UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 14, 1996
RC/ARBY'S CORPORATION
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(Exact Name of Registrant as Specified in Charter)
DELAWARE 0-20286 59-2277791
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
1000 Corporate Drive
Fort Lauderdale, Florida 33334
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (954) 351-5600
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(Former Name or Former Address, if
Changed Since Last Report)
<PAGE>
Item 7. Financial Statements and Exhibits.
Filed herewith are certain documents and agreements entered into or
otherwise relating to the Registrant and its subsidiaries.
(c) Exhibits:
3.1 Certificate of Incorporation of RC/Arby's Corporation.
3.2 By-Laws of RC/Arby's Corporation.
4.1 Loan Agreement dated as of September 5, 1996 by and between
FFCA Mortgage Corporation and Arby's Restaurant Holding
Company.
4.2 Supplement to Loan Agreements as of June 26, 1996 among FFCA
Acquisition Corporation, Arby's Restaurant Holding Company,
Arby's Restaurant Development Corporation and Triarc
Companies, Inc.
4.3 Agreement Regarding Cross-Collateralization and Cross-
Default Provisions as of June 26, 1996 by and among
FFCA Acquisition Corporation, Arby's Restaurant Development
Corporation, Arby's Restaurant Holding Company and Arby's,
Inc.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RC/ARBY'S CORPORATION
Date: November 14, 1996 By: /s/ JOHN L. BARNES, JR.
--------------------------
John L. Barnes, Jr.
Senior Vice President
and Chief Financial Officer
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
of
RC/ARBY'S CORPORATION
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of the State of Delaware, certifies as follows:
1. Name. The name of the corporation is RC/Arby's Corporation
(hereinafter called the "Corporation").
2. Address; Registered Agent. The address of the Corporation's registered
office is 1209 Orange Street, City of Wilmington, County of New Castle, State
of Delaware; and its registered agent at such address is The Corporation Trust
Company.
3. Purposes. The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
4. Number of Shares. The total number of shares of capital stock of all
classifications which the Corporation shall have authority to issue is THREE
THOUSAND (3,000) shares of Common Stock of the par value of one dollar ($1.00)
each.
5. Name and Address of Incorporator. The name and mailing address of the
incorporator are: Mary C. Wade, c/o Triarc Group, Inc., 900 Third Avenue, 31st
Floor, New York, New York 10022.
6. Liability of Directors. No director of the Corporation shall be held
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is amended after adoption
of this paragraph to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
7. Adoption, Amendment and/or Repeal of By-Laws. The Board of Directors
may from time to time (after adoption by the undersigned of the original
by-laws of the Corporation) make, alter or repeal the by-laws of the
Corporation; provided, however, that any by-laws made, amended or repealed by
the Board of Directors may be amended or repealed, and any by-laws may be
made, by the stockholders of the Corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this 5th day of
January, 1994.
/s/ MARY C. WADE
--------------------------
Mary C. Wade, Incorporator
EXHIBIT 3.2
RC/ARBY'S CORPORATION
BY-LAWS
ARTICLE I
Offices
SECTION 1. Registered Office in Delaware. The registered office of
the Corporation (as defined in Article X below) in the State of Delaware shall
be located at 1209 Orange Street in the City of Wilmington, County of New
Castle, and the name of the resident agent in charge thereof shall be The
Corporation Trust Company.
SECTION 2. Principal Executive Office. The principal executive office
of the Corporation shall be located at 900 Third Avenue, New York, New York
10022, or such other location as the Board of Directors shall determine.
SECTION 3. Other Offices. In addition to the registered office in the
State of Delaware and the principal executive office, the Corporation may have
offices at such other places within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders of the
Corporation for the election of directors and the transaction of such other
business as may be brought before the meeting in accordance with the
Certificate of Incorporation (as defined in Article X below) and these By-Laws
shall be held on the date and at the time fixed from time to time by the Board
of Directors within thirteen (13) months after the date of the preceding
annual meeting. The annual meeting of stockholders of the Corporation shall
not be called or held otherwise than as provided in the Certificate of
Incorporation or in these By-Laws.
SECTION 2. Special Meeting. Special meetings of stockholders of the
Corporation may be called only at the direction of the Chairman and Chief
Executive Officer, the President and the Chief Operating Officer or the Board
of Directors.
SECTION 3. Place of Meeting. Annual and special meetings of
stockholders of the Corporation shall be held at the registered office of the
Corporation in the City of Wilmington, County of New Castle, State of
Delaware, unless some other place within or without the State of Delaware
shall have been fixed by a resolution adopted by the Board and designated in
the notice of meeting.
SECTION 4. Notice of Meetings. Notice of every meeting of
stockholders of the Corporation, annual or special, stating the time, place
and, in general terms, the purpose or purposes thereof, shall be given by the
Chairman and Chief Executive Officer or the President and Chief Operating
Officer or the Secretary of the Corporation to each stockholder of record
entitled to vote at the meeting. Notice of the time, place and purposes of any
annual or special meeting of stockholders may be dispensed with if every
stockholder entitled to notice of and to vote at such meeting shall attend,
either in person or by proxy, or if every absent stockholder entitled to such
notice and vote shall, in a writing or writings filed with the records of the
meeting either before or after the holding thereof, waives such notice.
SECTION 5. Means of Giving Notice. A notice of any annual or special
meeting of stockholders of the Corporation may be given either personally or
by mail or other means of written communication, charges prepaid, addressed to
the stockholder at such stockholder's address appearing on the books of the
Corporation or given by such stockholder to the Corporation for the purpose of
notice. If a stockholder gives no address to the Corporation for the purpose
of notice, notice is duly given to such stockholder if sent by mail or other
means of written communication addressed to the place where the registered
office of the Corporation is situated, or if published, at least once in a
newspaper of general circulation in the county in which such office is
located.
SECTION 6. Time of Notice. Any required notice of any meeting of
stockholders of the Corporation shall be sent to each stockholder entitled
thereto not less than ten (10) nor more than sixty (60) days prior to the date
of the meeting.
SECTION 7. Record Date. The record date for determining stockholders
entitled to notice of and to vote at any meeting of stockholders of the
Corporation shall be that date, not less than ten (10) nor more than sixty
(60) days preceding the date of the meeting, fixed for such purpose by the
affirmative vote of a majority of the Board of Directors, or, if no such date
is fixed for such purpose by the Board of Directors, the date next preceding
the day on which notice of the meeting is given, or, if notice of the meeting
is waived, the day next preceding the day on which the meeting is held.
SECTION 8. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders of the Corporation, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder.
SECTION 9. Quorum. At any meeting of stockholders of the Corporation
the presence in person or by proxy of the holders of a majority in voting
power of the outstanding stock of the Corporation entitled to vote shall
constitute a quorum for the transaction of business brought before the meeting
in accordance with the Certificate of Incorporation and these By-Laws and, a
quorum being present, the affirmative vote of the holders of a majority in
voting power present in person or represented by proxy and entitled to vote
shall be required to effect action by stockholders; provided, however, that
the affirmative vote of a plurality in voting power present in person or
represented by proxy and entitled to vote shall be required to effect
elections of directors. The stockholders present at any duly organized meeting
of stockholders may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to have less than a quorum.
SECTION 10. Adjournment. Any meeting of stockholders of the
Corporation may be adjourned from time to time, without notice other than by
announcement at the meeting by the chairman of the meeting at which such
adjournment is taken, and at any such adjourned meeting at which a quorum
shall be present any action may be taken that could have been taken at the
meeting originally called; provided, however, that if the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting.
SECTION 11. Organization. At every meeting of stockholders of the
Corporation, the Chairman and Chief Executive Officer or, in the absence of
such officer, the President and Chief Operating Officer or, in the absence of
both such officers, such individual as shall have been designated by the
Chairman and Chief Executive Officer or, if such officer has not done so, then
by the President and Chief Operating Officer, or if such officer has not done
so, by a resolution adopted by the affirmative vote of a majority of the Board
of Directors, shall act as chairman of the meeting. The Secretary of the
Corporation or, in the absence of such officer, an Assistant Secretary in
attendance or, in the absence of the Secretary and an Assistant Secretary, an
individual appointed by the chairman of the meeting shall act as secretary of
the meeting and keep a record of the proceedings of the meeting.
SECTION 12. Agenda and Rules of Order. The chairman of the meeting
shall have sole authority to prescribe the agenda and rules of order for the
conduct of any meeting of stockholders of the Corporation and to determine all
questions arising thereat relating to the order of business and the conduct of
the meeting, except as otherwise required by law.
SECTION 13. Conduct of Business at Meetings. Except as otherwise
provided by law, at any annual or special meeting of stockholders of the
Corporation only such business shall be conducted as shall have been properly
brought before the meeting. In order to be properly brought before the
meeting, such business must have either been:
(A) specified in the written notice of the meeting (or any supplement
thereto) given to stockholders of record on the record date for such meeting
by or at the direction of the Board of Directors; or
(B) brought before the meeting at the direction of the Chairman and
Chief Executive Officer, President and Chief Operating Officer or the Board of
Directors.
SECTION 14. Stockholder Action by Consent. Any action required or
permitted to be taken by the holders of the issued and outstanding stock of
the Corporation may be effected at an annual or special meeting of
stockholders or by the consent in writing of such stockholders or any of them,
which writing shall be filed with the minutes of proceedings of the
stockholders.
ARTICLE III
Board of Directors
SECTION 1. Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 2. Qualification of Director. Each director shall be at least
eighteen (18) years of age. Directors need not be stockholders of the
Corporation.
SECTION 3. Number of Directors. The Board of Directors shall consist
of not fewer than two (2) nor more than fifteen (15) individuals, the exact
number to be fixed from time to time by the Board of Directors pursuant to a
resolution adopted by a majority of directors then in office.
SECTION 4. Election and Term of Office. The members of the Board of
Directors shall be elected by the stockholders at the annual meeting of
stockholders and each director shall hold office until the annual meeting of
stockholders next succeeding his or her election and until his or her
successor is elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
SECTION 5. Vacancies. Any vacancy in the Board of Directors caused by
death, resignation, retirement, disqualification or removal or any other cause
(including an increase in the number of directors) may be filled solely by
resolution adopted by the affirmative vote of a majority of the directors then
in office, whether or not such majority constitutes less than a quorum, or by
a sole remaining director. Any new director elected to fill a vacancy on the
Board of Directors will serve for the remainder of the full term of the
director for which the vacancy occurred. No decrease in the size of the Board
of Directors shall have the effect of shortening the term of any incumbent
director.
SECTION 6. Resignation of Directors. Any director may resign at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, and if no time be specified, shall take effect at the
time of its receipt by the Chairman and Chief Executive Officer, the President
and Chief Operating Officer or the Secretary of the Corporation. The
acceptance of a resignation shall not be necessary to make it effective, but
no resignation shall discharge any accrued obligation or duty of a director.
SECTION 7. Removal of Directors. A duly elected director of the
Corporation may be removed from such position, with or without cause, only by
the affirmative vote of the holders of two-thirds (2/3) of the voting power of
the outstanding capital stock of the Corporation entitled to vote in the
election of directors, voting as a single class.
SECTION 8. Quorum of Directors. Except as otherwise required by law
or by the Certificate of Incorporation or by these By-Laws, (i) a majority of
the directors in office at the time of a duly assembled meeting shall
constitute a quorum and be sufficient for the transaction of business, and
(ii) any act of a majority of the directors present at a meeting at which
there is a quorum shall be the act of the Board of Directors.
SECTION 9. Place of Meeting. Subject to the provisions of Section 10
of this Article III, the Board of Directors may hold any meeting at such place
or places within or without the State of Delaware as it may determine.
SECTION 10. Organization Meeting. After each annual meeting of
stockholders of the Corporation, the Board of Directors shall meet immediately
at the place where such meeting of stockholders was held for the purpose of
organization, election of Executive Officers (as defined in Section 1 of
Article V), and the transaction of other business.
SECTION 11. Regular Meetings. Regular meetings of the Board of
Directors may be held at such times and at such places within or without the
State of Delaware as the Board of Directors shall from time to time determine.
SECTION 12. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman and Chief Executive Officer, the
President and Chief Operating Officer or any two directors, and any such
meeting shall be held at such time and at such place within or without the
State of Delaware as shall be specified in the notice of meeting.
SECTION 13. Notice of Meetings. Subject to the provisions of Section
10 of this Article III, notice of the place, day and hour of every meeting of
the Board of Directors shall be given to each director by mailing such notice
at least two (2) days before the meeting to his or her last known address or
by personally delivering, telegraphing or telephoning such notice to him or
her at least twenty-four (24) hours before the meeting.
SECTION 14. Organization. The Chairman and Chief Executive Officer
or, in the absence of such officer, the President and Chief Operating Officer
shall call meetings of the Board of Directors to order and shall act as the
chairman thereof. In the absence of the Chairman and Chief Executive Officer
and the President and Chief Operating Officer, a majority of the directors
present may elect as chairman of the meeting any director present. The
Secretary of the Corporation or, in the absence of such officer, an Assistant
Secretary in attendance or, in the absence of the Secretary and an Assistant
Secretary, an individual appointed by the chairman of the meeting shall act as
a secretary of the meeting and keep a record of the proceedings of the
meeting.
SECTION 15. Order of Business. Unless otherwise determined by the
Board of Directors the order of business and rules of order at any meeting of
the Board of Directors shall be determined by the chairman of the meeting.
SECTION 16. Adjournment. Any meeting of the Board of Directors may be
adjourned from time to time by a majority of the directors present, whether or
not they shall constitute a quorum, and no notice shall be required of any
adjourned meeting beyond the announcement of such adjournment at the meeting.
SECTION 17. Action by Board of Directors Without a Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these By-Laws, any
action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all the
members of the Board or the committee, as the case may be, consent thereto in
writing and the writings are filed with the minutes of the proceedings of the
Board of Directors or committee, as the case may be.
SECTION 18. Action by Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, members of
the Board of Directors or of any committee thereof may participate in a
meeting of the Board of Directors or of such committee, as the case may be, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting in such manner shall constitute presence in person
at such a meeting.
SECTION 19. Compensation. Each director, in consideration of his or
her serving as such, shall be entitled to receive from the Corporation such
compensation as the Board of Directors shall from time to time determine,
together with reimbursement for reasonable expenses incurred by him or her in
attending meetings of the Board of Directors. Each director who shall serve as
a member of any committee of the Board of Directors, in consideration of his
or her serving as such, shall be entitled to such additional compensation as
the Board of Directors shall from time to time determine, together with
reimbursement for reasonable expenses incurred by him or her in attending
meetings of such committee. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
Committees of Directors
SECTION 1. Committees. By resolution adopted by the affirmative vote
of a majority of the Board of Directors, the Board of Directors may appoint
one or more committees, which may include as members directors only or
directors and non-directors, as the Board of Directors may from time to time
consider desirable, and such committees shall have such powers and duties as
the Board of Directors shall determine and as shall be specified in the
resolution of appointment; provided, however, that the powers and duties of
any such committee whose members shall include non-directors shall be limited
to making recommendations to the Board of Directors.
SECTION 2. Committee Vacancies. Any member of a committee appointed
pursuant to this Article IV shall serve at the pleasure of the Board of
Directors, which Board shall have the power at any time by the affirmative
vote of a majority of the Board of Directors to remove any member, with or
without cause, and to fill vacancies in the membership of a committee. No
committee appointed pursuant to this Article IV shall have the power to fill
any vacancy in the membership of such committee. Any committee appointed
pursuant to Section 1 of this Article IV shall exist at the pleasure of the
Board of Directors, which Board shall have the power at any time by the
affirmative vote of a majority of the Board of Directors to change the powers
and duties of any such committee or to dissolve it.
SECTION 3. Committee Meetings. Regular meetings of a committee
appointed pursuant to this Article IV shall be held at such times and at such
places within or without the State of Delaware as the Board of Directors or
the committee shall from time to time determine, and no notice of such regular
meetings shall be required. Special meetings of any committee may be called by
the chairman of such committee or by the Chairman and Chief Executive Officer
or by the President and Chief Operating Officer, and shall be called by the
Secretary of the Corporation on the written request of any member of such
committee. Notice of a special meeting of any committee shall be given to each
member thereof by mailing such notice at least forty-eight (48) hours, or by
personally delivering, telegraphing or telephoning the same at least eighteen
(18) hours, before the meeting. It shall not be requisite for the validity of
any meeting of any committee that notice thereof shall have been given to any
committee member who is present at the meeting or, if absent, waives notice
thereof in writing filed with the records of the meeting either before or
after the holding thereof. The majority of the members of a committee shall
constitute a quorum for the transaction of committee business, and the act of
a majority of the members present at any meeting at which there is a quorum
shall be the act of the committee. A committee shall keep regular minutes of
its meetings and all action taken or resolutions adopted shall be reported to
the Board of Directors at the meeting of the Board next following such action.
ARTICLE V
Officers
SECTION 1. Executive Officers. At the organization meeting of the
Board of Directors following the annual meeting of stockholders, the Board of
Directors shall elect as executive officers of the Corporation a Chairman and
Chief Executive Officer, a President and Chief Operating Officer, a Secretary
and a Treasurer, and may elect as executive officers of the Corporation one or
more Chairmen Emeritus, Vice Chairmen, Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents. All such executive officers elected by the
Board of Directors are referred to in these By-Laws as "Executive Officers."
The Board of Directors may from time to time appoint such other officers and
agents of the Corporation as the interests of the Corporation may require and
may fix their duties and terms of office. To the extent permitted by law, any
number of offices may be held by the same person.
SECTION 2. Other Officers. In addition to the Executive Officers
elected by the Board of Directors pursuant to Section 1 of this Article V, the
Chairman and Chief Executive Officer and the President and Chief Operating
Officer may from time to time appoint such other officers of the Corporation,
including Assistant Vice Presidents, Assistant Secretaries, Assistant
Treasurers and Controllers, as the interests of the Corporation may require
(the "Other Officers"); provided, however, that no Other Officer may be
appointed to the office of Chairman Emeritus, Vice Chairman, President and
Chief Operating Officer, Executive Vice President, Senior Vice President, Vice
President, Secretary or Treasurer. Each appointment of an Other Officer shall
be in writing and shall set forth the duties of the Other Officer being
appointed and, subject to Section 3 of this Article V, such officer's term of
office.
SECTION 3. Term of Office. Each Executive Officer shall hold office
until the organization meeting of the Board of Directors following the annual
meeting of stockholders next succeeding such officer's election and until such
officer's successor is elected and qualified, or until such officer's earlier
death, resignation, retirement or removal. Each Other Officer shall hold
office for a term to be decided by the appointing Chairman and Chief Executive
Officer or President and Chief Operating Officer, as the case may be;
provided, however, that no such term shall be for a period longer than the
term of office of the appointing Chairman and Chief Executive Officer or
President and Chief Operating Officer.
SECTION 4. Removal of Officers. Any Executive Officer or Other
Officer may be removed from office with or without cause at any time by the
affirmative vote of a majority of the Board of Directors. Any Other Officer
may be removed from office at any time with or without cause by the Chairman
and Chief Executive Officer or President and Chief Operating Officer.
SECTION 5. Vacancies. A vacancy in any Executive Office or Other
Office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. A vacancy in any Other Office arising from any
cause may be filled for the unexpired portion of the term by the Chairman and
Chief Executive Officer or President and Chief Operating Officer.
SECTION 6. Compensation of Officers. The salaries or compensation, if
any, of the Chairman and Chief Executive Officer and the President and Chief
Operating Officer shall be fixed by the Board of Directors. The salaries or
compensation of the other Executive Officers, and of the Other Officers and
division officers, if there be any, may be fixed from time to time by the
Board of Directors, the Chairman and Chief Executive Officer or the President
and Chief Operating Officer.
SECTION 7. Chairman and Chief Executive Officer. The Chairman and
Chief Executive Officer shall be Chairman of the Board of Directors and of the
Executive Committee, if any, shall be the chief executive officer of the
Corporation and, subject to the control of the Board of Directors, shall have
general charge and control of the business and affairs of the Corporation with
power and authority, when acting in the ordinary course of business of the
Corporation in the name and on behalf of the Corporation and under its seal
attested by the Secretary or an Assistant Secretary of the Corporation, or
otherwise, to (i) execute and deliver agreements, contracts, certificates and
other instruments, (ii) purchase and accept delivery of stocks, bonds,
evidences of interest and indebtedness, rights and options to acquire the
same, and all other securities, whether negotiable or non-negotiable, (iii)
sell, assign transfer and deliver all stocks, bonds, evidence of interest and
indebtedness, rights and options to acquire the same, and all other
securities, corporate or otherwise, now or hereafter standing in the name of
or owned beneficially by the Corporation, (iv) open and maintain accounts with
banking institutions, including investment banks and brokerage firms, and (v)
borrow from First Fidelity Bank, Newark, New Jersey, Midlantic National Bank,
Edison, New Jersey, Irving Trust Company, New York, New York, Manufacturers
Hanover Trust Company, New York, New York, or any other banking institution,
including investment banks and brokerage firms, such sums of money for such
periods of time and upon such terms as such officer shall deem necessary or
appropriate, and execute and deliver notes, other evidences of indebtedness
and agreements for the repayment of any sums so borrowed in the name and on
behalf of the Corporation; provided, however, that no borrowing pursuant to
this clause (v) shall have an original maturity or more than one year. Such
officer shall preside at all meetings of stockholders of the Corporation and,
the Board of Directors at which such officer is present. Such officer shall
perform all other duties and enjoy all other powers which are commonly
incident to the office of Chairman and Chief Executive Officer, or are
delegated to such officer from time to time by the Board of Directors or are
or may at any time be authorized or required by law.
SECTION 8. Chairman Emeritus and Vice Chairmen of the Board. The
Chairman Emeritus and Vice Chairmen of the Board if there be any, shall be
members of the Board of Directors and shall have such powers and perform such
duties as may from time to time be assigned to them by the Board of Directors
the Chairman and Chief Executive Officer or the President and Chief Operating
Officer.
SECTION 9. President and Chief Operating Officer. The President and
Chief Operating Officer shall be a member of the Board of Directors and of the
Executive Committee, if any, shall be the chief operating officer of the
Corporation responsible for directing, administering and coordinating the
business operations of the Corporation in accordance with policies, goals and
objectives established by the Board of Directors and the Chairman and Chief
Executive Officer with power and authority, when acting in the ordinary course
of business of the Corporation, in the name and on behalf of the Corporation
and under its seal attested by the secretary or an Assistant Secretary of the
Corporation, or otherwise, to, (i) execute and deliver agreements, contracts,
certificates and other instruments, (ii) purchase and accept delivery of
stocks, bonds, evidences of interest and indebtedness, rights and options to
acquire the same and all other securities, whether negotiable or
non-negotiable, (iii) sell, assign, transfer and deliver all stocks, bonds,
evidences of interest and indebtedness, rights and options to acquire the
same, and all other securities, corporate or otherwise, now or hereafter
standing in the name of or owned beneficially by the Corporation, (iv) open
and maintain accounts with banking institutions, including investment banks
and brokerage firms, and (v) borrow from First Fidelity Bank, Newark New
Jersey, Midlantic National Bank, Edison, New Jersey Irving Trust Company, New
York, New York, and Manufacturers Hanover Trust Company, New York, New York,
or any other banking institution, including investment banks and brokerage
firms, such sums of money for such periods of time and upon such terms as such
officer shall deem necessary or appropriate and execute and deliver notes,
other evidences of indebtedness and agreements for the repayment of any sums
so borrowed in the name and on behalf of the Corporation; provided, however,
that no borrowing pursuant to this clause (v) shall have an original maturity
of more than one year. Such officer shall perform all other duties and enjoy
all other powers which are commonly incident to the office of President and
Chief Operating Officer or which are delegated to such officer by the Board of
Directors or the Chairman and Chief Executive Officer. In the absence of the
Chairman and Chief Executive Officer, the President and Chief Operating
Officer shall perform all duties and may exercise all powers of the Chairman
and Chief Executive Officer and shall preside at meetings of stockholders of
the Corporation and the Executive Committee.
SECTION 10. Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents Elected by the Board. The Executive Vice Presidents, the
Senior Vice Presidents and the Vice Presidents elected by the Board of
Directors pursuant to Section 1 of this Article V, if there be any, shall have
such powers and perform such duties as may from time to time be assigned to
them by the Board of Directors, the Chairman and Chief Executive Officer or
the President and Chief Operating Officer.
SECTION 11. Secretary. The Secretary shall record the proceedings of
all meetings of stockholders of the Corporation and of the Board of Directors
which such officer attends in a book or books to be kept for that purpose.
Such officer shall attend to the giving and serving of all notices on behalf
of the Corporation, shall have custody of the records and the seal of the
Corporation and shall affix the seal to any instrument which requires the seal
of the Corporation. Such officer shall, in general, perform all the duties and
functions incident to the office of Secretary and shall also perform such
other duties as may from time to time be assigned to such officer by the Board
of Directors, the Chairman and Chief Executive Officer or the President and
Chief Operating Officer.
SECTION 12. Treasurer. The Treasurer shall have custody and control
of all funds and securities of the Corporation, except as otherwise provided
by the Board of Directors. Such officer shall keep full and accurate accounts
of all receipts and disbursements of the Corporation in books to be kept for
that purpose, shall deposit all money and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors, and shall render to the Chairman and Chief
Executive Officer, the President and the Chief Operating Officer or the Board
of Directors, whenever any of them may require it, an account of all such
officer's transactions as Treasurer and an account of the financial condition
of the Corporation. Such officer shall also perform such other duties as may
from time to time be assigned to such officer by the Board of Directors, the
Chairman and Chief Executive Officer or the President and Chief Operating
Officer.
SECTION 13. Powers and Duties of Other Officers. The Other Officers
shall have such powers and perform such duties as may from time to time be
assigned to them by the Board of Directors, the Chairman and Chief Executive
Officer or the President and Chief Operating Officer.
ARTICLE VI
Division Officers
SECTION 1. Division President. In case any of the business or affairs
of the Corporation are carried on by the Corporation as an unincorporated
division of the Corporation, the Board of Directors, the Chairman and Chief
Executive Officer or the President and Chief Operating Officer may appoint a
Division President and other officers for such division who shall have such
powers, authorities, functions and responsibilities with respect to the
business and affairs of such division as may be delegated to them by the Board
of Directors, the Chairman and Chief Executive Officer or the President and
Chief Operating Officer.
SECTION 2. Other Division Officers. In case a Division President is
appointed in accordance with Section 1 of this Article VI, such Division
President may designate one or more other officers for the respective division
in addition to those appointed in accordance with Section 1 of this Article
VI. Each such division officer appointed by the Division President shall have
and exercise such powers, authorities, functions and responsibilities with
respect to the business and affairs of such division as may be delegated to
such division officer by the Division President.
SECTION 3. Neither Executive Officers Nor Other Officers. A division
officer appointed pursuant to this Article VI shall not be an Executive
Officer unless specifically elected as such by the Board of Directors and
shall not be an Other Officer unless specifically appointed as such by the
Chairman and Chief Executive Officer or the President and Chief Operating
Officer.
SECTION 4. Term of Office. A division officer shall be subject to
removal at any time with or without cause by the Board of Directors, the
Chairman and Chief Executive Officer or the President and Chief Operating
Officer, and, if such division officer is not a Division President, by the
Division President of the Division of which such division officer is an
officer.
ARTICLE VII
Capital Stock
SECTION 1. Certificates. Each stockholder of the Corporation shall be
entitled to a certificate or certificates signed by or in the name of the
Corporation by the Chairman and Chief Executive Officer, the President and
Chief Operating Officer, an Executive Vice President or a Senior Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, certifying the number of shares of stock of the
Corporation owned by such stockholder. Any or all of the signatures on the
certificates may be a facsimile.
In case any officer, Transfer Agent or Registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, Transfer Agent or Registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he, she
or it was such officer, Transfer Agent or Registrar at the date of issue.
All certificates of each class or series shall be consecutively
numbered and shall be entered in the books of the Corporation as they are
issued. Every certificate shall certify the name of the Person owning the
shares represented thereby, with the number of shares and the date of issue.
The names and addresses of all Persons owning shares of the Corporation, with
the number of shares owned by each and the date or dates of issue of the
shares held by each, shall be entered in the books of the Corporation kept for
that purpose by the proper officers, agents or employees of the Corporation.
The Corporation shall be entitled to treat the holder of record of
any share or shares of stock of the Corporation as the holder in fact thereof
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other Persons,
whether or not it has actual or other notice thereof, except as provided by
law.
SECTION 2. Cancellation of Certificates. All certificates surrendered
to the Corporation shall be cancelled and, except in the case of lost, stolen
or destroyed certificates, no new certificates shall be issued until the
former certificate or certificates for the same number of shares of the same
class of stock have been surrendered and cancelled.
SECTION 3. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of the fact by the Person claiming the certificate or certificates
to be lost, stolen or destroyed. In its discretion and as a condition
precedent to the issuance of any such new certificate or certificates, the
Board of Directors may require that the owner of such lost, stolen or
destroyed certificate or certificates, or such Person's legal representative,
advertise the same in such manner as the Board shall require and/or give the
Corporation and its Transfer Agent or Agents, Registrar or Registrars a bond
in such form and amount as the Board of Directors may direct as indemnity
against any claim that may be made against the Corporation and its Transfer
Agent or Agents, Registrar or Registrars, and that the owner requesting such
new certificate or certificates obtain a final order or decree of a court of
competent jurisdiction as such owner's right to receive such new certificate
or certificates.
SECTION 4. Transfer of Shares. Shares of stock shall be transferable
on the books of the Corporation by the holder thereof, in person or by duly
authorized attorney, upon the surrender of the certificate or certificates
representing the shares to be transferred, properly endorsed, with such proof
or guarantee of the authenticity of the signature as the Corporation or its
agents may reasonably require.
SECTION 5. Transfer Agents and Registrars. The Corporation may have
one or more Transfer Agents and one or more Registrars of its stocks, whose
respective duties the Board of Directors may define from time to time. No
certificate of stock shall be valid until countersigned by a Transfer Agent,
if the Corporation shall have a Transfer Agent, or until registered by the
Registrar, if the Corporation shall have a Registrar. The duties of Transfer
Agent and Registrar may be combined.
SECTION 6. Closing of Transfer Books and Fixing of Record Date. The
Board of Directors shall have power to close the stock transfer books of the
Corporation for a period not exceeding sixty (60) days preceding the date of
any meeting of stockholders, or the date for payment of any dividend, or the
date for the allotments of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or for a period not
exceeding sixty (60) days in connection with obtaining the consent of
stockholders for any purpose, provided, however, that in lieu of closing the
stock transfer books as aforesaid, the Board of Directors may fix in advance a
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of any meeting of stockholders nor more than sixty (60) days
before the date for the payment of any dividend, or the date for the allotment
of rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, or a date in connection with obtaining such
consent, as a record date for the determination of the stockholders entitled
to notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, or to give such consent, and in such case such
stockholders, and only such stockholders as shall be stockholders of record on
the date so fixed, shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend,
or to such allotment of rights, or to exercise such rights, or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
ARTICLE VIII
Contracts, Checks, Drafts, Proxies
SECTION 1. Execution of Contracts. The Board of Directors may
authorize any Executive or Other Officer, agent or employee of the Corporation
to enter into any contract or execute and deliver any instrument in the name
or on behalf of the Corporation, and such authority may be general or confined
to specific instances, and, unless so authorized by the Board of Directors, no
Executive or Other Officer, agent or employee except the Chairman and Chief
Executive Officer and the President and Chief Operating Officer shall have any
power or authority to bind the Corporation by any contract or to pledge its
credit or to render it liable pecuniarily for any purpose or to any amount.
SECTION 2. Loans. Except as otherwise provided in these By-Laws, no
loan shall be contracted in the name or on behalf of the Corporation, and no
evidence of indebtedness shall be issued, endorsed or accepted in its name, or
on its behalf, unless authorized by the Board of Directors. Such authority may
be general or confined to specific instances. When so authorized, the
Executive or Other Officer, agent or employee thereunto authorized may effect
loans and advances at any time for the Corporation from any Person (including
any bank, trust company or other institution) and for such loans and advances
may make, execute and deliver promissory notes or other evidences of
indebtedness of the Corporation, and, when authorized as aforesaid, as
security for the payment of any and all loans and advances may make, execute
and deliver promissory notes or other evidences of indebtedness and
liabilities of the Corporation, may mortgage, pledge, hypothecate or transfer
any real or personal property at any time owned or held by the Corporation,
and to that end execute instruments of mortgage or pledge or otherwise
transfer such property.
SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of exchange
or other orders for the payment of money, obligations, notes or other
evidences of indebtedness, bills of lading, warehouse receipts and insurance
certificates of the Corporation, shall be signed or endorsed by the Chairman
and Chief Executive Officer, the President and Chief Operating Officer or such
other Executive Officer or Other Officer, agent, attorney, or employee of the
Corporation as shall from time to time be determined by the Board of
Directors, the Chairman and Chief Executive Officer or the President and Chief
Operating Officer.
SECTION 4. Proxies in Respect of Securities of Other Corporations.
The Chairman and Chief Executive Officer, the President and Chief Operating
Officer and such other Executive or Other Officers as are designated by the
Chairman and Chief Executive Officer or the President and Chief Operating
Officer are authorized to vote by casting a ballot in person or by voting by
proxy on behalf of the Corporation the shares owned by the Corporation of the
stock or other securities in any other Corporation at meetings of the holders
of the stock or other securities of such other corporation, or to consent in
writing, in the name of the Corporation as such holder, to any action by such
other corporation.
ARTICLE IX
Indemnification
The Corporation shall, and by reason of the enactment of this By-Law
hereby does, indemnify each and every individual (including his or her heirs,
executors and assigns) who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that he or she is or was a director, Executive Officer or Other Officer
of the Corporation, or, while a director, Executive Officer or Other Officer
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in
connection with such action, suit or proceeding, to the full extent that it
has the power to do so under Delaware Law. Such indemnification shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any agreement, contract of insurance, vote of stockholders or
disinterested directors, or other By-Laws or otherwise, or of or other By-Laws
or otherwise, or of the broader power of the Corporation to indemnify a
director, Executive Officer, Other Officer, employee or agent of the
Corporation as authorized by Delaware Law.
ARTICLE X
Definitions
For purposes of these By-Laws, the following terms shall have the
meanings set forth below:
"Corporation" shall mean RC/Arby's Corporation.
"Delaware Law" shall mean the General Corporation Law of the State of
Delaware, as amended from time to time.
"Executive Officers" shall have the meaning set forth in Section 1 of
Article V of these By-Laws.
"Other Officer" shall have the meaning set forth in Section 2 of
Article V of these By-Laws.
"Person" shall mean any individual, firm, corporation or other entity.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Corporation, as from time to time amended.
"Voting Shares" shall mean any issued and outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors.
ARTICLE XI
Miscellaneous
SECTION 1. Books and Records. The books and records of the
Corporation may be kept at such places within or without the State of Delaware
as the Board of Directors may from time to time determine. The stock record
books and the blank stock certificate books shall be kept by the Secretary or
by any other officer or agent designated by the Board of Directors.
SECTION 2. Dividends and Reserves. The Board of Directors, from time
to time, may determine whether any, and, if any, what part of its net profits
of the Corporation, or of its net assets in excess of its capital, available
therefor pursuant to law and the Certificate of Incorporation, shall be
declared by it as dividends on the stock of the Corporation. The Board of
Directors, in its discretion, in lieu of declaring any such dividend, may use
and apply any of such net profits or net assets as a reserve for working
capital, to meet contingencies, for the purpose of maintaining or increasing
the property or business of the Corporation or for any other lawful purpose
which it may think conducive to the best interests of the Corporation.
SECTION 3. Seal. The corporate seal of the Corporation shall be in
the form of a circle and shall bear the name of the Corporation and the year
and state of its incorporation.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall end
on the last day of December in each year unless the Board of Directors shall
determine otherwise.
ARTICLE XII
Amendments
All By-Laws of the Corporation shall be subject to alteration,
amendment or repeal, in whole or in part, and new By-Laws not inconsistent
with Delaware Law or any provision of the Certificate of Incorporation may be
made, by (i) the affirmative vote of stockholders holding not less than
two-thirds of the voting power of the Voting Shares (as defined in Article X
above) of the Corporation then entitled to vote on such issue, or (ii) the
affirmative vote of not less than two-thirds of the directors of the
Corporation then holding office and entitled to vote on such issue.
EXHIBIT 4.1
LOAN AGREEMENT
BY AND BETWEEN
FFCA MORTGAGE CORPORATION
AND
ARBY'S RESTAURANT HOLDING COMPANY
DATED AS OF SEPTEMBER 5, 1996
This document prepared by:
Michael L. Curry, Esq.
Kutak Rock
1650 Farnam Street
Omaha, Nebraska 68102
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT:..................................................... 1
AGREEMENT:................................................................. 1
1. Definitions............................................................. 1
2. Loan Terms.............................................................. 14
A. Loans..................................................... 14
B. Requests for Loans........................................ 14
C. Base Interest............................................. 15
D. Prepayment................................................ 16
E. Limitation on Payment..................................... 17
3. Equipment Loan Terms.................................................... 17
A. Equipment Loan............................................ 17
B. Base Interest............................................. 17
C. Prepayment................................................ 18
4. Limitation on Loan Amounts; Payments.................................... 18
A. Limitation on Loan Amounts................................ 18
B. Taxes..................................................... 18
C. Method of Payment......................................... 19
D. Release and Amendment Costs............................... 19
5. Substitution and Defeasance............................................. 20
A. Substitution.............................................. 20
B. Defeasance................................................ 24
C. Limitation on Substitution and Defeasance................. 27
D. Costs..................................................... 27
6. Closing; Escrow Agent................................................... 28
7. Fee..................................................................... 29
8. Representations and Warranties of FFCA.................................. 30
A. Organization of FFCA...................................... 30
B. Authority of FFCA......................................... 30
C. Enforceability............................................ 30
D. Consent................................................... 30
9. Representations and Warranties of Debtor................................ 30
A. Organization and Authority of Debtor...................... 30
B. Enforceability of Documents............................... 31
C. Litigation................................................ 31
D. Absence of Breaches or Defaults........................... 31
E. Utilities................................................. 31
F. Compliance With Laws...................................... 31
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G. Condemnation or Eminent Domain............................ 32
H. Licenses and Permits...................................... 32
I. Condition of Sites........................................ 32
J. Environmental............................................. 32
K. First Priority Lien....................................... 33
L. No Other Agreements and Options........................... 33
10. Covenants of Debtor.................................................... 33
A. Reporting Obligations..................................... 33
B. Intended Use and Zoning................................... 35
C. Operation, Maintenance and Repair of Sites................ 35
D. Gross Sales Reports....................................... 35
E. Books and Records; Inspection of Sites.................... 36
F. Payment of Taxes, Etc..................................... 37
G. Restriction on Transfer and Encumbrance................... 37
H. Organization of Debtor.................................... 38
I. Utilities................................................. 38
J. Licenses and Permits...................................... 38
K. Compliance With Laws, Covenants, Conditions, Restrictions
and Encumbrances......................................... 38
L. Dual Concept.............................................. 39
11. Relationship of Parties................................................ 39
12. Conditions of each Closing............................................. 40
A. Title; Ground Leases...................................... 40
B. Condition of Site and Equipment; Invoices................. 40
C. Evidence of Title......................................... 41
D. Survey.................................................... 41
E. Environmental............................................. 41
F. Gap Indemnity and Other Title Company Documents and
Deliveries............................................... 41
G. Compliance With Representations, Warranties and Covenants;
Certification............................................ 41
H. Proof of Insurance........................................ 42
I. Opinion of Debtor's Counsel; Opinion of FFCA's Counsel;
Confidentiality Agreement................................ 42
J. Loan Documents and Other Security Documents............... 42
K. Collateral Assignment of License Agreement................ 42
L. Guaranty; Royalties Payment Agreement..................... 42
M. Management Agreement and License Agreement................ 42
N. Closing Documents......................................... 43
13. Default................................................................ 43
14. Remedies............................................................... 45
15. Assignment by FFCA..................................................... 45
16. Indemnity.............................................................. 46
17. Miscellaneous Provisions............................................... 46
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A. Notices................................................... 46
B. Broker's Commission....................................... 48
C. Waiver and Amendment...................................... 48
D. Captions.................................................. 48
E. Maximum Rate of Interest.................................. 48
F. Severability.............................................. 49
G. Construction Generally.................................... 49
H. Other Documents........................................... 49
I. Attorneys' Fees........................................... 49
J. Entire Agreement.......................................... 49
K. Forum Selection; Jurisdiction; Venue; Choice of Law....... 49
L. Counterparts.............................................. 50
M. Binding Effect............................................ 50
N. Survival.................................................. 50
O. Waiver of Jury Trial and Punitive Damages................. 50
P. Calendar Days............................................. 51
Q. Securitization............................................ 51
EXHIBIT A-Sites Description
EXHIBIT A-1-Approved Defeasance Account Institutions
EXHIBIT B-Form of Note
EXHIBIT C-Form of Deed of Trust
EXHIBIT D-Form of Equipment Note
EXHIBIT E-Form of Equipment Security Agreement
EXHIBIT F-Form of Guaranty
EXHIBIT G-Form of Collateral Assignment of License Agreement
EXHIBIT H-Opinion Matters
EXHIBIT H-1-Local Counsel Opinion Matters
EXHIBIT I-Form of Confidentiality Agreement
EXHIBIT J-Royalties Payment Agreement
EXHIBIT K-Form of Term Sheet
EXHIBIT L-Form of Property Notice
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of September 5, 1996,
by and between FFCA MORTGAGE CORPORATION, a Delaware corporation ("FFCA"),
whose address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255, and
ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation ("Debtor"), whose
address is 1000 Corporate Drive, Fort Lauderdale, Florida 33334.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in
this Agreement shall have the meanings set forth in Section 1.
Debtor has requested and applied for the Loans and the Equipment Loans
from FFCA to provide long-term financing for the Sites and the Equipment. FFCA
has agreed to advance each Loan and Equipment Loan for the corresponding Site
at such time as Debtor satisfies the applicable conditions precedent set forth
in this Agreement. Each Loan will be evidenced by a Note and secured by a
first priority security interest in the Site pursuant to a Deed of Trust. The
corresponding Equipment Loan will be evidenced by an Equipment Note and
secured by a first priority security interest in the Equipment pursuant to a
Equipment Security Agreement and the UCC-1 Financing Statements.
Debtor has entered into the Management Agreement with Arby's pursuant to
which Arby's will, among other things, manage each of the Sites as Arby's
Restaurants, or as otherwise permitted pursuant to the Deeds of Trust, in
compliance with Debtor's obligations under the Loan Documents. Debtor and
Arby's will also enter into a License Agreement and a Collateral Assignment of
License Agreement with respect to each Site. The License Agreements shall
entitle Debtor to operate each Site as an Arby's Restaurant and the Collateral
Assignments of License Agreements shall entitle FFCA, at the election of FFCA
upon an Event of Default and the exercise by FFCA of its remedies under the
Loan Documents, to operate the Sites as Arby's Restaurants on the terms and
conditions set forth in the License Agreements.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. Definitions. The following terms shall have the following meanings for
all purposes of this Agreement:
"Acquisition Corporation" means FFCA Acquisition Corporation, a Delaware
corporation.
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"Adjusted EBITDA" means with respect to Debtor for any period (a)
Debtor's net income or net loss, as the case may be, before (i) provision or
benefit for income taxes or charges equivalent to income taxes, (ii) Interest
Expense, (iii) depreciation, and (iv) amortization, in each case allocable to
the Site or Sites for which the Fixed Charge Coverage Ratio is being
calculated for such period, minus (b) the Royalty Fee (as described in Article
3 of the License Agreement with respect to such Site(s)) payable during such
period, all as determined in accordance with generally accepted accounting
principles consistently applied, to the extent applicable.
"Affiliate" shall mean any Person controlling, controlled by or under
common control with any other Person. For purposes of this definition
"control" (including "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
"Applicable Regulations" means all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, orders and approvals of any
governmental agencies, departments, commissions, bureaus, boards or
instrumentalities of the United States, the states in which the Sites are
located and all political subdivisions thereof, including, without limitation,
all health, building, fire, safety and other codes, ordinances and
requirements and all applicable standards of the National Board of Fire
Underwriters.
"Arby's" means Arby's, Inc., a Delaware corporation.
"Arby's Restaurant" means a fully equipped and operational restaurant in
accordance with those standards adopted from time to time by Arby's on a
system wide basis for restaurants commonly known as "Arby's".
"ARDC" means Arby's Restaurant Development Corporation, a Delaware corp-
oration.
"ARDC Amended Loan Agreement" means that certain Amended and Restated
Loan Agreement dated as of October 13, 1995, and effective May 1, 1995,
between Acquisition Corporation and ARDC, as the same may be further amended
from time to time.
"ARHC Loan Agreement" means that certain Loan Agreement between ARHC and
Acquisition Corporation dated as of October 13, 1995 as the same may be
amended from time to time.
"Base Interest Rate" means, with respect to each Note and the
corresponding Equipment Note, the rate of interest equal to the greater of (i)
10.125% per annum or (ii) the Treasury Rate in effect three Business Days
before the applicable Closing plus 3.25%.
"Business Day" means any day on which banks are open for general banking
business in each of the States of Arizona, New York, Illinois (or such other
state where FFCA's payment account is, from time to time, located) and Florida
(or such other state where Debtor's chief
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executive office is, from time to time, maintained), other than a Saturday,
Sunday, a legal holiday or any other day on which banks in such states are
required or authorized by law to close.
"Capital Lease" means any lease of any property (whether real, personal
or mixed) by the Debtor with respect to a Site which lease would, in
conformity with generally accepted accounting principles consistently applied,
be required to be accounted for as a capital lease on the balance sheet of
Debtor.
"Change of Control" means (a) the acquisition by any person or group (as
such term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended) other than Guarantor or any of its Affiliates, of
more than 50% of the voting power or the voting stock of Debtor, whether
voluntary or involuntary, by way of merger, consolidation, operation of law or
otherwise, and (b) any merger or consolidation of Debtor with ARDC. For
purposes of clarity, Change of Control shall not be deemed to include any
acquisition (whether voluntary or involuntary or by way of merger,
consolidation, operation of law or otherwise) of the voting power or voting
stock of any direct or indirect shareholder of Debtor.
"Closing" means each consummation of the Loan and Equipment Loan with
respect to a Site.
"Closing Date" means, with respect to a Site, the date FFCA makes the
Loan and the Equipment Loan for such Site set forth in this Agreement.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Collateral Assignment of License Agreement" means the collateral
assignment of license agreement, substantially in the form attached hereto as
Exhibit G, with respect to each of the License Agreements. Debtor shall
execute a Collateral Assignment of License Agreement for each Site.
"Committed Loan Amount" means with respect to each Site which:
(a) is owned by Debtor in fee simple, the sum of (i) the fair
market value of the land as determined by FFCA's in-house site
inspection and valuation department and agreed upon by Debtor, (ii) the
projected out-of-pocket cost to construct the improvements described in
the corresponding Property Notice as determined by Debtor and agreed
upon by FFCA (referred to in this Agreement as the "construction cost
component" of the Committed Loan Amount), (iii) at Debtor's request, an
amount equal to $250,000 multiplied by a fraction whose numerator is the
Committed Loan Amount (exclusive of the amount described in this subitem
(iii)) for such Site plus the corresponding Equipment Loan Amount and
whose denominator is $50,000,000.00, and (iv) such Closing and other
soft costs as FFCA may approve in its sole discretion; or
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(b) includes land leased by Debtor pursuant to a ground lease with
the improvements located thereon owned by Debtor in fee simple at least
until the expiration or earlier termination of the ground lease, the sum
of (i) the projected out-of-pocket cost to construct the improvements
located on the land which is subject to the ground lease described in
the corresponding Property Notice as determined by Debtor and agreed
upon by FFCA, (ii) at Debtor's request, the Fee multiplied by a fraction
whose numerator is the Committed Loan Amount (exclusive of the amount
described in this subitem (iii)) for such Site plus the corresponding
Equipment Loan Amount and whose denominator is $50,000,000.00, and (iii)
such Closing and other soft costs as FFCA may approve in its sole
discretion.
