directors, officers, employees
or agents shall have any responsibility to the
Borrowers on account of the failure of or delay in
performance or breach by any other Agent or any
Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in
performance or breach by any Lender, any other
Agent or any Borrower of any of their respective
obligations hereunder or under any other Loan
Document or in connection herewith or therewith.
Each Lender hereby indemnifies (which indemnity
shall survive any termination of this Agreement)
the Agents, pro rata according to such Lender's
percentage of the Total Exposure Amount, from and
against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, any
of the Agents in any way relating to or arising out
of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, and
as to which any Agent is not reimbursed by the
Borrowers; provided, however, that no Lender shall
be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims,
costs or expenses which are determined by a court
of competent jurisdiction in a final proceeding to
have resulted solely from such Agent's gross
negligence or wilful misconduct. The Agents shall
not be required to take any action hereunder, under
the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this
Agreement, the Notes or any other Loan Document,
unless each Agent is indemnified hereunder to its
satisfaction. If any indemnity in favor of any of
the Agents shall be or become, in such Agent's
determination, inadequate, such Agent may call for
additional indemnification from the Lenders and
cease to do the acts indemnified
<PAGE>
against hereunder until such additional indemnity
is given. Each Agent may execute any and all duties
hereunder by or through agents, attorneys-in-fact
or employees and shall be entitled to rely upon the
advice of legal counsel, accountants or experts
selected by each of them in good faith and with
reasonable care with respect to all matters arising
hereunder. The Lenders and the Agents hereby
acknowledge that no Agent shall be under any duty
to take any discretionary action permitted to be
taken by it pursuant to the provisions of this
Agreement unless it shall be requested in writing
to do so by the Required Lenders. The Issuer shall
act on behalf of the Lenders with respect to all
Letters of Credit and the documents associated
therewith until such time and except for so long as
the Administrative Agent may agree at the request
of the Lenders to act for the Issuer with respect
thereto.
SECTION b. Funding Reliance, etc. Unless the
---------------------
Administrative Agent shall have been notified
by telephone, confirmed in writing, by any
Lender by 5:00 p.m., New York time, on the
day prior to a Borrowing that such Lender
will not make available the amount which
would constitute its Percentage of such
Borrowing on the date specified therefor, the
Administrative Agent may assume that such
Lender has made such amount available to the
Administrative Agent and, in reliance upon
such assumption, make available to the
Borrowers a corresponding amount. If and to
the extent that such Lender shall not have
made such amount available to the
Administrative Agent, such Lender and each
Borrower severally agree to repay the
Administrative Agent forthwith on demand such
corresponding amount together with interest
thereon, for each day from the date the
Administrative Agent made such amount
available to the Borrowers to the date such
amount is repaid to the Administrative Agent,
(i) if from a Lender, at the Federal Funds
<PAGE>
Rate for the first three days and thereafter at the
Alternate Base Rate, and (ii) if from the
Borrowers, at the interest rate applicable at the
time to Loans comprising
such Borrowing.
SECTION c. Exculpation. Neither the Agents, the
-----------
Arranger, the Co-Arranger nor any of their
respective directors, officers, employees or
agents shall be liable to any Lender for any
action taken or omitted to be taken by it
under this Agreement or any other Loan
Document, or in connection herewith or
therewith, except for its own wilful
misconduct or gross negligence, nor
responsible for any recitals or warranties
herein or therein, nor for the effectiveness,
enforceability, validity or due execution of
this Agreement or any other Loan Document,
nor for the creation, perfection or priority
of any Liens purported to be created by any
of the Loan Documents, or the validity,
genuineness, enforceability, existence, value
or sufficiency of any collateral security,
nor to make any inquiry respecting the
performance by the Borrowers or any Obligor
of its obligations hereunder or under any
other Loan Document. Any such inquiry which
may be made by any Agent shall not obligate
it to make any further inquiry or to take any
action. The Issuer shall have all the
benefits and immunities (i) provided to the
Agents in this Article IX with respect to any
acts taken or omissions suffered by the
Issuer in connection with Letters of Credit
issued or proposed to be issued by it and the
Letter of Credit applications and related
documents as fully as if the term "Agents",
as used in this Article IX, included the
Issuer with respect to such acts or omissions
and (ii) as additionally provided in this
Agreement with respect to the Issuer.
SECTION d. Successor. The Syndication Agent may
resign as such upon one Business Days' notice
to the Parent and the Administrative Agent.