"Confidentiality Agreement" means a confidentiality agreement in the
form attached hereto as Exhibit I, which confidentiality agreement will be
executed and delivered by FFCA and Debtor at the Closing pursuant to Section
12.I and the Persons contemplated by Sections 10.D, 10.E and 17.Q.
"Costs" means, with respect to the transactions described in Section 5,
all out-of-pocket costs, expenses and fees incurred by Debtor, FFCA and/or the
Defeasance Account Institution, or charged by the Defeasance Account
Institution, as applicable, including, without limitation, reasonable fees and
expenses of attorneys, accountants, appraisers and other professionals, site
inspection fees, environmental assessment charges, title insurance charges
(including, without limitation, premiums, endorsements, search charges and
attorney review charges), escrow fees, recording fees, transfer taxes,
documentary taxes, mortgage taxes and the expenses of FFCA's in-house site
inspectors, which are estimated to be approximately $600.00 per proposed
Substitute Site, if FFCA elects to use such in-house inspectors in lieu of
appraisers.
"Debt" means, without duplication, Debtor's (i) indebtedness for
borrowed money, (ii) obligations evidenced by bonds, indentures, notes or
other similar instruments, (iii) obligations to pay the deferred purchase
price of property or services, (iv) obligations under leases which shall have
been or should be, in accordance with generally accepted accounting principles
consistently applied, recorded as Capital Leases, and (v) obligations under
direct or indirect guarantees in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iv) above.
"Debtor's Counsel" means one or more legal counsel to Debtor and
Guarantor that are collectively licensed in the states in which (i) Debtor or
Guarantor is incorporated or formed and (ii) Debtor or Guarantor maintains
principal places of business, as selected by Debtor and Guarantor and
reasonably approved by FFCA.
"Deed of Trust" means the deed of trust, security agreement, financing
statement, fixture filing and assignment of rents and leases or mortgage,
security agreement, financing statement, fixture filing and assignment of
rents and leases, as applicable, substantially in the form attached hereto as
Exhibit C, executed and delivered by Debtor for each Site for recordation in
the county
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in the state where the Site is located as security for the respective Note. A
Deed of Trust will be executed for each of the Sites.
"Default Rate" has the meaning set forth in Section 13(b).
"Defeasance Account" means a segregated trust account established with
the Defeasance Account Institution pursuant to a trust agreement for the
benefit of the holders of the Notes and Equipment Notes being defeased and in
which Debtor has no interest whatsoever (other than the right to receive a
distribution of any amounts remaining in such Defeasance Account which are to
be returned to Debtor as contemplated by Section 5.B). The Defeasance Account
shall contain (i) all Defeasance Amounts delivered by Debtor to the Defeasance
Account Institution pursuant to Section 5.B, (ii) all payments received on
Defeasance Amounts held in the Defeasance Account and (iii) all earnings,
income or other gains from investment of monies or other property deposited in
the Defeasance Account.
"Defeasance Account Institution" means (a) any of the institutions
listed on the attached Exhibit A-1 or (b) any other domestic commercial bank
or trust company of recognized standing having, at the time of selection,
capital and surplus in excess of $500,000,000.00 and that is selected by
Debtor and consented to by FFCA in its reasonable discretion.
"Defeasance Amount" means Eligible Investments or cash to be deposited
in the Defeasance Account as contemplated by Section 5.B for the benefit of
the holders of the Notes and the Equipment Notes being defeased, in an amount
(taking into account interest and income to be earned on such Eligible
Investments) and with maturities for Eligible Investments sufficient to
defease 125% of the applicable (A) scheduled payments of principal and
interest on the Notes being defeased from the date of defeasance to the tenth
anniversary of the Closing Date of each such Note and the respective Site
Specific Loan Amounts for such Notes that would exist on such date following
application of such payments assuming all scheduled payments are paid as and
when due, and (B) scheduled payments of principal and interest on the
Equipment Notes being defeased from the date of defeasance to the seventh
anniversary of the Closing Date of each such Equipment Note and the respective
Site Specific Equipment Loan Amounts for such Equipment Notes that would exist
on such date assuming all such scheduled payments are paid as and when due,
with respect to those Sites and Equipment to be released from the lien of the
applicable Deed(s) of Trust, Equipment Security Agreements and UCC-1 Financing
Statements pursuant to Section 5.B.
"Dual Concept" means the operation of both an Arby's Restaurant and any
other restaurant concept selected by Debtor.
"Eligible Investments" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) U.S. dollar denominated
time deposits, certificates of deposit and bankers' acceptances of (x) any
domestic commercial bank of recognized standing having capital and surplus in
excess of
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$500,000,000.00 (at the time of purchase) or (y) any bank whose short-term
commercial paper is rated by Standard & Poor's Corporation ("S&P") (at the
time of purchase) at least A-1 or the equivalent thereof or is rated by
Moody's Investors Service, Inc. ("Moody's") (at the time of purchase) at least
P-1 or the equivalent thereof (any such bank, an "Approved Bank"), in each
case with maturities of not more than 270 days from the date of acquisition
and (iii) commercial paper issued by any Approved Bank or by the parent
company of any Approved Bank and commercial paper issued by, or guaranteed by,
any industrial or financial company with a short-term commercial paper rating
of at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody's, or guaranteed by any industrial company with a
long term unsecured debt rating of at least A or A2, or the equivalent of each
thereof, from S&P or Moody's, as the case may be, and in each case maturing
within 270 days after the date of acquisition.
"Environmental Condition" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising a Site, which is
reasonably likely to or does result in any damage, loss, cost, expense, claim,
demand, order or liability to or against Debtor or FFCA by any third party
(including, without limitation, any government entity), including, without
limitation, any condition resulting from the operation of Debtor's business
and/or any activity or operation formerly conducted by any person or entity on
or off the Site, except any such condition which is not reasonably likely to
result in a Material Adverse Effect.
"Environmental Laws" means all applicable present and future statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans, authorizations, agreements and similar items, of or with any and all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of the environment.
"Equipment" means the equipment, machinery and/or trade fixtures owned
by Debtor described in the Equipment Security Agreement for each Site.
"Equipment Loan" means, with respect to each Site, the equipment loan in
the Site Specific Equipment Loan Amount, as evidenced by the Equipment Note
and secured by the Equipment Security Agreement.
"Equipment Loan Amount" means the aggregate amount of the Site Specific
Equipment Loan Amounts, which Equipment Loan Amount shall be subject to the
aggregate limitation set forth in Section 4.
"Equipment Loan Documents" means, collectively, the Equipment Notes, the
Equipment Security Agreements and the UCC-1 Financing Statements.
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"Equipment Maturity Date" means, with respect to each Equipment Note,
the seventh anniversary of the Closing Date of such Equipment Note.
"Equipment Note" means the equipment promissory note, substantially in
the form attached hereto as Exhibit D, executed and delivered by Debtor with
respect to the Equipment located at a Site in the Site Specific Equipment Loan
Amount for such Equipment. An Equipment Note will be executed for each of the
Sites.
"Equipment Security Agreement" means the equipment security agreement,
substantially in the form attached hereto as Exhibit E, executed and delivered
by Debtor as security for the respective Equipment Note. An Equipment Security
Agreement will be executed for each of the Sites.
"Event of Default" has the meaning set forth in Section 13.
"Fee" means an origination and underwriting fee equal to 2% of the sum
of the Loan Amount and the Equipment Loan Amount.
"FFCA's Counsel" means one or more legal counsel to FFCA that are
licensed in the state in which the applicable Site is located, as selected by
FFCA.
"Fixed Charge Coverage Ratio" means with respect to Debtor for any
period, a fraction (a) the numerator of which is equal to the sum of (i)
Debtor's Adjusted EBITDA allocable to a Site for such period plus (ii) any
amounts included in the denominator referred to below that were charged
against such Adjusted EBITDA for such period, and (b) the denominator of which
is equal to the sum of, without duplication, (i) the sum of scheduled
principal payments of Debt of Debtor allocable to the Site for which the Fixed
Charge Coverage Ratio is being calculated for such period, (ii) scheduled
payments under any Capital Leases allocable to such Site for such period, and
(iii) Interest Expense of Debtor allocable to such Site for such period;
provided, however, that such denominator shall not include any amounts payable
or paid by Debtor, if any, pursuant to any ground leases with respect to such
Site for such period.
"Forward Commitment" means that certain Commitment Letter dated as of
May 1, 1995 among FFCA, REIT, Debtor, ARDC and Guarantor.
"Gross Sales" means with respect to each Site, for the applicable
period, all sales net of promotional discounts, returns and refunds arising
from the operation of an Arby's Restaurant or a Dual Concept at each such Site
during such period, including the proceeds of business interruption insurance,
if any, required to be maintained, or caused to be maintained, pursuant to the
Deeds of Trust, less sales tax or similar items from such operation and less
any amounts received from sales of nonfood premiums or promotional items not
in excess of 5% of all sales at such Site during such period, if any.
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"Guarantor" means Triarc Companies, Inc., a Delaware corporation, whose
address is 900 Third Avenue, New York, New York 10022.
"Guaranty" means an unconditional guaranty of payment and performance,
substantially in the form attached hereto as Exhibit F, from the Guarantor. A
Guaranty shall be executed by Guarantor with respect to each of the Sites.
"Hazardous Materials" means (a) any toxic substance or hazardous waste,
substance or related material, or any pollutant or contaminant; (b) asbestos
in any form which is friable, transformers or other equipment which contains
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are applicable, or any
petroleum product; (c) any substance, gas, material or chemical which is
defined as or included in the definition of "hazardous substances," "toxic
substances," "hazardous materials," hazardous wastes" or words of similar
import under any federal, state or local statute, law, code or ordinance or
under the regulations adopted or guidelines promulgated pursuant thereto,
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.ss. 9601 et
seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. ss.ss.
1801 et seq.; the Resource Conservation and Recovery Act, as amended, 42
U.S.C. ss.ss. 6901 et seq.; and the Federal Water Pollution Control Act, as
amended, 33 U.S.C. ss.ss. 1251 et seq.; and (d) any other chemical, material,
gas or substance the exposure to or release of which is or may be prohibited,
limited or regulated by any governmental or quasi-governmental entity or
authority that asserts or may assert jurisdiction over the Site or the
operations or activity at the Site.
"Interest Expense" means, for any period, the sum of all interest
accrued or which should be accrued in respect of all Debt of Debtor with
respect to or allocable to the Sites for which the Fixed Charge Coverage Ratio
is being calculated during such period (including interest attributable to
Capital Leases relating to the Sites in accordance with generally accepted
accounting principles consistently applied), as determined in accordance with
generally accepted accounting principles consistently applied.
"Judgment Liens" means a final, nonappealable judgment or judgments
rendered by a court or courts against Debtor for the payment of money which
has not been discharged or provision shall not be have been made for such
discharge within 60 days from the date of entry thereof.
"License Agreement" means that certain License Agreement dated as of the
Closing Date for a Site between Arby's and Debtor with respect to such Site
which shall entitle Debtor and, at FFCA's election upon an Event of Default
and the exercise by FFCA of its remedies under the Loan Documents, FFCA to
operate an Arby's Restaurant at such Site on the terms and conditions set
forth therein. A License Agreement shall be executed for each Site.
"Liens" means liens, encumbrances, restrictions, encroachments and
easements.
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"Loan" means, with respect to each Site, the loan in the Site Specific
Loan Amount, as evidenced by a Note and secured by a Deed of Trust.
"Loan Amount" means the aggregate of the Site Specific Loan Amounts,
which Loan Amount shall not exceed the limitation set forth in Section 4.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Deeds of Trust, the Equipment Loan Documents, the Collateral Assignments of
License Agreements, the Royalties Payment Agreement, the Confidentiality
Agreement, the Substitute Documents (to the extent that they are in favor of
or are for the benefit of FFCA) and all other documents in favor of or for the
benefit of FFCA executed in connection therewith or contemplated thereby.
"Loan Limitations" has the meaning set forth in Section 4.A.
"Loan Year" means, with respect to each Note and corresponding Equipment
Note, the successive 12-month periods while such Note and/or Equipment Note,
as applicable, are outstanding commencing on the Closing Date for such Note
and Equipment Note.
"Longwood Documents" means the promissory note delivered by Debtor to
Acquisition Corporation, the deed of trust, security agreement, financing
statement, fixture filing and assignment of rents and leases executed and
delivered by Debtor to Acquisition Corporation, the equipment promissory note
executed and delivered by Debtor to Acquisition Corporation, the equipment
security agreement executed by Debtor and Acquisition Corporation, the
collateral assignment of license agreement executed and delivered by Debtor to
Acquisition Corporation and the unconditional guaranty of payment and
performance executed and delivered by Guarantor to Acquisition Corporation,
all dated as of May 20, 1996 and all with respect to the site located in
Longwood, Florida more particularly described therein. The Longwood Documents
have been assigned by Acquisition Corporation to FFCA.
"Management Agreement" means the management agreement dated as of May 1,
1995 between Arby's and Debtor in connection with the management and operation
of the Sites by Arby's on behalf of Debtor, as amended from time to time.
"Material Adverse Effect" means a material adverse effect on the
business, operations, assets or financial condition of Debtor and/or a Site.
"Maturity Date" means, with respect to each Note, the twentieth
anniversary of the Closing Date for such Note.
"Note" means the promissory note, substantially in the form attached
hereto as Exhibit B, executed and delivered by Debtor with respect to a Site
in the Site Specific Loan Amount for such Site. A Note will be executed for
each Site.
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"Permitted Exceptions" means the following types of exceptions to title
with respect to each Site:
(a) Liens for taxes, assessments or other governmental charges not
yet due and payable or being contested in good faith, for which
appropriate reserves have been made or indemnities provided and the
failure to pay such taxes, assessments and/or governmental charges or
levies will not result in imminent danger of such Site being sold,
foreclosed upon, forfeited or lost;
(b) Liens of landlords, carriers, warehousemen, mechanics,
materialmen and other similar Liens for sums not more than 60 days
delinquent or which are being contested in good faith, have been
satisfactorily bonded over or for which appropriate reserves have been
made or indemnities provided and the failure to pay such sums will not
result in imminent danger of such Site being sold, foreclosed upon,
forfeited or lost;
(c) easements, rights-of-way, restrictions and encroachments not
materially interfering with the conduct of the business of Debtor at
such Site;
(d) exceptions to title to such Site set forth in the title policy
delivered to and insuring FFCA at the Closing with respect to such Site
(or, with respect to a Substitute Site, at the time of such
substitution) and not objected to in writing by FFCA and other
exceptions to title that have been approved in writing by FFCA;
(e) Judgment Liens not constituting an Event of Default under
Section 13(a)(5); provided, however, for purposes of defining Permitted
Exceptions in the Loan Documents as of the Closing Date and, with
respect to a Substitute Site, as of the date of the substitution, this
clause (e) shall not include any Judgment Liens (i) in existence as of
the applicable Closing Date with respect to the Sites being financed on
such date or (ii) in existence as of the date of substitution with
respect to a Substitute Site; and
(f) with respect to each Site which is subject to a ground lease,
the terms and conditions of such ground lease.
"Person" shall mean any individual, corporation, trust, limited
liability company, unincorporated organization, governmental authority or any
other form of entity.
"Personal Property" means with respect to each Site:
(i) all right, title and interest of Debtor in and to all tangible
personal property now owned or hereafter acquired by Debtor which is now
or at any time hereafter located on or at the Site and used or intended
for use in connection therewith, including, without limitation, all
fixtures, building materials stored on the Site, goods, machinery,
tools, equipment (including fire sprinklers and alarm systems, air
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conditioning, heating and refrigerating equipment, equipment for
electronic monitoring, entertainment, recreation, window or structural
cleaning, maintenance, exclusion of vermin or insects, removal of dust,
refuse or garbage and all other equipment of every kind), lobby and all
other indoor and outdoor furniture (including tables, chairs, planters,
desks, sofas, shelves, lockers and cabinets), wall safes (other than the
contents thereof), furnishings, appliances, rugs, carpets and other
floor coverings, draperies and drapery rods and brackets, awnings,
window shades, venetian blinds, curtains, lamps, chandeliers and other
lighting fixtures and maintenance and other supplies;
(ii) all royalties, income and other benefits derived by Debtor
from the Site; and
(iii) all of Debtor's interest in all existing and future
accounts, contract rights (except contract rights pertaining to
interests in real property), general intangibles, files, books of
account, agreements and license agreements, permits, licenses and
certificates necessary or desirable in connection with the acquisition,
ownership, leasing, construction, operation, servicing or management of
the Site, whether now existing or entered into or obtained after the
date hereof, and all existing and future telephone numbers and listings
in any way relating to the Site or any portion thereof;
provided, however, Personal Property shall not include the Equipment, if any,
at the Site.
"Property Notice" means, with respect to a proposed Site, a notice
delivered by Debtor to FFCA substantially in the form attached hereto as
Exhibit L indicating that Debtor intends to acquire or has acquired a parcel
of land or intends to execute or has executed a ground lease at which an
Arby's Restaurant or Dual Concept, will be constructed, which Site, Debtor
desires FFCA to finance with a Loan and Equipment Loan. Each Property Notice
shall include (i) the requested amount of financing, the purchase price paid
or to be paid for the land, or a copy of the proposed ground lease (Debtor
agrees, to the extent reasonably practicable, to submit each ground lease to
FFCA for its review and comment prior to execution by Debtor and the ground
lessor), as the case may be, (ii) the anticipated hard costs (including site
improvements) and soft costs (fees of the architect, engineers and surveyor
and license and permit fees) to construct the Arby's Restaurant or Dual
Concept thereon, (iii) a description of the prototype improvements proposed to
be constructed at the Site, including the square footage of the proposed
improvements, planned variations from the prototype and, to the extent readily
available, plans and specifications for such prototype, (iv) the anticipated
cost of and budget for the Arby's Restaurant or Dual Concept and related
improvements to be constructed thereon, (v) a description of the prototype
improvements proposed to be constructed at the Site, including the square
footage of the proposed improvements, planned variations from the prototype
and, to the extent readily available, plans and specifications for such
prototype, (vi) a description of the standard equipment package expected to be
installed at the proposed improvements, including, without limitation, planned
variations from the standard equipment package, and a cost estimate for such
equipment package, and (vii) any other documents and information available
regarding
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the property and the desired Loan and Equipment Loan which are reasonably
requested by FFCA.
"RC/Arby's" means RC/Arby's Corporation, a Delaware corporation.
"REIT" means Franchise Finance Corporation of America, a Delaware
corporation.
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping of Hazardous Materials into soil, surface waters, groundwaters, land,
stream sediments, surface or subsurface strata, ambient air or any other
environmental medium comprising the Site.
"Release and Amendment Costs" means, with respect to (i) the release of
liens and Loan Documents as contemplated by this Agreement as a result of
prepayments or Transfers, or (ii) the amendment or modification of any of the
Loan Documents pursuant to any of the provisions of the Loan Documents (other
than with respect to a Securitization), all reasonable out-of-pocket costs,
expenses and fees incurred by Debtor and/or FFCA, including, without
limitation, reasonable fees and expenses of attorneys and recording fees.
"Reports" means, collectively, those environmental reports prepared with
respect to the Sites as contemplated by Section 12.E.
"Royalties Payment Agreement" means that certain agreement among
Guarantor, Arby's and FFCA pursuant to which Guarantor shall agree to the
extent provided therein to pay royalties payable under Article 3 of the
License Agreements, which Royalties Payment Agreement shall be substantially
in the form attached hereto as Exhibit J.
"Securitization" means the securitization described in Section 17.Q.
"Site" or "Sites" means those parcels of real estate or those leasehold
interests in parcels of real estate described on the attached Exhibit A, as
such exhibit shall be deemed supplemented as of each Closing to include the
Site described in the corresponding Term Sheet or modified or supplemented to
reflect Substitute Sites and Sites released under Section 5, all rights,
privileges and appurtenances associated therewith, all buildings, fixtures and
other improvements now or hereafter located thereon (whether or not affixed to
such real estate) and all Personal Property and Equipment, if applicable,
located thereon. All Sites shall be located in the United States of America.
"Site Specific Equipment Loan Amount" means, with respect to each Site,
the original principal amount of the corresponding Equipment Note for such
Site executed by Debtor and FFCA. The Site Specific Equipment Loan Amount
shall not exceed Debtor's cost of the corresponding Equipment.
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"Site Specific Loan Amount" means, with respect to each Site, the
original principal amount of the corresponding Note for such Site executed by
Debtor and FFCA.
"Substitute Documents" shall have the meaning set forth in Section 5.
"Substitute Equipment" means the equipment located at a Substitute Site
owned by Debtor and substituted for the Equipment located at a Site in
accordance with the requirements of Section 5.
"Substitute Site" means one or more parcels of real property or a
leasehold interest in one or more parcels of real property substituted for a
Site in accordance with the requirements of Section 5, all privileges and
appurtenances associated therewith, all buildings, fixtures and improvements
located thereon (whether or not affixed to such real estate) and all Personal
Property and Equipment, if applicable, located thereon. For purposes of
clarity, where two or more parcels of real property or leasehold interests in
real property comprise a Substitute Site, such Sites shall be aggregated and
deemed to constitute the Substitute Site for all purposes of this Agreement
(except as provided in the proviso to Section 5.A(i)(b)(2)). All Substitute
Sites shall be located in the United States of America.
"Substitute Site Gross Sales" means, with respect to a proposed
Substitute Site, for the applicable period, all sales net of promotional
discounts, returns and refunds arising from the operation of an Arby's
Restaurant or a Dual Concept at such Substitute Site during such period less
sales tax or similar items from such operation and less sales of nonfood
premium or promotional items not in excess of 5% of all sales at such
Substitute Site during such period, if any.
"Substitution Notice" has the meaning set forth in Section 5.A.
"Tarpon Documents" means the promissory note delivered by Debtor to
Acquisition Corporation, the deed of trust, security agreement, financing
statement, fixture filing and assignment of rents and leases executed and
delivered by Debtor to Acquisition Corporation, the equipment promissory note
executed and delivered by Debtor to Acquisition Corporation, the equipment
security agreement executed by Debtor and Acquisition Corporation, the
collateral assignment of license agreement executed and delivered by Debtor to
Acquisition Corporation and the unconditional guaranty of payment and
performance executed and delivered by Guarantor to Acquisition Corporation,
all dated as of June 18, 1996 and all with respect to the site located in
Tarpon Springs, Florida more particularly described therein. The Tarpon
Documents have all been assigned by Acquisition Corporation to FFCA.
"Term Sheet" means, with respect to each Loan, the Term Sheet executed
by Debtor and FFCA substantially in the form attached hereto as Exhibit K.
"Title Company" means Lawyers Title Insurance Corporation, a Virginia
corporation.
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"Transfer" has the meaning set forth in Section 10.G.
"Treasury Rate" means the 10-year U.S. Treasury Note rate (with a
maturity most closely approximating the applicable Note) as reported in the
Western Edition of The Wall Street Journal on the third Business Day preceding
the applicable Closing Date. In the event The Wall Street Journal ceases to
publish the foregoing Treasury information, FFCA shall select an alternative
publication, as approved by Debtor, which publishes comparable information
most nearly approximating such information.
"UCC-1 Financing Statements" means the UCC-1 Financing Statements
executed by Debtor and FFCA and filed in the applicable state and county
records. One or more UCC-1 Financing Statements will be executed and filed for
each Equipment Security Agreement in the appropriate state and county offices.
2. Loan Terms.
A. Loans. On the terms and subject to the conditions set forth in the
Loan Documents, including, without limitation, the Loan Limitations, FFCA
shall make the Loans to Debtor. Each Loan will provide long-term financing for
the corresponding Site and Debtor may use the Loan proceeds for general
corporate purposes. Each Loan will be evidenced by a Note and secured by a
Deed of Trust. Debtor shall repay the Site Specific Loan Amount for each Loan
together with interest thereon and all other sums accruing under the Loan
Documents with respect to such Loan in accordance with the terms and
conditions of the Loan Documents.
B. Requests for Loans. Debtor shall deliver a Property Notice to FFCA
when it desires FFCA to make a Loan. Upon receipt of the Property Notice,
FFCA's in-house site review and valuation department will promptly inspect the
proposed Site identified in the Property Notice, and review the information
provided with respect to the proposed Equipment to be located thereon and the
plans and budget concerning the improvements to be constructed thereon. After
completing such review and inspection and upon approval of the proposed Site
and proposed Equipment by FFCA's investment committee, FFCA shall promptly
prepare and deliver to Debtor a proposed Term Sheet for the Loan which sets
forth FFCA's proposed Committed Loan Amount for such Site. When FFCA and
Debtor have agreed upon the provisions of such Term Sheet (including, without
limitation, the Committed Loan Amount) and executed the Term Sheet, FFCA will
order a title insurance commitment and phase I environmental report for the
proposed Site and instruct its counsel to begin preparing the applicable Loan
Documents. Each Loan and Equipment Loan shall close within 240 days after the
execution and delivery by FFCA and Debtor of the corresponding Term Sheet
(unless delayed by reasons not within Debtor's control).
FFCA's obligation to loan an amount up to the Committed Loan Amount to
Debtor shall be subject to the satisfaction of the conditions precedent and
requirements set forth in this Agreement, including, without limitation, the
Loan Limitations and the delivery of invoices and receipts pursuant to Section
12.B documenting and substantiating the actual out-of-pocket cost
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of the improvements constructed at such Site (the "Construction Costs"). The
Loan shall be advanced in immediately available funds on the corresponding
Closing Date in an amount equal to the Committed Loan Amount; provided,
however, if, as of such Closing Date, Debtor has not substantiated and
documented all of the Construction Costs, the construction cost component of
the Committed Loan Amount advanced to Debtor on the Closing Date shall only
equal the Construction Costs for which Debtor has provided substantiation and
documentation pursuant to Section 12.B. The balance of the Committed Loan
Amount shall be advanced to Debtor in one supplemental disbursement (the
"Supplemental Disbursement") within five Business Days after Debtor has
provided FFCA with the remaining substantiation and documentation of the
Construction Costs; provided, however, if, within 60 days after the Closing
Date Debtor has not provided all of the required substantiation and
documentation, FFCA shall only be obligated to advance such remaining portion
of the construction cost component of the Committed Loan Amount for which
Debtor has provided substantiation and documentation, which advance shall
occur within five Business Days after the end of such 60-day period. As
conditions precedent to FFCA's obligation to advance the Supplemental
Disbursement, Debtor shall (i) execute and deliver to FFCA an amended and
restated Note to include the amount of such Supplemental Disbursement in the
principal amount of the Note, which amended and restated Note shall be
otherwise identical to the original Note, (ii) execute and deliver such
amendments to the other Loan Documents as FFCA shall reasonably require as a
result of the Supplemental Disbursement, and (iii) cause Title Company to
issue endorsements to FFCA's loan policy of title insurance with respect to
the corresponding Site to increase the insured amount of such policy to
reflect the Supplemental Disbursement and insure the continued first priority
of FFCA's lien on such Site notwithstanding the execution and delivery by
Debtor of the amended and restated Note. Debtor shall be solely responsible
for the payment of all costs and expenses required to satisfy the foregoing
conditions precedent, including, without limitation, FFCA's reasonable
attorneys' fees and the title policy endorsement charges.
If the Construction Costs exceed the construction cost component of the
Committed Loan Amount, FFCA will lend Debtor up to 105% of the Committed Loan
Amount, subject to the Loan Limitations and Debtor documenting and
substantiating such Construction Costs as contemplated by Section 12.B. FFCA
shall have no obligation to make Loans with respect to any proposed Sites
identified in Property Notices delivered after September 30, 1997, nor shall
FFCA be obligated to make Loans with respect to any Site for which the
Property Notice is delivered to FFCA on or before September 30, 1997 but the
conditions precedent to the corresponding Closing have not been satisfied on
or before December 31, 1997. Notwithstanding the foregoing, in no event shall
the portion of the Committed Loan Amount, as such Committed Loan Amount may be
increased pursuant to this paragraph, allocated to the cost of the
construction of the improvements exceed the Construction Costs.
C. Base Interest. The unpaid principal amount of each Note will bear
interest at the applicable Base Interest Rate. Principal and interest for each
Note at the Base Interest Rate shall be payable in arrears in equal
consecutive monthly installments commencing on the first day of the second
month following the month in which the Closing of the Loan occurs, or the
first Business Day preceding such date if such date is not a Business Day, and
continuing on the first
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day of each month thereafter, or the first Business Day preceding such date if
such date is not a Business Day, until maturity on the Maturity Date, at which
time the then outstanding principal and unpaid accrued interest shall be due
and payable. Debtor shall pay FFCA at the applicable Closing interest for the
corresponding Note at the Base Interest Rate accruing for the period of time
from the Closing Date through the last day in the month during which the
Closing occurs.
D. Prepayment. Except for (i) prepayments that are permitted or required
under the Deeds of Trust (relating to certain casualty and condemnation events
and certain Transfers of Personal Property) and (ii) prepayments that are
permitted pursuant to the Deed of Trust or contemplated by the terms of the
Loan Documents with respect to the maintenance of the required Fixed Charge
Coverage Ratio for the Site covered thereby, each Note may not be prepaid in
full or in part prior to the tenth anniversary of the Closing Date for such
Note. From and after such tenth anniversary, and provided there is no
continuing Event of Default under the Loan Documents after giving effect to
prepayments permitted by the Deed of Trust or contemplated by the terms of the
Loan Documents with respect to maintenance of the required Fixed Charge
Coverage Ratio for the Site covered thereby, Debtor may prepay the outstanding
principal balance of one or more Notes in full or, pursuant to the Deed of
Trust or contemplated by the terms of the Loan Documents with respect to
maintenance of the required Fixed Charge Coverage Ratio for the Site covered
thereby or as permitted or required under the Deeds of Trust (relating to
certain casualty and condemnation events and certain Transfers of Personal
Property), in part (but only with respect to the Notes corresponding to the
affected Sites), without premium or penalty. Except as otherwise contemplated
by the Deeds of Trust in the case of casualty or condemnation, Debtor shall
provide FFCA with notice of its intention to prepay any Note, and any such
prepayment shall occur and be due and payable on the first day of the next
calendar month after such notice, or the first Business Day preceding such
date if such date is not a Business Day; provided that during such period no
Event of Default under Section 13(a)(7) shall be deemed to have occurred if
such prepayment, when made, shall cure such default. With any prepayment of
the outstanding principal balance of a Note, Debtor shall pay all accrued but
unpaid interest thereon through the date of prepayment and all other amounts
due and unpaid under the Loan Documents. Upon a partial prepayment of a Note,
(i) the amount prepaid shall be applied to the outstanding indebtedness under
the Note and (ii) the remaining indebtedness under the Note shall be
reamortized over the remaining term of the Note. Upon prepayment of a Note in
full, FFCA will release or cause to be released, the corresponding Guaranty
and the Liens created by the Deed of Trust and all other Loan Documents
encumbering the Site corresponding to such Note, and promptly deliver
documents, including, without limitation, UCC-3 termination statements,
reasonably requested by Debtor to effect such release.
Debtor acknowledges that the making of the Loan by FFCA at the interest
rate and on the other terms set forth in this Section 2 is sufficient
consideration for the inclusion of the provisions in this Section 2 and FFCA
would not make the Loan on the terms set forth herein without the inclusion of
such provisions. Debtor also acknowledges that the provisions of this Section
2 limiting the right of prepayment were independently negotiated and bargained
for, and constitute a specific, material part of the consideration given by
Debtor to FFCA for making the
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Loan. Furthermore, Debtor acknowledges that FFCA is making the Loan in
consideration of FFCA's receipt of all interest and other payments bargained
for in the Loan Documents, and if the Loan is paid in whole or in part in any
manner other than as provided in this Section 2 prior to the time Debtor is
permitted to prepay, FFCA will not receive all of such bargained-for interest
and other payments and may incur additional costs.
E. Limitation on Payment. The scheduled annual payments of principal and
interest pursuant to each Note shall not exceed 18% of the applicable Site
Specific Loan Amount as reduced by permitted prepayments (but not the
applicable Site Specific Equipment Loan Amount), provided that such maximum
amount shall be appropriately prorated with respect to any partial Loan Year.
Notwithstanding the foregoing, nothing in this subsection is intended to limit
the payment obligations of Debtor as a result of an Event of Default.
3. Equipment Loan Terms.
A. Equipment Loan. On the terms and subject to the conditions set forth
in the Loan Documents, including, without limitation, the Loan Limitations,
FFCA shall loan Debtor the Equipment Loan Amount. Each Equipment Loan will
provide financing for the acquisition of the corresponding Equipment and for
no other purpose whatsoever. Each Equipment Loan will be evidenced by an
Equipment Note and secured by an Equipment Security Agreement. Debtor shall
pay the Site Specific Equipment Loan Amount for each Equipment Loan together
with interest thereon and all other sums accruing under the Equipment Loan
Documents in accordance with the terms and conditions of the Equipment Loan
Documents. The Site Specific Equipment Loan Amount with respect to each
Equipment Loan shall be advanced in a single-funding either at the time of the
corresponding Closing of the corresponding Site Specific Loan Amount or the
corresponding Supplemental Disbursement in immediately available funds. Debtor
shall notify FFCA at least ten days prior to the corresponding Closing if
Debtor desires FFCA to fund the Equipment Loan at the time of the
corresponding Closing. In the absence of such notice, such Equipment Loan
shall be funded at the time of the Supplemental Disbursement. In addition to
all other requirements set forth in this Agreement, FFCA's obligation to fund
each Equipment Loan shall be subject to the satisfaction of the requirements
set forth in Section 2.B with respect to the corresponding Loan and Debtor
substantiating the cost of the Equipment as contemplated by Section 12.B.
B. Base Interest. The unpaid principal amount of each Equipment Note
will bear interest at the Base Interest Rate. Principal and interest at the
Base Interest Rate shall be payable in arrears in equal consecutive monthly
installments commencing on the first day of the second month following the
month in which the Closing Date of the Equipment Loan occurs, or the first
Business Day preceding such date if such date is not a Business Day, and
continuing on the first day of each month thereafter, or the first Business
Day preceding such date if such date is not a Business Day, until maturity on
the seventh anniversary of the Closing Date for such Equipment Note, at which
time the outstanding principal and unpaid accrued interest shall be due and
payable. Debtor shall pay FFCA at the applicable Closing interest for the
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corresponding Equipment Note at the Base Interest Rate accruing for the period
of time from the Closing Date through the last day in the month during which
the Closing occurs.
C. Prepayment. Each Equipment Note may not be prepaid except as
permitted or required under the corresponding Equipment Security Agreement
(relating to certain casualty and condemnation events and certain Transfers of
Equipment). Upon a partial prepayment of an Equipment Note, the amount prepaid
shall be applied to the outstanding indebtedness under the Equipment Note and
the remaining amount due under the Equipment Note shall be reamortized over
the remaining term of the Equipment Note. Upon a prepayment of an Equipment
Note in full, FFCA will release or cause to be released the corresponding
Guaranty (but only with respect to such Equipment Note) and the lien created
under the Deed of Trust, the Equipment Security Agreement and all other Loan
Documents encumbering the Equipment corresponding to such Equipment Note, and
promptly deliver documents, including, without limitation, UCC-3 termination
statements, reasonably requested by Debtor to effect such release. Debtor
acknowledges that the making of each Equipment Loan by FFCA at the interest
rate and on the other terms set forth in this Section 3 is sufficient
consideration for the inclusion of the provisions in this Section 3 and FFCA
would not make such Equipment Loans on the terms set forth herein without the
inclusion of such provisions. Debtor also acknowledges that the provisions of
this Section 3 limiting the right of prepayment were independently negotiated
and bargained for, and constitute a specific, material part of the
consideration given by Debtor to FFCA for making the Equipment Loans.
Furthermore, Debtor acknowledges that FFCA is making the Equipment Loans in
consideration of FFCA's receipt of all interest and other payments bargained
for in the Equipment Loan Documents, and if any Equipment Loan is paid in
whole or in part in any manner other than as provided in this Section 3 prior
to the applicable Equipment Maturity Date, FFCA will not receive all of such
bargained-for interest and other payments and may incur additional costs.
4. Limitation on Loan Amounts; Payments.
A. Limitation on Loan Amounts. Notwithstanding FFCA's agreement to make
the Loans and the Equipment Loans, the sum of the Loan Amount and the
corresponding Equipment Loan Amount for each Site shall not exceed
$1,100,000.00 (the "Site Loan Limitation"), and the sum of the aggregate Loan
Amounts and aggregate Equipment Loan Amounts shall not exceed $26,196,211.00
(the "Aggregate Limitation"). The Site Limitation and the Aggregate Limitation
are referred to collectively herein as the "Loan Limitations."
B. Taxes. All payments of principal and interest due hereunder shall be
made free and clear of, and without deduction for, or on account of, any
present and future taxes, levies, imposts, deductions, charges or
withholdings, which amounts shall be paid by the Debtor, excluding (i) income
and franchise taxes imposed on FFCA (A) by the jurisdictions under the laws of
which FFCA is organized and in which it has its principal executive office, or
by any political subdivision or taxing authority thereof or therein or (B) by
any other jurisdiction, or political subdivision or taxing authority thereof
or therein, other than those imposed by reason of the activities of Debtor in
such jurisdiction, (ii) any taxes of the United States of America or
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any political subdivision thereof imposed by means of withholding at the
source, and (iii) any transfer, stamp, recording or documentary taxes
resulting from a transfer by FFCA of all or any portion of its interest in the
Loan Documents (all such non-excluded taxes and other charges being
hereinafter referred to as "Non-Excluded Taxes"). If Debtor shall be required
by law to deduct any Non-Excluded Taxes from or in respect of any principal or
interest due hereunder, the sum payable shall be increased as may be necessary
so that after making all required deductions FFCA receives an amount, after
taking account of all taxes and other charges payable with respect to such
additional amount, equal to the sum it would have received had no such
deductions been made. Notwithstanding the foregoing provisions of this
Section, Debtor shall have no obligation to make any greater payment under
this Section to or with respect to any assignee or transferee than it would
have been obligated to make to or with respect to FFCA with respect to the
rights assigned or transferred. To the extent that the Debtor pays sums
pursuant to this Section and FFCA receives a refund of any or all of such
sums, such refund shall be applied to reduce any amounts then due and owing
under the Loan Documents or, to the extent that no amounts are due and owing
under the Loan Documents at the time such refunds are received, FFCA shall
promptly pay over all such refunded sums to the Debtor. To the extent that the
Debtor is required by law to make any such excess payments to any taxing
authority with respect to any transferee or assignee, then notwithstanding any
other provision of the Loan Documents, the Debtor shall be permitted to set
off the amount of such excess payment against amounts otherwise payable under
the Loan Documents to such assignee or transferee or, to the extent that no
amounts are due and owing under the Loan Documents at such time, such
transferee or assignee shall indemnify the Debtor for the full amount of such
excess payments.
C. Method of Payment. All payments of principal and interest and other
sums due under the Loan Documents shall be made by wire transfer of
immediately available funds to the following account: Norwest Bank
Minneapolis, N.A., ABA # 091000019, Minneapolis, Minnesota, Beneficiary Bank:
Norwest Bank Illinois, Peoria, Illinois, Beneficiary Name: FFCA Mortgage
Corporation, Beneficiary Account: 5200531022, or as FFCA may otherwise notify
Debtor in writing.
D. Release and Amendment Costs. Debtor shall be solely responsible for
the payment of all Release and Amendment Costs at or prior to the delivery by
FFCA of the applicable release documents in connection with any prepayment of
any Loan or Equipment Loan or Transfers.
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5. Substitution and Defeasance.
A. Substitution.
(i) Conditions. Debtor may from time to time obtain a release of a
Site and the Equipment located at the Site by substituting a Substitute
Site and Substitute Equipment for the Site and the Equipment located at
the Site, subject to the restrictions set forth in Section 5.C and the
fulfillment of the following conditions:
(a) Debtor shall provide FFCA with notice at least 45 days
before the proposed date of such substitution (the "Substitution
Notice"); provided, however, such Substitution Notice may not be
delivered more than 90 days before the date proposed in such
Substitution Notice for the substitution;
(b) Debtor must provide for the substitution of a Substitute
Site and Substitute Equipment if the Site to be replaced includes
Equipment, and the proposed Substitute Site and Substitute
Equipment must:
(1) be an Arby's Restaurant or Dual Concept, in good
condition and repair, ordinary wear and tear excepted;
(2) have generated, for the 12 months immediately
preceding the proposed substitution date, Substitute Site
Gross Sales equal to or greater than Gross Sales for the
Site to be replaced by such Substitute Site for such period;
provided, however, for purposes of calculating Substitute
Site Gross Sales, if the proposed Substitute Site has been
operated for:
(x) less than three months immediately preceding
the proposed substitution date, the Substitute Site
Gross Sales shall be an amount equal to the annualized
Substitute Site Gross Sales for such period that the
Substitute Site has been operated, minus 20% of such
annualized amount; and
(y) less than 12 months immediately preceding
the proposed substitution date, but more than three
months, the Substitute Site Gross Sales shall be an
amount equal to the annualized Substitute Site Gross
Sales for such period that the Substitute Site has
been operated;
provided, however, that, in the case where two or more Sites
comprise the Substitute Site, Substitute Site Gross Sales shall be
determined pursuant to this subsection (2) separately for each
constituent Site and the Substitute Site Gross Sales shall equal
the sum of such amounts;
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(3) be owned by and vested in Debtor, or Debtor shall
have a valid leasehold estate in the land, and own the
improvements and buildings located thereon, free and clear
of all Liens, except Permitted Exceptions (the "Substitute
Site Permitted Exceptions") and except to the extent Debtor
owns or leases personal property in lieu of the Substitute
Equipment provided such property is subject to a purchase
money security interest or other Lien in favor of, or lease
with, a third-party;
(4) if the proposed Substitute Site is subject to a
ground lease, the ground lease shall provide for an initial
term which is at least equal in duration to the remaining
term of the Note relating to the Site to be replaced and
otherwise in form and substance reasonably acceptable to
FFCA or following the Securitization, the master or special
servicer (provided that the consent of security holders in
the Securitization is not required). Furthermore, Debtor
shall provide FFCA with an estoppel certificate and consent
from the ground lessor in form and substance reasonably
satisfactory to FFCA, or following the Securitization, the
master or special servicer (provided that the consent of
security holders in the Securitization is not required),
which estoppel certificate and consent shall include,
without limitation, ground lessor's consent to FFCA's first
priority lien pursuant to the Site Specific Documents (as
defined in the Deed of Trust for such proposed Substitute
Site) on Debtor's leasehold interest in the land which is
the subject of the ground lease.
(c) Debtor shall have reimbursed FFCA, in addition to all
other Costs applicable to the proposed substitution, for FFCA's
third-party and/or in-house site inspectors' costs and expenses
with respect to the proposed Substitute Site and Substitute
Equipment (which, if FFCA's in-house site inspectors are utilized,
is estimated to cost approximately $600.00 for each proposed
Substitute Site);
(d) FFCA shall have received (1) UCC financing statement
searches which establish FFCA's first priority lien upon and
security interest in the proposed Substitute Equipment, subject
only to the Substitute Site Permitted Exceptions (except with
respect to proposed Substitute Equipment owned or leased by Debtor
described above) and (2) a preliminary title report and
irrevocable commitment (subject only to payment of premium) to
insure title by means of a mortgagee's ALTA extended coverage
policy of title insurance (or its equivalent, in the event such
form is not issued in the jurisdiction where the proposed
Substitute Site is located) for such proposed Substitute Site
issued by a Title Company showing good and marketable title in
Debtor and committing to insure FFCA's first priority lien upon
and security interest in the proposed Substitute Site, subject
only to the Substitute Site Permitted Exceptions and containing
endorsements substantially comparable to those required by FFCA at
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the Closing); provided, however, with respect to those proposed
Substitute Sites which are subject to ground leases, the title
commitment shall show good and marketable title in the
improvements located at the proposed Substitute Site in Debtor and
in the land thereunder in the ground lessor named in the ground
lease, without exception for Liens encumbering such land (other
than Permitted Exceptions and Liens for indebtedness which has
been repaid but not released from the real property records and
which Title Company has agreed to insure over or not take
exception to in FFCA's title policy) unless FFCA has been provided
with nondisturbance agreements from the holders of such Liens in
form and substance reasonably satisfactory to FFCA or, following
the Securitization, the master or special servicer, and such title
commitment shall provide for Title Company's irrevocable
commitment (subject only to payment of premium) to insure pursuant
to the policy described above FFCA's first priority lien upon and
security interest in such improvements and Debtor's leasehold
interest in such land;
(e) FFCA shall have received a current ALTA survey of such
proposed Substitute Site, the form of which shall be comparable to
those received by FFCA at the Closing and sufficient to cause the
standard survey exceptions set forth in the title policy referred
to in the preceding subsection to be deleted;
(f) FFCA shall have received a Phase I environmental report
with respect to such proposed Substitute Site, the scope of which
shall conform to the then customary standards for lenders making
loans secured by commercial real estate, which shall conclude that
there is no Environmental Condition affecting the proposed
Substitute Site which is likely to have a Material Adverse Effect;
(g) the financial condition of the proposed Substitute Site
and Substitute Equipment, as certified by the chief financial
officer of Debtor, to the best of his knowledge, after reasonably
diligent inquiry, must be such that, if such substitution occurs,
there will be, on a pro forma basis, no reduction or diminution in
the Fixed Charge Coverage Ratio from the Fixed Charge Coverage
Ratio as of the date immediately preceding the substitution;
(h) Debtor shall deliver, or cause to be delivered, an
opinion of Debtor's Counsel and FFCA shall have received an
opinion of FFCA's Counsel, each in form and substance comparable
to those received at Closing (but also addressing such matters
unique to the Substitute Site or Substitute Equipment as may be
reasonably required by (i) FFCA, or (ii) following the
Securitization, the master or special servicer, provided that the
consent of the security holders in the Securitization is not
required) and issued by counsel reasonably approved by FFCA or the
master or special servicer (provided that the consent of the
security holders in the Securitization is not required), as
applicable;
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(i) there shall be no continuing Event of Default after
giving effect to such substitution; provided, however, such
requirement shall not preclude a substitution permitted by Section
13(d);
(j) Debtor, Arby's and Guarantor shall have executed such
documents as are comparable to the Royalties Payment Agreement,
the License Agreement and the security documents executed and
delivered at Closing, as applicable (but with such revisions as
may be reasonably required to address matters unique to the
Substitute Site and Substitute Equipment by (i) FFCA, or (ii)
following the Securitization, the master or special servicer,
provided the consent of the security holders is not required), or
amendments to such documents, including, without limitation, a
Deed of Trust, an Equipment Security Agreement, Collateral
Assignments, Collateral Assignment of License Agreement, a
Guaranty and UCC-1 Financing Statements (the "Substitute
Documents"), to provide FFCA with a first priority lien on the
proposed Substitute Site (or with respect to proposed Substitute
Sites subject to ground leases, a first priority lien on the
improvements located at such proposed Substitute Site and Debtor's
leasehold interest in the land thereunder) and Substitute
Equipment, subject only to the Substitute Site Permitted
Exceptions, and all other rights, remedies and benefits with
respect to the proposed Substitute Site and Substitute Equipment
which FFCA holds in the Site and Equipment to be replaced, all of
which documents shall be in form and substance reasonably
satisfactory to (i) FFCA, or (ii) following the Securitization,
the master or special servicer, provided the consent of the
security holders is not required);
(k) the representations and warranties set forth in the
Substitute Documents and Section 10 of this Agreement applicable
to the proposed Substitute Site and Substitute Equipment shall be
true and correct in all material respects as of the date of
substitution (with appropriate modifications consistent with the
foregoing provisions of this Section to reflect proposed
Substitute Sites subject to ground leases), and Debtor shall have
delivered to FFCA an officer's certificate certifying to that
effect to such officer's knowledge; and
(l) Debtor shall have delivered to FFCA certificates of
insurance showing that insurance required by the Substitute
Documents is in full force and effect.