The Documentation Agent may resign as such
<PAGE>
upon one Business Days' notice to the Parent, the
Syndication Agent and the Administrative Agent. The
Administrative Agent may resign as such at any time
upon at least 30 days' prior notice to the Parent,
the Syndication Agent, the Documentation Agent and
all Lenders. If the Administrative Agent at any
time shall resign, the Required Lenders may, with
the prior consent of the Parent (which consent
shall not be unreasonably withheld or delayed),
appoint another Lender as a successor
Administrative Agent which shall thereupon become
the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed,
and shall have accepted such appointment, within 30
days after the retiring Administrative Agent's
giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which
shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S.
(or any State thereof) or a U.S. branch or agency
of a commercial banking institution, and having a
combined capital and surplus of at least
$500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive
from the retiring Administrative Agent such
documents of transfer and assignment as such
successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become
vested with all rights, powers, privileges and
duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be
discharged from its duties and obligations under
this Agreement. After any retiring Agent's
resignation hereunder as an Agent, the provisions
of
(1) this Article IX shall inure to its benefit
as to any actions taken or omitted to be
<PAGE>
taken by it while it was an Agent under this
Agreement; and
(2) Section 10.3 and Section 10.4 shall
continue to inure to its benefit.
SECTION e. Loans or Letters of Credit Issued by the
----------------------------------------
Agents. Each Agent shall have the same
------
rights and powers with respect to (x) the
Loans made by it or any of its Affiliates,
(y) the Notes held by it or any of its
Affiliates, and (z) its participating
interests in the Letters of Credit as any
other Lender and may exercise the same as if
it were not an Agent. Each Agent and each of
their respective Affiliates may accept
deposits from, lend money to, and generally
engage in any kind of business with the
Borrowers or any Subsidiary or Affiliate of
the Borrowers as if such Agent were not an
Agent hereunder.
SECTION f. Credit Decisions. Each Lender acknowledges
----------------
that it has, independently of the Agents, the
Arranger, the Co-Arranger and each other
Lender, and based on such Lender's review of
the financial information of the Borrowers,
this Agreement, the other Loan Documents (the
terms and provisions of which being
satisfactory to such Lender) and such other
documents, information and investigations as
such Lender has deemed appropriate, made its
own credit decision to extend its
Commitments. Each Lender also acknowledges
that it will, independently of the Agents,
the Arranger, the Co-Arranger and each other
Lender, and based on such other documents,
information and investigations as it shall
deem appropriate at any time, continue to
make its own credit decisions as to
exercising or not exercising from time to
time any rights and privileges available to
it under this Agreement or any other Loan
Document.
SECTION g. Copies, etc. The Administrative Agent
shall give prompt notice to each Lender of
<PAGE>
each notice or request required or permitted to be
given to the Administrative Agent by the Borrowers
pursuant to the terms of this Agreement (unless
concurrently required to be delivered to the
Lenders by the Borrowers). The Administrative Agent
will distribute to each Lender each document or
instrument received for its account and copies of
all other communications received by the
Administrative Agent from the Borrowers for
distribution to the Lenders by the Administrative
Agent in accordance with the terms of this
Agreement.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
SECTION a. Waivers, Amendments, etc. The provisions
------------------------
of this Agreement and of each other Loan
Document may from time to time be amended,
modified or waived, if such amendment,
modification or waiver is in writing and
consented to by the Borrowers and the
Required Lenders; provided, however, that no
-------- -------
such amendment, modification or waiver which
would:
(1) modify any requirement hereunder that any
particular action be taken by all the Lenders or by
the Required Lenders shall be effective unless
consented to by each Lender;
(2) modify this Section 10.1, change the definition of
"Required Lenders", increase any Commitment Amount
or the Percentage of any Lender, reduce any fees
described in Article III, release any Guarantor
from its obligations under its Guaranty or release
all or substantially all of the collateral
security, except as otherwise specifically provided
in any Loan Document or extend the Revolving Loan
Commitment Termination Date shall be made without
the consent of each Lender and each holder of a
Note;
<PAGE>
(3) extend the due date for, or reduce the amount of,
any scheduled repayment or prepayment of principal
of or interest on any Loan or any Reimbursement
Obligation (or reduce the principal amount of or
rate of interest on any Loan or any Reimbursement
Obligation) shall be made without the consent of
the holder of that Note evidencing such Loan or, in
the case of a Reimbursement Obligation, the Issuer
owed, and those Lenders participating in, such
Reimbursement Obligation;
(4) affect adversely the interests, rights or
obligations of the Issuer qua the Issuer
shall be made without the consent of the
Issuer;
(5) affect adversely the interests, rights or
obligations of any Agent, the Arranger or the
Co-Arranger (in its capacity as such) shall be made
without consent of such Agent, the Arranger or the
Co-Arranger, as the case may be; or
(6) modify clause (a)(i) of Section 3.1.1 or clause (b)
of Section 3.1.2 without the consent of the holders
of the Notes evidencing at least 51% of the
aggregate amount of Loans outstanding under the
Tranche or Tranches affected by such modification,
or, in the case of a modification affecting the
Revolving Loan Commitment Amount, the Lenders
holding at least 51% of the Revolving Loan
Commitments.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on any Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
<PAGE>
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION b. Notices. All notices and other
-------
communications provided to any party hereto
under this Agreement or any other Loan
Document shall be in writing or by facsimile
and addressed, delivered or transmitted to
such party at its address or facsimile number
set forth opposite its name on Schedule II
-----------
hereto under the applicable column heading or
as set forth in the Lender Assignment
Agreement or at such other address or
facsimile number as may be designated by such
party in a notice to the other parties, with
a copy, in the case of any notice to the
Borrowers, to Triarc Companies, Inc., 280
Park Avenue -- 41st Floor, New York, NY
10017, Attention: General Counsel, Facsimile:
(212) 451-3216. Any notice, if mailed and
properly addressed with postage prepaid or if
properly addressed and sent by pre-paid
courier service, shall be deemed given when
received; any notice, if transmitted by
facsimile, shall be deemed given when
transmitted (telephonic confirmation in the
case of facsimile).
SECTION c. Payment of Costs and Expenses. The
Borrowers hereby jointly and severally agree
to pay on demand all expenses of each of the
Agents (including the reasonable fees and
out-of-pocket expenses of counsel to the
Agents) in connection with
(1) the syndication by the Syndication Agent, the
Arranger and the Co-Arranger of the Loans, the
negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document,
including schedules and exhibits, and any
amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan
Document as may from time to time hereafter be
required, whether or not the
<PAGE>
transactions contemplated hereby are
consummated;
(2) the filing, recording, refiling or rerecording of
each Mortgage, each Pledge Agreement and each
Security Agreement and/or any Uniform Commercial
Code financing statements relating thereto and all
amendments, supplements and modifications to any
thereof and any and all other documents or
instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the
terms hereof or of the Mortgage, the Pledge
Agreement or the Security Agreement; and
(3) the preparation and review of the form of
any document or instrument relevant to this
Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save the Agents
and the Lenders harmless from all liability for, any stamp or other taxes which
may be payable in connection with the execution or delivery of this Agreement,
the borrowings hereunder, the issuance of the Notes, the issuance of the Letters
of Credit, or any other Loan Documents. The Borrowers jointly and severally
agree to reimburse each Agent and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by such Agent or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations.
SECTION d. Indemnification. In consideration of the
---------------
execution and delivery of this Agreement by
each Lender and the extension of the
Commitments, the Borrowers hereby jointly and
severally indemnify, exonerate and hold each
Agent, the Arranger, the Co-Arranger, the
Issuer and each Lender and each of their
respective partners, trustees, officers,
directors, employees and agents
(collectively, the "Indemnified Parties")
-------------------
free and harmless from and against any and
all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses
incurred in connection therewith
<PAGE>
(irrespective of whether any such Indemnified Party
is a party to the action for which indemnification
hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively,
the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of,
or arising out of, or relating to
(1) any transaction financed or to be financed
in whole or in part, directly or indirectly,
with the proceeds of any Loan or the use of
any Letter of Credit;
(2) the entering into and performance of this Agreement
and any other Loan Document by any of the
Indemnified Parties (including any action brought
by or on behalf of any Borrower as the result of
any determination by the Required Lenders pursuant
to Article V not to make any Credit Extension);
(3) any investigation, litigation or proceeding related
to any acquisition or proposed acquisition by any
Borrower or any of its Subsidiaries of all or any
portion of the stock or assets of any Person,
whether or not such Agent, such Arranger, the
Issuer or such Lender is party thereto;
(4) any investigation, litigation or proceeding related
to any environmental cleanup, audit, compliance or
other matter relating to the protection of the
environment or the Release by any Borrower or any
of its Subsidiaries of any Hazardous Material; or
(5) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging
or releases from, any real property owned or
operated by any Borrower or any Subsidiary thereof
of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or
claims asserted or arising under any Environmental
Law), regardless of whether
<PAGE>
caused by, or within the control of, such
Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. Each Obligor and its permitted successors and
assigns hereby waive, release and agree not to make any claim, or bring any cost
recovery action against, any Agent, any Arranger or any Lender under CERCLA or
any state equivalent, or any similar law now existing or hereafter enacted,
except to the extent arising out of the gross negligence or wilful misconduct of
any Indemnified Party. It is expressly understood and agreed that to the extent
that any of such Persons is strictly liable under any Environmental Laws, such
Obligor's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of such Obligor, to the extent permitted
under applicable law, with respect to the violation or condition which results
in liability of such Person. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, such Obligor hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION e. Survival. The obligations of the Borrowers
--------
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and
------------ --- --- --- ----
10.4, and the obligations of the Lenders
----
under Section 4.6, Section 4.8, Section 9.1
----------- ----------- -----------
and Section 10.12, shall in each case survive
-------------
any termination of this Agreement, the
payment in full of all Obligations and the
termination of all Commitments. The
representations and warranties made by each
Borrower and each other Obligor in this
Agreement and in each other Loan Document
shall survive the execution and delivery of
this Agreement and each such other Loan
Document.