FFCA or, following the Securitization, the master or special
servicer, shall order the UCC financing statement searches, title
commitment, ALTA survey and Phase I environmental report described in
subsections (d), (e) and (f) above within five Business Days of Debtor's
Substitution Notice of the proposed substitution, and, upon receipt of
such items, FFCA agrees to use reasonable diligence in completing its
review and analysis of the proposed Substitute Site and Substitute
Equipment.
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FFCA and Debtor agree that if, pursuant to the terms of the
proposed Securitization, the consent of the security holders in the
Securitization would be required with respect to any of the
determinations described in this subsection 5.A, FFCA and Debtor shall
negotiate in good faith prior to the closing of the Securitization to
agree upon objective standards with respect to such determinations so
that the consent of such security holders will not be required.
(ii) Effect of Substitution. Upon satisfaction of the foregoing
conditions with respect to the release of a Site:
(a) the proposed Substitute Site shall be deemed substi-
tuted for the Site to be replaced;
(b) the Site Specific Loan Amount for the Substitute Site
shall be the same as for the replaced Site;
(c) the Substitute Site shall be referred to herein as a
"Site" and included within the definition of "Sites";
(d) the proposed Substitute Equipment shall be deemed sub-
stituted for the Equipment to be replaced;
(e) the Site Specific Equipment Loan Amount for the Sub-
stitute Equipment shall be the same as for the replaced Equipment;
(f) the Substitute Equipment shall be referred to herein
as the "Equipment";
(g) the Substitute Documents shall be dated as of the date
of the substitution; and
(h) FFCA will release, or cause to be released, the
corresponding Guaranty and the lien of the Deed of Trust
encumbering the replaced Site and the lien of the Equipment
Security Agreement encumbering the replaced Equipment, the
Collateral Assignments, the Collateral Assignment of License
Agreement, and all other Liens granted by Debtor in favor of FFCA
pursuant to the Loan Documents with respect to such Site and
Equipment and promptly deliver documents, including, without
limitation, UCC-3 termination statements, reasonably requested by
Debtor to effect such release. The replaced Site shall no longer
be deemed a Site and the Equipment related thereto, if any, shall
no longer be deemed to be Equipment for any and all purposes of
the Loan Documents.
B. Defeasance. Debtor may cause one or more Sites to be released from the
lien of the applicable Deed(s) of Trust, Equipment Security Agreement(s),
UCC-1 Financing
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Statement(s) and all other Liens granted by Debtor in favor of FFCA pursuant
to the Loan Documents by defeasing both the Notes and Equipment Notes with
respect to such Sites, subject to the restriction set forth in subsection 5.C
below and fulfillment of the following conditions:
(i) Debtor shall have notified FFCA of its intent to defease such
Notes and Equipment Notes pursuant to this subsection no less than 20
days before such intended defeasance (which defeasance must occur on a
regularly scheduled payment date under such Notes and Equipment Notes);
(ii) Debtor shall have delivered or caused to have been delivered
to the Defeasance Account Institution the Defeasance Amount for deposit
into the Defeasance Account;
(iii) there shall be no continuing Event of Default after giving
effect to such defeasance; provided, however, such requirement shall not
preclude a defeasance permitted by Section 13(d);
(iv) the Defeasance Amount consisting of Eligible Investments
shall have been registered in the name of FFCA or the holders of the
Notes being defeased;
(v) Debtor shall have delivered or caused to be delivered to FFCA
an officer's certificate dated as of the date of such delivery that sets
forth the aggregate face amount or unpaid principal amount, interest
rate and maturity of the Defeasance Amount consisting of Eligible
Investments, and certifies that to the best of such officer's knowledge,
after reasonably diligent inquiry:
(1) immediately prior to the deposit of such Eligible
Investments into the Defeasance Account, Debtor owns the
Defeasance Amount free and clear of all Liens and Debtor has full
power and authority to make the irrevocable transfer into the
Defeasance Account for the sole benefit of the holder of the Notes
and Equipment Notes being defeased;
(2) such Defeasance Amount consists solely of Eligible
Investments and/or cash; and
(3) the defeasance contemplated hereby will not give rise
to an Event of Default;
(vi) Debtor shall have delivered or caused to be delivered to FFCA
an opinion of Debtor's Counsel addressed to FFCA and dated as of the
date of delivery (A) to the effect that the Defeasance Amount has been
duly and validly delivered to the Defeasance Account Institution in
accordance with the provisions of this Section 5.B, and (B) with respect
to such other matters as are (i) reasonably required by FFCA, or (ii)
following the Securitization, customary in similar transactions;
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(vii) Debtor shall have delivered or caused to be delivered to
FFCA a calculation from Debtor's chief financial officer or chief
accounting officer or a nationally recognized firm of independent
certified public accountants, verifying that the cash and Eligible
Investments to be deposited in the Defeasance Account have scheduled
cash flows in sufficient amounts so as to pay when due all payments
relating to the Notes and the Equipment Notes; provided, however, if
such calculation is certified by Debtor's chief financial officer or
chief accounting officer, the requirement set forth in this subsection
shall not be deemed satisfied if FFCA shall have disapproved such
calculation by delivering a notice to Debtor within 20 days after FFCA's
receipt of Debtor's calculation containing the calculation of a
nationally recognized firm of certified public accountants engaged by
FFCA which concludes that the cash and Eligible Investments to be
deposited in the Defeasance Account do not have scheduled cash flows in
sufficient amounts so as to pay when due all payments relating to the
Notes and the Equipment Notes; and
(viii) Debtor must defease both the Note and the corresponding
Equipment Note for each Site for which Debtor has notified FFCA of its
intention to defease.
Promptly upon the satisfaction of the conditions set forth herein with
respect to the defeasance of a Note and the corresponding Equipment Note, if
any, FFCA will release, or cause to be released, the Guaranty corresponding to
the Site and the lien of the Deed of Trust, the Equipment Security Agreement,
the Collateral Assignments, the Collateral Assignment of License Agreement,
and the UCC-1 Financing Statement encumbering the Site corresponding to such
Note and Equipment Note and all other Liens granted by Debtor in favor of FFCA
pursuant to the Loan Documents with respect to such Site and deliver
documents, including, without limitation, UCC-3 termination statements,
reasonably requested by Debtor to effect such release and thereafter such Site
and Equipment shall no longer be deemed a Site and Equipment for any and all
purposes of the Loan Documents; provided, however, in no event shall the
delivery of the Defeasance Amount cause Debtor to be released from its
obligations to make payments of principal and interest on the Notes and the
Equipment Notes, or from any other obligation under any other Loan Document
with respect to the remaining Sites.
The Defeasance Amount will be held and disbursed by the Defeasance
Account Institution to the holders of the Notes and Equipment Notes being
defeased as follows:
(i) on each date principal and interest under each Note and
Equipment Note being defeased is due, the Defeasance Account Institution
shall disburse to the holders of the Notes and Equipment Notes being
defeased such portion of the Defeasance Amount as is required to make
such payments of principal and interest, and the holders of the Notes
and Equipment Notes being defeased shall apply such disbursement
accordingly; and
(ii) on the tenth anniversary of the Closing Date of each Note
being defeased and the seventh anniversary of the Closing Date of each
Equipment Note being defeased,
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the Defeasance Account Institution shall disburse to the holders of such
Notes and Equipment Notes, as the case may be, such portion of the
Defeasance Amount required to prepay 100% of the outstanding principal
balance under such Notes and Equipment Notes through and including, and
accrued interest thereon to, the applicable tenth anniversary of the
Closing Date with respect to each such Note and the applicable seventh
anniversary of the Closing Date with respect to each such Equipment
Note, and the holders of the Notes and Equipment Notes being defeased
shall apply such disbursement accordingly.
Promptly upon disbursement of the Defeasance Amount as is equivalent to
that amount as set forth above so as to pay the Notes and the Equipment Notes
being defeased in full, the Notes and Equipment Notes being defeased shall be
marked cancelled and returned to Debtor and, provided there shall be no
continuing Event of Default, all amounts remaining in the Defeasance Account,
if any, with respect to the Notes and the Equipment Notes being defeased shall
promptly be returned to Debtor. All income accrued on Defeasance Amounts for
federal, state and local income tax purposes shall be reported by Debtor in
its income tax return. FFCA and the holders of the Notes and Equipment Notes
shall not in any way be held liable by reason of any insufficiency in the
Defeasance Account.
C. Limitation on Substitution and Defeasance. (i) Debtor shall have the
right to substitute or defease pursuant to this Section 5, determined in the
aggregate at any point in time, 20% of the Sites for which Loans have been
closed pursuant to this Agreement and the ARHC Loan Agreement (regardless of
whether any of such Sites have been released pursuant to Section 5), in each
case together with Equipment Loans for such Sites. For purposes of the
immediately preceding sentence, Sites shall mean, collectively, the Sites as
defined in this Agreement and the ARHC Loan Agreement.
(ii) Prior to a Securitization involving a Loan and an Equipment Loan,
Debtor shall have the right to defease, pursuant to this Section 5, such Loan
and Equipment Loan. Debtor shall not be permitted to defease, pursuant to this
Section 5, the Loans or Equipment Loans included in a Securitization for a
period of two (2) years following the date of the closing of such
Securitization.
(iii) Prior to a Securitization involving a Loan and an Equipment Loan,
FFCA may test the Sites for the Fixed Charge Coverage Ratio covenant in
accordance with this Agreement. FFCA shall not be permitted to test the Sites
securing the Loans or Equipment Loans included in a Securitization for the
Fixed Charge Coverage Ratio covenant for a period of two (2) years following
the date of the closing of such Securitization.
D. Costs. Debtor shall be solely responsible for the payment of all Costs
relating to the transactions contemplated by this Section 5 (including the
transactions exercised pursuant to Sections 13(d) and (e)) at or prior to the
closing of such transactions (and regardless of whether the closing occurs but
excluding the costs of the accounting firm engaged under Section 5.B(vii)).
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6. Closing; Escrow Agent. The Closing of each Loan and Equipment Loan
shall be consummated upon satisfaction of all of the terms and conditions
contained in this Agreement with respect to each Loan and the related
Equipment Loan and in accordance with the following requirements:
(i) The Closing shall occur at such location as is mutually agreed
to by the parties. Prior to the Closing Date, the parties hereto shall
deposit with the Title Company all documents and moneys necessary to
comply with their obligations under this Agreement. The Title Company
shall not cause the Loan to close unless and until it has received
written instructions from FFCA and Debtor to do so. All reasonable costs
of negotiating and preparing the Loan Documents with respect to such
Loan and arising in connection with the Closing shall be borne by
Debtor, including, without limitation, all premiums, search charges,
attorney review charges, endorsements and other costs associated with
the issuance of the title insurance policies contemplated by this
Agreement, attorneys' fees of Debtor (including Debtor's Counsel),
reasonable attorneys' fees of FFCA (including FFCA's Counsel), the cost
of the surveys, the costs of appraisals, stamp taxes, transfer fees,
escrow and recording fees, and the actual and reasonable out-of-pocket
expenses incurred by or on behalf of FFCA, in connection with the due
diligence and site review (which, if FFCA's in-house site inspectors are
utilized instead of using appraisals, is estimated to cost approximately
$600.00 per Site). All real and personal property and other applicable
taxes and assessments and other charges relating to the Site which are
due and payable on or prior to the Closing Date, as well as such taxes
and assessments due and payable subsequent to the Closing Date but which
Title Company requires to be paid at Closing as a condition to the
issuance of a title insurance policy described in Section 12.C, shall be
paid by Debtor at or prior to the Closing. The closing documents shall
be dated as of the Closing Date.
(ii) Debtor and FFCA hereby employ the Title Company to act as
escrow agent in connection with the Closing. The Title Company shall not
be authorized to disburse any funds received by it from Debtor or FFCA,
or to record or deliver any documents deposited with it by or on behalf
of either Debtor or FFCA, without the joint written instructions of
Debtor and FFCA, and each of the following terms and conditions of this
Section are limited by such qualification; provided, however, the
preceding limitation shall not restrict the Title Company's right, in
the event any conflicting demand is made upon it concerning these
instructions or the escrow, at its election, to hold any documents
and/or funds deposited hereunder until an action shall be brought in a
court of competent jurisdiction to determine the rights of Debtor and
FFCA or to interplead such documents and/or funds in an action brought
in any such court. Debtor and FFCA will deliver to the Title Company all
documents, pay to the Title Company all sums and do or cause to be done
all other things necessary or required by this Agreement, in the
reasonable judgment of the Title Company, to enable the Title Company to
comply herewith and to enable any title insurance policy provided for
herein to be issued, all with respect to such of the Sites for which
FFCA has requested that the Title Company provide title insurance
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services, including, without limitation, the gap indemnities described
in Section 12.F. Debtor will pay all charges payable by it to the Title
Company. The Title Company is authorized to pay, from any funds held by
it for FFCA's or Debtor's respective credit all amounts necessary to
procure the delivery of such documents and to pay, on behalf of FFCA and
Debtor, all charges and obligations payable by them, respectively.
Deposit by the Title Company of such documents and funds, after
deducting therefrom its charges and its out-of-pocket expenses and
reasonable attorneys' fees incurred in connection with any such court
action, shall relieve the Title Company of all further liability and
responsibility for such documents and funds. The Title Company's receipt
of this Agreement and opening of an escrow pursuant to this Agreement
shall be deemed to constitute conclusive evidence of the Title Company's
agreement to be bound by the terms and conditions of this Agreement
pertaining to the Title Company. Upon Closing, disbursement of funds by
the Title Company shall be made by wire transfer of immediately
available funds pursuant to wiring instructions provided in writing by
the Persons entitled to receive such funds. All funds deposited by
Debtor and FFCA with the Title Company shall be made by wire transfer.
The Title Company is authorized to act upon any statement furnished by
the holder or payee, or a collection agent for the holder or payee, of
any lien on or charge or assessment in connection with the Sites,
concerning the amount of such charge or assessment or the amount secured
by such lien without liability or responsibility for the accuracy of
such statement. The employment of the Title Company as escrow agent
shall not affect any rights of subrogation under the terms of any title
insurance policy issued pursuant to the provisions thereof.
7. Fee. Debtor has paid FFCA $250,000 toward the portion of the Fee
payable pursuant to the Forward Commitment with respect to each Loan and
Equipment Loan, which sum was deemed earned upon FFCA's receipt and, except as
set forth in this Section, is nonrefundable. Debtor shall pay FFCA the portion
of the Fee payable with respect to each Loan and Equipment Loan at the time of
each Closing; provided, however, Debtor shall receive a credit at each such
Closing for a proportionate part (based on the ratio of the principal amount
of the applicable Loan and Equipment Loan to $50,000,000) of the $250,000
portion of the Fee paid pursuant to the Forward Commitment at the Initial
Closing. The remaining portion of the Fee paid by Debtor to FFCA at the time
of each Closing shall be deemed earned at such time.
If Debtor has delivered Property Notices with respect to at least
$50,000,000.00 aggregate principal amount of Loans pursuant to this Agreement,
the ARDC Amended Loan Agreement and the ARHC Loan Agreement during the period
commencing as of the date of the ARHC Loan Agreement and ending on September
30, 1997 (the "Commitment Period"), and FFCA makes Loans during the Commitment
Period pursuant to this Agreement, the ARDC Amended Loan Agreement and the
ARHC Loan Agreement in an aggregate principal amount of less than $50,000,000,
FFCA shall promptly refund to Debtor, without duplication, a proportionate
part of the $250,000 portion of the Fee paid pursuant to the Forward
Commitment at the Initial Closing.
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8. Representations and Warranties of FFCA. The representations and
warranties of FFCA contained in this Section are being made by FFCA to induce
Debtor to enter into this Agreement and consummate each of the Loans, and
Debtor has relied, and will continue to rely, upon such representations and
warranties from and after the execution of this Agreement and each Closing.
FFCA represents and warrants to Debtor as of the date of this Agreement and
each Closing as follows:
A. Organization of FFCA. FFCA is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation and is qualified as a foreign corporation to do business
in any jurisdiction where such qualification is required and in which
the failure so to qualify would have a material adverse effect on the
business, financial condition or operations of FFCA. All necessary
corporate action has been taken on the part of FFCA to authorize the
execution, delivery and performance by FFCA of this Agreement and of the
other documents, instruments and agreements provided for herein.
B. Authority of FFCA. The persons who have executed the Loan
Documents on behalf of FFCA are duly authorized to do so.
C. Enforceability. Upon execution by FFCA (assuming the due
execution by Debtor), this Agreement shall constitute the legal, valid
and binding obligation of FFCA, enforceable against FFCA in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity).
D. Consent. The execution, delivery and performance by FFCA of
this Agreement will not require any consent or approval of or notice to
or other action to, with or by, any federal, state or other governmental
authority or regulatory body.
9. Representations and Warranties of Debtor. The representations and
warranties of Debtor contained in this Section are being made to induce FFCA
to enter into this Agreement and consummate the transactions contemplated
herein, and FFCA has relied, and will continue to rely, upon such
representations and warranties from and after the execution of this Agreement
and each Closing. Debtor represents and warrants to FFCA as of (i) the date of
this Agreement with respect to Debtor and, as applicable, the Sites for which
Loans and Equipment Loans are made as of the date of this Agreement, and (ii)
on each Closing Date with respect to Debtor and, as applicable, the Sites
being financed on such Closing Date (all references to "Site(s)" contained in
this Section 9 shall be deemed to refer only to such Site(s)), as follows:
A. Organization and Authority of Debtor. (i) The Debtor is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and is qualified to do business in any
jurisdiction where such qualification is required and in which the
failure so to qualify would have a Material Adverse Effect.
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All necessary action has been taken on the part of Debtor to authorize
the execution, delivery and performance by Debtor of this Agreement and
of the other documents, instruments and agreements provided for herein.
(ii) The persons who have executed the Loan Documents, all other
documents, instruments and agreements provided for herein and all ground
leases for Sites on behalf of Debtor are duly authorized to do so.
B. Enforceability of Documents. Upon execution by Debtor (assuming
due execution by the other parties thereto), this Agreement, the other
Loan Documents, all other documents, instruments and agreements provided
for herein and all ground leases for Sites shall constitute the legal,
valid and binding obligations of Debtor, enforceable against Debtor in
accordance with their respective terms, except as such enforceability
may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally,
and to general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity).
C. Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of Debtor's knowledge, threatened
against or involving Debtor, the Sites or the Equipment before any court,
arbitrator, or administrative or governmental body which are reasonably
likely to have a Material Adverse Effect.
D. Absence of Breaches or Defaults. Debtor is not, and the
authorization, execution, delivery and performance of this Agreement,
the other Loan Documents, all other documents, instruments and
agreements provided for herein and all ground leases for Sites will not
result, in any breach or default under any other document, instrument or
agreement to which Debtor is a party or by which Debtor, Sites or
Equipment is subject or bound, except as would not have a Material
Adverse Effect. The authorization, execution, delivery and performance
of this Agreement, the other Loan Documents, all other documents,
instruments and agreements provided for herein and all ground leases for
Sites will not result in a violation of any applicable law, statute,
regulation, rule, ordinance, code, rule or order, except as would not
have a Material Adverse Effect and except with respect to licenses and
permits currently held by Arby's that relate to the operation of the
Sites as Arby's Restaurants. Debtor shall obtain such consents and
approvals as soon as reasonably practical after each Closing Date and
shall provide FFCA with evidence of such consents and approvals promptly
after receipt.
E. Utilities. Except as would not have a Material Adverse Effect,
each Site is served by sufficient public utilities to permit the full
utilization of such Site as an Arby's Restaurant and all utility
connection fees and use charges have been paid in full.
F. Compliance With Laws. Debtor has received no written notice and
has no knowledge that each Site does not comply with all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders and approvals of any governmental agencies,
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departments, commissions, bureaus, boards or instrumentalities of the
United States, the states in which the Sites are located and all
political subdivisions thereof, including, without limitation, all
health, building, fire, safety and other codes, ordinances and
requirements, all applicable standards of the National Board of Fire
Underwriters and the Americans With Disabilities Act of 1990, except as
would not have a Material Adverse Effect.
G. Condemnation or Eminent Domain. No condemnation or eminent do-
main proceedings affecting the Sites have been commenced or are pending
and Debtor has not received written notice that any such proceedings
are contemplated.
H. Licenses and Permits. Except as contemplated by subsection D
above or which would not have a Material Adverse Effect, Debtor has
obtained all licenses and permits, both governmental and private,
required to use and operate each Site as an Arby's Restaurant.
I. Condition of Sites. Each Site, including the material Personal
Property and material Equipment, if applicable, thereon is an Arby's
Restaurant, in good condition and repair, ordinary wear and tear
excepted.
J. Environmental. To the best of Debtor's knowledge, after
reasonably diligent inquiry, except as disclosed in the Reports or which
would not have a Material Adverse Effect, no Hazardous Materials have
been used, handled, manufactured, generated, produced, stored, treated,
processed, transferred or disposed of at or on the Sites, except in
compliance with all applicable Environmental Laws, and no Release has
occurred at or on the Sites, except as disclosed in the Reports or which
would not have a Material Adverse Effect. The activities, operations and
business undertaken on, at or about the Sites, including, but not
limited to, any alterations or improvements by Debtor at the Sites, are
and have been at all times, in compliance with all Environmental Laws,
except as disclosed in the Reports or which would not have a Material
Adverse Effect. To the best of Debtor's knowledge, no further action is
required to remedy any Environmental Condition or violation of, or to be
in compliance with, any Environmental Laws, except which would not have
a Material Adverse Effect, and no lien has been imposed on the Sites in
any federal, state or local governmental or quasi-governmental entity in
connection with any Environmental Condition, the violation or threatened
violation of any Environmental Laws or the presence of any Hazardous
Materials on or off the Sites, except as disclosed in the Reports or
which would not have a Material Adverse Effect.
There is no pending or, to the best of Debtor's knowledge, overtly
threatened litigation or proceeding before any court, administrative
agency or governmental body in which any person or entity alleges the
violation or threatened violation by the Debtor of any Environmental
Laws or that Debtor is liable for the presence, Release or placement on
or at the Sites of any Hazardous Materials, nor has Debtor (a) received
any
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written notice that any governmental or quasi-governmental authority or
any employee or agent thereof has determined or threatens to determine
or requires an investigation to determine that there has been a
violation of any Environmental Laws at, on or in connection with the
Sites or that there exists a presence, Release or placement of any
Hazardous Materials on or at the Sites except as disclosed in the
Reports or which would not have a Material Adverse Effect; (b) received
any written notice under the citizen suit provision of any Environmental
Law in connection with the Sites or any facilities, operations or
activities conducted thereon, or any business conducted in connection
therewith; or (c) received any written request for inspection, request
for information, notice, demand, administrative inquiry or any formal or
informal complaint or claim with respect to or in connection with the
violation or threatened violation of any Environmental Laws or existence
of Hazardous Materials, except as disclosed in the Reports or which
would not have a Material Adverse Effect, relating to the Sites or any
facilities, operations or activities conducted thereon or any business
conducted in connection therewith.
K. First Priority Lien. Upon each closing, FFCA shall have a first
priority lien on the Sites pursuant to the Deeds of Trust and UCC-1
Financing Statements and on the Equipment pursuant to the Equipment
Security Agreements and UCC-1 Financing Statements, subject only to
Permitted Exceptions.
L. No Other Agreements and Options. Neither Debtor, the Sites nor
the Equipment are subject to any commitment, obligation, or agreement,
including, without limitation, any right of first refusal, option to
purchase or lease granted to a third party, which could or would prevent
or hinder FFCA in making the Loan or the Equipment Loan, as the case may
be, or prevent or hinder Debtor from fulfilling its material obligations
under this Agreement or the other Loan Documents.
10. Covenants of Debtor. Debtor covenants and agrees that from and after
the Closing Date until all of the Notes, together with all accrued interest
thereon and all other sums due under this Agreement and the other Loan
Documents are paid in full:
A. Reporting Obligations. Debtor will provide FFCA with each of
the following:
(i) Annual Financial Statements. Within 105 days after the
close of each fiscal year of Debtor, the balance sheet of Debtor,
as at the end of such fiscal year and the related statements of
income and retained earnings and of cash flows for such fiscal
year, in each case setting forth comparative figures, if
applicable, for the preceding fiscal year, and examined by
independent certified public accountants of recognized national
standing whose opinion shall not be qualified as to the scope of
audit and as to the status of Debtor as a going concern.
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(ii) Quarterly Financial Statements. As soon as available
(but no earlier than the date that RC/Arby's files its filings
pursuant to the Securities Exchange Act of 1934, as applicable),
and in any event within 50 days after the close of each of the
first three quarterly accounting periods in each fiscal year, the
balance sheet of the Debtor, as at the end of such quarterly
period and the related statements of income and retained earnings
and of cash flows for such quarterly period and for the elapsed
portion of the fiscal year ended with the last day of such
quarterly period, and in each case setting forth comparative
figures, if applicable, for the related periods in the prior
fiscal year, all of which shall be certified by the chief
financial officer or chief accounting officer of Debtor, prepared
in accordance with generally accepted accounting principles
consistently applied, subject to changes resulting from audit and
normal year-end audit adjustments.
(iii) Event of Default. Promptly, but in any event within
five Business Days, after Debtor becomes aware of an Event of
Default, verbal notification (which may be made by telephone) to
an officer of FFCA specifying the nature and period of existence
thereof and what action Debtor is taking or proposes to take with
respect thereto and, promptly thereafter, a written confirmation
to FFCA of such matters.
(iv) Litigation. Within 10 Business Days after Debtor
becomes aware of any action, suit or proceeding pending or
threatened in writing against or involving Debtor and/or one or
more of the Sites, except for those actions, suits or proceedings
(1) for which damages of less than $150,000 have been sought,
threatened or are likely to be incurred, and (2) those actions,
suits or proceedings which Debtor in good faith determines will be
covered by its insurance (including worker's compensation claims),
Debtor shall notify FFCA of such action, suit or proceeding and in
such notice specify the nature thereof, whether the alleged
liability therein is covered by insurance then in effect and, if
so covered, the monetary coverage thereof, and what action Debtor
is taking or proposes to take with respect thereto.
(v) Certificates. At the time of the delivery of the
financial statements provided for above, a certificate of an
officer of Debtor to the effect that, to such person's knowledge,
after reasonably diligent inquiry, no Event of Default exists or,
if any Event of Default does exist, specifying the nature and
extent thereof.
(vi) Auditors' Reports. Promptly upon receipt thereof, a
copy of each other report submitted to Debtor by its independent
accountants in connection with any annual, interim or special
audit made by it of the books of Debtor.
(vii) Other Information. Debtor shall deliver to FFCA
promptly after the receipt of written request therefor (but no
earlier than required under Section
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10.A(i) or (ii) with respect to the matters covered thereby)
information concerning Debtor requested by FFCA that is required
for REIT to satisfy all requirements applicable to REIT pursuant
to the Securities Exchange Act of 1934 and all other regulatory
laws applicable to REIT or to which it is subject or bound;
provided, however, Debtor shall not be required to deliver to FFCA
material non-public information of Debtor. FFCA shall reimburse
Debtor for Debtor's actual out-of-pocket expenses incurred in
providing the information pursuant to this subsection.
B. Intended Use and Zoning. Subject to the terms and conditions of
the Deeds of Trust and to Debtor's rights with respect to substitution
and defeasance set forth in this Agreement, Debtor shall at all times
use each Site principally for the operation of an Arby's Restaurant or a
Dual Concept (the "Permitted Uses"). Such Permitted Uses shall not
violate any zoning or other governmental requirement or encumbrance,
covenant, condition or restriction applicable to the Sites, except to
the extent such violation would not have a Material Adverse Effect.
C. Operation, Maintenance and Repair of Sites. Debtor shall (i)
promptly repair, restore, replace or rebuild, subject to the provisions
of the Deeds of Trust, any portion of the Sites which may become damaged
or in need of repair to at least equal value and of substantially the
same character (to the extent permitted by law) as prior to such damage
or circumstance giving rise to the need for repair; (ii) maintain the
Sites in good condition and repair, subject to reasonable and ordinary
wear and tear, free from actual or constructive waste; (iii) operate,
remodel, update and modernize the Sites in accordance with those
standards adopted from time to time by Arby's on a system-wide basis for
Arby's Restaurants or Dual Concepts, as applicable to operators thereof,
with such remodeling and modernizing being undertaken in accordance with
the Arby's system-wide timing schedule for such activities; (iv) pay all
operating costs of the Sites in the ordinary course of business, subject
to the right of Debtor set forth in the Deeds of Trust to contest such
payments; (v) refrain from any action or correct any condition which
would increase materially the risk of fire or hazard to the Sites or any
portion thereof except in the ordinary course of business; and (vi)
comply with all restrictions, covenants and encumbrances of record with
respect to the Sites and the use thereof except where the failure to
comply would not have a Material Adverse Effect.
D. Gross Sales Reports. (i) Debtor shall keep and maintain at
Debtor's or Arby's principal office full and complete books of account
and records of Gross Sales and business relating to each Site, which
books of account and records shall to the extent applicable be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of Gross Sales shall upon
reasonable notice and during normal business hours be open for
inspection by FFCA, its auditors or other authorized representatives
(upon, at the request of Debtor, execution of a Confidentiality
Agreement) and shall show Gross Sales, claimed exclusions therefrom,
inventories and receipts of merchandise at each Site and daily receipts
from all sales and other transactions on or from each Site. All of Gross
Sales shall be recorded at the time of
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sale and in the presence of the customer and shall be recorded in a cash
register or registers with a cumulative total. Debtor further agrees to
keep at Debtor's or Arby's principal office for at least three (3) years
following the end of each Loan Year all records with respect to the
gross income, sales and occupancy tax returns with respect to such Loan
Year and all pertinent original sales records. Pertinent original sales
records shall include those records which would normally be examined by
an independent accountant pursuant to accepted auditing standards in
performing an audit of Gross Sales.
(ii) At its option, FFCA may at its expense, at any time upon 20
Business Days' prior notice to Debtor, cause a complete audit (including
a physical inventory) to be made by an auditor selected by FFCA of the
entire records and operations of Debtor relating to each Site for the
period covered by any statement issued or required to be issued by
Debtor; provided that, such audit may not occur more than once in any
Loan Year (regardless of whether the audit is with respect to fewer than
all Sites). Debtor shall make available for FFCA's auditor (upon, at the
request of Debtor, execution of a Confidentiality Agreement) within 20
Business Days following FFCA's notice requiring such audit, all of the
books, source documents, accounts, pertinent sales records and income,
sales and occupancy tax reports of Debtor which such auditor deems
reasonably necessary for the purpose of making an audit. If any
statement of Gross Sales previously made by Debtor to FFCA shall be
found to be more than 10% less than the amount of Gross Sales as shown
by such audit, then unless Debtor contests such determination as
provided in subsection (iv) below, Debtor shall immediately pay the cost
of such audit; otherwise the cost of such audit shall be paid by FFCA.
(iii) If, within 20 days after FFCA notifies Debtor (the "Notice")
of a finding by FFCA's auditor of a statement of Gross Sales being found
to be less than the amount of Gross Sales as shown by the audit, Debtor
notifies FFCA that it is disputing such finding, Debtor and FFCA shall
each appoint an independent auditor (other than the auditor performing
FFCA's audit in dispute) which is a nationally recognized accounting
firm and those two auditors shall, within 60 days after the Notice,
mutually and in good faith determine whether the statement of Gross
Sales was less than the actual amount of Gross Sales as shown by the
original audit, and such determination shall be binding on Debtor and
FFCA. If the independent auditors determine that the statement of Gross
Sales was more than 10% less than the actual amount of Gross Sales,
Debtor shall immediately pay the cost of FFCA's original audit which was
in question as well as the cost of the audit performed by the
independent auditors; otherwise, FFCA shall pay all of such costs.
E. Books and Records; Inspection of Sites. (a) Debtor will permit,
upon five Business Days' prior notice to Debtor, officers and designated
representatives of FFCA (upon, at the request of Debtor, execution of a
Confidentiality Agreement) to examine, at FFCA's expense, the books of
account of Debtor and discuss the affairs, finances and accounts of
Debtor with, and be advised as to the same by, its officers and
independent accountants, all at such reasonable times during normal
business hours and at reasonable
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intervals and to such reasonable extent as FFCA may desire. FFCA shall,
and shall cause its representatives to, undertake such review in a
manner that minimizes the disruption to Debtor's operations.
(b) Debtor shall, upon five Business Days' prior written notice
during normal business hours, (i) provide, at FFCA's expense, FFCA and
FFCA's officers, employees, agents, advisors, attorneys, accountants,
architects, and engineers (upon, at the request of Debtor, execution of
a Confidentiality Agreement) with access to the Sites, all drawings,
plans, and specifications for the Sites in possession of Debtor, all
engineering reports relating to the Sites in the possession of Debtor,
the files and correspondence relating to the Sites, and the financial
books and records, relating to the ownership, operation, and maintenance
of the Sites, and (ii) allow such persons to make such inspections,
tests, copies, and verifications as FFCA reasonably considers necessary
at FFCA's expense. FFCA shall, and shall cause its representatives to,
undertake such review in a manner that minimizes the disruption to
Debtor's operations.
F. Payment of Taxes, Etc. Unless Debtor shall contest the amount
or validity thereof in the manner described below, Debtor shall pay all
taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any properties belonging to it,
prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a Lien upon any of its properties.
Debtor may, at its own expense, contest or cause to be contested such
taxes, assessments, governmental charges or levies or other claims (i)
in good faith, (ii) by proper proceedings, (iii) against which adequate
reserves in accordance with generally accepted accounting principles are
being maintained, and (iv) provided the failure to pay such taxes,
assessments and/or governmental charges or levies or other claims will
not result in any imminent danger of one or more Sites being sold,
forfeited or lost by reason of such proceeding.
G. Restriction on Transfer and Encumbrance. Except for the Loan
Documents and the Permitted Exceptions, and as expressly permitted by
this Agreement or any of the other Loan Documents, Debtor shall not,
without the prior written consent of FFCA sell, lease, convey, pledge,
mortgage, assign, transfer, encumber or grant any consensual easements
or other rights or interests of any kind in the Sites, the Equipment or
any of Debtor's rights under the Loan Documents, or permit a Change of
Control, except for sales, assignments and transfers of tangible
Personal Property and/or Equipment at the Sites in the ordinary course
of business that, in the reasonable judgment of Debtor, is not necessary
(after giving effect to any Personal Property and/or Equipment that
replaces it) to run a Site as an Arby's Restaurant or Dual Concept in
accordance with those standards adopted by Arby's from time to time on a
system-wide basis for operations of Arby's Restaurants or Dual Concepts
(collectively, "Transfers"). Notwithstanding the foregoing, Debtor may
lease the Sites as expressly permitted by the Deeds of Trust.
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H. Organization of Debtor. Debtor will continue to be a
corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction and qualified to do business in any
jurisdiction where such qualification is required, except to the extent
the failure to do so would not have a Material Adverse Effect.
I. Utilities. Except to the extent the failure to do so would
not have a Material Adverse Effect, each Site will be served by suffi-
cient public utilities to permit full utilization of such Site as an
Arby's Restaurant or Dual Concept and all utility connection fees and use
charges will be paid in full.
J. Licenses and Permits. Except to the extent the failure to do so
would not have a Material Adverse Effect, Debtor will maintain all
licenses, permits and ingress and egress, both governmental and private,
required to use and operate each Site as an Arby's Restaurant or Dual
Concept.
K. Compliance With Laws, Covenants, Conditions, Restrictions and
Encumbrances. (i) Except to the extent the failure to do so would not
have a Material Adverse Effect, or to the extent Debtor is contesting in
good faith the application of an Applicable Regulation (and the
applicable Sites will not be in any imminent danger of being sold,
forfeited or lost by reason of such contest), Debtor and Debtor's use
and occupation of each Site, and the condition thereof, shall, at
Debtor's sole cost and expense, comply in all respects with all
Applicable Regulations and all covenants, conditions, restrictions and
encumbrances applicable to such Site.
(ii) Without limiting the generality of the other provisions of
this Section, and except to the extent the failure to do so would not
have a Material Adverse Effect, Debtor agrees that it shall be
responsible for complying in all respects with the Americans with
Disabilities Act of 1990, as such act may be amended from time to time,
and all regulations promulgated thereunder (collectively, the "ADA"), as
it affects each Site, including, without limitation, making, to the
extent required by the ADA, changes to remove any architectural or
communications barriers, and providing auxiliary aides and services
within each Site. Debtor further agrees that, except to the extent the
failure to do so would not have a Material Adverse Effect, any and all
alterations made to all Sites while this Deed of Trust is in effect will
comply with the requirements of the ADA.
(iii) Except to the extent the failure to do so would not have a
Material Adverse Effect, Debtor's use of each Site will not result in
the manufacturing, treatment, refining, transportation, generation,
storage, disposal or other release or presence of any Hazardous
Materials on or to such Site.
(iv) Debtor agrees to promptly notify FFCA of any (a) pending or
threatened investigation or inquiry by any governmental authority or of
any remedial obligation of Debtor under any Applicable Regulations or
Environmental Laws which, in either case,
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would have a Material Adverse Effect, and (b) material violation or
alleged violation of any Environmental Laws of which Debtor becomes
aware.
L. Dual Concept. In the event that Debtor elects to use a Site as
a Dual Concept, Debtor shall use commercially reasonable efforts to
provide FFCA with a collateral assignment of franchise rights and
licenses with respect to the restaurant concept other than the Arby's
Restaurant, which collateral assignment shall be consented to by the
franchisor of the Dual Concept other than Arby's; provided, however, the
foregoing collateral assignment shall not be required if such franchisor
does not provide such consent.
11. Relationship of Parties. It is the intent of the parties hereto that
the business relationship created by this Agreement and the other Loan
Documents is solely that of creditor and debtor and has been entered into by
both parties in reliance upon the economic and legal bargains contained in the
Loan Documents. Debtor acknowledges that it has not relied upon, nor may it
hereafter rely upon, the analysis undertaken by FFCA in determining the amount
of the Loans or the Equipment Loans, and such analysis will not be made
available to Debtor. Debtor, independently and without reliance on FFCA and
based on such documents and information as Debtor has deemed appropriate, made
its own financial analysis, legal review and decision to enter into the
transactions contemplated by this Agreement and the other Loan Documents.
Debtor further acknowledges that it is experienced with respect to financial
and credit matters and has made its own independent decision to apply to FFCA
for the Loans and the Equipment Loans and to execute and deliver this
Agreement, the other Loan Documents and all other documents, instruments and
agreements provided for in this Agreement or required to consummate the
transactions contemplated thereunder.
None of the agreements contained in the Loan Documents is intended, nor
shall the same be deemed or construed, to create, as between Debtor and FFCA,
a partnership, association, co-ownership relationship, joint venture or any
other equity participant relationship, or any fiduciary obligation on the part
of FFCA to Debtor, nor do such agreements render FFCA an operator, insider,
control entity, employer in fact or law with respect to the Debtor or its
business affairs. FFCA and Debtor do not intend to make Debtor an agent, legal
representative, subsidiary or employee of FFCA, nor to make FFCA in any way
responsible for the debts, obligations or losses of Debtor. FFCA and Debtor
acknowledge that all of the parties to the transactions contemplated by the
Loan Documents, including, without limitation, RC/Arby's, Arby's, Guarantor,
Debtor and FFCA are experienced with respect to the financial and credit
matters and the structure of the transactions contemplated by this Agreement
and the other Loan Documents. The structure of the transactions contemplated
by this Agreement and the other Loan Documents (i) has been negotiated by such
parties, with the advice of Debtor's Counsel; (ii) is intended to provide to
and confer upon the parties to each Loan Document the rights, obligations and
duties contained in each such Loan Document with respect to such parties and
(iii) is an essential aspect of their bargain. As a material inducement for
the parties to enter into and perform under this Agreement, each party agrees
that it will not seek to have the transactions contemplated by this Agreement
or as provided in each Loan Document
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characterized contrary to the above stated intention of the parties or as
stated in the respective Loan Document.
12. Conditions of each Closing. The obligation of FFCA to make each Loan
and the corresponding Equipment Loan is subject to the fulfillment or waiver
of each of the following conditions precedent with respect to the Site and
Equipment being financed pursuant to such Loan and Equipment Loan (all
references to "Site(s)" and "Equipment" contained in this Section 12 shall be
deemed to refer to only such Site(s) and Equipment):
A. Title; Ground Leases. (i) Title to such Site and Equipment
shall be vested in Debtor, free of all Liens, except Permitted
Exceptions and the lien created by the Deed of Trust, the Equipment
Security Agreement and the UCC-1 Financing Statements. Upon Closing,
FFCA will obtain a valid and perfected first priority lien upon and
security interest in such Site and Equipment, subject only to the
Permitted Exceptions.
(ii) If such Site is subject to a ground lease, the ground lease
shall provide for an initial term which is at least equal in duration to
the term of the corresponding Note (if FFCA agrees in its sole
discretion to finance a Site subject to a ground lease which ground
lease does not have an initial term greater in duration than the term of
the corresponding Note, FFCA shall be permitted to accelerate all of the
remaining payments under such Note upon the expiration of the initial
term or any renewal term which does not extend beyond the term of the
corresponding Note), acknowledge that Debtor owns the improvements
located at such Site during the term of the ground lease, contemplate
the execution and recordation in the applicable county records at or
prior to the Closing of the Loan related to such Site of a memorandum of
the ground lease sufficient for Title Company to insure FFCA's lien on
Debtor's leasehold interest in such ground lease, and otherwise be in
form and substance reasonably satisfactory to FFCA. With respect to each
ground lease executed prior to Debtor's submission of a Property Notice,
and, at FFCA's election, ground leases executed following FFCA's review
and comment, Debtor shall also provide FFCA at or prior to the Closing
for the corresponding Site with an estoppel certificate and consent from
the ground lessor under each such ground lease in form and substance
reasonably satisfactory to FFCA, which estoppel certificate and consent
shall include, without limitation, ground lessor's consent to FFCA's
first priority lien pursuant to the Site Specific Documents (as defined
in the Deed of Trust for such Site) on Debtor's leasehold interest in
the land which is the subject of the ground lease.
B. Condition of Site and Equipment; Invoices. FFCA shall have
inspected and approved such Site and Equipment located at such Site.
Such Site shall be an Arby's Restaurant or Dual Concept for which a
certificate of occupancy and all other governmental licenses and permits
required to operate such Site as an Arby's Restaurant or Dual Concept
have been issued and are in full force and effect, in good condition and
repair, ordinary wear and tear excepted, as determined by FFCA in its
reasonable discretion. Debtor shall have provided FFCA with invoices and
receipts documenting
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and substantiating the Construction Cost of the improvements and
Equipment at each Site to FFCA's reasonable satisfaction.
C. Evidence of Title. FFCA shall have received (i) UCC financing
statement searches and such other evidence as FFCA may reasonably
require showing title to the Equipment in Debtor and establishing FFCA's
first priority lien upon and security interest in the Equipment, subject
only to Permitted Exceptions and (ii) a preliminary title report and
irrevocable commitment (subject to payment of premium) to insure title
by means of a mortgagee's ALTA extended coverage policy of title
insurance (or its equivalent, in the event such form is not issued in
the jurisdiction where such Site is located) for such Site issued by a
Title Company showing good and marketable title in Debtor and committing
to insure FFCA's first priority lien upon and security interest in such
Site (other than the Personal Property and Equipment, if applicable),
subject only to Permitted Exceptions and containing such endorsements as
FFCA may reasonably require.
D. Survey. FFCA shall have received a current ALTA survey of such
Site, the form and substance of which shall be satisfactory to FFCA in
its reasonable discretion.
E. Environmental. FFCA shall have received a Phase I environmen-
tal report with respect to such Site (and a Phase II environmental report,
if necessary, as determined by FFCA in its sole discretion), the form,
substance and conclusions of which shall be satisfactory to FFCA in its
sole discretion.
F. Gap Indemnity and Other Title Company Documents and Deliveries.
Debtor shall have executed and delivered to the Title Company a gap
indemnity acceptable to the Title Company and such other documents and
items as may be reasonably required by the Title Company to consummate
the transactions described in this Agreement.
G. Compliance With Representations, Warranties and Covenants;
Certification. (a) All obligations of Debtor to be complied with prior
to the Closing under the Loan Documents shall have been performed and
complied with in all material respects, and no event shall have occurred
or condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute an Event of
Default hereunder or under the Loan Documents.
(b) Debtor shall have delivered to FFCA a certificate dated as of
the Closing Date certifying, with respect to Debtor and, as applicable,
the Site corresponding to the Loan and Equipment Loan being advanced,
that (i) all representations and warranties of Debtor under the Loan
Documents are true, correct and complete in all material respects as of
such date, (ii) Debtor has performed in all material respects all of its
obligations under the Loan Documents to be complied with prior to the
Closing, and (iii) all
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documents and information delivered to FFCA by Debtor under this
Agreement (other than projections, budgets and other forward looking
financial information, if any, all of which were prepared in good faith
and were based upon reasonable assumptions) are true, correct and
complete in all material respects as of such date, and except for
updates of such materials, that there have been no material changes not
disclosed in writing to FFCA.
H. Proof of Insurance. Debtor shall have delivered to FFCA
certificates of insurance, showing that all insurance required by the
Deed of Trust and the Equipment Security Agreement are in full force and
effect.
I. Opinion of Debtor's Counsel; Opinion of FFCA's Counsel;
Confidentiality Agreement. Simultaneously with the execution of this
Agreement Debtor shall have caused Debtor's Counsel to prepare and
deliver an opinion addressing such matters as listed in Exhibit H
attached hereto. At the time of each Closing, FFCA shall have received
from FFCA's Counsel an opinion addressing such matters as listed in
Exhibit H-1 attached hereto (and Debtor shall deliver a certificate of
its corporate secretary certifying that the resolution of Debtor's board
of directors authorizing the execution, delivery and performance of the
applicable Loan Documents with respect to each of the transactions
contemplated by this Agreement has not been amended, revoked or
rescinded, and remain in full force and effect). At the time of the
execution of this Agreement, Debtor and FFCA shall have executed and
delivered a Confidentiality Agreement.
J. Loan Documents and Other Security Documents. Debtor shall have
delivered to FFCA the Loan Documents and such collateral assignments,
pledges, security agreements and other agreements and information as
FFCA or its counsel shall reasonably require, to ensure that, at FFCA's
election, upon FFCA acquiring title to one or more of the Sites
following its exercise of remedies under the Loan Documents, pursuant to
the License Agreements, FFCA will have all of the rights and obligations
customarily held by franchisees of Arby's Restaurants with respect to
the operation of such Sites as an Arby's Restaurant.
K. Collateral Assignment of License Agreement. Debtor shall have
executed and delivered to FFCA a Collateral Assignment of License
Agreement with respect to such Site.
L. Guaranty; Royalties Payment Agreement. Guarantor shall have
executed and delivered a Guaranty to FFCA with respect to such Site, and
Guarantor and Arby's shall have executed and delivered the Royalties
Payment Agreement.
M. Management Agreement and License Agreement. Debtor shall have
entered into an amendment to the Management Agreement with Arby's and
Debtor and Arby's shall have entered into a License Agreement with
respect to such Site.
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N. Closing Documents. At or prior to the Closing Date, Debtor
shall have executed and delivered or caused to be executed and delivered
to the Title Company or FFCA, as may be appropriate, all documents
required to be delivered by this Agreement. Upon fulfillment or waiver
of all of the above conditions, FFCA with respect to such Site shall
instruct the Title Company to wire transfer funds deposited with it
necessary to close the transaction and the transaction shall close in
accordance with the terms and conditions of this Agreement.
13. Default. (a) Subject to the limitations set forth in subsec-
tions (b) and (c) of this Section, if one or more of the following events
shall have occurred and be continuing, such event or events shall consti-
tute an Event of Default by Debtor:
(1) If Debtor fails to pay when due any amount under any Note,
this Agreement or any other Loan Document;
(2) If any representation or warranty of Debtor in the Loan
Documents was false in any material respect when made, or if Debtor
delivers any statement or account under any Loan Document that is false
in any material respect when delivered;
(3) If Debtor fails to keep or perform in any material respect any
of the terms, covenants or provisions of this Agreement or any other
Loan Document, or if there is a default by Guarantor under any of the
Guaranties;
(4) If Debtor files or notifies FFCA that it intends to file a
petition under the Code, initiates a proceeding under any similar law or
statute relating to bankruptcy, insolvency, reorganization, winding up
or adjustment of debts (collectively, an "Action"), becomes the subject
of either a petition under the Code or an Action which, if involuntary,
Debtor fails to oppose or is not dismissed within 90 days, or admits in
writing its inability to, or be generally unable to, pay its debts as
the same become due;
(5) If a Judgment Lien in the amount of $150,000 or more exists;
(6) If Debtor shall contest the validity or enforceability of any
material provision of this Agreement or any other Loan Document or the
validity or perfection of any lien upon any of the Sites; or
(7) If an Event of Default (as defined in the ARDC Amended Loan
Agreement, the ARHC Loan Agreement, the Tarpon Documents and/or the
Longwood Documents) occurs and is continuing;
provided, however, the occurrence of the events under Sections 13(a)(2) and
13(a)(3) shall, subject to the notice and cure periods set forth in paragraphs
(b) and (c) of this Section, constitute an Event of Default under this
Agreement only if such events are continuing and involve, in the aggregate,
more than 5% of the Sites at any one time. For purposes of the final
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clause of the immediately preceding sentence, Sites shall mean collectively,
the Sites as defined in this Agreement and the ARHC Loan Agreement.
(b) If any event occurs pursuant to subsection (a)(1) above, such event
shall not constitute an Event of Default and FFCA shall not be entitled to
exercise its remedies set forth below unless and until FFCA shall have given
Debtor notice thereof and a period of 10 days from the delivery of such notice
shall have elapsed without such event being cured; provided, however, if
Debtor shall fail to pay when due any amount under any Note, this Agreement or
any other Loan Document, all principal and interest and other sums due under
the Loan Documents shall bear interest at the lesser of the highest rate for
which the undersigned may legally contract or the rate of 18% per annum (the
"Default Rate") from and after the first day after the due date, without
regard to when an Event of Default would otherwise be deemed to occur, of the
amount Debtor failed to pay until such sum and all other sums due hereunder as
a result of such failure are paid, and the Default Rate shall continue to
apply following a judgment in favor of FFCA under the Loan Documents.
(c) If any event described in subsection (a)(2) or (3) above shall
occur, then such event shall not constitute an Event of Default hereunder,
unless otherwise expressly provided herein (and FFCA shall not be entitled to
exercise its remedies set forth below), unless and until FFCA shall have given
Debtor notice thereof and a period of 30 days shall have elapsed, during which
period Debtor (or in the case of a Guaranty, Guarantor) shall diligently
proceed to correct or cure such event, upon failure of which an Event of
Default shall be deemed to have occurred hereunder without further notice or
demand of any kind. If such event described in subsection (a)(2) or (3) cannot
reasonably be cured within such 30-day period, and Debtor is diligently
pursuing a cure of such event, then Debtor shall have a reasonable period to
cure such event, which shall in no event exceed 180 days after receiving
notice of the default from FFCA, upon failure of which an Event of Default
shall be deemed to have occurred hereunder without further notice or demand of
any kind.
(d) Notwithstanding anything to the contrary contained herein, at any
time during the pendency of the cure period described in the preceding
subsection (c), but in no event later than 60 days prior to the end of the
180-day period provided in the preceding subsection (c), Debtor shall have the
right to notify FFCA of Debtor's election to either substitute a Substitute
Site for the Site, if any, which is the basis for the notice delivered by FFCA
to Debtor, or defease the Note and corresponding Equipment Note with respect
to such Site. Each substitution and defeasance shall be subject to the terms
and conditions of Section 5, except as otherwise set forth in this subsection.
During the pendency of such substitution or defeasance, but subject to the
time limitation set forth below, no event which would become an Event of
Default upon expiration of the cure period provided in subsection (c) and
which is the basis for the substitution or defeasance shall be deemed to be an
Event of Default. Debtor shall proceed diligently and in good faith to satisfy
the terms and conditions of the substitution or defeasance. If the
substitution or defeasance is not completed within 90 days of the delivery of
Debtor's notice of substitution or defeasance (but in no event later than the
end of the 180-day period provided in subsection (c)), and the cure period
provided in subsection (c) shall have expired, then unless
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the event which is the basis for the substitution or defeasance has been
otherwise cured or is otherwise cured on or prior to the expiration of the
applicable cure period, an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind; provided that such
90-day period shall be extended (but in no event beyond the earlier to occur
of 60 days after the end of such 90-day period and the expiration of the
180-day period provided in subsection (c)) if the completion of the
substitution or defeasance is delayed by reasons not within Debtor's
reasonable control and Debtor is continuing to proceed diligently and in good
faith to effect such defeasance or substitution.
(e) With respect to the notice set forth in subparagraphs (b) and (c)
above, such notice may be provided or given by a filing of an appropriate
pleading or paper with respect to any case under the Code involving Debtor in
a court or courts of competent jurisdiction, including, by way of example and
not limitation, a notice or other pleading filed pursuant to Section 546(b) of
the Code.
14. Remedies. (a) Upon and during the continuance of an Event of
Default, FFCA may declare all obligations of Debtor under the Notes, this
Agreement and any other Loan Document to be due and payable, and the same
shall thereupon become due and payable without any presentment, demand,
protest or notice of any kind except as otherwise provided herein, and Debtor
hereby waives notice of intent to accelerate the obligations secured by the
Deeds of Trust. Thereafter, FFCA may exercise, at its option, concurrently,
successively or in any combination, all remedies available at law or in
equity, including without limitation any one or more of the remedies available
under the Notes, the Deeds of Trust or any other Loan Document.
(b) Upon and during the continuance of an Event of Default, FFCA shall
be entitled to enforce payment and performance of any obligations secured
hereby and to exercise all rights and powers under the Notes, this Agreement
or under any other Loan Documents or other agreement or any applicable laws
now or hereafter in force, notwithstanding that some or all of the obligations
secured hereby may now or hereafter be otherwise secured, whether by mortgage,
deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance
of this Agreement nor its enforcement shall prejudice or in any manner affect
FFCA's right to realize upon or enforce any other security now or hereafter
held by FFCA, it being agreed that FFCA shall be entitled to enforce this
Agreement and any other security now or hereafter held by FFCA in such order
and manner as it may in its absolute discretion determine. No remedy herein
conferred upon or reserved to FFCA is intended to be exclusive of any other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the Loan Documents to FFCA, or
to which FFCA may be otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
FFCA.
15. Assignment by FFCA. Other than in connection with a Securitization,
FFCA may assign (so long as FFCA Mortgage Corporation retains at least a
majority interest) or participate (so long as FFCA Mortgage Corporation
remains the agent with respect to such participation)
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to any Person in whole or in part the Loan or Equipment Loan (including its
corresponding rights under the Loan Documents); provided, however, and without
limiting the rights of FFCA and its successors and assigns with respect to a
Securitization, FFCA and its successors and assigns shall not assign their
rights or obligations, or sell participations, in the Loan and Equipment Loan
in amounts of less than $1,000,000; and provided, further, that FFCA shall not
assign its right and obligation to make the Loans and Equipment Loans to
Debtor as contemplated herein with respect to Property Notices delivered on or
before September 30, 1997. Any such assignment or participation of the Loan
shall consist of interests in all of the Notes on a pro rata basis, and any
such assignment or participation of the Equipment Loan shall consist of
interests in all of the Equipment Notes on a pro rata basis. Upon the
assignment of any such Loan Documents and/or obligations and the written
assumption by the assignee(s) of such Loan Documents and/or obligations
pursuant to an assignment and assumption agreement customary in form and
substance for similar transactions, FFCA shall automatically be relieved of
its obligations to the extent of such assignment from and after the date of
such assignment.
16. Indemnity. Debtor agrees to indemnify and hold harmless FFCA and its
shareholders, directors, officers, employees, Affiliates, agents, trustees,
successors and assigns (the "Indemnified Parties"), from and against any and
all claims, demands, causes of action, suits, proceedings, liabilities,
damages (including consequential and punitive damages), losses, out-of-pocket
costs and expenses, including reasonable attorneys' fees and expenses
(collectively, the "Losses") which are incurred by the Indemnified Parties
relating to or arising out of (i) the generation, storage, manufacturing,
refining, releasing, transportation, treatment, disposal or other presence of
any Hazardous Materials on or about the Sites, (ii) Debtor's ownership, use or
operation of the Sites or (iii) any Event of Default, except to the extent
that such Losses arise out of the gross negligence or willful misconduct of
any of the Indemnified Parties.
17. Miscellaneous Provisions.
A. Notices. All notices, demands, designations, certificates,
requests (including, without limitation, requests for documents by third
parties), offers, consents, approvals, appointments or other instruments
required or permitted to be given by either party pursuant to this
Agreement, the Notes, the Deeds of Trust and the other Loan Documents
shall be in writing and given by (i) hand delivery, (ii) facsimile,
(iii) express overnight delivery service or (iv) certified or registered
mail, return receipt requested, and shall be deemed to have been
delivered upon (a) receipt, if hand delivered, (b) transmission with
confirmation, if delivered by facsimile, except if such facsimile is
transmitted other than during business hours (business hours being
defined as 8 a.m. to 6 p.m. in the location of the recipient during
Business Days), such transmission shall be deemed to have occurred the
next Business Day, (c) the next Business Day, if delivered by express
overnight delivery service, or (d) the third Business Day following the
day of deposit of such notice with the United States Postal Service, if
sent by certified or registered mail, return receipt requested. Notices
shall be provided to the parties and addresses (or facsimile numbers, as
applicable) specified below:
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If to Debtor: Arby's Restaurant Holding Company
1000 Corporate Drive
Fort Lauderdale, FL 33334
Attention: Christine C. Marshall, Esq.
Vice President, Acting General Counsel
Telephone: (954) 351-5635
Telecopy: (954) 351-5619
with a copy to: Brian L. Schorr, Esq.
Executive Vice President and General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
If to FFCA: Stephen G. Schmitz
Senior Vice President Corporate Finance
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2225
with a copy to: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
or to such other address or such other person as any party may from time
to time hereafter specify to the other parties in a notice delivered in
the manner provided above.
The addresses and telecopy numbers provided herein are
conclusively deemed to be valid, and notice given in compliance with
this subsection is conclusively presumed
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to be proper and adequate, unless a written change of address and/or
telecopy number is provided to all parties listed above in accordance
with the written notice provisions of this subsection.
B. Broker's Commission. FFCA and Debtor represent and warrant to
each other that they have dealt with no real estate or mortgage broker,
agent, finder or other intermediary in connection with the transactions
contemplated by this Agreement. FFCA and Debtor shall indemnify and hold
each other harmless from and against any costs, claims or expenses,
including attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section 17.B.
C. Waiver and Amendment. No provisions of this Agreement shall be
deemed waived or amended except by a written instrument setting forth
the matter waived or amended and signed by the party against which
enforcement of such waiver or amendment is sought; provided, however,
with respect to the consent of the holder of the Loan Documents to any
such waiver or amendment not involving (1) the reduction in the rate of
or extension of the time for payment of interest on any Note, (2) the
reduction in the principal or extension of the fixed maturity of any
Note, (3) the modification of the prepayment provisions of Section 2,
(4) permitting the payment of any Note in money other than that stated
in the Note, (5) releasing any guarantor from its unconditional
obligation to guaranty payment and performance in respect of any royalty
payments under the License Agreements, (6) the subordination of the
obligations of the holders of the Notes to any other indebtedness of the
Debtor, or (7) the release of any or all of the collateral from the
Liens created by the Loan Documents (other than in connection with
defeasance or substitution), if FFCA has participated or assigned all or
part of its interests in the Loan Documents (other than in the context
of a Securitization), any such waiver or amendment shall only require
the consent of the holders of a majority in interest of the then
outstanding aggregate principal amount of the Loan and the Equipment
Loan. Waiver of any matter shall not be deemed a waiver of the same or
any other matter on any future occasion.
D. Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
E. Maximum Rate of Interest. Notwithstanding anything to the
contrary contained in any of the Loan Documents, the obligations of
Debtor to FFCA under this Agreement, the Notes, the Deeds of Trust and
any other Loan Documents are subject to the limitation that payments of
interest and fees to FFCA shall not be required to the extent that
receipt of any such payment by FFCA would be contrary to provisions of
applicable law limiting the maximum rate of interest that may be charged
or collected by FFCA. The portion of any such payment received by FFCA
that is in excess of the maximum amount of interest permitted by such
provisions of law shall be credited to the principal balance of the Loan
or if such excess portion exceeds the outstanding principal
01/514412.5
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balance of this Note, then such excess portion shall be refunded to
Debtor. All interest paid or agreed to be paid to FFCA shall, to the
extent permitted by applicable law, be amortized, prorated, allocated
and/or spread throughout the full term of the Loan (including, without
limitation, the period of any renewal or extension thereof) so that
interest for such full term shall not exceed the maximum amount
permitted by applicable law.
F. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable,
the remainder shall remain in full force and effect, and such
unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed
therein.
G. Construction Generally. This is an agreement among parties who
are experienced in sophisticated and complex matters similar to the
transaction contemplated by this Agreement and is entered into by both
parties in reliance upon the economic and legal bargains contained
herein and shall be interpreted and construed in a fair and impartial
manner without regard to such factors as the party which prepared the
instrument, the relative bargaining powers of the parties or the
domicile of any party. Debtor and FFCA were each represented by legal
counsel competent in advising them of their obligations and liabilities
hereunder.
H. Other Documents. Each of the parties agrees to sign such other
and further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover all of its attorneys' fees
and other costs in addition to any other relief to which it may be
entitled.
J. Entire Agreement. This Agreement and the other Loan Documents
constitute the entire agreement between the parties with respect to the
Loan, and there are no other representations, warranties or agreements,
written or oral, between Debtor and FFCA with respect to the Loan. This
Agreement supersedes all other agreements with respect to the subject
matter hereto, including, without limitation, the Forward Commitment and
any inconsistencies between this Agreement and the Forward Commitment
shall be construed in accordance with this Agreement.
K. Forum Selection; Jurisdiction; Venue; Choice of Law. For
purposes of any action or proceeding arising out of this Agreement, the
Debtor and FFCA hereby expressly submit to the jurisdiction of all
federal and state courts located in the States of Arizona and New York
and each of the parties hereto consents that it may be served with any
process or paper by certified or registered mail at the addresses for
notice pursuant to this Agreement or by personal service within or
without the States of Arizona and
01/514412.5
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New York in accordance with applicable law. Furthermore, each of the
parties hereto waives and agrees not to assert in any such action, suit
or proceeding that it is not personally subject to the jurisdiction of
such courts, that the action, suit or proceeding is brought in an
inconvenient forum or that venue of the action, suit or proceeding is
improper. It is the intent of the parties hereto that all provisions of
this Agreement shall be governed by and construed under the laws of the
State of Arizona. Nothing contained in this Section shall limit or
restrict the right of FFCA to commence any proceeding in the federal or
state courts located in the state in which a Site is located to the
extent FFCA deems such proceeding necessary or advisable to exercise
remedies available under this Agreement or the other Loan Documents and
which may only be enforced in such courts.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Debtor and FFCA and their respective successors and
permitted assigns and designees, including, without limitation, any
United States trustee, any debtor in possession or any trustee appointed
from a private panel. References in the Loan Documents to FFCA shall
include the successors and permitted assigns of FFCA.
N. Survival. All representations, warranties, agreements,
obligations and indemnities of Debtor and FFCA set forth in this
Agreement shall survive each Closing.
O. Waiver of Jury Trial and Punitive Damages. DEBTOR AND FFCA
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY OF THE
PARTIES HERETO AGAINST ANY OTHER PARTY HERETO OR ITS RESPECTIVE
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT TO A TRIAL BY
JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO SEEK PUNITIVE DAMAGES
FROM ANY OTHER PARTY HERETO WITH RESPECT TO ANY AND ALL ISSUES PRESENTED
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY DEBTOR OR
FFCA AGAINST ANY OTHER PARTY HERETO OR ITS RESPECTIVE SUCCESSORS WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE
WAIVER BY DEBTOR AND FFCA OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE
DAMAGES
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HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
P. Calendar Days. All references to days in the Loan Documents
shall mean calendar days unless an express reference to Business Days is
made.
Q. Securitization. A material inducement to FFCA's closing of the
transaction contemplated by this Agreement is the ability of FFCA to
complete an investment grade rated securitized financing with respect to
the Notes and the Equipment Notes through a real estate mortgage
investment conduit ("REMIC") or other asset securitization vehicle
selected by FFCA (the "Securitization"), in accordance with all
requirements which may be imposed by the investors or the rating
agencies involved in such Securitization, as selected by FFCA, or which
may be imposed by applicable securities, tax or other laws or
regulations, including, without limitation, laws which deal with FFCA's
status as a real estate investment trust or a qualified subsidiary of a
real estate investment trust. Debtor agrees, and will cause Arby's and
Guarantor, to cooperate in good faith with FFCA in (i) providing such
documents, financial and other data, and other information and materials
which would typically be required of Arby's, Guarantor, Debtor or FFCA,
or which are specifically required in connection with the
Securitization, by the investors or selected rating agencies as it
relates to the completion of the Securitization; provided, however, that
(x) the obligation of Debtor, Arby's and Guarantor to deliver at FFCA's
request such documents, information and materials to third-parties shall
be conditioned upon the execution and delivery by the recipient thereof
of a Confidentiality Agreement, except as otherwise provided in this
Section, and (y) to the extent the Loan Documents stipulate time periods
for the delivery of information of the nature requested by FFCA, Arby's,
RC/Arby's and Guarantor shall not be required to deliver such
information prior to the expiration of the applicable time periods
(otherwise, such information shall be delivered promptly), and (ii)
amending the terms of the transactions under the Management Agreement,
the Contribution Agreement, this Agreement and the other Loan Documents
to the extent reasonably necessary so as to satisfy the requirements of
investors or selected rating agencies involved in such Securitization,
so long as such amendments would not have a material adverse effect on
any of the parties (other than FFCA and REIT) to the transactions
described in this Agreement nor result in the Loan Documents being more
burdensome to any of such parties (other than FFCA or REIT).
Debtor shall not be responsible for any actual and reasonable
out-of-pocket attorneys' fees or other expenses incurred by FFCA, Debtor
or Guarantor in connection with the Securitization or Debtor's,
RC/Arby's or Guarantor's cooperation with FFCA's Securitization efforts;
FFCA shall be required to reimburse Debtor, Arby's, RC/Arby's or
Guarantor for any of their actual and reasonable out-of-pocket expenses
(including, without limitation, attorney's fees and expenses) incurred
in cooperating with FFCA with respect to the Securitization provided
such expenses are reasonable and unless the
01/514412.5
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information and materials provided by them are otherwise required at
such time to be provided by Debtor to FFCA pursuant to the Loan
Documents.
At such time as FFCA undertakes the Securitization, FFCA agrees to
use its best efforts to be and remain the master or special servicer of
the Loan and Equipment Loan under and subject to the applicable pooling
and/or servicing agreement during the period that securities issued in
connection with the Securitization remain outstanding.
The trustee pursuant to the applicable pooling and servicing
agreement or similar agreements (collectively, the "Trustee") entered
into in connection with a Securitization (collectively, the
"Securitization Documents"), and the certificateholders or investors of
certificates issued in connection with the applicable pooling and
servicing agreement (collectively, the "Certificateholders"), shall not
be subject to the terms and conditions of the Confidentiality Agreement
provided that:
(i) the Trustee, on behalf of itself and the Certificateholders,
are bound pursuant to the Securitization Documents by confidentiality
provisions therein that are substantially in the form of the
Confidentiality Agreement (the "Securitization Provisions");
(ii) all reports delivered by a Trustee to Certificateholders
contain a legend indicating that the contents of such reports are con-
fidential; and
(iii) all securities offering documents evidencing the
Securitization (the "Securities Offering Documents") provide that all
Certificateholders, by accepting the certificates evidencing their
investment in the securities issued in connection with such
Securitization, are bound by the Securitization Provisions.
Notwithstanding the foregoing, if a Certificateholder requests
financial information that it is entitled to receive under the
Securities Offering Documents with respect to ARHC and/or Guarantor
other than that financial information which is contained in the reports
to be delivered by the Trustee to such Certificateholder pursuant to the
applicable pooling and servicing agreement, and such financial
information would otherwise be deemed to be Confidential Information (as
defined in the Confidentiality Agreement), such Certificateholder shall
be required by the Trustee to execute a confidentiality agreement
containing the Securitization Provisions (the "Securitization
Confidentiality Agreement") as a condition precedent to receiving such
requested financial information; provided, however, if such
Certificateholder is a chain restaurant company, such Certificateholder
shall not be entitled to receive such requested financial information
unless ARHC and/or Guarantor, as applicable, depending on whether the
information requested concerns such party, consent(s) to the release of
such information.
Upon written notice from ARHC, FFCA shall demand that the Trustee
and Certificateholders comply with the Securitization Confidentiality
Agreement. FFCA
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agrees and acknowledges that ARHC is an intended third-party beneficiary
of the Securitization Confidentiality Agreement and the terms and
conditions of this Section.
Upon FFCA's assignment of this Agreement to the Trustee pursuant
to the applicable pooling and servicing agreement, FFCA, ARHC and
Guarantor acknowledge and agree that the Trustee, as assignee of FFCA,
will have no further obligation to fund Loans and Equipment Loans
pursuant to this Agreement. Notwithstanding the foregoing, the
obligation of FFCA and REIT to provide ARHC with the unfunded Loan and
Equipment Loan commitments on the terms and conditions as set forth in
this Agreement are not limited. FFCA and ARHC agree that they shall
enter into a new loan agreement within thirty (30) days following the
Securitization (the "Substitute Loan Agreement"), the material terms of
which will be substantially similar to the outstanding commitment of
FFCA to ARHC pursuant to this Agreement (including, without limitation,
the guaranty by Guarantor of ARHC's Substitute Loan Agreement
obligations.
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IN WITNESS WHEREOF, Debtor and FFCA have entered into this Agreement as
of the date first above written.
FFCA:
FFCA MORTGAGE CORPORATION,
a Delaware corporation
By /s/ STEPHEN G. SCHMITZ
---------------------------
Stephen G. Schmitz
Senior Vice President Corporate Finance
Debtor:
ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By /s/ DAVID L. DORFF
-------------------------
David L. Dorff
Senior Vice President and
Chief Financial Officer
This Agreement is being executed by REIT, the holder of all of the capital
stock of FFCA, solely for the purpose of guaranteeing the payment and
performance of FFCA's obligations under the Loan Documents. REIT acknowledges
that its guarantee of FFCA's obligations under the Loan Documents was a
material inducement for Debtor and Guarantor to enter into the Loan Documents
and that each such person has relied upon the guarantee of REIT as evidenced
hereby.
FRANCHISE FINANCE CORPORATION
OF AMERICA, a Delaware corporation
By /s/ STEPPHEN G. SCHMITZ
--------------------------
Stephen G. Schmitz
Senior Vice President Corporate Finance
01/514412.5
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STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on September 10,
1996 by Stephen G. Schmitz, Senior Vice President Corporate Finance of FFCA
Mortgage Corporation, a Delaware corporation, on behalf of the corporation.
/s/ KATHY TRAINOR
-----------------------
Notary Public
My Commission Expires:
May 19, 1999
- ---------------
STATE OF FLORIDA ]
] SS.
COUNTY OF BROWARD ]
The foregoing instrument was acknowledged before me on September 4, 1996
by David L. Dorf, Senior Vice President and Chief Financial Officer of Arby's
Restaurant Holding Company, a Delaware corporation, on behalf of the
corporation.
/s/ MARJORIE E. FIGUEROA
------------------------
Notary Public
My Commission Expires:
August 14, 1999
- ---------------
01/514412.5
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<PAGE>
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on September 10, 1996
by Stephen G. Schmitz, Senior Vice President Corporate Finance of Franchise
Finance Corporation of America, a Delaware corporation, on behalf of the
corporation.
/s/ KATHY TRAINOR
------------------------
Notary Public
My Commission Expires:
May 19. 1999
- --------------------
01/514412.5
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<PAGE>
EXHIBIT A
SITES DESCRIPTION
01/514412.5
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<PAGE>
EXHIBIT A
FFCA Number FFCA Loan Closing
Arby's Number Location Amount Date
8100-3750 3224 Wilmington Rd. $ 525,000 9/6/96
1145 New Castle, PA 16105
8100-3754 6192 Steubenville Pike $ 650,000 9/6/96
1414 McKees Rock, PA 15136
8100-3760 5030 Route 6 $ 425,000 9/6/96
1691 Gibsonia, PA 15044
<PAGE>
EXHIBIT A-1
APPROVED DEFEASANCE ACCOUNT INSTITUTIONS
01/514412.5
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<PAGE>
Short Defeasance Account Institution Listing
1. Bank of America
2. Bank of New York
3. Boston Safe Deposit Co.
4. Chase Manhattan Bank, N.A.
5. Chemical Bank New York
6. First National Bank of Boston
7. First National Bank of Chicago
8. NationsBank
9. Norwest
10. State Street Bank & Trust Co. Boston
<PAGE>
EXHIBIT B
FORM OF NOTE
01/514412.5
Arby's
<PAGE>
PROMISSORY NOTE
Dated as of , 199
$ Scottsdale, Arizona
ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation ("Debtor"),
for value received, promises to pay the principal sum of
DOLLARS ($ ) and to
pay interest, in arrears, on the unpaid principal amount of this Note from the
date hereof to maturity at the rate of 10.125% per annum (the "Base Interest
Rate"), to the order of FFCA MORTGAGE CORPORATION, a Delaware corporation, or
holder ("Holder"), at its office at 17207 North Perimeter Drive, Scottsdale,
Arizona 85255, or at such other place as Holder may designate in writing from
time to time, on or before , 201 , or the first Business Day preceding such
date if such date is not a Business Day (the "Maturity Date"), as herein
provided.
This Note is issued pursuant to and entitled to the benefits of that
certain Loan Agreement dated as of , 1996 between Debtor and Holder (the "Loan
Agreement"). The capitalized terms which are not otherwise defined in this
Note shall have the meanings set forth in the Loan Agreement. The terms and
conditions of the Loan Agreement are incorporated in this Note by reference.
In the event that any term of this Note shall be inconsistent with the Loan
Agreement, the Loan Agreement shall govern. This Note relates to Debtor's
restaurant located at or such Substitute Site resulting from Debtor's right of
substitution of the Site as provided in the Loan Agreement (the "Site").
Interest on the principal amount of this Note at the Base Interest Rate
for the period commencing with the date of this Note through the last day of
the month in which this Note is dated shall be due and payable on the date of
this Note. Thereafter, principal and interest in arrears at the Base Interest
Rate shall be due and payable in consecutive monthly installments of DOLLARS
($
) commencing on , 1, 199 , or the first Business Day preceding
such date if such date is not a Business Day, and continuing on the first day
of each month thereafter, or the first Business Day preceding such date if
such date is not a Business Day, until maturity of this Note on the Maturity
Date, at which time the outstanding principal and all accrued and unpaid
interest, together with all other amounts due and payable under the Loan
Documents, shall be due and payable.
Each payment of principal and interest under this Note shall be applied
first toward any amounts under this Note which are due and unpaid, including,
without limitation, payment of all Costs (as herein defined), then to accrued
interest, and the balance, if any, shall be applied to the unpaid principal
balance of this Note.
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07/23/96
<PAGE>
This Note may be prepaid only in accordance with the terms and
conditions provided in the Loan Agreement. Upon a partial prepayment of the
Note as permitted by the Loan Agreement, the amount prepaid shall be applied
to the outstanding indebtedness under the Note and the Note shall be
reamortized over the remaining term of the Note.
Upon and during the continuance of an Event of Default under the Deed of
Trust with respect to the Site [or in the event that the term of the Ground
Lease (as defined in the Deed of Trust) is not extended to a date beyond the
Maturity Date] (collectively, an "Acceleration Event"), then upon such an
Acceleration Event, time being of the essence hereof, Holder may declare the
entire unpaid principal balance of this Note and the corresponding Equipment
Note, accrued interest, if any, and all other sums due under this Note, the
Deed of Trust and the corresponding Equipment Note and Equipment Security
Agreement, due and payable at once without written notice to or demand from
Debtor and exercise all rights and remedies under this Note, the Deed of Trust
and the corresponding Equipment Note and Equipment Security Agreement. Subject
to Sections 13 and 14 of the Loan Agreement (including, without limitation,
the provisions contained in Section 13(a)(3) and the proviso at the end of
Section 13(a)(7)), upon and during the continuance of an Event of Default
under the Loan Agreement, then, in such event, time being of the essence
hereof, Holder may declare the entire unpaid principal balance of the Notes
and the Equipment Notes, and all other sums due under Loan Documents and any
other document further securing the Notes and the Equipment Notes due and
payable at once without written notice to or demand from Debtor and exercise
all rights and remedies under the Loan Documents. Upon any such Acceleration
Event any payments received by Holder under this Note shall be applied as
Holder may determine in its sole discretion; provided however, that upon any
Acceleration Event which pertains solely to the Site and is not also an Event
of Default with respect to any other Sites, any payments received by Holder
under this Note shall be applied toward the obligations of Debtor due under
the Site Specific Documents (as defined in the Deed of Trust for the Site) as
Holder may determine in its sole discretion.
All principal and interest and other sums due under this Note, the Deed
of Trust and the other Loan Documents shall bear interest at the lesser of the
highest rate for which the undersigned may legally contract or the rate of 18%
per annum (the "Default Rate") from and after the first day after the due
date, without regard to when an Event of Default would otherwise be deemed to
occur, until all such sums due hereunder and thereunder are paid. The Default
Rate shall continue to apply following a judgment in favor of Holder under
this Note.
Except as provided in the Loan Agreement, all payments of principal and
interest due hereunder shall be made without any deduction or setoff
whatsoever. All amounts payable pursuant to this Note, the Loan Agreement and
the other Loan Documents shall be payable in lawful money of the United States
of America and in the manner provided in the Loan Agreement.
01/518087.02
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FFCA No. 8000-
07/23/96
2
<PAGE>
No delay or omission on the part of Holder in exercising any remedy,
right or option under this Note shall operate as a waiver of such remedy,
right or option. In any event, a waiver on any one occasion shall not be
construed as a waiver or bar to any such remedy, right or option on a future
occasion. Except as otherwise provided in this Note or in the other Loan
Documents, Debtor hereby waives presentment, demand for payment, notice of
dishonor, notice of protest, and protest, and all other notices or demands in
connection with delivery, acceptance, performance, default or endorsement of
this Note.
All notices, consents, approvals or other instruments required or
permitted to be given by either party pursuant to this Note shall be in
writing and given in the manner as required by the Loan Agreement.
Should any indebtedness represented by this Note be collected at law or
in equity, or in bankruptcy or any other proceeding, or should this Note be
placed in the hands of attorneys for collection after default, Debtor shall
pay, in addition to the principal and interest due and payable hereon, all
costs of collecting or attempting to collect this Note (the "Costs"),
including, without limitation, reasonable attorneys' fees and expenses
(including those fees and expenses incurred in connection with any appeal)
whether or not a judicial action is commenced by Holder.
Except as provided in the Loan Agreement, this Note may not be amended
or modified other than pursuant to a written agreement duly executed by Debtor
and Holder.
Notwithstanding anything to the contrary contained in any Loan Document,
the obligations of Debtor to Holder under this Note and any other Loan
Document are subject to the limitation that payments of interest and other
fees to Holder shall not be required to the extent that receipt of any such
payment by Holder would be contrary to provisions of applicable law limiting
the maximum rate of interest that may be charged or collected by Holder. The
portion of any such payment received by Holder that is in excess of the
maximum interest permitted by such provisions of law shall be credited to the
principal balance of the Loan or if such excess portion exceeds the
outstanding principal balance of this Note, then such excess portion shall be
refunded to Debtor. All interest paid or agreed to be paid to Holder shall, to
the extent permitted by applicable law, be amortized, prorated, allocated
and/or spread throughout the full term of the Note so that interest for such
full term shall not exceed the maximum amount permitted by applicable law.
For purposes of any action or proceeding arising out of this Note,
Debtor and Holder expressly submit to the jurisdiction of all federal and
state courts located in the States of Arizona and New York. Each such Person
consents that it may be served with any process or paper by certified or
registered mail at the addresses for notice provided in the Loan Agreement or
by personal service within or without the States of Arizona and New York in
accordance with applicable law. Furthermore, each such Person waives and
agrees not to assert in any such
01/518087.02
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FFCA No. 8000-
07/23/96
3
<PAGE>
action, suit or proceeding that it is not personally subject to the
jurisdiction of such courts, that the action, suit or proceeding is brought in
an inconvenient forum or that venue of the action, suit or proceeding is
improper. It is the intent of each such Person that all provisions of this
Note shall be governed by and construed in accordance with the laws of the
State of Arizona. Nothing contained in this paragraph shall limit or restrict
the right of Holder to commence any proceeding in the federal or state courts
located in the state in which the Site is located to the extent Holder deems
such proceeding necessary or advisable to exercise remedies available under
the Loan Documents and which may only be enforced in such courts.
This Note shall be binding upon Debtor and inure to the benefit of
Holder, and their respective successors and permitted assigns, including,
without limitation, any United States trustee, any debtor in possession or any
trustee appointed from a private panel.
DEBTOR AND HOLDER (BY ACCEPTING THIS NOTE) HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER OR ITS RESPECTIVE
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS NOTE, THE RELATIONSHIP OF HOLDER AND DEBTOR, DEBTOR'S USE OR OCCUPANCY OF
THE SITE, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY
REMEDY. THIS WAIVER BY SUCH PERSONS OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY
JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND HOLDER (BY ACCEPTING THIS NOTE) HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE
DAMAGES FROM THE OTHER WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST
THE OTHER OR ITS RESPECTIVE SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT
OF OR IN CONNECTION WITH THIS NOTE OR ANY DOCUMENTS CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY DEBTOR AND HOLDER OF ANY RIGHT EITHER MAY HAVE
TO SEEK PUNITIVE DAMAGES HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
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FFCA No. 8000-
07/23/96
4
<PAGE>
IN WITNESS WHEREOF, Debtor has executed and delivered this Note
effective as of the date first set forth above.
ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By
Printed Name
Its
01/518087.02
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07/23/96
5
<PAGE>
EXHIBIT C
FORM OF DEED OF TRUST
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<PAGE>
DEED OF TRUST,
ASSIGNMENT OF RENTS AND LEASES
AND
SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT (this "Deed of Trust") is made as of , 199 among ARBY'S
RESTAURANT HOLDING COMPANY, a Delaware corporation ("Debtor"), whose address
is 1000 Corporate Drive, Fort Lauderdale, Florida 33334, , ,
("Trustee"), whose address is , and FFCA MORTGAGE
CORPORATION, a Delaware corporation ("Beneficiary"), whose address is 17207
North Perimeter Drive, Scottsdale, Arizona 85255.
PRELIMINARY STATEMENT:
The capitalized terms used in this Deed of Trust, if not elsewhere
defined herein, have the meanings set forth in Article I. Debtor holds [fee
simple interest in the Site] [a leasehold estate in the Land and owns the
Improvements], subject to Permitted Exceptions. Debtor is executing this Deed
of Trust for the purpose of granting the interest of Debtor in and to the
Trust Estate (as defined in the Granting Clauses below) as security for the
obligations arising under the promissory note dated as of even date herewith,
and any amendments thereto or extensions or modifications thereof, in the
original principal amount of $ executed by Debtor and payable to Beneficiary
with respect to the Site (the "Note"), the other Notes and the other Loan
Documents. Except as otherwise provided in Section 5 of the Loan Agreement,
the Trust Estate shall be and remain subject to the lien of this Deed of Trust
and shall constitute security for the Note, the other Notes and the other Loan
Documents, so long as Debtor's obligations thereunder remain outstanding.
GRANTING CLAUSES:
Debtor, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
by these presents does hereby create a security interest in, mortgage, grant,
bargain, sell, assign, pledge, give, transfer, set over and convey unto
Trustee and to its successors and assigns IN TRUST WITH POWER OF SALE,
01/515466.3
FFCA No. 8100-
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for the benefit and security of Beneficiary, all of Debtor's estate, right,
title and interest in, to and under any and all of the following property (the
"Trust Estate"), subject only to Permitted Exceptions:
Site, Rents and Derivative Interests
The Site; all rents, issues, profits, royalties, income and other
benefits derived by Debtor from the Site (collectively, the "Rents"); to the
extent permitted by the applicable lease or sublease, all estate, right, title
and interest of Debtor in and to all leases or subleases covering the Site or
any portion thereof now or hereafter existing or entered into, including,
without limitation, all cash or security deposits, advance rentals and
deposits or payments of similar nature; all right, title and interest of
Debtor in and to any greater estate in the Site owned or hereafter acquired;
all interests, estate or other claims, both in law and in equity, which Debtor
now has or may hereafter acquire in the Site; all easements, rights-of-way and
rights used in connection therewith or as a means of access thereto, and all
tenements, hereditaments and appurtenances thereof and thereto, and all water
rights and shares of stock evidencing the same; all right, title and interest
of Debtor, now owned or hereafter acquired, in and to any land lying within
the right-of-way of any street, open or proposed, adjoining the Site and any
and all sidewalks, alleys and strips and gores of land adjacent to or used in
connection with the Site;
Personal Property
All right, title and interest of Debtor in and to all tangible personal
property now owned or hereafter acquired by Debtor which is now or at any time
hereafter located on or at the Site and used or intended for use in connection
therewith, including, without limitation, all fixtures, building materials
stored on the Site, goods, machinery, tools, equipment (including fire
sprinklers and alarm systems, air conditioning, heating and refrigerating
equipment, equipment for electronic monitoring, entertainment, recreation,
window or structural cleaning, maintenance, exclusion of vermin or insects,
removal of dust, refuse or garbage and all other equipment of every kind), all
indoor and outdoor furniture (including tables, chairs, planters, desks,
sofas, shelves, lockers and cabinets), books, records, manuals, computer
systems, communication systems, wall safes (other than the contents thereof),
furnishings, appliances, rugs, carpets and other floor coverings, draperies
and drapery rods and brackets, awnings, window shades, venetian blinds,
curtains, lamps, chandeliers and other lighting fixtures and maintenance and
other supplies located at the Site (the "Personal Property"). Subject to the
provisions of Section 3.03, Personal Property shall not include Equipment at
the Site, if applicable, until such time as Debtor satisfies all of its
obligations under the Equipment Note and the Equipment Security Agreement;
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Intangibles
To the extent permitted by applicable law or the applicable contract or
agreement, all of Debtor's interest in all existing and future accounts,
contract rights, general intangibles, files, books of account, agreements,
license agreements, permits, licenses and certificates necessary or desirable
in connection with the acquisition, ownership, leasing, construction,
operation, servicing or management of the Trust Estate, whether now existing
or entered into or obtained after the date hereof, and all existing and future
telephone numbers and listings in any way relating to the Trust Estate or any
portion thereof; and
Claims and Awards
All the estate, interest, right, title, other claim or demand, including
claims or demands with respect to the proceeds of insurance in effect with
respect thereto, which Debtor now has or may hereafter acquire in the Trust
Estate, and any and all awards made for the taking by eminent domain, or by
any proceeding or purchase in lieu thereof, of the whole or any part of the
Trust Estate, including, without limitation, any awards resulting from a
change of grade of streets and awards for severance damages, and subject to
the provisions of this Deed of Trust, upon and during the continuance of an
Event of Default, Debtor hereby authorizes, directs and empowers Beneficiary,
at its option, on Debtor's behalf, or on behalf of the successors or assigns
of Debtor, to adjust, compromise, claim, collect and receive such proceeds and
to give proper receipts and acquittances therefor.
Together with all proceeds and products of the foregoing.
TO HAVE AND TO HOLD the Trust Estate hereby granted or mortgaged or
intended to be granted or mortgaged, unto Trustee, and its successors in
trust, heirs and assigns.
THIS DEED OF TRUST SHALL SECURE THE FOLLOWING INDEBTEDNESS AND
OBLIGATIONS:
(i) Payment of indebtedness evidenced by the Note and the other
Notes;
(ii) Payment of all other indebtedness and performance of all
other obligations and covenants of Debtor contained in any Loan
Document, any Longwood Document and/or any Tarpon Document, together
with any other instrument given to evidence or further secure the
payment and performance of any obligation secured hereby or thereby; and
(iii) Payment of all other sums which may hereafter be owed by
Debtor or their successors or assigns pursuant to the Loan Documents to
Beneficiary or its successors or assigns.
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It is the intention of the parties hereto that the Trust Estate shall
secure all indebtedness presently or hereafter owed Beneficiary by Debtor
pursuant to the Loan Documents and that the priority of Beneficiary's security
for all such indebtedness shall be controlled by the time of proper recording
of this Deed of Trust. This paragraph shall serve as notice to all persons who
may seek or obtain a lien on the Trust Estate subsequent to the date of
recording of this Deed of Trust, that until this Deed of Trust is released,
any debt owed Beneficiary by Debtor pursuant to the Loan Documents, including
advances made subsequent to the recording of this Deed of Trust, shall be
secured with the priority afforded this Deed of Trust as recorded.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that the Note and the
other Loan Documents are to be executed, delivered and secured and that the
Trust Estate is to be held and disposed of by Trustee, upon and subject to the
provisions of this Deed of Trust.
ARTICLE I
DEFINED TERMS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified (such definitions to be applicable equally
to singular and plural nouns and verbs of any tense):
"Adjusted EBITDA" means with respect to Debtor for any period (a)
Debtor's net income or net loss, as the case may be, before (i) provision or
benefit for income taxes or charges equivalent to income taxes, (ii) Interest
Expense, (iii) depreciation, and (iv) amortization, in each case allocable to
such Site for such period, minus (b) the Royalty Fee (as described in Article
III of the License agreement dated as of the date of this Deed of Trust
between Arby's and Debtor with respect to the Site) payable during such
period, all as determined in accordance with generally accepted accounting
principles consistently applied, to the extent applicable.
"Affiliate" has the meaning set forth in the Loan Agreement.
"Arby's" means Arby's, Inc., a Delaware corporation.
"Arby's Restaurant" means a fully equipped and operational restaurant in
accordance with those standards adopted by Arby's on a system wide basis for
restaurants commonly known as "Arby's".
"ARDC" means Arby's Restaurant Development Corporation, a Delaware
corporation.
"Business Day" means any day on which banks are open for general banking
business in each of the States of Arizona, New York, Illinois (or such other
state where Beneficiary's payment account described in the Loan Agreement is,
from time to time, located) and Florida
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(or such other state where Debtor's chief executive office is, from time to
time, maintained), other than a Saturday, Sunday, a legal holiday or any other
day on which banks in such states are required or authorized by law to close.
"Capital Lease" means any lease of any property (whether real, personal
or mixed) by Debtor with respect to the Site which lease would, in conformity
with generally accepted accounting principles consistently applied, be
required to be accounted for as a capital lease on the balance sheet of
Debtor.
"Change of Control" means (a) the acquisition by any person or group (as
such term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended) other than the Guarantor or any of its Affiliates, of
more than 50% of the voting power or the voting stock of Debtor, whether
voluntary or involuntary, by way of merger, consolidation, operation of law or
otherwise and (b) any merger or consolidation of Debtor with ARDC. For
purposes of clarity, Change of Control shall not be deemed to include any
acquisition (whether voluntary or involuntary or by way of merger,
consolidation, operation of law or otherwise) of the voting power or voting
stock of any direct or indirect shareholder of Debtor.
"Code" means the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101 et
seq., as amended.
"Debt" means, without duplication, (i) indebtedness for borrowed money,
(ii) obligations evidenced by bonds, indentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of property
or services, (iv) obligations under leases which shall have been or should be,
in accordance with generally accepted accounting principles consistently
applied, recorded as Capital Leases, and (v) obligations under direct or
indirect guarantees in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iv) above.
"Deeds of Trust" has the meaning set forth in the Loan Agreement.
"Dual Concept" means the operation at the Site of both an Arby's
Restaurant and any other restaurant concept selected by Debtor.
"Equipment" means the equipment, machinery and/or trade fixtures of
Debtor used at the Site and described in the Equipment Security Agreement with
respect to the Site.
"Equipment Note" means that certain equipment promissory note dated as
of the date of this Deed of Trust executed by Debtor and payable to
Beneficiary with respect to financing for the Equipment.
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"Equipment Notes" has the meaning set forth in the Loan Agreement.
"Equipment Security Agreement" means the equipment security agreement
dated as of the date of this Deed of Trust between Debtor and Beneficiary with
respect to the Equipment at the Site, if applicable.
"Equipment Security Agreements" has the meaning set forth in the Loan
Agreement.
"Event of Default" shall have the meaning set forth in Section 4.01.
"Fixed Charge Coverage Ratio" means with respect to Debtor for any
period, a fraction (a) the numerator of which is equal to the sum of (i)
Debtor's Adjusted EBITDA allocable to the Site for such period plus (ii) any
amounts included in the denominator referred to below that were charged
against Adjusted EBITDA for such period, and (b) the denominator of which is
equal to the sum of, without duplication, (i) the sum of the payments made by
Debtor under the Note and, if applicable, the Equipment Note related to such
Site for such period, (ii) the sum of scheduled principal payments of
long-term Debt of Debtor allocable to such Site for such period, (iii)
scheduled payments under any Capital Leases of Debtor allocable to such Site
for such period, and (iv) Interest Expense of Debtor allocable to such Site
for such period; provided, however, that such denominator shall not include
any amounts payable or paid by Debtor, if any, pursuant to any ground lease[,
including, without limitation, the Ground Lease,] with respect to such Site
for such period.
["Ground Lease" means that certain lease of the Land dated as of between
Ground Lessor and Debtor.
"Ground Lessor" means , and its successors and assigns.]
"Guarantor" means Triarc Companies, Inc., a Delaware corporation.
"Guaranty" means that certain unconditional guaranty of payment and
performance dated as of the date of this Deed of Trust executed by Guarantor
for the benefit of Debtor with respect to the Site.
"Hazardous Materials" has the meaning set forth in the Loan Agreement.
["Improvements" means all buildings, fixtures and other improvements now
or hereafter located on the Land (whether or not affixed to the real estate).]
"Interest Expense" means, for any period, the sum of all interest
accrued or which should be accrued in respect of all Debt of Debtor with
respect to the Site during such period (including interest attributable to
Capital Leases in accordance with generally accepted accounting principles
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consistently applied), as determined in accordance with generally accepted
accounting principles consistently applied.
["Land" means the parcel or parcels of real estate in , County, legally
described in Exhibit A attached hereto, and all rights, privileges and
appurtenances therewith.]
"Loan Agreement" means the Loan Agreement dated as of , 1996 between
Debtor and Beneficiary.
"Loan Documents" has the meaning set forth in the Loan Agreement.
"Longwood Documents" has the meaning set forth in the Loan Agreement.
"Notes" has the meaning set forth in the Loan Agreement, including,
without limitation, the Note, executed by Debtor and payable to Beneficiary
pursuant to the Loan Agreement.
"Permitted Exceptions" shall have the meaning provided in the Loan
Agreement.
"Person" shall mean any individual, corporation, trust, limited
liability company, unincorporated organization, governmental authority or any
other form of entity.
"Restoration" means the restoration, replacement or rebuilding of the
Site, or any part thereof, as nearly as possible to its value, condition and
character immediately prior to any damage, destruction or Taking (as defined
in Section 3.01 hereof).