SECTION f. Severability. Any provision of this
------------
Agreement or any other Loan Document which is
prohibited or unenforceable in any
jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the
extent of such prohibition or
unenforceability without invalidating the
remaining provisions of this Agreement or
<PAGE>
such Loan Document or affecting the validity
or enforceability of such provision in any
other jurisdiction.
SECTION g. Headings. The various headings of this
Agreement and of each other Loan Document are
inserted for convenience only and shall not
affect the meaning or interpretation of this
Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION h. Execution in Counterparts, Effectiveness,
-----------------------------------------
etc. This Agreement may be executed by the
---
parties hereto in several counterparts, each
of which shall be deemed to be an original
and all of which shall constitute together
but one and the same agreement. This
Agreement, and the amendments and
modifications contained herein, shall be and
become effective on the date when each of the
conditions set forth in this Section 10.8
------------
shall have been fulfilled to the satisfaction
of each of the Agents, each of the Lenders,
and the Issuer.
SECTION i. Execution of Counterparts. The
-------------------------
Syndication Agent shall have received
counterparts of this Agreement, duly
executed and delivered on behalf of each
Borrower, the Syndication Agent, the
Documentation Agent, the Administrative
Agent, each Lender and the Issuer.
SECTION ii. Notes. The Administrative Agent shall
-----
have received, for the account of each
Lender, such Lender's replacement Notes,
dated the Amendment Effective Date, each
duly completed and executed by an
Authorized Officer of each Borrower and
conforming to the requirements of
Section 2.7 of this Agreement. In
-----------
addition, each Existing Lender shall
have delivered to the Administrative
Agent each of its existing Notes, and
the Administrative Agent shall have
marked such notes "replaced" and
<PAGE>
returned them to the Parent, on behalf
of the Borrowers.
SECTION iii. Receipt of Funds. All of the funds
required to have been received by the
Administrative Agent pursuant to Section
10.16.2(f) of this Agreement shall have
been received.
SECTION iv. Legal Details, etc. All documents
------------------
executed or submitted pursuant hereto
shall be satisfactory in form and
substance to the Agents. The Agents
shall have received all information and
such counterpart originals or such
certified or other copies or such
materials as the Agents may reasonably
request, and all legal matters incident
to the transactions contemplated by this
Agreement shall be satisfactory to the
Agents.
SECTION i. Governing Law; Entire Agreement. THIS
-------------------------------
AGREEMENT, THE NOTES AND EACH OTHER LOAN
DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes and the other Loan
Documents constitute the entire understanding
among the parties hereto with respect to the
subject matter hereof and supersede any prior
agreements, written or oral, with respect
thereto.
SECTION j. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the
benefit of the parties hereto and their
respective successors and assigns; provided,
however, that:
(1) no Borrower may assign or transfer its
rights or obligations hereunder without the
prior written consent of the Agents and all
Lenders; and
(2) the rights of sale, assignment and transfer
of the Lenders are subject to Section 10.11.
<PAGE>
SECTION k. Sale and Transfer of Loans and Notes;
Participation in Loans and Notes. Each
Lender may assign, or sell participation in,
its Loans and Commitments to one or more
other Persons in accordance with this
Section 10.11.