"Site" means [the parcel or parcels of real estate legally described in
Exhibit A attached hereto, all rights, privileges and appurtenances therewith
and all buildings, fixtures and other improvements now or hereafter located on
such real estate (whether or not affixed to the real estate)] [Debtor's
leasehold estate in the Land pursuant to the Ground Lease and Debtor's
ownership interest in the Improvements].
"State" means the state where the Site is located.
"Substitute Documents" has the meaning set forth in the Loan Agreement.
"Tarpon Documents" has the meaning set forth in the Loan Agreement.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF DEBTOR
Debtor hereby represents, warrants, covenants and agrees as follows
until this Deed of Trust has been discharged:
Section 2.01. Payment of the Notes. Debtor shall punctually pay, or
cause to be paid, the principal, interest and all other sums to become due in
respect of the Note, this Deed of Trust or any other Loan Documents relating
exclusively to the Site (the "Site Specific Documents").
Section 2.02. Recording. Debtor shall, upon the execution and delivery
hereof and thereafter from time to time, cause this Deed of Trust, each
supplement, confirmation of and amendment to this Deed of Trust and any
financing statements with respect thereto and each instrument of further
assurance (collectively, the "Recordable Documents") to be filed, registered
and recorded as may be required by law to publish notice and maintain the
first security interest hereof upon the Trust Estate and to publish notice of
and protect the validity of the Recordable Documents. Debtor shall, from time
to time, perform or cause to be performed any other act and shall execute or
cause to be executed any and all further instruments (including financing
statements, continuation statements and similar statements with respect to any
of said documents) reasonably requested by Beneficiary or Trustee for carrying
out the intention of, or facilitating the performance of, this Deed of Trust.
If Debtor shall fail to comply with this Section within 10 Business Days after
a written request by Beneficiary or Trustee, Trustee shall be and is hereby
irrevocably appointed the agent and attorney-in-fact of Debtor solely to
comply therewith (including the execution, delivery and filing of such
financing statements and other instruments), which appointment is coupled with
an interest, but this sentence shall not prevent any failure by Debtor to
comply with this Section from constituting an Event of Default after delivery
of the notice and the passage of the applicable cure period set forth in
Section 4.01. To the extent permitted by law, Debtor shall pay or cause to be
paid recording taxes and fees incident thereto and all expenses, taxes and
other governmental charges incident to or in connection with the preparation,
execution, delivery or acknowledgment of the Recordable Documents, any
instruments of further assurance and the Note.
Section 2.03. Use; Cessation. (a) Subject to the provisions of
subsection (b) below, Debtor shall use and operate (or lease for use and
operation) the Trust Estate at all times principally for the operation of an
Arby's Restaurant or a Dual Concept. Debtor shall not, by itself or through
any lease, management agreement, operating agreement or other agreement
pertaining to the conduct of business at the Site, convert the Site to an
alternative use without Beneficiary's consent, which consent shall not be
unreasonably withheld.
(b) Without limiting Debtor's right to cease operation of business at
the Site following damage or destruction to the Site or a Taking, provided
Debtor diligently proceeds with the Restoration to the extent required under
Article III, Debtor may voluntarily cease diligent operation of business at
the Site for a period not to exceed 90 days (the "Cessation Period") once
within any five-year period while this Deed of Trust is in effect. If Debtor
does discontinue
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operation pursuant to this Section, Debtor shall (i) give written notice to
Beneficiary 30 days prior to the day Debtor ceases operation (no such advance
notice is required if the discontinuance is a result of damage or destruction
to the Site or a Taking), (ii) provide adequate protection and maintenance of
the Trust Estate during the Cessation Period and (iii) if the Site is to be
reopened, pay all costs necessary to restore the Trust Estate to its condition
on the day operation of the business ceased at such time as the Trust Estate
is reopened for Debtor's business operations or other substituted use approved
by Beneficiary as contemplated above. Notwithstanding anything herein to the
contrary, Debtor shall pay monthly the principal and interest due under the
Note, for the Site during any period in which Debtor discontinues operation.
If Debtor shall fail to recommence diligent operation of its business on the
Trust Estate on or prior to the end of the Cessation Period, such failure
shall be an Event of Default and shall entitle Beneficiary to immediately
exercise its remedies set forth herein; provided, however, if, prior to the
end of the Cessation Period, Debtor delivers a notice of election to
substitute or defease the Site pursuant to Section 5 of the Loan Agreement,
Debtor's failure to recommence diligent operation of its business at the Trust
Estate prior to the end of the Cessation Period shall not constitute an Event
of Default unless Debtor fails to complete such substitution or defeasance in
accordance with the requirements of Section 5 of the Loan Agreement within 90
days of the delivery to Beneficiary of the notice of election to substitute or
defease (unless delayed by reasons not within Debtor's reasonable control, in
which case such 90-day period shall be extended (but in no event more than an
additional 60 days beyond such 90-day period) provided Debtor is continuing to
proceed diligently and in good faith to complete such substitution or
defeasance). As used herein, the term "Cessation Period" shall refer only to
the period during which Debtor voluntarily ceases operation of business at the
Site as provided in this Section.
Section 2.04. Maintenance and Repair. Debtor shall (i) promptly repair,
restore, replace or rebuild, subject to the provisions of this Deed of Trust,
any portion of the Trust Estate which may become damaged or in need of repair
to at least equal value and of substantially the same character (to the extent
permitted by law) as prior to such damage or circumstance giving rise to the
need for repair (except where Restoration is excused hereunder in the case of
a casualty or condemnation); (ii) maintain the Trust Estate in good condition
and repair, subject to reasonable and ordinary wear and tear, free from actual
or constructive waste; (iii) [subject to the terms of the Ground Lease,]
operate, remodel, update and modernize the Trust Estate in accordance with
those standards adopted by Arby's on a system-wide basis for operators of
Arby's Restaurants or Dual Concepts, as applicable, with such remodeling and
modernizing also being undertaken in accordance with the Arby's nationwide
timing schedule for such activities; (iv) pay all operating costs of the Trust
Estate in the ordinary course of business; (v) refrain from any action or
correct any condition which would materially increase the risk of fire or
hazard to the Trust Estate or any portion thereof except in the ordinary
course of business; and (vi) comply with all agreements, contracts, easements,
restrictions, covenants and encumbrances affecting the Trust Estate or any
part thereof or the ownership, occupancy or use thereof except where the
failure to comply would not have a Material Adverse Effect.
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Section 2.05. After-Acquired Property. All right, title and interest of
Debtor in and to all improvements, alterations, substitutions, restorations
and replacements of, and all additions and appurtenances to, the Trust Estate
hereafter acquired by Debtor, immediately upon such acquisition and without
any further granting by Debtor, shall become part of the Trust Estate and
shall be subject to the lien hereof fully, completely and with the same effect
as though now owned by Debtor and specifically described in the Granting
Clauses hereof, subject, however, to the Permitted Exceptions. Debtor shall
execute and deliver to Trustee any further assurances, mortgages, grants,
conveyances or assignments thereof as the Trustee may reasonably require to
subject the same to the lien hereof.
Section 2.06. Taxes. (a) Debtor shall do or cause to be done everything
necessary to preserve the lien hereof without expense to Trustee, including,
without limitation, paying and discharging or causing to be paid and
discharged, whether or not payable directly by Debtor or subject to
withholding at the source, unless Debtor shall contest the amount or validity
thereof in accordance with subsection (b), (i) all taxes, assessments, levies,
fees, water and sewer rents and charges and all other governmental charges
with respect to the Site as provided in Section 10 of the Loan Agreement, and
(ii) all lawful claims and demands of mechanics, laborers, materialmen and
others which, if unpaid, might create a lien on the Trust Estate, unless the
same constitute Permitted Exceptions.
(b) Debtor may, at its own expense, contest or cause to be contested, by
appropriate legal proceedings conducted in good faith and with due diligence
and against which adequate reserves in accordance with generally accepted
accounting principles are being maintained, the amount or validity or
application, in whole or in part, of any item specified in subsection (a) or
lien therefor, provided that neither the Trust Estate nor any interest therein
would be in any imminent danger of being sold, forfeited or lost by reason of
such proceedings.
Section 2.07. Insurance. Debtor shall maintain or cause to be maintained
with respect to the Trust Estate, at no expense to Beneficiary or Trustee, the
following types and amounts of insurance (which may be included under a
blanket insurance policy if all the other terms hereof are satisfied), in
addition to such other insurance as is customary for similar properties in
similar locations and which Beneficiary may reasonably require from time to
time:
(i) Insurance against loss, damage or destruction by fire and
other casualty, including theft, vandalism and malicious mischief, flood
(if the Site is in a location designated by the Federal Secretary of
Housing and Urban Development as a flood hazard area), earthquake (if
the Site is in an area where mortgage lenders customarily require the
owners of similar properties to maintain earthquake insurance), boiler
explosion (if there is any boiler upon the Site), sprinkler damage (if
the Site has a sprinkler system), all matters covered by a standard
extended coverage endorsement and special coverage endorsement commonly
known as an "all risk" endorsement and such
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other risks as Beneficiary may reasonably require, insuring the Trust
Estate (excluding footings and foundations) for not less than 100% of
their full insurable replacement cost.
(ii) Comprehensive general liability and property damage
insurance, including a products liability clause, covering Beneficiary
and Debtor against bodily injury liability, property damage liability
and automobile bodily injury and property damage liability, including
without limitation any liability arising out of the ownership,
maintenance, repair, condition or operation of the Trust Estate or
adjoining ways, streets or sidewalks and, if applicable, insurance
covering Beneficiary against liability arising from the sale of liquor,
beer or wine on the Site. Such insurance policy or policies shall
contain a broad form contractual liability endorsement under which the
insurer agrees to insure Debtor's obligations under Section 6.13 hereof
to the extent insurable, and a "severability of interest" clause or
endorsement which precludes the insurer from denying the claim of either
Debtor or Beneficiary because of the negligence or other acts of the
other, shall be in amounts of not less than $1,000,000.00 per injury and
occurrence with respect to any insured liability, whether for personal
injury or property damage, or such higher limits as Beneficiary may
reasonably require from time to time, and shall be of form and substance
reasonably satisfactory to Beneficiary.
(iii) Business interruption insurance equal to 100% of the
principal and interest payable under the Note for a period of not less
than 12 months.
(iv) State Worker's compensation insurance in the statutorily
mandated limits, employer's liability insurance with limits not less
than $500,000.00 or such greater amount as Beneficiary may from time to
time reasonably require, and such other insurance as may be necessary to
comply with applicable laws; provided, however, to the extent permitted
by applicable law, Debtor may provide, or cause to be provided, the
insurance required by this subsection by self-insurance.
All insurance policies shall:
(i) In the case of property insurance, provide for a waiver of
subrogation by the insurer as to claims against Beneficiary, its
employees and agents;
(ii) Provide that such insurance cannot be unreasonably cancelled,
invalidated or suspended on account of the conduct of Debtor, its
officers, directors, employees or agents;
(iii) Provide that any "no other insurance" clause in the
insurance policy shall exclude any policies of insurance maintained by
Beneficiary and that the insurance policy shall not be brought into
contribution with insurance maintained by Beneficiary;
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(iv) Contain a standard without contribution mortgage clause
endorsement in favor of Beneficiary and any other lender designated by
Beneficiary;
(v) Provide that the policy of insurance shall not be terminated,
cancelled or substantially modified without at least thirty (30) days'
prior written notice to Beneficiary and to any lender covered by any
standard mortgage clause endorsement;
(vi) Not contain a provision that the insurer shall have the right
to restore the Site if Beneficiary elects to terminate this Deed of
Trust in accordance with the terms hereof;
(vii) Provide that the insurer shall not deny a claim because of
the negligence of Debtor; and
(viii) Be issued by insurance companies which are rated A-:VI or
better by Best's Insurance Guide or otherwise reasonably approved by
Beneficiary.
It is expressly understood and agreed that the foregoing minimum limits
of insurance coverage shall not limit the liability of Debtor for its acts or
omissions as provided in this Deed of Trust. All insurance policies (with the
exception of worker's compensation insurance to the extent not available under
statutory law) shall designate Beneficiary as additional insured as its
interests may appear and shall, in the case of property insurance, be payable
as set forth in Article III hereof. All such policies shall be written as
primary policies, with deductibles not to exceed 10% of the amount of
coverage. Any other policies, including any policy now or hereafter carried by
Beneficiary, shall serve as excess coverage. Debtor shall procure policies for
all insurance for periods of not less than one year and shall provide to
Beneficiary certificates of insurance or, upon Beneficiary's request,
duplicate originals of insurance policies evidencing that insurance satisfying
the requirements of this Deed of Trust is in effect at all times.
Section 2.08. Impound Account. Upon and during the continuance of an
Event of Default resulting from Debtor's failure to perform the terms and
covenants of Sections 2.06 or 2.07, Beneficiary may require Debtor to pay to
Beneficiary sums which will provide an impound account (which shall not be
deemed a trust fund) for paying up to the next one year of taxes, assessments
and/or insurance premiums with respect to the Site. Upon such requirement,
Beneficiary will estimate the amounts needed for such purposes and will notify
Debtor to pay the same to Beneficiary in equal monthly installments, as nearly
as practicable, in addition to all other sums due under this Deed of Trust.
Should additional funds be required at any time, Debtor shall pay the same to
Beneficiary on demand. Debtor shall advise Beneficiary of all taxes and
insurance bills which are due and shall cooperate fully with Beneficiary in
assuring that the same are paid. Beneficiary may deposit all impounded funds
in accounts insured by any federal or state agency and may commingle such
funds with other funds and accounts of Beneficiary. Interest or other gains
from such funds, if any, shall be the sole property of
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Beneficiary. Upon and during the continuance of such an Event of Default,
Beneficiary may apply all impounded funds against any sums due from Debtor to
Beneficiary. Beneficiary shall give to Debtor an annual accounting showing all
credits and debits to and from such impounded funds received from Debtor.
Section 2.09. Advances by Trustee and Beneficiary. Trustee and
Beneficiary may make advances to perform any of the covenants contained in
this Deed of Trust on Debtor's behalf, after notice and the opportunity to
cure as provided in this Deed of Trust (except in the case of an emergency as
determined by Beneficiary in its sole discretion), and all sums so advanced
shall be secured hereby prior to the Note. Debtor shall repay on demand all
sums so advanced with interest thereon at the rate of 18% per annum (or the
highest rate permitted by law, whichever is less), such interest to be
computed from and including the date of the making of such advance to and
including the date of such repayment.
Section 2.10. Restriction on Transfer and Encumbrance. Except as
expressly permitted by the Loan Agreement or this Deed of Trust, Debtor shall
not, without the prior written consent of Beneficiary (which consent shall not
be unreasonably withheld, conditioned or delayed), sell, lease, convey,
pledge, mortgage, assign, transfer, encumber or grant any consensual easements
or other rights or interests of any kind in the Trust Estate or any of
Debtor's rights under the Loan Documents or permit a Change of Control, except
for sales, assignments and transfers of tangible Personal Property and/or
Equipment at the Site in the ordinary course of business that, in the
reasonable judgment of Debtor, is not necessary (after giving effect to any
Personal Property and/or Equipment that replaces it) to operate the Site as an
Arby's Restaurant or Dual Concept, as the case may be, in accordance with
those standards adopted by Arby's on a system- wide basis for operations of
Arby's Restaurants or Dual Concepts (collectively, "Transfers"); provided,
however, Debtor may lease the Site to a franchisee of Arby's. With respect to
any lease of the Site to a franchisee which is an Affiliate of Debtor, such
lease shall be subordinate to this Deed of Trust. With respect to any lease of
the Site to a franchisee which is not an Affiliate of Debtor, such lease shall
also be subordinate to this Deed of Trust but Beneficiary shall deliver to
such lessee a non-disturbance agreement in a form reasonably requested by such
lessee which provides that notwithstanding that such lease is subordinate to
this Deed of Trust that Beneficiary shall not, as a result of Beneficiary
exercising its remedies hereunder, disturb lessee's use and occupancy of the
Site for so long as lessee performs the terms and conditions of its lease,
provided such lease (i) shall not contain terms and conditions which are
inconsistent in any material respect with those of this Deed of Trust and
shall provide that in the event of a conflict between the terms and conditions
of this Deed of Trust and such lease that the terms and conditions of this
Deed of Trust shall govern and (ii) shall not relieve Debtor from its
obligations under the Deed of Trust or Guarantor from its obligations under
the Guaranty.
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ARTICLE III
POSSESSION, USE AND RELEASE OF THE TRUST ESTATE
Section 3.01. Casualty or Condemnation. Debtor, promptly upon obtaining
knowledge of any casualty to any portion of the Trust Estate with an estimated
repair cost of greater than $50,000.00 or of any proceeding or negotiation for
the taking of all or any portion of the Trust Estate in condemnation or other
eminent domain proceedings, shall notify Trustee and Beneficiary of such
casualty, proceeding or negotiation, generally describing the nature and
extent of such casualty, proceeding or negotiation. Any award, compensation or
other payment resulting from such casualty or condemnation or eminent domain
proceeding, as applicable, shall be applied as set forth below. Trustee and
Beneficiary may participate in any condemnation or eminent domain proceeding,
and Debtor will deliver or cause to be delivered to Trustee and Beneficiary
all instruments reasonably requested by Trustee and Beneficiary regarding any
such proceeding.
(a) Casualty. (i) No damage to or destruction of the Trust Estate
shall relieve Debtor of its obligation to pay any monetary sum due under
the Loan Documents at the time and in the manner provided in the Loan
Documents.
(ii) In the event of any damage to or destruction of the Trust
Estate or any part thereof, Debtor, whether or not the insurance
proceeds, if any, on account of such damage or destruction shall be
sufficient for the purpose, at its expense, shall promptly commence and
complete the Restoration. Notwithstanding the foregoing, Debtor shall
not be required to commence and complete such Restoration if, within 30
days of the damage or destruction to the Trust Estate, Debtor delivers a
notice of substitution or defeasance with respect to the Site pursuant
to Section 5 of the Loan Agreement, and, within 90 days of such
delivery, Debtor completes such substitution or defeasance in accordance
with the requirements of Section 5 of the Loan Agreement (unless delayed
by reasons not within Debtor's reasonable control, in which case the
90-day period shall be extended during such period (but in no event more
than an additional 60 days beyond such 90-day period) that Debtor is
diligently and in good faith proceeding to complete such substitution or
defeasance).
(iii) Insurance proceeds paid on account of any damage to or
destruction of the Trust Estate or any part thereof of less than
$100,000.00 shall be held by Debtor. Insurance proceeds paid on account
of any damage or destruction of the Trust Estate or any part thereof of
$100,000.00 or more shall be held and disbursed by Beneficiary as
contemplated by the following sentences. Insurance proceeds held by
Beneficiary, less the reasonable costs, fees and expenses incurred by
Beneficiary and Debtor in the collection thereof, including, without
limitation, adjuster's fees and expenses and attorneys' fees and
expenses (the "Net Insurance Proceeds"), shall be held and disbursed
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by Beneficiary as the Restoration progresses to pay or reimburse Debtor
for the cost of the Restoration upon written request of Debtor
accompanied by an officer's certificate to such officer's knowledge to
the effect that (w) the Restoration is in compliance in all material
respects with all applicable laws, regulations, restrictions and
requirements, whether governmental or private, (x) the amount requested
has been paid or is then due and payable and is properly a part of such
cost, (y) there are no mechanics' or similar liens for labor or
materials theretofore supplied in connection with the Restoration except
for Permitted Exceptions, and (z) the balance of such Net Insurance
Proceeds (together with all additional amounts as may be deposited by
Debtor with Beneficiary for such purpose) after making the payment
requested will be sufficient to pay the balance of the cost of the
Restoration. Upon receipt by Beneficiary of an officer's certificate to
such officer's knowledge to the effect that the Restoration has been
completed and the cost thereof paid in full, and that there are no
mechanics' or similar liens for labor or materials supplied in
connection therewith, the balance, if any, of such Net Insurance
Proceeds shall be paid to Debtor.
(b) Eminent Domain. (i) In case of a taking of all or any part of
the Trust Estate or the commencement of any proceedings or negotiations
which might result in a taking, for any public or quasi-public purpose
by any lawful power or authority by exercise of the right of
condemnation or eminent domain or by agreement among Beneficiary, Debtor
and those authorized to exercise such right ("Taking"), Debtor shall
file and prosecute on behalf of Beneficiary and Debtor any and all
claims for an award, and all awards and other payments on account of a
Taking of $100,000.00 or more shall be paid to and held by Beneficiary
in a non-interest bearing, non-segregated account (with awards of less
than $100,000.00 being paid to and held by Debtor and applied as
contemplated below).
(ii) In case of a Taking of the whole of the Trust Estate, other
than for temporary use ("Total Taking"), the Loan Documents shall remain
in full force and effect; provided, however, if, upon application of the
Net Award (as defined below) pursuant to subsection (v)(x) below and
application of other amounts paid by Debtor (it being agreed that Debtor
shall have the right, in the case of a Total Taking, to prepay the Note
in full without premium or penalty), the outstanding principal amount of
the Note and accrued interest thereon without prepayment penalty or
premium and all other sums due under this Deed of Trust and the Note
with respect to the Site are paid in full, the Note shall be deemed
satisfied and this Deed of Trust released.
(iii) In case of a Taking of less than all of the Trust Estate
other than for a temporary use ("Partial Taking"), the Loan Documents
shall remain in full force and effect. Debtor, whether or not the awards
or payments, if any, on account of such Partial Taking shall be
sufficient for the purpose (but provided they are made available by
Beneficiary for such purpose), at its own cost and expense, will
promptly commence
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and complete the Restoration; provided, however, that in case of a
Partial Taking of such a substantial part of the Trust Estate as shall
result in the Trust Estate remaining after such Partial Taking being
unsuitable for use as an Arby's Restaurant or Dual Concept, as evidenced
by the certificate delivered pursuant to this Deed of Trust to
Beneficiary (the "Certification") pursuant to which Debtor shall certify
to Beneficiary that the remainder of the Site is not useable and cannot
using commercially reasonable efforts be made useable for the purposes
provided herein, such Taking shall be deemed a Total Taking.
Notwithstanding the foregoing, Debtor shall not be required to commence
and complete the Restoration if, within 30 days after a Partial Taking
Debtor delivers a notice of substitution or defeasance with respect to
the Site pursuant to Section 5 of the Loan Agreement, and within 90 days
of the delivery of such notice, Debtor completes such substitution or
defeasance in accordance with the requirements of Section 5 of the Loan
Agreement (unless delayed by reasons not within Debtor's reasonable
control, in which case the 90-day period shall be extended during such
period (but in no event more than an additional 60 days beyond such
90-day period) that Debtor is diligently and in good faith proceeding to
complete such substitution or defeasance).
(iv) In case of a temporary use of the whole or any part of the
Trust Estate by a Taking, the Loan Documents shall remain in full force
and effect without any reduction of any monetary sum payable under these
Loan Documents. In any proceeding for such Taking, Beneficiary shall
have the right to intervene and participate; provided that, if such
intervention and participation shall not be permitted, Debtor shall
consult with Beneficiary, its attorneys and experts, and make all
reasonable efforts to cooperate with Beneficiary in the prosecution or
defense of such proceeding. At the termination of any such use or
occupation of the Trust Estate, Debtor will, at its own cost and
expense, promptly commence and complete the Restoration. Notwithstanding
the foregoing, Debtor shall not be required to commence and complete the
Restoration if, within 30 days after the termination of such Taking,
Debtor delivers a notice of substitution or defeasance with respect to
the Site pursuant to Section 5 of the Loan Agreement, and within 90 days
of the delivery of such notice, Debtor completes such substitution or
defeasance in accordance with the requirements of Section 5 of the Loan
Agreement (unless delayed by reasons not within Debtor's reasonable
control, in which case the 90- day period shall be extended during such
period (but in no event more than an additional 60 days beyond such
90-day period) that Debtor is diligently and in good faith proceeding to
complete such substitution or defeasance).
(v) Awards and other payments on account of a Taking [(excluding
amounts payable to Ground Lessor under the Ground Lease in respect to
the Land)], less the reasonable costs, fees and expenses incurred by
Beneficiary and Debtor in connection with the collection thereof,
including, without limitation, fees and expenses of attorneys, experts
and other professionals (the "Net Award"), shall be applied as follows:
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(x) Net Awards received on account of a Total Taking shall
be allocated as follows:
(aa) there shall be paid to the Beneficiary an amount
equal to the sum of the outstanding indebtedness secured by
this Deed of Trust with respect to the Site, including,
without limitation principal and interest under the Note and
funds advanced by Beneficiary hereunder, but without
prepayment penalty or premium, all as of the date on which
such payment is made, and such amount shall be applied to
such outstanding indebtedness of the Note; and
(bb) any remaining balance shall be paid to Debtor.
(y) Net Awards received on account of a Partial Taking shall
be applied as follows: (i) toward the cost of the Restoration,
such application of Net Awards and other payments to be made
substantially in the manner provided in Section 3.01(a)(iii) of
this Deed of Trust; (ii) there shall then be paid to Beneficiary,
as the holder of this Deed of Trust, an amount equal to that
portion of any unpaid principal amount of the Note, and any
interest accrued thereon, bearing the same relationship to the
total unpaid principal amount of the Note, and any interest
accrued thereon, all as of the date on which such payment is made,
as the square footage in the Site taken on account of such Partial
Taking, bears to the total square footage in the Site prior to
such Partial Taking, and such amount shall be applied to the
outstanding indebtedness of the Note and the Note shall be
reamortized over the remaining term of the Note; and (iii) any
remaining balance shall then be paid to Debtor.
(z) Net Awards received on account of a Taking for temporary
use shall be paid to Debtor; provided, however, that, if any
portion of any such award or payment is made by reason of any
damage to or destruction of the Trust Estate, such portion shall
be held and applied as provided in Section 3.01(a)(iii) hereof.
(c) Prosecution and Application of Proceeds/Awards following an
Event of Default. Notwithstanding the foregoing, upon and during the
continuance of an Event of Default, Beneficiary is hereby authorized and
empowered, in the name and on behalf of Debtor and otherwise, to file
and prosecute Debtor's claim, if any, for an award on account of any
Taking or insurance proceeds payable on account of any damage or
destruction to the Trust Estate, and to collect such award or proceeds
and apply the same, after deducting all reasonable costs, fees and
expenses incident to the collection thereof, to the curing of any
continuing Event of Default as Beneficiary may determine in its sole
discretion.
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[The foregoing provisions of this Article III shall apply to the extent
they do not result in breach or default under the Ground Lease. No amendment
to the Ground Lease which impairs Beneficiary's interest in the Trust Estate,
including without limitation, a reduction in the term of the Ground Lease or
cancellation or surrender of the Ground Lease, shall be made without the prior
written consent of Beneficiary, which consent shall not be unreasonably
withheld by Beneficiary (or following the Securitization, the master or
special servicer (provided that the consent of security holders in the
Securitization is not required)).]
Section 3.02. Beneficiary's Power. At any time, or from time to time,
without liability therefor, Beneficiary, without affecting the personal
liability of any entity for payment of the obligations secured by this Deed of
Trust or the effect of this Deed of Trust upon the remainder of said Trust
Estate, may from time to time without notice (i) release any part of said
Trust Estate, (ii) consent in writing to the making of any map or plat
thereof, (iii) join in granting any easement thereon, (iv) join in any
extension agreement or any agreement subordinating the lien or charge hereof,
(v) release any entity so liable, (vi) extend the maturity or alter any of the
terms of any obligations secured by this Deed of Trust, (vii) grant other
indulgences, (viii) take or release any other or additional security for any
obligation herein mentioned, (ix) make compositions or other arrangements with
debtors in relation thereto, or (x) advance additional funds to protect the
security hereof and pay or discharge the obligations secured by this Deed of
Trust of Debtor hereunder, in each case as provided in this Deed of Trust, and
all amounts so advanced shall be secured hereby and shall be due and payable
upon demand by Beneficiary.
Section 3.03. Release. (a) Beneficiary agrees that promptly after any
Transfer permitted by Section 2.10 hereof, it shall release from the liens
created under the Loan Documents (including without limitation, this Deed of
Trust) any Personal Property (including, to the extent applicable, Equipment
that is at such time included within the defined term Personal Property), that
is so transferred upon (i) the acquisition by Debtor of Personal Property in
replacement therefor free and clear of all liens, except Permitted Exceptions
and the lien of this Deed of Trust and the corresponding UCC-1 Financing
Statements or (ii) the acquisition or lease by Debtor of Personal Property in
replacement therefor that is subject to a purchase money security interest,
lease or other Lien in favor of a third party or (iii) the determination in
the reasonable judgment of the Debtor that such transferred Personal Property
is not necessary to operate the Site as an Arby's Restaurant or Dual Concept,
as the case may be, in accordance with those standards adopted by Arby's on a
system-wide basis for operations of Arby's Restaurants or Dual Concepts, as
the case may be, so that replacement Personal Property is not necessary;
provided, however, that in the case of clauses (ii) and (iii), the Debtor
shall have prepaid the Note without premium or penalty and otherwise in
accordance with the requirements for prepayment set forth in the Loan
Agreement by an amount equal to the then outstanding principal balance of the
Note multiplied by a fraction whose numerator is the fair market value of the
Personal Property replaced at the time of replacement and whose denominator is
the fair market value of the Site (including the Personal Property) at such
time, which fair market value shall be reasonably determined by Debtor and
either Beneficiary or the master or special servicer
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following the Securitization (as defined in the Loan Agreement); provided that
such master or special servicer is permitted to make such determination
without obtaining the consent of security holders in the Securitization
(otherwise the determination shall be made by Debtor alone acting in good
faith).
(b) Beneficiary shall promptly deliver such documents, including UCC-3
termination statements, reasonably requested by Debtor to effect the releases
contemplated by this Section. Personal Property or Equipment released pursuant
to this Section 3.03 shall no longer be deemed Personal Property or Equipment
for any and all purposes of the Loan Documents.
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
Section 4.01. Events of Default. (a) Subject to the limitations set
forth in subsections (b) and (c) of this Section, if one or more of the
following events shall have occurred and be continuing, such event or events
shall constitute an Event of Default by Debtor:
(1) If Debtor fails to pay when due any amount under the Site
Specific Documents;
(2) If any representation or warranty of Debtor contained in this
Deed of Trust was false in any material respect when made, or if Debtor
renders pursuant to this Deed of Trust any statement or account that is
false in any material respect;
(3) If [(a)] Debtor fails to keep or perform in any material
respect any of the terms, covenants or provisions of this Deed of Trust,
the Note, the Equipment Note[,][ or] the Equipment Security Agreement
[or (b) an event of default or a default (after the expiration of the
applicable notice and cure period under any document creating the
leasehold estate of Debtor in the Land, including, without limitation,
the Ground Lease];
(4) If the Site has been operated as an Arby's Restaurant or Dual
Concept for at least two years immediately prior to the date hereof, if
on September 30 of any year prior to the termination of this Deed of
Trust (the "Testing Date") the Fixed Charge Coverage Ratio for the Site
for the preceding four fiscal quarter period is less than 1.25:1; or
(5) If the Site was in operation as an Arby's Restaurant or Dual
Concept for less than two years as of the date hereof, if the Fixed
Charge Coverage Ratio for the Site on:
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(i) the September 30 immediately after the second
anniversary of the date that such Site became operational as an
Arby's Restaurant or Dual Concept for the preceding four fiscal
quarter period is less than 1.15:1 with respect to the Site;
(ii) the September 30 immediately after the third
anniversary of the date that such Site became operational as an
Arby's Restaurant or Dual Concept for the preceding four fiscal
quarter period is less than 1.20:1 with respect to the Site; or
(iii) the September 30 immediately after the fourth
anniversary of the date that such Site became operational as an
Arby's Restaurant or Dual Concept (and each September 30
thereafter) for the preceding four fiscal quarter period is less
than 1.25:1 with respect to the Site.
(6) An Event of Default (as defined in the Loan Agreement).
(b) If any event occurs pursuant to subsection (a)(1) above, such event
shall not constitute an Event of Default and Beneficiary shall not be entitled
to exercise its remedies set forth below unless and until Beneficiary shall
have given Debtor notice thereof and a period of 10 days from the delivery of
such notice shall have elapsed without such event being cured; provided,
however, if Debtor shall fail to pay when due any amount under the Note, this
Deed of Trust or any other Loan Document, all principal and interest and other
sums due under the Loan Documents shall bear interest at the lesser of the
highest rate for which the undersigned may legally contract or the rate of 18%
per annum (the "Default Rate") from and after the first day after the due
date, without regard to when an Event of Default would otherwise be deemed to
occur, until such sum and all other sums due hereunder as a result of such
failure are paid, and the Default Rate shall continue to apply following a
judgment in favor of Beneficiary under the Loan Documents.
(c) If any event described in subsection (a)(2) or (3)[(a)] above shall
occur, then such event shall not constitute an Event of Default hereunder,
unless otherwise expressly provided herein (and Beneficiary shall not be
entitled to exercise its remedies set forth below), unless and until
Beneficiary shall have given Debtor notice thereof and a period of 30 days
shall have elapsed, during which period Debtor may correct or cure such event,
upon failure of which an Event of Default shall be deemed to have occurred
hereunder without further notice or demand of any kind. If such event
described in subsection (a)(2) or (3)[(a)] cannot reasonably be cured within
such 30-day period, and Debtor is diligently pursuing a cure of such event,
then Debtor shall have a reasonable period to cure such event, which shall in
no event exceed 180 days after receiving notice of the default from
Beneficiary, upon failure of which an Event of Default shall be deemed to have
occurred hereunder without further notice or demand of any kind.
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(d) If any event described in subsection (a)(4) or (a)(5) shall occur,
then such event shall not constitute an Event of Default hereunder if, within
120 days of the applicable Testing Date for which the event described therein
occurred, either:
(i) Debtor shall have prepaid such outstanding balance of
the Note corresponding to the Site as is required to achieve a
Fixed Charge Coverage Ratio for the Site for the preceding four
fiscal quarters of 1.15:1 (if the prepayment occurs as a result of
an event described in subsection (a)(5)(i)), 1.20:1 (if the
prepayment occurs as a result of an event described in subsection
(a)(5)(ii)), or 1.25:1 (if the prepayment occurs as a result of an
event described in subsection (a)(4) or (a)(5)(iii)), which
prepayment shall be made without premium or penalty and the Note
shall be reamortized over the remaining term of such Note;
(ii) Debtor shall have substituted (or shall be in the
process of diligently proceeding to substitute), subject to the
terms and conditions of Section 5 of the Loan Agreement, a
Substitute Site for the Site, which Substitute Site has a Fixed
Charge Coverage Ratio as of the date of substitution of at least
1.15:1 (if the substitution occurs as a result of an event
described in subsection (a)(5)(i)), 1.20:1 (if the substitution
occurs as a result of an event described in subsection
(a)(5)(ii)), or 1.25:1 (if the substitution occurs as a result of
an event described in subsection (a)(4) or (a)(5)(iii)); or
(iii) Debtor shall have defeased (or be in the process of
diligently proceeding to defease) the Note, subject to the terms
and conditions of Section 5 of the Loan Agreement.
(e) Notwithstanding anything to the contrary contained herein, at any
time during the pendency of the cure period described in the preceding
subsection (c), but in no event later than 60 days prior to the end of the
180-day period provided in the preceding subsection (c), Debtor shall have the
right to notify Beneficiary of Debtor's election to either substitute a
Substitute Site for the Site or defease the Note and corresponding Equipment
Note with respect to the Site. Each substitution and defeasance shall be
subject to the terms and conditions of Section 5 of the Loan Agreement, except
as otherwise set forth in this subsection. During the pendency of such
substitution or defeasance, but subject to the time limitation set forth
below, no Event of Default as a result of the event described in subsection
(c) which is the basis for the substitution or defeasance shall be deemed to
have occurred. Debtor shall proceed diligently and in good faith to satisfy
the terms and conditions of the substitution or defeasance. If the
substitution or defeasance is not completed within 90 days of the delivery of
Debtor's notice of substitution or defeasance (unless delayed by reasons not
within Debtor's reasonable control, in which case the 90-day period shall be
extended during such period (but in no event beyond the earlier to occur of 60
days after such 90-day period and the end of the 180 day period provided in
subsection (c)) provided that Debtor is diligently and in good faith
proceeding to complete such substitution
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or defeasance), the cure period provided in subsection (c) shall be deemed to
have expired and, unless the event which is the basis for the substitution or
defeasance has been otherwise cured, an Event of Default shall be deemed to
have occurred hereunder without further notice or demand of any kind.
(f) With respect to the notice set forth in subparagraphs (b) and (c)
above, such notice may be provided or given by a filing of an appropriate
pleading or paper with respect to any case under the Code involving Debtor in
a court or courts of competent jurisdiction, including, by way of example and
not limitation, a notice or other pleading filed pursuant to Section 546(b) of
the Code.
Section 4.02. Remedies. Upon and during the continuance of an Event of
Default, Beneficiary may declare all obligations payable under the Site
Specific Documents and, in the case of an Event of Default under Section
4.01(a)(6), all other obligations secured by this Deed of Trust, to be due and
payable, and the same shall thereupon become due and payable without any
presentment, demand, protest or notice of any kind except as otherwise
provided herein, and, to the extent permitted by applicable law, Debtor hereby
waives notice of intent to accelerate the obligations secured by this Deed of
Trust. The obligations so declared to become due and payable are referred to
as the "Accelerated Obligations." Furthermore, upon and during the continuance
of an Event of Default Beneficiary may:
(i) Either in person or by agent, with or without bringing any
action or proceeding, or by a receiver appointed by a court, and without
regard to the adequacy of its security, enter upon and take possession
of the Trust Estate or any part thereof and do any acts which it deems
necessary or desirable to preserve the value, marketability or
rentability of the Trust Estate, or part thereof or interest therein,
increase the income therefrom or protect the security hereof and, with
or without taking possession of the Trust Estate, take any action
described herein, sue for or otherwise collect the Rents, issues and
profits thereof, including those past due and unpaid, and apply the
same, less costs and expenses of operation and collection including
reasonable attorneys' fees, upon any Accelerated Obligations, all in
such order as Beneficiary may determine. The entering upon and taking
possession of the Trust Estate, the taking of any action described
herein, the collection of such Rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any Event of
Default or notice of default or invalidate any act done in response to
such Event of Default or pursuant to such notice of default and,
notwithstanding the continuance in possession of the Trust Estate or the
collection, receipt and application of rents, issues or profits,
Beneficiary shall be entitled to exercise every right provided for in
any of the Site Specific Documents or by law upon and during the
continuance of any Event of Default, including the right to exercise the
power of sale herein conferred;
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(ii) Commence an action to foreclose this Deed of Trust, appoint a
receiver, specifically enforce any of the covenants hereof, or sell the
Trust Estate pursuant to the power of sale herein conferred; and
(iii) Exercise any or all of the remedies available to a secured
party under the Uniform Commercial Code of the State ("UCC"), including,
without limitation:
(1) Either personally or by means of a court appointed
receiver, commissioner or other officer, take possession of all or
any of the Personal Property and exclude therefrom Debtor and all
others claiming under Debtor, and thereafter hold, store, use,
operate, manage, maintain and control, make repairs, replacements,
alterations, additions and improvements to and exercise all rights
and powers of Debtor in respect of the Personal Property or any
part thereof. In the event Beneficiary demands or attempts to take
possession of the Personal Property in the exercise of any rights
under any of the Site Specific Documents, Debtor promises and
agrees to promptly turn over and deliver complete possession
thereof to Beneficiary;
(2) Without notice to or demand upon Debtor, make such
payments and do such acts as Beneficiary may deem necessary to
protect its security interest in the Personal Property, including,
without limitation, paying, purchasing, contesting or compromising
any encumbrance, charge or lien which is prior to or superior to
the security interest granted hereunder and, in exercising any
such powers or authority, to pay all expenses incurred in
connection therewith;
(3) Require Debtor to assemble the Personal Property or any
portion thereof, at a place designated by Beneficiary and
reasonably convenient to both parties, and promptly to deliver
such Personal Property to Beneficiary, or an agent or
representative designated by it. Beneficiary, and its agents and
representatives, shall have the right to enter upon any or all of
Debtor's premises and property to exercise Beneficiary's rights
hereunder;
(4) Sell, lease or otherwise dispose of the Personal
Property at public sale, with or without having the Personal
Property at the place of sale, and upon such terms and in such
manner as Beneficiary may determine. Beneficiary may be a
purchaser at any such sale; and
(5) Unless the Personal Property is perishable or threatens
to decline speedily in value or is of a type customarily sold on a
recognized market, Beneficiary shall give Debtor at least 10 days'
prior written notice of the time and place of any public sale of
the Personal Property or other intended disposition thereof. Such
notice may be delivered to Debtor at the address set forth at the
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beginning of this Deed of Trust and shall be deemed to be given as
provided herein.
If Beneficiary elects to sell Debtor's interest in the Trust Estate by
exercise of the power of sale herein contained, Beneficiary shall notify
Debtor and Trustee in the manner then required by law.
(a) Upon receipt of such notice from Beneficiary and at the
direction of Beneficiary, Trustee shall cause to be recorded, published
and delivered such notices of default and notices of sale as may then be
required by law and by this Deed of Trust. Trustee shall, only at the
direction of Beneficiary and without demand on Debtor, after such time
as may then be required by law and by this Deed of Trust and after
recordation of such notice of default and after notice of sale having
been given as required by law and by this Deed of Trust, sell the Trust
Estate at the time and place of sale fixed by it in such notice of sale,
either as a whole, or in separate lots or parcels or items as
Beneficiary shall deem expedient, and in such order as it may determine,
at public auction to the highest bidder for cash in lawful money of the
United States payable at the time of sale, or as otherwise may then be
required by law. Trustee shall deliver to such purchaser or purchasers
thereof its good and sufficient deed or deeds conveying the property so
sold, without any covenant or warranty, express or implied. The recitals
in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including, without limitation, Debtor,
Trustee or Beneficiary, may purchase at such sale. Beneficiary may
offset the Accelerated Obligations against amounts bid by it at any such
sale.
(b) As may be permitted by law, after deducting all reasonable
costs, fees and expenses of Trustee and of this Trust, including costs
of evidence of title in connection with sale, Trustee shall apply the
proceeds of sale to payment of (i) first, to payment of all costs, fees
and expenses, including reasonable attorneys' fees and expenses incurred
by the Beneficiary in exercising the power of sale or foreclosing this
Deed of Trust, and (ii) second, to payment of the Accelerated
Obligations and (iii) third, to Debtor or as may otherwise be required
by law.
(c) Trustee may in the manner provided by law postpone sale of
all or any portion of the Trust Estate.
Section 4.03. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary, as a matter of right and without
notice to Debtor or anyone claiming under Debtor, and without regard to the
then value of the Trust Estate or the interest of Debtor therein, or the
insolvency of Debtor or the then-owner of the Trust Estate, may seek the
appointment of a receiver for the Trust Estate upon ex parte application to
any court of the competent jurisdiction. Debtor waives any right to any
hearing or notice of hearing prior to the
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appointment of a receiver. Such receiver shall be empowered (a) to take
possession of the Trust Estate and any businesses conducted by Debtor thereon
and any business assets used in connection therewith, (b) to exclude Debtor
and Debtor's agents, servants and employees from the Trust Estate, or, at the
option of the receiver, in lieu of such exclusion, to collect a fair market
rental from any such persons occupying any part of the Trust Estate, (c) to
collect the rents, issues, profits and income therefrom, (d) to complete any
construction that may be in progress, (e) to continue the development,
marketing and sale of the Trust Estate, (f) to do such maintenance and make
such repairs and alterations as the receiver deems necessary, (g) to use all
stores of Debtor's materials, supplies and maintenance equipment on the Trust
Estate and replace such items at the expense of the receivership estate, (h)
to pay all taxes and assessments against the Trust Estate, all premiums for
insurance thereon, all utility and other operating expenses, and all sums due
under any prior or subsequent encumbrance, (i) to borrow from Beneficiary such
funds as may reasonably be necessary to the effective exercise of the
receiver's powers, on such terms as may be agreed upon by the receiver and
Beneficiary, but not in excess of the Default Rate, and (j) generally to do
anything that Debtor could legally do if Debtor were in possession of the
Trust Estate. All expenses incurred by the receiver or his agents, including
obligations to repay funds borrowed by the receiver, shall constitute a part
of the indebtedness secured hereby. Any revenues collected by the receiver
shall be applied first to the expenses of the receivership, including
reasonable attorneys' fees incurred by the receiver and by Beneficiary,
together with interest thereon at the highest rate of interest applicable in
the Note from the date incurred until repaid, and the balance shall be applied
toward the Accelerated Obligations or in such other manner as the court may
direct.
Section 4.04. Remedies Not Exclusive. Beneficiary shall be entitled to
enforce payment and performance of any Accelerated Obligations and to exercise
all rights and powers under this Deed of Trust or under any Loan Documents or
other agreement or any laws now or hereafter in force, notwithstanding some or
all of the Accelerated Obligations secured hereby may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien,
assignment or otherwise. Neither the acceptance of this Deed of Trust nor its
enforcement, whether by court action or pursuant to the power of sale or other
powers herein contained, shall prejudice or in any manner affect Beneficiary's
right to realize upon or enforce any other security now or hereafter held by
Beneficiary, it being agreed that Beneficiary shall be entitled to enforce
this Deed of Trust and any other security now or hereafter held by Beneficiary
in such order and manner as it may in its absolute discretion determine. No
remedy herein conferred upon or reserved to Beneficiary is intended to be
exclusive of any other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. Every power or remedy given by any of the Loan
Documents to Beneficiary, or to which Beneficiary may be otherwise entitled,
may be exercised, concurrently or independently, from time to time and as
often as may be deemed expedient by Beneficiary.
The acceptance by Beneficiary of any sum after the same is due shall not
constitute a waiver of the right either to require prompt payment, when due,
of all other sums hereby
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secured or to declare a subsequent Event of Default as herein provided. The
acceptance by Beneficiary of any sum in an amount less than the sum then due
shall be deemed an acceptance on account only and upon condition that it shall
not constitute a waiver of the obligation of Debtor to pay the entire sum then
due, and failure of Debtor to pay such entire sum then due as contemplated by
Section 4.01(b) shall be an Event of Default, notwithstanding such acceptance
of such amount on account, as aforesaid. Beneficiary or Trustee shall be, at
all times thereafter and until the entire sum then due shall have been paid,
and notwithstanding the acceptance by Beneficiary thereafter of further sums
on account, or otherwise, entitled to exercise all rights in this instrument
conferred upon them or either of them, and the right to proceed with a sale
under any notice of default, or an election to sell, or the right to exercise
any other rights or remedies hereunder, shall in no way be impaired, whether
any of such amounts are received prior or subsequent to such proceeding,
election or exercise. Consent by Beneficiary to any action or inaction of
Debtor which is subject to consent or approval of Beneficiary hereunder shall
not be deemed a waiver of the right to require such consent or approval to
future or successive actions or inactions.
Section 4.05. Possession of Trust Estate. In the event of a trustee's
sale or foreclosure sale hereunder and after the time of such sale if Debtor
occupies the portion of the Trust Estate so sold, or any part thereof, Debtor
shall immediately become the tenant of the purchaser at such sale, which
tenancy shall be a tenancy from day to day, terminable at the will of either
tenant or landlord, at a reasonable rental per day based upon the value of the
portion of the Trust Estate so occupied, such rental to be due and payable
daily to the purchaser. An action of unlawful detainer shall lie if the tenant
holds over after a demand in writing for possession of such Trust Estate; and
this agreement and a trustee's or sheriff's deed shall constitute a lease and
agreement under which the tenant's possession arose and continued. Nothing
contained in this Deed of Trust shall be construed to constitute Beneficiary
as a "mortgagee in possession" in the absence of its taking actual possession
of the Trust Estate pursuant to the powers granted herein.
Section 4.06. Waiver of Rights. To the extent permitted by law, Debtor
waives the benefit of all laws now existing or that hereafter may be enacted
(i) providing for any appraisement before sale of any portion of the Trust
Estate, or (ii) in any way extending the time for the enforcement of the
collection of the obligations secured hereby or creating or extending a period
of redemption from any sale made in collecting the obligations secured hereby.
To the full extent Debtor may do so under applicable law, Debtor agrees that
Debtor will not at any time insist upon, plea, claim or take the benefit or
advantage of any law now or hereafter in force providing for any appraisement,
valuation, stay, extension, redemption or homestead exemption, and Debtor, for
Debtor, Debtor's representatives, successors and assigns, and for any and all
persons ever claiming any interest in the Trust Estate, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, homestead exemption, notice of
election to mature or declare due the whole of the obligations secured hereby
and marshaling in the event of foreclosure of the liens hereby created. If any
law referred to in this Section and now in force, of which Debtor, Debtor's
heirs, devisees,
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representatives, successors and assigns or other person might take advantage
despite this Section, shall hereafter be repealed or cease to be in force,
such law shall not thereafter be deemed to preclude the application of this
Section. Debtor expressly waives and relinquishes any and all rights, remedies
and defenses that Debtor may have or be able to assert by reason of the laws
of the State pertaining to the rights, remedies and defenses of sureties.
Section 4.07. Cash Collateral. To the fullest extent allowed by
applicable law, Debtor hereby acknowledges and agrees that in the event that
Debtor commences a case under the Code or is the subject of an involuntary
case that results in an order for relief under the Code: (i) that all of the
Rents are, and shall for all purposes be deemed to be, "proceeds, product,
offspring, rents, or profits" of the Site covered by the lien of this Deed of
Trust, as such quoted terms are used in Section 552(b) of the Code; (ii) that
in no event shall Debtor assert, claim or contend that any portion of the
Rents are, or should be deemed to be, "accounts" or "accounts receivable"
within the meaning of the Code and/or applicable state law; (iii) that the
Rents are and shall be deemed to be in any such bankruptcy proceeding "cash
collateral" of Beneficiary as that term is defined in Section 363 of the Code;
and (iv) that Beneficiary has valid, effective, perfected, enforceable and
"choate" rights in and to the Rents without any further action required on the
part of Beneficiary to enforce or perfect its rights in and to such cash
collateral, including, without limitation, providing notice to Debtor under
Section 546(b) of the Code.
Section 4.08. Assignment of Rents and Leases. (a) Debtor hereby assigns,
transfers, conveys and sets over to Beneficiary all of Debtor's estate, right,
title and interest in, to and under all leases, whether existing on the date
hereof or hereafter entered into (including any extensions, modifications or
amendments thereto) relating to the Site, (the "Leases"), together with all
rights, powers, privileges, options and other benefits of Debtor as the lessor
under the Leases regarding the current tenants and any future tenants, and all
the Rents with respect to the Site, excluding Debtor's accounts receivable and
those of its tenants and subtenants, including those now due, past due or to
become due. Debtor irrevocably appoints Beneficiary its true and lawful
attorney-in-fact, at the option of Beneficiary, at any time and from time to
time upon and during the continuance of an Event of Default, to take
possession and control of the Site, pursuant to Debtor's rights as lessor
under the Leases, and to demand, receive and enforce payment, to give
receipts, releases and satisfaction and to sue, in the name of Debtor or
Beneficiary, for all of the Rents. It is intended by Debtor and Beneficiary
that the assignment set forth herein constitutes an absolute assignment and
not merely an assignment for additional security. The consideration received
by Debtor to execute and deliver this assignment and the liens and security
interests created herein is legally sufficient and will provide a direct
economic benefit to Debtor. Notwithstanding the foregoing, however, so long as
no Event of Default has occurred and is continuing, Debtor shall have a
license, revocable upon and during the continuance of an Event of Default, to
possess and control the Site and collect and receive all Rents. Upon and
during the continuance of an Event of Default, such license shall be
automatically revoked.
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(b) Upon and during the continuance of any Event of Default, Beneficiary
may, at any time without notice, either in person, by agent or by a
court-appointed receiver, regardless of the adequacy of Beneficiary's
security, and at its sole election (without any obligation to do so), enter
upon and take possession and control of the Trust Estate, or any part thereof,
to perform all acts necessary and appropriate to operate and maintain the
Trust Estate, including, but not limited to, execute, cancel or modify the
Leases, make repairs to the Trust Estate, execute or terminate contracts
providing for the management or maintenance of the Trust Estate, all on such
terms as are deemed best to protect the security of this assignment, and in
Beneficiary's or Debtor's name, sue or otherwise collect such Rents from the
Trust Estate as specified in this Deed of Trust as the same become due and
payable, including, but not limited to, Rents then due and unpaid. Beneficiary
may so sue for or otherwise collect such Rents with or without taking
possession of the Trust Estate. All Rents collected shall be held by Debtor as
trustee for the benefit of Beneficiary only. Debtor agrees that upon and
during the continuance of an Event of Default, each tenant of the Site shall
make its rent payable to and pay such rent to Beneficiary (or Beneficiary's
agents) on Beneficiary's written demand therefor, delivered to such tenant
personally, by mail, or by delivering such demand to each rental unit, without
any liability on the part of said tenant to inquire further as to the
existence of an Event of Default by Debtor.
(c) All Rents collected subsequent to any Event of Default shall be
applied at the direction of, and in such order as determined by, Beneficiary
to the costs, if any, of taking possession and control of and managing the
Trust Estate and collecting such amounts, including, but not limited to,
reasonable attorney's fees, receiver's fees, premiums on receiver's bonds,
costs of repairs to the Trust Estate, premiums on insurance policies, taxes,
assessments and other charges on the Trust Estate, and the costs of
discharging any obligation or liability of Debtor as lessor or landlord of the
Trust Estate and to the Accelerated Obligations. Beneficiary or the receiver
shall have access to the books and records used in the operation and
maintenance of the Trust Estate and shall be liable to account only for those
rents actually received. Beneficiary shall not be liable to Debtor, anyone
claiming under or through Debtor or anyone having an interest in the Trust
Estate by reason of anything done or left undone by Beneficiary hereunder,
except to the extent of Beneficiary's gross negligence or willful misconduct.
Any entering upon and taking possession and control of the Trust Estate
by Beneficiary or the receiver and any application of Rents as provided herein
shall not cure or waive any Event of Default hereunder or invalidate any other
right or remedy of Beneficiary under applicable law or provided therein.
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ARTICLE V
THE TRUSTEE
Section 5.01. Rights and Obligations of Trustee. Trustee accepts the
trusts hereby created and agrees to perform its duties herein for the benefit
of Beneficiary.
Section 5.02. Resignation of Trustee. Trustee may resign and be
discharged of the trusts by giving notice thereof to the holder of the Note
and Debtor (or any subsequent owner of Debtor's interest in the Trust Estate)
specifying the date (not less than ninety (90) days after such notice) when
such resignation shall take effect. Such resignation shall take effect on the
earlier of the date so specified or the appointment and acceptance of a
successor trustee pursuant to Section 5.03.
Section 5.03. Successor Trustee. (a) Trustee may be removed at any time
by notice from the holder of the Note. If Trustee shall have given notice of
its intention to resign, shall resign, be removed or otherwise be incapable of
acting, or if Trustee shall be taken under the control of any public officer
or a receiver appointed by a court, or be adjudged a bankrupt or insolvent,
then a successor may be appointed by the holder of the Note, provided that
Debtor may appoint a successor trustee to act until such successor shall be so
appointed. Debtor shall notify the holder of the Note of any such appointment
by Debtor, but any successor trustee so appointed by Debtor shall immediately
and without further act be superseded by a successor trustee appointed by the
holder of the Note as above provided.
(b) Any successor to Trustee shall execute, acknowledge and deliver to
its predecessor and Debtor (or any subsequent owner of Debtor's interest in
the Trust Estate) an instrument accepting such appointment, and thereupon such
successor, without any further act, deed or conveyance, shall become vested
with all the estate, properties, rights, powers, duties and trusts of its
predecessor in the trusts hereunder with like effect as if originally named as
trustee herein; provided, however, that on the written request of Debtor, the
holder of the Note or the successor trustee, such predecessor shall execute
and deliver an instrument transferring to such successor, upon the trusts
expressed in this Deed of Trust, such estate, properties, rights, powers and
trusts and shall duly assign, transfer, deliver and pay over to such successor
any property and moneys subject to the lien hereof and held by such
predecessor.
Section 5.04. Separate and Co-Trustees. (a) If it deems such to be
necessary or prudent, Trustee shall have the power to appoint one or more
persons to act as separate trustees or co-trustees, jointly with Trustee, of
any of the property subject to the lien hereof, and any such person shall be
such separate trustee or co-trustee, with such powers and duties as shall be
specified in such instrument.
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(b) Such separate trustee or co-trustee, upon acceptance of such trust,
shall be vested with the estates or property specified in such instrument,
either jointly with Trustee, or separately, as may be provided therein,
subject to all the trusts, conditions and provisions of this Deed of Trust;
and every such instrument shall be filed with Trustee.
Section 5.05. Liability of Trustee. No trustee hereunder shall be
personally liable by reason of any act or omission of any other trustee
hereunder.
Section 5.06. Payment of Trustee's Compensation. Debtor shall pay or
cause to be paid the reasonable compensation to which Trustee is entitled
hereunder in exercising remedies on behalf of Beneficiary and reimbursement
for all proper and reasonable disbursements and expenses incurred by Trustee
hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Satisfaction. If and when the Note shall have become due
and payable (whether by lapse of time or by acceleration or by the exercise of
the privilege of prepayment or defeasance), and Debtor shall pay or cause to
be paid (provided such payment is permitted by the Loan Documents or required
hereby) the full amount thereof, and shall also pay or cause to be paid to
Beneficiary, if applicable, all other sums payable hereunder by Debtor with
respect to the Note and otherwise payable under the Loan Agreement or upon the
completion of a substitution or defeasance of the Site pursuant to Section 5
of the Loan Agreement, then this Deed of Trust shall cease and terminate, and
Trustee shall satisfy and cancel the same as a lien on the Trust Estate,
reconvey the Trust Estate to Debtor and execute and deliver such instruments
as shall be reasonably requested by Debtor to satisfy and discharge the lien
hereof.
Section 6.02. Limitation of Rights of Others. Nothing in this Deed of
Trust is intended or shall be construed to give to any person, other than
Debtor, Trustee and the holder of the Note, any legal or equitable right,
remedy or claim under or in respect of this Deed of Trust or any covenant,
condition or provision herein contained.
Section 6.03. Severability. The provisions of this Deed of Trust shall
be deemed severable. If any part of this Deed of Trust shall be unenforceable,
the remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal effect
to the intention of the parties as expressed therein.
Section 6.04. Notices; Amendments; Waiver. All notices, demands,
designations, certificates, requests (including, without limitation, requests
for documents by third parties), offers, consents, approvals, appointments and
other instruments required or permitted to be given pursuant to this Deed of
Trust (collectively called "Notices") shall be in writing and given
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by (i) hand delivery, (ii) facsimile, (iii) express overnight delivery service
or (iv) certified or registered mail, return receipt requested and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission with confirmation, if delivered by facsimile, except if such
facsimile is transmitted other than during business hours (business hours
being defined as 8 a.m. to 6 p.m. in the location of the recipient during
Business Days), such transmission shall be deemed to have occurred the next
Business Day, (c) the next Business Day, if delivered by express overnight
delivery service, or (d) the third Business Day following the day of deposit
of such notice with the United States Postal Service, if sent by certified or
registered mail, return receipt requested. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable) specified below:
If to Debtor: Christine C. Marshall, Esq.
Vice President, Acting General Counsel
Arby's Restaurant Holding Company
1000 Corporate Drive
Fort Lauderdale, FL 33334
Telephone: (305) 351-5100
Telecopy: (305) 351-5619
Copy to: Brian L. Schorr, Esq.
Executive Vice President and General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
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If to Beneficiary: Stephen G. Schmitz
Senior Vice President Corporate Finance
FFCA Mortgage Corporation
The Perimeter Center
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2225
Copy to: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
FFCA Mortgage Corporation
The Perimeter Center
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
If to Trustee: [NAME AND ADDRESS OF TRUSTEE]
or to such other address or such other person as either party may from time to
time hereafter specify to the other party in a notice delivered in the manner
provided above.
Whenever in this Deed of Trust the giving of Notice is required, the
giving thereof may be waived in writing at any time by the person or persons
entitled to receive such Notice. Except as in this Deed of Trust otherwise
expressly provided, (i) this Deed of Trust may not be modified except by an
instrument in writing executed by Debtor and Beneficiary and (ii) no
requirement hereof may be waived at any time except by a writing signed by the
party against whom such waiver is sought to be enforced, nor shall any waiver
be deemed a waiver of any subsequent Event of Default.
Section 6.05. Counterparts. This Deed of Trust may be executed in any
number of counterparts and each thereof shall be deemed to be an original; and
all such counterparts shall constitute but one and the same instrument.
Section 6.06. Successors and Assigns. All of the provisions herein
contained shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto, to the same extent as if each
such successor and assign were in each case named as a party to this Deed of
Trust. All references in this Deed of Trust to Beneficiary shall include the
successors and permitted assigns of Beneficiary. Wherever used, the singular
shall include the plural, the plural shall include the singular and the use of
any gender shall include all genders.
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Section 6.07. Headings. The headings appearing in this Deed of Trust
have been inserted for convenient reference only and shall not modify, define,
limit or expand the express provisions of this Deed of Trust.
Section 6.08. Security Agreement. With respect to the Personal Property
or any portion of the Trust Estate which constitutes fixtures or other
property governed by the UCC, this Deed of Trust shall constitute a security
agreement between Debtor as the debtor and Beneficiary as the secured party,
and Debtor hereby grants to Beneficiary a security interest in such portion of
the Trust Estate. Cumulative of all other rights of Beneficiary hereunder,
Beneficiary shall have all of the rights conferred upon secured parties by the
UCC, subject to the express provisions of this Deed of Trust. Debtor will
execute and deliver to Beneficiary all financing statements that may from time
to time be required by Beneficiary to establish and maintain the validity and
priority of the security interest of Beneficiary, or any modification thereof,
and pay all costs and expenses of any searches reasonably required by
Beneficiary. Subject to the express provisions of this Deed of Trust,
Beneficiary may exercise any or all of the remedies of a secured party
available to it under the UCC with respect to such property, and it is
expressly agreed that if upon and during the continuance of an Event of
Default Beneficiary should proceed to dispose of such property in accordance
with the provisions of the UCC, 10 days' notice by Beneficiary to Debtor shall
be deemed to be reasonable notice under any provision of the UCC requiring
such notice; provided, however, that Beneficiary may at its option dispose of
such property in accordance with Beneficiary's rights and remedies with
respect to the real property pursuant to the provisions of this Deed of Trust,
in lieu of proceeding under the UCC.
Debtor shall give advance notice in writing to Beneficiary of any
proposed change in Debtor's name, identity, or business form or structure and
will execute and deliver to Beneficiary, prior to or concurrently with the
occurrence of any such change, all additional financing statements that
Beneficiary may require to establish and maintain the validity and priority of
Beneficiary's security interest with respect to any of the Trust Estate
described or referred to herein.
Some of the items of the Trust Estate described herein are goods that
are or are to become fixtures related to the Site, and it is intended that as
to those goods, this Deed of Trust shall be effective as a financing statement
filed as a fixture filing from the date of its filing for record in the real
estate records of the county in which the Trust Estate is situated.
Information concerning the security interest created by this instrument may be
obtained from Beneficiary, as secured party, at the address of Beneficiary
stated in the introductory paragraph of this Deed of Trust. The mailing
address of Debtor, as debtor, is as stated in the introductory paragraph of
this Deed of Trust.
Section 6.09. Time of the Essence. Time is of the essence in the
performance of each and every obligation under this Deed of Trust.
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Section 6.10. Estoppel Certificate. (a) At any time, and from time to
time, Debtor and Beneficiary agree, promptly and in no event later than 10
Business Days after a request from the other, to execute, acknowledge and
deliver a certificate, certifying: (1) the date to which principal and
interest have been paid under the Note and the amount thereof then payable;
(2) that no notice has been received by Debtor (in the case of a certificate
given by Debtor) or given by Beneficiary (in the case of a notice given by
Beneficiary), as the case may be, of any Event of Default under this Deed of
Trust which has not been cured, except as to Events of Default specified in
the certificate; (3) the capacity of the person executing such certificate,
and that such person is duly authorized to execute the same on behalf of
Debtor or Beneficiary, as the case may be; and (4) any other information
reasonably requested by Debtor or Beneficiary, as the case may be.
(b) If Debtor or Beneficiary shall fail or refuse to sign a certificate
in accordance with the provisions of this Section within 10 days following a
request by Debtor or Beneficiary, as the case may be, Debtor or Beneficiary,
as the case may be, irrevocably constitutes and appoints Debtor or
Beneficiary, as the case may be, as its attorney-in-fact to execute and
deliver the certificate to any such third party, it being stipulated that such
power of attorney is coupled with an interest and is irrevocable and binding;
provided, however, each request by Debtor or Beneficiary, as the case may be,
shall state that a failure to timely deliver such certificate shall
irrevocably constitute and appoint the other as its attorney-in-fact to
execute and deliver the certificate to such third party.
Section 6.11. Limitation of Interest. Notwithstanding anything to the
contrary contained in any of the Loan Documents, the obligations of Debtor to
Beneficiary under the Notes, this Deed of Trust and any other Loan Documents
are subject to the limitation that payments of interest and fees to
Beneficiary shall not be required to the extent that receipt of any such
payment by Beneficiary would be contrary to provisions of applicable law
limiting the maximum rate of interest that may be charged or collected by
Beneficiary. The portion of any such payment received by Beneficiary that is
in excess of the maximum amount of interest permitted by such provisions of
law shall be credited to the principal balance of the Notes or if such excess
portion exceeds the outstanding principal balance of the Notes, then such
excess portion shall be refunded to Debtor. All interest paid or agreed to be
paid to Beneficiary shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and/or spread throughout the full term of the
Notes so that interest for such full term shall not exceed the maximum amount
permitted by applicable law.
Section 6.12. Forum Selection; Jurisdiction; Venue; Choice of Law.
Debtor acknowledges that this Deed of Trust was negotiated in the States of
Arizona and New York, Beneficiary's chief executive office and principal place
of business is in the State of Arizona, and there are substantial contacts
between the parties and the transactions contemplated herein and the States of
Arizona and New York. For purposes of any action or proceeding arising out of
this Deed of Trust, Debtor and Beneficiary expressly submit to the
jurisdiction of all federal
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and state courts located in the States of Arizona and New York. Each of
Beneficiary and Debtor consents that it may be served with any process or
paper by certified or registered mail at the addresses for notice pursuant to
this Deed of Trust or by personal service within or without the States of
Arizona and New York in accordance with applicable law. Furthermore, Debtor
waives and agrees not to assert in any such action, suit or proceeding that it
is not personally subject to the jurisdiction of such courts, that the action,
suit or proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. The creation of this Deed of Trust and
the rights and remedies of Beneficiary with respect to the Trust Estate, as
provided herein and by the laws of the State, shall be governed by and
construed in accordance with the internal laws of the State without regard to
principles of conflict of law. With respect to other provisions of this Deed
of Trust, this Deed of Trust shall be governed by the internal laws of the
State of Arizona. Nothing in this Section shall limit or restrict the right of
Beneficiary to commence any proceeding in the federal or state courts located
in the state in which the Site is located to the extent Beneficiary deems such
proceeding necessary or advisable to exercise remedies available under this
Deed of Trust or the other Loan Documents and which may only be enforced in
such courts.
Section 6.13. Indemnification. Debtor agrees to indemnify and hold
harmless Beneficiary and its shareholders, directors, officers, employees,
Affiliates (as defined in the Loan Agreement), agents, trustees, successors
and assigns (the "Indemnified Parties"), from and against any and all claims,
demands, causes of action, suits, proceedings, liabilities, damages (including
consequential and punitive damages), losses, out-of-pocket costs and expenses,
including reasonable attorneys' fees and expenses (collectively, the "Losses")
which are incurred by the Indemnified Parties, relating to or arising out of
(i) the generation, storage, manufacturing, refining, releasing,
transportation, treatment, disposal or other presence of any Hazardous
Materials on or about the Trust Estate (ii) Debtor's ownership, use or
operation of the Trust Estate or (iii) any Event of Default, except to the
extent that such Losses arise out of the gross negligence or willful
misconduct of any of the Indemnified Parties.
Section 6.14. Waiver of Jury Trial and Punitive Damages. BENEFICIARY, BY
ACCEPTING THIS DEED OF TRUST, AND DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER OR ITS RESPECTIVE
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS DEED OF TRUST OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS
WAIVER BY BENEFICIARY AND DEBTOR OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND BENEFICIARY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE DAMAGES FROM
THE OTHER WITH RESPECT TO
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ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY EITHER OF THEM AGAINST THE OTHER OR ITS RESPECTIVE SUCCESSORS WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS DEED OF TRUST
OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY DEBTOR
AND BENEFICIARY OF ANY RIGHT EITHER MAY HAVE TO SEEK PUNITIVE DAMAGES HAS BEEN
NEGOTIATED BY DEBTOR AND BENEFICIARY AND IS AN ESSENTIAL ASPECT OF THEIR
BARGAIN.
Section 6.15. Inspection. Debtor shall, upon 10 Business Days' prior
notice and during business hours, (i) provide Beneficiary and Beneficiary's
officers, employees, agents, advisors, lenders, attorneys, accountants,
architects, and engineers with access to the Trust Estate, all drawings,
plans, and specifications for the Trust Estate in possession of Debtor, all
engineering reports relating to the Trust Estate in the possession of Debtor,
the files and correspondence relating to the Trust Estate, and the financial
books and records, including lists of delinquencies, relating to the
ownership, operation, and maintenance of the Trust Estate, and (ii) allow such
persons to make such inspections, tests, copies, and verifications as
Beneficiary considers necessary in its reasonable judgment; provided that none
of the foregoing shall unreasonably interfere with the conduct of Debtor's
business at the Trust Estate.
Section 6.16. Survival. All indemnities of Debtor set forth in this Deed
of Trust shall survive the expiration or earlier termination of this Deed of
Trust for any reason..
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IN WITNESS WHEREOF, Debtor has caused this Deed of Trust to be executed
and delivered, and Trustee has accepted this Deed of Trust, as of the day and
year first above written.
Attest: ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By By
Printed Name Printed Name
Title Title
Taxpayer Identification Number:
65-0576049
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STATE OF ]
] SS.
COUNTY OF ]
The foregoing instrument was acknowledged before me on ,
199 by , and , of Arby's
Restaurant Holding Company, a Delaware corporation, on behalf of the
corporation.
------------------
Notary Public
My Commission Expires:
- ----------------
Prepared by:
KUTAK ROCK
1650 Farnam Street
Omaha, NE 68102
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EXHIBIT A
LEGAL DESCRIPTION OF SITE
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EXHIBIT D
FORM OF EQUIPMENT NOTE
01/514412.5
Arby's
<PAGE>
EQUIPMENT PROMISSORY NOTE
Dated as of , 199
$ Scottsdale, Arizona
ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation ("Debtor"),
for value received, promises to pay the principal sum of
DOLLARS ($ ) and to
pay interest, in arrears, on the unpaid principal amount of this Note from the
date hereof to maturity at the rate of % per annum (the "Base Interest Rate"),
to the order of FFCA MORTGAGE CORPORATION, a Delaware corporation or holder
("Holder"), at its office at 17207 North Perimeter Drive, Scottsdale, Arizona
85255, or at such other place as Holder may designate in writing from time to
time, on or before , 200 , or the first Business Day preceding such date if
such date is not a Business Day (the "Maturity Date"), as herein provided.
This Note is issued pursuant to and entitled to the benefits of that
certain Loan Agreement dated as of , 1996 between Debtor and Holder (the "Loan
Agreement"). The capitalized terms which are not otherwise defined in this
Note shall have the meanings set forth in the Loan Agreement. The terms and
conditions of the Loan Agreement are incorporated in this Note by reference.
In the event that any term of this Note shall be inconsistent with the Loan
Agreement, the Loan Agreement shall govern. This Note relates to Debtor's
equipment (the "Equipment") located at or such substitute site resulting from
Debtor's right of substitution of the Site as provided in the Loan Agreement
(the "Site").
Interest on the principal amount of this Note at the Base Interest Rate
for the period commencing with the date of this Note through the last day of
the month in which this Note is dated shall be due and payable on the date of
this Note. Thereafter, principal and interest in arrears at the Base Interest
Rate shall be due and payable in consecutive monthly installments of DOLLARS
($ ) commencing on 1, 199 , or the first Business Day preceding such date if
such date is not a Business Day, and continuing on the first day of each month
thereafter, or the first Business Day preceding such date if such date is not
a Business Day, until maturity of this Note on the Maturity Date, at which
time the outstanding principal and all accrued and unpaid interest, together
with all other amounts due and payable under the Loan Documents, shall be due
and payable.
Each payment of principal and interest under this Note shall be applied
first toward any amounts under this Note which are due and unpaid, including,
without limitation, payment of
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all Costs (as herein defined), then to accrued interest, and the balance, if
any, shall be applied to the unpaid principal balance of this Note.
This Note may not be prepaid except as provided in the Loan Agreement.
Upon a partial prepayment of the Note as permitted by the Loan Agreement, the
amount prepaid shall be applied to the outstanding indebtedness under the Note
and the Note shall be reamortized over the remaining term of the Note.
Upon and during the continuance of an Event of Default under the
Equipment Security Agreement with respect to the Equipment, then, in such
event, time being of the essence hereof, Holder may declare the entire unpaid
principal balance of this Note, accrued interest, if any, and all other sums
due under this Note and the Equipment Security Agreement due and payable at
once without written notice to or demand from Debtor and exercise all rights
and remedies under this Note and the Equipment Security Agreement. Subject to
Sections 13 and 14 of the Loan Agreement (including, without limitation, the
provisions contained in the proviso at the end of Section 13(a)), upon and
during the continuance of any such Event of Default, then, in such event, time
being of the essence hereof, Holder may declare the entire unpaid principal
balance of the Notes and the Equipment Notes, and all other sums due under
Loan Documents and any other document further securing the Notes and the
Equipment Notes due and payable at once without written notice to or demand
from Debtor and exercise all rights and remedies under the Loan Documents.
Upon any such Event of Default, any payments received by Holder under this
Note shall be applied as Holder may determine in its sole discretion; provided
however, that upon any Event of Default which pertains solely to the Site and
is not also an Event of Default with respect to any other Sites, any payments
received by Holder under this Note shall be applied toward the obligations of
Debtor due under the Site Specific Documents (as defined in the Deed of Trust
for the Site) as Holder may determine in its sole discretion.
All principal and interest and other sums due under this Note, the
Equipment Security Agreement and the other Loan Documents shall bear interest
at the lesser of the highest rate for which the undersigned may legally
contract or the rate of 18% per annum (the "Default Rate") from and after the
first day after the due date, without regard to when an Event of Default would
otherwise be deemed to occur, until all such sums due hereunder and thereunder
are paid. The Default Rate shall continue to apply following a judgment in
favor of Holder under this Note.
Except as provided in the Loan Agreement, all payments of principal and
interest due hereunder shall be made without any deduction or setoff
whatsoever. All amounts payable pursuant to this Note, the Loan Agreement and
the other Loan Documents shall be payable in lawful money of the United States
of America and in the manner provided in the Loan Agreement.
No delay or omission on the part of Holder in exercising any remedy,
right or option under this Note shall operate as a waiver of such remedy,
right or option. In any event, a
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waiver on any one occasion shall not be construed as a waiver or bar to any
such remedy, right or option on a future occasion. Except as otherwise
provided in this Note or in the other Loan Documents, Debtor hereby waives
presentment, demand for payment, notice of dishonor, notice of protest, and
protest, and all other notices or demands in connection with delivery,
acceptance, performance, default or endorsement of this Note.
All notices, consents, approvals or other instruments required or
permitted to be given by either party pursuant to this Note shall be in
writing and given in the manner as required by the Loan Agreement.
Should any indebtedness represented by this Note be collected at law or
in equity, or in bankruptcy or any other proceeding, or should this Note be
placed in the hands of attorneys for collection after default, Debtor shall
pay, in addition to the principal and interest due and payable hereon, all
costs of collecting or attempting to collect this Note (the "Costs"),
including, without limitation, reasonable attorneys' fees and expenses
(including those fees and expenses incurred in connection with any appeal)
whether or not a judicial action is commenced by Holder.
Except as provided in the Loan Agreement, this Note may not be amended
or modified other than pursuant to a written agreement duly executed by Debtor
and Holder.
Notwithstanding anything to the contrary contained in any Loan Document,
the obligations of Debtor to Holder under this Note and any other Loan
Document are subject to the limitation that payments of interest and other
fees to Holder shall not be required to the extent that receipt of any such
payment by Holder would be contrary to provisions of applicable law limiting
the maximum rate of interest that may be charged or collected by Holder. The
portion of any such payment received by Holder that is in excess of the
maximum interest permitted by such provisions of law shall be credited to the
principal balance of the Loan or if such excess portion exceeds the
outstanding principal balance of this Note, then such excess portion shall be
refunded to Debtor. All interest paid or agreed to be paid to Holder shall, to
the extent permitted by applicable law, be amortized, prorated, allocated
and/or spread throughout the full term of the Note so that interest for such
full term shall not exceed the maximum amount permitted by applicable law.
For purposes of any action or proceeding arising out of this Note,
Debtor and Holder expressly submit to the jurisdiction of all federal and
state courts located in the States of Arizona and New York. Each such Person
consents that it may be served with any process or paper by certified or
registered mail at the addresses for notice provided in the Loan Agreement or
by personal service within or without the States of Arizona and New York in
accordance with applicable law. Furthermore, each such Person waives and
agrees not to assert in any such action, suit or proceeding that it is not
personally subject to the jurisdiction of such courts, that the action, suit
or proceeding is brought in an inconvenient forum or that venue of the action,
suit or proceeding is improper. It is the intent of each such Person that all
provisions of this
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Note shall be governed by and construed in accordance with the laws of the
State of Arizona. Nothing contained in this paragraph shall limit or restrict
the right of Holder to commence any proceeding in the federal or state courts
located in the state in which the Site is located to the extent Holder deems
such proceeding necessary or advisable to exercise remedies available under
the Loan Documents and which may only be enforced in such courts.
This Note shall be binding upon Debtor and inure to the benefit of
Holder, and their respective successors and permitted assigns, including,
without limitation, any United States trustee, any debtor in possession or any
trustee appointed from a private panel.
DEBTOR AND HOLDER (BY ACCEPTING THIS NOTE) HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER OR ITS RESPECTIVE
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS NOTE, THE RELATIONSHIP OF HOLDER AND DEBTOR, DEBTOR'S USE OR OCCUPANCY OF
THE SITE, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY
REMEDY. THIS WAIVER BY SUCH PERSONS OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY
JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, DEBTOR AND HOLDER (BY ACCEPTING THIS NOTE) HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE
DAMAGES FROM THE OTHER WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST
THE OTHER OR ITS RESPECTIVE SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT
OF OR IN CONNECTION WITH THIS NOTE OR ANY DOCUMENTS CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY DEBTOR AND HOLDER OF ANY RIGHT EITHER MAY HAVE
TO SEEK PUNITIVE DAMAGES HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
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IN WITNESS WHEREOF, Debtor has executed and delivered this Note
effective as of the date first set forth above.
ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By
Printed Name
Its
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EXHIBIT E
FORM OF EQUIPMENT SECURITY AGREEMENT
01/514412.5
Arby's
<PAGE>
EQUIPMENT SECURITY AGREEMENT
THIS EQUIPMENT SECURITY AGREEMENT (this "Agreement") is made and entered
into as of , 199 by and between ARBY'S RESTAURANT HOLDING COMPANY ("Debtor"),
a Delaware corporation, whose principal place of business is located at 1000
Corporate Drive, Fort Lauderdale, Florida 33334, and FFCA MORTGAGE
CORPORATION, a Delaware corporation ("FFCA"), whose address is 17207 North
Perimeter Drive, Scottsdale, Arizona 85255.
PRELIMINARY STATEMENT:
Pursuant to that certain Loan Agreement dated as of , 1996 (the "Loan
Agreement") between FFCA and Debtor, FFCA has agreed to make a $ equipment
loan to Debtor (the "Loan"). To secure the Loan, Debtor has agreed to grant
FFCA a security interest in Equipment (as defined below). Capitalized terms
used herein without definition shall have the meanings ascribed thereto in the
Loan Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter set forth, the parties hereto hereby agree as follows:
1. Security Interest Created. In order to secure the payment of Debtor's
obligations to FFCA evidenced by a promissory note dated as of even date
herewith in the principal amount of $ (the "Note"), and all other sums
advanced or expended by FFCA pursuant to the terms of this Agreement and the
Loan Agreement (collectively, the "Obligations"), Debtor hereby grants to FFCA
a security interest in the Equipment.
2. Equipment. The property which is subject to the security interest
created by this Agreement consists of the equipment identified on Exhibit B
attached hereto, and all proceeds from the sale or disposition thereof (the
"Equipment"), now or hereafter located on that real property legally described
on Exhibit A attached hereto (the "Site").
3. Debtor's Warranties, Covenants and Agreements. Debtor hereby warrants,
covenants and agrees that:
3.1. The Equipment is transferable to FFCA.
3.2. Except for Transfers permitted pursuant to the Loan
Agreement, or as a result of a condemnation or casualty to the Site or
repairs in the ordinary course of business, Debtor will not remove or
allow to be removed from the Site the Equipment, or any part thereof,
without the prior written consent of FFCA. Debtor will promptly
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give written notice to FFCA of any loss or damage by fire or other
casualty to any substantial part of the Equipment.
3.3. Debtor is, and as to Equipment acquired after the Additional
Closing will be, the owner of the Equipment. As of the Additional
Closing, the Equipment is free from any lien, security interest or
encumbrance, and subsequent to the Additional Closing, the Equipment
shall be free from any lien, security interest or encumbrance except for
Permitted Exceptions applicable to personal property and those in favor
of FFCA, and Debtor will not execute or permit the filing of any other
such financing statement thereon.
3.4. Debtor represents and warrants that the Equipment is in good
condition and repair, ordinary wear and tear excepted. Debtor shall keep
the Equipment free and clear of all Liens, except Permitted Exceptions
applicable to personal property and those in favor of FFCA. Except for
the Transfers permitted pursuant to the Loan Agreement and as expressly
permitted by this Agreement, Debtor shall not, without the prior written
consent of FFCA sell, lease, convey, pledge, mortgage, assign, transfer,
encumber or grant any consensual easements or other rights or interests
of any kind in the Equipment.
3.5. Debtor will promptly notify FFCA of any levy, distraint or
other seizure by legal process or otherwise of any material part of the
Equipment and of any claims filed or, of which Debtor becomes aware,
threatened proceedings that materially adversely affect FFCA's security
interest in the Equipment.
3.6. FFCA at all times shall have a perfected security interest in
Debtor's Equipment (other than the Equipment that has been transferred
as permitted by the Loan Agreement) that, as of the Additional Closing,
is prior to any other interests therein and, subsequent to the
Additional Closing, will be prior to any other interests therein other
than Permitted Exceptions applicable to personal property. Debtor will
do all acts and things, will execute and file all instruments (including
security agreements, UCC financing statements, continuation statements,
etc.) reasonably requested by FFCA to establish, maintain and continue
the perfected security interest of FFCA in the Equipment, and will
promptly on demand pay (a) all out-of-pocket costs and expenses of
filing and recording, including the out-of-pocket costs of any searches
deemed necessary by FFCA from time to time to establish and determine
the validity and the continuing priority of the security interest of
FFCA, and (b) all other claims and charges (other than Permitted
Exceptions applicable to personal property) that in the reasonable
opinion of FFCA might prejudice, imperil or otherwise affect the
Equipment or security interest therein of FFCA. Debtor agrees that a
carbon, photographic or other reproduction of a security agreement or
financing statement shall be sufficient as a financing statement. FFCA
is irrevocably appointed Debtor's attorney-in-fact to take any of the
foregoing actions requested of Debtor by FFCA if Debtor, within 10 days
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following FFCA's request, should fail to take such actions, which
appointment shall be deemed coupled with an interest.
3.7. Debtor at its expense will obtain and maintain in force
insurance policies covering losses or damage to the Equipment due to
fire (with extended coverage), theft, physical damage and other such
risks ("Casualty") at its full replacement cost from time to time. FFCA
is hereby irrevocably appointed Debtor's attorney-in-fact to endorse any
check or draft that may be payable to Debtor, alone or jointly with
other payees, if FFCA is entitled to receive such insurance proceeds
pursuant to the Deed of Trust corresponding to the Site and Debtor has
failed to so endorse any such check or draft within 10 days following
FFCA's request, which appointment shall be deemed coupled with an
interest. Debtor shall use the proceeds of such insurance received by it
in respect of a Casualty to the Equipment to repair or replace such
Equipment unless Debtor deems such Equipment to no longer be necessary
for the operation of an Arby's Restaurant, in which case, Debtor shall
use the proceeds to prepay the Note (without premium or penalty).
Insurance proceeds paid on account of any damage to or destruction of
Equipment of less than $100,000.00 (when added together with any
insurance proceeds received in respect of damage to the Trust Estate
under the Deed of Trust related to the Site as a result of a Casualty
(the "Deed of Trust Proceeds") shall be held by Debtor. Insurance
proceeds paid on account of any damage or destruction of the Equipment
of $100,000.00 or more (when added together with any Deed of Trust
Proceeds) shall be held and disbursed by FFCA as contemplated by the
following sentences. Insurance proceeds held by FFCA, less the
reasonable costs, fees and expenses incurred by FFCA and Debtor in
collection thereof, including without limitation, adjustor's fees and
expenses and attorney's fees and expenses, shall be held and disbursed
by FFCA toward the cost for repair or replacement of such Equipment in
the same manner that insurance proceeds held by FFCA are disbursed under
the Deed of Trust with respect to the Site unless Debtor deems such
Equipment to no longer be necessary for the operation of an Arby's
Restaurant, in which case such proceeds shall be used to prepay the
Note, without premium or penalty, and any excess proceeds shall be
returned to Debtor.
3.8. This Agreement shall remain in full effect, without waiver or
surrender of any of FFCA's rights hereunder, notwithstanding any one or
more of the following:
(a) Extension of the time of payment of the whole or any
part of the Note;
(b) Any change in the terms and conditions of the Note;
(c) Substitution of any other evidence of indebtedness for
the Note;
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(d) Acceptance by FFCA of any collateral or security of
any kind for the payment of the Note, any and all extensions or
renewals thereof;
(e) Surrender, release, exchange or alteration of any col-
lateral or other security, either in whole or in part; or
(f) Release, settlement, discharge, compromise, change or
amendment, in whole or in part, of any claim of FFCA against
Debtor or of any claim against any guarantor or other party
secondarily or additionally liable for the payment of the Note.
3.9. FFCA may, at its option, and without any obligation to do so,
pay, perform, and discharge any and all amounts, costs, expenses and
liabilities herein agreed to be paid or performed by Debtor under this
Agreement, provided damage to or destruction of the Equipment is
imminent as determined by FFCA in its reasonable discretion, and Debtor
has failed to take any such actions within 10 days after a request by
FFCA to do so (or such lesser time if such damage or destruction is
threatened, as determined by FFCA in its reasonable discretion, to occur
within such shorter period of time), and all amounts expended by FFCA in
so doing or in respect of or in connection with the Equipment shall
become part of the Obligations secured hereby and shall be immediately
due and payable by Debtor to FFCA upon demand therefor and shall bear
interest at a rate of interest in effect after default on the
indebtedness outstanding under the Note.
4. Events of Default. Any action or event which would constitute an
Event of Default under the Deed of Trust related to the Site shall constitute
an Event of Default hereunder and shall permit FFCA to exercise and pursue the
remedies specified in Section 5 below.
5. Remedies. [Subject to the terms of the Ground Leases, upon] [Upon]
the occurrence and during the continuance of an Event of Default hereunder,
FFCA shall have all rights and remedies of a secured party in, to and against
the Equipment granted by the Uniform Commercial Code in the state in which the
Equipment is located and otherwise available at law or in equity, including,
without limitation, the right, to the same extent and in the manner set forth
in the Deed of Trust related to the Site, to declare payments due under the
Loan Documents to be immediately due and payable and the right to recover all
fees and expenses (including reasonable attorney fees) in connection with the
collection or enforcement hereof.
6. Application of Proceeds. Should FFCA exercise the rights and remedies
specified in Section 5 hereof, any proceeds received thereby shall be first
applied to pay the costs and expenses, including reasonable attorneys' fees,
incurred by FFCA as a result of the Event of Default which was the basis for
FFCA so exercising its remedies. The remainder of any
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proceeds shall be applied to the satisfaction of the Obligations and any
excess shall be paid over to Debtor.
7. Releases. FFCA agrees that it shall promptly release from the Liens
created under the Loan Documents (including, without limitation, this
Agreement) (i) any Equipment that is Transferred as permitted under Section
3.4 hereof upon (a) the acquisition by Debtor of Equipment in replacement
therefor free and clear of all liens, except Permitted Exceptions and the lien
of this Agreement and the corresponding UCC-1 Financing Statements, (b) the
acquisition or lease by Debtor of Equipment in replacement therefor that is
subject to a purchase money security interest, lease or other Lien in favor of
a third party, or (c) the determination in the reasonable judgment of Debtor
that such transferred Equipment is not necessary to operate the Site as an
Arby's Restaurant or Dual Concept, as the case may be, in accordance with
those standards adopted by Arby's on a system-wide basis for operations of
Arby's Restaurants or Dual Concepts, as the case may be, so that replacement
Equipment is not necessary; provided, however, that in the case of clauses (b)
and (c), Debtor shall have prepaid the Note without premium or penalty and
otherwise in accordance with the requirements for prepayment set forth in the
Loan Agreement by an amount equal to the then outstanding principal balance of
the Note multiplied by a fraction whose numerator is the fair market value of
the Equipment replaced at the time of replacement and whose denominator is the
fair market value of all of the Equipment at such time, which fair market
value shall be reasonably determined by Debtor and either FFCA or the master
or special servicer subsequent to the Securitization (as defined in the Loan
Agreement); provided that such master or special servicer is permitted to make
such determination without obtaining the consent of security holders in the
Securitization (otherwise the determination shall be made by Debtor alone
acting in good faith), (ii) Equipment that is the subject of a Casualty
promptly upon prepayment of the Note by Debtor or FFCA under Section 3.7
hereof in an amount equal to the insurance proceeds from such Casualty, but in
no event more than the fair market value of such Equipment immediately prior
to such Casualty, and (iii) the Equipment following a Total Taking (as defined
in the Deed of Trust related to the Site) upon the payment by Debtor of the
outstanding principal balance due under the Note and all other sums due under
the Note and this Agreement, including accrued but unpaid interest. FFCA shall
promptly deliver such documents, including, without limitation, UCC-3
termination statements, reasonably requested by Debtor to effect such
releases. Equipment released pursuant to this Section 7 shall no longer be
deemed Equipment for any and all purposes of the Loan Documents.
8. Applicable Law. For purposes of any action or proceeding arising out
of this Agreement, the Debtor and FFCA hereby expressly submit to the
jurisdiction of all federal and state courts located in the States of Arizona
and New York and each of the parties hereto consents that it may be served
with any process or paper by certified or registered mail at the addresses for
notice pursuant to this Agreement or by personal service within or without the
States of Arizona and New York in accordance with applicable law. Furthermore,
each of the parties hereto waives and agrees not to assert in any such action,
suit or proceeding that it is not
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personally subject to the jurisdiction of such courts, that the action, suit
or proceeding is brought in an inconvenient forum or that venue of the action,
suit or proceeding is improper. It is the intent of the parties hereto that
all provisions of this Agreement shall be governed by and construed under the
laws of the State of Arizona. Nothing contained in this Section shall limit or
restrict the right of FFCA to commence any proceeding in the federal or state
courts located in the state in which the Equipment is located to the extent
FFCA deems such proceeding necessary or advisable to exercise remedies
available under this Agreement or the other Loan Documents and which may only
be enforced in such courts.
9. Nonassignability. Except as permitted by Section 10.G of the Loan
Agreement, this Agreement may not by assigned by Debtor, directly, indirectly,
by operation of law or otherwise, without the consent of FFCA. FFCA may assign
this Agreement without the prior consent of Debtor; provided, however, any
such assignment shall be subject to the limitations of Section 15 of the Loan
Agreement. All references in this Agreement to FFCA shall include the
successors and permitted assigns of FFCA.
10. Possession. Unless an Event of Default shall have occurred and be
continuing, Debtor may retain possession of the Equipment and may use it in
any lawful manner not inconsistent with this Agreement, with the provisions of
any policies of insurance thereon or the other Loan Documents.
11. Waiver. No Default hereunder by Debtor shall be deemed to have been
waived by FFCA except by a writing to that effect signed by FFCA (subject to
the terms of Section 17.C of the Loan Agreement) and no waiver of any Event of
Default shall operate as a waiver of any other Event of Default on a future
occasion. No modification, rescission, waiver, release or amendment of any
provision of this Agreement shall be made except by a written agreement signed
by Debtor and FFCA.
12. Severability. In case any one or more of the provisions contained
herein or in the Note shall be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Agreement shall be construed as if such
provision had never been contained herein or therein.
13. Notices; Amendments; Waiver. All notices, demands, designations,
certificates, requests (including, without limitation, requests for documents
by third parties), offers, consents, approvals, appointments or other
instruments required or permitted to be given by either party pursuant to this
Agreement and other Loan Documents shall be in writing and given by (i) hand
delivery, (ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be deemed to
have been delivered upon (a) receipt, if hand delivered, (b) transmission with
confirmation, if delivered by facsimile, except if such facsimile is
transmitted other than during business hours (business hours being defined as
8:00 a.m. to 6:00 p.m. in the location of the recipient during Business Days),
such transmission shall
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be deemed to have occurred the next Business Day, (c) the next Business Day,
if delivered by express overnight delivery service, or (d) the third business
day following the day of deposit of such notice with the United States Postal
Service, if sent by certified or registered mail, return receipt requested.
Notices shall be provided to the parties and addresses (or facsimile numbers,
as applicable) specified below:
If to Debtor: Arby's Restaurant Holding Company
1000 Corporate Drive
Fort Lauderdale, FL 33334
Attention: Christine C. Marshall, Esq.
Vice President, Acting General Counsel
Telephone: (954) 351-5635
Telecopy: (954) 351-5619
with a copy to: Brian L. Schorr, Esq.
Executive Vice President and General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
If to FFCA: FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Attention: Mr. Stephen G. Schmitz
Senior Vice President Corporate Finance
Telephone: (602) 585-4500
Telecopy: (602) 585-2225
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Copy to: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
or to such other address or such other person as either party may from time to
time hereafter specify to the other party in a notice delivered in the manner
provided above. Whenever in this Agreement the giving of Notice is required,
the giving thereof may be waived in writing at any time by the person or
persons entitled to receive such Notice.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
15. Headings. The headings appearing in this Agreement have been inserted
for convenient reference only and shall not modify, define, limit or expand
the express provisions of this Agreement.
16. Characterization; Interpretation. It is the intent of the parties
hereto that the business relationship created by the Note, this Agreement and
the other Documents is solely that of creditor and debtor and has been entered
into by both parties in reliance upon the economic and legal bargains
contained in the Documents. None of the agreements contained in the Documents
is intended, nor shall the same be deemed or construed, to create a
partnership between FFCA and Debtor, to make them joint venturers, to make
Debtor an agent, legal representative, partner, subsidiary or employee of
FFCA, nor to make FFCA in any way responsible for the debts, obligations or
losses of Debtor.
FFCA and Debtor acknowledge and warrant to each other that each has been
represented by independent counsel and has executed this Agreement after being
fully advised by said counsel as to its effect and significance. This
Agreement shall be interpreted and construed in a fair and impartial manner
without regard to such factors as the party which prepared the instrument, the
relative bargaining powers of the parties or the domicile of any party.