SECTION i. Assignments. Any Lender,
(1) with the prior written consents of the Parent, the
Agents and (in the case of any assignment of
participations in Letters of Credit or Revolving
Loan Commitments) each Issuer (which consents shall
not be unreasonably delayed or withheld and which
consents of the Agents and each Issuer shall not be
required in the case of assignments made by or to
DLJ, Morgan Stanley, the Administrative Agent or
any of their Affiliates and which consent of the
Parent shall not be required if an Event of Default
under Section 8.1.1 or Section 8.1.9 shall have
occurred and be continuing) may at any time assign
and delegate to one or more commercial banks or
other financial institutions, and
(2) with notice to the Parent, the Agents and (in the
case of any assignment of participations in Letters
of Credit or Revolving Loan Commitments) each
Issuer, but without the consent of the Parent or
the Agents, may assign and delegate to any of its
Affiliates or to any other Lender or to any Person
whose investment manager or investment advisor is
the investment manager or investment advisor of
such Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans and participations in Letters
of Credit, of a constant, and not a
<PAGE>
varying, percentage), in a minimum aggregate amount of (i) $1,000,000 (if such
assignment and delegation is to a then existing Lender) and (ii) $2,000,000 (if
such assignment and delegation is to a Person not then a Lender) or the then
remaining amount of a Lender's Loans and Commitments; provided, however, that
any such Assignee Lender will comply, if applicable, with the provisions
contained in Section 4.6 and further, provided, however, that, the Borrowers,
each other Obligor and the Agents shall be entitled to continue to deal solely
and directly with such Lender in connection with the interests so assigned and
delegated to an Assignee Lender until
(3) written notice of such assignment and delegation,
together with payment instructions, addresses and
related information with respect to such Assignee
Lender, shall have been given to the Parent and the
Agents by such Lender and such Assignee Lender,
(4) such Assignee Lender shall have executed
and delivered to the Parent and the Agents a
Lender Assignment Agreement, accepted by the
Agents (if required), and
(5) the processing fees described below shall
have been paid.
From and after the date that the Agents accept such Lender Assignment Agreement,
(x) the Assignee Lender thereunder shall be deemed automatically to have become
a party hereto and to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and (y) the assignor Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Within five Business Days after its receipt of notice that the Administrative
Agent has received an executed Lender Assignment Agreement, the Parent shall
execute and deliver to the Administrative Agent (for delivery to the relevant
Assignee Lender) new Notes evidencing such Assignee Lender's assigned Loans and
Commitments and, if the assignor Lender has retained Loans and Commitments
hereunder, replacement Notes in the principal amount of the Loans and
Commitments retained by the
<PAGE>
assignor Lender hereunder (such Notes to be in exchange for, but not in payment
of, those Notes then held by such assignor Lender). Each such Note shall be
dated the date of the predecessor Notes. The assignor Lender shall mark the
predecessor Notes "exchanged" and deliver them to the Parent. Accrued interest
on that part of the predecessor Notes evidenced by the new Notes, and accrued
fees, shall be paid as provided in the Lender Assignment Agreement. Accrued
interest on that part of the predecessor Notes evidenced by the replacement
Notes shall be paid to the assignor Lender. Accrued interest and accrued fees
shall be paid at the same time or times provided in the predecessor Notes and in
this Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee to the Administrative Agent upon delivery of any Lender
Assignment Agreement in the amount of $3,500. Any attempted assignment and
delegation not made in accordance with this Section 10.11.1 shall be null and
void. Nothing contained in this Section 10.11.1 shall prevent or prohibit any
Lender from pledging its rights (but not its obligations to make Loans) under
this Agreement and/or its Loans and/or its Notes hereunder to a Federal Reserve
Bank in support of borrowings made by such Lender from such Federal Reserve
Bank. In the event that S&P, Moody's or Thompson's BankWatch (or InsuranceWatch
Ratings Service, in the case of Lenders that are insurance companies (or Best's
Insurance Watch Ratings Service)) shall, after the date that any Lender with a
Commitment to make Revolving Loans or participate in Letters of Credit becomes a
Lender, downgrade the long-term certificate of deposit rating or long-term
senior unsecured debt rating of such Lender, and the resulting rating shall be
below BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance company
(or B, in the case of an insurance company not rated by InsuranceWatch Ratings
Service)), then the Issuer shall have the right, but not the obligation, upon
notice to such Lender and the Administrative Agent, to replace such Lender with
an Assignee Lender in accordance with and subject to the restrictions contained
in this Section, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in this
Section) all its interests, rights and obligations in respect of its Revolving
Loan Commitment under this Agreement to such Assignee Lender; provided, however,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any governmental authority and (ii) such Assignee Lender shall pay to
such Lender in immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of payment on
the Loans made, and Letters of Credit participated in, by such Lender hereunder
and all other
<PAGE>
amounts accrued for such Lender's account or owed to it
hereunder.
SECTION ii. Participations. Any Lender may at any
--------------
time sell to one or more commercial
banks or other Persons (each of such
commercial banks and other Persons being
herein called a "Participant")
-----------
participating interests (or a sub-
participating interest, in the case of a
Lender's participating interest in a
Letter of Credit) in any of the Loans,
Commitments, or other interests of such
Lender hereunder; provided, however,
-------- -------
that
(1) no participation or sub-participation contemplated
in this Section 10.11.2 shall relieve such Lender
from its Commitments or its other obligations
hereunder or under any other Loan Document,
(2) such Lender shall remain solely responsible
for the performance of its Commitments and
such other obligations,
(3) the Borrowers and each other Obligor and the Agents
shall continue to deal solely and directly with
such Lender in connection with such Lender's rights
and obligations under this Agreement and each of
the other Loan Documents,
(4) no Participant, unless such Participant is an
Affiliate of such Lender, or is itself a Lender,
shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under
any other Loan Document, except that such Lender
may agree with any Participant that such Lender
will not, without such Participant's consent, agree
to (i) any reduction in the interest rate or in the
amount of fees that such Participant is otherwise
entitled to, (ii) a decrease in the principal
amount, or an extension of the Stated Maturity
Date, of any Loan in which such Participant has
purchased
<PAGE>
a participating interest or (iii) release all or
substantially all of the collateral security under
the Loan Documents or any Guarantor from its
obligations under its Guaranty, in each case except
as otherwise specifically provided in a Loan
Document, and
(5) no Borrower shall be required to pay any amount
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4
that is greater than the amount which it would have
been required to pay had no participating interest
been sold.
The Borrowers acknowledge and agree, subject to clause (e) above, that each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3, 10.4
and 10.12, shall be considered a Lender.
SECTION l. Confidentiality. The Lenders shall hold
---------------
all non-public information obtained pursuant
to the requirements of this Agreement in
accordance with their customary procedures
for handling confidential information of this
nature and in accordance with safe and sound
banking or investment practices (as
applicable) and in any event may make
disclosure to any of their examiners,
Affiliates, outside auditors, counsel and
other professional advisors in connection
with this Agreement or as reasonably required
by any bona fide transferee, participant or
---- ----
assignee or to any direct or indirect
contractual counterparties in swap agreements
or such contractual counterparties'
professional advisors provided that such
contractual counterparty or professional
advisor to such contractual counterparty
agrees in writing to keep such information
confidential to the same extent required of
the Lenders hereunder, or as required or
requested by any governmental agency, bank
regulator or insurance company regulator or
representative thereof or pursuant to legal
process; provided, however, that
-------- -------
<PAGE>
(1) unless specifically prohibited by applicable law or
court order, each Lender shall notify the Parent of
any request by any governmental agency or
representative thereof (other than any such request
in connection with an examination of the financial
condition of such Lender by such governmental
agency) for disclosure of any such non-public
information prior to disclosure of such
information;
(2) prior to any such disclosure pursuant to this
Section 10.12, each Lender shall require any such
bona fide transferee, participant and assignee
receiving a disclosure of non-public information to
agree in writing
(a) to be bound by this Section 10.12; and
(b) to require such Person to require any other
Person to whom such Person discloses such
non-public information to be similarly bound
by this Section 10.12; and
(3) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth
therein, no Lender shall be obligated or required
to return any materials furnished by the Borrowers
or any Subsidiary.
SECTION m. Other Transactions. Nothing contained
------------------
herein shall preclude the Agents, the
Arranger, the Co-Arranger or any other Lender
from engaging in any transaction, in addition
to those contemplated by this Agreement or
any other Loan Document, with any Borrower or
any of its Affiliates in which such Borrower
or such Affiliate is not restricted hereby
from engaging with any other Person.
SECTION n. Forum Selection and Consent to
Jurisdiction. ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
<PAGE>
OR ACTIONS OF THE AGENTS, THE ISSUER, THE ARRANGER,
THE CO-ARRANGER, THE LENDERS OR THE BORROWERS SHALL
BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH
SUCH LITIGATION. THE BORROWERS FURTHER IRREVOCABLY
CONSENT TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR
ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION o. Waiver of Jury Trial. THE AGENTS, THE
ISSUER, THE ARRANGER, THE CO-ARRANGER, THE
LENDERS AND THE BORROWERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR
<PAGE>
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
ISSUER, THE ARRANGER, THE CO-ARRANGER, THE LENDERS
OR THE BORROWERS. THE BORROWERS ACKNOWLEDGE AND
AGREE THAT THEY HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH ANY
BORROWER IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUER, THE
ARRANGER, THE CO-ARRANGER AND THE LENDERS ENTERING
INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
SECTION 10.16. Reallocation and Assignment of Existing Loans and
Existing Revolving Loan Commitments. Subject to the terms and conditions set
forth in this Section 10.16 and Section 10.8, each Existing Lender agrees,
severally and for itself alone, to assign a portion of its Existing Loans and
Existing Revolving Loan Commitments in accordance with this Section 10.16.