17. Time of the Essence. Time is of the essence in the performance of
each and every obligation under this Agreement.
18. Waiver of Jury Trial and Punitive Damages. FFCA AND DEBTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT
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BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE
RELATIONSHIP OF FFCA AND DEBTOR, DEBTOR'S USE OR OCCUPANCY OF THE EQUIPMENT,
AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY.
THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
FURTHERMORE, FFCA AND DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT THEY MAY HAVE TO SEEK PUNITIVE DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY FFCA OR DEBTOR AGAINST THE OTHER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY FFCA AND DEBTOR OF ANY
RIGHT IT MAY HAVE TO SEEK PUNITIVE DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES
HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
DEBTOR:
ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By
Printed Name
Title
SECURED PARTY:
FFCA MORTGAGE CORPORATION,
a Delaware corporation
By
Printed Name
Title
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
EQUIPMENT
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EXHIBIT F
FORM OF GUARANTY
01/514412.5
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<PAGE>
UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
1. FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, the undersigned ("Guarantor"), unconditionally, absolutely and
irrevocably guarantees and promises to pay to FFCA MORTGAGE CORPORATION, a
Delaware corporation ("FFCA"), or order, any and all amounts, including,
without limitation, principal, interest, taxes, insurance premiums, impounds,
late charges and interest, damages and all other amounts, costs, fees,
expenses and charges of any kind or type whatsoever, which may or at any time
be due to FFCA pursuant to the following agreements (collectively, the
"Documents"):
A. Loan Agreement (the "Agreement"), dated as of , 1996, between
FFCA and ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation
("Debtor") under which FFCA is making a loan secured by a first priority
security interest in the Debtor's [leasehold] [fee simple] interest in
the land and its fee simple interest in the improvements located at the
site listed on Exhibit A attached hereto or such substitute site(s)
resulting from Debtor's right of substitution (the "Site");
B. Promissory Note, dated as of the date hereof in the amount of
$ from Debtor to FFCA (the "Note");
C. Deed of Trust, Assignment of Rents and Leases and Security
Agreement(the "Deed of Trust"), dated as of the date hereof executed by
Debtor for the benefit of FFCA; and
[D. Equipment Promissory Note, dated as of the date hereof in the
amount of $ from Debtor to FFCA;
E. Equipment Security Agreement dated as of the date hereof
between FFCA and Debtor;] and
F. Any amendment, supplement or modification of the foregoing.
2. Guarantor unconditionally guarantees the full and timely perform-
ance of all obligations to be performed by Debtor under or pursuant to the
Documents.
3. Theobligation of Guarantor is primary and independent of the obli-
gation of Debtor, and a separate action or actions may be brought and executed
against Guarantor,
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whether or not such action is brought against Debtor and whether or not Debtor
is joined in such action or actions.
4. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives any
requirement that FFCA first make demand upon, or seek to enforce remedies
against, Debtor or any other person or entity or any of the collateral or
property of Debtor or such other person or entity before demanding payment
from, or seeking to enforce this Guaranty against Guarantor; (b) waives and
agrees not to assert any and all rights, benefits and defenses which might
otherwise be available under the provisions of Ariz. Rev. Stat. ss.ss. 12-1641
and 1642, 44-141, 44-142 or 47-3605, Arizona Rules of Civil Procedure Rule
17(f), or any other Arizona statutes or rules (including any statutes or rules
amending, supplementing or supplanting same) which might operate, contrary to
Guarantor's agreements in this Guaranty, to limit Guarantor's liability under,
or the enforcement of, this Guaranty; (c) covenants that this Guaranty will
not be discharged until all of the obligations of Debtor under the Documents
are fully satisfied and (d) agrees that this Guaranty shall remain in full
effect without regard to, and shall not be affected or impaired by, any
invalidity, irregularity or unenforceability in whole or in part of any of the
Documents, or any limitation of the liability of Debtor or Guarantor
thereunder, or any limitation on the method or terms of payment thereunder
which may now or hereafter be caused or imposed in any manner whatsoever.
5. This Guaranty is a continuing guaranty and the obligations,
undertakings and conditions to be performed or observed by Guarantor under
this Guaranty shall not be affected or impaired by reason of the happening
from time to time of the following, all without notice to, or the further
consent of, Guarantor:
(a) the waiver by FFCA of the observance or performance by Debtor,
Guarantor or any one or more of them of any of the obligations,
undertakings or conditions contained in any of the Documents, except to
the extent of such waiver;
(b) the extension, in whole or in part, of the time for payment
of any amount owing or payable under the Documents;
(c) the modification or amendment (whether material or otherwise)
of any of the obligations of Debtor under any of the Documents, except
to the extent of such modification or amendment;
(d) the taking or the omission of any of the actions referred to
in any of the Documents (including, without limitation, the giving of
any consent referred to therein);
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(e) any failure, omission, delay or lack on the part of FFCA to
enforce, assert or exercise any right, power or remedy conferred on FFCA
in any of the Documents or any action on the part of FFCA granting
indulgence or extension in any form;
(f) the assignment to or assumption by any third party of any or
all of the rights or obligations of Debtor under all or any of the Docu-
ments;
(g) the release or discharge of Debtor from the performance or
observance of any obligation, undertaking or condition to be performed
by Debtor under any of the Documents by operation of law;
(h) the receipt and acceptance by FFCA or any other person or
entity of notes, checks or other instruments for the payment of money
and extensions and renewals thereof;
(i) any action, inaction or election of remedies by FFCA which
results in any impairment or destruction of any subrogation rights of
Guarantor, or any rights of Guarantor to proceed against any other
person or entity for reimbursement;
(j) any event or circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor, indemnitor or
surety under the laws of the State of Arizona, the state in which the
Site which is the subject of the Deed of Trust is located or any other
applicable jurisdiction;
(k) the substitution of a Substitute Site pursuant to the terms
and conditions of the Loan Agreement; or
(l) except as provided herein, any change in the corporate rela-
tionship among Debtor, RC/Arby's Corporation, Arby's, Inc. or Guarantor.
6. Guarantor represents and warrants that:
(a) Guarantor is a corporation duly formed, validly existing and
in good standing under the laws of its jurisdiction of organization and
is duly qualified to do business in each jurisdiction in which such
qualification is required and in which the failure so to qualify would
have a material adverse effect on the financial condition of Guarantor
and its subsidiaries taken as a whole.
(b) Guarantor has the full power, authority, capacity and legal
right to execute and deliver this Guaranty, and the parties executing
this Guaranty on behalf of Guarantor are fully authorized and directed
to execute the same to bind Guarantor.
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(c) This Guaranty has been duly executed and delivered by
Guarantor and is the legal, valid and binding agreement of Guarantor and
is enforceable against Guarantor in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally and general principles of equity regardless
of whether enforcement is considered in a proceeding at law or in
equity.
(d) Neither the execution nor delivery of this Guaranty nor
fulfillment of nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of the terms or conditions of, or
constitute a default under, or result in the creation of any lien,
charge or encumbrance upon any property or assets of Guarantor under any
agreement or instrument to which Guarantor is now a party or by which
such Guarantor may be bound, which conflict, breach, default, lien,
charge or encumbrance is reasonably likely to result in a material
adverse change in the financial condition of Guarantor and its
subsidiaries taken as a whole.
(e) Guarantor has obtained all necessary consents, approvals or
authorizations which are required for the execution and delivery of this
Guaranty by Guarantor or for Guarantor's compliance with the terms and
provisions of this Guaranty.
(f) Guarantor is not a "foreign corporation," "foreign
partnership," "foreign trust," or "foreign estate," as those terms are
defined in the United States Internal Revenue Code and the regulations
promulgated thereunder. Guarantor's Federal Tax Identification Number is
accurately set forth herein next to the signature of Guarantor.
(g) Guarantor has delivered to FFCA audited consolidated financial
statements as of December 31, 1994 and for the fiscal year then ended.
Such financial statements and other information relating to Guarantor
heretofore delivered to FFCA fairly present, as of such date for the
period presented, in all material respects the financial position of
Guarantor in accordance with generally accepted accounting principles
consistently applied.
(h) Except as disclosed in Guarantor's Form 10-K for the fiscal
year ended December 31, 1994, there is no pending or, to the best of
Guarantor's knowledge, threatened action, proceeding or investigation
before any court, governmental agency or arbitrator against or affecting
Guarantor or any of its properties or assets which is likely to result
in a material adverse change in the financial condition of Guarantor and
its subsidiaries taken as a whole.
7. Guarantor covenants and agrees that:
(a) Guarantor will provide FFCA and its assigns with each of the
following:
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(i) Within 105 days after the close of each fiscal year of
Guarantor, the consolidated balance sheet of Guarantor, as at the
end of such fiscal year and the related statements of income and
retained earnings and of cash flows for such fiscal year, in each
case setting forth comparative figures on a consolidated basis for
the preceding fiscal year, and examined by independent certified
public accountants of recognized national standing whose opinion
shall not be qualified as to the scope of audit and as to the
status of Guarantor as a going concern;
(ii) As soon as available (but no earlier than the date
Guarantor files its Form 10-Q under the Securities Exchange Act of
1934) and in any event within 50 days after the close of each of
the first three quarterly accounting periods in each fiscal year,
the consolidated balance sheet of Guarantor, as at the end of such
quarterly period and the related statements of income and retained
earnings and of cash flows for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such
quarterly period, and in each case setting forth comparative
figures on a consolidated basis for the related periods in the
prior fiscal year, all of which shall be certified by the chief
financial officer or chief accounting officer of Guarantor,
prepared in accordance with generally accepted accounting
principles consistently applied, except for changes resulting from
audit and normal year-end audit adjustments and except for the
absence of footnotes; and
(iii) At the time of the delivery of the financial
statements provided for above, a certificate of the chief
financial officer or chief accounting officer of Guarantor to the
effect that, to such person's knowledge, after reasonably diligent
inquiry, no material default exists under this Guaranty or, if any
such material default does exist, specifying the nature and extent
thereof.
(b) At all times during the term of this Guaranty, Guarantor shall
maintain a net worth, on a consolidated basis, at least equal to
$25,000,000, as determined in accordance with generally accepted
accounting principles consistently applied.
(c) Except as provided herein, Guarantor shall maintain its
existence and shall continue to be a corporation, duly qualified to do
business in each jurisdiction in which such qualification is required
and in which the failure so to qualify would have a material adverse
effect on the financial condition of Guarantor and its subsidiaries
taken as a whole. Guarantor shall promptly inform FFCA of any change in
the location of its principal office or of any change in the location of
its books and records. It shall be a condition precedent to the merger
of Guarantor into another entity, to the consolidation of Guarantor with
one or more other entities and to the sale or other disposition of all
or substantially all of the assets of Guarantor to one or more other
entities that the surviving entity or transferee of assets, as the case
may be, shall deliver to FFCA, and
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any assignee of any interest of FFCA in the Documents, an acknowledged
instrument assuming all obligations, covenants and responsibilities of
Guarantor hereunder. Guarantor covenants that it will not merge or
consolidate or sell or otherwise dispose of all or substantially all of
its assets unless such an instrument shall have been delivered to FFCA.
(d) Guarantor will promptly inform FFCA, or cause FFCA to be
promptly informed, in writing setting forth details of the occurrence or
event referred to therein and stating what action, if any, is proposed
to be taken with respect thereto, of any of the following of which it
has actual knowledge:
(i) the occurrence of any event of default or any fact or
event which results, or which with notice or the passage of time,
or both, would result, in an event of default under the Documents;
and
(ii) the commencement of any proceedings by or against
Guarantor under any applicable bankruptcy, reorganization,
liquidation, insolvency or other similar law now or hereafter in
effect or of any proceeding in which a receiver, liquidator,
trustee or other similar official is sought to be appointed for
Guarantor or a material portion of its assets.
8. This Guaranty shall continue in full force and effect until all of
the obligations of Debtor under the Documents (the "Obligations") are duly,
finally and permanently paid, performed and discharged. The Obligations shall
not be considered fully paid, performed and discharged unless and until all
payments by Debtor to FFCA are no longer subject to any right on the part of
any person whomsoever, including but not limited to Debtor, Debtor as a
debtor-in-possession and/or any trustee in bankruptcy, to disgorge such
payments or seek to recoup the amount of such payments or any part thereof.
The foregoing shall include, by way of example and not by way of limitation,
all rights to recover preferences voidable under Title 11 of the United States
Bankruptcy Code, as amended, 11 U.S.C. Sec. 101 et seq. In the event that any
such payments by Debtor to FFCA are disgorged after the making thereof, in
whole or in part, or settled without litigation, to the extent of such
disgorgement or settlement, Guarantor shall be liable for the full amount FFCA
is required to repay plus interest, late charges, attorney's fees and any and
all expenses paid or incurred by FFCA in connection therewith.
9. So long as the Obligations remain outstanding, Guarantor shall not
exercise any right of subrogation, indemnity or reimbursement nor make any
other claim against Debtor arising from Guarantor's performance of its
obligations under this Guaranty. Furthermore, Guarantor hereby unconditionally
and irrevocably waives (a) so long as the Obligations remain outstanding, any
right to participate in any security now or hereafter held by FFCA or in any
claim or remedy of FFCA or any other person against Debtor with respect to
obligations guaranteed hereby, (b) any statute of limitations affecting
Guarantor's liability hereunder, (c) all
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principles and provisions of law which conflict with the terms of this
Guaranty and (d) diligence, presentment, demand for performance, notice of
nonperformance, notice of intent to accelerate and acceleration, notice of
protest, notice of dishonor, notice of execution of any Documents, notice of
extension, renewal, alteration or amendment, notice of acceptance of this
Guaranty and all other notices whatsoever.
10. Notwithstanding the preceding Section 9, in the event that Guarantor
shall have any claims against Debtor, any indebtedness of Debtor now or
hereafter held by Guarantor is hereby subordinated to amounts then due and
owing under any indebtedness of Debtor to FFCA. Payments made on any such
indebtedness of Debtor to Guarantor at a time when amounts are then due and
owing on indebtedness of Debtor to FFCA, if FFCA so requests, shall be
collected, enforced and received by Guarantor as trustee for FFCA and be paid
over to FFCA on account of the obligations guaranteed hereby, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
11. It is not necessary for FFCA to inquire into the powers of Debtor or
its officers, directors, partners or agents acting or purporting to act on its
behalf, and Guarantor shall be liable for the obligations of Debtor in
accordance with their terms notwithstanding any lack of authorization or
defect in execution or delivery by Debtor.
12. In addition to the amounts guaranteed under this Guaranty, Guarantor
agrees to pay reasonable attorneys' fees and other costs and expenses actually
and reasonably incurred by or through FFCA in the enforcement of this
Guaranty.
13. This Guaranty shall apply to the parties hereto and their successors
and permitted assigns according to the context hereof and without regard to
the number or gender of words or expressions used herein.
14. Guarantor, hereby agrees to indemnify, protect, defend and hold
harmless FFCA from any loss, cause of action, claim, cost (including, but not
limited to, any cost or amount paid in preparation for, investigation of or
settlement of litigation or any proceeding), expense, fee (including but not
limited to reasonable attorney's fees), penalty, fine or judgment suffered or
occasioned by the failure of Debtor to satisfy its obligations under the
Documents or the failure of Guarantor to satisfy its obligations under this
Guaranty. The obligations of Guarantor under this section shall be
independent, primary, joint and several obligations of Guarantor. The
agreement to indemnify, protect, defend and hold harmless FFCA contained in
this paragraph shall be enforceable notwithstanding the invalidity or
unenforceability of the Documents or any of them or the invalidity or
unenforceability of any other paragraph contained in this Guaranty.
15. All moneys from Guarantor available to FFCA pursuant to this Guar-
anty for application in payment or reduction of the obligations of Debtor
under the Documents may be
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applied by FFCA to the payment or reduction of such obligations of Debtor, in
such manner, in such amounts and at such time or times as FFCA may elect.
16. All notices, demands, designations, certificates, requests,
(including, without limitation, requests for documents by third parties),
offers, consents, approvals, appointments or other instruments required or
permitted to be given pursuant to this Guaranty shall be in writing and given
by (i) hand delivery, (ii) facsimile, (iii) express overnight delivery service
or (iv) certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission with confirmation, if delivered by facsimile, except if such
facsimile is transmitted other than during business hours (business hours
being defined as 8:00 a.m. to 6:00 p.m. in the location of the recipient
during a Business Day), such transmission shall be deemed to have occurred the
next Business Day, (c) the next Business Day, if delivered by express
overnight delivery service or (d) the third Business Day following the day of
deposit of such notice with the United States Postal Service, if sent by
certified or registered mail, return receipt requested. Notices shall be
provided to the addresses (or facsimile numbers, as applicable) specified
below:
If to Guarantor: John L. Cohlan
Senior Vice President-Corporate Finance
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3095
Telecopy: (212) 230-3216
with a copy to: Brian L. Schorr, Esq.
Executive Vice President and
General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
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If to Debtor: Arby's Restaurant Holding Company
1000 Corporate Drive
Fort Lauderdale, FL 33334
Attention: Christine C. Marshall, Esq.
Vice President, Acting General Counsel
Telephone: (954) 351-5635
Telecopy: (954) 351-5619
with a copy to: Brian L. Schorr, Esq.
Executive Vice President and General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
If to FFCA: Stephen G. Schmitz
Senior Vice President Corporate Finance
FFCA Mortgage Corporation
The Perimeter Center
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2225
With a copy to: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
FFCA Mortgage Corporation
The Perimeter Center
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
01/518090.02
Arby's-Unit No.
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<PAGE>
or to such other address or such other person as either Guarantor, Debtor or
FFCA may from time to time hereafter specify to the other party in a notice
delivered in the manner provided above. For purposes of this Guaranty,
"Business Day" shall have the meaning provided in the Deed of Trust.
17. This Guaranty is made under and governed by the internal laws of the
State of Arizona. For purposes of any action or proceeding involving this
Guaranty, Guarantor submits to the jurisdiction of all federal and state
courts located in the States of Arizona and New York and consents that it may
be served with any process or paper by registered mail or by personal service
within or without the States of Arizona and New York in accordance with
applicable law. Furthermore, Guarantor waives and agrees not to assert in any
such action, suit or proceeding that it is not personally subject to the
jurisdiction of such courts, that the action, suit or proceeding is brought in
an inconvenient forum or that venue of the action, suit or proceeding is
improper. Nothing contained in this section shall limit or restrict the right
of FFCA to commence any proceeding in the federal or state courts located in
the state in which the Site is located and/or where Guarantor resides to the
extent FFCA deems such proceeding necessary or advisable to exercise remedies
available under this Guaranty or the Documents.
18. All of FFCA's rights and remedies under the Documents and this
Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy is intended to be in exclusion of or a waiver of any of the
others.
19. This Guaranty is solely for the benefit of FFCA, its successors and
assigns including, without limitation, its successors and assigns under the
Documents, and is not intended to nor shall be deemed to be for the benefit of
any third party, including, without limitation, Debtor. This Guaranty is a
continuing Guaranty and shall be binding upon Guarantor and its successors and
assigns; provided, however, that Guarantor may not assign this Guaranty or any
of the rights or obligations of Guarantor hereunder without the prior consent
of FFCA, which consent may be withheld in FFCA's sole discretion, except that
Guarantor may assign its rights and obligations under this Guaranty without
FFCA's consent (i) to any Person of which Debtor is, or after giving effect to
any transactions that are occurring simultaneously with such assignment, will
become, a direct or indirect wholly-owned subsidiary, that has a net worth, on
a consolidated basis, at least equal to $25,000,000, as determined in
accordance with generally accepted accounting principles consistently applied,
and that executes an acknowledged instrument pursuant to which such assignee
assumes all the obligations, covenants and responsibilities of Guarantor under
this Guaranty, (ii) upon receipt of a solvency letter, from a nationally
recognized valuation firm, investment banking firm or firm of independent
certified public accountants, to the effect that both immediately before and
immediately after giving effect to the assignment and the transactions that
are occurring simultaneously with such assignment, (a) the assets of the
assignee of Guarantor exceeded its liabilities, (b) the assignee of Guarantor
would be able to pay its debts as such debts mature and (c) the assignee of
Guarantor did not have unreasonably small capital with which to engage in its
business and (iii) upon receipt of a
01/518090.02
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<PAGE>
legal opinion from counsel reasonably acceptable to FFCA that this Guaranty
constitutes the valid and binding obligation of the assignee of Guarantor
enforceable against such assignee in accordance with its terms, subject to
customary exceptions (in which case Guarantor shall be released from all of
its obligations accruing hereunder from and after the date of such
assignment). For purposes of this Guaranty, "Person" shall have the meaning
provided in the Agreement.
20. If any provision of this Guaranty is unenforceable, the
enforceability of the other provisions shall not be affected and they shall
remain in full force and effect.
21. Guarantor agrees to take such action and to sign such other
documents as may be appropriate to carry out the intent of this Agreement.
22. This Guaranty may be executed in one or more counterparts, each of
which shall be deemed an original.
23. GUARANTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL
ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY
EITHER OF THEM AGAINST THE OTHER OR ITS RESPECTIVE SUCCESSORS WITH RESPECT TO
ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY GUARANTOR AND FFCA OF
ANY RIGHT TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN. FURTHERMORE, GUARANTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT TO SEEK PUNITIVE DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY GUARANTOR OR FFCA AGAINST THE OTHER OR ITS RESPECTIVE
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS GUARANTY OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS
WAIVER BY GUARANTOR AND FFCA OF ANY RIGHT TO SEEK PUNITIVE DAMAGES HAS BEEN
NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
24. At such time as this Guaranty is (i) no longer in full force and
effect or (ii) assigned by Guarantor as permitted pursuant to the terms of
this Guaranty, FFCA (or its successors and assigns) shall execute and deliver
such documents or instruments as reasonably requested by Guarantor evidencing
the release of the obligations of Guarantor (as guarantor or assignor, as the
case may be) in accordance with the terms of this Guaranty.
01/518090.02
Arby's-Unit No.
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<PAGE>
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
effective as of , 199 .
Federal Tax I.D. Number: TRIARC COMPANIES, INC.
38-0471180
By
Printed Name
Title
01/518090.02
Arby's-Unit No.
FFCA No. 8000-
07/23/96
12
<PAGE>
STATE OF ]
] SS.
COUNTY OF ]
The foregoing instrument was acknowledged before me on this day of , 199
, by , of Triarc Companies, Inc., a Delaware corporation, on behalf of the
corporation.
------------------
Notary Public
My Commission Expires:
01/518090.02
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<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
01/518090.02
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<PAGE>
EXHIBIT G
FORM OF COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT
01/514412.5
Arby's
<PAGE>
COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT
THIS COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT (this "Assignment") is
executed as of , 1996, by and between ARBY'S RESTAURANT HOLDING COMPANY, a
Delaware corporation ("Debtor"), whose address is 1000 Corporate Drive, Fort
Lauderdale, Florida 33334, and FFCA MORTGAGE CORPORATION, a Delaware
corporation ("FFCA"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255.
PRELIMINARY STATEMENT
The capitalized terms which are not otherwise defined in this Assignment
shall have the meanings set forth in that certain Loan Agreement dated as of
August , 1996 between FFCA and Debtor (the "Loan Agreement").
Debtor owns the Site and the Equipment located at the Site legally
described on the attached Exhibit A. Arby's, Inc., a Delaware corporation, has
granted a license (the "License") to Debtor dated as of the date hereof to
operate the Site as an Arby's Restaurant, a true, correct and complete copy of
which License is attached hereto as Exhibit B. To secure the payment and
performance of Debtor's obligations to FFCA pursuant to the Loan Agreement,
Debtor has agreed to collaterally assign its rights under the License to FFCA
pursuant to the terms and conditions contained herein.
AGREEMENT
1. Assignment. Debtor hereby collaterally assigns to FFCA, its
successors and permitted assigns, and grants a security interest in, all of
the right, title and interest of Debtor in and to the License. This Assignment
is made for the purpose of securing the payment and performance when due of
the Debtor's obligations ("Obligations") under the Loan Agreement.
2. Representations and Warranties. Debtor represents and warrants to
FFCA that as of the date hereof:
(a) Debtor has not assigned any of its rights under the License
to any other person. The License is in full force and effect;
(b) Debtor is not in default under the License;
(c) Debtor is not prohibited under any agreement with any third
party or under any judgment or decree from the execution and delivery of
this Assignment or the performance in all material respects of Debtor
hereunder; and
01/518097.1
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<PAGE>
(d) No action has been brought or to Debtor's knowledge threatened
which would in any way prohibit or materially restrict the execution and
delivery of this Assignment or the performance in all material respects
of Debtor hereunder and/or License, as applicable.
3. Covenants. Debtor agrees and covenants unto FFCA as follows:
(a) Debtor will (i) fulfill, perform and observe in all material
respects each and every material condition and covenant of Debtor
contained in the License; (ii) give prompt notice to FFCA of any claim
or event of default under the License given to Debtor, together with a
complete copy or statement of any information submitted or referenced in
support of such claim or event of default; (iii) at the sole cost and
expense of Debtor, enforce the performance and observance of each and
every material covenant and condition of the License to be performed or
observed by any other party to the License unless such enforcement is
waived in writing by FFCA; and (iv) appear in and defend any action
challenging the validity, enforceability or priority of the lien created
hereby or the validity or enforceability of the License.
(b) Without the prior written approval of FFCA, Debtor will not
(i) modify the terms of the License or (ii) waive or release any person
from the observance or performance of any obligation to be performed
under the material terms of the License or liability on account of any
material warranty given thereunder.
(c) The rights assigned hereunder include all of Debtor's rights
and title under the License, including, without limitation, to the
extent applicable, the right (i) to modify the License; (ii) to
terminate the License in accordance with the respective terms of the
License and (iii) to waive or release the performance or observance of
any obligation or condition of the License; provided, however, these
rights shall not be exercised by FFCA unless there has occurred and is
continuing an Event of Default under this Assignment.
4. Events of Default. The occurrence of any Event of Default under the
Loan Agreement shall constitute an Event of Default hereunder. Upon the
occurrence and during the continuance of an Event of Default, FFCA may (a)
proceed to exercise any or all remedies available at law or in equity to the
extent and in the manner provided in the Loan Agreement; (b) proceed to
perform any and all obligations and exercise any of the rights of Debtor
contained in the License and exercise any and all rights of Debtor therein
contained as fully as Debtor itself could, and without regard to the adequacy
of security for the indebtedness and with or without the bringing of any legal
action or the causing of any receiver to be appointed by any court; and (c)
subject to the provisions of the Loan Agreement, do all other acts which FFCA
may deem necessary or proper to protect its security created hereunder and
pursuant to the . Debtor hereby constitutes FFCA as its attorney-in-fact to,
upon the occurrence and continuance of an Event of Default, sue under the
License, in the name of Debtor or FFCA or both. The
01/518097.1
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power of attorney granted hereby shall be irrevocable and coupled with an
interest and shall terminate only upon the payment of all sums due FFCA for
all losses, costs, damages, fees and expenses whatsoever associated with the
exercise of this power of attorney, and Debtor hereby releases FFCA from all
liability (other than as a result of the gross negligence or willful
misconduct of FFCA or its employees, representatives or agents) whatsoever for
the exercise of the foregoing power of attorney and all actions taken pursuant
thereto.
5. Indemnity. FFCA shall not be obligated to perform or discharge any
obligation of Debtor under the License, and Debtor agrees to indemnify and
hold FFCA and its shareholders, directors, officers, employees, affiliates,
agents, trustees, successors, assigns, lenders and attorneys harmless from and
against any and all liability, loss or damage which FFCA may incur under the
License or under or by reason of this Assignment, and of and from all claims
and demands whatsoever which may be asserted against it by reason of an act of
FFCA under this Assignment or under the License, except to the extent of
FFCA's gross negligence or willful misconduct.
6. Remedies Not Exclusive. The remedies herein provided shall be in
addition to and not in substitution for the rights and remedies which would
otherwise be vested in FFCA under the Loan Agreement, or at law or in equity,
all of which rights and remedies are specifically reserved by FFCA. The
remedies herein provided or otherwise available to FFCA shall be cumulative
and may be exercised concurrently. The failure to exercise any of the remedies
herein provided shall not constitute a waiver thereof, nor shall the use of
any of the remedies hereby provided prevent the subsequent or concurrent
resort to any other remedy or remedies. It is intended that this clause shall
be broadly construed so that all remedies herein provided for or otherwise
available to FFCA shall continue and be available to FFCA until all
Obligations secured by this Assignment have been paid and performed in full
and all obligations incurred by it have been fully discharged without loss or
damage to FFCA.
7. Notice. All notices, demands, designations, certificates, requests
(including, without limitation, requests for documents by third parties),
offers, consents, approvals, appointments or other instruments required or
permitted to be given by either party pursuant to this Assignment shall be in
writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon (a)
receipt, if hand delivered, (b) transmission with confirmation, if delivered
by facsimile, except if such facsimile is transmitted other than during
business hours (business hours being defined as 8:00 a.m. to 6:00 p.m. in the
location of the recipient during a Business Day), such transmission shall be
deemed to have occurred the next Business Day, (c) the next Business Day, if
delivered by express overnight delivery service, or (d) the third Business Day
following the day of deposit of such notice with the United States Postal
Service, if sent by certified or registered mail, return receipt requested.
Notices shall be provided to the parties and addresses (or facsimile numbers,
as applicable) specified below:
01/518097.1
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<PAGE>
If to Debtor: Christine C. Marshall, Esq.
Vice President, Acting General Counsel
Arby's Restaurant Holding Company
1000 Corporate Drive
Fort Lauderdale, FL 33334
Telephone: (954) 351-5635
Telecopy: (954) 351-5619
Copy to: Brian L. Schorr, Esq.
Executive Vice President and General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and
Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
If to FFCA: FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Attention: Stephen G. Schmitz
Vice President Corporate Finance
Telephone: (602) 585-4500
Telecopy: (602) 585-2225
with a copy to: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
01/518097.1
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FFCA No. 8000-
07/23/96
4
<PAGE>
or to such other address or such other person as either party may from time to
time hereafter specify to the other party in a notice delivered in the manner
provided above.
The addresses and telecopy numbers provided herein are conclusively
deemed to be valid, and notice given in compliance with this subsection is
conclusively presumed to be proper and adequate, unless a written change of
address and/or telecopy number is provided to all parties listed above in
accordance with the written notice provisions of this subsection.
8. Waiver and Amendment. No provisions of this Assignment shall be
deemed waived or amended except in accordance with the terms and conditions of
the Loan Agreement regarding waiver and amendment and by a written instrument
setting forth the matter waived or amended and signed by the party against
which enforcement of such waiver or amendment is sought. Waiver of any matter
shall not be deemed a waiver of the same or any other matter on any future
occasion.
9. Captions. Captions are used throughout this Assignment for convenience
of reference only and shall not be considered in any manner in the
construction or interpretation hereof.
10. Severability. The provisions of this Assignment shall be deemed
severable. If any part of this Assignment shall be held unenforceable, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal effect
to the intention of the parties as expressed therein.
11. Forum Selection; Jurisdiction; Venue; Choice of Law. For purposes of
any action or proceeding arising out of this Assignment, the Debtor and FFCA
hereby expressly submit to the jurisdiction of all federal and state courts
located in the States of Arizona and New York and each of the parties hereto
consents that it may be served with any process or paper by certified or
registered mail at the addresses for notice pursuant to this Assignment or by
personal service within or without the States of Arizona and New York in
accordance with applicable law. Furthermore, each of the parties hereto waives
and agrees not to assert in any such action, suit or proceeding that it is not
personally subject to the jurisdiction of such courts, that the action, suit
or proceeding is brought in an inconvenient forum or that venue of the action,
suit or proceeding is improper. The creation of this Assignment and the rights
and remedies of FFCA with respect to the License, as provided herein and by
the laws of the state in which the Site is located, shall be governed by and
construed in accordance with the internal laws of the state in which the Site
is located without regard to principles of conflict of law. With respect to
other provisions of this Assignment, this Assignment shall be governed by the
internal laws of the State of Arizona. Nothing contained in this Section shall
limit or restrict the right of FFCA to commence any proceeding in the federal
or state courts located in the state in which the Site is located to the
extent FFCA deems such proceeding necessary or advisable to exercise
01/518097.1
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<PAGE>
remedies available under this Assignment or the Loan Agreement and which may
only be enforced in such courts.
12. Waiver of Jury Trial and Punitive Damages. DEBTOR AND FFCA HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES HERETO AGAINST
ANY OTHER PARTY HERETO OR ITS RESPECTIVE SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS ASSIGNMENT OR ANY DOCUMENT
CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF
ANY RIGHT TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN. FURTHERMORE, Debtor AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO SEEK PUNITIVE DAMAGES FROM ANY
OTHER PARTY HERETO WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY DEBTOR OR FFCA AGAINST ANY OTHER
PARTY HERETO OR ITS RESPECTIVE SUCCESSORS WITH RESPECT TO ANY MATTER ARISING
OUT OF OR IN CONNECTION WITH THIS ASSIGNMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THE WAIVER BY Debtor AND FFCA OF ANY RIGHT THEY MAY
HAVE TO SEEK PUNITIVE DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS
AN ESSENTIAL ASPECT OF THEIR BARGAIN.
13. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their heirs, successors, legal
representatives and permitted assigns, including, without limitation, any
United States trustee, any Debtor in possession or any trustee appointed from
a private panel. All references in this Assignment to FFCA shall include
FFCA's successors and permitted assigns.
14. Satisfaction. FFCA agrees that upon satisfaction in full of the
Obligations, this Assignment shall be released.
01/518097.1
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<PAGE>
IN WITNESS WHEREOF, Debtor has caused this Assignment to be executed as
of the date first above written.
ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By
Printed Name
Title
01/518097.1
Arby's
FFCA No. 8000-
07/23/96
7
<PAGE>
The foregoing Assignment is agreed and consented to by the undersigned,
and the undersigned further agrees that the terms and conditions of the
Addendum to Trademark License Agreement executed by the undersigned on with
respect to the License are in addition to the terms and conditions of this
Assignment and do not supersede nor are they superseded by the terms and
conditions of this Assignment.
ARBY'S, INC., a Delaware corporation
By
Printed Name
Title
01/518097.1
Arby's
FFCA No. 8000-
07/23/96
8
<PAGE>
EXHIBIT H
OPINION MATTERS
01/514412.5
Arby's
<PAGE>
As of September 6, 1996
FRANCHISE FINANCE CORPORATION OF AMERICA
FFCA MORTGAGE CORPORATION
17207 North Perimeter Drive
Scottsdale, AZ 85255
RE: FFCA Mortgage Corporation
Loan Secured by Arby's(R) Restaurants
Ladies and Gentlemen:
I am Vice President and Acting General Counsel of Arby's, Inc. d/b/a
Triarc Restaurant Group, a Delaware corporation ("Arby's"), and in my capacity
as such, I am delivering this opinion in connection with that certain loan
agreement (the "Loan Agreement") between FFCA Mortgage Corporation, a Delaware
corporation ("FFCA"), and Arby's Restaurant Holding Company, a Delaware
corporation ("Debtor"), dated as of even date herewith. Capitalized terms used
and not otherwise defined have the respective meanings given those terms in
the Loan Agreement. This opinion is being furnished to you at the request of
Debtor pursuant to Section 12I of the Loan Agreement.
In connection with this opinion, I have examined originals, or copies
certified or otherwise identified to my satisfaction, of the following
documents, each dated as of various dates (collectively, the "Documents"):
(i) the form of the Purchase Agreements listed on Schedule 1 hereto
(collectively, the "Purchase Agreements");
(ii) the form of the License Agreements listed on Schedule 1 hereto
(collectively, the "License Agreements"); and
(iii) the form of the Management Agreements listed on Schedule 1
hereto (collectively, the "Management Agreements").
In addition, I have examined (i) such corporate records of Arby's as I
have considered appropriate, including copies of the certificates of
incorporation, as amended, and by-laws, as amended, of Arby's as in effect on
the date hereof and certified copies of resolutions of the board of directors
of Arby's; and (ii) such other certificates, agreements and documents as I
deemed relevant and necessary as a basis for the opinions hereinafter
expressed.
In my examination of the Documents, I have assumed, without independent
investigation, the genuineness of all signatures, the due authorization,
execution and delivery of the Documents by each party thereto other than
Arby's, the enforceability of the Documents against each party thereto (except
for enforceability of the License Agreements and the Management Agreements
against each Company [as hereinafter defined] that is a party thereto), the
authenticity of all Documents submitted to me as originals, the conformity to
the original documents of all documents submitted to me as certified,
photostatic, reproduced or conformed copies of valid existing agreements or
other documents, the authenticity of all such latter documents and the legal
capacity of all individuals who have executed any of the documents.
In expressing the opinions set forth herein, I have relied upon the
factual matters contained in the representations and warranties of RC/Arby's
Corporation, a Delaware corporation ("RC/Arby's"), Triarc Companies, Inc., a
Delaware corporation ("Triarc"), Arby's Restaurant Development Corporation, a
Delaware corporation ("ARDC"), Arby's Restaurant Operations Company, a
Delaware corporation ("AROC") (RC/Arby's, Triarc, ARDC, AROC and Debtor are
sometimes referred to herein collectively as the "Companies" and individually
as the "Company") and the Debtor made in the Loan Documents and the Guaranty
and upon certificates of public officials and officers of the Companies and
Arby's.
Based upon the foregoing, and subject to the assumptions, exceptions
and qualifications set forth herein, I am of the opinion that:
1. The execution and delivery by Arby's of each of the Documents to
which it is a party and the performance by Arby's of its obligations
thereunder do not violate or result in a breach of or default under (i) any
indenture, mortgage, deed of trust, security deed, loan agreement or other
material contract, document, agreement or instrument of which I have knowledge
and to which Arby's is a party or by which Arby's is bound or to which any of
the properties or assets of Arby's is subject; provided that I express no
opinion as to the Indenture, dated as of August 1, 1993 (the "Indenture"),
among RC/Arby's as successor to Royal Crown Corporation, a Florida
corporation, The Bank of New York, a New York banking institution, as Trustee,
and the other parties thereto, and the Collateral Trust Agreement, dated as of
August 1, 1993, as supplemented, and as amended by Amendment No. 1 to the
Collateral Trust Agreement, dated as of April 26, 1995, each among RC/Arby's
as successor to Royal Crown Corporation, The Bank of New York, a New York
banking institution, as Collateral Trustee, and the other parties thereto (as
supplemented and as amended, the "Collateral Trust Agreement"); and (ii) any
order, writ, injunction or decree of which I have knowledge (without
investigation) of any court or governmental authority or agency binding upon
Arby's or to which Arby's is subject.
2. There are no suits, actions, investigations or other litigation or
legal or governmental proceedings pending or, to my knowledge, threatened (i)
asserting the invalidity of any of the Documents; (ii) seeking to prevent the
consummation of any of the transactions contemplated by the Documents; or
(iii) except as set forth in Triarc's or RC/Arby's Annual Report on Form 10-K
for the year ended December 31,1995, which could reasonably be expected to
have a material adverse effect on the financial condition or results of
operations of Arby's, or the performance by Arby's of its respective
obligations under, or the validity or enforceability of, the Documents.
3. Each of the Purchase Agreements, the License Agreements and the
Management Agreements constitutes the legal, valid and binding obligation of
each Company that is a party thereto, enforceable against each such Company in
accordance with its terms.
The foregoing opinion is subject to the following assumptions,
exceptions and qualifications:
The enforceability of the Purchase Agreements, the License Agreements
and the Management Agreements may be: (i) subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, bulk sale or transfer,
moratorium or similar laws affecting creditors' rights generally; and (ii)
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
The opinions expressed above are limited to the laws of the State of
Florida and the Federal laws of the United States of America. Please be
advised that I am not admitted to practice in the State of Florida, although
under Chapter 17 of the Rules Regulating the Florida Bar, adopted by the
Florida Bar Associated and confirmed by Order of the Supreme Court of Florida
on April 21, 1994, I am Authorized House Counsel. My opinions are rendered
only with respect to the laws and the rules, regulations and orders
thereunder, which are currently in effect.
This letter is furnished by me solely for your benefit in connection
with the transactions referred to in the Loan Agreement and may not be
circulated to, or relied upon by, any other Person, except that this letter
may be circulated to any prospective assignee of the Loans and the Equipment
Loans under the Loan Agreement and may be relied upon by any Person who, in
the future, becomes an assignee of the Loans and the Equipment Loans under the
Loan Agreement.
Very truly yours,
/s/ CHRISTINE C. MARSHALL
Christine C. Marshall
Vice President and
Acting General Counsel
CCM:opiarhc2
<PAGE>
SCHEDULE 1
1. Purchase Agreement, dated as of various dates, by and between Arby's
Restaurant Holding Company, as Buyer, and Arby's, Inc., as Seller.
2. License Agreements, dated as of various dates, by and between Arby's
Restaurant Holding Company, as Licensee, and Arby's, Inc., as
Licensor.
3. Amendments to Management and Operations Agreement, dated as of
various dated by and between Arby's Restaurant Holding Company and
Arby's, Inc., as Manager.
<PAGE>
EXHIBIT H-1
LOCAL COUNSEL OPINION MATTERS
01/514412.5
Arby's
<PAGE>
ARHC
[LOCAL COUNSEL OPINION]
[Closing Date]
Franchise Finance Corporation of America
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Re: Franchise Finance Corporation of America
Loan Secured by Arby's Restaurants
Ladies and Gentlemen:
This firm has acted as special counsel for the state of [STATE] (the
"State") in connection with a loan (the "Loan") which will be secured by
Arby's restaurant properties (each, a "Property") located in (the
"Transaction"). The Loan will be made pursuant to a loan agreement (the "Loan
Agreement") between FFCA Mortgage Corporation, a Delaware corporation
("Lender"), and Arby's Restaurant Holding Company, a Delaware corporation
("Borrower"). The loan amount allocated to each Property will be evidenced by
a separate Promissory Note (each, a "Note") which will be secured by a [Deed
of Trust] [Mortgage], Assignment of Rents and Leases and Security Agreement
(each, a "Mortgage"). Each Note will include a fixed interest rate plus a
participating interest feature keyed to the gross sales of the related
Property. Borrower is the owner of the Properties. Lender will also make an
equipment loan (the "Equipment Loan") to Borrower which will be evidenced by a
separate Equipment Promissory Note (the "Equipment Note") and secured by an
Equipment Security Agreement (the "Equipment Security Agreement"). The
obligations of Borrower with respect to each Property will be guaranteed by
Triarc Companies, Inc., a Delaware corporation ("Guarantor") pursuant to a
separate Unconditional Guaranty of Payment and Performance (the "Guaranty").
All of the instruments and documents evidencing and securing the Loan and the
Equipment Loan will be cross-collateralized and cross-defaulted.
In rendering the opinions expressed below, we have examined executed
copies of the following documents, all dated as of unless otherwise indicated
(collectively, the "Documents"):
(i) the Loan Agreement;
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Franchise Finance Corporation of America
FFCA Acquisition Corporation
[Closing Date]
Page 2
(ii) the Mortgage;
(iii) the Note;
(iv) UCC-1 Financing Statements to be recorded as fixture filings
(the "Fixture Filing") with respect to (A) the UCC Property
(as defined below) and the Lease Assignment; and (B) the
Equipment (as defined below);
(v) UCC-1 Financing Statements (the "Financing Statements") to
be filed with respect to (A) the UCC Property; and (B) the
Equipment;
(vi) the Guaranty;
(vii) the Equipment Note;
(viii) the Equipment Security Agreement; and
(ix) [List other documents as necessary].
In addition, we have made such investigations of law as we have deemed
appropriate as a basis for the opinions expressed below.
For purposes of this opinion letter, we have assumed:
(A) The existence and good standing of the parties in their
respective states of formation and the State and their authority to
enter into the transactions contemplated by the Documents;
(B) The due authorization, execution, acknowledgement as
necessary, and delivery of the Documents by all parties thereto, and the
receipt of consideration by all such parties sufficient to support the
obligations created thereby; and
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<PAGE>
Franchise Finance Corporation of America
FFCA Acquisition Corporation
[Closing Date]
Page 3
(C) The recitals contained in the Documents are true and accurate,
and there are no other inconsistent agreements or understandings,
written or oral, which exist between the parties relating to the matters
addressed herein.
We have additionally assumed that the document forms we have reviewed
will be duly and accurately completed and compiled to produce the execution
originals thereof, and will have legal descriptions attached as appropriate,
and all exhibits and schedules contemplated thereby will be duly completed and
attached thereto.
Based upon and subject to the foregoing and to the matters set forth
below, we are of the opinion that:
1. (a) Each Mortgage and Fixture Filing is in proper form for recording
in the real property records of the county in which the related Property is
located (each, a "Recording Office" and collectively, the "Recording
Offices"), and each Mortgage is in proper form to also serve as a fixture
filing when recorded in the respective Recording Office.
(b) Each of the Financing Statements and Fixture Filing complies
with all applicable provisions of the Uniform Commercial Code as in effect in
the State (the "Code") and is in appropriate form for filing with the
[Secretary of State of the State] (the "Filing Office").
2. Upon due recordation of each Mortgage in the appropriate Recording
Office for the related Property, each Mortgage will constitute, as security
for the payment and performance of the obligations described therein, a valid,
perfected and enforceable mortgage lien of record on the entire interest of
the Borrower in that portion of the property described therein (the "Mortgaged
Property") which is real property and will provide a perfected security
interest in that portion of such Mortgaged Property which constitutes
fixtures.
3. (a) Each Mortgage creates a valid security interest in all Mortgaged
Property described therein constituting either fixtures or personal property
under the Code (collectively, the "UCC Property"). Each Equipment Security
Agreement creates a valid security interest in all property described therein
constituting either fixtures or personal property under the Code
(collectively, the "Equipment").
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<PAGE>
Franchise Finance Corporation of America
FFCA Acquisition Corporation
[Closing Date]
Page 4
(b) Upon (i) the filing of each Financing Statement with the
Filing Office and (ii) the recording of each Fixture Filing in the appropriate
Recording Office for the related Property, the security interests created
under each Mortgage in the UCC Property and under each Equipment Security
Agreement in the Equipment, will be perfected to the extent that such security
interests may be perfected by recording and filing financing statements within
the State and will have priority over subsequent creditors of and purchasers
from the Borrower to the full extent provided in the Code.
4. (a) Except as set forth in paragraph 4(b), the recording of each
Mortgage and each Fixture Filing in the appropriate Recording Office, and the
filing of the Financing Statements in the Filing Office will constitute all
recordings, filings or registrations within the State which are necessary or
advisable to perfect, preserve and protect, and to provide constructive notice
to third parties of, the real property liens and security interests created by
the Mortgages and the Equipment Security Agreement.
(b) After the recordings and filings specified in the foregoing
paragraphs have been effected, no further instruments or documents need be
recorded, registered or filed or rerecorded or re-filed in any public office
in the State in order to preserve, protect, and maintain the perfection and
priority of the real property liens and security interests created by the
Mortgages and the Equipment Security Agreements and to continue providing the
notice imparted thereby, except for the recording and filing of continuation
statements with respect to the Fixture Filings and the Financing Statements
within six months prior to (i) the date [five] years from the original date of
their recording or filing and (ii) each subsequent [five]-year anniversary of
such original recording or filing date.
5. The federal and state courts presiding in the State will recognize
the validity of and enforce the choice of law provisions set forth in the
Documents. If, notwithstanding the choice of law provisions contained in the
Documents, such Documents were entirely governed by the laws of the State,
such Documents would be legal, valid and binding obligations of the parties,
enforceable against the parties in accordance with their respective terms,
under the laws of the State.
6. The rates of interest required to be paid as set forth in the Note,
the Equipment Note and the Loan Agreement do not violate any usury law of the
State.
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Franchise Finance Corporation of America
FFCA Acquisition Corporation
[Closing Date]
Page 5
7. No consent, approval, order, authorization, registration, declaration
or designation of or filing with any governmental authority of the United
States or the State or any subdivision thereof is required in connection with
the authorization, execution, delivery or performance by the parties, as
applicable, of the Documents or the consummation of any of the transactions
contemplated thereby, except for the records and filings listed above.
8. Lender is not required to be licensed as a mortgage banker, lender or
broker and does not need to obtain any other license or qualification (other
than to transact business) solely as the result of the transactions
contemplated by the Documents.
9. The execution, delivery and performance of the Documents will not
result in a breach of or default under any law, statute, ordinance, or
regulation of any administrative agency or other governmental authority of the
State or any subdivision thereof.
10. No mortgage, mortgage recording, stamp, intangibles or other similar
tax (other than nominal filing and recording fees) is required to be paid
under the law of the State or any political subdivision thereof in connection
with the execution, delivery, recordation, filing, or perfection, or as a
condition to the enforceability, of any of the Documents or the obligations
created, evidenced or secured thereby [, except as follows:].
This opinion is subject to the qualifications that (i) the
enforceability of the Documents may be limited by bankruptcy, insolvency,
rehabilitation, liquidation, conservation, dissolution, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
rights of creditors; (ii) the enforceability of the Documents may be limited
by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); and (iii) the enforceability of the
Documents is further subject to the qualification that certain waivers,
procedures, rights, remedies and other provisions of the Documents may be
unenforceable under or limited by the law of the State; however, such law does
not, in our opinion, substantially prevent the practical realization of the
benefits intended by the Documents.
We have not examined title to any of the Properties and we express no
opinion with respect to such title. We have assumed for this opinion that the
Borrower will own all of the property and rights which are the subject of the
Documents to the extent contemplated thereby. We express no opinion regarding
the desirability or necessity of recording or filing any
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Franchise Finance Corporation of America
FFCA Acquisition Corporation
[Closing Date]
Page 6
documents in any jurisdiction other than the State with respect to the
property, interests and rights described in or created by the Documents.
The opinions expressed in this letter are based upon the law in effect
in the State on the date hereof. We take no responsibility for updating the
opinions expressed herein or for taking into account any event, action,
interpretation, change of law or similar item which may occur after the date
hereof. We express no opinion with regard to any matter which may be governed
by any law other than the federal law of the United States of America and the
law of the State.
The opinions rendered herein may not be used or relied upon by any
person or entity other than the addressees hereof, their counsel, and any
subsequent holder or permitted assignee of or participant in the loans made
under the Loan Agreement, for any purpose whatsoever without our prior written
consent in each instance.
Very truly yours,
01/172966
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8000-
09/14/95
<PAGE>
EXHIBIT I
FORM OF CONFIDENTIALITY AGREEMENT
01/514412.5
Arby's
<PAGE>
As of September 5, 1996
Franchise Finance Corporation of America
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, Arizona 85255
Confidentiality Agreement
Dear Ladies and Gentlemen:
Pursuant to the terms of the Loan Agreement (the "Loan Agreement"),
dated as of September 5, 1996, by and among FFCA Mortgage Corporation, a
Delaware corporation ("FFCA"), Franchise Finance Corporation of America, a
Delaware corporation, as Guarantor, and Arby's Restaurant Holding Company, a
Delaware corporation ("Debtor"), we have agreed to furnish you (including your
representatives and agents) with or provide you access to certain Confidential
Information (as defined in paragraph 4 hereto). In consideration of Debtor
furnishing you with or providing you access to the Confidential Information,
and as a condition to such disclosure, you agree as follows:
1. You shall keep all Confidential Information secret and
confidential and shall not disclose it to anyone except to those persons who
need to know the Confidential Information for purposes relating to the Loan
Agreement. Each person to whom such Confidential Information is disclosed must
be advised of its confidential nature and of the terms of this Agreement and
(unless already bound by obligations of confidentiality) must agree to abide
by such terms. You shall be responsible for compliance with this Agreement by
such persons.
2. The Confidential Information shall be used by you and any
persons to whom you transmit the Confidential Information in accordance with
this Agreement solely for purposes relating to the Loan Agreement and for no
other purpose whatsoever. Without limiting the generality of the foregoing,
you recognize and acknowledge that the Confidential Information may contain
material non-public information concerning Debtor and its affiliates and may
not be used in a manner that violates any federal or state securities law.
3. Upon payment in full of all the loans under the Loan
Agreement, together with all accrued interest thereon and other sums due under
the Loan Agreement, you shall return to Debtor the Confidential Information
which is in tangible form, including any copies which you or any persons to
whom you transmitted the Confidential Information may have made, and you and
they will destroy all abstracts, summaries thereof or references thereto in
your and their documents, and after written request by Debtor, shall promptly
provide to Debtor reasonable assurance in writing that you and they have
complied with this paragraph 3.
4. The term "Confidential Information" means any information
furnished to you by Debtor or its affiliates (or their directors, officers,
employees, agents or outside advisors), including, without limitation,
information you obtain in connection with any investigation by you of the
business of Debtor and its affiliates. Confidential Information, however, does
not include (i) any information which is or becomes publicly available other
than as a result of a disclosure by you or any persons to whom you transmitted
the Confidential Information and (ii) the Loan Documents (as defined in the
Loan Agreement). Information shall be deemed "publicly available" if it
becomes a matter of public knowledge or, it is contained in materials
available generally to the public or is obtained from any source other than
Debtor or its affiliates (or their directors, officers, employees, agents or
outside advisors), provided such source has not (a) entered into a
confidentiality agreement with Debtor or its affiliates with respect to such
information, or (b) obtained the information from an entity or person who is a
party to or otherwise restricted under the terms of a confidentiality
agreement with, or subject to any other contractual, legal, or fiduciary
obligation of confidentiality to, Debtor or its affiliates. Confidential
Information includes not only written information but also information
transferred orally, visually, electronically or by any other means and shall
be deemed to include all notes, analyses, compilations, studies or other
documents prepared by you that contain all or a portion of the information
furnished to you pursuant hereto.
5. In the event that you or any persons to whom you transmit
the Confidential Information in accordance with this Agreement becomes legally
compelled pursuant to a court order, subpoena or other requirement of law or
regulations of the Securities and Exchange Commission to disclose any of the
Confidential Information, you or they may disclose the Confidential
Information provided that you or they have received a written opinion of
counsel that such disclosure must be made in order that you or they not commit
a violation of law or regulation and have otherwise complied with the terms of
this paragraph 5. In the event that you or they are requested or required to
disclose any of the Confidential Information, you or they shall provide Debtor
prompt written notice (the "Notice") of any such request or requirement so
that Debtor may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. You and they agree to
consult with Debtor in Debtor's seeking any such remedy if Debtor requests
such consultation and you and they will not oppose Debtor taking action in
connection with seeking any such remedy. If, in the absence of a protective
order or other remedy or the receipt of a waiver by Debtor, you or they are
nevertheless, in the written opinion of counsel, legally compelled to disclose
the Confidential Information to any tribunal or else stand liable for contempt
or suffer other censure or penalty, you or they may, without liability
hereunder, but no earlier than ten days after receipt by Debtor of the Notice,
disclose to such tribunal that portion of the Confidential Information that
such counsel advises is legally required to be disclosed.
<PAGE>
6. You understand and agree that this Agreement is made for the
benefit of Debtor and no failure or delay by Debtor or its affiliates, agents
or representatives in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof of the
exercise of any right, power or privilege under this Agreement. You further
agree that money damages would not be a sufficient remedy for any breach of
this Agreement by you, and that Debtor and its affiliates, agents and
representatives shall be entitled to specific performance and/or injunctive
relief as a remedy of any such breach. Such remedy shall not be deemed to be
the exclusive remedy for any such breach of this Agreement but shall be in
addition to all other remedies available at law or in equity.
7. This Agreement may not be modified except by a written
agreement executed by you and the Debtor and may not be waived except by
written agreement of the party against whom the waiver is to be enforced.
8. Any action or proceeding seeking to enforce any provision
of, or based on any right arising out of, this Agreement may be brought in the
courts of the State of New York, or, if it has or can acquire jurisdiction, in
the United States District Court for the Southern District of New York, and
you hereby consent to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waive any objection to
venue laid therein. You agree that process in any action or proceeding
referred to in the preceding sentence may be served on you anywhere in the
world, whether within or without the State of New York.
9. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
If you are in agreement with the foregoing, please sign and return the
enclosed copy of this letter which will constitute an agreement with respect
to the subject matter of this letter as of the date first above written.
Very truly yours,
ARBY'S, INC., d/b/a TRIARC
RESTAURANT GROUP
By: /s/ KENNETH C. FISCHER
-----------------------
Name: Kenneth C. Fischer
---------------------
Title: Vice President
--------------------
<PAGE>
AGREED TO AND ACCEPTED:
FRANCHISE FINANCE CORPORATION
OF AMERICA, a Delaware corporation
By: /s/ STEPHEN G. SCHMITZ
--------------------------
Name: Stephen G. Schmitz
-------------------------
Title: Sr. Vice President
------------------------
FFCA MORTGAGE CORPORATION,
a Delaware corporation
By: /s/ STEPHEN G. SCHMITZ
--------------------------
Name: Stephen G. Schmitz
-------------------------
Title: Sr. Vice President
------------------------
<PAGE>
EXHIBIT J
ROYALTIES PAYMENT AGREEMENT
01/514412.5
Arby's
<PAGE>
ROYALTIES PAYMENT AGREEMENT
THIS ROYALTIES PAYMENT AGREEMENT (this "Agreement") is made as
of , 1996 among ARBY'S, INC., a Delaware corporation, whose address is 1000
Corporate Drive, Fort Lauderdale, Florida 33334 ("Arby's"), TRIARC COMPANIES,
INC., a Delaware corporation, whose address is 900 Third Avenue, New York, New
York 10022 ("Triarc"), and FFCA MORTGAGE CORPORATION, a Delaware corporation,
whose address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255
("FFCA").
PRELIMINARY STATEMENT
Pursuant to that certain Loan Agreement (the "Loan Agreement") dated as
of the date of this Agreement between FFCA and Arby's Restaurant Holding
Company, a Delaware corporation ("Debtor"), FFCA has agreed, subject to the
terms and conditions of the Loan Documents, to make the Loans and the
Equipment Loans to Debtor, which Loans and Equipment Loans are or will be, as
the case may be, secured by, among other things, first priority liens on the
Sites. Capitalized terms used in this Agreement and not defined herein shall
have the meanings set forth in the Loan Agreement.
Each of the Sites is, or will be, as the case may be, operated by Debtor
as either an Arby's Restaurant or a Dual Concept. Debtor and Arby's have
entered into a License Agreement for each Site pursuant to which Debtor has
the right to operate the Site as an Arby's Restaurant.
The License Agreements each provide that FFCA shall have the right, at
FFCA's election and upon an Event of Default and the exercise by FFCA of its
remedies under the Loan Documents (the "Right"), to operate the Sites as
Arby's Restaurants pursuant to such License Agreements.
To induce FFCA to make the Loans and Equipment Loans, Triarc has agreed,
upon FFCA exercising the Right, to pay the royalty fees (as described in
Article 3 of the License Agreements) (the "Fees") for so long as FFCA
exercises the Right and prior to any transfer by FFCA of the Site or payment
of Loans and Equipment Loans, in full (the "Right Period").
Arby's has consented to such agreement of Triarc.
Triarc and Arby's are executing this Agreement for the purpose of
evidencing their respective agreements and consents described in this
Preliminary Statement and as set forth below.
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<PAGE>
AGREEMENT
1. Payment of Fees by Triarc. In the event FFCA exercises the Right,
Triarc agrees and promises to pay all Fees accruing under the License
Agreements during the Right Period from time to time on or before the date
such Fees are due and payable. Triarc waives presentment, demand for payment,
notice of dishonor, notice of protest, protest and all other notices or
demands in connection with Triarc's obligations under this Agreement.
2. Default. If Debtor shall fail to pay any of the Fees when due and
payable, Arby's shall provide Triarc and FFCA with notice of such failure and
Triarc shall have a period of 20 days after its receipt of such notice to pay
such outstanding Fees and acknowledge in writing its continuing obligation to
pay such Fees which accrue on an ongoing basis. If Triarc shall fail to pay
such outstanding Fees within such 20 day period, Arby's shall provide FFCA
with notice of such failure and FFCA shall have a period of 30 days after its
receipt of such notice to pay such outstanding Fees, but without any
obligation to do so. If FFCA declines to pay any past- due Fees within such 30
day time period, Arby's, as its sole remedy under the License Agreements,
shall have the right to terminate the License Agreements by delivering a
notice of termination to FFCA.
3. Applicable Law. For purposes of any action or proceeding arising out
of this Agreement, Arby's and Triarc hereby expressly submit to the
jurisdiction of all federal and state courts located in the States of Arizona
and New York and each of the parties hereto consents that it may be served
with any process or paper by certified or registered mail at the addresses for
notice pursuant to this Agreement or by personal service within or without the
States of Arizona and New York in accordance with applicable law. Furthermore,
each of the parties hereto waives and agrees not to assert in any such action,
suit or proceeding that it is not personally subject to the jurisdiction of
such courts, that the action, suit or proceeding is brought in an inconvenient
forum or that venue of the action, suit or proceeding is improper. It is the
intent of the parties hereto that all provisions of this Agreement shall be
governed by and construed under the laws of the State of Arizona.
4. Nonassignability; Reliance. This Agreement may not by assigned by
Arby's or Triarc, directly, indirectly, by operation of law or otherwise,
without the consent of FFCA; provided, however, Triarc may assign this
Agreement to any Person to whom Triarc may assign the Guaranties. Triarc and
Arby's each acknowledge that FFCA is making the Loans and the Equipment Loans
pursuant to the Loan Agreement in reliance on Triarc and Arby's executing and
performing this Agreement.
5. Notices. All notices, demands, designations, certificates, requests
(including, without limitation, requests for documents by third parties),
offers, consents, approvals, appointments or other instruments required or
permitted to be given by any party pursuant to this Agreement shall be in
writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall
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<PAGE>
be deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission with confirmation, if delivered by facsimile, except if such
facsimile is transmitted other than during business hours (business hours
being defined as 8 a.m. to 6 p.m. in the location of the recipient during
Business Days), such transmission shall be deemed to have occurred the next
Business Day, (c) the next Business Day, if delivered by express overnight
delivery service, or (d) the third Business Day following the day of deposit
of such notice with the United States Postal Service, if sent by certified or
registered mail, return receipt requested. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable) specified below:
If to Arby's: Arby's, Inc.,
1000 Corporate Drive
Fort Lauderdale, FL 33334
Attention: Christine C. Marshall, Esq.
Vice President, Acting General Counsel
Telephone: (954) 351-5635
Telecopy: (954) 351-5619
with a copy to: Brian L. Schorr, Esq.
Executive Vice President and
General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
If to Triarc: John L. Cohlan
Senior Vice President--Corporate Finance
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
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<PAGE>
with a copy to: Brian L. Schorr, Esq.
Executive Vice President and
General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, NY 10022
Telephone: (212) 230-3045
Telecopy: (212) 230-3216
and to: Neale M. Albert, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
If to FFCA: Stephen G. Schmitz
Senior Vice President Corporate Finance
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2225
with a copy to: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
FFCA Mortgage Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
or to such other address or such other person as any party may from time to
time hereafter specify to the other parties in a notice delivered in the
manner provided above.
6. Waiver. No provisions of this Agreement shall be deemed waived or
amended except by a written instrument setting forth the matter waived or
amended and signed by the party against which enforcement of such waiver or
amendment is sought.
7. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal effect
to the intention of the parties as expressed therein.
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<PAGE>
8. Entire Agreement. This Agreement, and any other instruments or
agreements referred to herein, constitute the entire agreement between the
parties with respect to the subject matter hereof, and there are no other
representations, warranties or agreements, written or oral, between Arby's and
Triarc with respect to such subject matter.
9. Binding Effect. This Agreement shall bind and inure to the benefit of
the respective heirs, successors, executors, administrators and assigns of
each of the parties hereto, including, without limitation, any United States
trustee, any debtor in possession or any trustee appointed from a private
panel.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
11. Captions. Captions are used throughout this Agreement for convenience
of reference only and shall not be considered in any manner in the
construction or interpretation hereof.
12. Time of the Essence. Time is of the essence in the performance of
each and every obligation under this Agreement.
13. Waiver of Jury Trial and Punitive Damages. EACH OF THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES HERETO AGAINST
ONE OR MORE OF THE OTHERS OR THEIR SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF FFCA,
ARBY'S, DEBTOR AND TRIARC AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN. FURTHERMORE, THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO SEEK PUNITIVE
DAMAGES FROM THE OTHERS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ONE OR
MORE OF THE OTHERS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE
WAIVER BY THE PARTIES OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE DAMAGES HAS
BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR
BARGAIN.
01/521201.1
Arby's
10/11/95
5
<PAGE>
IN WITNESS WHEREOF, Arby's, Triarc and FFCA have entered into this
Agreement as of the date first above written.
ARBY'S, INC., a Delaware corporation
By
Printed Name
Title
TRIARC COMPANIES, INC., a Delaware corporation
By
Printed Name
Title
FFCA MORTGAGE CORPORATION, a Delaware corporation
By
Printed Name
Title
01/521201.1
Arby's
10/11/95
6
<PAGE>
STATE OF ]
] SS.
COUNTY OF ]
The foregoing instrument was acknowledged before me on ,
199 by , of Arby's, Inc., a Delaware corporation, on behalf of the
corporation.
-----------------
Notary Public
My Commission Expires:
STATE OF ]
] SS.
COUNTY OF ]
The foregoing instrument was acknowledged before me on , 199
by , of Triarc Companies, Inc., a Delaware corporation, on behalf of the
corporation.
------------------
Notary Public
My Commission Expires:
01/521201.1
Arby's
10/11/95
7
<PAGE>
STATE OF ]
] SS.
COUNTY OF ]
The foregoing instrument was acknowledged before me on , 199
by , of FFCA Mortgage Corporation, a Delaware corporation, on behalf of the
corporation.
-------------------
Notary Public
My Commission Expires:
01/521201.1
Arby's
10/11/95
8
<PAGE>
EXHIBIT K
FORM OF TERM SHEET
01/514412.5
Arby's
<PAGE>
TERM SHEET
This Term Sheet is issued pursuant to the terms and conditions of that
certain Loan Agreement (the "Agreement") dated as of , 1996, between FFCA
Mortgage Corporation, a Delaware corporation ("FFCA"), and Arby's Restaurant
Holding Company, a Delaware corporation ("Debtor"). In the event of any
conflict between the provisions of the Agreement and the terms of this Term
Sheet, the terms of the Agreement shall prevail. Capitalized terms used herein
without definition shall have the same meaning given in the Agreement.
Pursuant to Sections 2.B and 3.A of the Agreement, and subject to the
terms and conditions set forth in the Loan Documents, including, without
limitation, the Loan Limitation and the delivery of invoices and receipts
pursuant to Section 12.B of the Agreement with respect to the cost of the (i)
[construction of the Improvements] and (ii) the Equipment, FFCA agrees to make
the following described Loan and Equipment Loan:
Site Location : .
Site Legal Description: See attached Exhibit A.
Committed Loan Amount: $ .
Participating
Interest/Additional
Interest (indicate one): .
Equipment Loan Amount: The actual and reasonable cost of
the Equipment, but in no event more
than $ .
Outside Closing Date: , 199 .
01/518316.1
Arby's
8000-
<PAGE>
ACCEPTED AND AGREED TO as of , 199 .
------------------ --
FFCA MORTGAGE CORPORATION, ARBY'S RESTAURANT HOLDING
a Delaware corporation COMPANY, a Delaware corporation
By By
Printed Name Printed Name
Its Its
01/518316.1
Arby's
8000-
2
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
01/518316.1
Arby's
8000-
<PAGE>
EXHIBIT L
FORM OF PROPERTY NOTICE
01/514412.5
Arby's
<PAGE>
PROPERTY NOTICE
This Property Notice is delivered by Arby's Restaurant Holding Company,
a Delaware corporation ("Debtor"), to FFCA Mortgage Corporation, a Delaware
corporation ("FFCA"), pursuant to Sections 2.B and 3.A of that certain Loan
Agreement dated as of
, 1996 between FFCA and Debtor (the "Agree-
ment"). Capitalizedterms used herein without definition shall have the same
meaning given in the Agreement.
Debtor intends to acquire or has acquired the proposed Site described
below at which an Arby's Restaurant or Dual Concept will be constructed, and
requests that FFCA make the Loan and Equipment Loan described below following
completion of such construction:
Proposed Site Location:
Proposed Site Legal Description: See attached Exhibit A.
Requested Loan Amount: $ .
Purchase price paid or to be paid for
the land comprising the proposed Site: $ .
--------------------------
Anticipated cost of the building and
improvement hard costs for the
Arby's Restaurant or Dual Concept
to be constructed at the proposed Site: $ .
--------------------------
Anticipated cost of the site improvement
hard costs for the Arby's Restaurant
or Dual Concept to be constructed
at the proposed Site: $ .
Anticipated soft costs (fees for architect, survey, engineer, licenses and
permits) for the Arby's Restaurant or Dual Concept
to be constructed at the proposed Site: $ .
----------------
Description of prototype Improvements
proposed to be constructed at the proposed
Site, including the square footage and
planned variations from the prototype: See attached Exhibit B.
01/518484.1
Arby's
8000-
<PAGE>
Plans and specification for proposed
improvements attached (Yes/No): .
Requested Equipment Loan Amount: $ .
Description of the expected standard equipment package to be installed at the
proposed Improvements, including, without limitation, planned variations
from the standard equipment package and a cost estimate
for such equipment package: See attached Exhibit B.
Participating Interest/Additional
Interest (indicate one): .
List of other documents and information
attached: See attached Exhibit B.
Dated as of , 199 .
ARBY'S RESTAURANT HOLDING
COMPANY, a Delaware corporation
By
Printed Name
Its
01/518484.1
Arby's
8000-
2
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
01/518484.1
Arby's
8000-
<PAGE>
EXHIBIT B
I. Description of Improvements:
II. Description of Equipment package:
III. List of additional documents and information attached:
01/518484.1
Arby's
8000-
EXHIBIT 4.2
SUPPLEMENT TO
LOAN AGREEMENT
THIS SUPPLEMENT TO LOAN AGREEMENTS (this "Supplement") is entered into as
of June 26, 1996 among FFCA ACQUISITION CORPORATION, a Delaware corporation
("FFCA"), whose address is 17207 North Perimeter Drive, Scottsdale, Arizona
85255, ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation ("ARHC"),
whose address is 1000 Corporate Drive, Fort Lauderdale, Florida 33334, ARBY'S
RESTAURANT DEVELOPMENT CORPORATION, a Delaware corporation ("ARDC"), whose
address is 1000 Corporate Drive, Fort Lauderdale, Florida 33334 and TRIARC
COMPANIES, INC., a Delaware corporation ("Guarantor"), whose address is 900
Third Avenue, New York, New York 10022.
PRELIMINARY STATEMENT:
FFCA and ARHC entered into that certain Loan Agreement dated as of
October 13, 1995 (the "ARHC Loan Agreement"), as amended, pursuant to which
FFCA has made loans to ARHC in connection with the financing of certain Arby's
Restaurants and/or Dual Concepts.
FFCA and ARDC entered into that certain Loan Agreement dated as of May
1, 1995, as amended and restated by that certain Amended and Restated Loan
Agreement between FFCA and ARDC dated as of October 13, 1995 (the "ARDC Loan
Agreement"), as amended, pursuant to which FFCA has made loans to ARDC in
connection with the financing of certain Arby's Restaurants and/or Dual
Concepts.
Capitalized terms not otherwise defined herein shall have the meanings
set forth in the ARHC Loan Agreement or ARDC Loan Agreement, as applicable, as
such defined terms may be amended or added to the ARHC Loan Agreement or the
ARDC Loan Agreement pursuant to this Supplement.
FFCA has notified ARHC, ARDC and Guarantor of FFCA's intent to enter
into a pooling and servicing agreement as of June 1, 1996 (the "Pooling and
Servicing Agreement") in connection with a Securitization of certain of the
Loans and corresponding Equipment Loans.
As a result of such Securitization, FFCA, ARHC and ARDC desire to amend
and supplement the ARHC Loan Agreement and the ARDC Loan Agreement to set
forth their agreement with respect to (i) ARHC's and ARDC's rights of
defeasance, (ii) the initial Testing Date for the Fixed Charge Coverage Ratio
with respect to a Site, (iii) the confidentiality of certain information to be
disclosed to Trustees and Certificateholders (both as defined below); and (iv)
the funding of the outstanding commitment of FFCA to ARHC and ARDC pursuant to
the ARHC Loan Agreement and the ARDC Loan Agreement, respectively.
05/33854.5
<PAGE>
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Supplement, the parties agree as follows:
1. Notwithstanding anything contained in the ARHC Loan Agreement or the
ARDC Loan Agreement to the contrary, neither ARHC nor ARDC shall be permitted
to defease any of the Notes and Equipment Notes, as permitted under Section
5.B of the ARHC Loan Agreement and Section 5.B of the ARDC Loan Agreement, as
applicable, prior to August 1, 1998.
2. Notwithstanding anything contained in the ARHC Loan Agreement, the
ARDC Loan Agreement or a Deed of Trust with respect to a Site to the contrary,
the initial Testing Date for the Fixed Charge Coverage Ratio with respect to a
Site shall not occur prior to August 1, 1998.
3. Notwithstanding anything contained in Section 17.Q of the ARHC Loan
Agreement or the ARDC Loan Agreement, Exhibit I to the ARHC Loan Agreement or
Exhibit K of the ARDC Loan Agreement, the trustee pursuant to the Pooling and
Servicing Agreement and all trustees pursuant to any pooling and servicing
agreement or similar agreements (collectively, the "Trustee") entered into in
connection with all other securitizations (collectively the "Securitization
Documents"), and the certificateholders or investors of certificates issued in
connection with the Pooling and Servicing Agreement and all other
Securitizations (collectively, the "Certificateholders"), shall not be
obligated to execute a Confidentiality Agreement provided that:
(i) the Trustee, on behalf of itself and the Certificateholders,
shall be bound pursuant to the Securitization Documents by
confidentiality provisions substantially in the form attached hereto as
Exhibit A (the "Securitization Provisions");
(ii) all reports delivered by a Trustee to Certificateholders must
contain a legend indicating that the contents of such reports are
confidential; and
(iii) all securities offering documents evidencing the
Securitizations (the "Securities Offering Documents") shall provide that
all Certificateholders, by accepting the certificates evidencing their
investment in the securities issued in connection with such
Securitizations, shall be bound by the Securitization Provisions.
Notwithstanding the foregoing, if a Certificateholder requests financial
information that it is entitled to receive under the Securities Offering
Documents with respect to ARDC, ARHC and/or Guarantor other than that
financial information which is contained in the reports to be delivered by the
Trustee to such Certificateholder pursuant to the Pooling and Servicing
Agreement, and such financial information would otherwise be deemed to be
Confidential
05/33854.5
2
<PAGE>
Information (as defined in the Confidentiality Agreement), such
Certificateholder shall be required by the Trustee to execute a
confidentiality agreement containing the Securitization Provisions as a
condition precedent to receiving such requested financial information;
provided, however, if such Certificateholder is a chain restaurant company,
such Certificateholder shall not be entitled to receive such requested
financial information unless ARDC, ARHC, and/or Guarantor, as applicable,
depending on whether the information requested concerns such party, consent(s)
to the release of such information.
Upon written notice from ARHC or ARDC, as applicable, FFCA shall demand
that the Trustee and Certificateholders comply with the Securitization
Confidentiality Agreement. FFCA agrees and acknowledges that ARHC and ARDC are
intended third-party beneficiaries of each Securitization Confidentiality
Agreement and the terms and conditions of this Section 3.
4. Upon FFCA's assignment of the ARHC Loan Agreement and the ARDC Loan
Agreement to the Trustee pursuant to the Pooling and Servicing Agreement,
FFCA, ARHC, ARDC and Guarantor acknowledge and agree that the Trustee, as
assignee of FFCA, will have no further obligation to fund Loans and Equipment
Loans pursuant to the ARHC Loan Agreement or the ARDC Loan Agreement.
Notwithstanding the foregoing, the obligation of FFCA and Franchise Finance
Corporation of America ("REIT") to provide ARDC and ARHC with the unfunded
Loan and Equipment Loan commitments on the terms and conditions as set forth
in the ARDC Loan Agreement and the ARHC Loan Agreement, respectively, are not
limited. However, FFCA and REIT intend that their affiliate, FFCA Mortgage
Corporation ("FFCA Mortgage"), provide such funding and that all Loans and
Equipment Loans be made by FFCA Mortgage and only to ARHC. In connection with
such intention, but not as a condition precedent to any such funding, FFCA
Mortgage, REIT and ARHC agree that they shall enter into a new loan agreement
prior to October 1, 1996 (the "Substitute Loan Agreement"), the material terms
of which will be substantially similar to the outstanding commitment of FFCA
to ARHC and ARDC pursuant to the ARHC Loan Agreement and the ARDC Loan
Agreement (including, without limitation, the guaranty by Guarantor of ARHC's
Substitute Loan Agreement obligations. REIT is joining in the execution of
this Supplement to evidence its continuing obligations to ARDC and ARHC as set
forth above and to evidence its agreement to enter into the Substitute Loan
Agreement, and FFCA Mortgage is joining in the execution of this Supplement to
evidence its agreement to enter into the Substitute Loan Agreement.
5. The ARHC Loan Agreement, the ARDC Loan Agreement, the Deeds of Trust,
the Guaranties and all other documents contemplated thereby remain in full
force and effect as supplemented by this Supplement.
05/33854.5
3
<PAGE>
IN WITNESS WHEREOF, ARHC, ARDC, FFCA and Triarc have entered into this
Supplement as of the date first above written.
FFCA ACQUISITION CORPORATION
a Delaware corporation
By /s/ DENNIS L. RUBIN
Printed Name Dennis L. Rubin
Its Senior Vice President
& General Counsel
ARBY'S RESTAURANT HOLDING COMPANY,
a Delaware corporation
By /s/ KENNETH C. FISCHER
Printed Name Kenneth C. Fischer
Its Vice President
ARBY'S RESTAURANT DEVELOPMENT
CORPORATION, a Delaware corporation
By /s/ JONATHAN P. MAY
Printed Name Jonathan P. May
Its Vice President
TRIARC COMPANIES, INC., a Delaware
corporation
By /s/ JOHN L. COHLAN
Printed Name John L. Cohlan
Its Sr. Vice President,
Corporate Finance
05/33854.5
4
<PAGE>
Agreed to and acknowledged:
FFCA MORTGAGE CORPORATION,
a Delaware corporation
By /s/ DENNIS L. RUBEN
Its Senior Vice President and General Counsel
Printed Name Dennis L. Ruben
05/33854.5
5
<PAGE>
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 27 , 1996 by
Dennis L. Ruben, Senior Vice President and General Counsel, of FFCA
Acquisition Corporation, a Delaware corporation, on behalf of the corporation.
/s/ MARY E. LEELAND
Notary Public
My Commission Expires:
December 9, 1996
STATE OF Florida ]
] SS.
COUNTY OF Broward ]
The foregoing instrument was acknowledged before me on June 26, 1996 by
Kenneth C. Fischer, Vice President, of Arby's Restaurant Holding Company, a
Delaware corporation, on behalf of the corporation.
/s/ ELIO LEONARDO RAMOS
Notary Public
My Commission Expires:
August 14, 1999
05/33854.5
6
<PAGE>
STATE OF Florida ]
] SS.
COUNTY OF Broward ]
The foregoing instrument was acknowledged before me on June 26, 1996 by
Jonathan P. May, Vice President, of Arby's Restaurant Development
Corporation,a Delaware corporation, on behalf of the corporation.
/s/ ELIO LEONARDO RAMOS
Notary Public
My Commission Expires:
August 14, 1999
STATE OF New York ]
] SS.
COUNTY OF New York ]
The foregoing instrument was acknowledged before me on July 10, 1996 by
John L. Cohlan, of Triarc Companies, Inc., a Delaware corporation, on behalf
of the corporation.
/s/ MARY C. WADE
Notary Public
My Commission Expires:
February 2, 1997
05/33854.5
7
<PAGE>
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on June 27, 1996 by
Dennis L. Ruben, Senior Vice President and General Counsel, of FFCA Mortgage
Corporation, a Delaware corporation, on behalf of the corporation.
/s/ MARY E. LEELAND
Notary Public
My Commission Expires:
December 9, 1996
05/33854.5
8
<PAGE>
EXHIBIT A
FORM OF SECURITIZATION PROVISIONS
05/33854.5
<PAGE>
EXHIBIT 4.3
AGREEMENT
REGARDING CROSS-COLLATERALIZATION
AND CROSS-DEFAULT PROVISIONS
THIS AGREEMENT REGARDING CROSS-COLLATERALIZATION AND CROSS-DEFAULT
PROVISIONS (this "Agreement") is entered into as of the 26th day of June 1996
by and among FFCA ACQUISITION CORPORATION, a Delaware corporation ("FFCA"),
ARBY'S RESTAURANT DEVELOPMENT CORPORATION, a Delaware corporation ("ARDC"),
ARBY'S RESTAURANT HOLDING COMPANY, a Delaware corporation ("ARHC"), and
ARBY'S, INC., a Delaware corporation ("Arby's") (ARDC, ARHC and Arby's are
referred to collectively as "Borrowers").
PRELIMINARY STATEMENT:
FFCA and Borrowers have entered into, and may enter into in the future,
certain loan and/or sale/leaseback transactions ("Borrower Transactions") with
respect to the development, acquisition and/or financing of restaurant
properties. FFCA and/or its affiliates and affiliates of Borrowers may have
entered into, and may enter into in the future, certain loan and/or
sale/leaseback transactions ("Affiliate Transactions") with respect to the
development, acquisition and/or financing of restaurant properties (the
Borrower Transactions and the Affiliate Transactions are referred to
collectively as the "Transactions"). All of the Transactions other than those
Transactions involving the Securitized Loans (as defined below) are referred
to herein as the "Excluded Transactions."
FFCA intends to convey certain mortgage loans and, if applicable, the
corresponding equipment loans (collectively, the "Securitized Loans") in
connection with a securitization of assets (the "Securitization"), which
Securitized Loans are identified by loan number and address of the
corresponding property on Exhibit A attached hereto.
Certain of the documents evidencing the Securitized Loans include (i)
cross-default provisions whereby a default under Securitized Loan documents
can create or be declared to be a default under the documents evidencing the
Excluded Transactions, (ii) cross-collateralization provisions which provide
that real and personal property securing the obligations of Borrowers under
the Securitized Loans also secure the obligations of Borrowers and/or
affiliates of Borrowers under one or more of the Excluded Transactions, and
(iii) cross-collateralization provisions which provide that real and personal
property securing the obligations of Borrowers and/or affiliates of Borrowers
under the Excluded Transactions also secure the obligations of Borrowers under
one or more of the Securitized Loans.
In connection with the Securitization, FFCA and Borrowers, and their
respective affiliates, as applicable, desire to establish that a default under
the documents evidencing the Excluded Transactions will not constitute a
default under the documents evidencing the Securitized Loans, that no real and
personal property which is security for Securitized Loans
05/33792
FFCA Securitization
1641/02-188
<PAGE>
shall secure the obligations of Borrowers and/or their affiliates under
Excluded Transactions, and that no real and personal property which is
security for Excluded Transactions shall secure the obligations of Borrowers
under Securitized Loans.
AGREEMENT:
FFCA and Borrowers agree as follows:
Section 1. Events of Default. No default, event of default or similar
occurrence (however defined or described, an "Event of Default") under any
document evidencing one or more of the Excluded Transactions shall be or cause
any Event of Default under any document evidencing one or more of the
Securitized Loans. Notwithstanding the foregoing:
(i) an Event of Default under any document evidencing one or more
of the Excluded Transactions shall be and continue to constitute an
Event of Default under all other Excluded Transactions; and
(ii) an Event of Default under any document evidencing one or more
of the Securitized Loans shall be and continue to constitute an Event of
Default under all Securitized Loans and all Excluded Transactions,
to the same extent as if this Agreement had never been entered into.
Section 2. Cross-Collateralization. No real and personal property
described as collateral in the applicable granting clauses of the documents
evidencing Securitized Loans shall secure the obligations of Borrowers and/or
their affiliates under the Excluded Transactions, and no real and personal
property described as collateral in the applicable granting clauses of the
documents evidencing Excluded Transactions shall secure the obligations of
Borrowers under the Securitized Loans.
Section 3. Ratification. Except as otherwise set forth in this Agreement,
the documents evidencing the Transactions which are outstanding as of the date
of this Agreement are unmodified and in full force and effect.
Section 4. Miscellaneous.
(a) Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal effect
to the intention of the parties as expressed therein.
05/33792
FFCA Securitization
1641/02-188
2
<PAGE>
(b) Other Documents. Each of the parties agrees to sign such other and
further documents as may be reasonably appropriate to carry out the intentions
expressed in this Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of FFCA, Borrowers and the undersigned affiliate of Borrowers, and
their successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee appointed from
a private panel.
(e) Joinder by Affiliate of Borrowers. The undersigned affiliate of
Borrowers is joining in the execution of this Agreement for the purpose of
acknowledging and agreeing to the terms and conditions of this Agreement.
05/33792
FFCA Securitization
1641/02-188
3
<PAGE>
IN WITNESS WHEREOF, FFCA and Borrowers have entered into this Agreement
as of the date first written above.
FFCA ACQUISITION CORPORATION, a
Delaware corporation
By /s/ DENNIS L. RUBEN
Dennis L. Ruben
Senior Vice President and
General Counsel
ARBY'S RESTAURANT DEVELOPMENT
CORPORATION, a Delaware corporation
By /s/ JONATHAN P. MAY
Printed Name Jonathan P. May
Its Vice President
ARBY'S RESTAURANT HOLDING COMPANY,
a Delaware corporation
By /s/ KENNETH C. FISCHER
Printed Name Kenneth C. Fischer
Its Vice President
ARBY'S, INC., a Delaware corporation
By /s/ KENNETH C. FISCHER
Printed Name Kenneth C. Fischer
Its Vice President
Acknowledged and agreed to by:
TRIARC COMPANIES, INC., a Delaware
corporation
By /s/ JOHN L. COHLAN
Printed Name John L. Cohlan
Its Sr. Vice President, Corp. Finance
05/33792
FFCA Securitization
1641/02-188
4
<PAGE>
EXHIBIT A
SECURITIZED LOANS
05/33792
FFCA Securitization
1641/02-188
5
<PAGE>
EXHIBIT A
SECURITIZED LOANS
ARBY'S RESTAURANT DEVELOPMENT CORPORATION
==============================================================================
LOAN PROPERTY
NUMBER ADDRESS CITY STATE ZIP
==============================================================================
- ------------------------------------------------------------------------------
8000-3769 1061 Highway 260 Cottonwood AZ 85028
- ------------------------------------------------------------------------------
8000-3761 4322 Poplar Level Rd. Lowsville KY 40213
- ------------------------------------------------------------------------------
8000-3725 13063 Eureka Road Southgate MI 48195
- ------------------------------------------------------------------------------
8000-3726 1150 Livernois Rd. Troy MI 48084
- ------------------------------------------------------------------------------
8000-3728 30049 Ford Rd. Garden City MI 48135
- ------------------------------------------------------------------------------
8000-3729 34475 Michigan Ave. Wayne MI 48184
- ------------------------------------------------------------------------------
8000-3731 10500 Telegraph Rd. Taylor MI 48180
- ------------------------------------------------------------------------------
8000-3735 14864 Southfield Rd. Allen Park MI 48101
- ------------------------------------------------------------------------------
8000-3736 1455 N. Telegraph Rd. Monroe MI 48161
- ------------------------------------------------------------------------------
8000-3740 29515 Southfield Rd. Southfield MI 48076
- ------------------------------------------------------------------------------
8000-3746 44040 Ford Rd. Canton Township MI 48187
- ------------------------------------------------------------------------------
8000-3777 712 DeSota CV Horn Lake MS 38637
- ------------------------------------------------------------------------------
8000-3734 101 N. Skibo Rd. Fayetteville NC 28203
- ------------------------------------------------------------------------------
8000-3741 1915 Lejeur Blvd. Jacksonville NC 28540
- ------------------------------------------------------------------------------
8000-3743 2340 Randallmann Rd. Greensboro NC 27405
- ------------------------------------------------------------------------------
8000-3744 1001 Summit Ave. Greensboro NC 27406
- ------------------------------------------------------------------------------
8000-3753 301 Murcheison Rd. Spring Lake NC 28390
- ------------------------------------------------------------------------------
8000-3766 1106 W Cumberland St. Dunn NC 28334
- ------------------------------------------------------------------------------
8000-3767 5278 N. Roxboro Rd. Durham NC 27712
- ------------------------------------------------------------------------------
8000-4149 838 S. Van Buren Rd. Eden NC 27288
- ------------------------------------------------------------------------------
8000-3768 3802 S. Holden Rd. Greensboro NC 69502
- ------------------------------------------------------------------------------
8000-3780 1400 S. Main St. Laurinburg NC 28352
- ------------------------------------------------------------------------------
8000-3783 2105 E. US Hwy. 54 Durham NC 27713
- ------------------------------------------------------------------------------
8000-3957 403 Raleigh Rd. Henderson NC 27536
- ------------------------------------------------------------------------------
8000-3962 1401 N. Miami St. Fuguay Varina NC 27526
- ------------------------------------------------------------------------------
8000-3723 29 Boardman Canfield Rd. Youngstown OH 44512
- ------------------------------------------------------------------------------
8000-3724 5445 Northfield Rd. Bedford Hts. OH 44146
- ------------------------------------------------------------------------------
8000-3730 2467 S. Hamilton Rd. Columbus OH 43232
- ------------------------------------------------------------------------------
8000-3732 3330 Maple Ave. Zanesville OH 43701
- ------------------------------------------------------------------------------
8000-3733 7690 Mentor Ave. Mentor OH 44060
- ------------------------------------------------------------------------------
8000-3737 4477 Youngstown Rd. S.E. Warren OH 44484
- ------------------------------------------------------------------------------
8000-3738 12763 Rockside Rd. Garfield Heights OH 44125
- ------------------------------------------------------------------------------
8000-3739 34635 Euclid Ave. Willoughby OH 44094
- ------------------------------------------------------------------------------
8000-3742 3650 Riverside Rd. Upper Arlington OH 43221
- ------------------------------------------------------------------------------
8000-3751 26000 Euclid Ave. Euclid OH 44123
- ------------------------------------------------------------------------------
8000-3759 7646 Day Drive Parma OH 44129
- ------------------------------------------------------------------------------
8000-4122 1840 Winderly Lane Pickerington OH 43147
- ------------------------------------------------------------------------------
8000-3745 1212 Murfreesboro Rd. Nashville TN 37217
- ------------------------------------------------------------------------------
8000-3747 435 West Main St. Hendersonville TN 37075
- ------------------------------------------------------------------------------
8000-3748 3561 Mendenhall Rd. Memphis TN 38115
- ------------------------------------------------------------------------------
8000-3755 919 Gallatin Rd. Madison TN 37115
- ------------------------------------------------------------------------------
8000-3756 1370 Union Avenue Memphis TN 38104
- ------------------------------------------------------------------------------
8000-3762 3196 Dickerson Rd. Nashville TN 37207
- ------------------------------------------------------------------------------
8000-3765 967 W. US Hwy. 72 Collierville TN 38017
- ------------------------------------------------------------------------------
8000-3772 2044 Metro Center Blvd. Nashville TN 37208
- ------------------------------------------------------------------------------
8000-3773 1622 N. Locust Lawrenceburg TN 38464
- ------------------------------------------------------------------------------
8000-3781 4740 Showcase Memphis TN 38118
- ------------------------------------------------------------------------------
8000-3782 1860 Germantown Pkwy. Cordova TN 38081
- ------------------------------------------------------------------------------
8000-3758 326 Ingleside Road Princeton WV 24740
==============================================================================
05/33484
FFCA Acquisition Corporation
ARDC
Cross-default/Cross-collateral
<PAGE>
EXHIBIT A
SECURITIZED LOANS
ARBY'S RESTAURANT HOLDING CORPORATION
==============================================================================
LOAN PROPERTY
NUMBER ADDRESS CITY STATE ZIP
==============================================================================
- ------------------------------------------------------------------------------
8000-4078 1392 W. Elliot Rd. Tempe AZ 85283
- ------------------------------------------------------------------------------
8000-3770 924 N.W. 62nd St. Ft. Lauderdale FL 33309
- ------------------------------------------------------------------------------
8000-3771 11755 Pines Blvd. Pembroke Pines FL 33026
- ------------------------------------------------------------------------------
8000-3774 20203 S. Dixie Hwy. Miami FL 33157
- ------------------------------------------------------------------------------
8000-3775 1033 Dunn Ave. Rd. Jacksonville FL 32208
- ------------------------------------------------------------------------------
8000-3776 10160 Phillips Hwy. Jacksonville FL 32256
- ------------------------------------------------------------------------------
8000-3779 1413 E. Semoian Blvd. Casselberry FL 32707
- ------------------------------------------------------------------------------
8000-3975 I-95 and Malabar Rd. Palm Bay FL 32905
- ------------------------------------------------------------------------------
8000-4001 11500 S.W. 72nd St. Miami FL 33173
- ------------------------------------------------------------------------------
8000-4002 9597 4th St. N. St. Petersburg FL 33702
- ------------------------------------------------------------------------------
8000-4005 1909 S. Frontage Road Plant City FL 33566
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8000-4006 6760 S.W. 8th St. Miami FL 33144
- ------------------------------------------------------------------------------
8000-4008 1486 N.E. 163rd St. N. Miami Beach FL 33162
- ------------------------------------------------------------------------------
8000-4009 590 University Dr. Coral Springs FL 33065
- ------------------------------------------------------------------------------
8000-4119 12901 W. Sunrise Blvd. Sunrise FL 33323
- ------------------------------------------------------------------------------
8000-4120 896 Blanding Blvd. Orange Park FL 32065
- ------------------------------------------------------------------------------
8000-4121 2811 S.W. College Rd. Ocala FL 34474
- ------------------------------------------------------------------------------
8000-4150 4620 W. Lake Mary Blvd. Lake Mary FL 32746
- ------------------------------------------------------------------------------
8000-3973 2815 S. Main St. High Point NC 27263
- ------------------------------------------------------------------------------
8000-4004 543 W. Dixie Dr. Asheboro NC 27203
- ------------------------------------------------------------------------------
8000-4077 1103 N. Berkley Blvd. Goldsboro NC 27534
- ------------------------------------------------------------------------------
8000-4149 838 S. Van Buren Rd. Eden NC 27288
- ------------------------------------------------------------------------------
8000-4099 2702 Woodville Rd. Northwood OH 43619
- ------------------------------------------------------------------------------
8000-4101 760 W. Market St. Tiffin OH 44883
- ------------------------------------------------------------------------------
8000-4003 103 Madison St. Shelbyville TN 37610
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8000-4074 1130 Murfreesboro Rd. Franklin TN 37064
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8000-4100 961 U.S. Highway 51 Covington TN 38019
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8000-4007 1257 E. Draper Pkwy. Draper UT 84020
==============================================================================
05/33479
FFCA Acquisition Corporation
ARHC
Cross-default/Cross-collateral
<PAGE>
EXHIBIT A
SECURITIZED LOANS
ARBY'S INC.
==============================================================================
LOAN PROPERTY
NUMBER ADDRESS CITY STATE ZIP
==============================================================================
- ------------------------------------------------------------------------------
4934-0059 10705 W. Flagler St. Miami FL 33174
- ------------------------------------------------------------------------------
4937-0901 1720 E. Sunrise Blvd. Fort Lauderdale FL 33304
- ------------------------------------------------------------------------------
4967-0903 619 N. State Road #7 Margate FL 33063
==============================================================================
05/33446
FFCA Acquisition Corporation
Cross-default/Cross-collateral
Arby's