SECTION 10.16.1. Reallocation and Assignments. Each of the
Agents, the Lenders and the Issuer agrees that upon the
occurrence of the Amendment Effective Date,
(a) each of the Existing Lenders shall be deemed to have sold and
assigned to the Syndication Agent that portion of such Existing Lender's
Existing Term Loans, Existing Revolving Loans and Existing Revolving
Loan Commitment which is in excess of the amount of such Existing
Lender's Percentage of the Term Loans, the Revolving Loans and the
Revolving Loan Commitment, respectively, after giving effect to the
reallocations and assignments pursuant to this Section 10.16.1, to be in
each case as set forth on Schedule II hereto;
(b) the Syndication Agent shall be deemed to have (i) purchased
and assumed that portion of the Existing Term Loans, the Existing
Revolving Loans and the Existing Revolving Loan Commitment,
respectively, of each Existing Lender which are being sold pursuant to
clause (a) above and (ii) reallocated, sold and assigned such portions
to the Lenders who are not Existing Lenders, and such Lenders shall be
deemed to have purchased and assumed such portions being
<PAGE>
so sold and assigned, in such a manner and in such amounts so as to
cause each such Lender's Percentage of all Loans, including the portions
thereof being sold to such Lender pursuant to this paragraph, to be in
each case as set forth on Schedule II hereto.
SECTION 10.16.2. Additional Provisions for Reallocations
and Assignments.
(a) Each Existing Lender hereby represents and warrants to the
Syndication Agent and each Lender that, immediately before the Amendment
Effective Date, (i) its Existing Term Loans, Existing Revolving Loans
and Existing Revolving Loan Commitment are in the amounts set forth on
Schedule III hereto and that it is the legal and beneficial owner
thereof; and (ii) to the extent that such Existing Lender is making a
sale and assignment pursuant to Section 10.16.1, the rights and
interests being assigned and sold are free and clear of any adverse
claim or encumbrance created by such Existing Lender (other than any
encumbrance to be released automatically upon receipt of payment in
respect of such sale and assignment), and without recourse or
representation or warranty of any kind whatsoever except for the
representations and warranties set forth in this Section 10.16.2.
(b) Each of the Lenders (other than the Existing Lenders) hereby
acknowledges and agrees that (i) other than the representations and
warranties contained in clause (a) above, none of the Arrangers, the
Agents, the Issuer or any Existing Lender have made representations or
warranties or assumed any responsibility with respect to (x) any
statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness or sufficiency of this Agreement or any other Loan Document,
or (y) the financial condition of the Borrowers or any other Obligor or
the performance by the Borrowers or any other Obligor of the
Obligations; (ii) it has received such information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Agreement; and (iii) it has made and continues to make its own
credit decisions in taking or not taking action under this Agreement,
independently and without reliance upon any Arranger, any Agent, the
Issuer or any Existing Lender (other than itself, if applicable).
<PAGE>
(c) The Borrowers, the Agents, the Lenders and the Issuer agree
that each Existing Lender which is making a sale and assignment pursuant
to clause (a) of Section 10.16.1 shall, as of the Amendment Effective
Date, relinquish its rights and be discharged and released from its
obligations under this Agreement to the extent of the rights and
interests so sold and assigned.
(d) The Borrowers, the Agents, the Lenders and the Issuer also
agree that the Syndication Agent shall, as of the Amendment Effective
Date, relinquish its rights and be discharged and released from its
obligations under this Agreement to the extent of the rights and
interests sold and assigned by it to the Lenders pursuant to Section
10.16.1(b)(ii).
(e) Concurrently with the occurrence of the Amendment Effective
Date, (i) each Lender which is purchasing any portion of the Existing
Term Loans, the Existing Revolving Loans and the Existing Revolving Loan
Commitments pursuant to Section 10.16.1(b)(ii) shall deliver to the
Administrative Agent immediately available funds in the full amount of
the purchase made by it, and (ii) the Administrative Agent shall, to the
extent of the funds so received, disburse such funds to the Existing
Lenders which are making sales and assignments pursuant to Section
10.16.1(a) in the amount of the portions so sold and assigned.
SECTION 10.16.3. Lender Assignment Agreement, etc. The provisions of
this Section 10.16 shall be deemed to operate as a Lender Assignment Agreement
executed in accordance with all of the terms and provisions of this Agreement.
Schedule II hereto contains the notice address of all Lenders.
SECTION 10.16.4. Obligations under Loan Documents. As of the Amendment
Effective Date, DLJ hereby assigns to BNY, in its capacity as Administrative
Agent, and BNY, in its capacity as Administrative Agent, hereby assumes from
DLJ, all of DLJ's rights, responsibilities and obligations under the Pledge
Agreements, the Security Agreements and the Guaranty, and DLJ shall have no
further rights, responsibilities or obligations under such Loan Documents other
than any rights which by their express terms survive the termination of such
Loan Documents.
<PAGE>
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.
SNAPPLE BEVERAGE CORP.
By: Ernest C. Cavallo
Title:
Address: 709 Westchester Avenue
White Plains, NY 10604
Facsimile No.: (914) 397-9220
Attention: President
MISTIC BRANDS, INC.
By: Ernest C. Cavallo
Title:
Address: 709 Westchester Avenue
White Plains, NY 10604
Facsimile No.: (914) 397-9220
Attention: President
TRIARC BEVERAGE HOLDINGS CORP.
By Ernest C. Cavallo
Title:
Address: 709 Westchester Avenue
White Plains, NY 10604
Facsimile No.: (914) 397-9220
Attention: President
<PAGE>
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
By: Harold Philipps
Title:
Address: 277 Park Avenue
9th Floor
New York, NY 10172
Facsimile No.: (212) 892-5286
Attention: Stephen P. Hickey
MORGAN STANLEY SENIOR FUNDING, INC.,
as Documentation Agent
By Christopher A. Pucillo
Title: Vice President
Address: 1585 Broadway
10th Floor
New York, NY 10036
Facsimile No.: (212) 761-0592
Attention: Jim Morgan
THE BANK OF NEW YORK,
as Administrative Agent, as Issuer
and as Swing Line Lender
By Russell Burr
Title: Senior Vice President
Address: One Wall Street
<PAGE>
22nd Floor
New York, NY 10286
Facsimile No.: (212) 635-1480
Attention: Guy Blissett
<PAGE>
LENDERS
DLJ CAPITAL FUNDING, INC.
By: Harold Philipps
Title:
MORGAN STANLEY SENIOR FUNDING, INC.
By: Christopher A. Pucillo
Title: Vice President
THE BANK OF NEW YORK
By; Russell Burr
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: Barry A. Zamore
Title: Associate
By: Claire M. McCarthy
Title: Managing Director
CITIBANK, N.A.
By: Marjorie Harris
Title: Attorney-In-Fact
<PAGE>
BANK OF MONTREAL
By: Peter Konigsmann
Title: Director
MERITA BANK LTD.
By: Clifford Abramsky
Title: Vice President
CORESTATES BANK N.A.
By: John T. Haurin
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: Robert J. Patterson
Title: Senior Vice President
THE SUMITOMO BANK LIMITED,
NEW YORK BRANCH
By: Suresh S. Tata
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.
<PAGE>
By: Takuya Honjo
Title: Senior Vice President
ROYAL BANK OF CANADA
By: Marion A. Patterson
Title: Senior Manager
CREDIT LYONNAIS NEW YORK BRANCH
By: Attila Koc
Title: First Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: T. Hayashi
Title: Senior Vice President
BARCLAYS BANK PLC
By: Keith F. Arnsdorff
Title: Associate Director
THE ROYAL BANK OF SCOTLAND PLC
By: Grant Stoddart
Title: Senior Vice President
and Manager
<PAGE>
FIRST UNION NATIONAL BANK
By: Michael P. Doherty
Title: Vice President
THE FUJI BANK, LTD.
By: Teiji Teramoto
Title: Vice President and
Manager
LONG TERM CREDIT BANK OF JAPAN
By: Norboru Kubota
Title: Senior Vice President
<PAGE>
Summary of Omitted Schedules and Exhibits
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
SCHEDULE III - Existing Loans and Existing Revolving Loan
Commitments
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT B-1 Form of Term A Note
EXHIBIT B-2 - Form of Term B Note
EXHIBIT B-3 - Form of Term C Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Issuance Request
EXHIBIT E - Form of Borrowing Base Certificate
EXHIBIT F - Form of Continuation/Conversion Notice
EXHIBIT G - Form of Closing Date Certificate
EXHIBIT H - Form of Compliance Certificate
EXHIBIT I - Form of Guaranty
EXHIBIT J-1 - Form of Triarc Pledge Agreement
EXHIBIT J-2 - Form of Snapple Pledge Agreement
EXHIBIT J-3 - Form of Parent Pledge Agreement
EXHIBIT J-4 - Form of Subsidiary Pledge Agreement
EXHIBIT K-1 - Form of Borrower Security Agreement
EXHIBIT K-2 - Form of Subsidiary Security Agreement
EXHIBIT L - Form of Solvency Certificate
EXHIBIT M-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT M-2 - Form of Opinion of Intellectual Property Counsel
to the Obligors
EXHIBIT M-3 - Form of Opinion of Local Counsel to the Obligors
EXHIBIT N - Form of Lender Assignment Agreement
The Registrant hereby agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon its request.
<PAGE>
